Pinnacol Assurance is it private or public?

In the last few days a big dispute arose over a proposal to take what might be considered excess funds from Pinnacol to help the state in the present economic downturn. Pinnacol handles a great many workers comp claims and that means more then any other insurer. In any event Pinnacol has attacked this as a "raid" and outrageous. At the Pinnacol website here is their view. A former Colorado governor chimed in for Pinnacol here. But the Pinnacol story is not quite that simple. Pinnacol has a long story in Colorado. When you look at its history you can see why there is a controversy over the right of the state to take from Pinnacol. Under several names Pinnacol has evolved over time but it originally was set up and funded by the state of Colorado. It was intended to protect workers and employers from other insurers. Truly private companies don't like high risk businesses (construction is one high risk business) so Colorado just sought to ensure that such businesses could obtain coverage at a fair price. Over time Pinnacol has become more private then public but to this day it has some of each. It has a separate statutory section and its board is appointed by the governor. Clearly over time it has evolved away from being a public agency but it is not truly private yet. I am not saying that the effort to get some of Pinnacol's fund is appropriate but arguments that imply it is immune from legislative control are inaccurate. Want to see the statute itself that says Pinnacol is a political subdivision of the state but not a state agency? Go to 8-45-101 from this link.

Hyperbaric Oxygen Therapy

If you read up on hyperbaric oxygen therapy you will find that it has been useful in some types of treatment. I am writing this to encourage its use in injury and disability treatment where appropriate. We have all sorts of therapies in workers comp. Often these therapies are temporary in nature. However in my opinion I think hyperbaric treatment has the potential in some cases to actually improve the situation. I have seen videos of its use in brain injury, with wounds and burns, with improving athletes and in a host of disabilities from autism to cerebal palsy and much more. The treatment of the injured and disabled should not simply proceed along current approved standards. The trouble with standards is that they can inhibit or stall progress. Medicine is a science that should be forward looking. It should not be limited by laws and rules that sometimes restrict progress. Colorado has treatment guidelines. Sometimes these guidelines are useful but sometimes they seem too rigid. The problem is that medical providers seem to believe they are held to these guidelines yet medical science blows right by them as it progresses forward. Insurers need to realize that if the goal is improve the claimant that hyperbaric (HBOT) can be a win win situation. I am arguing for its increased use in workers comp and even with those totally disabled who may be made more functional with hyperbaric treatments. By the way think of hyperbaric treatment as the use of a decompression like chamber to assist with oxygen absorption into the muscles, tissues and organs of the body to promote healing. It is actually quite simple to do. You enter a small chamber where you spend about an hour a session getting the treatment. Sounds a bit strange until you research it and find out that it is associated with improvement after numerous treatments. Think of it as another form of physical therapy. If you truly research it you may be surprise at how many areas it may be able to improve functionality. A lawyers job is made easier if the doctors and insurers look at the goal of recovery at a reasonable cost. The legal area will only litigate this which causes more expense that could go towards giving hyperbaric a trial run in cases where a doctor suggests it is worth a trial. I must say that many times a client tells me that all they really want is to receive reasonable medical treatment. Many times they tell me that but for the denial of treatment or poor treatment they'd never even use an attorney. The point is that we need encourage whatever works to improve the injured and disabled. HBOT is one more tool to use to improve and increase the chance for recovery in certain types of areas. I would certainly go to bat to obtain approval for its use in workers' compensation.

Which do you prefer Colorado or NY workers comp?

The Hew York Times has a long article on the terrible state of comp in New York. It gave me the shivers to read. In Colorado much can be done to improve our state's workers comp system. I still believe that arm and leg injuries deserve more benefits especially when the person loses his trade or occupation. But there are parts of our system that have worked well especially the DIME or Division Independent Medical Exam process. No doubt there are many cases where things do not go well but overall it seems at least better then NY State. Anyway read about the horrible state of workers comp in NY here. Those of us in this field know that most of our judges do try to apply the law. They also know that many doctors are not just hired guns by the insurers or second rate. Those that are can often be overridden by the DIME process. Our system is not perfect and many times employees are treated like old newspapers but there are some safeguards and rules which can be used to equalize the case. At least with solid legal effort you can increase benefits but the NY article makes it seem like NY is out of control. I am not sure on that but the article is an interesting read.

