Tuesday, December 30, 2008

Changing Physicians by statute and rule

Traditionally in workers comp in this state you have a physician designated to provide you with medical care selected by your employer (who in turn usually has been provided with help on this by the insurer). Then if you were unhappy or just needed another doctor you had three ways to do it. You could agree with the insurer to a new named doctor, or you could send a 20 day letter per 8-43-404(5)(a)(VI)that you want a certain doctor who then would be your doctor if the insurer did not timely respond denying it. Last, you could seek a hearing. If there was a dispute on this you'd have to seek a hearing and that takes time to schedule. In a practical sense it was not easy to get a fast change. To this traditional process was added another way and a new wrinkle. Now the employer has to provide you (in writing) with two providers for you to pick from. If not you can choose your own doctor. It also allows for you to switch between the doctors. Sounds simple but it's not. You only have 90 days to do this from your date of injury. You have to comply with the statute at 8-43-404(5) and with the rule noted as Rule 8-5. You have to use the form provided by the Division. In fact they are proposing a change to Rule 8-5. So what do you do? I'd check the Division website for the latest information and proceed from there. Remember though if there is a dispute then you may still need a hearing unless it can be quickly resolved.

Tuesday, December 16, 2008

Avalanche Industries Supreme Court decision Dec. 15, 2008

Back on March 22, 2007 I reported on the Avalanche decision at the Court of Appeals level and then noted it was up before the Colorado Supreme Court. The court decided the case on Dec. 15, 2008. Briefly the court decided that a Administrative Law Judge can decide that your wage is whatever is fair and just. It is not necessarily simply what you were making at the time of the accident. In this case the claimant was earning a wage and paid out for permanent partial disability but retained her right to reopen. She did reopen and her higher new wage and health benefit was what was used to calculate her increased permanent disability. She was now totally disabled so benefits were long term at the much higher calculation. The other side said the law restricts average weekly wage calculations to what you were earning at the time of the accident. The court determined that there are two ways for a judge to decide matters. He can decide based on wages at the time of disability (not just accident) or if that is unfair he has the discretion to decide what is fair even if it is a later and higher wage. There were dissenting judges but the case was specific in its analysis so injured workers win big here. Read the case here.
Postscript: I am advised that the facts may not be correct in that the claimant was not seeking permanent total benefits as reported by the court. Further a rehearing is to be sought. I do not see this as affecting the legal determination that an Judge can decide on average weekly wage in his discretion but we shall see what happens. UPDATE: the Court corrected the decision on Jan. 20, 2009 and it can be read by clicking here.

Tuesday, December 09, 2008

New Hearings Office for Colorado Springs

It appears that the hearing room and the offices for the Colorado Springs area are going to be bigger and better. At least that is my read from the website maintained for hearing information. It sounds like it will be ready to go this week:

"The OAC Southern Regional Office in Colorado Springs will be moving to a new suite 230 right next door to our old suite in the 5 Star Bank Building at 1259 Lake Plaza Drive. The new space should be more comfortable and functional for all. The new courtroom is more spacious and is without a roof support pillar obstruction. The new conference room will be accessible to hearing participants."

Friday, December 05, 2008

Rule 18-6 (E) Mileage as of Jan. 1, 2009

Rule 18 pertains to medical services and is quite complex. It is of limited interest as it mostly tells us about the billable charges for those services. Of course it includes charges for reports and testimony and the like. For example when anyone calls a physician to testify the charge is $450 an hour. There are times it is quite necessary to call a physician especially when there is a contest over medical or causation matters. But I also noted that a subsection of Rule 18 pertains to mileage reimbursement. Rule 18-6 (E) increases the amount from 40 cents to 55 cents a mile. This is the amount you can seek for trips to see an authorized providers and the like. So starting January 1st all claimants can be reimbursed at a much higher rate then the present rate. Click here for the mileage chart. But a word to the wise...mileage is usually figured by mapquest.com or a similar calculator so do not overestimate!

Wednesday, November 26, 2008

Have a Happy Thanksgiving!

As we approach the Thanksgiving holidays I do wish you all a great day and if you are with family a peaceful, fun time. Despite all the troubles out there it is a
time to be grateful for what we do have. As the song says...live like you were dying.
Life is precious and friends/family are what counts. Today is also the one year
birthday of my twin granddaughters and that makes it extra special!

Saturday, November 22, 2008

Do Attorneys Make a Difference?

The state Division of Workers Compensation has statistics up through the year 2004. You can go to the Division website for this. For 2004 the average settlement was about $12000 for those not represented by an attorney. For those represented the average was about $32000. Click here for the 2004 stats and table 32 there sets forth the stats I am mentioning here. Now these are just averages. In my experience an attorney also helps on the medical side and on the receipt of temporary benefits. In many cases even before any settlement there are problems an attorney can assist with. Sometimes the treating doctor just discharges the claimant and that is wrong. This can result in the loss of medical care and loss of temporary benefits. Doing nothing is usually a mistake and an attorney can seek further care and benefits. The biggest factor can be where the insurer provides some permanent benefits but the claimant is no longer employable. This can mean much more in a settlement if it is pursued. Here the amount can far more then doubling or tripling the dollars. Lastly with those needing ongoing care this can be a lifetime situation though often the insurer does not see it that way. An attorney helps here too. I could write extensively on this but you get the idea. If you can then get an attorney...it usually means substantially more benefits.

Sunday, November 16, 2008

Nov. 13th One More Case...Montoya

In my last post I noted two cases decided on November 13th by the Colorado Court of Appeals. Actually one more case decision was issued. In Montoya, the authorized treating physician rated the claimant at 19% impaired. The insurer decided to dispute the rating and started up the process to seek a Division IME. That is the only way either side can dispute the rating so provided. Then the same doctor altered his opinion to reduce it because of a prior injury. The number went down to 15%. Of course now the insurer decided it could accept the rating so it cancelled the Division IME and filed a Final Admission in the case to close it but accept the amended rating. The claimant said the insurer could not do that but the court said the insurer could just that. The claimants reasoning was that the insurer was bound to go forward with the Division IME or be bound by the original rating. The court however had no problem with the insurer accepting the amended rating. While I understand the decision you have to ask what if the claimant had received a low rating and sought a DIME but then the doctor increased the rating. Could the claimant cancel the DIME and count on the insurer filing something to respond to that higher rating? Anyway read the Montoya case here.

