All About Claims newsletter with Legislative Advisory

In June the Division issued another newsletter and it is quite significant. The June newsletter contains quite a bit of information on the latest legislation concerning

workers compensation. It is very detailed and includes some changes in requesting expedited hearings and in requesting a change of physician. It lets you link to the form to be used for change of physician. Use of the form is now mandatory. You are encouraged to print out a copy of this newsletter and review it carefully. The newsletter also has a chart on the maximum rates and indicates there is a new settlement agreement form which you can link to see. So this newsletter is packed full of current information and you should review it in its entirety. I held off posting about this until now because some of this is just now becoming effective. As always the Division has issued these newsletters from time to time as a way to keep us all updated on workers comp developments.

Colorado Springs Hearing Offices Have Changed

I have noticed that the Colorado Springs hearing offices have changed to a new location. I no longer practice given I am retired but while checking the website I now see the change of location. The previous offices are not that far from the new location but I always felt the old location was a bit cramped. Finding a place to sit down with a claimant to review before a hearing was sometimes difficult. If there were several witnesses it became quite cumbersome. Hopefully the new location is more convenient and spacious. A number of years ago the workers comp hearings were held at the local courthouse. The courthouse needed that space to expand its services and the state then sought space elsewhere. I recall having hearings behind a library in a schoolroom. The last offices were an improvement but I suspect the new location is even better.

Recent ALJ Decisions

At the local level Colorado posts perhaps all of the decisions by its administrative judges. The decisions for May 2013 are posted here. I went through these decisions and you can too. What I noticed is that many of them concern either compensability (coverage) or medical issues. Claimants often lost at these hearings. My view is that the claimant in such matters will often need a medical expert or two to help with his or her case. Insurers have ready access to known doctors who tend to support the insurer side of things. In a tough case my experience has been that Respondents will spend thousands to win. Winning means the claimant loses...either he loses it all or he loses on an issue that is quite important like his need for surgery. These experts are very good at justifying their position and at knocking down the medical opinions of others more supportive of the claimant. Did you get hurt at work? Nah it was preexisting. Or it could not have happened with the claimants work activities. Need surgery...well not really. The other sides medical experts are clever and often sway the judge. A claimant may not have the ability to hire his own experts to fight back. If left to the existing medical reports issued by the treating doctors who are often selected by the insurer a claimant may not have a chance. My point is that to have a fair fight a claimant may need expert help. The system does not pay for that or even have a fund to assist claimants. Over the years I've seen this problem increase. In any event reading the decisions makes you aware of the problem. It can also make you aware of the doctors involved in workers compensation cases from treating doctors to experts. For insight I'd encourage you to read the cases. Common sense may tell you that work activities caused or aggravated your condition but the insurer may have evidence that threatens your case. It can come in the form of a doctor or two who are hired to dispute your claim. So be ready because at a hearing you should expect significant opposition.

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.

Unripe Issue Court of Appeals case

This week the Colorado Court of Appeals decided a case which assessed attorneys fees for bringing up an unripe issue. By statute 8-43-211 Colorado provides that when you file for a hearing on issues which are not ripe for adjudication then you shall be assessed the reasonable attorneys fees and costs of preparing for that hearing. In Youngs the claimant and the claimants attorney filed for a hearing on several issues but one was to reopen a case based upon fraud/mistake. It was determined that the issue to reopen was not ripe and eventually attorneys fees and costs amounting to over $23000 were assessed against the claimants attorney. Here other issues were ripe but the one unripe issue led to an assessment of attorneys fees. In the appeal many matters were raised including that the Colorado workers compensation system was unconstitutional but the reader is encouraged to read the case for themselves. This case may go further up the appellate steps but what is important is to be quite careful whenever an issue is endorsed because any party can be assessed attorney fees and costs.

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.

Social Security seeks to review the disability process

Over at the Wall Street Journal they are reporting that the Social Security Administration is obtaining an "independent" review of the disability hearing process. The article appears to emphasize that too many judges are approving cases at the hearing stage. It asserts that some judges approve 99% of claimants that have sought a hearing after a denial. Of course it also notes some judges approve very little like the judge who approves just 13% of the claims at the hearing stage. They indicate funds will run out by 2017 at the current rate but this statistic is open to dispute. Depending on your political persuasion Social Security is in such bad shape that we should phase it out or it is fine and with tweaks can last indefintely. I am closer to the latter then the former but that is a long story. I do know that judges have their own stats on granting/denying benefits. But concentrating on judges who grant benefits is not the right approach. Being concerned about too many favorable decisions but not those judges who deny excessively is too one sided. I am all for saving money but not at the expense of the truly disabled which I consider ghoulish. There should be some accountability for all judges. The article also points out that the federal courts seem to be overturning denials 51% of the time as if the federal judge is off base. My experience is just the reverse. Most federal judges who overturn a decision are quite right. Even the government attorneys often stipulate the SS judge made a mistake. SS judges do make mistakes and at times the denial of benefits seems off base. Implying the federal judge is interpreting the rules improperly is absurd. Most decisions are far better reasoned then the decision denying benefits. However to be fair many of these overturned decisions are just being sent back to the original SS judge for more workup on a remand. My experience with claimants is that the vast majority are truly disabled and unemployable so we should be focusing on speeding up the process (for time to a hearing click here)and quit trying to label Social Security as the problem. Instead we should be fixing it for all future generations.

Administrative Law Judge Orders for September 2011

I have indicated in the past that the Office of Administrative Courts will post just about all the orders issued in the state of Colorado following hearings in workers compensation cases. In September they posted the orders and it covers some 470 pages. I skimmed through all of them and many are quite interesting reads. A great many of them involve medical legal issues so they have opinions by numerous doctors. In one early case I counted 8 doctors. Often such cases involve causality questions pertaining to whether or not a claim is work related or questions regarding treatment. I should remind claimants to discuss all your complaints at every visit with the doctor. In my experience some of the doctors do not document as we would expect them to do. As such you can provide the doctor with your history in writing if need be. By history I mean a dated statement of your current problems which you bring to your doctor each visit. Always make a copy for your records. This can prevent any misunderstandings later on. In at least one of these cases it appears the claimant asserted he was telling and telling the doctor at every visit something which never was noted by the doctor. Of course the decision went against the claimant on that point. I have had clients take a written history into their doctor every time just to keep all the details accurate. A failure to complain can be assumed to mean an absence of pain or limitation. Anyway these cases tell us what sorts of issues are going to hearing in Colorado.

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.

New Court Case on Medical Benefits

The Colorado Court of Appeals issued a decision yesterday that concerns ongoing medical benefits. In the Hire Quest case we have a rather technical argument that is addressed by the court. It seems an example of how technical arguments get in workers compensation proceedings. In this case the parties went forward at a first hearing which addressed a safety rule violation, credits for paid temporary benefits and the permanent impairment based on a DIME (Division Independent Medical Examination). Before the hearing the issue of permanency became uncontested because the employer/insurer withdrew the opposition to the DIME doctors impairment rating. So the first hearing addressed permanency, temporary and safety rule violation issues but that judge said issues not expressly decided are reserved for future determination. Well claimant later went forward on the issue of ongoing medical treatment needed and the other side said he could not because he never raised the issue at the first hearing and it was waived. They also asserted that the judge reserving issues was not specific enough so that prior hearing closed out the matter. The court decided that the reservation was good enough to preserve the right to address medical benefits after the first hearing so they found in favor of the claimant. Common sense would tell you that medical benefits could be addressed later but the insurer tried to use a prior court decision to say the claimant was required to add the medical issues at the first hearing or else it was waived. This waiver argument is essentially saying address all issues at once or the insurer saves money by alleging too bad so sad you lose (waive) your potential right to further treatment. Even if the judge reserves matters it is not good enough unless it is a specific reservation of a medical issue according to the insurer's view of an early case they were citing. The court disagreed with that interpretation. My view is that workers comp should handle all treatment that is needed for a work injury and not made into a game of technicalities which passes the buck on treatment to others such as the taxpayers. In this case we did have the DIME doctor saying more treatment was needed and I am not sure why it was not made an issue but it could be that there was no dispute made by the insurer until later. To me you have to wonder if the insurer waived objecting to further treatment but anyway the claimant prevailed.

