Thursday, December 30, 2010

Three Wishes

As the year 2010 ends and we then head into 2011 let me express my 3 wishes for workers compensation in Colorado. They are major points and would have significant opposition yet they are sensible for workers comp to be fair and efficient. I acknowledge that workers comp is insurance and this can mean limiting benefits. That is not fair but we all know that insurance has its limits. But we can make the system better. As it is the current system is seriously flawed in 3 areas. Let me detail my concerns:
1. Colorado's definition of permanent total disability is unrealistic. If you can earn any employment wages whatsoever you are not totally disabled. It is quite unlike the way the Social Security Administration looks at total disability. Colorado at one time had a reasonable approach but intense efforts at "reform" some 20 years ago led to a very narrow way of defining total disability. Example, if you can work a few hours a week for minimum wage the other side will argue you lose on this issue even if it is below poverty level. While not perfect the SS view is more realistic. But then changing this could be costly to insurers.
2. My second wish is that our system dispense with the scheduled rating and add for loss of earning ability. In Colorado an arm, hand, foot, leg injury receives a specific quantity of benefits. A scheduled rating treats the human being as a mannequin. The problem is that we use our arms and legs at work a lot. Damage from a work injury can result in a loss of your occupation or trade. The claimant receives some money and then his claim may be over. How fair is losing your trade when you obtain permanant benefits of $10000 or $15000 based on the Colorado formula now in place in this state? It is simply wrong and most of us in the field know it. Insurers save but then the buck is passed to others or to society.
3. My third wish is meant to level the playing field in the area of medical disputes. Insurers can spend a considerable sum obtaining doctors who report and can testify against the claimant. It can mean losing your entire claim. A claimant has no such deep pocket and all of us in the field know it. I've seen the other side spend over $10000 on medical experts and what can the typical claimant afford? Currently a doctor can bill at $450 an hour for his testimony which includes travel and waiting around. If every claimant had access to an insurance fund in some reasonable amount then any battle could be a fair fight. A state fund set up for this purpose with contributions from all insurers could administer this. Insurers love the current system but we all know it is unfair. An injured worker may have no income and fairness suggests he or she should have a fair chance when such a dispute arises.
So there you have it. My concern is that if we truly want workers comp to be fair and efficient then these changes make sense. What happens currently is that someone else or society has to take on the burden of helping the injured worker. We pass the buck and most of us pay for what should be handled within the workers comp system. We must pay when the system is unfair whether it be all of us or those insuring you. By the way consider this an editorial opinion and Happy New Year!

Monday, December 20, 2010

Let Us Not Forget

Over at another workers comp blog they posted a great article on one of the early twentieth century worker tragedies known as the Triangle Factory Fire. Factory workers died because doors were locked and a fire killed 146 women and girls. It was horrific and a wake up call for safety in the workplace. As the article notes now with outsourcing we are seeing it happening outside this country. This should make us mindful that workers and consumers should not tolerate poor safety and unsafe products. Actually the history of workers compensation goes back around 100 years in this country. An excellent brief history is available here. However in the last 20 years efforts have been made to get away from disability and focus on impairment. But we must not forget that work injuries can be devastating to some and workers comp was intended to provide treatment and benefits in an efficient way. Tragedies require safety measures and fair benefits or problems just get passed along to society as was the case in the days before workers compensation.

Monday, December 13, 2010

Here is a View of the Top 10 Workers Comp Issues in the Nation

At the LexisNexis website there is an article that summarizes the top ten issues for workers compensation from a national perpective. It is an interesting read but workers compensation is very state specific. Colorado has its own sets of statutes, rules and cases that apply to workers compensation claims. Still some issues cut across all state laws. For instance medicare has certain aspects that can impact a claim. This is not state law but federal in scope and is meant to avoid passing the buck of future medical care for a work injury to medicare without considering medicare's interests. These national concepts and trends are important to stay informed about even if Colorado has its own laws. My experience over many years has been to observe the move away from disability to impairment as the single most important issue in workers comp. Impairment is a medical concept of damage which has been adopted in workers compensation and moved us away from the traditional concept of disability.

Thursday, December 09, 2010

Everyone Seems to Benefit Except SS Recipients

The tax cut extension certainly seems to be benefiting all Americans except those just drawing Social Security benefits. Those earning over $250,000 continue to receive a tax break estimated at a cost of $75 billion. But also the Social Security tax is reduced for one year from payroll deductions and this appears to cost about $120 billion. See this article at CNN Money. My concern is if that payroll deduction is made permanent it sets up Social Security to take the fall for being too costly so benefits need be cut. You take away the SS payroll collections and then blame it on Social Security itself! Additionally despite this enormous giveaway they then quietly killed any chance to help out those on Social Security with a one time $250 check to make up for two years of no cost of living increase. Cost for that? $14 billion. Reason given? It is too costly. Makes you wonder about our priorities.

Tuesday, November 30, 2010

Federal Subcommittee Examines State Workers Comp Systems

On November 17th a congressional subcommittee looked into and expressed concern about state workers compensation systems. There was testimony taken and written statements provided which reflect what I see as legitimate concerns about many state systems. The link I have provided here takes you to the webpage and from there you can listen to and read much of what was provided. One concern was over the American Medical Association 6th edition for rating permanent impairment. Colorado still uses an older version. The 6th edition deviates from past editions in a significant way including what appears to be a lack of evidence based protocols. In any event more worrisome is the view that over the last 20 years benefits have been reduced and this may have increased other disability claims such as SSDI and SSI claims. What was historically intended to help injured workers in an efficient manner has, over time, become inadequate and not equitable. In Colorado you only have to look at the definition of permanent total disability to see how legislation has intentionally sought to cut benefits. At Colorado Revised Statutes 8-40-201(16.5) total disability is defined as being unable to earn any wages in any employment. Does this mean if you can only work a few hours for minimum wage you are not totally disabled? Insurers do so argue that very point and Colorado is tough compared even to Social Security disability. Harsh results? Often but insurers merely use existing Colorado law to keep benefits low. Other areas of controversy are pre-existing conditions or for that matter insurers questioning if work activities are responsible at all. In Colorado nearly 25% of workers comp claims are contested and never admitted without a hearing. Those interested can read the last published figures for the year 2005.

Tuesday, November 23, 2010

Impact on Disability Claims if the Retirement Age is Raised

The Government Accounting Office has released a report on what I see as the impact on Social Security Disability if Retirement is raised. Let us say you can retire early at age 62 and reach full retirement age at 67. To save money some are proposing to raise the retirement age to retire early and for full retirement. One justification is people are living longer and can work longer. Another justification is an effort to reduce benefits perhaps even looking at dumping it at some point. Blaming Social Security is probably a mistake. It has stabilized or helped stabilize the elderly lifestyle and with medicare made sure they were medically insured. It needs improvement but from my own personal experience it helps the old and disabled to allow at least a modest but decent life. But what if they do tamper with it? This report raises the likelihood of increased disability claims. Perhaps it is wise to study all the ramifications of altering Social Security and not look for simplistic answers that some politicians promote. One man's agenda may be another man's loss. Do unto others may be the rule to abide by here.

