New Hearings Office for Colorado Springs

It appears that the hearing room and the offices for the Colorado Springs area are going to be bigger and better. At least that is my read from the website maintained for hearing information. It sounds like it will be ready to go this week:

"The OAC Southern Regional Office in Colorado Springs will be moving to a new suite 230 right next door to our old suite in the 5 Star Bank Building at 1259 Lake Plaza Drive. The new space should be more comfortable and functional for all. The new courtroom is more spacious and is without a roof support pillar obstruction. The new conference room will be accessible to hearing participants."

Rule 18-6 (E) Mileage as of Jan. 1, 2009

Rule 18 pertains to medical services and is quite complex. It is of limited interest as it mostly tells us about the billable charges for those services. Of course it includes charges for reports and testimony and the like. For example when anyone calls a physician to testify the charge is $450 an hour. There are times it is quite necessary to call a physician especially when there is a contest over medical or causation matters. But I also noted that a subsection of Rule 18 pertains to mileage reimbursement. Rule 18-6 (E) increases the amount from 40 cents to 55 cents a mile. This is the amount you can seek for trips to see an authorized providers and the like. So starting January 1st all claimants can be reimbursed at a much higher rate then the present rate. Click here for the mileage chart. But a word to the wise...mileage is usually figured by mapquest.com or a similar calculator so do not overestimate!

Have a Happy Thanksgiving!

As we approach the Thanksgiving holidays I do wish you all a great day and if you are with family a peaceful, fun time. Despite all the troubles out there it is a
time to be grateful for what we do have. As the song says...live like you were dying.
Life is precious and friends/family are what counts. Today is also the one year
birthday of my twin granddaughters and that makes it extra special!

Do Attorneys Make a Difference?

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

Nov. 13th One More Case...Montoya

In my last post I noted two cases decided on November 13th by the Colorado Court of Appeals. Actually one more case decision was issued. In Montoya, the authorized treating physician rated the claimant at 19% impaired. The insurer decided to dispute the rating and started up the process to seek a Division IME. That is the only way either side can dispute the rating so provided. Then the same doctor altered his opinion to reduce it because of a prior injury. The number went down to 15%. Of course now the insurer decided it could accept the rating so it cancelled the Division IME and filed a Final Admission in the case to close it but accept the amended rating. The claimant said the insurer could not do that but the court said the insurer could just that. The claimants reasoning was that the insurer was bound to go forward with the Division IME or be bound by the original rating. The court however had no problem with the insurer accepting the amended rating. While I understand the decision you have to ask what if the claimant had received a low rating and sought a DIME but then the doctor increased the rating. Could the claimant cancel the DIME and count on the insurer filing something to respond to that higher rating? Anyway read the Montoya case here.

Kilwein and Cabela Court of Appeals Cases

Today, the Colorado Court of Appeals issued two workers compensation decisions. Kilwein is an old case where the claimant was permanently and totally disabled with the right to ongoing medical care for the injury. Years later her authorized treating physician underwent utilization review to be replaced as the treating doctor. However though a change of physician was ordered the law allowed the claimant to continue treating with the doctor while he appealed the order. The problem was that the insurance had to keep paying but the risk to the claimant was if the doctor lost his appeal then all medical expenses could be recovered by the insurance. The court decided that the claimant who kept treating with the doctor who was no longer to be authorized did so at her own risk. In this claim the claimant kept treating and also went to referral treatment but all of it was ordered to be repaid to the insurance. This case is a rare situation but points out that if you choose to continue with a deauthorized physician it is at your own risk.
The second case, Cabela, also relates to authorization of a physician and also concerns the insurance saying the injury was not work related. The court quickly disposed of the insurers claim it was not work related by saying the Judge decided that issue on the facts and they would not reverse the judge. More interesting is what happened when the claimant was told by the original authorized physician that her injury was not work related. That doctor decided to send the claimant to her personal doctor. The personal doctor decided it was work related and referred her for treatment by an orthopedic doctor. The appeals court decided that the personal doctor became authorized to treat when the original doctor backed out but sent her to that personal doctor. The mere fact the claim was disputed did not change the fact this was a referral and referrals by authorized doctors are also authorized even if the case is disputed. There is more to the case but it is a good case for claimants. Unlike the Kilwein case there are many disputed cases where the doctor picked to treat you decides it is not work related and then simply closes the matter by saying go to your own doctor.
The Kilwein case.
The Cabela case.

Laptop Privacy an interesting Colorado case

On Monday, the Colorado Supreme Court issued a case which addressed the privacy of materials on a party's laptop. While not a workers comp case it does involve issues of how much must be disclosed to the other side. It seems as if the Supreme Court is trying to balance the interests of requiring disclosure of pertinent information with the right of privacy. Since almost every case involves required disclosures it is an interesting case to read. In workers comp for example the other side always seeks as much of your past medical records as they can get their hands on. Sometimes however the disclosure is simply not relevant to the claim. For example should a female claimant be required to disclose or sign a release to disclose her ob/gyn records when the injury is to a wrist or back? Any disclosure just allows the other side to have more information. In the latest case the defendant was driving and it was alleged he was looking at his laptop when the traffic accident happened and someone was injured. The trial court ordered inspection of the laptop but in doing so left the defendant without protection from other matters on his laptop. The Supreme Court decided that the lower court must take steps to protect the privacy of the laptop contents except to show if it was being used at the time of the accident. View the case here.

Colorado Mortality Table

At Colorado Revised Statutes 13-25-103 the state sets forth life expectancies as we all age. Important in workers comp? Yes because if you might receive benefits for life then this tells us how long the average person lives based on current age. From that we can figure the value of a claim after discounting for interest rates and other factors. That makes this table important to some degree. Insurers sometimes assert the average age is not always correct and use what they call the rated age (a reduced age based on stats the insurers have for those as sick/disabled as you). I am posting the current Colorado life expectancies between 16 and 72 in full here but refer to the statute if you are younger or older:

16..... 61.5
17..... 60.6
18..... 59.6
19..... 58.7
20..... 57.7
21..... 56.8
22..... 55.8
23..... 54.9
24..... 53.9
25..... 53.0
26..... 52.0
27..... 51.1
28..... 50.1
29..... 49.2
30..... 48.2
31..... 47.3
32..... 46.3
33..... 45.4
34..... 44.4
35..... 43.5
36..... 42.6
37..... 41.6
38...... 40.7
39..... 39.8
40...... 38.8
41..... 37.9
42..... 37.0
43..... 36.1
44..... 35.2
45..... 34.3
46..... 33.4
47..... 32.5
48..... 31.6
49..... 30.7
50..... 29.8
51..... 29.0
52..... 28.1
53..... 27.2
54..... 26.4
55..... 25.5
56..... 24.7
57..... 23.9
58..... 23.1
59..... 22.3
60..... 21.5
61..... 20.7
62..... 20.0
63..... 19.2
64..... 18.5
65..... 17.8
66..... 17.1
67..... 16.4
68..... 15.7
69..... 15.0
70..... 14.3
71..... 13.7
72..... 13.1

The Dictionary of Occupational Titles (DOT)

