What Direction for Workers Compensation?

For the past several years workers compensation has been fairly stable in Colorado. I guess that is a good thing given that over the past 25 years or so I saw a downward spiral for workers benefits and claims. That is my opinion but I think anyone looking into it would conclude the same. Employers saw their cost of insurance go down which was no

surprise given the changes in workers compensation. Benefits went down when they were tied into impairment ratings. The battles seemed to be on medical issues and causality issues which did not address disability. As such I recall trying to move cases I had into the total disability area which generated higher settlements. But I always felt bad for the construction worker who loses his trade because of a hand or foot injury. I felt bad for not assessing overall disability when the focus became impairment. Well this problem was not limited to Colorado. Nationally there has often been efforts to restrict claims. In an article which was provided to me the story is extensively set forth. In The Demolition of Workers's Comp the author reviews this pattern of attack on workers benefits. It is a good read. I realize that business must control its costs in order to stay viable and employ its workers but I also see the injured worker as a cost of doing business which must be adequately protected. If not the cost is passed on to society and that means all of us. My view is that 100 years ago or so workers comp became important when we all realized that injured workers should not be an expense of society but should be an insurable expense for employers. So hopefully in the future direction for workers compensation we should all keep this in mind.

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.

From Another Blog: Edith There is No Sanity Clause

Here is a story from North Dakota posted on a great blog which shows the limited coverage in that state for a mental impairment. Colorado is somewhat better but does limit pure mental claims to a certain statutory standard. This does not apply to other claims such as brain injury or a mental impairment associated with a physical injury. But if you have mental stress alone that you allege came from work it really has to be unusual as defined by statute.

Testimony on Pinnacol at State Level

As this article from the Denver Post notes there has been testimony from injured workers on their treatment by Pinnacol Assurance, the state's largest workers compensation insurance carrier. Not all is negative but the key point could be that over the past several years Pinnacol had amassed quite a financial surplus. One view is that it did so by denials and reductions of benefits to those injured on the job. Of course another factor is the law changes that took place over the years. Many law changes tightened up on providing benefits. For example, despite the many denials of Social Security disability claims it can accept that you are totally disabled if based on your age, education, work experience/skills and restrictions you are not employable in a substantial gainful way. In Colorado it is tougher to establish permanent total disability. So law changes have played a role in reducing benefits over the past few years. Certainly this rewards all insurers not just Pinnacol. However Pinnacol is the largest so you can expect further proceedings on all this. The fact is insurers have many legal ways to keep benefits low for injured workers. Injured workers with hand, arm or leg injuries are often poorly paid permanent benefits, especially if they lose their trade/occupation. I can provide numerous examples of legal ways that are used to deny, delay and reduce benefits so hopefully all this will be reviewed as well.

Who Has A Gripe about Pinnacol Assurance?

A while ago Pinnacol Assurance was involved in a controversy about its extra revenues. The state of Colorado wanted some of that revenue to help with the budget shortfall. Pinnacol said it should be treated as a private entity so it opposed the effort. The state put off a confrontation but is now flexing its muscle to rein in Pinnacol. By the way Pinnacol is the largest insurer of workers compensation claims in Colorado. Its history is long but let me say it is neither fully private nor fully a public company. So now the legislators are hot on the tail of Pinnacol and Pinnacol is on the defense. A state audit is also underway. Clearly when Pinnacol seems to be thriving and the state is not then you can expect questions to be asked and more funds to go to the state and policyholders. Anyway now they are inviting those with cases or stories involving Pinnacol to come forth and tell a legislative committee all about Pinnacol. You can do this by email so for more on this click here. I am not sure that Pinnacol is the problem. What has happened in workers compensation is that benefits have been reduced and insurers have procedural and financial ways permitted by law to defend themselves and thereby increase profits. Example? If you hurt your arm but can still work in a low wage job you'll get at most a few thousand dollars for a permanent problem if the insurer has its way. So what if you lose your trade. Another example? When someone has a permanent problem with very real pain and medical needs many treating doctors designated by the employer will say you need 6 months or a year or two of medications. So permanent problem but temporary pain relief which allows them to limit future medical benefits. Another way is to close the case out as fast as you can so money is saved. All they are doing is using the law to their advantage. The old concept of liberally construing the law to favor claims was changed. It became a game where there is more to gain by contesting and limiting claims. Without a good lawyer the claimant often doesn't have a chance or may not even know he's getting less then what he might receive. But Senator Carroll is trying to get people to talk about Pinnacol and anyone can do so. Perhaps it will help change the workers comp system to level the playing field for all claimants.

Which do you prefer Colorado or NY workers comp?

The Hew York Times has a long article on the terrible state of comp in New York. It gave me the shivers to read. In Colorado much can be done to improve our state's workers comp system. I still believe that arm and leg injuries deserve more benefits especially when the person loses his trade or occupation. But there are parts of our system that have worked well especially the DIME or Division Independent Medical Exam process. No doubt there are many cases where things do not go well but overall it seems at least better then NY State. Anyway read about the horrible state of workers comp in NY here. Those of us in this field know that most of our judges do try to apply the law. They also know that many doctors are not just hired guns by the insurers or second rate. Those that are can often be overridden by the DIME process. Our system is not perfect and many times employees are treated like old newspapers but there are some safeguards and rules which can be used to equalize the case. At least with solid legal effort you can increase benefits but the NY article makes it seem like NY is out of control. I am not sure on that but the article is an interesting read.

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.

The Failure of Workers Compensation

Over at the website for the Center for Justice and Democracy they take on the current workers comp system. By and large they speak accurately in pointing out the flaws in the system. Here is a link to the summarized version of their criticism:
http://centerjd.org/MB_2007workerscomp.htm