Two new Prehearing Judges Coming in 2014

We have learned of two new prehearing judges that will be coming on board in early 2014. Barbara Henk will be active as of February 1, 2014 and Patricia Clisham as of March 1, 2014. They are both highly experienced and well respected in the workers compensation community. They have both

been judges at hearings and active at the OAC. Prehearing judges are quite important in the workers compensation system. They handle prehearings on various preliminary matters. They address motions when brought to them. They are also involved in settlement conferences. I recall many a conference where the claimant took the position he was totally and permanently disabled and the other side was certain he was employable. The attorneys can do a lot of talking but the input of the judge was often critical in moving the parties to a reasonable compromise. The judge might educate the claimant to the risks of a hearing and appeals but also educate the other side on the merits of the permanent total claim which could mean a very high monetary risk to the other side. Settlements are often smart resolutions of cases. Hearings may be necessary at times but most cases can be settled with solid effort by the parties and the aid of the prehearing judge at a settlement conference. The new judges should be helpful in this area. They bring a wealth of talent and wisdom from their experiences. So I can only say that they are good additions to the process.

Maximum Benefit Rates

The calculations for top dollar benefits can vary in Colorado depending on your date of injury and the allowable maximum rate on your date of work injury. Let's say you lose an arm or leg but are not totally disabled. What is the highest permanent benefit you can receive? For injuries after July 1, 2011 the max is $54,202.72 but if you were hurt before July 1, 2010 it might be only $53,067.04 or even less. Be aware this is strictly for the loss of an arm or leg without more. Always review with an attorney all the injuries you sustained at work but also your past medical history. At times a rather minor injury may nonetheless be significant enough to make you totally disabled. The rating or per cent of your medical impairment is not always the end of the story. Impairment is not the same as disability in many cases. In this area, more then anywhere, a workers comp attorney can be invaluable in analyzing the situation. Getting back to discussing the maximum rates, effective for injuries after July 1, 2011 the highest scar benefit can be as much as $8,792.00. Next, the most you can collect when you combine temporary and permanent benefits is $153,210.00 although this cap does not apply to those totally disabled. Be aware that these amounts are not the minimum you can collect so benefits can be less or even zero if your claim is not compensable(many claims are disputed). There are many factors that go into assessing impairment and disability but the caps do remain a top dollar limit on benefits in most cases. Those totally disabled or with a need for long term medical care may still have higher benefits. By way of example a few years ago I had a case where the claimant had a high rating but had collected all but a few thousand more before reaching the cap for combined temporary and permanent benefits. The case settled for much much more because of a concern he was totally disabled. However for those able to return to work the caps must be a consideration. Credit goes to Judge Eley for calculating the above figures for us.

RIP Curt Kriksciun

Former prehearing Administrative Law Judge and Industrial Claims Appeal Panel member Curt Kriksciun passed away on October 4, 2011. While I may not have always agreed with his views he was truly a gentleman. As a prehearing judge especially in handling settlement conferences he was usually seeking compromise whenever possible. To do so he would chat and provide comments from his experience. This usually would have a calming effect with my clients who were often stressed by the process. My impression is that he always sought to be neutral and objective...even if it was difficult. But by being friendly and relaxed in his approach he would lower the stress level. I am sure he had this effect with many people that had matters before him. He then became a decision maker or member of the panel reviewing cases appealed after the initial decision. He performed well in this last position and I daresay the quality of those decisions improved with his involvement.
Services will be Tuesday October 11th.

Pinnacol Withdraws Handling Cases for State

This article from the Pueblo Chieftain states that Pinnacol Assurance is withdrawing from being the adjustor or representative for the state of Colorado's workers comp cases. If you worked for the state and had a work injury Pinnacol would have handled the claim for the state. It charged for doing that and decided it no longer wanted to handle the claims. The state acted and replaced Pinnacol with another company, Broadspire. Some may be upset with Pinnacol since it was very closely associated with the state from its inception. The reason given...that state claims are hard to handle may or may not be so but Pinnacol may be setting up to break away from the state entirely too. I do know that in the past it was more difficult to settle when we had to go through an attorney who then went to Pinnacol who then had to go through the state agency/employer.

Settlement Documents

This link to the Division website lets you take a look at the standardized workers compensation settlement agreements. These documents are uniform so the language is the same for just about everybody. That said there are ways to make some changes or attach other documents that may be side deals between the parties. If you've been provided documents and want to see if they conform or where they differ check it out.

