Proposed Rule Changes and Hearing

You can take a look at proposed rule changes at this page. It sets forth all recent rule changes. On January 29, 2013 there is to be a hearing on the proposed change to Rule 5-11 and 10. Any claimant or attorney should be aware that any rule changes may be significant. Aside from the workers compensation statutes and caselaw the rules are often critical in a case. There may be deadlines set forth in the rules or just standards that are to be utilized in a case. The Medical Treatment Guidelines are in the rules. Disputes, when they arise, may well be resolved with reference to the rules. In any event there will be a hearing on some new proposed changes as I have said so we move forward into 2013.

Changes in Some Treatment Guidelines

The Colorado Division of Workers Compensation has issued revised treatment guidelines effective February 2012 for Chronic Pain and Complex Regional Pain Syndrome/Regional Sympathetic Dystrophy. The latter we used to call RSD and it along with Chronic Pain have seemed to evolve over the years. They are complicated matters and physicians have often disagreed with each other on diagnosis and treatment. Those utilized by insurers tend to be conservative and seldom side with the claimant and those utilized by claimants tend to be liberal and generally side with the claimant. The purpose of the guidelines is to set forth the recommended methodology and these matters are among the most difficult to deal with. The guidelines provide clues as to what to do when handling such matters. Since many claimants have chronic pain and RSD can be extremely disabling the guidelines afford us some idea of treatment. They are long but interesting to read. A claimant may want to be informed so he or she can discuss matters with the treating physicians. While the internet may have good information you can start your research by reading any guidelines posted on the Division website.

Crowell Court Case notes Ongoing Penalties

The Colorado Court of Appeals issued a ruling today in a case I call Crowell. In this case a claimant had a workers comp injury to a breast implant. Later it required replacement because of gradual distortion and discomfort. The ATP (authorized treating physician) recommended the surgery and sent a request to the insurer. The insurer denied the surgery in essence considering it elective and not medically required. The insurer did promptly deny within the time required by Rule 16-9 and 16-10 but never really sought out a medical review as indicated by Rule 16-10(B). This then triggered a hearing request by the claimant. At hearing the judge concluded the respondents were responsible for the surgery and also imposed a $500 penalty for violating the rule by simply denying the preauthorization request for surgery without seeking a medical review. The issue before the court is whether the penalty part of the original decision should be for a one day violation or whether it was an ongoing violation subject to an continuing penalty. The court decided that some violations are ongoing in nature and that was the situation in this case so it remanded the matter back to decide what should be an ongoing or continuing penalty. It clearly ruled the penalty should be imposed on a daily basis since the violation could have been cured by obtaining a medical review as required by the rule. Many times physicians seek preauthorization because a surgery is expensive and they want to know they will be paid. The rule does indicate a failure to properly act within the rule can mean the surgery is authorized but what doctor will act here with a denial staring him in the face? Here the insurer was questioning and contesting the surgery and never sought out a medical review despite knowing it was going to a hearing to address the issue. To me thinking it was just a one day violation because thereafter the surgery was authorized is not much of a solution and could encourage denials in many cases. As noted in the rule unreasonable delay or denial as determined by the Director or a judge may subject you to penalties as happened here so a claimant is not limited to assuming a surgery is authorized; he or she can also pursue continuing penalties in some cases. The real failure and delay here was leaving the claimant and the doctor hanging by just denying the surgery with a letter without some medical review to back up the denial even when it is thought the surgery was elective.

Rule 16 and 18 Proposed Changes

The Division lets us know about proposed rule changes and this change concerns Rules 16 and 18. These are medical matters which are changed just about every year because medical costs keep rising. Rule 18 involves medical billing and Rule 16 utilization review. The proposed rules are posted and then adopted after comments are received and reviewed. Most of this is not very exciting information except for doctors and other providers although at times a claimant or claimant's attorney does have to look at the rules. What a doctor can charge for legal things like testimony, consultations, reports and the like are important to know. Such matters are often the responsibility of the claimant if he or she asks for any of them. So wanting to have the doctor come to the hearing is fine but it is also at a cost to the claimant. So while these rules seem complicated to read and perhaps not that important to claimants most of the time there are situations where a claimant needs to check on what the rule says. For example, in the past there has been litigation on the subject of what is called prior authorization. This area involves a provider getting advance approval for something and when approval is not forthcoming the doctor and perhaps the claimants attorney may wish to dispute it and even seek penalties. What is addressed in Rule 16 on the subject becomes quite important in such a situation.

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.

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.

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.

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.

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.

New Look for OAC website

It appears the Office of Administrative Courts has a new look. I have not had a chance to go through it all but it does seem more user friendly. The old site had the OAC Rules almost hidden. You had to know precisely where to look. This new look is very clean in appearance. It also has new material so check it out. Of course the staff at law offices often use the site so whether they will approve the new look remains to be seen. I can say it really was time for a change.

Prehearings and Settlement Conferences

In workers compensation cases prehearings and settlement conferences are incredibly important matters. Click here to visit the Division information page . Also click here. What is important about prehearings is that they often simplify and clarify situations. For example when the other side does not supply requested materials that are discoverable a claimant can file a Motion to Compel. A Prehearing Administrative Law Judge (PALJ) can issue an order requiring compliance. Should anyone fail to comply there can be severe sanctions. Settlement conferences are also valuable ways to resolve cases. After all many cases have disputes or issues which can require a hearing. In particular the extent of a claimants permanent disability is often disputed by the parties. If the dispute goes to a hearing then we must wait for the Order which can be appealed and sometimes all this can take many months. A settlement is a compromise between the parties to obtain closure with a certain outcome. Perhaps the insurer has admitted the claimant is permanently impaired but the amount is subject to more then one interpretation or even the claimant feels he is now permanently and totally disabled. Such matters are very contested and settlements afford the parties a chance to resolve matters and move on with their lives. However it does involve compromise from both sides. What is nice about settlement conferences is that a judge is involved as a mediator to try to work out a compromise. This judge never hears the case at a hearing but is there just to help the parties settle if possible. I've had cases where the settlement efforts did not succeed but usually with some effort they can work. It does require that you accept a compromise. If either side cannot do this to settle a case then we take the longer road of a hearing with likely appeals. Sometimes a settlement is not the way to go or the parties are too far apart in the negotiations so the best answer is to proceed with a hearing. The Rule on Prehearings and Settlement Conferences pertains to these proceedings. Also the statutes are here and here.

Workers Comp Hearings...Rules To Use

When we deal with workers compensation claims we may need to refer to two different sets of rules. Over at the Division of Workers Compensation (DOWC) they have rules for the processing of claims. Those rules can be accessed by clicking here. But also whenever we apply for a hearing or when the other side does there are other rules which also apply. These are provided by the Office of Administrative Courts (OAC). Those rules are cited as OACRP (Office of Administrative Courts Rule Procedure) and you can read them by clicking here. So when an agency says WCRP it is the Division saying workers compensation rule of procedure such and such. When another agency cites OACRP it refers to its rules. While sometimes confusing both sets of rules are available for anyone to read on the internet.