Anyone who may be permanently and totally disabled or Social Security disabled may want to know about the federal publication called the Dictionary of Occupational Titles. This is an outdated (1991)but important resource when trying to ascertain how disabled a person might be. In SS cases it is extensively used and often relied on by Judges. In WC cases it is important but not quite as much as in SS cases. Still the job description and physical/skill demands of a job are quite important in all cases where employability is an issue. Each law defines unemployability differently but both make the concept of unemployability a key factor in determining total disability. In both areas jobs such as ticket taker, receptionist, customer service, telephone sales, hotel clerk, dispatcher, driver, assembler have detailed job requirements including physical, educational and skill levels. Each occupation receives a code number and a small paragraph describing it. Vocational experts use this information to assist in analyzing possible jobs for a claimant. They do much more but this old publication remains the bible in the field. The Social Security Administration goes further with its rules in analyzing how age, education and other limitations play into work ability but in Colorado workers comp we tend to rely on the experts to provide opinions rather then any further rules. The Social Security Administration realizes those over 50 have a harder time adjusting and there are rules in this area. In Colorado workers comp being over 50 is not going to stop someone from saying you can work in low paying or unskilled jobs. So if you want to check into occupations and what is required for that job you might take a look at the DOT Dictionary of Occupational Titles.

After Your Rating...Now What?

Many people go through the workers compensation system in Colorado and eventually get rated (they receive an impairment calculation). Often they are then faced with a Final Admission by the insurer who seeks to close out the case. Perhaps they are to receive some permanent benefits if they did get rated but do they have any further remedy? Absolutely YES! In Colorado workers comp it is not over if you promptly act to protect yourself. You have 30 days from the date of mailing of the Final Admission to act and this deadline is strictly enforced. Your first choice is often to proceed with a DIME (Division Independent Exam) to obtain a new opinion on MMI and the rating. Often more is needed or the rating is higher then what you were given by the authorized physician. Also if you are severely disabled then you need to look into whether you are employable. If not you may be entitled to lifetime benefits or a much higher settlement then the admitted amount. Recently someone posted a comment on this blog and was concerned about getting a 12% rating yet being in much pain. I responded but it is an important enough comment to make sure everyone realizes that you do not have to accept the rating given to you by the doctor as all you are entitled to despite pain and other problems. While workers comp does not always compensate you for all your losses it is important to know that anyone unable to work may be entitled to much more then a rated award. Also you can also be entitled to more treatment. DO NOT ACCEPT A FINAL ADMISSION without carefully reviewing it (hopefully with an attorney). Do not accept one doctors rating as the end of your case. That may be the worst thing you can do. Those with severe disabilities really need to consult with an attorney wherever possible. Almost always much more can be done but at least check into it further. I've seen cases where doctors have said there is a zero rating receive substantial benefits. Sure I want law changes to provide more help for the injured but don't think the existing law is worthless. It is not at all. Pursue your options but do so with promptness.

WC Seminar on Friday October 17, 2008

There was another gathering of numerous attorneys in the workers comp field on Friday in Denver. The entire day was devoted to updates and issues or current interest to all of us in this area. As nearly always these seminars are well attended and packed with information. Recent decided cases are reviewed. We are provided with a heads up on coming changes. For example, it's been proposed there be standardized forms for settlement agreements. That is likely coming. Also there have been significant changes in the apportionment area. That is where reductions in permanent benefits may occur when you have had prior injuries or diseases. The legislature tightened up in this area to try limit such apportionments. I suspect some litigation will continue in this area since most law changes are subject to intrepretation by the courts. At the seminar there was a lively debate on how to analyze this new law but it may well take a few years to fully define how to apply it. However the law generally will help claimants resist apportionment in many cases. As a claimants lawyer I shall assume there is to be no apportionment of permanent total or permanent partial benefits unless it fits into one of these exceptions which are rather technical:
1. Permanent total disability claims where the last injury is an occupational disease and there is a dual non-industrial component to the total disability that is not genetic. In that case it remains a question of fact for a hearing Judge to decide and vocational/medical evidence will almost always be needed. An example here is a breathing problem from both saw dust and smoking that results in total disability.
2. Permanent partial apportionment may occur if you've had a previous rating and award/settlement of a workers comp case involving the same body part. Example, you had a low back rating and award at a specific disc level which is re-injured at a later job.
3. Permanent partial apportionment may also occur for a prior non-work related impairment to the same body part provided it was identified, treated and remains independently disabling. This will not be easy for insurers to prove but will be a case by case issue. My view is that the word "disability" is not the same as impairment. In those cases where the claimant returned to work and remained fully functional I simply do not see a basis to apportion.

