Thursday, February 23, 2017

Colorado Supreme Court case----Youngquist

Decided February 2017 is the Youngquist case. This case was an appeal from the lower court and addressed the issue
of jurisdiction over a non Colorado business. The employer was a North Dakota business that hired a Colorado resident by phone and sent him a travel ticket. He was injured outside of Colorado but sought to use the Colorado workers compensation system. As a claimant he was successful at a hearing and at appeals until the last stop was the Colorado Supreme Court. That court decided that there was no jurisdiction over the employer so Colorado could not proceed on the claim. The key point in cases like this is the extent of contacts by the out of state business with Colorado. If deemed significant then Colorado would have the power to decide the entire claim. But fundamental fairness does require enough contact with the state for Colorado to exercise jurisdiction. In this case the court determined there was not much to connect Colorado to this employer. There was a phone call and the travel ticket was sent by email. There was no presence of anyone acting for the business in Colorado. There was no business being conducted in Colorado. Cases like this are decided on very specific facts but they do tell us that being a Colorado resident is not enough by itself for you to file a Colorado claim. Now most cases involve work being done in Colorado so the facts of this case are not common but it is important to realize that the Colorado Supreme Court does at times get involved in work injury cases.

Tuesday, December 20, 2016

Nothing Much

Not very much happening in my field. We still have the monthly Brown Bag seminar which is posted online for anyone to watch and read the cases. But then I have posted about this excellent source of updated cases for quite a while. And you can access what is posted in Colorado workers comp at this website. I thought it best to just remind you of this as the website contains a great deal of information. However there have been no newly published decisions in the area lately so this blog has been quiet for a while. Still there are cases which the Brown Bag does address to keep you apprised of issues coming up in the field. At the website you can also see what is the latest legislation and treatment guidelines and much much more. Anyway I did want you to know that the system keeps rolling along. Sometimes that means good things happen and sometimes bad things. Since this will probably be the last post for 2016 let me wish all of you the very best in the new year.

Friday, September 02, 2016

Brown Bag for August 2016

As we have previously indicated the Brown Bag seminar has been held once a month and it is designed to review new cases. Those cases may be court cases or appeals from the original workers comp hearing which goes to the Industrial Claim Appeals Panel (ICAP). In August 2016 we had another review. The August case decisions can be read and are available for all interested people. Additionally the
seminar lecturer has a video where you can see his own review of each case. When you are seeking any of this material including the video you can access it here. In this latest month I read several interesting cases but I point out two in this post. Hutchison is an ICAP case which is a very unfortunate situation. The claimant was only able to cover one-third of his medical expenses for a surgery. He had pre-existing causal factors such that only one-third of his work aggravation came from work activities. My view is that his need for surgery came from the aggravation from his work activities so it should have been fully covered but the case reminds us that apportionment can occur in workers compensation. Read the case for the analysis of ICAP. The other case is the Hoff case which was a court of appeals decision. You can read the case and see that the Colorado Supreme Court reversed the earlier decision by the Court of Appeals. The facts relate to a cancelled workers comp insurance policy so it is not a common circumstance but it does let us know that the appeal of a workers comp decision at hearing can sometimes reach the Supreme Court.

Thursday, August 18, 2016

All About Claims newsletter with Legislative Advisory

In June the Division issued another newsletter and it is quite significant. The June newsletter contains quite a bit of information on the latest legislation concerning
workers compensation. It is very detailed and includes some changes in requesting expedited hearings and in requesting a change of physician. It lets you link to the form to be used for change of physician. Use of the form is now mandatory. You are encouraged to print out a copy of this newsletter and review it carefully. The newsletter also has a chart on the maximum rates and indicates there is a new settlement agreement form which you can link to see. So this newsletter is packed full of current information and you should review it in its entirety. I held off posting about this until now because some of this is just now becoming effective. As always the Division has issued these newsletters from time to time as a way to keep us all updated on workers comp developments.

Monday, May 02, 2016

Brown Bag March 2016 includes Youngquist Court case

As usually happens there was a Brown Bag lunch seminar presented by Judge Eley. The presentation is in a Part 1 and a Part 2. The reading material which consists of the actual cases for March 2016 is
. available here. These materials include the recent published case of Youngquist which concerned an out of state company being held to the Colorado Workers Compensation law of Colorado. The employer Youngquist said it was not subject to Colorado law because it conducts no business in the state. However it was determined that the claimant was hired in Colorado and by statute if injured within 6 months of leaving Colorado then Colorado has jurisdiction over the claim. In the case the claimant was injured within days of starting his job. There was a denial in the state where the claimant was injured so he filed in Colorado and had a hearing where it was determined to be compensable. The defense was the claimant had a preexisting condition but claimant asserted it worsened with the injury and Colorado agreed. Then a 50% penalty was imposed because the employer had no Colorado insurance. The employer appealed and asserted a denial of due process but the court upheld the hearing judge. This included the 50% penalty which is mandatory by law.