Social Security Disability delays frustrate lawmakers

As noted in The Oregonian there are still heartbreaking stories about the delays in obtaining benefits. Apparently despite good intentions the delays can cause extreme hardship. In our area it is common to take a few months for the initial decision and then if denied over a year to obtain a hearing. After the hearing it can take many months to actually collect all the back benefits due, assuming you win. If you are receiving assistance and eligible for SSDI and SSI benefits it can take a great deal of time as the finance people at the agency compute the amounts. They must compute any deduction from your back benefits so you don't obtain more then you are entitled. We all know this should go much faster but historically delays seem ingrained in the system. The agency, according to the news article, has over 63000 employees and is trying to make itself more efficient. Nonetheless, imagine going down to your bank and being told it will take even a month to get your money. I really believe the math should not take that long. However it does take many months to obtain a hearing. Even if the Judge tells you the decision will be favorable at the hearing (which usually does not happen) it can take several weeks for him to issue the formal decision. I always tell those I represent to expect at least 6 weeks. Recently one case took 3 months to receive the favorable decision. Compare this to a workers comp decision which seldom takes very long. I suspect this is a case of inadequate funding to deal with the crush of cases that Social Security must handle. Can anything be done about this? More funding would help but also I think there should be other changes. The longest delays are waiting for a hearing. I'd require another legal review of all cases with claimants over 50 years old to see if perhaps the situation can be clarified so they obtain benefits. Many of these cases involve long term workers with severe enough health concerns that they can no longer work and should more easily qualify for benefits. Too often I've seen claimants denied who have enough health concerns to merit a more careful analysis. Such workers often have worked many years with decent earnings. For them seeking benefits is actually a come down. I also would give more credibility to pain complaints that are consistent with the medical evidence. Pain alone can be disabling and lately it seems that pain is discounted too much. I also think the treating doctor is discounted more then is fair since he likely knows far more about the claimant. There are many ways to improve the system with appropriate safeguards to prevent abuse but it takes an honest appraisal. It would take a dedicated effort to study the existing system. This study could include judges, attorneys, claimants and even doctors.

Antartica in Colorado workers comp case!

Decided on March 19, 2009 the Iler case involved a claimant hurt in Antartica. He sought to add the value of his room and board to the wage calculations by comparing it to his room/board in Colorado. So how do you calculate its value in Antartica? The judge felt he couldn't and the claimant appealed. The next level up in an appeal is called an ICAP decision. The Industrial Claim Appeals Panel decides at this stage. In his case they agreed with the Judge. The next appeal is to the Court of Appeals and here the claimant succeeded in getting his case remanded back down to the Judge to assess a reasonable value and add it to the calculations. Read the Iler case here. It is always in the best interests of a claimant to have a high average weekly wage. This figure is often used in determining the amounts of temporary and permanent benefits you are entitled to receive. The most common increase comes when they forget to add your overtime. Also they should add your health coverage if you are going to lose it through your employer. But also as is the case here an employer provides you with room and board. It may be part of your wage package so it too can be added. The Colorado statutory definition of what is your average weekly wage is as follows at 8-40-201:

(19) (a) "Wages" shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.

(b) The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.

(c) No per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes.

The Top Ten Reasons

Why do injured workers hire attorneys? Over at the Workplace Injury and Law Advocacy Group one writer set forth ten major reasons. Quoting from the article here is the list:

TOP 10 REASONS
10. Does not know the value of Permanent
Partial disability final payment.
9. Harassment from employer while on
restricted duty.
8. Has other legal issues (SSD, Short/Long
Term, ERISA subrogation, unemployment).
7. Poor Medical Care.
6. Fear of losing job or loses job.
5. Poor Treatment by adjuster/nurse case
manager.
4. Total Permanent situation.
3. Temporary Total Benefits not paid timely or
in correct amount.
2. Employer ignores Injury and refuses to
refer for medical treatment.
1. Changes in the law.

