All About Claims newsletter August 2015

The Division has just published a new newsletter for August 2015. Usually these newsletters are very helpful in providing insight into the Division and giving you a heads up on various legal matters. This month the focus is on Prehearing conference Judge Craig Eley. For my cases and myself Judge Eley has been great. He does

more then decide matters. He educates many of us with his Brown Bag monthly lunch seminar on interesting recent cases. He does so often with great humor. He helps settle cases by being the go between in a settlement conference. His story is in the newsletter and it's enjoyable to read about this popular and capable judge. At present he is working part time at the Division. I for one certainly hope he continues on for many years to come. By the way in the story Judge Eley tells us about one hobby he has, that of beekeeping. By day he deals with attorneys but goes home to relax with 60000 venomous insects. Also the newsletter alerts us to other things. There is a link to the latest laws and it provides a link to a guide for adjusters. You never know what these newsletters contain but they are always an interesting and even light hearted read. August 2015 gives us another excellent article and information.

Issues to Think About for 2012

Around this time of the year I look back at the year and ahead too. Someone asked me about national issues in the field of workers comp but really not much has changed over the last year in Colorado. By that I do not mean that there were no changes or interesting developments but that it was a year of slow or minimal changes in the law. Still there were some developments. For the statutory developments just click here for an overview. For what is new at the Division of Workers Compensation you can click here. For caselaw we cover this in our blog. But as for the national or evolving issues in this field I guess the overriding issue is the economy. Still that is not unique to workers comp. What I have noticed over the years is there are increasingly technical or more precisely medical issues in workers comp. They usually trigger a battle of experts. What you then see are many cases that have become medical battlegrounds. The battling experts are the doctors. In such battles the advantage is often with the insurer. First, the treating doctor is usually selected by the insurer or the employer. Not exactly a good deal for the employee especially when there is a controversy. Next they cultivate those doctors who issue reports and testify to the benefit of the insurer position. It's expensive for a claimant to use his or her own doctors. Testimony expenses are billed at $450 an hour in most cases and includes commuting and wait time too. It is easy to spend over $2000 for one such expert. Advantage? Insurer (I have had insurance defense attorneys tell me they can pay $5000 or even $10000 for their experts). This can cripple a claimant's case. It strikes me that this is impairing a fair fight or what I would call access to the system. In civil matters there is a growing awareness of a need to simplify proceedings because when matters are complex or highly technical it works to the advantage of those with the money. In Colorado there is a interesting new seminar on this as relates to civil proceedings other then workers comp but it strikes me that improving access in workers comp is extremely important. By permitting many experts we skyrocket the costs of a hearing. It may be wise to limit this. Perhaps for a fair fight we should let the claimant have his expert as a covered benefit but that is not the current law. In my opinion any effort that speeds the process, makes it a fair fight and reduces something that is complicated to what the computer crowd would call user friendly is to be lauded. The workers compensation system was not intended to be unfriendly to injured workers. It was intended to be an efficient way to deal with work injuries and hopefully protect the worker while he recovers from his injury. In my view that is not happening and perhaps we need address this so we get back to the original purpose of the workers comp laws...to assist injured workers even if benefits are limited by statute. Otherwise the problem is shifted to all of us.

Pinnacol's Recap of 2010 Legislation

Pinnacol at its website has neatly organized the 2010 legislation which it then reviews from its perspective. Included are links to each bill so you can read the bill itself. Pinnacol handles more workers comp claims then any other insurer in the state of Colorado. It certainly intends to be active in watching future legislative efforts and to be a voice for its point of view. The legislators noted are perhaps the most interested in fostering change in the system. How the political alignment changes after the coming elections may also affect future Colorado legislation in 2011. Injured workers are not as big or organized as business and insurance interests but should pay attention and support those legislators interested in change from their point of view.

Update on the Status of Colorado Bills

Here is a link to a summary on the status of the various bills which may impact Colorado workers compensation matters. I'll comment in a later post on some of these but for the time being the link really does a very good job of giving us a heads up on the proposed bills some of which have passed and been signed by the governor. It appears for this year the legislative activity is just about over but it may take a several more days to see what is passed and signed by the governor.

Pinnacol's Position on Pending Bills

Here is a link to Pinnacol's viewpoint on the currently proposed bills at the Colorado legislative level. They have expressed disapproval of the proposed bill to limit surveillance by saying an investigation is not just to stop fraud suggesting the bill is too restrictive. However my experience is that surveillance is sought to try show the claimant is exaggerating. Some investigators will follow claimants almost everywhere. They follow when you enter the supermarket, or pump your own gas, or go for walks or trim your weeds. Then they allege you can work or are not that disabled because you are seen as functional in the video. Hours of surveillance are edited down to minutes which fail to disclose all the poorly functional moments. Doctors and Judges may be faced with a tough problem when determining what is the truth. Some claimants have told me that they had taken an extra pain pill or took hours to do the task or then had to lay down but none of that is on video. But the video suggests they were doing fine. But the biggest problem I have with surveillance is the level of stalking it implies. Big Brother is watching you! Also Pinnacol is opposing the bill on conflicts of interest by claiming this is already disclosed but many would disagree with that. In any event Pinnacol does set forth its viewpoint on all these proposed bills.

Three Proposed Colorado Bills

In 2010 we will see several bills that are introduced which would impact Colorado Workers Compensation if passed. Three that have already been submitted are interesting. The first concerns putting restrictions on surveillance. Many claimants are followed and video is taken as part of an insurers investigation. I remember once walking into an opposing attorneys office and seeing mounds of videotapes. Anyone with a workers comp claim should expect surveillance especially when they go shopping. In any event read this proposed bill on surveillance here. Another proposed bill concerns increasing penalty claims from $500 to as much as $1000 a day. Read this proposed bill on penalties here. Finally another proposed bill seeks to address what it considers conflicts of interest with certain medical doctors. I would assume this is effort to prevent too cozy relationships between some doctors and Respondents. Read this proposed bill here.

Burden of Proof on modification

I previously posted on some statutory changes but overlooked one which on a second look seems pretty significant. This is stated effective for claims filed on or after August 5, 2009. SB 09-168 amends Colorado Revised Statutes 8-43-201 on hearings to say that the party seeking to modify an admission or order has the burden of proof when it wants to modify it. The best example of this is that under current law the Respondents can come in at a hearing and assert compensability (that is question coverage even after they admitted the claim). Common sense says fine but it should be their burden to prove it after they admitted the original injury was on the job. Well under the current law it was always the claimants burden when the other side raised this issue. Having the burden could mean that in a close call situation the claimant months later could lose his entire case. You can bet Respondents knew this and used it to their advantage at times. Now the law is that it becomes a Respondent burden. A Judge can now be permitted to question the other side's reasons so claimants have a bit more law on their side now. Click here to see the law changes.

Pinnacol Assurance is it private or public?

In the last few days a big dispute arose over a proposal to take what might be considered excess funds from Pinnacol to help the state in the present economic downturn. Pinnacol handles a great many workers comp claims and that means more then any other insurer. In any event Pinnacol has attacked this as a "raid" and outrageous. At the Pinnacol website here is their view. A former Colorado governor chimed in for Pinnacol here. But the Pinnacol story is not quite that simple. Pinnacol has a long story in Colorado. When you look at its history you can see why there is a controversy over the right of the state to take from Pinnacol. Under several names Pinnacol has evolved over time but it originally was set up and funded by the state of Colorado. It was intended to protect workers and employers from other insurers. Truly private companies don't like high risk businesses (construction is one high risk business) so Colorado just sought to ensure that such businesses could obtain coverage at a fair price. Over time Pinnacol has become more private then public but to this day it has some of each. It has a separate statutory section and its board is appointed by the governor. Clearly over time it has evolved away from being a public agency but it is not truly private yet. I am not saying that the effort to get some of Pinnacol's fund is appropriate but arguments that imply it is immune from legislative control are inaccurate. Want to see the statute itself that says Pinnacol is a political subdivision of the state but not a state agency? Go to 8-45-101 from this link.

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.

Colorado General Assembly

Ever want to check on bills being passed or that are pending at the Colorado legislature? It is important if you have any interest in changing the law that you be active or at least educated about bills that seek to become new laws. Here is a site to visit that can tell you about current bills. For example plug into the site HB 1407 and see what comes up. This is a bill just recently filed to take it to insurance companies that unreasonably deny benefits. Will it pass? Well the insurance lobby spends much to prevent such bills from passing. They may advertise that it will be disastrous for Colorado. You have heard such ads before when they proclaim businesses and the taxpayer will be hurt and costs will rise if this bill or that bill passes etc. etc. etc. I just think we need to look at the bigger picture and do the right thing. I also know that public relations campaigns may or may not be truthful. It seems nowadays that negative campaigning is the way to go...not just in elections but with anything you want to stop in its tracks. Anyway here is the link to the Colorado General Assembly.

All 50 States link to agencies

Here is a link that seems to have info on each state's agencies involved with workers comp. I provide it to make a point that each state has its own way to handle work injuries. While the laws and procedures can seem the same they are in fact different from one state to another. Workers compensation is a creature of statute (created by each state legislature) and the rules, procedures and caselaw vary from one state to another.
http://www.comp.state.nc.us/ncic/pages/all50.htm