Sunday, November 14, 2010

Violent Threats to Social Security Judges

It is being reported at The Huffington Post that the Association of Administrative Law Judges issued a release to the Associated Press that judges handling Social Security disability cases are facing an increasing number of violent threats from claimants angry over denials or delays. Historically in Colorado Springs it has been taking a year or so to obtain a hearing for most cases. Efforts are always being made to speed up the process but it is a national problem and in some places delays exceed a year. Video hearings are one way that judges can be utilized where they are most needed but the shear volume of cases is a factor. Also I have noticed that cases may have voluminous medical records or paperwork so even with modern technology it requires time to review. I would personally like to see vocational rehabilitation used to help those who really may have a disability but perhaps can work have a chance at staying productive. It could also help the judge should such rehab fail because it reveals the truth. Instead vocational experts are often called to the hearing to express opinions based on certain assumptions which may or may not reflect the truth. In any event angry people are a sign of the times but blaming judges and violence is not the answer.

Saturday, November 06, 2010

Over 400 Pages of ALJ Orders

Every now and then the Office of Administrative Courts posts the decisions made by the local ALJ's (Administrative Law Judges). The last month they posted this is for March 2010 but it remains interesting to browse and see what is happening out there. You can search in those decisions for a specific name or word that may be important so you do not have to scroll through hundreds of pages. What has been taken out are the names of the parties. When you read these decisions you can see the attention to detail and the complexity of the analysis. Attorneys also find them useful especially when they are asked to prepare a draft for the judge. Prior recent decisions may provide a starting point to work up the details of your case. Also doctors are often named in the decisions so you can search within those decisions for a doctor to see what he was involved in and how he helped or hurt a claimant's case. All these Orders are only at the first level so they are subject to appeal.

Monday, November 01, 2010

Some Question Proposed Social Security Mental Disability Rules

Over at this website for the disabled they are saying the proposed Social Security rules regarding mental disability have a big problem. While some parts of the proposed rules are good there seems to be an effort to make automatic qualification based on meeting a mental listing tougher then the current mental listings. A Social Security listing is a means of obtaining a favorable decision based on specific factors that when they apply to a person result in automatic qualification for benefits. There are current physical and mental listings and this latest effort may mean certain standards or tests are created that are difficult to figure out. If so less will qualify under the listings. This action alert at the website calls for an effort to stop such a bad approach.

2010 Blog Award as Top 25 Workers Comp Blog

For the third year we have been honored by LexisNexis for publishing this blog. For anyone wanting to see the list of all those honored click here. Some blogs, like this one are state specific while others touch on other matters. One blog deals with the weekly toll of deaths on the job. Still another addresses working immigrants. Workers Compensation is both a national and state matter. What makes it state specific is that each state has its own set of laws and rules so what applies in one state may not apply to another. Time limits to act are especially specific to state requirements. That is why trying to compare a work injury in Colorado with perhaps one in Kansas is a mistake.

Saturday, October 23, 2010

Workers Comp Educational Conference

The Colorado Division of Workers Compensation placed all of the written materials from its first annual educational conference online. You can access it here. The materials are fairly extensive and insightful. Be aware that some of the materials seem to be in outline form because these materials were handed out at an actual conference where the writer also lectured. The materials do presuppose some knowledge of workers compensation but I have to admit they are a valuable resource to anyone in this area. It helps to keep us up to date and to address areas where there may be questions.

Thursday, October 21, 2010

High Heels = Work Injury and Discrimination Claim

This case being reported by the American Lawyer and at is not a Colorado workers comp case. But what makes it interesting is the allegation that females at a law firm were required to wear high heels which then led to a workplace injury. Then the allegation is that no accomodation was made and there was reinjury and this went on until the lady lost her job. So the case goes beyond the routine work injury to result in an additional claim for discrimination. It is unusual enough that it seemed worthy to post here. High injury...seems like a blast from the past. In many Colorado law firms the dress is casual but even when it is not I am unaware of any required dress code that says you must wear high heels.

Monday, October 18, 2010

Annual Fall 2010 Workers Comp Seminar

This is just to make you aware that Colorado has its annual fall update on workers compensation coming up soon. It is usually an excellent seminar and well worth it. It also provides attorneys with continuing legal education credits. Those who cannot attend can order the materials. Workers comp is quite technical in the sense it has a great many rules, cases, deadlines, forms, guidelines and much more. Staying on top of it is critical. Colorado has a rather large amount of available resources but it still requires being up to date. Aside from legislative changes there are cases and rules which may have been updated over the last year. The lecturers at this seminar are often quite good at presenting the materials in an interesting way. Those that attend also get a chance to interact with others in the field so the fall seminar is often the best one out there.

Wednesday, October 13, 2010

Medications Involved with Injury Claims

Over at LexisNexis they posted about many of the common medications by name and generic version which are often prescribed for the injured. It is set up in a chart format but still you may need to scroll down as you look for the medication. It sometimes amazes me how many medications a person can be taking. Moreover those with Social Security disability claims can have multiple health problems. That can mean they may be taking a great many medications for pain, for the heart, for the stomach, for sleep, for anxiety, for diabetes and a host of other things. When I talk with people I must admit that some medications really do work. However it very much depends on the person. I can see the reason doctors have to try one thing and then another to see what works for you.

Tuesday, September 28, 2010

U.S. Supreme Court Audio Now in All Cases

This is just plain interesting though not just for workers compensation or Social Security disability matters. The United States Supreme Court is opening up its website so that visitors can listen to audio recorded arguments for its cases. That is a big change as in the past it has greatly limited this to making such recordings available much later. So if you want to hear the lawyers arguing a recent case that is important to you then give it a try. By the way often we hear questions and concerns coming from the court itself so it is not boring at all if the subject is of interest. In Colorado we already have this and it is fascinating especially in a workers comp case. For example here is the Colorado Supreme Court site from which you can seek more information.

Monday, September 27, 2010

Misclassifying Employees as Independent Contractors

The Denver Business Journal is reporting that the U.S. and Colorado are cracking down on businesses that misclassify employees as independent contractors. An independent contractor does not receive unemployment or workers compensation benefits. Most of us who represent claimants will question that an individual is an independent rather then an employee and it is wise to assume any claimant is an employee until the evidence is in. I would imagine that any government does not look with favor on those that try to avoid the requirements set by law. The definitions pertaining to what is an employee are at Colorado Revised Statutes 8-40-202.

Thursday, September 23, 2010

Colorado Workplace Deaths in 2009 are lower

The Denver Business Journal is reporting that Colorado had fewer workplace deaths in 2009. The last time we had so few deaths was in 1998. My concern is that these statistics tell us nothing about why this is the situation. Are we safer in the workplace? Is the economy, unemployment and loss of many jobs to overseas sources leaving us with less employees? The good news is that deaths are down. The actual records for Colorado with a breakdown are here. Just to compare here are the figures for 2007 and for 2005.