It is rather clear above that "protection" is the biggest single consideration. I would also like to add that an attorney can not only protect but also will seek to maximize your medical and compensation benefits. This can mean doubling, tripling or multiplying by over 10 times what the insurer says they still owe you. It can mean taking a claim when the insurance says you've been treated and released without impairment and obtaining more treatment and benefits. A decent attorney can not only protect but also increase your benefits considerably.

Larson's National Workers Comp Advisory Board

I have just been invited to become a member of Larson's National Workers Compensation Advisory Board. This is maintained by LexisNexis a very large legal publisher. I do appreciate the invitation and accepted. So from time to time I'll provide information to them on Colorado workers comp matters. Larson's Workers Compensation Law is historically the major publication and source of knowledge in this field. With the internet much is now moving onto the web. For example I do my legal research using Westlaw which maintains a searchable database of legal materials. In the old days we had to search through digests and state law books followed by "shepardizing" cases just to verify the decided issue was still good law. Now we can do all this and more in less time.

Quasi-course of employment case: Kelly

Decided on March 5, 2009, the Kelly case addressed the legal issue of quasi-course of employment. The Colorado Court of Appeals decided that a claimant returning to Colorado for re-scheduled surgery (for his work injury) who was then injured in Elko Nevada in an auto accident cannot make it part of his workers comp claim. The court decided that injuries while traveling to and from a medical appointment can be covered through workers comp but in the case on appeal it was too much of a deviation. The claimant was on vacation and was told his medical appointment for surgery could be reset so he decided to travel back from Reno and was hurt during the travel. While it was travel for treatment for his work injury it was too much a deviation from the typical home to medical office to say the accident should be covered. Each case should be reviewed on its facts because it now seems a question of how much of a deviation to throw out coverage. While the case makes sense it may lead to more litigation as it's not clear what is a "substantial deviation" but it does seem to be a rule of reason case. That is, if it is unreasonable then it won't be covered.

Colorado versus Kansas workers comp

Workers compensation benefits are not governed by any national law. In Colorado they are established by state legislation. The state has imposed dollar limits or caps on benefits (not on medical benefits) although not on those permanently and totally disabled. Apparently in Kansas they have capped even those benefits. Efforts are being made to change the situation in Kansas. Here is an article on this. Unless changed injured workers in Kansas are limited to $125,000 even if they are unable to work for the rest of their lives! It is well known that nationally until recently workers compensation benefits were reduced but we are seeing some improvement. Hopefully this trend will continue. It is simply unreasonable if not unconscionable to fix benefits and never change them. The result is that those severely disabled are often left to turn to government resources. Sorry but all we do then is turn the problem over to the taxpayers rather then insisting on decent insurance coverage for those injured at work. Roughly a century ago when the workers comp laws were enacted it was society that was upset with laws that a work injury was just a risk of every job. All of us know that without adequate coverage the problem is shifted to government. While I have problems with parts of Colorado law it is not on the subject of permanent total disability where Colorado allows for lifetime benefits. Unfortunately the Colorado definition is tougher then one for Social Security disability but at least benefits for a total case are not capped.

Recent WC cases for January 2009

Here is a link to recent decided cases/orders in workers compensation proceedings in January 2009. These are hearings held at the local level on a variety of issues. This link is to over 300 pages of decisions and some are quite complicated. It is not exactly easy reading but makes you aware how difficult these proceedings can get. The format for these are that first the judge issues findings of fact based on the testimony and reports/exhibits provided at the hearing. Then the judge makes conclusions and enters an order. You can see that many times the claimant loses. Hearings certainly place each side at risk as these cases show.

The Ortega case or 20 days means 20 days!

