The Failure of Workers Compensation

Over at the website for the Center for Justice and Democracy they take on the current workers comp system. By and large they speak accurately in pointing out the flaws in the system. Here is a link to the summarized version of their criticism:
http://centerjd.org/MB_2007workerscomp.htm

Cost of Living Increases

Colorado workers comp benefits do not have a cost of living benefit. Someone left a comment and I thought it deserved a post by itself. There was a brief period when there was a cost of living benefit but that ended with claims which arose by 1994. In Social Security there are cost of living adjustments made yearly. Such is life and the only way to change it is to change the law.
It is regretable if not shameful that we limit benefits to those injured at work. It seems as if the old and disabled are pushed to the side by society despite being there and shouldering the load for us. Then we so limit benefits that we impoverish many of them. Taking care to honor and protect them is not part of our system. The recent VA problems at a VA Hospital indicate it even pertains to our soldiers. Sorry but that is simply wrong. The workers, the soldiers and the old did so much for us that they should be honored and made as comfortable as possible. When I handle a case I know I try to maximize benefits but I also know that it is often not enough. They deserve our respect and laws which provide significant benefits.

Other Types of Claims from work injuries

While we only handle work injuries and disability claims if you have a workers comp claim it does not mean that you are limited to just that claim. Sometimes from a work injury there may be other types of claims. One easy and common example is when someone is severely hurt at work and obtains workers compensation benefits. That person may also have a claim for Social Security disability benefits (SSDI). If so the workers comp insurance company gets a credit of a portion of your SSDI benefits (this may also apply to some other types of Social Security benefits too so check with a lawyer). Still you may get both benefits if you are totally disabled even if one of the benefits is somewhat reduced. It is always better to get two checks then just one. Of course when and if you should apply for SSDI is a matter to discuss with your lawyer so don't just go for it without checking further. There are many situations where it is a big mistake to apply too soon for Social Security benefits. Now aside from SSDI or even other Social Security programs can there be other claims? Yes. For example if you are delivering for your job and hurt in an auto accident you may also have a personal injury claim. Again do not handle this on your own because it does affect other benefits. Or, let's say the equipment which injured you is defective....again this can lead to another claim on top of the work injury or disability claim. In that this is quite complex you will need a lawyer. Don't do it yourself. An injured worker may even be able to file for unemployment benefits especially if workers comp benefits are delayed or disputed. Also if you are totally destitute there may be other social programs to assist you. Colorado has aid to the needy disabled. If you are fired it may lead to a wrongful termination claim or claim for discrimination. So don't think you can only have one claim when you are hurt at work. Other claims or benefits are possible though each type of claim or benefit may also affect your workers comp benefits. Your attorney may have to concentrate on what his area of expertise is but he can make suggestions in the other areas so discuss this with him. In my practice we maximize the workers comp benefits and then also pursue Social Security disability benefits for those severely disabled. If other claims are discussed or known to us we suggest other attorneys who can help in those areas.

Initial Denials in Social Security cases

Colorado has one of the highest denial rates for those first applying for SSD or SSI benefits. In Colorado almost 70% are denied. Where is the best state to apply for benefits? DC also known as the District of Columbia is the lowest but Hawaii is the best place to live and apply as it grants more then half who initially apply. Tennessee denies 77% so it gets the worst place award. California? It denies 56.6% of those who first apply. Of course after any denial a claimant should consider appealing the denial. It is important to realize that the burden is always on the claimant to show he or she is unable to work and satisfy the requirements to obtain benefits. When you go down to apply on your own there are many forms to fill out but key factors are all your doctors and all the places you've worked in the past 15 years or so. Records are sought by the agency but be aware that it really is your burden to make sure all the important records are submitted to the agency. Sometimes doctors forget to submit records or there are recent records for recent treatment. Make sure all this is given to the agency and if you are not sure go get the records yourself and submit them. Expecting others to care about you and take care of you and be diligent to protect your rights is true if you've retained a lawyer but don't expect the agency to do so.

Delays in Workers Comp cases

Previously I've mentioned about the delays to obtain a hearing in Social Security cases. But that situation is simply a matter of waiting for a hearing date and sprucing up the case for the hearing. In workers compensation the delays are varied depending on the case. Cases seldom proceed in a straight line or so it seems to me. One delay is when the claim is contested. This alone can take a hearing. Another delay can be with medical treatment. Sometimes the treatment is not thorough and yet unless there is a change of doctors (which also can lead to delay) the claimant has to go to a separate examination (called a DIME and mentioned previously). This also can take more then two months to arrange and even more time to wait for the results and still more time to await the insurers response. Sometimes further medical treatment is deemed needed and this is delayed until sometime after the DIME evaluation. Surgery adds still more months to the process and that is assuming it all goes smoothly. If the insurer disputes the need for surgery or other treatment it can take another hearing. Many cases often seem to take two years or more to wrap up if you are intent on protecting the rights of the claimant. I can say that most delays are based on medical issues or treatment. With medical care there is no certain timeline for recovery. Asking your lawyer when all this will be finished is often met with vague answers but the reason is simple: the legal matters cannot be finished until all appropriate medical treatment and conclusions are provided. If you wish to get it all over with sooner then you also must waive all further rights and benefits for a cash settlement. Such a settlement is seldom wise and often impossible to fairly analyze. While cases can be settled it is rare to try to do so until all the steps have been taken both medically and legally. Again this means delay. Imagine deciding you have to settle your case and move on with your life. You do so for quick cash and give up all your rights. Then you seek to return to work but find out you can no longer do your trade. You also find out that your back injury acts up on you but no one will pay for further treatment. By then you figure you made a mistake but its too late. By settling too soon there is no do over...its just done. So workers comp delays are terrible because your life is on hold but better to protect yourself before you are cut loose without anything further. In fact in some cases you are never finished. Your injury or complications from it can mean there is a need for lifetime medical care. From the time I take a case to the end of it usually takes from one to two years. There are exceptions where it is just a few months on the short side to well over two years on the long side.

Maximum permanent partial disability rate

Unless you are permanently and totally disabled the most you will be paid for having a permanent injury is based on specific state calculations and the medical rating (degree of impairment by either the authorized doctor, a Division IME doctor or by order). Your wage is often a factor in the calculations as is your age. But what I'd like to point out in this note is that the payment is biweekly until the amount is exhausted. A claimant can get an advance or even a lump sum but otherwise the amount is paid out every two weeks at a set rate. The highest rate for these biweekly checks changes each year but at present it is $413.95 a week. It can be less as it must be computed for each person. What this can mean is that you've been receiving temporary benefits of two-thirds your average wage which can drop down to the rate set for permanent benefits. The theory is that when permanency is determined you can return to work or find new work and receive the biweekly permanency checks anyway unlike temporary money where earnings are deducted. You or your attorney can get an advance if properly done so you might look into it. All this pertains to whole person impairments only. Scheduled extremity amounts are paid out differently. Here is the link for the maximum calculation:
http://www.coworkforce.com/DWC/FormsDeskAids/DESKAIDS/PDFDeskaids/Desk_Aid_4_Max_Rates.pdf

The Social Security Listings

Whether hurt at work or if your health is disabling there may come a point when you apply for Social Security disability. Even if the system is slow it still is an important safety net for those truly unable to sustain work. The listings are severe health problems that have made the list so that if you meet a listing it can mean you are truly disabled enough to deserve disability benefits. However this still requires that you meet other legal requirements but it is a big step to obtaining benefits. For example if you cannot ambulate effectively it may meet one of the listings. The Social Security Administration has very specific details on the listings and I have provided a link to them below.
http://www.ssa.gov/disability/professionals/bluebook/listing-impairments.htm

Can you return to work or are you totally disabled?

Often a person may not be able to return to his usual trade or occupation. This can occur because of restrictions or complications from the work injury as set forth by a doctor. Sometimes a person may have worked for many years and really enjoyed his trade but now is not sure what he can do. If you are only permanently and partially disabled or restricted you may receive compensation but not anything else. What then? Does the insurer have to retrain or put you into voc rehab? Not usually and you may wish to contact the state Vocational Rehabilitation office. There is an earlier blog post on this which I posted. But then if you think it is unfair and seek permanent total benefits (which can be substantial) it is your burden to prove it. Your attorney can apply for a hearing and line up his witnesses and evidence. He may also discuss a settlement. However if it goes to a hearing what will the other side say when you try to show you cannot work at all? Well, the other side can seek to show through its witnesses or evidence that you can work, even if just part time. Believe it or not if they show this and the Judge accepts it then you cannot get further benefits beyond what is allowed by an admission or the Judge. Just thinking it is unfair and no Judge would do this is a mistake. You must be ready to prove your viewpoint if it goes to a hearing. It is a true legal battle with high stakes. Here is a sample of some of the jobs that may be asserted through evidence you can do part time: "The claimant can work as a ticket seller, hotel desk clerk, restaurant host, pizza deliverer, customer service clerk, cashier, automobile salesperson, and sales clerk." This list does not end here...it can go on and on to include working at home! Decent pay comparable to your trade is not a legal consideration. This means it can be difficult to establish you can no longer work. Hard as it may seem it is quite possible to show this but it requires a solid effort. In this area your attorney may do the most good for you. There is caselaw to consider. There is vocational evidence to obtain. There may be further medical evidence to develop. Much can be done here so blindly accepting the insurance viewpoint is not wise.