Thursday, November 13, 2008

Kilwein and Cabela Court of Appeals Cases

Today, the Colorado Court of Appeals issued two workers compensation decisions. Kilwein is an old case where the claimant was permanently and totally disabled with the right to ongoing medical care for the injury. Years later her authorized treating physician underwent utilization review to be replaced as the treating doctor. However though a change of physician was ordered the law allowed the claimant to continue treating with the doctor while he appealed the order. The problem was that the insurance had to keep paying but the risk to the claimant was if the doctor lost his appeal then all medical expenses could be recovered by the insurance. The court decided that the claimant who kept treating with the doctor who was no longer to be authorized did so at her own risk. In this claim the claimant kept treating and also went to referral treatment but all of it was ordered to be repaid to the insurance. This case is a rare situation but points out that if you choose to continue with a deauthorized physician it is at your own risk.
The second case, Cabela, also relates to authorization of a physician and also concerns the insurance saying the injury was not work related. The court quickly disposed of the insurers claim it was not work related by saying the Judge decided that issue on the facts and they would not reverse the judge. More interesting is what happened when the claimant was told by the original authorized physician that her injury was not work related. That doctor decided to send the claimant to her personal doctor. The personal doctor decided it was work related and referred her for treatment by an orthopedic doctor. The appeals court decided that the personal doctor became authorized to treat when the original doctor backed out but sent her to that personal doctor. The mere fact the claim was disputed did not change the fact this was a referral and referrals by authorized doctors are also authorized even if the case is disputed. There is more to the case but it is a good case for claimants. Unlike the Kilwein case there are many disputed cases where the doctor picked to treat you decides it is not work related and then simply closes the matter by saying go to your own doctor.
The Kilwein case.
The Cabela case.

Tuesday, November 04, 2008

Laptop Privacy an interesting Colorado case

On Monday, the Colorado Supreme Court issued a case which addressed the privacy of materials on a party's laptop. While not a workers comp case it does involve issues of how much must be disclosed to the other side. It seems as if the Supreme Court is trying to balance the interests of requiring disclosure of pertinent information with the right of privacy. Since almost every case involves required disclosures it is an interesting case to read. In workers comp for example the other side always seeks as much of your past medical records as they can get their hands on. Sometimes however the disclosure is simply not relevant to the claim. For example should a female claimant be required to disclose or sign a release to disclose her ob/gyn records when the injury is to a wrist or back? Any disclosure just allows the other side to have more information. In the latest case the defendant was driving and it was alleged he was looking at his laptop when the traffic accident happened and someone was injured. The trial court ordered inspection of the laptop but in doing so left the defendant without protection from other matters on his laptop. The Supreme Court decided that the lower court must take steps to protect the privacy of the laptop contents except to show if it was being used at the time of the accident. View the case here.

Thursday, October 23, 2008

Colorado Mortality Table

At Colorado Revised Statutes 13-25-103 the state sets forth life expectancies as we all age. Important in workers comp? Yes because if you might receive benefits for life then this tells us how long the average person lives based on current age. From that we can figure the value of a claim after discounting for interest rates and other factors. That makes this table important to some degree. Insurers sometimes assert the average age is not always correct and use what they call the rated age (a reduced age based on stats the insurers have for those as sick/disabled as you). I am posting the current Colorado life expectancies between 16 and 72 in full here but refer to the statute if you are younger or older:

16..... 61.5
17..... 60.6
18..... 59.6
19..... 58.7
20..... 57.7
21..... 56.8
22..... 55.8
23..... 54.9
24..... 53.9
25..... 53.0
26..... 52.0
27..... 51.1
28..... 50.1
29..... 49.2
30..... 48.2
31..... 47.3
32..... 46.3
33..... 45.4
34..... 44.4
35..... 43.5
36..... 42.6
37..... 41.6
38...... 40.7
39..... 39.8
40...... 38.8
41..... 37.9
42..... 37.0
43..... 36.1
44..... 35.2
45..... 34.3
46..... 33.4
47..... 32.5
48..... 31.6
49..... 30.7
50..... 29.8
51..... 29.0
52..... 28.1
53..... 27.2
54..... 26.4
55..... 25.5
56..... 24.7
57..... 23.9
58..... 23.1
59..... 22.3
60..... 21.5
61..... 20.7
62..... 20.0
63..... 19.2
64..... 18.5
65..... 17.8
66..... 17.1
67..... 16.4
68..... 15.7
69..... 15.0
70..... 14.3
71..... 13.7
72..... 13.1

Wednesday, October 22, 2008

The Dictionary of Occupational Titles (DOT)

Anyone who may be permanently and totally disabled or Social Security disabled may want to know about the federal publication called the Dictionary of Occupational Titles. This is an outdated (1991)but important resource when trying to ascertain how disabled a person might be. In SS cases it is extensively used and often relied on by Judges. In WC cases it is important but not quite as much as in SS cases. Still the job description and physical/skill demands of a job are quite important in all cases where employability is an issue. Each law defines unemployability differently but both make the concept of unemployability a key factor in determining total disability. In both areas jobs such as ticket taker, receptionist, customer service, telephone sales, hotel clerk, dispatcher, driver, assembler have detailed job requirements including physical, educational and skill levels. Each occupation receives a code number and a small paragraph describing it. Vocational experts use this information to assist in analyzing possible jobs for a claimant. They do much more but this old publication remains the bible in the field. The Social Security Administration goes further with its rules in analyzing how age, education and other limitations play into work ability but in Colorado workers comp we tend to rely on the experts to provide opinions rather then any further rules. The Social Security Administration realizes those over 50 have a harder time adjusting and there are rules in this area. In Colorado workers comp being over 50 is not going to stop someone from saying you can work in low paying or unskilled jobs. So if you want to check into occupations and what is required for that job you might take a look at the DOT Dictionary of Occupational Titles.

Tuesday, October 21, 2008

After Your Rating...Now What?