Monday, September 13, 2010

Pinnacol's Recap of 2010 Legislation

Pinnacol at its website has neatly organized the 2010 legislation which it then reviews from its perspective. Included are links to each bill so you can read the bill itself. Pinnacol handles more workers comp claims then any other insurer in the state of Colorado. It certainly intends to be active in watching future legislative efforts and to be a voice for its point of view. The legislators noted are perhaps the most interested in fostering change in the system. How the political alignment changes after the coming elections may also affect future Colorado legislation in 2011. Injured workers are not as big or organized as business and insurance interests but should pay attention and support those legislators interested in change from their point of view.

Tuesday, August 31, 2010

Should you work while seeking Social Security Disability?

At this posting by another blogger there is a discussion on working while you pursue Social Security disability. Those who do work must realize that their work efforts can mean a Judge at the appeal/hearing stage will deny the claim figuring you can work enough not to be disabled. So trying to just earn some money can be dangerous to your claim although it may also show you are doing the best you can and still cannot earn a substantial amount. Be aware that any claim in this area really is asserting you are entitled to total disability benefits so any work is carefully reviewed. In any event the topic is discussed in the link.

Thursday, August 19, 2010

Partially Amputated Fingers are Stumps Court Says

The Colorado Court of Appeals ruled in the Leffler case to uphold the decision to add $4800.00 for partial amputation of the index and middle finger. The claimant had this happen while involved with a sod harvesting machine. This added benefit decision was appealed by the insurer by asserting that benefit only applied to "stumps" and fingers are not "stumps". The case is a simple and quick read but it amazes me that the insurer appealed. The cost to appeal to the Court of Appeals is far more then $4800.00 since it goes from the deciding judge to the Industrial Claim Appeals Panel to the Court. Quite a bit of legal work is devoted to such an appeal. I am not saying the insurer did not have a right to address this issue in an appeal. But it seems impractical and going forward with an appeal to clear up what is a stump for all future cases seems a bit of a waste. After all how many such cases are there? I have always believed that extremity injuries to include hands and fingers can be devastating matters for some people. Imagine if you were a surgeon or piano player or even a carpenter. You can lose your trade and receive a low sum for the injury. So getting a few bucks such as was done in Leffler is better then nothing.

Friday, August 06, 2010

TLC Pharmacy

There are times when some are poor or disabled with no way to obtain needed medications. In this article from the Gazette in Colorado Springs we see where there is one resource for those who cannot afford it and have no insurance coverage. Those involved with TLC Pharmacy deserve a great big thank you from all of us! In any event please be aware that they can be another source of help when insurers are playing the denial game or where there is no insurance coverage. A fair number of workers comp cases are contested and as such they are disputing that there is any insurance at all. Sometimes the claim never is allowed. At least there is one resource out there that may help with your medications.

Tuesday, August 03, 2010

Pinnacol CEO Interviewed

A few weeks ago the Pinnacol CEO was interviewed. I just came across it and thought it would be interesting to see what he had to say. You can read what he said here. Pinnacol is still interested in what he calls "separation" from the state which to me still means autonomy. He points out that premiums for businesses have been reduced by 50% over the past 5 years. He also believes the economy is still not that great. Pinnacol tracks payrolls and they are not picking up. My impression and the statistics I've seen suggest that claims are down and have been declining for several years. In fact in my view it started even before the latest economic turndown. Are jobs being shipped overseas? What do you think? The problem this country may be facing is how do you remain a consumer when your income is down? But whether injured or unemployed we really should make a committment as a nation to retraining and vocational rehabilitation. If we are losing assembly line jobs we need to replace them with desk and tech and skilled trade jobs.

Friday, July 23, 2010

Social Security Disability Filing Online

The traditional way to ask questions and also apply for Social Security disability benefits is to go down to a local SSA office. Any such filing is a bit time consuming as information needs to be supplied and the forms are somewhat complicated. Another option is to file the application online starting here. Be aware that it still takes a lot of your time and can be confusing. It also appears that one form has to be mailed in or dropped off at the agency office. I had one client file online but it was reported that it was not as easy as it might seem. My view is that you do so in person if you can. If not call them up or try the online approach. Any application takes time to process and that includes gathering up some if not all of your medical records. If you are denied be aware that such denials are common and you have the right to appeal provided you promptly act. By all means consult with an attorney especially if you've been denied as there can be many reasons for the denial that justify an appeal.

Thursday, July 15, 2010

The New Surveillance

Years ago I would tell claimants that they must be careful as they often are followed and videotaped. Often this is not just to find out if you are a faker. It may also show how functional you are compared to what a doctor may be saying. If you doctor says stay off your feet or don't lift more then 10 lbs and you are videotaped walking around for a prolonged time or lifting 20 lbs it hurts your case even if it were one time or after taking pain medication or whatever. Such surveillance does not show the details or that what you did may have exhausted you. It just shows you more functional then what your doctor may have said. I would tell them to follow your doctors restrictions or if you are really having problems to limit your activities at all times. No one is invisible when they go out in public or can be seen from a parked vehicle. Surveillance videos can be shown to a judge and to your doctor so be careful. Doing something one time just because you push through the pain or take something to help with pain is using poor judgement. Get help when you need it or as with shopping shop more often but never disregard your doctor or your own well being. Anyway those were simpler times and now we must all think about new ways to find out about you. Be aware that going online or posting information on Facebook or wherever can be located and often obtained as noted at this other blog. Your activities, your resume, your dreams, your abilities and your goals should be kept private during the workers compensation claim process. To me private means don't do it at all as thinking you can restrict access is foolish thinking. Further be extra careful with emails too. Those you think are your friends or co-workers can retain emails and they may in some way be used against you. Discussions about your health, your job, your claim and others related to any of that should be severely restricted and ideally eliminated during your claim. A failure to act wisely can mean losing your doctor even your attorney and perhaps your case. Surveillance nowadays is not to be taken lightly.
UPDATE Sep. 29, 2010: If anyone thinks that Facebook or other online social networks are not being noticed by attorneys and insurers please look at this detailed legal article that reviews the situation. Moreover investigators can have a motherload of information to use against claimants. Restricting access may not stop them. You may not even realize how it can be used but others know better. For example you go to a rock concert and post about it. It was fun; it lasted 2 hours and everyone was on their feet the entire time. But what did your doctor say? Did he restrict your standing? So now you are seen disregarding your doctor. My view...anyone with such an account should cease posting for the duration of your case or be at risk.

Tuesday, July 13, 2010

The Survey

Insurers are now required to survey each claimant after the case is over as set forth in this rule just posted by the Division of Workers Compensation. This is then yearly reported by them. I wonder how many angry claimants will respond to the few questions posed to them. They relate to claimant satisfaction and this mandatory survey may reveal how many are dissatisfied. Many are not pleased by the process which originally was designed to promote the prompt and efficient delivery of benefits. Nowadays we have disputes all over the place which if not quickly resolved proceed to hearings and sometimes to appeals.

