All About Claims...August 2008 Newsletter

The Division of Workers Compensation has just put out its latest newsletter. They call it "All About Claims" and though it is late July they have it as August 2008. That is close enough for me. Anyway this is an excellent newsletter that I wish was published more often. In this latest one they review some new law/procedural matters (on apportionment and aggravation) and also present to the public photos and information about some Judges. It highlights Judge DeMarino who is highly capable and experienced. The Judges noted are handling prehearings and settlement conferences as promptly and wisely as they can. I appreciate their involvement in these areas. Otherwise we'd be left with a slower and more adversarial system. Their mere presence in a settlement conference makes the parties and the attorneys far more amenable to a reasonable compromise. Clients who are present come away with a more realistic understanding of the process and what has to be considered in a compromise. Anyway read the newsletter here.

Conflict of Interest Recent Case

On July 24, 2008 the Colorado Court of Appeals issued a case dealing with conflict of interest. The claimant was involved with the Division IME process. The DIME doctor received over 1/3 of his income from the insurance company as a regularly used provider and advisor to the insurance (Pinnacol). A DIME doctor is supposed to be truly independent and medically provide an opinion on treatment and impairment. He or she is not a treating doctor who is often designated by the employer/insurance to treat a claimant. Here the DIME doctor had close ties with the insurer but not on the specific case itself. The ties were from other activities although anyone receiving 1/3 of your income from contractual arrangements would seem pretty close to an insurer. The Court of Appeals determined this was not a conflict of interest and upheld the DIME doctors opinion in the case. Now many of us, even claimant attorneys obtain much income from insurance companies although we obtain it in an adversarial way (we battle with them). But having close contractual ties does seem to be at least an apparent conflict of interest. The mere receipt of money from insurance companies is not a conflict because if it were nearly all doctors would be deemed in a conflict of interest situation. So it is not an easy task to assume a conflict of interest exists from dealings with the insurance. It can be a question of fact but I am personally uncomfortable with the decision. If an attorney had a rather close relationship with an insurer he would likely not take a case against them. But doctors are not usually adversarial and getting paid by insurance does not mean there is a conflict. Anyway read the case here.

Free Consultations

Many attorneys in the injury and disability field state that they offer free consultations or a free initial office visit. That makes sense because most of the injured or disabled do not have the means to pay $100 or $200 or $300 or more to even see an attorney. Such a visit often takes more then one hour to be thorough. Usually mine take 1 1/2 hours as I really like to review much at the meeting. The paperwork, medical records or related legal/correspondence have to be reviewed to get an accurate picture. So talking by telephone is simply not good enough. The same with emails...just not good enough. Looking at the documentation and chatting is important to shed light on the situation. Is there some sort of catch to this free appointment? Absolutely not. It is free no matter whether you or the attorney do anything further. Of course it is also a way for the attorney to eventually earn fees but that is down the line. However do not expect the attorney to discuss other legal problems not related to your claim. The one thing that does amaze me is when someone calls and wants a free consultation but it is not something we handle or where we are not available for an appointment. When that happens most people understand and just keep seeking someone who can help them. But a few seem to think that "free" means they are entitled to it or an attorney has to see them. Nope. It just means the consultation or appointment is free when it is set by us. It is not required an attorney must consult with you only that if he does then it be free.

Colorado Minimum Wage

As of January 2008 the minimum wage in Colorado is $7.02. The federal law has minimum wages going to $6.55 an hour as of this week and to $7.25 an hour by next July 2009. Colorado's will likely be higher by then. So if you are making $15000.00 a year you are over the minimum wage! Still many business owners complain and may even cut back on their employees. Costs are rising. For example in the pizza business costs of the food items are going up just as they are in the grocery store. So either a business owner will try raise prices or cut back. This all seems rather sad to me. The problem with service industries is that it is not as profitable as manufacturing can be. Our growth was for a long time tied to manufacturing and that is now going downhill as it is outsourced to other countries. That leaves us with more low paying jobs. Some then sought wealth in finance and global corporations. We all know of the quite high compensation in those areas at least until the recent slowdown in the economy. But the average american sure isn't benefiting from this as he downsizes his house, his vehicle, his job. This is just my observation but it does make you wonder how it will all play out.