Many people go through the workers compensation system in Colorado and eventually get rated (they receive an impairment calculation). Often they are then faced with a Final Admission by the insurer who seeks to close out the case. Perhaps they are to receive some permanent benefits if they did get rated but do they have any further remedy? Absolutely YES! In Colorado workers comp it is not over if you promptly act to protect yourself. You have 30 days from the date of mailing of the Final Admission to act and this deadline is strictly enforced. Your first choice is often to proceed with a DIME (Division Independent Exam) to obtain a new opinion on MMI and the rating. Often more is needed or the rating is higher then what you were given by the authorized physician. Also if you are severely disabled then you need to look into whether you are employable. If not you may be entitled to lifetime benefits or a much higher settlement then the admitted amount. Recently someone posted a comment on this blog and was concerned about getting a 12% rating yet being in much pain. I responded but it is an important enough comment to make sure everyone realizes that you do not have to accept the rating given to you by the doctor as all you are entitled to despite pain and other problems. While workers comp does not always compensate you for all your losses it is important to know that anyone unable to work may be entitled to much more then a rated award. Also you can also be entitled to more treatment. DO NOT ACCEPT A FINAL ADMISSION without carefully reviewing it (hopefully with an attorney). Do not accept one doctors rating as the end of your case. That may be the worst thing you can do. Those with severe disabilities really need to consult with an attorney wherever possible. Almost always much more can be done but at least check into it further. I've seen cases where doctors have said there is a zero rating receive substantial benefits. Sure I want law changes to provide more help for the injured but don't think the existing law is worthless. It is not at all. Pursue your options but do so with promptness.

Sunday, October 19, 2008

WC Seminar on Friday October 17, 2008

There was another gathering of numerous attorneys in the workers comp field on Friday in Denver. The entire day was devoted to updates and issues or current interest to all of us in this area. As nearly always these seminars are well attended and packed with information. Recent decided cases are reviewed. We are provided with a heads up on coming changes. For example, it's been proposed there be standardized forms for settlement agreements. That is likely coming. Also there have been significant changes in the apportionment area. That is where reductions in permanent benefits may occur when you have had prior injuries or diseases. The legislature tightened up in this area to try limit such apportionments. I suspect some litigation will continue in this area since most law changes are subject to intrepretation by the courts. At the seminar there was a lively debate on how to analyze this new law but it may well take a few years to fully define how to apply it. However the law generally will help claimants resist apportionment in many cases. As a claimants lawyer I shall assume there is to be no apportionment of permanent total or permanent partial benefits unless it fits into one of these exceptions which are rather technical:
1. Permanent total disability claims where the last injury is an occupational disease and there is a dual non-industrial component to the total disability that is not genetic. In that case it remains a question of fact for a hearing Judge to decide and vocational/medical evidence will almost always be needed. An example here is a breathing problem from both saw dust and smoking that results in total disability.
2. Permanent partial apportionment may occur if you've had a previous rating and award/settlement of a workers comp case involving the same body part. Example, you had a low back rating and award at a specific disc level which is re-injured at a later job.
3. Permanent partial apportionment may also occur for a prior non-work related impairment to the same body part provided it was identified, treated and remains independently disabling. This will not be easy for insurers to prove but will be a case by case issue. My view is that the word "disability" is not the same as impairment. In those cases where the claimant returned to work and remained fully functional I simply do not see a basis to apportion.

Tuesday, October 14, 2008

Try a Diversion...Ruth's Cookies

Okay...this is not about workers compensation or Social Security disability. It is just about something as simple and rewarding as a cookie. Nothing earthshaking but there are times despite the stress and troubles in the world that we all need a time out and a time to just enjoy life. Ruth's Cookies has been a bakery I've known about for years. But what they produce is not some store bought version but a real cookie. The type that melts in your mouth and gives you an instant rush. They used to be out east but now are on the westside. I must admit their cookies are my favorites and by accident I came across them as I was driving on the westside. I was delighted to have rediscovered them and quickly bought a dozen snickerdoodles. Just think...only a simple cookie. That is about as far removed from controversy and disability as is possible. Time out to just enjoy.

Friday, October 10, 2008

The Disability Plan of Obama

I came across this proposed plan put out by the Obama Biden people. If I can find anything on a disability approach by the McCain campaign I will also post it. This link sets forth what I do consider as an interest in helping those with disabilities. It includes (scroll down the link) some ideas regarding Social Security disability. One big problem is the incredible delays in the system. When I see someone trying to address it then it sure beats a do nothing approach. In any event here is the link.

Sunday, October 05, 2008

Amendment 57 Injured Worker Remedies (Withdrawn)

The upcoming election has on the ballot Amendment 57. Well that was the story but this has been withdrawn even though its on the ballot. Amendments 53,55,56 and 57 were withdrawn by the Dems. I will not bother to discuss all these but Amendment 57 was an effort to help injured workers by adding another claim that could be filed. However it is beyond workers compensation coverage. In the past workers compensation has been considered the exclusive remedy for a work injury. You could not sue your employer for an unsafe workplace. You could not recover for pain and suffering or punitive damages. Your remedy was limited to those benefits allowed by Colorado workers comp law. If this law passes it opens the door to new civil claims with a jury trial for unsafe workplaces that cause damages to workers. However it only applies to employers with ten or more employees and it prevents a double recovery for the same losses for which you received workers compensation benefits. I prefer that we increase benefits within the workers compensation system but this proposed law does offer a new approach. Sadly some workers comp cases really do not fairly compensate injured workers. I am especially concerned about cases where you lose your trade but receive an amount set by law which is simply inadequate. This law, if it passes (but realize it is now withdrawn from the voters), opens the door to further civil claims and frankly injured workers deserve more. Insurers can contest claims and use the law to limit benefits without regard to the inhumanity of it. Pain is poorly compensated. Often the injured worker loses his job and his health and is expected to just move along with low benefits. This proposed law lets you present it to a jury who may understand the true losses that are experienced. What does seem clear to me is that the true losses from a work injury must be compensated whether by this withdrawn effort or others that loosen up the tough laws that hurt injured workers over the last 15 years or so.

Saturday, October 04, 2008

Changing Offices

We've just finished moving offices and it went quite smoothly all things considered. I had been out near the Citadel Mall area at one office for some 16 years. It was an excellent office but time for a change. We moved just north of downtown to 730 North Weber Street and also to another location more convenient to our operations. It's a 21st Century way to operate. The problems of moving after such a long time are significant. We had an enormous number of files. We decided on a new phone system and of course needed new stationery. All the details were handled although we are still waiting added changes to our phone system. What sticks with me as we went through with the move is how many people we've represented over the years. It was a trip down memory lane as I reviewed all of our records. Some of those cases were considered lost causes but turned out fine. It reminded me to keep emphasizing to people to get an experienced attorney on your side if at all possible. Even so called lost causes need not be so with competent help. Thinking an insurance company will max out your benefits is unrealistic. You may even think everything is going along fine but please understand the insurance wants to save money. That fact means they seek to minimize and close a case as soon as possible. It is the nature of the profit system and it conflicts with obtaining maximum benefits in almost all cases. With an attorney you increase the odds in your favor often by 50 to 100 percent or more.

