Saturday, October 29, 2011

Colorado workers comp insurance rates to go up

The Denver Post is reporting that businesses can expect a rate increase on their workers compensation insurance coverage. This after a few years of declines. Why? The number of claims is not going up. The explanation appears to be in the continuous and unrelenting increase in medical costs. Here is the Colorado statement on all this. This rise in medical costs when the economy is not inflating remains ominous for all of us. The failure of society to address this is rather sad. We all talk about it but it takes a concerted effort and in our politically charged country we are less interested in problem solving and more in ideology. Wouldn't it be nice if they set up a task force to address such costs in a sensible way? I mean an across the board analytical review. If medications are a big factor find ways to lower that expense. If we need more nurses or practitioners find ways to increase the numbers with educational incentives. If caution leads to the running of multiple and usually unneeded tests find ways to prioritize those tests rather then run all of them at a time. If malpractice rates are too high find ways to make providers accountable without increasing those rates. I mean weed out the bad apples especially in workers compensation. Simplify the paperwork too! While I do like the medical treatment guidelines I saw recently what appears to be making it more complicated to obtain prior authorization. In workers compensation there are many disputes in what I see as primarily medical legal issues. When we go to a hearing and it seems to be a legal issue on compensability in reality many such cases involve medical causality. So some of these rising costs involve insurers hiring experts to question causality and treatment. As an example an attorney related to me that he had obtained a DIME opinion that the claimant is not at MMI. In the past this just led to more treatment and a reassessment. Overcoming a DIME historically has not been easy but the pattern is now to question everything. There are doctors out there that will nearly always assert an injury is not work related or that the DIME doctor made a mistake. A DIME would cost $675 but they spend $5000 or more fighting it. The point is not all the rising costs in workers compensation are based on purely medical matters. Some come from the insurer disputing matters. It also drags out the proceedings which I do not really see as helping the claimant needing treatment and it is costly. In any event businesses can expect higher workers comp premiums next year.

Friday, October 14, 2011

Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal. UPDATE: The Colorado Supreme Court affirmed this decision on January 27, 2014.

Chavez: Court Decision on Subrogation Rights

In the Chavez decision the Colorado Court of Appeals ruled against Pinnacol's efforts to obtain or share in a settlement made between the injured worker and a third party. Subrogation can give the workers comp insurer rights to obtain reimbursement from some other responsible party. Here the claimant was injured in an auto accident but received workers comp benefits. He then sought to pursue a tort claim on the accident against others. Pinnacol joined that case because it can assert its right to reimbursement should there be a big recovery. However in this case the employee settled what was called his non-economic damages such as pain and suffering. The settlement was set up not to prejudice Pinnacol's right to proceed but Pinnacol felt it was entitled to approve the settlement or at least that it was entitled to some portion of that settlement. The court ruled that the settlement was reasonable and did not affect Pinnacol's rights. As set up by the language in the settlement Pinnacol's ability to pursue its claims was not affected by all this so it was not entitled to any of the settlement. Here the non-economic damages that were settled involve matters never paid through workers comp by Pinnacol. Pain and suffering for example is not a workers comp benefit but Pinnacol felt it was wronged anyway. It lost in the original case and then in this appeal.

Thursday, October 06, 2011

RIP Curt Kriksciun

Former prehearing Administrative Law Judge and Industrial Claims Appeal Panel member Curt Kriksciun passed away on October 4, 2011. While I may not have always agreed with his views he was truly a gentleman. As a prehearing judge especially in handling settlement conferences he was usually seeking compromise whenever possible. To do so he would chat and provide comments from his experience. This usually would have a calming effect with my clients who were often stressed by the process. My impression is that he always sought to be neutral and objective...even if it was difficult. But by being friendly and relaxed in his approach he would lower the stress level. I am sure he had this effect with many people that had matters before him. He then became a decision maker or member of the panel reviewing cases appealed after the initial decision. He performed well in this last position and I daresay the quality of those decisions improved with his involvement.
Services will be Tuesday October 11th.