Keel Court of Appeals case

In January 2016 the Colorado Court of Appeals decided the Keel case. The case involved someone from out of state coming into Colorado to work. He died in an

on the job injury. He received benefits in his home state. Colorado also had benefits which were applied for. The case concerned the offset that was given for his receipt of the out of state benefits. The court determined that the statutory law mandates only a partial offset so the Colorado benefits would be higher then that calculated by the lower decision. While this issue seldom comes up it does point out that most of the time a statute will be enforced as it is literally written. Benefits for claimants are sometimes reduced by the receipt of other benefits but often not as much as you might expect. It is always worthwhile to double check the math so that a claimants benefits are maximized.

Marijuana and employment...the Coats case

Back in April 2013 the Colorado Court of Appeals issued the Coats case. It is not a workers compensation case but instead is a wrongful termination case. Still it will impact workers compensation. It is now on further appeal to the Colorado Supreme Court with oral arguments set for later this year with a decision to follow most likely in 2015. What makes it interesting and controversial is that it concerns marijuana. A worker was

terminated under the no tolerance policy of his employer when he tested positive for marijuana despite it being medicinal marijuana. The employee was a quadriplegic and did not use marijuana on his employers premises and his work was not affected. He sued and asserted the termination was wrongful. The court of appeals decided a dismissal of his case was proper despite medicinal marijuana use being lawful and permitted in Colorado based on its view it was unlawful by federal law. Imagine workers with various ailments taking medicinal marijuana after work hours being terminated based on a no tolerance policy. Imagine an injured worker being prescribed medicinal marijuana by his physician as part of his treatment. Can his employer validly terminate him? What will the Supreme Court say on this? That is to be determined. Meanwhile LexisNexis published an article on this case so you can read it here. Given the legalization of marijuana so its use is permitted, even recreational use, will employers be allowed to terminate you even where you use it after hours with no impact on your employee performance? All I can say is stay tuned for the answer come 2015. By the way LexisNexis asked for my comments on the case so they are included in the article.

Firefighter Court of Appeals Case Zukowski

On July 3, 2013 the Colorado Court of Appeals issued a decision I call Zukowski. It is a case that concerns the statutory presumption that certain diseases arise from firefighting duties. The statute shifts the burden to Respondents to overcome the presumption or else the disease will be considered covered under workers compensation. The problem for firefighters is that they do not keep track of all their exposures to toxic chemicals or factors that can cause job related diseases. To improve that situation the statute was passed. However since then there have been efforts to defend against such a presumption. This blog has previously noted this (see the Littleton case entry in this blog for November 3, 2012). In the Zukowski case the firefighter had a melanoma which led to a claim. Respondents lost the hearing and the appeal to the next level but appealed further and the court reversed the prior rulings. In other words the firefighter lost the case barring further appeal. At the hearing the Respondents produced evidence through two physicians. Essentially they concluded that there were greater risk factors for the development of the melanoma from non work factors. The court ruled that the evidence was enough to overcome the statutory presumption and that the hearing judge interpreted the statute too heavily against the Respondents. It was error to require that the statutory presumption can only be overcome by proving the disease was caused by something else unrelated to the job. The court viewed such a standard as akin to saying strict liability applies against the Respondents. My concern is that the evidence was really indicating that non work factors were the greater risk factors then the job exposure to the development of the melanoma. I would say that this defense could well impair the statute's intent. Respondents can use this approach forcing the firefighter to again try to show his melanoma came from work and that could be difficult. My concern is that risk factors or the increased risk do not show what caused the disease and the statute sought to indicate it would presume the cause came from work activities and exposures. In any event the case is required reading in any firefighter case.

Colorado Legislative Update 2013

Colorado posted an update for recent workers comp legislation at the Division website. With respect to the specific statutory legislation that was also posted by the Division. You are encouraged to read the updates. I shall not discuss all of them but one is significant regarding a DIME (Division Independent Medical Examination). It used to be the insurer had 30 days from the mailing of the DIME report to accept it and admit based on it or to apply for a hearing. The time frame is reduced to 20 days but it is from when the Division issues a Notice of Receipt of the report. Another new provision provides that the insurer must pay for reasonable and necessary medical expenses when the claim is later found compensable. I'd say that means they will pay if they contest the claim but it goes against them. Perhaps that will help when you seek treatment on a contested case if you later have it determined to be compensable. Previously if you sought treatment even if you won at hearing they'd say they did not owe for any treatment up to then because it was unauthorized. Also another new law requires they recalculate your benefits within 15 days from the date a fringe benefit like health coverage is terminated by notice. Another key provision concerns what we used to call an 18 month DIME. That now is 24 months and if MMI is determined that doctor can rate the impairment like a regular DIME. There is more but these are significant enough to draw to your attention. UPDATE: The Division issued an alert for adjusters on the new requirements which affect all DIMEs. Check it out here.