Try a Diversion...Ruth's Cookies

Okay...this is not about workers compensation or Social Security disability. It is just about something as simple and rewarding as a cookie. Nothing earthshaking but there are times despite the stress and troubles in the world that we all need a time out and a time to just enjoy life. Ruth's Cookies has been a bakery I've known about for years. But what they produce is not some store bought version but a real cookie. The type that melts in your mouth and gives you an instant rush. They used to be out east but now are on the westside. I must admit their cookies are my favorites and by accident I came across them as I was driving on the westside. I was delighted to have rediscovered them and quickly bought a dozen snickerdoodles. Just think...only a simple cookie. That is about as far removed from controversy and disability as is possible. Time out to just enjoy.

The Disability Plan of Obama

I came across this proposed plan put out by the Obama Biden people. If I can find anything on a disability approach by the McCain campaign I will also post it. This link sets forth what I do consider as an interest in helping those with disabilities. It includes (scroll down the link) some ideas regarding Social Security disability. One big problem is the incredible delays in the system. When I see someone trying to address it then it sure beats a do nothing approach. In any event here is the link.

Amendment 57 Injured Worker Remedies (Withdrawn)

The upcoming election has on the ballot Amendment 57. Well that was the story but this has been withdrawn even though its on the ballot. Amendments 53,55,56 and 57 were withdrawn by the Dems. I will not bother to discuss all these but Amendment 57 was an effort to help injured workers by adding another claim that could be filed. However it is beyond workers compensation coverage. In the past workers compensation has been considered the exclusive remedy for a work injury. You could not sue your employer for an unsafe workplace. You could not recover for pain and suffering or punitive damages. Your remedy was limited to those benefits allowed by Colorado workers comp law. If this law passes it opens the door to new civil claims with a jury trial for unsafe workplaces that cause damages to workers. However it only applies to employers with ten or more employees and it prevents a double recovery for the same losses for which you received workers compensation benefits. I prefer that we increase benefits within the workers compensation system but this proposed law does offer a new approach. Sadly some workers comp cases really do not fairly compensate injured workers. I am especially concerned about cases where you lose your trade but receive an amount set by law which is simply inadequate. This law, if it passes (but realize it is now withdrawn from the voters), opens the door to further civil claims and frankly injured workers deserve more. Insurers can contest claims and use the law to limit benefits without regard to the inhumanity of it. Pain is poorly compensated. Often the injured worker loses his job and his health and is expected to just move along with low benefits. This proposed law lets you present it to a jury who may understand the true losses that are experienced. What does seem clear to me is that the true losses from a work injury must be compensated whether by this withdrawn effort or others that loosen up the tough laws that hurt injured workers over the last 15 years or so.

Changing Offices

We've just finished moving offices and it went quite smoothly all things considered. I had been out near the Citadel Mall area at one office for some 16 years. It was an excellent office but time for a change. We moved just north of downtown to 730 North Weber Street and also to another location more convenient to our operations. It's a 21st Century way to operate. The problems of moving after such a long time are significant. We had an enormous number of files. We decided on a new phone system and of course needed new stationery. All the details were handled although we are still waiting added changes to our phone system. What sticks with me as we went through with the move is how many people we've represented over the years. It was a trip down memory lane as I reviewed all of our records. Some of those cases were considered lost causes but turned out fine. It reminded me to keep emphasizing to people to get an experienced attorney on your side if at all possible. Even so called lost causes need not be so with competent help. Thinking an insurance company will max out your benefits is unrealistic. You may even think everything is going along fine but please understand the insurance wants to save money. That fact means they seek to minimize and close a case as soon as possible. It is the nature of the profit system and it conflicts with obtaining maximum benefits in almost all cases. With an attorney you increase the odds in your favor often by 50 to 100 percent or more.