Television advertising by attorneys UGH!

It may be that some advertising is useful but as of today I am turned off by many of the TV ads by attorneys. The fact is workers comp cases are not easy and there are no automatic recoveries with big dollar figures. Moreover in Social Security disability hearings at the local level the statistics suggest that many people lose! The statistics I've been given vary depending on the local Judge but one Judge issues favorable decisions less than half the time. So advertising that leaves you with the impression the lawyer is invincible or a cash king is hogwash. There are two things to address here. First, some of these ads are being run so many times on several stations that it seems like half the ads on TV are attorney ads. I admit that is only my impression but the repetition is excessive! Of course I have a DVR so I skip most of them but I am astounded at the number of lawyer ads on television. Second, this much advertising can result in a huge caseload. So unless you are careful even the best lawyer can be overwhelmed with work. There can be pressure to settle or resolve cases to feed the costs of operating and advertising such a practice. My experience has been to limit the number of cases we handle because each case we do take will almost always involve a great deal of time and energy. Anyone with a work injury or disability has physical, emotional and financial problems plus legal problems added to the mix. This means every case is unique and deserves individualized efforts to get through it with minimal problems. Often a seriously injured case takes over a year to resolve. If so...that is the way it is and should be and rushing to settle is not wise. Excessive advertising expenses and a huge caseload can complicate or even harm this process. Today my main issue with the ads is that they are flooding the airwaves and are unrealistic. So I say UGH! Anything that sounds too good to be true is often not good and not true. By the way some TV ads are professionally done and helpful. I just dislike ads that seem over the line.

Last Friday's Lunch Meeting

Once a month or every so often a few local attorneys meet for lunch and to discuss workers comp and Social Security disability concerns. It is informal but it is useful for all of us to be able to "talk shop" in an area that is as complex as workers compensation and disability. It's also enjoyable and most importantly it helps us all to talk things out. Last Friday a doctor showed up and we had a discussion on pain medicine and therapies. We also discussed other topics such as the Waddell signs. Dr. Waddell (a noted orthopedic surgeon in Great Britain) several years ago presented that certain non-physical matters might affect a person. This seems to have been misinterpreted so that some providers suggest that exaggeration or faking is present if several of the Waddell's signs are present. The fact is Dr. Waddell disavowed that interpretation. In any event we discussed this and I brought with me the latest copy of Dr. Waddell's more recent book. It was a most enjoyable and educational lunch and thanks to the doctor for his attendance!

Update on the Holnam case noted earlier

As I mentioned earlier in Holnam the claimant was unable to seek coverage for an alleged occupational disease based on the legal theory called claim preclusion. The case is a bit complicated but essentially having lost on a traumatic claim the effort was made to allege the condition was caused by occupational activities. The Court said you cannot come back and do this at another hearing. I believe this is not sound reasoning and by way of an update I understand this case is being sent to the Colorado Supreme Court. Of course it is up to the court as to whether it will rule on it but I remain hopeful. I should note further that appeals take a lot of time. It is sad but speedy outcomes are not part of workers compensation when there are appeals. In my view this works to the advantage of the insurers since they can wait it out as compared to claimants.

Vocational Rehabilitation

If you've been injured on the job or even if you simply have health problems which restrict work activities and you're worried about what work or job you can now do check out the Colorado Division of Vocational Rehabilitation. It is unlikely you will receive any vocational rehab through a workers comp insurer. Workers comp used to have a more active vocational rehab effort but that has changed so seldom will you be offered voc rehab by the insurance carrier. My experience has been that they simply pay you a settlement or by Final Admission and you are then on your own. This can be especially difficult when you feel you've lost your trade or occupation. If you are permanently and totally disabled from returning to any work then you may also seek Social Security disability benefits or other disability benefits if available. Moreover any resolution of your workers comp case can mean a substantial recovery if it is properly handled by your attorney. But if you simply cannot continue in your line of work yet believe you can work then consider contacting the Colorado Division linked here: http://www.cdhs.state.co.us/dvr/

Can You Do It Yourself?