Sunday, September 28, 2008

SET Family Medical Clinics

A couple of posts ago I noted that low income people can seek out Peak Vista for medical assistance. But there is also another low income resource for medical assistance in this region that also deserves mention. One of my clients recently mentioned this to me and so here is a link to their website. If you are low income but can afford it they do charge a small fee but if not they still welcome you. The reason I mention this is that many people who are disabled or hurt do not realize there are medical resources out there willing to help. Some people have worked very hard all their lives and when trouble comes they lack knowledge of these resources. If you've been working hard and supporting yourself but find yourself knocked down its good to know that this exists. Legally it is important when you have a disability or need treatment for something that it may be available. Our society has caused medical insurance rates to be unaffordable for many hard working people. That needs change but in the meantime use what's there. A Judge can wonder how hurt or disabled you are if you avoid treatment. We can say its because you cannot afford it but it can make them question your disability.

Thursday, September 18, 2008

Mileage Reimbursement

A claimant with medical benefits is also entitled to submit for mileage reimbursement. Trips to the doctor, the therapist and anything related to medical treatment/evaluations also can mean mileage going and coming. When you track it then it usually can be submitted for reimbursement. It is best to submit on a monthly or semi-monthly basis and not let it accumulate. Wait too long and reimbursement can be questioned though it can also be disputed at any time. Usually the insurer reviews the mileage and reimburses using a set rate. That rate can be seen here in this link.
Be realistic in your miles (some insurers use mapquest.com to calculate your miles) because excessive miles can make the insurer question even more about your case. Also mileage checks can take some time to compute and issue so do not think you will be quickly paid. Give it a month to six weeks.

Thursday, September 11, 2008

Peak Vista Registration

Back in December 2007 I mentioned Peak Vista. This facility provides medical care to the less fortunate. It is an excellent resource when you have no funds and need medical help. I am posting here a link to the Peak Vista registration page where you can check out eligibility. This place really helps people so use it if at all possible and you cannot afford a private doctor and have no other benefits. If your workers comp has been denied or you want Social Security disability but have no money then check into this. My only criticism of Peak Vista (one shared by other attorneys) is they usually do not fill out any paperwork to assist with your claim for benefits. I realize it is time consuming and their time is valuable but if someone can get workers comp or Social Security then medical benefits are usually provided to them. To me this would allow the patient to obtain other medical care (freeing up Peak Vista people to help others) or perhaps Peak Vista could then bill and receive medicare payments. Of course I also understand that they do the best they can with what they have. In that regard, by reputation, they are quite helpful for most people. Whenever possible if you hurt and are broke give them a try. Who knows they may just save your life.

Monday, September 08, 2008

We Are Rated in Top 25 Workers Comp Blogs!

Received a nice email today from LexisNexis a major publisher. They have included our blog in the Top 25 in the country! It is a nice honor and much appreciated. Of course in turn I can say its contents are primarily the result of the problems and disabilities of those injured workers who deserve fair treatment. It always amazes me when I work in this field to deal with those who seem to reduce the injured worker to a price tag. No question there are financial elements of a claim but many of the injured must now live with pain and limitation. Further many must deal with other problems such as loss of career, depression and changing their lifestyle. They deserve to have their story told and told and told. I'll help tell it as long as I can for many years to come. Here is the link to view the Top 25 Blogs .

Friday, September 05, 2008

Sept 4th, 2008 brings two cases against claimants

The Colorado Court of Appeals decided two cases on September 4th against claimants. Both cases have complicated legal arguments but the claimant lost out. In the first case, Feeley, the claimant sought to reopen and have his claim reviewed again after he lost his original appeal. He felt that there was a more recent Colorado Supreme Court decision which should have been abided by in his earlier case but the court decided his earlier case could not be reopened under the doctrine of claim preclusion. In other words his prior appeal was the end of the line despite a later Supreme Court decision that compels Respondents not to close a case without taking the right steps. It really meant that his claim was too late to take advantage of the more recent decision yet its clear the older law was a mistaken intrepretation. The second case, Heinicke, decided that a claimant who returns to an authorized doctor who states his impairment is higher cannot shift the burden to the other side to prove otherwise. The claimant sought to reopen but the decision indicates the claimant still has a high burden to prove his case should be reopened due to worsening. This case is strange because we all know that a higher rating means more damage and logically it must mean a worsening. The court seemed to emphasize the claimant still had to prove it relates to his work injury except you have to say that when an authorized doctor rates higher he must also (implicitly if not explicitly) be saying it's all work related. The case makes it clear that reopening is not easy and the burden is high. I side with the claimant in both cases but that is no surprise as I only represent claimants. I think legal mistakes made should be corrected and not perpetuated. Feeley says too bad. I think evidence from an authorized physician should shift the burden to the other side. Heinicke says no way yet it costs $450 an hour to have a doctor testify. Most injured workers are financially hurting so this seems to perhaps deny relief to those least able to afford it.

Monday, September 01, 2008

Politics and Social Security Disability?

Here is a link to one writer who reports on Social Security news. It appears that some claims are being processed faster by the Social Security Administration if they hit the newspapers or have much media attention. He believes this may be political in nature. In the past he relates this was not the case. He suspects such cases are being expedited to avoid further bad publicity during an election year. If true it is another reminder to all of us to look beyond the lip service and the posturing and get to the truth. In my mind there is absolutely no doubt that claimants have languished under an agency that has been underfunded and undermanned by the current administration. No human being should have to wait more then 6 months for a hearing but they do often wait over a year. In any event click here for the article.

