DIME Brochure

A DIME or Division Independent Medical Examination is a very unique process which allows those requesting it to seek to obtain a truly neutral evaluation of a claimant's impairment and treatment plus even more. It is a powerful force in keeping the system honest since most treating physicians have been selected by the employer/insurer and many claimants remain suspicious of that. To claimants such physicians often seem not to be on their side. In point of fact they may be quite capable but there are others who may be less then thorough or devoted to the patient/claimant. A DIME affords a claimant or even the other side the opportunity to have treatment and impairment reviewed. Moreover the law has made a DIME a strong force that can only be overcome by clear and convincing evidence in most cases. There are exceptions but the general rule requires strong evidence to overcome the DIME opinion especially on the issue of MMI or impairment. The Division has a brochure available to review the DIME process and it is worth reading. In my practice we use the DIME process in the vast majority of cases though in some cases we do accept the treaters opinion. By the way you can agree with the treaters rating but still seek permanent total disability by objecting and following through as set forth by the law. A physician may say you have 20% impairment but for you perhaps you can no longer work. You have the right to seek total disability but you must act timely and sensibly to make your case. A lawyer is usually essential here.

State Social Security Polls

The uproar over possible cuts in Social Security and Medicare continues. At this polling website they show us the Colorado polls and they assert we should strengthen Social Security not cut it. However the so called voucher system touted by some politicians appears to push more of a burden on seniors to fund their medical care at the very time their income is reduced. No doubt there is much to criticize with any government program but turning matters over to private insurance is like turning over all our finances to the bankers. While free enterprise is great it can also lead to abuses based on financial power. "He who has the gold makes the rules" can be very harmful to a society. As a society we need certain basic matters covered and others regulated. It is a price you pay for being in the society and yet also it is a value to all of us to have some benefits. Moreover, historically we have tried as a society to protect the old, the young and the disabled and hopefully that will continue. Clearly most Americans feel the same. It will be interesting to follow this debate as it strikes me as an effort to begin eliminating programs that only need tweaking while not really addressing jobs and the budget. By the way watch out for those who are using the word "reform" to discuss Social Security/Medicare. Most of us in Colorado went through the "reform" of workers compensation. It was a euphemism for cuts in benefits to the harm of claimants.

SB 11-199

While this senate bill 11-199 is awaiting the governor's signature I expect it to become law. There are 4 provisions in the bill worth noting. First, it requires that the insurer pay costs in advance, if requested by the claimant, for an insurer IME or vocational evaluation. This means the cost for the claimant to travel, food and even a hotel must be paid or the claimant can refuse to attend. If they pay and claimant does not attend they can get an offset from future compensation due the claimant. Next, a Final Admission must admit for future recommended treatment by the authorized doctor unless there is a record of a contrary medical opinion. This prevents the insurer from disregarding physician maintenance treatment once the claimant reaches MMI. At times insurers never admit for further treatment even though its need is undisputed. A claimant may think or even be told by the doctor he can get further treatment only to be denied by the insurer and the bill seeks to avoid such a practice. Third,procedurally it corrects a discovery matter by not requiring those represented by an attorney to first ask permission before starting discovery. That extra step (documenting you asked permission) seemed just a waste of time and paper. Last, the bill makes it clear that any lump sum request regardless of the date of injury is not a waiver of the right to seek permanent total benefits. For those readers not familiar with the last issue the history of it is a claimant would receive an admission for permanent partial benefits of a certain amount, let us say $30000.00, and yet feel he was much more disabled so he'd seek permanent total disability benefits. Since by law the admission had to be paid out every other week the claimant sought it in a lump sum. That was deemed a waiver of his claim for permanent total benefits. The poor claimant was stopped in his tracks by accepting the lump sum perhaps just to pay bills and other expenses. You had to be careful to avoid this but the law has been changed. A total disability claim is no longer waived by accepting a lump sum.

