Brown Bag for August 2016

As we have previously indicated the Brown Bag seminar has been held once a month and it is designed to review new cases. Those cases may be court cases or appeals from the original workers comp hearing which goes to the Industrial Claim Appeals Panel (ICAP). In August 2016 we had another review. The August case decisions can be read and are available for all interested people. Additionally the

seminar lecturer has a video where you can see his own review of each case. When you are seeking any of this material including the video you can access it here. In this latest month I read several interesting cases but I point out two in this post. Hutchison is an ICAP case which is a very unfortunate situation. The claimant was only able to cover one-third of his medical expenses for a surgery. He had pre-existing causal factors such that only one-third of his work aggravation came from work activities. My view is that his need for surgery came from the aggravation from his work activities so it should have been fully covered but the case reminds us that apportionment can occur in workers compensation. Read the case for the analysis of ICAP. The other case is the Hoff case which was a court of appeals decision. You can read the case and see that the Colorado Supreme Court reversed the earlier decision by the Court of Appeals. The facts relate to a cancelled workers comp insurance policy so it is not a common circumstance but it does let us know that the appeal of a workers comp decision at hearing can sometimes reach the Supreme Court.

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.

Nov. 13th One More Case...Montoya

In my last post I noted two cases decided on November 13th by the Colorado Court of Appeals. Actually one more case decision was issued. In Montoya, the authorized treating physician rated the claimant at 19% impaired. The insurer decided to dispute the rating and started up the process to seek a Division IME. That is the only way either side can dispute the rating so provided. Then the same doctor altered his opinion to reduce it because of a prior injury. The number went down to 15%. Of course now the insurer decided it could accept the rating so it cancelled the Division IME and filed a Final Admission in the case to close it but accept the amended rating. The claimant said the insurer could not do that but the court said the insurer could just that. The claimants reasoning was that the insurer was bound to go forward with the Division IME or be bound by the original rating. The court however had no problem with the insurer accepting the amended rating. While I understand the decision you have to ask what if the claimant had received a low rating and sought a DIME but then the doctor increased the rating. Could the claimant cancel the DIME and count on the insurer filing something to respond to that higher rating? Anyway read the Montoya case here.

WC Seminar on Friday October 17, 2008

There was another gathering of numerous attorneys in the workers comp field on Friday in Denver. The entire day was devoted to updates and issues or current interest to all of us in this area. As nearly always these seminars are well attended and packed with information. Recent decided cases are reviewed. We are provided with a heads up on coming changes. For example, it's been proposed there be standardized forms for settlement agreements. That is likely coming. Also there have been significant changes in the apportionment area. That is where reductions in permanent benefits may occur when you have had prior injuries or diseases. The legislature tightened up in this area to try limit such apportionments. I suspect some litigation will continue in this area since most law changes are subject to intrepretation by the courts. At the seminar there was a lively debate on how to analyze this new law but it may well take a few years to fully define how to apply it. However the law generally will help claimants resist apportionment in many cases. As a claimants lawyer I shall assume there is to be no apportionment of permanent total or permanent partial benefits unless it fits into one of these exceptions which are rather technical:
1. Permanent total disability claims where the last injury is an occupational disease and there is a dual non-industrial component to the total disability that is not genetic. In that case it remains a question of fact for a hearing Judge to decide and vocational/medical evidence will almost always be needed. An example here is a breathing problem from both saw dust and smoking that results in total disability.
2. Permanent partial apportionment may occur if you've had a previous rating and award/settlement of a workers comp case involving the same body part. Example, you had a low back rating and award at a specific disc level which is re-injured at a later job.
3. Permanent partial apportionment may also occur for a prior non-work related impairment to the same body part provided it was identified, treated and remains independently disabling. This will not be easy for insurers to prove but will be a case by case issue. My view is that the word "disability" is not the same as impairment. In those cases where the claimant returned to work and remained fully functional I simply do not see a basis to apportion.

2008 Amendments to workers compensation

The Colorado Division of Workers Compensation has posted on the latest changes made to the statutes on workers compensation. You can read them right here. One change made is to prevent insurers from arguing that they only have to pay a portion of temporary and medical benefits due to prior work injuries. Such an argument could cripple the rights of injured workers when they sustain further injury. Trying to say they only owe half your medical bills or half your temporary benefits because you have had prior work injuries is now gone. Imagine being hurt on the job and now needing back surgery but the insurer says they will only pay a portion of the cost because you had prior back injuries. Insurers did not feel they should be responsible for all the benefits to be paid out when they only covered the last injury. The problem is this argument would fail to realize the last injury really was causing all the need for benefits. These amendments all became effective on July 1, 2008.

Apportionment SB08-241 New Law

Effective for all injuries happening after July 1, 2008 a recent law addresses the subject of apportionment. This is where the claimant has a prior impairment and then sustains further injury. The issue caused much litigation so hopefully the new statute will clarify matters. There was one case in Colorado where the apportionment applied to reducing even medical benefits. Imagine re-injuring yourself at a job and then someone saying we'll only pay for half of your medical care due to a prior work injury. Anyway that is gone now. Claimants receive temporary and medical benefits in full even where it is a re-injury or aggravation. But also apportionment still can occur for any permanent impairment if it existed at the time of the latest injury. At the Division of Workers Compensation website they are also working on new rules to implement the new law. For a general overview check it out here.

Update on Apportionment Case

Back on July 27, 2007 I reported on a case where the claimant's rating of permanent impairment was apportioned (reduced) because of a prior work injury. The doctor performing a Division Independent Medical Examination did in fact reduce the rating because of a prior work injury which he also rated in his calculations. The Court of Appeals decided that the apportionment was proper and the claimant sought to appeal it to the Colorado Supreme Court. Why? Apportionment means less compensation is due the claimant on the last injury. Today the court rejected the appeal by denying certiorari to look at it more thoroughly. The Supreme Court does not have to review every case brought before it. It can decide it is not reviewable. That is what the court did in this case. The decision by the Court of Appeals stands as the law. I must admit that the lower court did make it clear that the doctor considered the pre-existing condition as "active" when the last injury occurred. So the case does mean that apportionment is proper if the old impairment was still "active" when someone is hurt again. The only real surprise in the case was that the older impairment was never rated , there were no restrictions and perhaps no ongoing symptoms. Still the DIME doctor has to use his own independent judgement. What I conclude from this is to really get the evidence lined up if you do not like apportionment. It is then up to the hearing judge to weigh the evidence.

New Court Case on Apportionment

In Colorado apportionment relates to reducing a permanent impairment calculation or reducing benefits because of previous impairment(s). The law has changed by caselaw and statute over the years. The issue remains a complicated one. In this case the claimant had multiple back problems but returned to work until his latest injury. His treating doctor did not apportion but the DIME doctor did. A DIME is a Division Independent Medical Examination and has special value and weight in a workers comp case. Here the DIME doctor reduced the impairment rating because of what he considered some prior impairment that allowed apportionment. The claimant appealed and in this Court of Appeals case tried to assert this was wrong and there should be no apportionment. The case is troubling in that there was no actual previous impairment issued in his prior injuries. Also he was working without further treatment or symptoms from those prior injuries. The claimant argued how can it now count against him? Nonetheless the Court ruled that apportionment was proper and that it is more a matter of there is not enough evidence to overturn the DIME opinion to apportion. I do understand that this is a complex matter but I have to question the speculative nature of a DIME doctor finding prior impairment when there was no documented or objective evidence of prior impairment. In any event here is a link to the court decision just issued on July 26, 2007:

http://www.cobar.org/opinions/opinion.cfm?OpinionID=6246&CourtID=1