Thursday, August 28, 2008

2008 Amendments to workers compensation

The Colorado Division of Workers Compensation has posted on the latest changes made to the statutes on workers compensation. You can read them right here. One change made is to prevent insurers from arguing that they only have to pay a portion of temporary and medical benefits due to prior work injuries. Such an argument could cripple the rights of injured workers when they sustain further injury. Trying to say they only owe half your medical bills or half your temporary benefits because you have had prior work injuries is now gone. Imagine being hurt on the job and now needing back surgery but the insurer says they will only pay a portion of the cost because you had prior back injuries. Insurers did not feel they should be responsible for all the benefits to be paid out when they only covered the last injury. The problem is this argument would fail to realize the last injury really was causing all the need for benefits. These amendments all became effective on July 1, 2008.

Monday, August 25, 2008

Disaboom.com at the DNC

The Democratic National Convention starts today in Denver Colorado. One group for the disabled is indicating it will be there. The link to their site (disaboom.com)
is here.
According to an ongoing poll disaboom is conducting about 57% are for Obama and 26% for McCain with the rest undecided. Why? At least historically the Democratic party was more pro-labor and the Republican party more pro-business. In Colorado until recently we had a Republican state and it showed in workers compensation "reform" as benefits/rights were cut back over at least a dozen years. Since the Democrats now are in the majority at the legislature and we have a democratic governor some changes have happened. The stronger the Democratic party the more likely further change for the better for workers will occur. One change I'd like to see is to throw out the scheduled rating and have everyone apply a whole person rating to every case. My view is that every permanent injury has an impact on your earning capacity. A hand injury can mean loss of a trade so it should be as serious as any other injury. Nowadays a hand injury can mean a low ball recovery even if you lose your trade/occupation and that is flat wrong. In any event if you are disabled/hurt then when you follow this election pay attention to who seems serious about the disabled and who gives lip service to helping the disabled. The wait for Social Security hearings is directly attributable to poor funding under the current administration.

Monday, August 18, 2008

Lump Sum $10000.00

You are allowed in workers comp to lump sum $10000 and this is frequently done. When you have a Final Admission and the insurance indicates $10000 (more or less) is due a claimant then you can get an advance of up to $10000 without any effort except to send a letter for the funds. This is quite different from a Petition for Lump Sum which we seldom use. The latter may bind you to the Final Admission. But getting $10000 is usually fast and easy. Plus, it does not bind you to the figures used by the insurance. You still have the ability to dispute it provided you act promptly within 30 days as noted in the Final Admission and its accompanying paperwork. What many people do not know is when a Final Admission is sent the insurer is usually obligated to honor it and pay biweekly until the money runs out or until able to change it by law. It does not send you one big check. Can you object to the figures or to the doctor's report about maximum medical improvement or his rating of impairment? Yes and you can also get $10000 of the amount due you while you object or dispute it further. For example, the Final Admission admits for $20000 and you feel that is wrong. Usually you get the first $10000 and also receive biweekly checks until the $20000 runs out or as provided by law. Often this is done to assist the claimant as we proceed to take the dispute to the next level. That can take several more months and the funds can ease his or her financial fears. One last thing....when you ask for this sum it is discounted. It is like getting money you'd normally receive over time all at once so the law uses a 4% discount calulation. Colorado adjusts it each year but you can look at the chart right here. There is some difference between whole person (back, neck, head, etc) and schedule (fingers, arms, legs, etc) and this is noted on the chart since benefits are paid differently in this two areas.

Monday, August 11, 2008

Sometimes appeals are premature...case decided 8/7/08

This case just decided indicates the parties could not push the appeal along. The case, to date, decides that a traveling claimant who contracted West Nile virus while working in Colorado may be covered under workers comp while living and working in Colorado under the travel status doctrine. At first the claimant lost but he appealed to the Industrial Claim Appeals panel. The panel said the first judge had not correctly applied the law when he said the claimant had to contract it during work hours. In any event the next appeal goes to the Court of Appeals who said it was too early to decide the case because the panel had remanded it back down to have the judge take further action. This makes it premature as no benefits were yet ordered. It looks like the parties then tried to agree on a way to try to keep the appeal going but it did not work. I suspect the appeal will crank out all over again since the parties were trying to expedite it and not have to go through it again. The case took over 2 years to get to where it is now with more still to come! Read the case here.

Sunday, August 03, 2008

Waiting for Social Security Disability in Oregon

In this link to an excellent article in the Oregonian we see the terrible effects of the delays in processing and approving Social Security disability benefits. Years can go by and people can die just waiting. There can be appeals and more appeals. Even in the best of cases many months go by. There are simply more claims and less people to handle them but in addition there seems a concerted effort to deny the disabled a fair assessment in the early stages. Some cases astound me. A clearly disabled person who can no longer work is denied benefits and forced to wait for his hearing a year or more. Sometimes this person earned quite good pay and to think he'd give that up for a reduced benefit is plain crazy. Many would prefer to work. The stories in this article remind us that we can do better for the disabled. Congress needs to appropriate more and the process itself needs to be realistic not so technical we lose sight of the human side. As seen in this article linked here the human side is hurting.

Wednesday, July 30, 2008

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.

Friday, July 25, 2008

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.

Thursday, July 24, 2008

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.

Tuesday, July 22, 2008

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.

Saturday, July 12, 2008

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.

Wednesday, July 09, 2008

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.

Tuesday, July 08, 2008

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.

Monday, June 30, 2008

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.

Thursday, June 26, 2008

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.

Wednesday, June 25, 2008

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.

Thursday, June 19, 2008

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.

Thursday, June 12, 2008

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.

Tuesday, June 03, 2008

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.

Saturday, May 24, 2008

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.

Tuesday, May 20, 2008

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.

Thursday, May 15, 2008

Today :Termination for Cause Case Claimant Loses

Today the Colorado Court of Appeals issued a decision against a claimant. The law involved what we usually call termination for cause. The statute says if a claimant is responsible for his termination from employment then his right to temporary benefits can be cut off. There is an exception should your condition worsen after termination but otherwise a claimant receives no wage loss or temporary benefits if he was properly terminated for cause. I dislike the law though I understand the concept behind it. The legislature did not want people who had a job and then lost it because of themselves to collect temporary benefits. I dislike it because the injured worker is still likely disabled and may not be able to find another job while he remains under treatment and with restrictions and/or medications. This law has led to numerous disputes which have gone to hearing. All sorts of reasons can justify the employer saying a claimant is responsible for termination. Witnesses usually are found who still work there who tell the judge at hearing how "bad" the claimant was or what wrong he did that led to termination. I've heard it said the claimant was insubordinate, violated rules, abandoned the job, was loud or rude or loafing or not following orders or even not calling in. If your resume is wrong or you lied on your original job application or tested positive for drugs (not drugs on the job but just even for drug residue that may be in your system from weeks ago) then the termination can be your fault. You can then lose not just workers comp temporary benefits but even unemployment benefits even if you cannot find other work. A claimant can face months without any income and that can be devastating unless you have other resources. In the case decided today the worker tested positive for cannabis after his injury and was terminated. He sought temporary benefits and was denied them and appealed. The court decision accurately states the law in this area so any injured worker should take heed not to give your employer and cause to fire you. Read it here.

