Thursday, November 29, 2007

When is a Final Admission not Final...the Leewaye case

This case is interesting and was just decided by the Colorado Court of Appeals. The facts are that there were two Final Admissions filed by the insurer. A Final Admission requires action by a claimant within 30 days or it appears too late to object or seek relief from what the insurer has stated in the Final Admission. In my field this means we always act within the 30 days or the claimant may be in peril of being unable to disagree with a Final Admission if it was properly sent to the claimant. Here the insurer decided to issue a second Final Admission to correct a minor matter. The claimant missed the first deadline so the insurer argued as to that first Final Admission matters were closed. The Court however decided to indicate that when a second Final Admission is filed within those 30 days set by the first admission then the 30 days runs from the second Final Admission. By that result the claimant was timely. My view is more simplistic in viewing any Final Admission as starting the 30 day deadline regardless of how many are issued. My concern is about objecting to the first one and the insurer deciding to file two or three more with minor changes. Must a claimant object to each? I would but an unrepresented claimant may be fooled by such a tactic. Anyway below is the link to the case issued November 29, 2007. The case does point out how technical and deadline oriented workers comp can be.
Here is the case.

Monday, November 19, 2007

Moore- Workers Comp suicide case(s)

Moore (name of the deceased) is actually two cases. One was decided and unpublished a while ago and the second just decided on Nov. 15, 2007. This involves a sad situation. The claimant who worked at Western Forge had an injury but then received a Notice of Contest which disputes the claim. This led to his suicide along with his lack of income. For more of the facts visit the link below. It appears his estate sought workers comp death benefits and lost the case all the way up to the Colorado Court of Appeals. Then the estate sued the insurer for bad faith and abuse of process leading to the claimants death. I gather the contest was not appropriate but nonetheless the estate lost this case too. The reasoning appears to be that a suicide is just too far removed from the contest to blame the insurer legally. Seems to me that contested cases are common nowadays and certainly stressful so depression should be a realistic consequence to contesting a case. If depression (which is an illness) leads to death then it is a consequence of the contest and also from the injury. Common sense should tell us that it is all related. While suicide is an extreme act of depression it still is what happened and flows from the injury. If we say that the physical damage from a typical injury is all covered no matter how much then so should the mental damage. Nonetheless the decision is there to read.
Read the case here.

Sunday, November 18, 2007

Surveillance Videos

Many times in a workers comp claim the claimant is surveilled and videotaped. It is not usually illegal to videotape someone out in public view. It is then shown to a doctor and even to the Judge. Of course such videotaping never shows the claimant going in to his residence and having to lay down. It never shows someone struggling to get up in the morning. It also can be edited to show activities not in line with what the doctors are saying. In one recent appealed case the claimant was seeking permanent total disability benefits and there were doctors who examined him along with vocational experts on each side to provide opinions on his employability. He lost his case for this in great part I am sure to a videotape that showed him more functional then how he presented to the doctor. When the doctor says 10 pounds lifting and you lift 30 lbs you are out of line with your doctor and setting up to lose or greatly reduce your benefits. I've seen surveillance of claimants in retail stores, outside walking the dogs, gardening, washing the car and lifting and carrying boxes. If you violate what your doctors say are your restrictions then don't complain when it's revealed to all. Saying you had to do it or were medicated at the time does not alter the situation. Saying it was painful and afterwards you laid down is still not very good. Videotaping happens in many cases and can take place at any time or multiple times. Imagine the shock to your doctor or lawyer when this is shown to them. Imagine what goes through the Judge's mind when he sees a claimant gardening but saying he can't work. There really is no good excuse for exceeding your restrictions medically or legally.

Friday, November 16, 2007

VA Disability...another problem!

Here is a link to a story on disabled soldiers. What it brings home to me is that the issue of disability is one of injury that can be followed by disputes and denials of claims. Any sort of disability or injury denial or dispute is often a shock to the injured person. Most of us just want to be treated with fairness and when it does not happen are stressed by a system that can seem cold blooded. When systems for determining disability are too slow and filled with technicalities they do not provide that fairness we all expect. Publicity about this helps by showing how terrible it is and perhaps then change can come.

Monday, November 12, 2007

Just a note on SS Judges and funding woes

This link just again emphasizes that the lack of funding or perhaps lack of wisdom contributes to the delays in Social Security cases. Here a Judge suggests that adding some Judges to the system but without adequate support staff is not smart. Judges can't handle all the paperwork by themselves they need a sufficient staff.

Sunday, November 11, 2007

Veterans Day

THANK YOU TO ALL VETERANS! I am grateful for your sacrifice for this country.

Thursday, November 08, 2007

Social Security Disability....the LONG wait!

Here is another article, this one at the AARP website which comments on the delays in Social Security Disability matters. I also looked at that website at what people are saying about it on the message board or forum on the issue. This is a national problem and part of the blame is with underfunding of the hearing process. Many times in a workers comp case we also look into Social Security disability especially when it may be difficult or impossible to return to any work after an injury. Having to wait so long just for a hearing is astounding.

Wednesday, November 07, 2007

Who are the Workers Comp Hearing Judges?

In Colorado there are only so many hearing Judges. The current Judges are indicated in the provided link. This also reminds me to let you know that hearings when needed must comply with the rules for filing and scheduling. This means that unless resolved in some other way when you need a hearing it means obtaining a date several weeks out (over two months). Expecting a quick hearing is unrealistic and a violation of the procedural rules. Each side has a right to due process.That means fair notice of the hearing and the opportunity to review and prepare for it. When witnesses are involved each side wants to know what is going to be presented to a judge. This means each is provided the time to get ready permitted by the rules and law. There are what are called expedited hearings but these are restricted and uncommon. If a case is contested and we need a hearing it simply takes time to comply with the rules and get ready for the hearing. That can mean tough times for a claimant in some cases. In other cases the time works to the advantage of the claimant so it depends on the issues.

Thursday, November 01, 2007

9/11 Cop's he a hero or not?

While not a Colorado matter the recent controversy over the death of a NYC detective who spent over 400 hours at the 9/11 site and died from lung problems points out that injuries or diseases from work exposure may not be simple matters. In this case one side says death came from the 9/11 exposure to dust, fibers etc., and another side says the death was inflicted by injecting ground up drugs which then went to the lungs and killed him. This problem is one where medical experts disagree and that is trouble. It is far more common then most people realize. One very common example is carpal tunnel syndrome or cumulative trauma disorder where the injured worker claims work activities caused hand, arm or wrist pain and the other side says not so. The claimant has to prove it likely came from work or they lose. Well, it takes a courageous authorized treating doctor to go against a medical expert hired by the insurer to question the work relatedness of the injury. Often the doctor is designated by the insurer/employer so they may have to balance between the patient and the insurance (just my opinion dear reader but I believe it is so). Anyway back to the cop story. If the officer worked hundreds of hours at ground zero and developed lung problems and he was then prescribed numerous drugs which may have gone to his lungs isn't it still work related? Do we blame the hero for this? If he was so stressed he also went the wrong way do we say it's all on him? Doesn't it all really flow from his work at ground zero? In this case I believe that he was being taken care of so he likely died from his job activities or treatment for his occupational disease but it's not my call. To me he's absolutely a hero. Read about the dispute here: