Apex Court of Appeals case on worsening

The Apex case was just published on March 13, 2014. It actually was originally decided in January but the court decided to publish it now. When published the case applies to all not just the parties. It can be cited as precedent in legal research. The case involves worsening. The claimant sustained a shoulder injury. Initially he was given no work restrictions but he was also terminated from his job. Apparently for pain he had taken a pain pill from his brother. Unfortunately his employer had a no tolerance policy and when discovered it resulted in his termination. Several days later he returned to the authorized physician who noted his pain and took him off work. Thereafter the claimant sought temporary benefits and asserted his condition had worsened enough to be entitled to temporary benefits. With his termination for cause he had to show a worsening to receive such benefits. So the case involved the issue of worsening. Now most of us would believe that going from a work status to a no work status is a worsening. However the court concluded that this fact alone does not establish a worsening. The court indicated the physician had not documented a worsening. Of course being now unable to work seems to be a worsening. Functionally going from work to no work is significant to me but that is just my view. Whether this case will be appealed further I do not know but as of now the rule is that increased work restrictions alone are not sufficient to establish a worsening. Read the case for the perspective of the court.

Maximum Benefit Rates effective July 2013

The Division has provided everyone with its new maximum rate figures for Colorado workers compensation benefits. Each year it revises the maximum rates and effective July 1,2013 it has new rates. These apply to injuries after that date. It is important to realize that maximum rates are set because rates are not unlimited. With a work injury not everyone receives a fair amount. Workers compensation benefits are limited or capped. Often an injured worker would tell me he's not getting enough compensation when by computation he was getting the correct amount. But the correct amount does not mean your compensation rate is going to be high. It is an insurance benefit and is designed to provide what the state has determined it must provide. The basic concept is to receive two-thirds of your average weekly wage when you are unable to work after your work injury. Thinking it is going to be high or even equivalent to your take home pay is unlikely. Historically benefits have not been taxable so at least that is a plus. And medical benefits are not limited although there can always be a dispute on what is reasonable in treatment. If your doctor prescribes a trip to the Bahamas for your psychological well being it is going to be disputed. But be aware that disputes involving your average weekly wage are common. Claimants often believe the figure provided by the insurer is wrong. Overtime and even health benefits may be part of the figure. When possible do seek out an attorney to represent you as soon as you can. Even a case where the claim is admitted can have much to deal with including what is the correct average weekly wage.

Court Case on No Limits on Temporary Benefits

This week the Colorado Court of Appeals issued a decision I call United Airlines and it concerns temporary benefits. The claimant was injured in 2007 and received temporary benefits until the year 2011. Those benefits totaled close to $100000. Then the permanent rating came to 5%. The insurer then pointed to the statutory cap on combined temporary and permanent benefits. It was $75000. Therefore it asserted the claimant was overpaid and owes money back beyond the $75000 figure. The court decided there was nothing due back to the insurer. It made clear that temporary benefits can go beyond the statutory caps. So a claimant can in theory be paid for many years while he is not at a permanency level. Of course if you reach permanency and have exceeded the cap then no permanent benefits will be paid at all in almost all cases. I recall a case I had several years ago where the temporary benefits were quite high after several years of treatment. Any permanent benefits would have been low but the claimant asserted he was totally disabled. There was very real evidence of this so the settlement was quite high. The cap does not apply to those who cannot ever return to work and were totally disabled. So while temporary benefits are potentially long term once you do reach a permanent status you might consider whether you can return to any work. If not then your claim could be for permanent total disability. In this recent case they also asserted it was against public policy and unconstitutional but these arguments were rejected by the court. The losing side might try to get this case before the Colorado Supreme Court but for now it is the law. Of course I agree with the decision and am not in favor of any caps or limits though I understand the law is meant to limit benefits to save money. My view is that insurance should cover your real losses and having a permanent impairment is a real loss for most claimants.

Maximum Benefit Rates for 2012

Colorado recently posted the 2012 maximum benefit rates

for workers compensation. These rates are adjusted yearly. The maximum rates remind us that workers compensation benefits are limited and capped. While for most claimants these highest rates do not apply there are some to whom the rates do apply. If you are a high wage earner be aware that the top dollar for temporary benefits which is normally two thirds of your wage is capped at $848.82 so if you are earning over $1273.23 a week then you do not receive any further temporary benefits except the cap amount. There also are top total dollar amounts for all compensation except permanent total benefits which can go indefinitely (though they have offsets that can reduce the figure). Be aware that if you have been drawing temporary benefits a long time it can affect your permanent benefits. Insurers are well aware of the caps and there have been cases where there were no permanent benefits due because the claimant hit the caps. Again this is uncommon so those with a prolonged severe disability should pay attention to the maximum rates. If you are concerned then review matters with your attorney. The purpose of putting limits on comp benefits is to provide reasonable but not unlimited benefits although if you are affected you may be quite upset by those limits. We all feel we should receive exactly what we lost with a work injury but it is insurance and insurance seldom pays out 100% of the loss. The state wants you to be protected but up to a point. Historically workers comp benefits have not been taxable so benefits approximated your take home pay but there is no doubt that you earn more working and a work injury is not a bonanza. The state limits your benefits so this yearly adjustment reminds us of that.