Monday, May 12, 2008

Sigala Colorado Supreme Court decision today

In this case the Supreme Court interpreted the word suspend to mean temporary not permanent if the claimant corrected the situation. The insurer wanted it to mean it was a bar to benefits and even if the claimant corrected his noncompliance he would not get those benefits which accrued during the suspension period. Here the claimant failed to make a doctors appointment set by special rule and when it was corrected he sought the back temporary benefits that had been suspended. At the Supreme Court level they decided in the claimants favor and reversed the lower court decision that said he was barred from those back benefits. The case really only involves a few weeks of benefits but you can see that insurers often seek to have the law intrepreted to stop or reduce benefits. This is just another example of how adversarial the system can be. Read the case here.

Wednesday, May 07, 2008

Insurer's Be Practical!

In the recent past I've been involved in several minor disputes over at most a few thousand dollars in medical or compensation benefits. That strikes me as incredible in this day when litigation costs and delays may help no one. I understand initially defending on a disputed issue but when it is being set for a hearing it is time to reassess from a business standpoint. Defense attorneys are just doing their job when they must defend the insurer/employer. They are trained to do so and not to settle at least not right away. Insurance however is a business and its may not be just a matter of who is right or wrong. Often I suspect cases have been prolonged and expenses gone up when they should have been just moved along. Settling or compromising on an issue is practical but not always legally correct. Being practical means to assess risk and costs along with the legal issues. When this is not done the insurer becomes a prisoner to the legal issues over the business side of it. I realize there are times each side gets hard nosed. Yet a middle ground is often the most sensible way to move a case along. I'd like to see insurers being pro-active in this because it requires business common sense not legal analysis.

Thursday, May 01, 2008

Colorado General Assembly

Ever want to check on bills being passed or that are pending at the Colorado legislature? It is important if you have any interest in changing the law that you be active or at least educated about bills that seek to become new laws. Here is a site to visit that can tell you about current bills. For example plug into the site HB 1407 and see what comes up. This is a bill just recently filed to take it to insurance companies that unreasonably deny benefits. Will it pass? Well the insurance lobby spends much to prevent such bills from passing. They may advertise that it will be disastrous for Colorado. You have heard such ads before when they proclaim businesses and the taxpayer will be hurt and costs will rise if this bill or that bill passes etc. etc. etc. I just think we need to look at the bigger picture and do the right thing. I also know that public relations campaigns may or may not be truthful. It seems nowadays that negative campaigning is the way to go...not just in elections but with anything you want to stop in its tracks. Anyway here is the link to the Colorado General Assembly.

Wednesday, April 23, 2008

TV Advertising lawyer sued.

Today the local newspaper for Colorado Springs indicated that a Colorado attorney is being sued. He touts himself and the firm as the "Strong Arm". He does what I consider massive advertising. This is bound to lead to many cases and some are upset with the results obtained by him. Of course no one can guarantee results and such advertising is expensive. But it does mean a very heavy caseload is likely. Also it can be suggestive of a settlement mill where cases are moved along and settled fast. The article reports the cost of the ads exceeds $100000 a month. That expense and the overall expense of more then one office and staff does complicate a practice. My preference is a one on one practice where each case is handled thoroughly and the goal is to protect and maximize benefits. It is personal and labor intensive. I do see where that effort can be compromised if you have too many cases or too much overhead to feed. In any event a lawsuit is just a claim and we'll have to see what comes of it. My concern is not that there is heavy TV advertising. That is one way to get your name out there. My concern is with the content of some of the ads. In 15 or 30 seconds the lawyer may be made out to be a legal magician. And that is pure fantasy. Anyway here is the article.

Thursday, April 17, 2008

The Safeway Mileage Case decided today

Today the Colorado Court of Appeals decided a case in which Safeway appealed. They wanted to limit the mileage benefits owed to a claimant. It seems this claimant waited 3 years to submit to be reimbursed on her mileage to doctor appointments and the like. She submitted for over 5000 miles and Safeway disputed it. Safeway lost the appeal. Safeway said the claimant was limited to seeking reimbursement to 120 days of mileage not three years. If you looked at just 120 days the claimant would have received far less of a reimbursement. The Safeway theory was a technical one. They decided to assert the claimant was a "provider." All providers of services have to comply with the 120 day rule. So how could the claimant be a provider? They reasoned that since the claimant was driving herself to medical appointments she was providing the service to herself! The court disagreed with Safeway and ordered them to reimburse the claimant for the full 3 years. View the case here.

Tuesday, April 15, 2008

September 11th Responders still hurting

Here is a link to a recent article that tells us that many who responded with courage and dedication have not been compensated for efforts once they developed health problems. Many such problems seem related to their work and rescue activities at the 9-11 site in NYC. I expect it is relatively simple to defend claims made because the medical evidence can be subject to different interpretations. We all assume that injuries and disabilities will be taken care of but many cases are contested. The contest is often because insurers can question the cause of the injury or disability. Yet it is a shame when we see this happen to those who were involved with 9-11 efforts at the site of an American Tragedy. Click here for the article.

Monday, April 14, 2008

Customer Service in Workers Comp

In Colorado they have developed a customer service section at the state Division of Workers Compensation. They are there to help to the extent they can in some basic areas though of course they do not go to hearings or otherwise perform legal duties. In some cases the claimant cannot find an attorney or feels they do not need one and at least the customer service people try to help out. But the statistics maintained by the state also seem to tell us that claims or inquiries about claims in workers comp are down. Despite increases in population the customer service stats say that less people are calling them or dropping by. In 1997-8 there were over 83000 calls/drop ins at the office yet by 2005-6 the number had dropped to some 58000. As I noted back in July 2007 the number of hearings also went down. Why? Are there less workers in Colorado? Nope. My view is that we have to conclude that either less people are getting hurt or that more claims are not being prosecuted or pushed as hard as they could be. I do know that in the old days you'd almost always be able to find an attorney to take your case but that is changing. In any event if you wish to contact customer service click here for the number.