Sunday, July 11, 2010

Settlement Documents

This link to the Division website lets you take a look at the standardized workers compensation settlement agreements. These documents are uniform so the language is the same for just about everybody. That said there are ways to make some changes or attach other documents that may be side deals between the parties. If you've been provided documents and want to see if they conform or where they differ check it out.

Friday, July 02, 2010

Maximum Rates

Workers Compensation benefits are all set by statute. Benefits are a form of insurance coverage for those who have been shown hurt at work. But like any insurance it does not pay unlimited benefits. Benefits are restricted by what we call caps and that means they are limited depending on the situation. Anyone's true losses and pain may be much higher but workers comp given it is insurance only covers what the state sets forth it will cover. Even then disputes are common especially over the severity of the injury and whether work activities caused or aggravated your condition. There may also be disputes on wage calculations, dates, doctors or medical care, job termination, and much more. One cap noted is on maximum rates. Each year this figure can change but what it means is that you can get less but never more then the cap if your wage exceeds $1216 a week (which can include certain other wage related benefits if applicable). Given this figure it means that the top amount of $810.67 is the maximum figure for temporary total disability (2/3rds of the $1216.00).

Thursday, June 24, 2010

Legislative Advisory 2010

The Colorado Division of Workers Compensation has posted a legislative advisory that briefly reviews the 2010 legislation that is applicable to workers compensation. While the legislative session is over the Division will proceed forward with rule making that may pertain to the recent legislation. Some of this recent legislation is significant. The advisory is just 6 pages so you can easily see for yourself.

Tuesday, June 22, 2010

Supreme Court reverses Court of Appeals in Ruff

Yesterday the Colorado Supreme Court issued a decision in the Ruff case. The issue posed to the court and at the original hearing was over a possible conflict of interest in a Division Independent Medical Examination (DIME). The claimant argued that the physician had at least the appearance of a conflict of interest so how can the exam be fair and impartial. In the case the physician selected had received some $600 a month from Pinnacol (the insurer in the case) for being an advisor and also was in Selectnet the Pinnacol endorsed medical group. So it was argued that it was inappropriate and should have led to a disqualification of the physician. The ALJ (Administrative Law Judge) decided it was not a conflict and the Court of Appeals decided it might require more review by the ALJ. The Supreme Court decided the Court of Appeals went too far and that there was no conflict on the facts of the case. Merely receiving some money and being in Selectnet was not enough to establish the sort of conflict of interest to disqualify the doctor. The dissent noted that in Selectnet the physician received 25% of his income and since this might raise questions about impartiality that the Court of Appeals should have been affirmed. There really was no evidence that the doctor was not professional and objective but his status as a Pinnacol advisor and being in Selectnet seemed to raise a question about his objectivity.

Tuesday, June 15, 2010

SB 10-187 Impacts Claims on or after July 1, 2010

In Senate Bill 10-187 Colorado is making some significant changes in workers compensation claims. For a complete reading just look at the bill but here are the highlights as I see them (effective only for injuries on or after July 1, 2010):

1. If the claimant has to seek a hearing to continue to obtain maintenance medical care then should the other side give in within 20 days from the hearing the claimant can seek his costs to support his effort to continue maintenance care. I see this as trying to stop the other side from objecting to care and forcing the claimant at some expense to try prove his ongoing entitlement but then backing off.
2. Two matters pertain to calculating average weekly wage. One, stops the effort to not count the claimants cost of converting from employer health coverage when he gets medicaid or indigent medical care. A recent case said do not add or adjust for a claimants cost of health insurance when he gets indigent care for free. My view is that the employer health benefit was worth something and should be a wage benefit that is counted in calculating your wage. Second, any wage calculation is to be based on your accident date or based on a judge using his discretion to figure what is appropriate. To me this just codifies what is the law today anyway.
3. Permanent partial disability benefits are no longer to be reduced if you receive Social Security benefits or an employer financed pension/disability plan. I recall one case where the fellow had a reduction of his benefits to zero because of the statutory offset which is corrected by this bill. However these offsets do apply to other benefits such as permanent total disability.
4. A modified job offer may be refused under some circumstances and not result in job termination and asserting the claimant by refusing was responsible for his own termination so his temporary benefits should stop. Personally I wish they had simply repealed the existing law on this which triggers much litigation. In the old days if you were fired when disabled you were often not cut off your temporary benefits as you were still disabled and other work was not that simple to obtain.
5. The caps or limits of top dollar compensation are to be adjusted each year for any claim for injury on or after Jan. 1. 2012.
6. Lastly it is said that there is no waiver of your right to pursue permanent total disability by seeking a lump sum of all the admitted permanent benefits.
Every point raised in the new law was important to correct problems or other interpretations of the law. I'd encourage all to look at the bill as this just represents my simplified take on it.

Tuesday, June 08, 2010

The Franz Case

The Franz case was decided on May 13, 2010 by the Court of Appeals. It concerns utilization review which is a process to review a treating physician. It can lead to the replacement of that physician or other consequences that directly impact a claimant. In this case the claimant addressed two points both of which were shot down by the court yet both have some logic to them. First he said the process violated his right to due process because he had no opportunity to discover and present evidence. Second he asserts a potential conflict of interest argument which was not permitted in the process. The court essentially said that there was no violation of Rule 10 which governs the process. The claimant had no right to assert a due process argument since it did not affect a property interest as only retroactive denial of treatment or benefits allows for such a due process argument said the court. It also said the rule was not violated as there was no conflict of interest as defined by the rule. Essentially the claimant could not explore and discover nor could he present evidence on any conflict of interest. In this case the claimant believed there was an inherent conflict because the committee members are closely involved with the insurer and SelectNet a provider organization. This case is disturbing as it deprives the claimant, in the end, of his doctor and he sought review by an ALJ who said he had not overcome the decision by clear and convincing evidence. Let's see now...if you stop the claimant from presenting evidence in the UR proceeding and prevent discovery exactly how can he even try to overcome the decision by clear and convincing evidence? So here Pinnacol was the insurer and it sought to replace the physician and the UR committee involved members of SelectNet which Pinnacol has a pretty cozy relationship with and sure enough they recommend to replace the treating physician for the claimant. Does it seem fundamentally fair? Not to me but the case really narrowly defines due process and the Rule in this matter at least in my opinion.

Monday, June 07, 2010

Pinnacol Bonuses and Travel audited

The Denver Post is indicating that Pinnacol was audited by the state in this article. Pinnacol Assurance is the state's largest workers compensation insurer and has been in the news often in the last year. The criticism is that Pinnacol pays higher then average bonuses and its travel benefits were also high. Of course Pinnacol is not completely public and operates also as a private insurer so it is a hybrid. In any event the criticism continues though it is nothing like the Wall Street bonuses we have read about. Pinnacol seems to be doing pretty well though the state and many others are dealing with the recession. Some would say it is at the expense of claimants and business owners. Others would say it is just doing a good job. This story is being reported everywhere. It is on Channel 7 News. At the Denver Business Journal it is reported with the attached audit should you wish to read the details.