Recent National Hot Topics in Workers Comp

I am posting a link to a website maintained by insurance interests. The information there makes us aware of the status of workers compensation in the nation. As expected claims are down over the last ten years as of 2006. That is the last year they provided data. It is interesting to see what is happening in other states. Of course insurers complain about rising medical costs and the efforts in some states to increase benefits but that has always been the case. I am beginning to wonder if this downturn in claims is the result of industry fleeing the country for production in foreign countries. As American laboring jobs are lost there are less claims too. The workplace is safer if the higher paying job is gone and now you are a greeter or in customer service. The news and comments at this site provide a broader perspective on injuries in America and what some states are doing. Click here to visit the site.

A Dose of Reality

Lately it seems I am seeing people who have seen some ads and called attorneys who imply it is fast, simple or suggest that you'll get big bucks in your claim. The reality is that if you have a workers compensation claim not all mean big bucks. Also fast or simple likely means only that the call to the attorney is fast or easy...the claim itself is not fast or easy unless it is a late in the process. You don't select your attorney by watching slick ads that seem like short infomercials. How do you do it? First you ask around of people you trust. But that is just one part of it. Then you look for solid information. The best place might be online where you can check websites or blogs about the attorney. I mean many of us now shop online right? We review products and obtain information that helps us to save or get the best product at the best price. So search by the type of claim and your location or search by name or search by your problem or when in doubt search by whatever you wish. Do not disregard ads or the yellow pages but when you locate a possibility then follow through with an online search. Information can be your friend in trying to locate an attorney. Then if you can get an appointment does the attorney answer your questions? Does he take time with you? And...does he tell you the problems too? You want the whole picture not some simple promise to take care of you. I suggest you do this as soon as possible and then decide who is right for you. The reality is that every claim has its upside (reward) and its downside (risk) and you need to be informed not sold a bill of goods. As for some ads...don't they remind you of a barker at a carnival? You know the guy who says come over here we have an easy game to play and the prize is huge. And it's fast and easy too! Advertising is not all bad and can help in the information gathering process but the key is getting real information not a sales pitch. Search and select based on reality not pie in the sky.

A Quick Note About Posted Links

In some stories or postings I've made I will put a link to the story or article of interest. However sometimes the posting which can be current at the time no longer is available due to the passage of time. Usually with court cases that is not a problem because they are kept posted for 2 years or longer. But every now and then a perfectly good link becomes unavailable. This can happen with news articles or if the website I am sending you to has changed. If you are really interested in the link you might try going over to the way back machine at archive.org and they may be able to go back in time to the old link.

Decline in Social Security personnel

When people wonder why there are delays in handling Social Security claims they have to realize that the agency is handling more claims with less people. Technology may help with efficiency but that is not enough. Service requires people helping people and over the last ten years there has been an actual reduction in personnel despite increasing claims. Here is a link to a story on this which sets forth the actual numbers per year decline in agency personnel. It does make you wonder if getting old or disabled is not a good idea. Click here.

Apportionment SB08-241 New Law

Effective for all injuries happening after July 1, 2008 a recent law addresses the subject of apportionment. This is where the claimant has a prior impairment and then sustains further injury. The issue caused much litigation so hopefully the new statute will clarify matters. There was one case in Colorado where the apportionment applied to reducing even medical benefits. Imagine re-injuring yourself at a job and then someone saying we'll only pay for half of your medical care due to a prior work injury. Anyway that is gone now. Claimants receive temporary and medical benefits in full even where it is a re-injury or aggravation. But also apportionment still can occur for any permanent impairment if it existed at the time of the latest injury. At the Division of Workers Compensation website they are also working on new rules to implement the new law. For a general overview check it out here.

Lip Service

Whether federal disability or workers compensation disability we all expect fairness and justice in the process. That expectation is not realistic. Far too often good people are misinterpreting lip service for reality. Lip service says you should be promptly and fairly treated. If you have an injury you should receive quality care and benefits. If you lose your job you should be compensated. You should be communicated with by the insurer and taken care of by the law. In Social Security you should receive benefits for total disability where you cannot effectively work anymore and it should kick in as soon as possible. Reality? No. Instead 25% of the people with a work injury in Colorado have their claim contested. This means prove it before a Judge and until then you may receive very little if any benefits. A hearing takes a few months to receive but even if successful the insurer can appeal. Starvation and lack of adequate medical care can be a big problem. Even with treatment and some benefits the insurance always looks for the lowest way to calulate benefits. This does not mean the adjuster is mean or being tough on you...it is just a fact that insurance seeks to save money and that can be at your expense. Social Security hearings take months to obtain and it could be years before benefits are coming if at all! Prompt and fair? No way. As Americans we believe in fairness and justice. That is the American way but reality can be quite different from the lip service. Here is a link to one story about how the Social Security office was cut back yet claims were increasing. Sometimes you do wonder if it is a planned effort to end the current system by making it worse then it should be. Anyway here is the link to the story.