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.

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.

Maximum rates and the caps

The Division of Workers Compensation has just posted the rates for maximum benefits and related math calculations. For example they indicate that as of January 1, 2012 the caps are to be $76605.00 and $153210.00. Maximum rates are usually related to your average weekly wage not to the severity of your injury. Those with a workers compensation injury are paid two thirds of their average weekly wage for temporary benefits in the majority of times. There are exceptions that can lower this amount and there are occasions when the average weekly wage should be adjusted higher. If you are a claimant never assume the figure your employer or its insurer says is your wage. Never assume they are right no matter what is told you. If you are an employer or insurer never assume the figure provided by a boss is correct. A wage calculation is not a simple matter and there can be many variables that affect the calculation. However the fact you sustained a horrific injury is not going to affect the math. It is based on the math and when in doubt is determined by a judge when someone takes it to a hearing. In a typical situation the injured worker receives two thirds of his average weekly wage during the time he is temporarily disabled which s adjusted if you work part time. If a claimant returns to work full time temporary benefits stop. Such benefits can stop for other reasons as well as provided by law. You can review that with your attorney or seek help from the Division to understand it. Customer Service phone is (303) 318-8700. Please note the two thirds figure has not been considered taxable but it is not the same as your paycheck amount. It is what it is as set forth by law. But each year there can be adjustments and that is what has been done and posted at the Division today. Caps are amounts that place a limit on your compensation. They do not apply to medical benefits which are not capped (at least not yet) and they do not apply to those permanently and totally disabled. But if you are drawing temporary benefits and then entitled to permanent benefits those amounts can be capped when added up. Temporary benefits alone are not capped but if added to permanent benefits the law can apply a cap. Regretably this is a tough matter for claimants but the state has decided through its elected representatives to place limits in certain areas. In a sense most insurance policies have limits and workers compensation is no different.

Maximum Rates

Workers Compensation benefits are all set by statute. Benefits are a form of insurance coverage for those who have been shown hurt at work. But like any insurance it does not pay unlimited benefits. Benefits are restricted by what we call caps and that means they are limited depending on the situation. Anyone's true losses and pain may be much higher but workers comp given it is insurance only covers what the state sets forth it will cover. Even then disputes are common especially over the severity of the injury and whether work activities caused or aggravated your condition. There may also be disputes on wage calculations, dates, doctors or medical care, job termination, and much more. One cap noted is on maximum rates. Each year this figure can change but what it means is that you can get less but never more then the cap if your wage exceeds $1216 a week (which can include certain other wage related benefits if applicable). Given this figure it means that the top amount of $810.67 is the maximum figure for temporary total disability (2/3rds of the $1216.00).

New Proposed Bill SB 10-187 Has Many Changes

A very new proposed bill, Senate Bill 10-187, has many changes of significance for Colorado. Here are some of the important proposed changes:

1. It wants to provide the claimant with the costs (not attorney fees) of obtaining medical maintenance benefits recommended by the authorized physician if they are unpaid and contested but the claimant gets them ordered or Respondents agree to pay within 20 days of the hearing. I assume this is to try to reimburse the claimant if he or she must go to a hearing and expert testimony costs are necessary.
2. It clarifies what is to be the average weekly wage calculation problem raised by a recent case (Avalanche). It proposes to use the date of injury or whatever the judge in his discretion deems fair (not to use two dates such as date of injury and date of disablement as appears in the Avalanche court case).
3. There is to be no Social Security offset on permanent partial benefits. Such an offset would often be so onerous that partial benefits might go to zero so this prevents that should it become law. For those not aware the law reduces your workers comp benefits by one half of your Social Security benefits to prevent what some say would be double benefits. It is the law and this proposal tries to eliminate the problem of the SS offset applying to partial disability cases.
4. Another proposal is that should an employee reject a modified job offer that it not be considered his responsibility (such that temporary benefits may end) if it is a reasonable decision or if the job offer is over 50 miles away. Employers at times have tried to stop temporary benefits by unreasonable job offers that are not very nice or accomodating. In other words this proposal lets the claimant explain to a judge why he cannot take the job and perhaps avoid stopping his temporary benefits.
5. Annually requires an adjustment in the caps (currently top dollar for all but permanent total benefits are $75000/$150000 combining temporary and permanent partial benefits).
6. Proposes that a claimant can get a lump sum of permanent partial benefits but not be required to waive a claim for permanent total benefits.
I think you can see that this proposed bill has many provisions so we'll see if it becomes law. By and large it is reasonable in its approach at least from the claimant's point of view. It is not possible to review this in more detail in this blog post but those interested may read it and follow it as it moves through the legislative process.

