Settlements use Specific Forms but there are twists

In Colorado the parties in any settlement must use forms called USA's which stands for Uniform Settlement Agreements. The Division put some information on this in a recent posting you can click here. Colorado in doing so was attempting to make settlements easy to understand since they are all supposed to have standardized language. Sounds simple but there are some twists here. First, there is one form to use for the pro se or unrepresented claimant and another for the claimant represented by an attorney. Next, despite the effort to standardize things the parties often have side deals that are really part of any settlement. Those must be addressed somewhere. For example often the insurer and employer may require that the employee resign and waive such matters as discrimination or bad faith. Or, there is a need to address certain medical matters. Often these side deals are really requirements for a settlement but the Division does not approve the side deals even though we all know that the parties must have them. Whether attached or not these side deals are important enough that no one should simply sign them and assume anyone at the Division will review them. They are not reviewed at all as the Division is concerned with the work injury itself. So pay attention to everything you sign as you may be giving up something valuable or dealing with certain medical issues that are important.

Are you an employee or independent contractor?

A recent ICAP (Industrial Claim Appeals panel) decision (WC 4-776-542) went into detail on the difference between being an employee and being an independent contractor. As an employee you have workers compensation benefits for a work related injury or disease as set forth by law. As an independent contractor you likely do not have such benefits. Being told you are an independent contractor does not make you one. In Colorado we have a statute that details certain criteria to be considered by a judge in determining if you are an employee and potentially covered by workers comp or not. The statute is at Colorado Revised Statutes 8-40-202(2)(b) and gives us 9 criteria to consider. Essentially the criteria pertain to the extent of control over the worker in certain ways. In the recent case a carpet cleaning company tried to assert that the worker was an independent contractor when he was injured driving in a company truck to a customer. The vehicle rolled over causing traumatic injuries. The employer defense failed and the worker was deemed an employee. The employer appealed to ICAP and the decision was affirmed in a case which went in depth into the caselaw and statute.

MERRY CHRISTMAS 2009!

From Another Blog: Edith There is No Sanity Clause

Here is a story from North Dakota posted on a great blog which shows the limited coverage in that state for a mental impairment. Colorado is somewhat better but does limit pure mental claims to a certain statutory standard. This does not apply to other claims such as brain injury or a mental impairment associated with a physical injury. But if you have mental stress alone that you allege came from work it really has to be unusual as defined by statute.

Injured Worker Claim Form and Contact Number

If you are injured on the job and must file a claim with the state or just need some basic information please do not be afraid to call the Division of Workers Compensation customer service number at 1-888-390-7936. The claim form can be found here at this form page. It is a big download in pdf format but can be filled out and sent in whenever you are being ignored on your claim and should proceed on it. Sometimes you report your injury and nothing is done by your employer. Colorado lets you file your own employee claim, gives you general information at its website and customer service is a telephone call away. Of course as soon as possible consult with an attorney. Please do not rely on your employer or the insurer to act in your interests.

More On the Mental Side of Workers Comp

It appears my last blog posting was picked up by another website and was noted by them along with a couple of comments. It seems that some on the insurance side see the mental part of workers comp as not often legitimate or even some sort of personal lottery benefit for the injured worker. I can accept that the insurance view is to question alleged impairments. It can dispute any psychological impairment or need for treatment. But to this day I am disappointed by some of the cynicism shown on the insurer side. The fact is any injury anywhere that has lasting physical effects may also result in post traumatic stress, depression and anxiety. Forget about whether it happens at work and forget about the claim for monetary benefits. My experience is that any lasting or chronic injury or disease can be devastating to the injured and their families. I'm not going to go into the medical side in this post. In Colorado I provided some links in my last blog post. Instead I can only say that I've observed how it can stress out some claimants. Some have lost spouses, homes and occupations. Some must deal with contests by the insurer and employers looking to end the problem. Others face adjustments they never asked for. Unless totally disabled most receive benefits that are at best one, two or three years income replacement combining all impairments. Windfall? Hardly. Colorado quantifies the amount but how do you quantify pain and suffering? Lastly Colorado caps or limits the psychological benefits. A couple of years ago there was a case that illustrates how stress can affect a vulnerable claimant. He committed suicide when his case was contested. Sadly there was no recovery for it.