SB 11-199

While this senate bill 11-199 is awaiting the governor's signature I expect it to become law. There are 4 provisions in the bill worth noting. First, it requires that the insurer pay costs in advance, if requested by the claimant, for an insurer IME or vocational evaluation. This means the cost for the claimant to travel, food and even a hotel must be paid or the claimant can refuse to attend. If they pay and claimant does not attend they can get an offset from future compensation due the claimant. Next, a Final Admission must admit for future recommended treatment by the authorized doctor unless there is a record of a contrary medical opinion. This prevents the insurer from disregarding physician maintenance treatment once the claimant reaches MMI. At times insurers never admit for further treatment even though its need is undisputed. A claimant may think or even be told by the doctor he can get further treatment only to be denied by the insurer and the bill seeks to avoid such a practice. Third,procedurally it corrects a discovery matter by not requiring those represented by an attorney to first ask permission before starting discovery. That extra step (documenting you asked permission) seemed just a waste of time and paper. Last, the bill makes it clear that any lump sum request regardless of the date of injury is not a waiver of the right to seek permanent total benefits. For those readers not familiar with the last issue the history of it is a claimant would receive an admission for permanent partial benefits of a certain amount, let us say $30000.00, and yet feel he was much more disabled so he'd seek permanent total disability benefits. Since by law the admission had to be paid out every other week the claimant sought it in a lump sum. That was deemed a waiver of his claim for permanent total benefits. The poor claimant was stopped in his tracks by accepting the lump sum perhaps just to pay bills and other expenses. You had to be careful to avoid this but the law has been changed. A total disability claim is no longer waived by accepting a lump sum.

Misclassifying Employees as Independent Contractors

The Denver Business Journal is reporting that the U.S. and Colorado are cracking down on businesses that misclassify employees as independent contractors. An independent contractor does not receive unemployment or workers compensation benefits. Most of us who represent claimants will question that an individual is an independent rather then an employee and it is wise to assume any claimant is an employee until the evidence is in. I would imagine that any government does not look with favor on those that try to avoid the requirements set by law. The definitions pertaining to what is an employee are at Colorado Revised Statutes 8-40-202.

Partially Amputated Fingers are Stumps Court Says

The Colorado Court of Appeals ruled in the Leffler case to uphold the decision to add $4800.00 for partial amputation of the index and middle finger. The claimant had this happen while involved with a sod harvesting machine. This added benefit decision was appealed by the insurer by asserting that benefit only applied to "stumps" and fingers are not "stumps". The case is a simple and quick read but it amazes me that the insurer appealed. The cost to appeal to the Court of Appeals is far more then $4800.00 since it goes from the deciding judge to the Industrial Claim Appeals Panel to the Court. Quite a bit of legal work is devoted to such an appeal. I am not saying the insurer did not have a right to address this issue in an appeal. But it seems impractical and going forward with an appeal to clear up what is a stump for all future cases seems a bit of a waste. After all how many such cases are there? I have always believed that extremity injuries to include hands and fingers can be devastating matters for some people. Imagine if you were a surgeon or piano player or even a carpenter. You can lose your trade and receive a low sum for the injury. So getting a few bucks such as was done in Leffler is better then nothing.

Legislative Advisory 2010

The Colorado Division of Workers Compensation has posted a legislative advisory that briefly reviews the 2010 legislation that is applicable to workers compensation. While the legislative session is over the Division will proceed forward with rule making that may pertain to the recent legislation. Some of this recent legislation is significant. The advisory is just 6 pages so you can easily see for yourself.

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.

Workers Comp Penalties are Increased

One statutory change that was signed as law by the governor pertains to penalties. The maximum penalty for a violation of a workers comp law/order is now $1000.00 a day although it can be apportioned or split with half or more to the party and the rest to a fund. Any penalty remains in the discretion of the judge. I would prefer that penalties be imposed more often in workers compensation proceedings where benefits are withheld. I would also prefer that they have some teeth rather then be a minimal amount. If a penalty is meant to punish or teach a lesson it fails to do that if the time and expense of proceeding makes it not wise to proceed. The victim if you will should not be the one punished. That just fails to enforce the intent of the provision. In any event the legislature is increasing the amount that can be imposed as a penalty.