Just decided by the Colorado Court of Appeals on Feb. 19, 2009 the Ortega case involved a request for a continuance made during a hearing. It seems the Claimant received a medical report less then 20 days before the hearing and wanted to submit it although the law (Colorado statute 8-43-210) says it must be submitted to the other side no later the 20 days before the hearing. The report was from a family doctor who said the injury was related to work activities when this was hotly disputed. The other side also had late medical reports. They also had a medical witness at the hearing. The judge denied all the late reports. He then denied the request of the Claimant for a continuance. The hearing led to a decision denying benefits to the Claimant. The Claimant appealed and finally the case went to the Court of Appeals. Essentially the court said that 20 days is the law and there was no reason to say the local Judge committed any legal error which would justify reversing the decision. I will say the Claimant had a chance to submit his late report if the other side's reports also came in but that is really not well detailed. Apparently the Claimant's lawyer felt he had a solid reason to be excused from the 20 day law since the doctor did not even get it out timely. I cannot see what the reason was for the other side to be late. In any event a continuance was denied in part because the other side had a medical witness they had to pay. The court commented on the law but here is what is strange to me...the law does permit the Judge to order the case be continued but lets the Judge go forward with part of the hearing. Strict compliance with the law is not always necessary. It is hard to second guess the local Judge's decision but on the facts presented I question the decision to deny a continuance. The Court also seemed to suggest that the Claimant's lawyer should have acted sooner since there was an earlier report by the same doctor on the issue. I am just not sure why, in a search for the truth, when the medical report was really late that we say it's the lawyer's problem to anticipate the doctor sending a late report. Given part of the hearing could have gone forward and also continued for more evidence why insist on the 20 day law? Anyway read the Ortega case here. Hearings are administrative proceedings and many times they start one day and finish a month later.

Local Social Security Judge passes away

A southern Colorado Social Security Judge passed away recently. I have posted a link to the Gazette obituary here. Rest in peace Judge Keohane.

Pain Control Policies

When you represent people with disabilities and work injuries you come across misunderstandings about the use of certain strong medications to treat pain. Surprisingly even some physicians do not seem to understand the policy of the Colorado Medical Board or avoid dealing with it if at all possible. On February 10, 2009 another policy was issued by two national medical groups. It also tells us that strong medication or controlled substances like opioids can be helpful for pain management. If people can be more functional and their pain is reduced isn't that good or are we so fearful of abuse that we choose to let them stay hurting? That said Colorado does allow for controlled substances like opioids to be used although other efforts should be made when possible. Here is a link to the Colorado guideline on chronic pain in workers compensation.

Is This a Noteworthy Blog? Seems Like it...

Well aside from the LexisNexis award we received it looks like another blog called us noteworthy. It is always nice to receive a compliment. It's funny but we started this blog as a way just to post my comments and provide news of interest to others. It has been fun and sometimes challenging to do so and it does appear that it is educating its readers. I realize it is written from the perspective of the disabled or injured worker. I have found many to be exceptional people placed in difficult circumstances and often treated as no longer worthy. They can be terminated, contested, disputed and mistreated. They are often hurting physically, emotionally and financially. They are stuck in what can seem to be a nightmare but most truly just want to be fairly treated. They are often portrayed as fakers and money grubbers when all they seek are what they may be legally entitled to receive. Are there some that are out of line...of course and the same applies to the other side. There are always bad apples out there in anything.

Court of Appeals Rules in Snook case Feb 5, 2009

Snook was an independent contractor and sole proprietor who was hired by a subcontractor working on residential homes for Joyce Homes in the Highlands Ranch area of Denver. He was hurt on some scaffolding and sued Joyce Homes for negligence. Snook was supposed to have workers compensation insurance but did not. Joyce Home said it was a statutory employer under the workers comp act and as such its exposure was limited to $15000.00 The appellate court agreed that the point of this statutory employer law is to encourage you to obtain workers compensation insurance when you are a independent contractor. Thus when you don't have it you are limited to $15000.00. Snook tried all the arguments such as it is too low a figure to be stuck with and that it is a denial of due process and more. All the arguments failed. The lesson here is to always have workers comp insurance even if you are a small business if you want to be safe. If not your claim for injury, no matter how valid, may be limited no matter how serious your injury. The workers comp law is designed to protect employees and not independent contractors who really should have insurance because liability is limited to $15000.00. Unfortunately some small businesses in construction try to get by and save money on workers comp insurance. Often they are one man operations and in many ways are like employees but this is the way construction works. The plaintiff may seek to appeal this to the Colorado Supreme Court. Of all his arguments the one that strikes me as sad is that any claim he has is limited to $15000.00. That amount was placed in the law over 20 years ago and you have to wonder if it is so outdated and low that it is now unacceptable. In any event the case is here. One additional point...the Treasury Department is concerned about misclassifying workers as independent contractors to save money as noted here.