Tuesday, June 01, 2010

Supreme Court issues decision on AWW

In the Simpson/Bennett cases the Colorado Supreme Court reversed the Court of Appeals to the extent it used the concept of date of disablement to determine a claimant's average weekly wage or AWW by applying a higher maximum rate in effect years later. The wage calculation can be a very important figure that is used to pay out benefits. The higher the calculation the higher the benefits may be. The case reviews the two ways a judge can determine AWW. One way is the statutory way which can involve computing your wage as of the date of injury. Another allows a judge to use his discretion when another way would be more appropriate. For the last year we also dealt with the concept of date of disablement which suggests another approach. Actually most of us in the field realized that the date of disablement concept is unnecessary anyway in most cases. The discretion given a judge is enough to afford him the ability to figure an appropriate wage if he exercises that discretion. Usually your wage at time of injury includes tips and overtime, perhaps room and board and perhaps even the cost of health insurance if it was paid in part by your employer and can be cancelled. Using some other concept seemed to be somewhat confusing but it came because of a prior Supreme Court case called Avalanche. Now the court simply corrected itself although the rest of that prior case still holds that wage calculations may include a subsequent wage if the judge in exercising his discretion decides it is appropriate.

Monday, May 31, 2010

Memorial Day...for our heroes thank you!

So many of us owe so much to those who served and stood up for this country. Today is special as we pause to thank them and celebrate their efforts. From the Revolutionary War where heroes starved and froze at Valley Forge to every war and action since where they dared to go to protect our country we honor them today. They were and still are placed at risk for all of us. To those who served and stayed true to the spirit of this country we cannot forget the effort they made was to be there for every American. One reported story seemed a special one to me of a good man who served his country at war and at peace. Now he rests at Arlington in a simple grave that only shows him as a soldier. May we all be inspired to do what is right not just what is popular.

Friday, May 28, 2010

Workers Comp Penalties are Increased

One statutory change that was signed as law by the governor pertains to penalties. The maximum penalty for a violation of a workers comp law/order is now $1000.00 a day although it can be apportioned or split with half or more to the party and the rest to a fund. Any penalty remains in the discretion of the judge. I would prefer that penalties be imposed more often in workers compensation proceedings where benefits are withheld. I would also prefer that they have some teeth rather then be a minimal amount. If a penalty is meant to punish or teach a lesson it fails to do that if the time and expense of proceeding makes it not wise to proceed. The victim if you will should not be the one punished. That just fails to enforce the intent of the provision. In any event the legislature is increasing the amount that can be imposed as a penalty.

Tuesday, May 25, 2010

Pinnacol Again in the news...for golf getaway.

The Denver Post is reporting that Pinnacol Board members were at a Pebble Beach golf resort where a round is $500 and the room rate starts at nearly $700 a night. Pinnacol is partly private and partly public. They are the largest workers compensation insurer in Colorado. Looks like the media is investigating the expenses of the trip and Pinnacol is asserting its records are confidential business documents. Pinnacol has been a state agency/political subdivision since 1915 but has been given more autonomy over the years. It has sought even more independence but is also under some scrutiny. This latest news is certainly keeping them in the public eye. Pinnacol can surveil injured workers. Looks like the shoe is on the other foot right now. The comments following the news article are also interesting.
UPDATE: This is an interesting read but mostly focuses on Pinnacol must change its ways.

Thursday, May 20, 2010

Brochure Now Required in all Workers Comp cases

A new Colorado statute has addressed a disclosure brochure to be provided to all claimants. It is a very concise disclosure on the subject of workers compensation. Seems like an advisory of the claim process and your rights as a claimant. That claim process is indeed quite complicated and the "brochure" seems designed to provide basic information and is required to be provided to you. No amount of disclosures will ever simplify the process but it does give the claimant a heads up on it. The problem with information is not that it is bad but that it can be incomplete. In workers compensation it is not possible to be completely accurate on all matters at all times. There are simply too many cases, too many rules, too many statutes and much more. For example there are tips for physicians and AMA Guides that are outdated but part of the workers comp process. Then as laws change you may come under old law or the new law or both. As recently as in the Nelson case we can see the clash of the old and new. Looking at the brochure I can say it is also not entirely accurate. One example is that it says an Admission will contain your wage but that is not always accurate. My office received a recently filed Admission without any wage figure. The point is this new Brochure can be helpful but also use your common sense and when possible obtain legal representation.

Monday, May 17, 2010

Update on the Status of Colorado Bills

Here is a link to a summary on the status of the various bills which may impact Colorado workers compensation matters. I'll comment in a later post on some of these but for the time being the link really does a very good job of giving us a heads up on the proposed bills some of which have passed and been signed by the governor. It appears for this year the legislative activity is just about over but it may take a several more days to see what is passed and signed by the governor.

Monday, May 10, 2010

Supreme Court Affirms the Nelson case

The Colorado Supreme Court affirmed the Court of Appeals decision in the Nelson case. In Nelson the claimant had obtained an advance lump sum of future permanent total benefits and years later sought another advance. The problem posed by the case is that the claimant had exhausted the advance amount earlier and only sought the new advance when the law was changed. The original statutory top dollar advance was $26292 and the statute was changed to allow a $60000 advance. Is the insurer liable for this higher advance when it was not the law back when the claimant was injured? The Supreme Court said yes it was. This decision was not unanimous and 3 judges dissented. But the majority controls. Both sides recognized that the law was not to be applied retroactively but the majority indicated that the law change was procedural so it would apply to anyone applying for a lump sum as of today. Procedural laws are not really changing rights or liabilities as compared to laws which are substantive changes in rights or liabilities. A substantive law change cannot be imposed on the parties covered by an older law. For example if the benefits were increased by a statutory change to 100% wage loss it could not be imposed on the parties later on. The higher wage would be a substantive change. So in this case it seems the majority and dissenters disagreed on whether the law change was procedural or substantive. The majority felt the advance was not extra compensation and the dissent seems to view it as giving the claimant a higher benefit because he receives value sooner then spread out over his lifetime. Mathematically when we do present value analysis there is no real difference. Of course people can die young or outlive expectations so either side may have the advantage here and now we come to another point I have not heard recently. The court said that the law should be liberally construed in favor of the injured worker so it did not split hairs here and ruled in favor of the claimant getting another advance. I posted on the Court of Appeals decision earlier.

Friday, May 07, 2010

Notices of Rulemaking

Based on statutory changes and a need to make rules to comply with law changes the Colorado Division of Workers Compensation is moving forward with proposed new rules in certain areas. The Division lets us know ahead of time what is coming up to consider and this can be viewed here. One proposed change which will likely be approved is a new and more current life expectancy table. Such a table is primarily used in the computations for permanent total disability. Those benefits are paid out every other week and when we try to settle them we have to mathematically estimate the present value of those checks allowing for inflation and other factors. It is a bit like a home mortgage in that the cash price for the house is one figure and the monthly mortgage over many years adds up to a much higher number. Life expectancy is plugged into the math calculations to help compute the cash or present value of your biweekly checks. The longer you are figured to live the higher the cash value. The table now in use has not been updated in years. I took a quick look at the new proposed table. In one example the table changes the expectancy from 23.1 to 27 for a 58 year old. The other proposed rules concern surveys of claimants and insurance IME matters.