Health Coverage in Colorado

If you have had a work injury or disability you or other family members may need health insurance for any future problems. Perhaps you qualify for medicare once you are disabled or retire but what about your spouse? Perhaps you are running out of any continuation health coverage. For those of us in Colorado here are a couple of websites that provide information you may find useful. The first site is for those who are not insured. Is coverage possible? Yes so click here for this website. Anyone with a preexisting condition (and that means most of us) should not be unable to obtain insurance coverage. While many politicos preach about this way or that the fact is that times have been tough for the uninsured and those with preexisting conditions. Group coverage is fine until you lose your job. At this website if you have had coverage within the last 6 months you may be able to use the information to obtain further coverage. After all COBRA coverage does not last forever so this site may help you out. Last I did want to include a link to Andrew Mersereau of Premier Insurance. He has been quite helpful on a personal basis on health coverage. Don't be afraid to call an agent for help when you cannot do it yourself.

Munoz Court Case on DIME waiver

The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.

Totally disabled 74 year old denied permanent total benefits

In a recent ICAP case the claimant Lane was 74 years old and admittedly totally disabled. However he was denied permanent total disability benefits after a hearing and this was affirmed by ICAP. The claimant was injured in September 2008 and eventually received an impairment of 13% of an upper extremity which equaled a 8% whole person rating. There was some dispute on his restrictions but both vocational experts provided credible opinions the man was not likely employable. The claimant did have multiple non-work related conditions such as hip pain, hearing loss, balance problems and an abdominal aortic aneurysm. So what happened? The ALJ determined the claimant had failed to show that the industrial injury was a significant causative factor in his inability to earn wages. In the case there was evidence presented that the claimant had no restrictions from his work injury and also evidence he had restrictions. The claimant was working for the employer after maximum medical improvement (MMI see glossary) but was let go for an alleged failure to do something and this was given weight by the hearing judge. So being no longer employable at the conclusion of a workers compensation case does not mean permanent total benefits are awarded. The key is whether the work injury is a significant causative factor. In this case the medical evidence of post injury restrictions was not present so claimants should always focus on obtaining medical restrictions and establishing the work injury was a significant factor in being unemployable. Often with older workers they do have many health problems and actually those problems plus a significant work injury can make for a good case of permanent total disability but it is not an automatic award as the Lane case points out.

Social Networking and Online Privacy

Over at the Legal Talk Network there was a recent podcast that details much information about how websites like Facebook can affect a workers comp claim. For that matter anything online can be information that is used by the other side. Even employers can check into employees or prospective employees online. Investigators or insurance adjustors are very interested in finding out about claimants. Moreover the information you post is forever online or so it seems. In this podcast there is a very interesting discussion on this and it can also be useful for attorneys. I also noticed another podcast on surveillance and it is also revealing about what is done when surveillance is requested. Both of these podcasts are fascinating but are provided here for general information. Much of this may apply to Colorado but perhaps not all. I can say that if a claimant has a high value claim or claim for a serious injury or has something that raises a red flag that insurers will gather up information which can be from online sources or private investigators. Every claimant should be careful with their online or public activities. Even discussions with friends, neighbors or co-workers can affect the claim.

Medicare Rights Group Against GOP Changes

There seems to be a constant assault on Social Security and Medicare/Medicaid coming from I would call the far right of the political spectrum. The fact that Social Security has not been the real problem with the federal deficits and actually was borrowed against to fund government spending does not matter now. While there is no question that structural changes to make it more solvent may be soon needed the current effort seems nothing short of inhumane in its consequences if enacted. While that will not happen I find it amazing after all these years to see some questioning the usefulness of such benefits. The inability of some to accept the notion that we just need to cover the old, the disabled and the young astounds me but I guess they do not generate much income so we should minimize them is their attitude. Anyway this medicare rights group notes their disagreement with the GOP effort of one representative to pare down benefits. Also the Alliance for Retired Americans is voicing its concerns. Lastly at another site for the "middle class" they are also critical of this proposed legislation.