Settlements use Specific Forms but there are twists

In Colorado the parties in any settlement must use forms called USA's which stands for Uniform Settlement Agreements. The Division put some information on this in a recent posting you can click here. Colorado in doing so was attempting to make settlements easy to understand since they are all supposed to have standardized language. Sounds simple but there are some twists here. First, there is one form to use for the pro se or unrepresented claimant and another for the claimant represented by an attorney. Next, despite the effort to standardize things the parties often have side deals that are really part of any settlement. Those must be addressed somewhere. For example often the insurer and employer may require that the employee resign and waive such matters as discrimination or bad faith. Or, there is a need to address certain medical matters. Often these side deals are really requirements for a settlement but the Division does not approve the side deals even though we all know that the parties must have them. Whether attached or not these side deals are important enough that no one should simply sign them and assume anyone at the Division will review them. They are not reviewed at all as the Division is concerned with the work injury itself. So pay attention to everything you sign as you may be giving up something valuable or dealing with certain medical issues that are important.

H.R. 2641 May Help with WCMSA Problems

I have previously addressed WCMSA's or workers compensation medicare set asides. Essentially in this area there are very complex and bureaucratically driven rules. Medicare simply requires that some settlements in workers compensation cases be approved by them and set aside funds for use in treatment so that Medicare does not feel it is having to cover your workers compensation treatment. Now those cases where the injured worker returns to work appear not to be a problem but when someone is on medicare or could be soon on it sometimes they are requiring approval of a set aside amount. That means any such settlement must include Medicare (the agency is CMS or the Centers for Medicare Services) in its resolution of the case.

The problems that have come from this are significant. It delays a settlement by several months. The claimant and insurer may agree on everything but still must hold their breath that Medicare approves the deal. I attended a lunch yesterday where one attorney said he was stumped as Medicare was requiring more then the entire settlement be set aside to protect them. Yet the case was totally disputed on whether it arose from work activities. In other words the claimant could go to hearing and lose it all. Then he would go on Medicare and they'd have to pay 100% of the medical expenses. Still they were rejecting the compromise no matter how reasonable it was done. So a reasonable settlement could be shot down. But then do the parties have any recourse? Both sides want to settle and have negotiated a fair approach yet they are dead in the water forcing litigation which will hurt one side or the other. So in this area claimants and respondents are really on the same side. They seem to have no recourse if some bureaucrat decides without a hearing that the compromised amount is not the full amount needed to protect Medicare's interests. Sounds like a denial of due process doesn't it? Yet this is happening.

H.R. 2641 is a bill introduced in Congress to smooth out some of the problems. You can read about it here and here and here. You can follow its progress here. It takes all of us to try move this bill forward so consider doing something more then just reading about it. Support it and follow its progress. It does seem buried in all the major political things going on right now but when the disabled, the insurers and the attorneys are on the same side you have to say the Medicare policy should be made more reasonable and less bureaucratic. H.R 2641 seems like a step in the right direction if it can move forward.

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.

WCMSA'S

Whenever a claimant has a workers comp claim and also perhaps a right to Social Security disability/retirement/medicare then you have to consider offsets and something called an WCMSA. Offsets are required by statute if you are receiving Social Security disability or retirement benefits. Essentially the insurer has a right to a partial credit if you are receiving or should be receiving such benefits. In the real world this means you can receive a full SS check and a partially reduced WC check at least in Colorado. That information is set forth in the statutes on offsets. In addition a potential settlement may also have to consider a workers compensation medicare set aside (WCMSA). By federal law medicare may have a very big interest in your settlement. It does not want to be solely responsible for your future medical care through Medicare when some of it may be due to your work injury claim. It may mean that the parties have to consider Medicare's rights in a settlement and even set aside funds in a way that is approved by Medicare (the agency is CMS or the Centers for Medicare Services). Usually a review is made and drafted to submit to CMS and then made part of the settlement. Any MSA will almost always mean funds are set aside that can be used and accountable to medicare. If this is not done medicare may hold anyone involved with the claim responsible. A claimant does not want to hear that medicare is seeking reimbursement directly from you or your Social Security benefits. A judge recently told me they were seeking $70000 from one claimant! So what do you do? Well in this sample you can see how complicated it gets but the basics are simple to explain: show medicare what future care is to be attributed to the work injury and figure an amount to set aside. Then hope CMS approves it and doesn't change its mind.

Time Lines or How Fast Does It Go?

