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!