Retaliatory Discharge and Temporary Benefits

In a recent Industrial Claim Appeals Panel decision I'll call Gaines there was a retaliatory discharge of an injured worker. The worker was hurt and complaining about the employer not filing a report of injury or providing further medical help. As a result she was taken off the work schedule. Since she was not working and attributed it to the reprisal for her work injury she sought temporary benefits. The hearing judge denied her such benefits saying a reprisal is not a reason for temporary benefits. She appealed and the Panel agreed that the reprisal alone is not a proper statutory basis for temporary benefits but then remanded the case to the hearing judge to address whether her possible restrictions from the injury should entitle her to temporary benefits. Apparently this was not fully looked at by the hearing judge. There was evidence of restrictions but the judge did not adequately address that issue. The reasoning here appears to say that a claimant has to show both a medical problem and loss of wage due to an inability to work or restrictions which impair that ability. A reprisal alone is not enough. However such a reprisal may result in a separate civil claim for retaliatory discharge. The point being made is there is a distinction between a reprisal for having a claim and actual time and wage loss due to an injury. Let's say you fall out of your chair, complain it hurts even if temporary and want to file a claim. Your boss then just takes you off the schedule. So you are fully able to work but in reprisal they give you no hours. Under the Gaines case, as I read it, you'd receive no temporary benefits because you can work and really have no injury. It may be wrongful but your loss of pay is due to reprisal not to the injury. My preference is that this loss due to reprisal or retaliation be able to proceed in the workers comp case rather then in a separate civil case. The reason is that any separate civil case can take many months but the worker is receiving no income directly due to a work injury incident. But my preference is not the law. It takes disability not just reprisal to obtain temporary benefits though in Gaines the remand was to force the hearing judge to decide the disability issue.

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.

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.

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.

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.

October 2009 Hearing decisions

I am posting here the latest hearing decisions for October 2009 in workers compensation cases. These decisions were entered as Orders by an Administrative Law Judge (ALJ) at the local level. Many of them may be appealed further. The link is to a pdf document that is many pages long but it contains separate decisions that just all seem to run together. The judge issuing each decision is identified and often doctors too. These cases make fascinating reading and they are quite detailed. Once again they can give us a sense of the workers compensation process.

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.

Court of Appeals decides the Eller case today

This is a case where the claimant lost on compensability (coverage) after a hearing. She appealed but lost at the Court of Appeals level. Eller asserted that, while there was no admission of liability, the Respondents provided medical care and the authorized treating provider determined she was at MMI(maximum medical improvement) and also rated her with an impairment. She then said that this determination was never attacked by the Respondents so by statute (section 8-42-107.2(2)(b), C.R.S. 2008) they are bound by it. Her view was that it was required by statute that Respondents seek a DIME(Division Independent Medical Evaluation)so because they did not the doctors opinion was binding even on the Administrative Law Judge. This even should have included compensability or causality. The Court disagreed and affirmed the loss by claimant. Respondents contested the claim so they had a right to contest the question of compensability at the hearing which is a threshold issue not a medical opinion. Here the lower judge decided the claimant was not very credible and the specific injury was not caused at work. The claimant then argued that the way the case was handled deprived him of a right to seek a DIME which could have led to a presumption the DIME opinion addressed causality. This was shot down. The one point that is unclear to me is whether the authorized doctor addressed the mechanism of injury such that it could be said to be a binding finding or determination as noted in the statute. The Court said the statute should mean that the doctor addressing MMI or impairment is not a finding on the question whether the injury was caused at work. But even if you say the doctor cannot address whether it happened at work he may have addressed the way the claimant was injured. Here the impairment perhaps was attributed to falling out of a chair at work by her doctor who provided the rating. Seems to me that Respondents medical witness was not an eyewitness. Yet Respondent's doctor concluded the claimant's injury was not caused by falling out of a chair. Not sure why this opinion was allowed over the authorized doctor but the facts are not fully set forth on that point. However the case says that when Respondents contest your claim they can take it to a hearing and win even if the authorized doctor is on your side. The case is an interesting read so for more complete details and the Court's reasoning click here.

Here are 302 pages of workers comp local decisions

The Office of Administrative Courts holds local level decisions in various locations around the state. They are placing these decisions on the OAC website each month. So for the month of July you can peruse through 302 pages of decisions. Please be aware that these are local level decisions and many of them are appealed. Still you can get the flavor of the cases being heard each month by reviewing these decisions. Cases involving permanent total disability, job termination, medical benefits, partial impairment, efforts to overturn the DIME opinion and much more are set forth. The names of the parties are not going to be revealed but the names of doctors as well as the deciding administrative law judge are noted. The breakdown for most of these cases is to list the facts being found, the legal conclusions being made and lastly the order itself.

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.