Tuesday, April 08, 2008

Injured Workers Bill of Rights

At another website they have posted the Injured Workers Bill of Rights. This is not Colorado law but perhaps should be. What concerns me is that the injured and disabled are not afforded fair benefits and treatment. What is provided is limited. For example the law has offsets so that if you are totally disabled you are not going to get a full workers comp check and a full Social Security disability check even if you are totally unable to work. The theory is why should you get double benefits. Therefore the state says there is an offset. You get one benefit check in full but the other is lowered. In Colorado you would have your ongoing workers comp checks reduced by one-half of your initial Social Security check. Is that really fair? If you had two life insurance policies is one reduced because you get the other? Plus once you can no longer work you lose the capacity to grow your income and receive other benefits of employment (such as stock options, retirement plans, medical insurance). Once you are totally disabled you are stuck in a rut. It is good to have the benefits but you receive fixed amounts although Social Security has a small cost of living increase. If the injured worker were getting a windfall I'd agree with offsets but that is not the case. Plus workers comp is capped meaning your checks have a dollar limit even if you made a very high wage. Sorry but I feel the truly disabled deserve full benefits. What I've commented on here is in there (Right 12). Maybe its too idealistic but it asks of us...do we care about people or profits? Review the Bill of Rights by clicking here.

Wednesday, April 02, 2008

Tackling Colorado Health Insurance Rates

This is a bit off topic but it relates to a health issue just as workers comp and Social Security disability also have health issues. Rep. Carroll who I earlier posted on is active in trying to stem the uncontrolled hikes in health insurance rates. Personally I have come around to believe in a National Health policy. I just do not believe that our medical care should be in the hands of for profit companies. It forces conflict and waste. It should be paid for but under some universal system. In Colorado we are actually healthier then the national average and spend less then average on health care yet we are 7th highest in insurance rates. Rep. Carroll is introducing a bill to regulate this and not simply allow unlimited rate increases without going through the insurance commissioner. While I believe in free enterprise health like utilities or fire protection is too big a social concern to be left to profit making companies. The social compact we have as a country needs free enterprise but when it simply can't work and harms the country we need a different approach. Police, fire, the military and other safety minded agencies (FTC, FDA, SEC, the Fed etc.) exist because without them life would degenerate to survival of the fittest, wealthiest and most powerful. For now any approach to regulate health insurance is better than none so I support it. Intense lobbying will happen to kill this so watch for the insurance companies to try overwhelm us with fear ads as we get closer to a vote. For more information on this bill click here.

Tuesday, April 01, 2008

Colorado Labor Market Services

Anyone hurt on the job or just with many health problems often is faced with worries. Aside from workers compensation or Social Security disability they often have to deal with seeking work or changing occupations. I have already provided an earlier link to the Colorado Division of Vocational Rehabilitation. If you cannot return to your job most know they may be eligible for unemployment benefits after they reach maximum medical improvement (but don't delay on this and get going within 30 days). Yep...if you were laid off and received workers comp benefits you may still get unemployment afterwards if you act promptly. But aside from this many seem at a loss as to what to do besides just find work on their own. Well here is a link to the state site that may interest you. It even has career services information. Click here to go there and then look around there for helpful information. Apparently they let you know what is available in your areas of interest. They even have where you can try to figure out what are your career interests. Anyone losing a trade or job due to injury or health may want to see what else might look worthwhile. Explore the site. I noticed even the listing specific available jobs. Check it out.

Thursday, March 27, 2008

Claimant Fraud or How Not to Be Well Heeled

The typical claimant on workers comp seeks to maximize his benefits. There is no reason to not receive all available benefits. However in this link we have a claimant in Connecticut that went beyond that. Insurers love to use such stories of fraud to justify tightening up on workers comp rules and laws. Such instances of fraud then can hurt the average claimant. By and large most claimants just want to get treated and back to work if at all possible. But at times someone decides to be false and deceptive. Not only can that be criminal it also affects all the other claimants. It can result in insurance adjustors and employers thinking all claims are suspect. By the way the instances of employer wrongdoing are actually more common. Many times employees with legitimate claims are treated poorly by their employer. Claimants are fired or demoted or ostracized. To save a few bucks I've seen employers put claimants back to work reading the phone book just to have them collecting regular pay rather then workers comp. In any event all claimants should know they are not invisible and surveillance is common. Check out the Connecticut story here.

Wednesday, March 26, 2008

Idaho is Number 1!

Here is a link to another site that makes us aware that Idaho is the fastest in the country in processing Social Security claims. They are weeks faster then the average plus they handle more cases per day then average. So in terms of efficiency they beat the rest. However it does make you wonder if they can be speedier and handle more cases why cannot the other states learn from them to improve their time/efficiency? The delays in any claim for Social Security disability are well known but it is always sad to see deserving people wait. Anyway here is the link.