Friday, April 30, 2010

Colorado Labor Department on Twitter

Colorado presses on into the 21st Century! They twitter...or is it tweat? In any event these are short comments which you can access or have sent to you. The subjects vary a great deal but can include workers compensation, unemployment or other areas within the purview of the Colorado Department of Labor. My view is more is better then less...I recall the days when obtaining information was not so easy. Now we can do our legal research online. In the old days legal research was very time consuming and meant handling many big law books. You then copied pages by taking the book to the copier and page by page making a copy of a case. Now I can be on a laptop and directing a wireless printer to copy the case. With the development of the computer age we have seen an enormous increase in knowledge and efficiency even if at times we are all frustrated by technology. Just some 30 years ago we were in its infancy. In any event Colorado is active on the internet. It is making available many resources for all of us.

Tuesday, April 20, 2010

ICAP says no wage adjustment in Whalen case

In Whalen the claimant appealed a decision by the hearing judge not to make any adjustment in the wage calculations when the claimant lost his employer health coverage and went on medicaid. Normally when you have health coverage through your employer then the cost of obtaining similar coverage is added into the wage calculations. This often results in higher temporary and permanent benefits. In a sense being provided health coverage by your employer is a wage benefit so losing it should mean an adjustment must be made. But in this case ICAP (the Industrial Claim Appeals Panel) decided the appeal against the claimant. ICAP reviewed the law and decided that medicaid was an equivalent insurance and since it was at no cost to the claimant then nothing gets added into the wage calculations. There was a dissent so perhaps this case will be appealed to a higher court. ICAP did reason that since medicare was an equivalent health insurance (based on an older case) then medicaid was also. The problem for me is that medicaid is provided at no cost to the poor. So a claimant with an employer health insurance who loses it and then cannot afford anything turns to medicaid. He may be on medicaid for only a short period yet this case says the fact it is free means no added benefit for the loss of the employer health insurance. His inability to purchase health coverage is then used against him. The statute on wages is at 8-40-201(19). In 2006 the Colorado Supreme Court decided in the Ray case that you add the cost to purchase health coverage to the wage figures and if the claimant cannot or does not actually purchase it then it is still added. Medicaid is a non-purchase matter and it would be interesting to see what a higher court would decide.
Pending legislation also may change this. SB 10-187.

Monday, April 12, 2010

Humphrey...a case on what is a statutory employer

On April 1, 2010 the Colorado Court of Appeals decided the Humphrey case. It addressed the question of what is a statutory employer. An important purpose of a statutory employer is to impose responsibility often on the general contractor when a worker for a subcontractor is injured but that subcontractor has no workers compensation insurance. By statute the coverage is then to go through the general contractors insurance because it is deemed by statute the employer. But another impact of this is to prevent any further claims against the general contractor outside of workers compensation. So when the subcontactor does have workers comp and the employee does receive benefits but thinks there was negligence by the general and he tries to sue in a civil proceeding the general can assert it was a statutory employer and can't be sued even if it was negligent. In Humphrey a delivery person for Phil's burritos was hurt while in Whole Foods delivering and stocking Phil's burritos. He received workers compensation through Phil but then sued Whole Foods asserting they were negligent. Whole Foods said it was a statutory employer and can't be sued given he had workers compensation coverage. The court agreed. In a basic sense it is important to be aware that workers compensation law is set up to prevent an injured worker from suing his employer and yet also receiving workers compensation coverage. It is often considered to be an exclusive remedy. Clearly what is a statutory employer can turn on the facts. In Humphrey the court felt the delivery person was stocking and removing outdated burritos from Whole Foods shelves and active enough such that Whole Foods was a statutory employer. In any event it makes for interesting reading.

Sunday, April 11, 2010

Work Injury Statistics in the USA

I have not yet found any statistics for last year but for prior years there are statistics on work injuries available at the national level. You can check it out at this link. I am not sure why Colorado only reports on fatal injuries to the US Bureau of Labor Statistics but the overall statistics show that for 2008 there were work injuries in 3.9% of the working population. This has been trending down over the last several years. Of those injuries about one-third or so result in time lost from work. Are these statistics accurate? I suspect it is much like auto accidents...only some are reported. Colorado has its last reported year as 2005 and is based on the actual filings of claims. In 2005 there were some 29000 lost time claims in Colorado. Does the poor economy affect anything? Probably so since the unemployed never have work injuries.

Tuesday, March 30, 2010

No Deal for Pinnacol This Year

The Denver Post is reporting that there will be no deal for Pinnacol this year. I've posted on Pinnacol numerous times here and more recently Pinnacol was trying to put together a deal for greater autonomy from state control. Pinnacol was originally set up by the state to help Colorado businesses obtain decent workers compensation coverage. Over the years it has worked itself into a major force in the workers compensation market. It handles the biggest share of work injury claims in this state. Given its size and revenues the state sought to obtain income to help with the state budget and also had increased interest in Pinnacol. In any event Pinnacol and the state ended any effort this year to work something out. Pinnacol wanted to pay for greater autonomy and that is out for now. I expect more on this next year. The story does not impact claimants except that some legislators have been unhappy with what they perceive is Pinnacol's power and unfair treatment of claimants. It can lead to law changes that benefit all claimants.
Update: View a more detailed story on this here.

Monday, March 29, 2010

Average Weekly Wage Desk Aid

The Division of Workers Compensation has what it calls a desk aid to help compute a claimant's average weekly wage. You can view it here. The subject of average weekly wage is an ongoing matter in Colorado. Even now the Supreme Court is to review a case soon (soon means this year).
The importance of the issue cannot be disregarded. Your wage calculations can play a very big role in your compensation benefits. A claimant wants it to be as high as possible and Respondents want it to be as low as possible. The reason is that it can increase your temporary and permanent benefits by a significant amount. As an example let us say you are making $10 an hour and get injured on the job. Does that mean the average wage is $400 for a 40 hour week? Not necessarily. Overtime does count. Having a second job may also count. Getting tips can also be counted (if timely reported to the IRS). Even health benefits from your job may be counted in many circumstances. The Desk Aid for wage calculations is actually more of a guide because a Judge has a great deal of discretion in calculating your average weekly wage. Do not blindly accept the figure provided to you as it may not be the only way to calculate benefits. Many insurers just take the last quarter's earnings (13 weeks) prior to the work injury and this may be way off. A judge may decide there is a different way to calculate it. Back to the example...if the $10 an hour employee worked overtime, or had tips or a second job or health coverage or even if there is another reasonable factor to consider the wage can go up. Even a figure just a few dollars higher can mean thousands more in temporary and permanent benefits. Always do your own calculations and your attorney should review the calculations considering the current caselaw and statutory law. This issue is a subject that is very current and often controversial so do pay attention to it. Look at my last post of March 20, 2010 where it is brought up in a proposed piece of legislation. See also this post where the wage calculation approach is to be reviewed by the Supreme Court.