Saturday, April 23, 2016

All About Claims Issue 44

From time to time the Division issues a newsletter. The latest newsletter is issue number 44 and once again it seeks to bring us up to date. It alerts us to a new prehearing judge, John Steninger. It also discusses certain medical fees
and generally provides other information such as a link to a new adjusters guide. For those with claims or those in this field you should always read these newsletters. They are informal but still insightful on topics of interest to many of us. At the Division website they even have archives of such newsletters for your perusal. It is quite nice to give us a heads up about matters of importance to many of us.

Monday, February 22, 2016

Keel Court of Appeals case

In January 2016 the Colorado Court of Appeals decided the Keel case. The case involved someone from out of state coming into Colorado to work. He died in an
on the job injury. He received benefits in his home state. Colorado also had benefits which were applied for. The case concerned the offset that was given for his receipt of the out of state benefits. The court determined that the statutory law mandates only a partial offset so the Colorado benefits would be higher then that calculated by the lower decision. While this issue seldom comes up it does point out that most of the time a statute will be enforced as it is literally written. Benefits for claimants are sometimes reduced by the receipt of other benefits but often not as much as you might expect. It is always worthwhile to double check the math so that a claimants benefits are maximized.

Wednesday, December 02, 2015

The Latest Brown Bag of cases

On November 19th there was another Brown Bag seminar by Prehearing Judge Eley that covered the recent notable cases. While there are no published cases from the appeals courts there were cases at the lower levels which we call ICAP (Industrial Claim Appeals Panel). These cases are the next level up after a hearing decision. They tell us what cases are being appealed. You are urged to listen to
the online materials for November. Attorneys can obtain continuing legal education credits by listening to these short seminars monthly but anyone can benefit by listening to the case review by Judge Eley. Moreover each month they also post the cases which you can read on your own. Perhaps the case which I found most interesting was the Baran case. It lets us know that the issue of permanent injury should be deferred until the DIME (Division Independent Medical Examination) is performed. There the other side wanted to close out the case but the claimant wanted to pursue a DIME. My experience with the DIME process is that in the vast majority of times it is better to go for it then to ignore your right to it. It does require a judgment call by the attorney or party but if properly done it can often greatly benefit a claimant. The treating physician is seldom independent and often can rate the injury as too low. He can even say treatment is over when another doctor may believe that more treatment can help. The DIME process is a great process to use provided you obtain a good physician for the exam. The selection process requires careful analysis and choice but an experienced attorney usually gains much for the claimant by using the process. In any event you can review the Baran case and other recent cases by reading or listening to this Brown Bag seminar for November 2015.

Saturday, October 03, 2015

All About Claims...another newsletter!

In September the Division issued another newsletter. Bravo! I certainly enjoy these newsletters and they provide quite a bit of information.This latest newsletter has a great article about Pat Clisham another judge. It is really nice to
learn about the judges. This particular judge I am aware of from my practice. Even when she was working for the other side I always felt she was fair and reasonable. I am sure she will be a great addition to the workers comp system. There is other information in the newsletter. For example the Division has issued a new article for employees in Spanish. In any event I encourage you to take a look at the newsletter because it helps us humanize the system and it gives us a heads up on some matters. The workers comp system is not as impersonal or impossible to comprehend as you might think. No doubt it is always preferable to hire yourself an attorney but the website maintained at the Division is very informative. In any event why not read this latest newsletter?

Wednesday, September 16, 2015

Colorado Springs Hearing Offices Have Changed

I have noticed that the Colorado Springs hearing offices have changed to a new location. I no longer practice given I am retired but while checking the website I now see the change of location. The previous offices are not that far from the new location but I always felt the old location was a bit cramped. Finding a place to sit down with a claimant to review before a hearing was sometimes difficult. If there were several witnesses it became quite cumbersome. Hopefully the new location is more convenient and spacious. A number of years ago the workers comp hearings were held at the local courthouse. The courthouse needed that space to expand its services and the state then sought space elsewhere. I recall having hearings behind a library in a schoolroom. The last offices were an improvement but I suspect the new location is even better.