Effective July 1, 2008 Comp rates

Anyone earning over $61321.00 receives no additional compensation for their Colorado work injury. As of July 1, 2008 the highest temporary and permanent weekly benefit is capped at $786.17. To get that you have to earn $1179.25 a week. If you earn more Colorado says too bad. If you earn less it's 2/3rds of your average weekly wage. So if you earn $600 a week then your weekly temporary benefits would be $400 (2/3rds of $600). What is your average? Add all your overtime and use a common sense approach. The insurer may only use your base pay. Often that is because that is what is told to them by your employer. However your average weekly wage can include overtime and other benefits (especially if they cancel or end your health coverage through work). Your employer or the insurer may decide to only count the last 3 months when that may not reflect a true average. Unless agreed upon you can seek a hearing to question what is a true average for you. However it also does not mean you only count the highest checks you've received. There is a statute on this but really just be sensible and if you are uncertain try to resolve it before seeking a hearing. In any event there is a lid or cap on benefits and for July 1st til next year the figure is set forth above. Also disfigurement is now capped at $4174 or possibly double that if you have extensive and visible disfigurement. It can be less so when I say cap it does not mean that is what you get. You may have a very minor scar and receive only a few dollars.

Non-lawyers Guide to Workers Comp Hearings

The Office of Administrative Courts is where they handle workers compensation cases that are disputed or contested in the sense that they need a hearing. For example if the insurance is contesting the claim then you may have to go to a hearing. Or, you disagree with something and wish to make an issue of it for a judge to decide then it may need go to a hearing. Issues can be over temporary benefits, medical benefits, permanent benefits and much more. Perhaps you seek to change doctors and the insurer won't agree or maybe the average wage they have for you is too low so you feel it is shortchanging your benefits. Hearings are needed in many different types of disputes. Unfortunately some people do not have an attorney. If so they must try to do it themselves. The websites maintained by the Division of Workers Compensation and the Office of Administrative Courts have set forth their rules (yes there are rules at both websites) and other information for you. At this webpage the Office of Administrative Courts has provided information on representing yourself at a hearing. You can view it right here.

Tax Returns: Can Insurer Get Them? Recent Case

On June 2, 2008 the Colorado Supreme Court issued a decision which addresses the right of the insurer to compel the production of tax returns. It was not a workers compensation case but the issue of trying to obtain such records does come up in workers compensation cases too. So the decision is important whenever the insurer seeks your tax returns. As noted by the court tax returns contain much information about a person. Aside from income the returns disclose personal information, debt information, investment information and much more. Often it can be considered by a plaintiff or claimant attorney as a "fishing expedition" into a persons private life. In this case the insurer sought an order to compel the turnover of several years of records in an auto accident case. The order was granted and when it was appealed the highest Colorado court said the order was not proper. The burden is on the insurer to show the discovery of any tax returns is relevant to an issue and there is a compelling need which cannot otherwise be obtained elsewhere. Finding the order was overbroad the court sent it back for application of the test it set forth in its decision. Further it also can mean that even if the returns can be relevant and needed it can still mean limiting full disclosure of the returns. A Judge can edit the disclosure. So whenever a workers comp insurer seeks your tax returns this case may be important to the issue. Read it by clicking here.

Preparing For A Social Security Disability Hearing

At this website they are saying they have a video on preparing for a Social Security hearing. There is a demo of the video and also information to purchase the DVD or videotape. Certainly you should ask your attorney about the hearing if you need to know what happens at a local hearing. The most common situation is where you and your attorney are in the hearing room and there is a vocational expert also present. That expert or VE has been asked to be there to answer questions that may assist the judge in deciding on your claim. A judge is there (sometimes though by television from another office) and perhaps an assistant to the judge. Other witnesses are also possible but less common. Here is a link to the website that is selling the video on SS hearings.

Recent Cases in Federal Court on Social Security Disabilty

Check out recent court cases on Social Security disability at this website. It has many recent cases which were decided on issues involving the disabled. If you lose and go to a hearing and lose again you can still fight back and sometimes succeed. By the way if you want to look at Colorado cases they are in the 10th Cir. which covers several states and is the court one step away from the US Supreme Court.