Saturday, March 20, 2010

New Proposed Bill SB 10-187 Has Many Changes

A very new proposed bill, Senate Bill 10-187, has many changes of significance for Colorado. Here are some of the important proposed changes:

1. It wants to provide the claimant with the costs (not attorney fees) of obtaining medical maintenance benefits recommended by the authorized physician if they are unpaid and contested but the claimant gets them ordered or Respondents agree to pay within 20 days of the hearing. I assume this is to try to reimburse the claimant if he or she must go to a hearing and expert testimony costs are necessary.
2. It clarifies what is to be the average weekly wage calculation problem raised by a recent case (Avalanche). It proposes to use the date of injury or whatever the judge in his discretion deems fair (not to use two dates such as date of injury and date of disablement as appears in the Avalanche court case).
3. There is to be no Social Security offset on permanent partial benefits. Such an offset would often be so onerous that partial benefits might go to zero so this prevents that should it become law. For those not aware the law reduces your workers comp benefits by one half of your Social Security benefits to prevent what some say would be double benefits. It is the law and this proposal tries to eliminate the problem of the SS offset applying to partial disability cases.
4. Another proposal is that should an employee reject a modified job offer that it not be considered his responsibility (such that temporary benefits may end) if it is a reasonable decision or if the job offer is over 50 miles away. Employers at times have tried to stop temporary benefits by unreasonable job offers that are not very nice or accomodating. In other words this proposal lets the claimant explain to a judge why he cannot take the job and perhaps avoid stopping his temporary benefits.
5. Annually requires an adjustment in the caps (currently top dollar for all but permanent total benefits are $75000/$150000 combining temporary and permanent partial benefits).
6. Proposes that a claimant can get a lump sum of permanent partial benefits but not be required to waive a claim for permanent total benefits.
I think you can see that this proposed bill has many provisions so we'll see if it becomes law. By and large it is reasonable in its approach at least from the claimant's point of view. It is not possible to review this in more detail in this blog post but those interested may read it and follow it as it moves through the legislative process.

Friday, March 19, 2010

Continuing Legal Education WC Webcast

Attended a seminar on Colorado Workers Compensation today. For the first time I did so by what is called a webcast. The weather in Denver was projected as snowy so my plan to attend in person became a problem needing a solution. The solution was something called a webcast. It was televised over the web for those who signed up. The materials were sent to my email and from there I could open it up and watch the seminar. This was an all day affair although given the weather they did break a few minutes early. Usually these seminars pack a great deal of material into the day. That meant reviewing many cases, a discussion on the Medical Treatment Guidelines, ethics, rules, recent important legal points and lastly a presentation by two doctors on what used to be called RSD and is now abbreviated as CRPS. You can view more about CRPS by reading the material on it in the treatment guidelines noted above. Webcasts like this save time and today let me devote the time without concern for the weather.

Tuesday, March 09, 2010

Pinnacol Worth $374,000,000?

The Denver Post is indicating that Pinnacol Assurance is worth $374,000,000. This follows last months effort by Pinnacol to pay $200,000,000 (some cash some over time)to the state of Colorado for greater autonomy. Pinnacol is the largest workers comp insurer in the state and is a hybrid of public-private insurance having been created by the state and yet is now seeking,in my opinion, to be as close to a private company as it can get. In tough times when the state budget is having its own problems Pinnacol is making the state think about getting some cash from it to ease the state's money woes. This seems to be an ongoing story that just keeps going so will the state try to cash out of Pinnacol or structure a cash settlement with it? Time will tell but I do know that any cash figure that is paid out over time is not valued by totaling the sum of the payments. When you buy a house and pay for it over time that is not the present value of the house if you had cash in hand.

Thursday, March 04, 2010

Proposed SB 10-163

This recently submitted and proposed bill just may pass. It seeks to spruce up certain prior laws of 2009 and have new or old cases have the same procedural laws at least in certain areas. SB 10-163 as currently proposed can be read here. It contains a number of significant matters. For example if the insurer/employer seeks to withdraw an admission and totally contest the claim the proposed law makes it their burden no matter how old the case. In the old days when they did this the Judge would turn to the claimant and say it is your burden so prove your case even though it was admitted and benefits paid for many months. Imagine going to seek an increase in your benefits and being told...well we changed our mind so now you must prove your claim is even valid or compensable. That scary situation was changed in 2009 but the proposed law now applies even to very old cases. Another proposal is to have the law regarding audio recordings by insurer IME's also apply to all cases not just the more recent cases. So if you have an older case but must go to an insurer independent medical exam (no such thing exists in my opinion when one party handpicks the doctor) that doctor may have to comply with the law mandating audio recordings. A couple of other wrinkles seem interesting to me. They require the mortality tables be adjusted yearly or the fed table be used. Mortality is important as the longer your life expectancy the more you seek in a settlement in many cases. Also the proposal seeks to end the game of sending someone a fax or email but using regular mail to notify the other side. It makes such communications more uniform in delivery. It is my belief this proposed bill is broadly supported so it may pass.
UPDATE 3/19/10 : This bill passed and is headed to the Governor for his signature.

Tuesday, March 02, 2010

Appealing in Workers Compensation

In Colorado when a workers comp dispute has not been resolved one of the parties or both of them may seek to proceed on the disputed issues to a hearing. Should that happen an Administrative Law Judge (ALJ) will likely issue an Order deciding the disputed issue or issues. So if the decision goes against the claimant or in favor of the claimant it does not mean the matter has been resolved. One side or sometimes both sides have a right to appeal. The next stage is ICAP (Industrial Claim Appeals Panel) when an appeal of the decision is sought. From there you can appeal even further to the Court of Appeals and perhaps even to the Colorado Supreme Court. You can read some information on this process by clicking here. In this process there may be good news and bad news. You can win at the hearing and lose at the appeal or even lose at ICAP but then win at the Court of Appeals. Even if it is all good news and you are winning and winning through this process the bad news is that it all takes time. It is not good to be owed money but payment is delayed for many months during an appeal. Let me give an example...the insurer admits you are permanently partially disabled and even begins paying those benefits but the claimant says he is permanently and totally disabled. This dispute may go to a hearing and then an appeal but does the claimant continue to get benefit checks during this process? Not always. The other side may pay but only as much as it admitted for even though it lost at the hearing. It is allowed to appeal and to contend the hearing judge was wrong. This entire process can take over a year or even longer and while statistics tell us the hearing judge is more often affirmed then reversed the delays can be financially tough to handle. Of course there are times the claimant loses and after appeals the judge is reversed. This might mean a lot of back due compensation is due a claimant. Nothing simple or quick about appeals but at times they are necessary to resolve some cases.

Saturday, February 20, 2010

The ICAP Case of the Dirty Money

It seems that a claimant was picking up trash when he saw a $5 dollar bill in the trash. In the act of getting it he scrapped his hand on a Yucca plant. The skin was not broken but it became infected. The Respondents disputed the claim by bringing in a doctor who questioned the infection because the skin was not broken. They also alleged the act of picking up the $5 was a personal deviation and was not within the course and scope of his employment so it's not a work injury at all. In other words he was to pick up trash not cash. The case did not get into what is trash or is dirty money really trash or if he didn't pick it up isn't it then litter and on and on. The hearing Judge determined it was a work injury and also used a doctor for the claimant to determine the skin need not be broken for infection to get in at the spot of the scrape. The Industrial Claim Appeals Panel also known as ICAP affirmed the hearing judge. Of course we never get the answer to the question...can cash be trash?