Recent Hearing Decisions

Over at the website for the Office of Administrative Courts they do, from time to time, post all or most of the workers comp hearing decisions. They redact or edit out certain parts especially the claimant's name but the reasoning and facts found are all there for anyone to review. The latest they have is for February 2011 and the decisions start with a claimant wanting botox to matters involving compensability and a host of other matters. It is always interesting to read what is happening at the local level. Moreover they do include names of doctors or other experts so you can see what case that doctor has been involved with. If you want to see how complex this field can get go ahead and look at these cases. Moreover the cases do set forth what the hearing judge believes is the law with citations though any of the cases can be subject to an appeal.

First Comp-Appellate case on a battle between insurers

The Colorado Court of Appeals issued a decision today involving a dispute between two insurers. The claimant was injured and in the case there were two employers. The direct employer had Pinnacol Assurance and the statutory employer had First Comp as its workers comp insurer. Pinnacol alleged it had cancelled the policy so the direct employer had no coverage leaving the statutory employer and its insurer to be responsible in the case. There was evidence presented and the hearing judge ruled that First Comp was the insurer in this case. First Comp, appealed and the Court concluded it had no standing to appeal the cancellation determination. In effect the cancellation statute was between the direct employer and Pinnacol and the injured worker but not with First Comp. It sounds to me a bit like the legal concept of privity. Even though First Comp takes a direct hit when the direct insurer is able to walk away because it cancelled the policy the lack of a close statutory relationship or benefit then prevents First Comp from appealing the issue. It lacks standing said the court so First Comp's appeal was dismissed. Certainly here the legal concept of standing to appeal was raised to prevent issues remote from the claimant from interfering with the compensation process. Perhaps an insurer would not pay benefits pending an appeal which can take over a year to the harm of the claimant or his dependents (in this case the injured worker had died). Imagine waiting for benefits while two insurers battled it out!

All About Claims Newsletter March 2011

The Colorado Division of Workers Compensation has just released a new newsletter. In it you can read the comments of former Judge Jaynes who recently passed away. There is also something on the DIME (Division Independent Medical Exam) process. The newsletter approach is a good one and would be even better if it were a regular feature. Giving us a glimpse inside the state agency makes it rather unique. Being able to just talk about things in a very informal way is helpful. It puts a face on what we sometimes see as bureaucratic when actually it is human. Many good people do their best in this field. The field itself may need much improvement but those who work in it have not been the problem. In fact looking back on the many years I have been doing it I have to acknowledge that the people at the Division and those handling hearings have been, for the most part, very decent and intelligent people. They are decent because they are respectful of others even when they must follow the rules. They are intelligent in doing their best to be fair and legally accurate in what is often a very complex field. Most of them and most who practice in this area believe they are making a difference as do I. Having said that I should add that some adjusters and employers do not play fair at all. Yet dealing with them can be difficult but also very rewarding when done right.

Colorado Injured Workers Survey

Over at the Colorado Division of Workers Compensation they just posted the results of a survey now required by law. Once the case is over or close to over a survey request is sent out to the claimant. For this first survey not that many responded but it is enough to tell us something. The survey itself asks about courtesy, promptness, medical care and overall satisfaction. The weakest area, according to claimants finishing their case, is in disputes being promptly resolved. Amen to that as delays are common in a field originally set up with good intentions. Most cases seem to take 2 years if they involve a serious injury and an attorney. Some cases go much faster but often it is because they are being treated as minor. I have always planned on at least a year but it does depend on the injury and how much medical care is needed. Even then many cases seem to drag on largely because the system has remedies that take time to work through. A Division IME adds a minimum of 3 or 4 months to the process. You file this paper and wait for the other side. Then they file and you respond. Then you wait for the Division to give you doctor names and then once selected there is a window within which you must set the appointment. Even then it takes time to receive the report and more time for the insurer to act before the claimant can act. It is a bit like a baseball game as the law gives each side a time at bat so no matter how fast you want to go it takes time to line it all up. As for the survey results you can access them by clicking here. Pinnacol received a 3.6 grade out of 5 for overall satisfation. Zurich Insurance was a 4 and the worst among the larger companies was Kroger at 2.5 but all the results have been posted. You may need a spreadsheet program to look at it all but what it tells me is that the overall grade is like a C or C plus. Let me add this...it is not good enough for those disabled and relying on a government mandated compensation program to say it was just okay. Claimants are often hurting physically, financially and are also stressed by the situation even under the best of circumstances. They deserve courtesy, promptness and decent medical care. To me the lower the grade the more adversarial the company. Persistent low grades on surveys may warrant further review or further regulation.