Saturday, August 08, 2015

All About Claims newsletter August 2015

The Division has just published a new newsletter for August 2015. Usually these newsletters are very helpful in providing insight into the Division and giving you a heads up on various legal matters. This month the focus is on Prehearing conference Judge Craig Eley. For my cases and myself Judge Eley has been great. He does
more then decide matters. He educates many of us with his Brown Bag monthly lunch seminar on interesting recent cases. He does so often with great humor. He helps settle cases by being the go between in a settlement conference. His story is in the newsletter and it's enjoyable to read about this popular and capable judge. At present he is working part time at the Division. I for one certainly hope he continues on for many years to come. By the way in the story Judge Eley tells us about one hobby he has, that of beekeeping. By day he deals with attorneys but goes home to relax with 60000 venomous insects. Also the newsletter alerts us to other things. There is a link to the latest laws and it provides a link to a guide for adjusters. You never know what these newsletters contain but they are always an interesting and even light hearted read. August 2015 gives us another excellent article and information.

Wednesday, July 29, 2015

Oil Worker case makes the Denver Post

It is not often that a initial workers comp hearing decision makes the papers but this one did. It is not an appeals court case but the article indicates it will not be appealed. The case involved a deceased oil worker. It appears he was tank gauging or opening a tank to
measure oil levels. He inhaled a toxic mixture of deadly chemicals and died. The case was contested by asserting the workers diabetes, hypertension and coronary artery disease caused his demise. Apparently there have been several deaths doing this work activity and the thought was those deaths were natural from health problems but this is changing. In this case after a two day hearing the judge ruled it was a valid claim for a work injury. The Denver Post picked up on the case and wrote about the decision. You can read their article by clicking here. It reports the widow will receive $530 a week for life. It is clear that the claimants attorney did a very good job. It also sets the stage for others to make claims and it may also lead to increased safety efforts. Bravo!

Monday, July 27, 2015

Beware Social Media!

It should come as no surprise that a claimant has to be concerned about social media. An injured worker will usually have restrictions and limitations. The other side will often conduct an investigation. They may follow you and video your activities. It is most common to follow you when you shop or go meet your friends. Then their vocational expert or
medical doctor may testify against you. So clearly a claimant must be careful. It does not matter you were taking pain killers or that you did something one time. A video can be devastating to your claim. Yet there is another matter to consider. It seems like everyone is involved in social media. Facebook, twitter, dating sites, forums, photo sites and other sites are there for you to post about yourself. Insurance adjustors or attorneys are seeking out what they can to limit your claim. So what you post may come back to harm your claim. It may seem innocent enough but a post that you worked in your garden or changed a tire or even just went on a hike may be not good for your case. Any sort of sports activities posted by you may hurt your case. Even trips you take might be used against you. My best view of all this is to completely stop your posts and photos or at least limit them because whatever you post may be used against you. Be careful! By having a claim you are fair game for being followed, snooped on and watched in whatever you do.

Tuesday, June 16, 2015

The Coats case or when is medical pot legal and illegal

Yesterday the Colorado Supreme Court ruled in the Coats case. In that case a disabled employee for the Dish Network was terminated under its no tolerance drug policy. The worker was productive but required medically prescribed marijuana.
He used it in off duty time but of course the mere presence of it in his system was enough that the company felt compelled to terminate him. Now in Colorado medical marijuana is legally allowed by state law so the employee sued because of this termination. He lost because it was determined that medical marijuana is illegal under federal law and its not enough to be legal under state law. Eventually the case reached the Colorado Supreme Court and they also affirmed the dismissal of the lawsuit. Essentially they also ruled that because medical marijuana is illegal under federal law the termination of the employee was proper despite it being legal in Colorado. Now we all know that the federal law is not being enforced in Colorado so does this play any role? Could you assert that the federal law application has been waived or even that the Colorado law has been in effect approved as proper by the feds? It appears in Colorado the answer is that medical pot is legal and illegal and that is the way it is. In terms of workers compensation the potential benefit of medical marijuana is going to complicate matters if it is prescribed to an employee who works for a company that terminates for such use. In Colorado it is now legal and illegal to take any amount of marijuana. That is a tough place to be if it stays this way. For now Coats is the law.

Sunday, May 24, 2015

Memorial Day 2015

Once again there is another Memorial Day. With each year it seems to gain importance from my perspective and that of many others. On this day we honor those who have served no matter what the year or by what measure. We truly
live in a special land and the home of the brave. Without that service and sacrifice this country would not be here as it is. That service saved this country and its people. Our country remains a beacon of freedom in a world that needs that beacon. I went shopping today and saw a veteran seeking donations. Though I did donate I also made it a point to thank him for his service. There are those I cannot thank for they gave all but on this day we remember them with gratitude. In our country all those who served deserve our gratitude. And with it comes our need to commemorate on this special day. Imagine a world if the Nazis and Japan had won World War 2. Imagine a world if we as a nation had not stood up for our belief in freedom and justice. The enormity of their sacrifice cannot be minimized. So to all veterans, living and dead, thank you so much for your service. So we honor you for it and pledge to continue that great experiment in democracy called the USA.