Wednesday, February 17, 2010

First Colorado Workers Comp Educational Conference

Just announced by the Director of the Division of Workers Compensation is the first educational conference in what may likely become an annual event. Aside from educational information on the law, rules and the like there will be workshops and an Exhibit Hall so that all manner of professionals and more may interact and learn from each other. This event is set for September 16-17th, 2010 and may be well attended. I know I am interested in it so will try to attend and gain insight although it would be nice to obtain some continuing education credits. You can view the announcement here.

Tuesday, February 16, 2010

Pinnacol in the News Again

In the Denver Post Pinnacol is again in the news for making what is said to be a $200 million dollar offer to Colorado. It is said they want a number of things but in return would pay the state $75 million one year, $75 million the next year and then $50 million over 30 years. In return it wants certain concessions and to have some of the currently pending legislative efforts go away. Although the details remain to be worked out and there is much criticism of Pinnacol the state is in a financial bind so I am sure that negotiations will continue. What if anything that will be worked out remains to be seen. Pinnacol Assurance handles a majority of the work injury claims in Colorado and while I realize Colorado like much of the country is financially strapped I do think any deal should not harm the best interests of injured workers. Time will tell how this all plays out.
UPDATE...FEB. 23, 2010...Senate President pans the idea for now but we shall see as it may depend on further negotiations or how bad off the state budget may be.

Monday, February 08, 2010

Impairment Rating Tips February 2010

Colorado workers compensation claimants who reach or seem to have reached MMI (maximum medical improvement) are often rated by an authorized treating physician or if requested by another doctor in an Independent Medical Examination. The Division has just issued its new Impairment Rating Tips. These are recommendations primarily for the use of the rating physicians but they are useful to others. The tips are 7 pages so quite a bit of ground is covered. One tip concerns the use of what is called contralateral measurements. This tip seems to allow a doctor to measure the uninjured side and compare it with the injured side. My view is that this seems to disregard the AMA guides for Colorado which set forth how to rate impairment. By statute (see CRS 8-42-107(8)) the Guides instructions seem to be required. Setting them aside for another way to calculate in my view conflicts with the law but the contralateral tip is there to read. These new Tips are an interesting read and I'd suggest spending a few minutes to look them over. While these are not legally mandatory since they are written primarily for physicians we may see them referred to and followed by them.

Tuesday, February 02, 2010

Pinnacol's Position on Pending Bills

Here is a link to Pinnacol's viewpoint on the currently proposed bills at the Colorado legislative level. They have expressed disapproval of the proposed bill to limit surveillance by saying an investigation is not just to stop fraud suggesting the bill is too restrictive. However my experience is that surveillance is sought to try show the claimant is exaggerating. Some investigators will follow claimants almost everywhere. They follow when you enter the supermarket, or pump your own gas, or go for walks or trim your weeds. Then they allege you can work or are not that disabled because you are seen as functional in the video. Hours of surveillance are edited down to minutes which fail to disclose all the poorly functional moments. Doctors and Judges may be faced with a tough problem when determining what is the truth. Some claimants have told me that they had taken an extra pain pill or took hours to do the task or then had to lay down but none of that is on video. But the video suggests they were doing fine. But the biggest problem I have with surveillance is the level of stalking it implies. Big Brother is watching you! Also Pinnacol is opposing the bill on conflicts of interest by claiming this is already disclosed but many would disagree with that. In any event Pinnacol does set forth its viewpoint on all these proposed bills.

Thursday, January 28, 2010

Three Proposed Colorado Bills

In 2010 we will see several bills that are introduced which would impact Colorado Workers Compensation if passed. Three that have already been submitted are interesting. The first concerns putting restrictions on surveillance. Many claimants are followed and video is taken as part of an insurers investigation. I remember once walking into an opposing attorneys office and seeing mounds of videotapes. Anyone with a workers comp claim should expect surveillance especially when they go shopping. In any event read this proposed bill on surveillance here. Another proposed bill concerns increasing penalty claims from $500 to as much as $1000 a day. Read this proposed bill on penalties here. Finally another proposed bill seeks to address what it considers conflicts of interest with certain medical doctors. I would assume this is effort to prevent too cozy relationships between some doctors and Respondents. Read this proposed bill here.

Wednesday, January 20, 2010

Privatizing Pinnacol?

Colorado given its budget shortfall is now looking at privatizing Pinnacol Assurance. I've written about Pinnacol before but this is a new twist. Originally Pinnacol was set up by the state to make it easier for employers to obtain workers comp coverage. This was especially true of employers in higher risk areas such as construction or truck driving. The state believed it could set it up to keep costs down and for the most part that is what happened. Many private insurers will naturally want to avoid some fields or have much higher rates. Pinnacol did seem to help and more then 50% of all workers comp insurance is now through Pinnacol. Time moves on and perhaps privatizing it can mean help with the state budget and let Pinnacol be truly independent which it has said it wants. I do wonder how this will all play out but the future of Pinnacol makes for an interesting story.

Sunday, January 17, 2010

New Website for Division of Workers Compensation

Colorado redesigned the website for the Division of Workers Compensation and posted it online. It certainly has a cleaner appearance and I suspect it has all that it had before. For me it will take a bit of getting used to since I was comfortable with the old website. What does happen when you give it a cleaner appearance is that it can take an extra click to find some pages. I did like the old website but it was cluttered with details. For a guy who prefers details I took to it but can see the reason to simplify it.

Friday, January 08, 2010

New Case- Respondents Cannot Pick and Choose

In this recent case just decided by the Colorado Court of Appeals that we'll call Paint Connection Plus the Respondents appealed the imposition of penalties. What happened is that the claimant's authorized or rating physician noted two injuries. For the shoulder where the claimant had two surgeries he said the claimant was at MMI (maximum medical improvement) with a rating for permanent impairment. However for the cervical area he said the claimant was not at MMI. Respondents alleged that all along they only admitted the shoulder was a work injury so they filed a Final Admission on the rating for the shoulder and denied for the cervical area. The claimant sought penalties and to strike the FAL (Final Admission of Liability). Respondents lost and appealed. At the Court of Appeals the decision was affirmed against the Respondents Paint Connection Plus and its insurer. The court noted that MMI is not divisible and the Final Admisssion was improper. There is no partial MMI and Respondents had other ways to proceed when they questioned the cervical injury. Also the FAL did not attach the worksheets used by the doctor in his shoulder rating and this was a separate ground to strike the FAL. The court ruled there can be no attachment of incomplete reports to a FAL. On penalties it is up to the judge and here they were upheld as Respondents were unreasonable in their actions.

Thursday, January 07, 2010

Settlements use Specific Forms but there are twists

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