Workers comp is so complicated that it has its own rules, its own separate caselaw and statutes, medical guidelines, and even comes under two Colorado agencies (the Division of Workers Compensation and the Office of Administative Courts). Deadlines and forms are also quite complicated and even those with experience must stay on top of them in every claim they handle. Some claimants believe they can try to handle their own claim. Others feel they will be treated fairly especially if they are receiving some benefits. While there are cases where you can receive decent medical care and benefits it is rare that any claim will go smoothly all the way to the end. Certainly the Division has a customer service section which does provide some basic help and it is possible to handle your claim pro se (without an attorney). I suspect many claimants want to avoid using an attorney and think they can come out ahead by saving on the legal fees. All I can say is this....if you can retain an experienced workers comp attorney then do so as he or she will usually maximize your benefits. Too many times the medical care is incomplete. Too many times the amounts due you are very low and you are told it is all you are entitled to receive. Many times an attorney can obtain substantially more benefits for you and far more then the legal contingency fee which is 20% in Colorado. So try to obtain a lawyer to help you with your claim. Do it yourself only as a last resort when a lawyer cannot be found to take your claim. Moreover here is one more tip: whenever possible obtain an attorney early on in your case. The sooner the better given the contingency fee is the same anyway.

Dec. 28, 2006 two Court of Appeals cases

These cases are not favorable to claimants. In one case, Sigala, the claimants temporary benefits were "suspended" for missing an appointment with his authorized doctor. The appointment was set by the insurer and sent certified mail to the claimant after he missed an earlier appointment. The rule permits a suspension and in this case the claimant finally went ahead with a later appointment and then wanted the suspended back benefits to be provided. While his temporary benefits were reinstated the back suspended benefits were never provided. In this case several weeks were never paid. The Court of Appeals decided the "suspension" for those several weeks was a forfeiture for those weeks. I disagree with this decision. Despite the Court's view I see no due process and cannot understand how "suspension" can mean "forfeiture" as the statute could have said forfeiture. The next case, Holnam, involved a claimant trying to win on two different theories. First he said he had a work injury to his neck. He lost. Then he said, okay, my neck problem comes from an occupational disease in that work activities caused or aggravated it. The hearing Judge agreed and the insurer/employer appealed. The court decided that you only get one bite of the apple here and the claimant loses on both theories. The concept is what they called claim preclusion. My view is the court was wrong. Workers comp hearings are very specific on issues and evidence and dates. A work injury is date specific and the mechanism of injury is one specific incident. An occupational injury develops over time and was never addressed in the first hearing when one date one incident was the theory. The issues are quite different in the two hearings. If a trauma on one date did not cause the problem then other dates with work activities are ongoing aggravations. It really requires more medical evidence beyond one date one trauma. In any event the court focused on it being a neck claim and you do not get two tries to establish a neck claim. To me this is off base. I hope both cases either go to the Supreme Court or are limited in how they are interpreted.

Merry Blizzard!!!!

Just a note about Christmas as the snow flies here in Colorado. It's not a lot of snow but the wind makes it a blizzard in Colorado Springs though elsewhere in the state there has been significant accumulations of the white stuff. This time of year is almost magical. It is festive and hectic but the spirit of Christmas is in the air. If love could be measured then Xmas would be overflowing the cup, spilling over and over and over. Sure there is the marketing and hawking of "stuff" but the spirit of Christmas exceeds the materialism of the holiday. The joy of a giggling child, the excitement of gift giving/receiving, the songs, the smiles, the warmth of memories of old and memories being made right now...it is a truly blessed time. So deck the halls and have a great time with family and friends. We can all be the Santas and childlike all over again this year. It is an awesome holiday. Have a MERRY CHRISTMAS from snowbound Colorado!

Listen in on an appeal!

You can listen in on the audio of cases set for oral arguments at the Colorado Supreme Court or Court of Appeals. These are real cases where the lawyers argue in front of the appeals judges. As an example I have a link below to several cases heard a few months ago. When you click on the link you should click on the STC case (05CA2340). The case involves apportionment. Insurers love to limit benefits and try to use this legal theory of apportionment to pay for only a portion of benefits. So over the years there have been numerous cases involving apportionment. By way of example insurers may say they only need to pay for half of your surgery if they can establish it should be apportioned. In any event the oral arguments of both sides can be heard in the case noted above. http://www.courts.state.co.us/coa/oraldock/2006/aug2006.htm#7

Special Issue

The Workplace Injury Law and Advocacy Group (wilg.org) is a national group of attorneys interested in protecting injured workers. They have just put out a fascinating issue which has extensive information on the state of workers comp in the country. This is in pdf and will take quite a bit of time to load depending on your internet connection but the issue is simply an excellent read. Here is the link: http://66.6.98.12/data/firstwatch/WFWSpecialIssue.pdf

Max

This may be a blog on workers comp but since I mentioned our grandson it is my perogative as a grandfather to show him off! Max is now almost 10 months old and reminds us all that there is so much more to enjoy in life and be grateful for despite our adversities.