The Mental Side of Workers Compensation

Often missed in the treatment of a workers compensation injury is the stress, the depression and all that goes with it. Perhaps it is not noticed by the authorized treating physician who is usually picked by the employer. Perhaps it is considered just situational and not of any significance in treatment or impairment/disability. But the claimant and claimant's attorney are often well aware of the impact of an injury on the emotional or psychological well being of the claimant. The family also must live with it. If your trade or occupation is in jeopardy the anxiety may escalate to a high level. In many ways it is the hidden side of a work injury. It may affect your treatment, your recovery and your future. We must remember that it is a human being that gets injured not a store dummy with just body damage. Additionally in some cases the fall or injury will impact the brain and cause organic damage. Legally we want the entire injury to be treated and assessed. This is permitted in an injury claim but sometimes you have to assert yourself. Tell the doctor what is bothering you and what you are concerned about. Being silent just keeps it hidden. You are allowed treatment and it can also increase the permanent disability you have unless you fully recover. This can mean additional financial and medical benefits. The Division of Workers Compensation has materials on this for you and your doctors. For example click here for some of what they teach physicians. Also click here for more on the mental side in Colorado.

Fed Chairman talks about Social Security benefits

I find it amazing that Fed Chairman Bernanke has the temerity to suggest cuts in Social Security benefits. It appears that bankers and financiers have a higher priority in the Bernanke view then SS beneficiaries. Of course that is what I believe is being discussed at this site so click here. Please recall that Social Security is an insurance benefit whether it be retirement or disability. Beneficiaries by working have paid for the coverage just as you and I pay for life insurance. This as opposed to those fragile banks and financial companies that received bailouts simply because it was important to the economy that they not fail even if they made bad investments. What it reveals, in my opinion, is the economic view that the old and the disabled are no longer productive so they should only get what benefits are provided to them. It disregards the fact Social Security is insurance not a giveaway. It seems cold blooded to pick on those truly fragile who have already contributed to their coverage.

Firefighter cancer on the job case

While there have been no recent court cases involving work injuries in Colorado there is always activity at the ICAP level (Industrial Claim Appeals Panel). Colorado not that long ago passed a law to help firefighters who develop cancer while employed. Trying to prove you contracted cancer from exposure to the toxic substances involved with firefighting had been very difficult. The legislature decided to make it easier on firefighters so they passed a statute that created a presumption that getting certain types of cancer would be considered an occupational disease. In a recent ICAP case the local judge heard the testimony of 3 experts brought in by the insurer and ruled they had overcome the presumption. The firefighter appealed to ICAP and at that level it was decided the insurers' experts were really attacking the premise of the statute itself rather then providing evidence as to how the claimant did not get the disease from his occupational exposure. Not sure if the case will go to the next level but it reminds me of the old arguments made by the tobacco companies to assert that cancer did not come from smoking. There is no link to read the case (ICAP decisions are not published on the web for free) but the statute we are discussing here was mentioned in this prior blog post.

Mileage as of Jan. 1, 2010

Mileage rates are going down a bit to .52 from .55 a mile as of Jan.1, 2010. The new Rule 18 effective Jan 1st has this buried in its pages which also provide all the rates that providers can bill for services. Mileage is one where the claimant can be reimbursed for those miles for trips to the doctor, therapist and the like. This mileage rate is likely tied to some sort of inflation formula so we all have to live with it but it is still better then it was a few years ago when it was .37 a mile. If you are going to submit your miles you should start tracking them as soon as possible by date, place and miles to and from. It is important to be accurate as often the insurer will doublecheck them from a program such as mapquest. Mapquest is not mandatory but the point is be reasonable in the calculations. As for the rest of Rule 18 it includes testimony fees (that is where you find out that doctor charges for testifying are $450 an hour portal to portal (door to door).