Monday, March 17, 2008

Three Choices

Many times there is a point where a claimant has 3 choices to choose from in a case. He is faced with a Final Admission after treatment where he is likely rated by the treating doctor as to his impairment. He is given a 30 day deadline to act. His choices are to accept the Final Admission filed by the insurer or to seek a DIME (Division Independent Medical Exam) or to try to settle out without a DIME. He's on a deadline so it can be a tough choice to make. Questions to consider include are you at MMI (maximum medical improvement)? At times treatment ends too soon and more can be done. Another consideration is the rating. Is it too low or high enough to worry that if you go for a DIME will that doctor lower the rating? Yes that can happen when you open the door to a medical review of the treating doctors rating. What about future care such as ongoing medications? Is that allowed for or is it less then expected or desired? What about your restrictions? Can you barely lift a gallon of water yet the doctor said you can lift 20 pounds? Some decisions are easy. If the treating doctor releases you without impairment or anything further and returns you to full duty and you disagree that choice is easy. You go for a DIME (after objecting to the Final Admission which the insurer rushed to you). Each case is different but the statistics seem to show that many try for a DIME. This occurs because the treating doctor who was handpicked by your employer may be less favorable to you. But if the rating is high enough then we have a tougher decision to make. Each of the three choices comes with a negative. If you go for a DIME the new opinion may lower the rating or agree with the treating doctor or alter something else like your maintenance care. If you accept the Final Admission then your case closes based on that Final Admission (read it carefully because it is what is in writing that counts not what the adjustor tells you). You do keep your right to petition to reopen for a while (6 years from date of injury or 2 years from date of last money payable) but that does not mean if you worsen you can reopen the claim easily. It can take a battle. Insurers often question reopening especially when a new job or event has aggravated it. You can just try to settle it all out but that means closure forever in most cases. So you may get extra dollars but don't plan to be able to return for care if you get worse or if it turns out you cannot work at all. Again for most cases the choice is to go for a DIME but each choice has consequences so in some ways it is a choice between evils. We all want open medical benefits and high compensation but seldom is that provided. Lastly each person has personal factors to consider. Some can be ready to work and just want it over with. Others may have lost their trade and need to maximize benefits. Still others really feel they need more treatment. Tough choices and asking others for advice can be tricky. Only your lawyer knows the current state of the law. He also knows the doctors involved whichever way you go. Beyond that you may have to consider if you are permanently and totally disabled and this enters into any review of the choices. The point is that it is never a simple matter and each case is unique so take the time to think it through with your lawyers help. Going it alone is seldom wise as the decision you make you will carry with you the rest of your life.

Saturday, March 15, 2008

Odds When You Appeal in Workers Comp

Here is a statistic mentioned at a recent seminar I attended. Going back over ten years anyone who appeals a workers comp decision only has a 17% chance of any success. The odds are very much against you although some appeals are easy to decide against the appealing party. If you are untimely in an appeal it gets dismissed. If you missed a deadline that can mean a dismissal. If you simply disagree with the Judge's weighing of the evidence the odds are a fairly clear your appeal will be dismissed. But it is still sad that so many appeals are a waste of time. Of course we are talking about the rate of dismissals at the next level up from the hearing judge. That level is called ICAP which stands for the Industrial Claim Appeals Panel. Beyond that level is the Court of Appeals and then the Colorado Supreme Court for a few cases. You can lose at the hearing, at the first appeal, at the Court of Appeals and then win at the Supreme Court. So odds mean little if you have a good argument with a solid legal basis. The problem is that few losing cases are that solid and most appeals simply result in a dead end. Being upset at the hearing judge is not enough to appeal...it takes a solid legal argument. So if you are convinced you are right and appeal be aware that 83% of the time appeals are lost at the ICAP level.

Friday, March 07, 2008

Randy Golob and Social Security

I saw this clip on another website but it is about a local (Pueblo) man and how he waits for benefits. It ran on KOAA television. Click right here.

Thursday, March 06, 2008

What is appealable? Recent Case

We all believe in the right to appeal. It applies to both sides and until we have an infallible local Judge the right to appeal permits us to point out legal errors the Judge made. Appeals, when we do not like the Judge's weighing the evidence are often foolish. The local Judge is the fact finder and higher courts seldom reverse the choices made on the evidence by the Judge. In other words you do not have the right to ask the higher court to try the case all over again. Instead appeals usually involve an assertion the Judge made a legal error that warrants reversal or another hearing. In the case decided today at the Court of Appeals the court pointed out that you cannot appeal a workers comp case when it is not timely. I am posting the decision here as an example of how complicated the workers comp system can be. If you read it you quickly realize that the decision may be proper but it may seem bewildering to the average person. Here the insurer lost the appeal but it also involved a complicated review by the Court of Appeals. It makes you want to say...please make the rules simple and clear so the system moves faster and with less confusion. As lawyers we love to question and challenge and analyze but the parties usually just want to move along matters.

Tuesday, March 04, 2008

Expedited Hearings

When there is a dispute that requires a hearing an Application For Hearing must be filed and you must comply with the appropriate rules to follow through and have the hearing. So when they contest your claim or do not provide benefits or when there is some dispute that can take a Judge to resolve it takes a hearing. We can seek hearings on a variety of matters. Examples include disputes on what is the correct average weekly wage (this is important and can result in higher computed benefits), on medical care, on temporary or permanent benefits and much more. Of course you cannot just seek a hearing anytime you want to do so. It does take a dispute and timely action by you as provided by the rules and law. Respondents too can seek hearings and often do when they have a dispute that should go before a Judge. I cannot provide a detailed list but be aware any side may need a hearing depending on the situation. Hearings at best are scheduled out around 3 months from when you apply (80-100 days). Is there any way to speed this up? There is but it is very limited. There is a 40 day expedited hearing but only on issues of compensability and medical matters from the claimants point of view. Other issues pertain to the affirmative defenses of the other side and trying to get prior authorization for medical treatment. The parties can agree to add issues but that is rare so if you are seeking money it is best to file the regular Application for hearing. Forms are located online. This means almost always we use the regular route to a hearing. Actually whenever there is a dispute it takes time to investigate, gather up the evidence and get ready. 80-100 days may seem long when you have no income or must wait for resolution of the dispute but it is much faster then civil cases at the courthouse. In any event it is all regulated by rule and law so we must abide by it.

Tuesday, February 26, 2008

Less Money, Less Judges, More SS Backlogs

As noted at this link the backlog in SS disability hearings is not hard to figure out. With less funds appropriated then requested the result is more delays. The Social Security Administration has more duties but less Judges and less funds then needed. We all want a fast and fair process to determine SS disability but it requires more funds. When appropriations are inadequate then people suffer delays. More Judges and more dollars are needed to make the system function correctly along with other changes to assist in disability determinations. Until it happens the disabled will be forced to wait.

Thursday, February 21, 2008

Spring Workers Comp CLE seminar

Twice a year a full day seminar is held on workers compensation for attorneys. It is also called CLE for Continuing Legal Education. Continuing education is mandatory for all practicing attorneys although you can concentrate in the fields you prefer. My fields of practice are workers comp and Social Security disability. This seminar I plan to attend. Even though I may be up to date it's good to hear from others, gain new perspectives and meet those in my field of practice. Whether representing claimants or insurers/employers we are also human beings not just adversaries against the other. At times that humanity is important and helps both sides to resolve tough problems and cases. In any event here is the latest info on the seminar.