We always seem to get this question from most of our workers compensation clients. First, any time frame may still depend on the doctors. Only after you reach maximum medical improvement(MMI) and also obtain an impairment rating do we then try to guess on the time line. It is truly just an educated guess because so much depends on factors not within our control. The other side can take one day or 30 days to decide what to do. We then must review what they have done and determine if the doctors are correct. More often then not we decide to question what your authorized physician concluded on MMI/rating. This process can take several months and involves legal actions and another medical examination. Even then each side has to act again. The other side has to decide to accept or dispute matters and we also have to review and decide how to proceed. Should you not be at MMI then more treatment can take place and we then wait for that to conclude. The point is that it's like a chess game where one move you make means the other side has time to also make a move. So when we say it can take several months just when you think it's all coming to an end it is because of this back and forth legal/medical process. Many people are quite anxious to resolve matters but this process simply takes time. Having said all this I can indicate that once the treating doctor says you are at MMI (and that is really the case) it can easily take 6 months to either settle or go to the hearing in a typical case. I've had cases which settle faster but then I've had cases which took longer. From the very beginning of your case to the end can take just a few months or much much longer even without any appeal. A key point is that most of the time is devoted to your treatment and medical examinations.

Settlements New Rule 7-2

Effective February 1, 2009 all workers compensation settlements are to use a standardized document. This is set forth in Rule 7-2 noted here. This means that every settlement agreement will use the same language although there are differences depending on whether you are represented by an attorney or are representing yourself (called "pro se"). Also the Division has also provided a new Routing sheet which has to be provided as a cover sheet for the documents to be sent to a Judge for his or her signature and the issuance of an order. If you have an attorney he will take care of all this along with the insurance company and its attorney. If you do not have an attorney you will be provided all this by the insurance company and/or its attorney and you will need to have a Pre-Hearing Judge approve it but only after a proceeding is held where you are advised by the Judge. The standardized documents make it easier to speed the settlement process. In the past each insurer or insurer attorney had its own forms and some were more complicated then others. Now it is all uniform except for certain situations which are allowed for by the standard forms.

Do Attorneys Make a Difference?

The state Division of Workers Compensation has statistics up through the year 2004. You can go to the Division website for this. For 2004 the average settlement was about $12000 for those not represented by an attorney. For those represented the average was about $32000. Click here for the 2004 stats and table 32 there sets forth the stats I am mentioning here. Now these are just averages. In my experience an attorney also helps on the medical side and on the receipt of temporary benefits. In many cases even before any settlement there are problems an attorney can assist with. Sometimes the treating doctor just discharges the claimant and that is wrong. This can result in the loss of medical care and loss of temporary benefits. Doing nothing is usually a mistake and an attorney can seek further care and benefits. The biggest factor can be where the insurer provides some permanent benefits but the claimant is no longer employable. This can mean much more in a settlement if it is pursued. Here the amount can far more then doubling or tripling the dollars. Lastly with those needing ongoing care this can be a lifetime situation though often the insurer does not see it that way. An attorney helps here too. I could write extensively on this but you get the idea. If you can then get an attorney...it usually means substantially more benefits.

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.

Insurer's Be Practical!

In the recent past I've been involved in several minor disputes over at most a few thousand dollars in medical or compensation benefits. That strikes me as incredible in this day when litigation costs and delays may help no one. I understand initially defending on a disputed issue but when it is being set for a hearing it is time to reassess from a business standpoint. Defense attorneys are just doing their job when they must defend the insurer/employer. They are trained to do so and not to settle at least not right away. Insurance however is a business and its may not be just a matter of who is right or wrong. Often I suspect cases have been prolonged and expenses gone up when they should have been just moved along. Settling or compromising on an issue is practical but not always legally correct. Being practical means to assess risk and costs along with the legal issues. When this is not done the insurer becomes a prisoner to the legal issues over the business side of it. I realize there are times each side gets hard nosed. Yet a middle ground is often the most sensible way to move a case along. I'd like to see insurers being pro-active in this because it requires business common sense not legal analysis.

What is a Fair Final Settlement?