Brochure Now Required in all Workers Comp cases

A new Colorado statute has addressed a disclosure brochure to be provided to all claimants. It is a very concise disclosure on the subject of workers compensation. Seems like an advisory of the claim process and your rights as a claimant. That claim process is indeed quite complicated and the "brochure" seems designed to provide basic information and is required to be provided to you. No amount of disclosures will ever simplify the process but it does give the claimant a heads up on it. The problem with information is not that it is bad but that it can be incomplete. In workers compensation it is not possible to be completely accurate on all matters at all times. There are simply too many cases, too many rules, too many statutes and much more. For example there are tips for physicians and AMA Guides that are outdated but part of the workers comp process. Then as laws change you may come under old law or the new law or both. As recently as in the Nelson case we can see the clash of the old and new. Looking at the brochure I can say it is also not entirely accurate. One example is that it says an Admission will contain your wage but that is not always accurate. My office received a recently filed Admission without any wage figure. The point is this new Brochure can be helpful but also use your common sense and when possible obtain legal representation.

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.

Supreme Court Affirms the Nelson case

The Colorado Supreme Court affirmed the Court of Appeals decision in the Nelson case. In Nelson the claimant had obtained an advance lump sum of future permanent total benefits and years later sought another advance. The problem posed by the case is that the claimant had exhausted the advance amount earlier and only sought the new advance when the law was changed. The original statutory top dollar advance was $26292 and the statute was changed to allow a $60000 advance. Is the insurer liable for this higher advance when it was not the law back when the claimant was injured? The Supreme Court said yes it was. This decision was not unanimous and 3 judges dissented. But the majority controls. Both sides recognized that the law was not to be applied retroactively but the majority indicated that the law change was procedural so it would apply to anyone applying for a lump sum as of today. Procedural laws are not really changing rights or liabilities as compared to laws which are substantive changes in rights or liabilities. A substantive law change cannot be imposed on the parties covered by an older law. For example if the benefits were increased by a statutory change to 100% wage loss it could not be imposed on the parties later on. The higher wage would be a substantive change. So in this case it seems the majority and dissenters disagreed on whether the law change was procedural or substantive. The majority felt the advance was not extra compensation and the dissent seems to view it as giving the claimant a higher benefit because he receives value sooner then spread out over his lifetime. Mathematically when we do present value analysis there is no real difference. Of course people can die young or outlive expectations so either side may have the advantage here and now we come to another point I have not heard recently. The court said that the law should be liberally construed in favor of the injured worker so it did not split hairs here and ruled in favor of the claimant getting another advance. I posted on the Court of Appeals decision earlier.

Humphrey...a case on what is a statutory employer

On April 1, 2010 the Colorado Court of Appeals decided the Humphrey case. It addressed the question of what is a statutory employer. An important purpose of a statutory employer is to impose responsibility often on the general contractor when a worker for a subcontractor is injured but that subcontractor has no workers compensation insurance. By statute the coverage is then to go through the general contractors insurance because it is deemed by statute the employer. But another impact of this is to prevent any further claims against the general contractor outside of workers compensation. So when the subcontactor does have workers comp and the employee does receive benefits but thinks there was negligence by the general and he tries to sue in a civil proceeding the general can assert it was a statutory employer and can't be sued even if it was negligent. In Humphrey a delivery person for Phil's burritos was hurt while in Whole Foods delivering and stocking Phil's burritos. He received workers compensation through Phil but then sued Whole Foods asserting they were negligent. Whole Foods said it was a statutory employer and can't be sued given he had workers compensation coverage. The court agreed. In a basic sense it is important to be aware that workers compensation law is set up to prevent an injured worker from suing his employer and yet also receiving workers compensation coverage. It is often considered to be an exclusive remedy. Clearly what is a statutory employer can turn on the facts. In Humphrey the court felt the delivery person was stocking and removing outdated burritos from Whole Foods shelves and active enough such that Whole Foods was a statutory employer. In any event it makes for interesting reading.

