Stats, stats and more stats for the curious

Over at the Colorado Division of Workers Compensation website they post some very interesting information. The entire workers comp statutory law is there. The rules issued by the Division of Workers Compensation are there as are forms, publications and various other things. On one page numerous statistics are provided with links to the source of those stats. For example nearly 25% of all claims are contested at the beginning and stay contested. That forces the claimant to either give up or seek a hearing. Anyway here is the link to peruse that page for stats which were noted by the Division. I am especially intrigued by statistics which make you wonder what is going on. When the population goes up but claims and hearings go down it does make you think about it.
http://www.coworkforce.com/DWC/CuriousAbout.asp

Final Admissions

In Colorado when a Final Admission of Liability is filed in a workers comp matter this is an extremely important document. In essence the insurance or self-insured party/employer is saying that they wish to close the claim based upon precisely what they state within the Final Admission itself. It may provide for permanent benefits or not. It may provide for further medical care or not. It may say any number of things which you might wish to question. The key thing to realize is that you are on a deadline of 30 days from date of mailing to act as provided by the law or your claim will likely be closed as provided in the Final Admission. Now there can be exceptions where the Final Admission is defective and can be struck down but that is very rare. So anyone receiving a Final Admission should know they must act promptly to question it. And this does not mean just calling up someone at the insurance. The required language on these Final Admissions sets forth how to properly act to object and follow through on the objection. Since this is usually a complicated matter consult with an attorney or at least call the Division of Workers Comp customer service for further information. Their number is 1-888-390-7936. At my office we routinely object to any Final Admission and go further to protect the claimant, such as moving to obtain a Division IME (doctor through the state to examine and provide another opinion). If we do not seek a DIME doctor we still usually then apply for a hearing if appropriate. It is a judgement call we make depending on the circumstances for our clients. However the important thing here is to realize you do not have to accept the insurance company position in the Final Admission but must act fast. Almost always when we object and go forward it is to obtain more benefits. Additional benefits possible include more medical treatment and more compensation but again it is a call we make on a case by case basis. Simply put: beware of any Final Admission!

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.

Social Security News Blog

Here is link to a blog with only Social Security news by an author of a legal publication for lawyers. It is a bit detailed but gives you an idea or overview of the things which interest some of us about what is going on with Social Security these days.
http://socsecnews.blogspot.com/

Colorado Medical Fee Schedule

I am providing a link below to the medical fee rule but must tell you that it is a long pdf (Adobe Acrobat) document. As of January 1. 2008 these will be the new fees chargable by physicians and other providers. From my perspective I watch the charges for meetings with doctors and testimony at a hearing. The current rate is that a doctor called to testify in a workers comp proceeding in Colorado can charge $400.00 an hour portal to portal. That means from the time he leaves his office until he returns so it includes travel and waiting around time. The new rate will be $450.00 an hour. So when an injured worker has to call a doctor to testify the expense will usually exceed $1200 and often reaches $2000.00 but it all depends on the time involved. Come January it will be a 12% higher expense. This expense is charged to the person calling the doctor. So you pay it if you call the doctor. Fortunately in many cases we can set aside some extra funds to help cover this but in the end it all is charged to the client. It is something to avoid if possible but at times it is necessary. If the attorney just meets with a doctor it is billed at $300 an hour. I realize the doctor has to charge. My concern is that I feel all this is caused by the insurer disputing something and burdening the claimant. It really should be part of the covered costs and paid by the insurer. This can raise insurance rates but it could equalize the legal fight since insurers often spend quite a bit to fight on medical issues. Especially with an unrepresented claimant they can overwhelm his resources to fairly fight. To have the insurer bring one or two doctors to a hearing and the claimant have nobody can mean an unfair advantage. I expect insurance people would strongly disagree with me as many seem to think an injured worker is costly enough but to me due process is important and I believe in a fair fight when there is a dispute. Justice should not be based on the size of your wallet. One last item mileage reimbursement for medical related travel by the claimant is going to .40 a mile.
http://www.coworkforce.com/DWC/Rules/Rules%202007/Adopted%20Rule%2018.pdf

Medical Care in Workers Comp and Social Security

Unless you qualify for medicare or medicaid or other state assistance a claimant seeking Social Security disability gets no medical care except any he can obtain on his own. Often in my town an impoverished person can try for Peak Vista which is a community facility manned by hard working dedicated people. Once you obtain SSDI (the typical Social Security disability) then medicare is possible (it kicks in after you've received 2 years of benefits but this could be soon if you were entitled to back amounts). What I do mean to point out is that you have no right to medicare until it kicks in but sometimes the agency will send you for an examination on your case. It is not treatment. In workers comp the process is different. Even in a contested case you may be able to obtain medical care though it is not always extensive until the claim is admitted or ordered to be covered. My problem is that in workers comp even in an admitted case there can be controversy over the extent of care. Insurers love to question causality by suggesting maybe the problem is not work related. Insurers love to second guess even the dedicated doctors by saying the surgery or expensive treatment requested may not be reasonable or necessary. I recall one time where my spouse using her health coverage had a knee operation many months before my workers comp client had his knee surgery. Delays seem to cause more expense and even medical complications. Of course in workers comp a covered treatment is paid 100% but nothing by the claimant. Also in workers comp long term care can be covered for life at zero expense to the claimant if it is appropriate. But for me I keep thinking that we should all have a national health plan and then all we would quibble about in workers comp is the extent of disability not wait while we dispute the treatment. Some physicians have a website calling for this at :

http://www.pnhp.org/

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