Social Security Compassionate Allowances

Those seeking Social Security Disability often have to go through a long and tedious process. You file, get evaluated which takes weeks if not months and very often are then denied. In Colorado you can then appeal and seek a hearing. However any hearing date is delayed for many months. I have been figuring on it taking a year or longer for the hearing and decision. Even when you win the matter must be processed for you to begin receiving benefits. If I had to estimate the time from beginning to end I would have to say the process will take over 1 1/2 years. Typically from the time you start to the receiving of benefits is long but I say that if you can no longer work get the ball rolling on this. Doing nothing is foolish as there may be things you or your attorney can do to get ready. But there are exceptions to all this. Sometimes people are granted benefits right off the bat. Most of us are not that lucky. Despite any delay if you obtain benefits you may get them backdated to a point 6 months from when your total disability actually started. That is the rule for everyone and the date of disability or onset is not always easy to figure out. Often the judge will do so in his decision. Anyway the point of this blog posting is to make you aware that the agency does have a fast track in certain cases. It is called Compassionate Allowances. For example if the person has early onset Alzheimer's disease they can be fast tracked. In other words certain serious problems can be expedited so benefits flow faster. There are at present some 88 diseases and conditions but this list can get expanded from time to time.

The Zolman Case on Bad Faith

The Colorado Court of Appeals just issued the Zolman decision on March 3, 2011 that concerns a civil claim for bad faith against Pinnacol. In this case which arose out of a workers comp case the claimant was upset with Pinnacol denying treatment and denying a change of physicians. A separate lawsuit was started alleging bad faith. This can mean a trial by jury on whether Pinnacol acted in bad faith which involves acting unreasonably. Pinnacol filed a motion for summary judgment against the civil case which was granted. This was affirmed by the Court of Appeals. So the claimant or rather the plaintiff in the bad faith case lost the case. Summary Judgment is a severe action and historically is not granted if there are questions of fact that should go to a jury. In Zolman there certainly were questions of fact on what is appropriate treatment so you would think the issue of how reasonable Pinnacol was should go to a jury. That is Pinnacol had what it believed were good reasons for denying and the claimant had reasons for saying it was unreasonable. It was a battle of medical experts which is common in this area. Yet the Court decided Pinnacol acted reasonably as a matter of law. Certainly when there are no genuine issues then a summary judgment is appropriate and that is what the case says. What I find puzzling is the use of the concept of "fairly debatable" apparently as a basis for concluding Pinnacol acted reasonably as a matter of law. As I understand it they are saying that the need for treatment was fairly debatable given doctors did side with Pinnacol but to me if there are doctors going the other way even if the dispute could be reasonable you still could go to a jury. On November 10, 2010 another panel of the Court of Appeals in Sanderson did decide that fair debatability alone does not defeat a bad faith claim. You have to wonder if these two cases are reconciliable on the basis to grant or deny summary judgment. In any event Zolman does have the Court deciding that Pinnacol's actions did not rise to the level of bad faith.

Pinnacol Has 3 New Board Members

The Denver Business Journal is reporting that 3 new people were voted onto the Pinnacol board by the legislature. One of them was highly critical of Pinnacol so it will be interesting to see what comes of this. Pinnacol Assurance is Colorado's largest workers comp insurer and has a long history. It was originally set up by the state and is a hybrid of public and private interests. Pinnacol wants more autonomy and yet many in the state legislature are upset with how it now operates. See for example one recent legislative effort in an article in the Denver Post. However Pinnacol does have points going for it. I have previously reported on this so this is just another entry in an ongoing story.
UPDATE: New Board votes to take away the CEO's bonus and in this article in the Denver Post more is discussed about Pinnacol.