Medical Transparency

Effective Jan. 1, 2008 a new law now requires more disclosure regarding doctors in the state of Colorado. This law has been signed and will apply after Jan 1st. It impacts workers comp in the sense that soon now you will be able to check further on any doctor to ascertain discipline or other adverse matters. In other words it will be harder to hide behind the traditional cloak of secrecy or nondisclosure that has been the case with the medical community in the past. Here is the link to the new law:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Bills.View&session=07&mode=0&sortby=3&filter=b&srch=transparency&page=1&billnum=HB07-1331

Social Security Average Wait 17 Months!

Here is a link to a USA Today article that points out the average wait time for a hearing to appeal a Social Security disability denial is now 17 months. Staffing is down and claims are up so this makes for problems. Please realize this can be solved by Congress and the President providing more funds for the Social Security Administration. The fact is that it is not happening, at least not yet. Political change and a social willingness to deal with this...making it a priority is needed. To know we are a great and free country but cannot take care of our old, disabled or injured is unfortunate. So pay attention to those seeking your vote...what plan do they have to solve this?
http://www.usatoday.com/news/washington/2007-07-29-disabled_N.htm?csp=34

New Court Case on Apportionment

In Colorado apportionment relates to reducing a permanent impairment calculation or reducing benefits because of previous impairment(s). The law has changed by caselaw and statute over the years. The issue remains a complicated one. In this case the claimant had multiple back problems but returned to work until his latest injury. His treating doctor did not apportion but the DIME doctor did. A DIME is a Division Independent Medical Examination and has special value and weight in a workers comp case. Here the DIME doctor reduced the impairment rating because of what he considered some prior impairment that allowed apportionment. The claimant appealed and in this Court of Appeals case tried to assert this was wrong and there should be no apportionment. The case is troubling in that there was no actual previous impairment issued in his prior injuries. Also he was working without further treatment or symptoms from those prior injuries. The claimant argued how can it now count against him? Nonetheless the Court ruled that apportionment was proper and that it is more a matter of there is not enough evidence to overturn the DIME opinion to apportion. I do understand that this is a complex matter but I have to question the speculative nature of a DIME doctor finding prior impairment when there was no documented or objective evidence of prior impairment. In any event here is a link to the court decision just issued on July 26, 2007:

http://www.cobar.org/opinions/opinion.cfm?OpinionID=6246&CourtID=1

Medical Ops....UPDATE!

Yesterday a Denver station Channel 7 noted that Medical Ops Management is now out of business. Here is a link to the full article:
http://www.thedenverchannel.com/news/13747301/detail.html

This pertains to doctor examinations going through the above noted company. It has been alleged that doctor reports were altered or changed without approval by the doctor. Since this can affect the treatment and outcome of cases it was a very serious matter as reported by this station.

Attorneys do make a difference!

One statistic kept by the state of Colorado shows that having an attorney does make a difference in the amount of your benefits. On average a decent attorney can increase your compensation by around 150% when compared to not having an attorney. In some cases this is much much higher. Insurance companies rarely admit someone is totally disabled and here the difference can be huge. One recent case resulted in $180,000.00 additional dollars or 4 times more then first offered. In other cases the workers comp doctor may say the person is released without impairment only to be proven wrong. This can lead to both medical and dollar benefits. The injured worker is led to think the doctor said he is without impairment so the case seems worth little. Turns out more treatment is needed and likely far more dollar benefits then zero! You'd be surprised how many people seek out an attorney when they are denied further care and simply want to get well. So while there are no guarantees attorneys frequently do make a big difference in most cases. In any event here is the stat on attorneys as of the year 2004...click here.

National Health Care?

Health coverage under workers comp is variable. One plus is that for covered and reasonable care the benefit is 100% coverage as long as necessary. The problem is that insurers often deny coverage for one reason or another and this can slow down or eliminate needed medical care. Also you go to one doctor for your injury, another for your overall health and must deal with varying coverages. VA, Medicare, Medicaid, perhaps even coverage under auto policies and a great array of insurance companies all with their own set of rules and payment plans make our current health care system terribly inefficient. To limit benefits is to ration them so the cry that we have the best health care system is questionable. Lately I've come around to accept that drastic change is called for and so have others. Even physicians have a website that promotes a national plan. While I strongly believe in free enterprise I realize the current hodgepodge is not working. One recent proposed law to allow Medicare to negotiate drug prices like the VA does failed and so lower drug prices for medicare beneficiaries was denied. To me that is not free enterprise it is favorable treatment for the drug companies. In any event here is the link to the Physicians website with various articles on healthcare:
http://www.pnhp.org/news/articles_of_interest.php

Less Hearings and Applications for Hearing

According to the Division (Workers Comp) website it appears very clear that over less then ten years there has been a dramatic decrease in hearings and even hearing applications. There may well be many factors to explain this but the stats speak for themselves:

1997 : 12840 hearing applications were filed; actual hearings held were 1987

2006 : 9595 hearing applications were filed; actual hearings held were 1166

By the way the population of Colorado increased ten percent in the last ten years.