Effective July 1, 2009 Maximum Rates

Just posted over at the Division of Workers Compensation website is a chart that sets forth the top dollars paid out on benefits. For example, the most you can receive in weekly temporary benefits is $807.24 and that only happens if you were making $1210.86 a week in wages or more. Few injured workers ever will be paid at that rate and if not they can be paid 2/3rds of what is determined to be their average weekly wage. Historically you do not pay taxes on the standard workers comp benefits so 2/3rds is close to your take home pay when you cannot return to work. Of course to obtain any benefits they must admit you were hurt on the job and are entitled to temporary total benefits. If your case is contested then as long as it is you are not paid such benefits. Moreover even if you are entitled to temporary benefits they will adjust them if they have you working part time. There are rules on all this but this post just lets you see what the top dollar figures can be. The rates are set each year and made effective every July 1st.

Today :Termination for Cause Case Claimant Loses

Today the Colorado Court of Appeals issued a decision against a claimant. The law involved what we usually call termination for cause. The statute says if a claimant is responsible for his termination from employment then his right to temporary benefits can be cut off. There is an exception should your condition worsen after termination but otherwise a claimant receives no wage loss or temporary benefits if he was properly terminated for cause. I dislike the law though I understand the concept behind it. The legislature did not want people who had a job and then lost it because of themselves to collect temporary benefits. I dislike it because the injured worker is still likely disabled and may not be able to find another job while he remains under treatment and with restrictions and/or medications. This law has led to numerous disputes which have gone to hearing. All sorts of reasons can justify the employer saying a claimant is responsible for termination. Witnesses usually are found who still work there who tell the judge at hearing how "bad" the claimant was or what wrong he did that led to termination. I've heard it said the claimant was insubordinate, violated rules, abandoned the job, was loud or rude or loafing or not following orders or even not calling in. If your resume is wrong or you lied on your original job application or tested positive for drugs (not drugs on the job but just even for drug residue that may be in your system from weeks ago) then the termination can be your fault. You can then lose not just workers comp temporary benefits but even unemployment benefits even if you cannot find other work. A claimant can face months without any income and that can be devastating unless you have other resources. In the case decided today the worker tested positive for cannabis after his injury and was terminated. He sought temporary benefits and was denied them and appealed. The court decision accurately states the law in this area so any injured worker should take heed not to give your employer and cause to fire you. Read it here.

Termination Issues

When you have a Colorado workers comp claim the issue of job termination may come up. Colorado statute indicates that if there is a termination and it is the claimant's responsibility then his claim for temporary benefits is in trouble. Quitting even if you believe it is justified or you are being harassed is very dangerous. If you are terminated for cause it is also a major problem. So if the boss says to check in or imposes more on you after an injury you had better be on your best behavior. In other words try hard not to give them a ground to fire you. You may feel stressed and unfairly treated but being in a legal fight to keep receiving temporary benefits is not a place to be. Once benefits are stopped it can take a hearing to restart them and if the Judge rules against you then you don't get them unless your condition worsens. None of this is pleasant and it can be financially devastating to some claimants especially when you are months away from closing your case. Plus in some of those cases you also may not obtain unemployment benefits so it can really hurt. I disagree with this law and recall what it was like before the law was passed. Back then if you lost your job for any reason you were still usually disabled and trying to find a new job was difficult so in most cases you could keep receiving temporary benefits. I also disagree with it because in my view many terminations are pretextual, that is they target you to find a way to call the termination your fault. Bottom line: cover yourself! If you feel you are being set up be careful and you may wish to document the situation. Better still get a lawyer if at all possible. One last thing usually termination does not affect your permanent claim for benefits in an admitted case but those benefits can be months away.

What is your comp rate?

The maximum temporary compensation rate in Colorado varies from year to year and is usually adjusted around July 1st. So if you are hurt on the job and are wondering what is the rate you will be paid (assuming they are not contesting it or asserting some sort of reduction or loss of benefits) it is two-thirds of your gross or total pay before deductions up to a top rate of $719.74 (for anyone earning $1079.01 or more). So if you make $600 a week then $400 a week (paid biweekly) would be your rate for temporary benefits if you cannot work or are unable to be accomodated with the restrictions imposed by the authorized treating physician. If you are earning $450 a week then $300 a week is the comp rate so it all depends on your gross pay. These benefits are not taxable. Seems simple enough right? Well what if the employer terminated you after your injury and says its your fault. It can take a hearing to see if you are entitled to benefits. Or, if the employer claims you violated a safety rule...if true it can reduce your benefits in half! If you are receiving Social Security disability or retirement benefits this also may reduce your workers comp benefits. However if you were working two jobs that may increase your benefits. Another factor is if you are under 21 years of age...it is quite possible your rate may be treated at the highest rate possible even if you were working part time. Colorado seemed to realize that if a minor is hurt and perhaps has an injury that lasts long term there should be a special way to calculate his benefits. If you are injured on the job your average weekly wage is usually what is used to calculate any compensation but what is your average pay rate? Many times the insurance and employer calculate it one way when it could be higher. It is best to review this carefully as it can result in a difference of several thousand dollars more due a person which if not pursued is a true loss. For example, your employer may turn in your pay as being your base rate and forget to add for overtime. That is wrong but often happens and affects not only your temporary benefits but also your permanent benefits. So verifying your pay rate is an important task. Moreover even if the initial figure is correct it can be adjusted later on for any loss of your health benefits paid or partially paid by your employer. So there is nothing simple about this area...it requires a careful assessment.