Employee's Guide

Just a quick note to post here the link to the Colorado pamphlet for Employee's. It is in pdf format so it can take some time to load but it contains answers to frequent questions put out by the Colorado Division of Workers Compensation: http://www.coworkforce.com/DWC/PUBS/employees_guide_2005.pdf

Schedule or Whole Person?

There is nothing more frustrating to an injured worker with an hand, arm , shoulder. or leg injury then to find out that Colorado may consider such injuries as worth less in permanent benefits. A construction worker who must live with pain, restrictions and stress because of an arm injury is often going to lose his trade. At a minimum he may need an easier job which also may mean less pay. Yet in Colorado benefits for a permanent arm injury may be small...perhaps a few thousand dollars. Unless the person is totally unable to work to be told benefits are low is simply not good news. This concern is called a scheduled injury and believe me all insurers will attempt to treat such injuries noted above as scheduled. This is quite different from the whole person injury calculations which often result in significantly higher benefits. Let me give you a specific example. Mr. Jones has a shoulder injury and if the schedule is used the calculations for his permanent injury are around $11000.00 but if converted to whole person the figure is over $40000.00. So same injury but if the schedule is used the amount is lower. There is no logic to this at all when you are permanently hurt especially if it affects your wages. But years ago Colorado decided on a mathematical formula for benefits and arms or legs can be paid less then backs and necks. What to do about it: if possible seek out an attorney or if you are on your own try to show that your injury extends beyond the arm or leg. Either anatomically or functionally when your impairment affects more then the extremity a judge may agree and provide you with the higher benefits (whole person benefits are usually higher the scheduled benefits). Most important of all...DO NOT ASSUME THE INSURANCE IS RIGHT ON ANY CALCULATIONS.

About Your Spine

Here is a very good overview on backs...anyone with a neck or back injury can gain some insight by reading the info posted at this website: http://www.spineuniversity.com/public/spinesub.asp?id=32

Two Colorado cases announced today: Williams and Stefanski

The Colorado Supreme Court just issued opinions in two related cases today. These cases arise from the procedure used in Colorado to review an authorized treating doctors opinion on MMI (maximum medical improvement) and permanent impairment. Usually the claimant pays $675.00 for that review because the claimant questions the opinion of the treating doctor (often selected and approved by the employer/insurance). My experience has been that often an independent exam reveals a person needs more treatment or has a greater impairment then allowed by the treating doctor. These independent exams are important because they help to protect the claimant from a premature discharge from treatment or they add to the permanent impairment award. Colorado courts were divided on the problem of what happens if the independent doctor says you at not at MMI and after further treatment the treating doctor again says you are done. Who pays for the next visit to the independent doctor? Claimants seldom have the money to pay again. The decisions today determined that the insurer must pay not the claimant. My view has always been that when you seek this independent exam to address MMI, permanency and other items that you pay for it once not over and over again. In any event here is the link: http://www.cobar.org/opinions/opinion.cfm?OpinionID=5858

Non-lawyer's Guide to Procedures/Hearings

While the best advice is to obtain an attorney to assist you with your work injury claim there are many cases where you either don't want or can't find an attorney to take your case. Sadly some claims have become small claims and lawyers are hard to find to handle it. If the state of Colorado told us they would pay all legal expenses then everyone would likely be represented even in the smaller cases. But some claims nowadays have had benefits so reduced or limited that a claimant may have to represent himself or herself because lawyers are not available. I do like the customer service unit at the Colorado Division of Worker's Compensation for trying to help out here but when you need a hearing you may find this guide provided by Colorado helpful (but please consult with an attorney if at all possible especially when you have a serious injury) : http://www.colorado.gov/dpa/oac/Non-Lawyer_WC.htm Also it is available in English or Spanish!