That is a question I am asked over and over but usually too early. I like to tell people that the legal determination is like the tail of the dog...and the dog itself is the medical treatment. It is usually too soon to be guessing about any settlement or amount due before the medical care has finished. Trying to figure it out before a person reaches MMI (maximum medical improvement) is nearly impossible. If someone is in a hurry then any settlement is going to be based on very unclear facts. After all if the doctor can improve your condition then finish the treatment. If you do not then do not expect the insurer to give you big bucks. They too have a right to say give it a chance. Don't say you are in horrible shape and deserve a lot of money when you don't finish the treatment. If you do then seek to settle the figure will often be much lower. My preference is to finish out with your treatment and then see what is the best way to resolve the case. If you are permanently and partially disabled we pay attention to the rating and the future medical care. The rating or damage estimate is also called impairment and more then one doctor can be involved in the rating. The treating doctor would rate and then we usually ask for a second opinion through the state. The second opinion is called a DIME for Division Independent Medical Exam. That opinion can address your rating and much more including your treatment. I've seen treating doctors say zero and a DIME come back much much higher. Further a treating doctor may say you are finished but the DIME says more can be done. It almost always benefits the claimant to go with a DIME. However it is a judgement call (it can also hurt your claim) so attorney advice is often essential. All of this enters into a possible settlement but never expect the insurer to roll over or guide you on this. Regretably extremity injuries such as to a hand or leg usually receive low permanent benefits but there are exceptions. As for losing your trade or occupation...Colorado gives nothing for this unless you can allege you are permanently and totally disabled which can lead to very high settlements. Trying to do this on your own is not just complicated it almost guarantees a battle. Still total disability does not mean you are flat in bed all the time. It is more a matter of how employable you are in the real world. Insurers like to say if you can work anywhere even part time you are employable but it is more complicated then that. Often we have to use vocational experts to help out with this. In any event the right time to discuss settlement is after treatment and a rating. At that time it must be carefully reviewed. Finally we also have to consider Medicare in some cases. Here is an example....your cash calculation amounts to $100000 but also the insurer arranges a medicare fund of $60000. The numbers can be higher or lower but requires much thought. What is a medicare fund? Medicare may require money be set aside in a fund to help with your future medical needs where you are going to also be getting medicare benefits. So to the question...what is a fair final settlement? It can be as big as legally allowable but like snowflakes each case is different. I really recommend that anyone wanting to settle or contacted by the adjuster to settle use an attorney. They can do two things. First, they can protect you and help you to max out your benefits. Second, they can calculate and negotiate a settlement that usually is quite a bit higher then what has been offered.

So What Is a Full and Final Settlement?

Many times people come to see me and they say the insurance company wants to settle with me for a sum of money. I ask for more information and they show me a Final Admission of Liability which has a money figure on it. I then have to say what I have said many times before...a Final Admission is not a settlement at all. It is the Respondents (insurance, employer) saying they owe you some money but they also seek to close your case after 30 days. A Final Admission requires a swift response and usually we object and do much more to protect the claimants rights. A Final Admission is a very detailed document so never assume it is a settlement at all. It is what the insurer believes it owes you but it is often too low and leaves out benefits so once closed you are left only with limited rights, if any. A settlement is a contract which is agreed upon by both sides. It is also very negotiable or almost always negotiable. But do not drop the ball if a Final Admission is filed and you receive it. Do not think you can keep negotiating and pay no attention to the Final Admission. That is BIG MISTAKE. Closure of your case occurs if you think you can just keep negotiating after you receive a Final Admission. If you fail to properly act within 30 days of the date of the Final Admission your case will almost always be closed. Once closed trying to reopen is not easy although sometimes some benefits are left open by the language in the Final Admission. The point is act fast or you are at risk. A settlement is usually an agreed upon figure which can include many things. It can be much higher then any figure in the Final Admission and it can also address your future medical benefits and a host of other things. It is a complicated document but the two biggest points are the dollar figure you are to get and the medical situation. If represented by an attorney a claimant can rely on him to review all of the terms and negotiate a fair figure authorized by you. If you are doing this yourself historically it has required that you appear before a Judge so he can warn you it totally ends your case. There are no do overs and no way unless documented in the settlement to return for any more benefits. So if you think you can take the money and then reopen the case if your condition worsens or if you forgot to get all your meds before you settled...sorry you are out of luck. Full and Final means you are bound by all the terms of the settlement and so are they. If you get better you still keep all the money. If you get worse you still keep all the money but can't say I want more. If at all possible you should try to review your case with an attorney when either a settlement is possible or you receive a Final Admission. The fact is there are possible increases in the figures which are seldom mentioned to you by the insurer but which can dramatically increase the numbers or which can even lead to more benefits and treatment! In my last few cases the figures nearly doubled from what the insurer felt was due the client. NEVER accept at face value the insurers computations or analysis of your claim. We've even settled cases for large sums when the insurer never admitted to pay a dime! I always assume the insurer is minimizing as much as it can the benefits or amounts due. Frankly that is their job but you can often increase it. If it is a Full and Final Settlement or a Final Admission get help if at all possible. Your injury may last with you forever...make it count.