Average Weekly Wage Desk Aid

The Division of Workers Compensation has what it calls a desk aid to help compute a claimant's average weekly wage. You can view it here. The subject of average weekly wage is an ongoing matter in Colorado. Even now the Supreme Court is to review a case soon (soon means this year).
The importance of the issue cannot be disregarded. Your wage calculations can play a very big role in your compensation benefits. A claimant wants it to be as high as possible and Respondents want it to be as low as possible. The reason is that it can increase your temporary and permanent benefits by a significant amount. As an example let us say you are making $10 an hour and get injured on the job. Does that mean the average wage is $400 for a 40 hour week? Not necessarily. Overtime does count. Having a second job may also count. Getting tips can also be counted (if timely reported to the IRS). Even health benefits from your job may be counted in many circumstances. The Desk Aid for wage calculations is actually more of a guide because a Judge has a great deal of discretion in calculating your average weekly wage. Do not blindly accept the figure provided to you as it may not be the only way to calculate benefits. Many insurers just take the last quarter's earnings (13 weeks) prior to the work injury and this may be way off. A judge may decide there is a different way to calculate it. Back to the example...if the $10 an hour employee worked overtime, or had tips or a second job or health coverage or even if there is another reasonable factor to consider the wage can go up. Even a figure just a few dollars higher can mean thousands more in temporary and permanent benefits. Always do your own calculations and your attorney should review the calculations considering the current caselaw and statutory law. This issue is a subject that is very current and often controversial so do pay attention to it. Look at my last post of March 20, 2010 where it is brought up in a proposed piece of legislation. See also this post where the wage calculation approach is to be reviewed by the Supreme Court.

Proposed SB 10-163

This recently submitted and proposed bill just may pass. It seeks to spruce up certain prior laws of 2009 and have new or old cases have the same procedural laws at least in certain areas. SB 10-163 as currently proposed can be read here. It contains a number of significant matters. For example if the insurer/employer seeks to withdraw an admission and totally contest the claim the proposed law makes it their burden no matter how old the case. In the old days when they did this the Judge would turn to the claimant and say it is your burden so prove your case even though it was admitted and benefits paid for many months. Imagine going to seek an increase in your benefits and being told...well we changed our mind so now you must prove your claim is even valid or compensable. That scary situation was changed in 2009 but the proposed law now applies even to very old cases. Another proposal is to have the law regarding audio recordings by insurer IME's also apply to all cases not just the more recent cases. So if you have an older case but must go to an insurer independent medical exam (no such thing exists in my opinion when one party handpicks the doctor) that doctor may have to comply with the law mandating audio recordings. A couple of other wrinkles seem interesting to me. They require the mortality tables be adjusted yearly or the fed table be used. Mortality is important as the longer your life expectancy the more you seek in a settlement in many cases. Also the proposal seeks to end the game of sending someone a fax or email but using regular mail to notify the other side. It makes such communications more uniform in delivery. It is my belief this proposed bill is broadly supported so it may pass.
UPDATE 3/19/10 : This bill passed and is headed to the Governor for his signature.

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.

Are you an employee or independent contractor?

A recent ICAP (Industrial Claim Appeals panel) decision (WC 4-776-542) went into detail on the difference between being an employee and being an independent contractor. As an employee you have workers compensation benefits for a work related injury or disease as set forth by law. As an independent contractor you likely do not have such benefits. Being told you are an independent contractor does not make you one. In Colorado we have a statute that details certain criteria to be considered by a judge in determining if you are an employee and potentially covered by workers comp or not. The statute is at Colorado Revised Statutes 8-40-202(2)(b) and gives us 9 criteria to consider. Essentially the criteria pertain to the extent of control over the worker in certain ways. In the recent case a carpet cleaning company tried to assert that the worker was an independent contractor when he was injured driving in a company truck to a customer. The vehicle rolled over causing traumatic injuries. The employer defense failed and the worker was deemed an employee. The employer appealed to ICAP and the decision was affirmed in a case which went in depth into the caselaw and statute.

Firefighter cancer on the job case

While there have been no recent court cases involving work injuries in Colorado there is always activity at the ICAP level (Industrial Claim Appeals Panel). Colorado not that long ago passed a law to help firefighters who develop cancer while employed. Trying to prove you contracted cancer from exposure to the toxic substances involved with firefighting had been very difficult. The legislature decided to make it easier on firefighters so they passed a statute that created a presumption that getting certain types of cancer would be considered an occupational disease. In a recent ICAP case the local judge heard the testimony of 3 experts brought in by the insurer and ruled they had overcome the presumption. The firefighter appealed to ICAP and at that level it was decided the insurers' experts were really attacking the premise of the statute itself rather then providing evidence as to how the claimant did not get the disease from his occupational exposure. Not sure if the case will go to the next level but it reminds me of the old arguments made by the tobacco companies to assert that cancer did not come from smoking. There is no link to read the case (ICAP decisions are not published on the web for free) but the statute we are discussing here was mentioned in this prior blog post.

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.