The New Rule 8 on Insurance IME exams

If a claimant is being sent for an IME (Independent Medical Examination) by the insurance selected doctor then there is a new rule, effective November 1, 2009 that is applicable. The hew rule came about because of a new statutory provision which requires that these exams be audio recorded. The new rule is worth reading and allows discovery of the audio and more. The point in my view is to keep the exam honest and relevant so it allows the claimant some recourse to protect him or her from exams which contain irrelevant and confidential information that should be stricken. It will be interesting to see how this plays out over time.
UPDATE December 2010: Received a recent comment that accused a Denver doctor, Dr F. of stopping the audio when she deemed it and specifically when she deemed the patient question as not valid enough. While I cannot post the comment without verification I certainly can say that once the audio starts I would consider any tampering with it as an improper alteration which violates the rule. That could mean striking the report is one option for a judge. I can say that insurance IME's can be very one sided. Claimants may not have the resources to obtain their own IME but insurers often can do so. For many it is not a level playing field although a Division IME set up through the state can be a very important added method of reviewing treatment, rating and more. The insurance IME (not the same as a Division IME) often, but not always, is looked at as a hired gun for the defense. At times I have seen insurance IME's provide a worthwhile opinion but that is the exception rather then the rule. By the way the statute at 8-43-304(2)(a) does say that it should not be construed to prohibit a party from making their own audio recording of the exam.

New Look for OAC website

It appears the Office of Administrative Courts has a new look. I have not had a chance to go through it all but it does seem more user friendly. The old site had the OAC Rules almost hidden. You had to know precisely where to look. This new look is very clean in appearance. It also has new material so check it out. Of course the staff at law offices often use the site so whether they will approve the new look remains to be seen. I can say it really was time for a change.

October 2009 Hearing decisions

I am posting here the latest hearing decisions for October 2009 in workers compensation cases. These decisions were entered as Orders by an Administrative Law Judge (ALJ) at the local level. Many of them may be appealed further. The link is to a pdf document that is many pages long but it contains separate decisions that just all seem to run together. The judge issuing each decision is identified and often doctors too. These cases make fascinating reading and they are quite detailed. Once again they can give us a sense of the workers compensation process.

Stats on Attorney Fees in SSD cases

The Social Security website has the statistics on what has been paid out to attorneys as a fee in cases. The stats are posted here. From this it seems fairly straightforward to calculate an average attorney fee in a typical case. It runs around $3500 to $3600. That also means the average back benefits a typical claimant has coming is about $14000. The agency usually just pays the attorney and then the claimant these back amounts. Of course it depends on your earnings record. Some claimants receive $20000 or more and some may not be entitled to any back due amounts but the stats give us the average. Sometimes the attorney succeeds for you but receives little but that is a risk he takes on. By the way no attorney should be charging you any ongoing amount from your current checks. Is an attorney worth it? An experienced attorney gives you the best chance of obtaining benefits in that he is aware of the local practices and what usually works best. An attorney is not a guarantee. Locally it depends on many factors but the attorney usually lines up the evidence that will give you the best chance.

Supreme Court to decide on 2 workers comp issues

Today the Colorado Supreme Court granted certiorari in 3 Court of Appeals cases. That means they have decided to address the issues in those cases. In fact there really are just two primary issues. Two of the cases involve one specific issue. That issue is what is called "time of disablement" and was addressed by the Court of Appeals earlier this year. One of the cases was published and is the Simpson case. What is important is that some claimants want another date to apply in making the average weekly wage calculations for permanent benefits. The lower court said there was date of injury and also what is called date of disablement. In any event it was a big enough issue for the highest Colorado court to want to review further. It should be noted that the Supreme Court did last year in Avalanche also address this so maybe they want to clarify something. Next in Nelson the issue was a claimant seeking a higher lump sum then was the law at the time of his injury. The Court of Appeals decided that the law passed after his injury can be used by the claimant to obtain a bigger lump sum. Its reasoning is that the law was procedural which can be applied at anytime in a case. This as opposed to a substantive law change which you cannot backdate in a case. The claimant had previously collected a lump sum (advance on his benefits) that had a limit of $26292.00 and returned seeking another advance that was increased (to $60000.00)after the date of injury by a later law. No doubt some wonder how can a later law be applied against a party but the law did not change the permanency calculations only that another advance of money to become due could be sought. Neither of these two issues affects very many claimants or respondents but it will be interesting to see the arguments fully addressed and decided. It may be several months before we know but both issues are novel enough for the Colorado Supreme Court to take on.