Scheduled Injuries the latest way to figure benefits

Anyone who hurts their arm, leg, hand, foot at work is often shocked to learn that in Colorado there is a separate way to figure their permanent impairment benefits. So unless it can be considered a whole person injury by a judge or it results in a possible claim for permanent total disability Colorado law says it is paid by using the "schedule" for the injury. The problem is that these injuries are treated as not as important so they are paid lower benefits. At least that is how Colorado law makes it out. It is ironic but some people lose their trade and have a horrific drop in earning ability but insurers pay following the schedule. Roughly for every one percent of your arm or leg that you are permanently impaired means $500 for you. So ten percent of your arm is about $5000.00. You can figure this out yourself by looking at the chart here. You multiply the doctors rating by the number of weeks in the chart by the amount shown based on your date of injury. I assure you if your entire arm were to be amputated or useless the permanent benefit would be under $52000.00. Again there are exceptions. Also much more can be considered in a settlement but insurers relish the low payouts. I've said this before...Colorado should abolish this terrible way of calculating a permanent injury. Imagine a carpenter who can no longer grasp a hammer and do his job. His earnings loss over his lifetime could be enormous even if he goes to work in another field. Or, consider the fellow who plays a musical instrument and makes good money but loses his trade because of the work injury. The problem with the schedule is that it completely disregards your pre-injury earnings and pays a flat amount even when you lose your trade/occupation. I can say if the injury affects both arms or hands or both legs we do seek to make it a bigger case whenever possible. There are variables where even a small injury can mean a major claim but this is not true for everyone. In contrast if you hurt your back it can mean much higher benefits because the permanent figures do use your wage rate and your age. These variables often make the calculation much higher.

Social Security Administrative Law Judge History

Each judge in the Social Security disability system has a track record. These records are maintained by the Social Security Administration but were only recently opened to public viewing. The link right here is to the site that deserves much credit for forcing the records to be open for anyone. If you know the name of your judge you can type it in and find out his decision making percentages for the last 3 years. Of course these are but statistics but I have researched a few of the local Judges. Judge Ball issues favorable decisions at the hearing stage 62% of the time, Judge Maddigan 68%, Judge Musseman 48% and Judge Shaffer 70%. What it does suggest is that seeking a hearing after you have been denied can give you a decent chance for a fair decision. These Judges do not just approve the denials so many receive.

Reduced Aid to Needy Disabled

I guess I am always surprised when the disabled are treated as worth so little. They are often helpless physically and financially but to hit on them to save money seems way out of line. As reported in the Coloradoan the benefit called Aid to the Needy Disabled in Colorado has been reduced effective January 1st to no more then $200 a month. This is not Social Security Disability but is some assistance for the disabled while they perhaps wait for Social Security disability benefits. I researched this a bit and it seems about ten years ago the benefit went from $229 to $239 a month. To roll back benefits in this area seems incredible to me. Surely in these economic times there are other places to save then cut benefits for those most vulnerable.

Impairment vs. Disability in Workers Comp

A number of years ago Colorado joined most of the other states in changing permanent disability to permanent impairment. With respect to permanent disability unless you are totally disabled your benefits are limited to what is called impairment. You receive a "rating" from an authorized doctor or a Division IME doctor and unless overturned your benefits are based on this impairment rating. This amounts to the medical people deciding on your legal benefits by determining your impairment. While the judge can decide which rating is correct it is still a function of anatomical damage in almost all cases. The older historical basis of determining your loss of earning capacity was discarded. So let's say you are hurt and lose your trade and it means a true loss of future earnings over your life. The amount you'd receive is still based on the rating although for whole person injuries the formula does include an age factor and a wage factor. Still it is not an individual assessment of your loss of a job or trade. What Colorado and most other states did was say that physicians must use the American Medical Association Guides that are published to perform the rating. In Colorado we use the AMA Guides 3rd edition revised. This is old. They are now publishing the AMA Guides 6th edition. Is this edition better for injured workers? Nope...it's worse. Any edition of the Guides will say that it is not trying to determine disability only damage to the body or psyche. In the real world it is used to determine benefits in what used to be a legal question of disability. Also in my opinion the editorial board assembling the Guides are largely composed of doctors who are not really claimant oriented. The 6th edition seems to now be diagnostic based rather then measurement based on your individual range of motion. Claimant lawyers are highly critical of this and also well aware that the ratings coming out from this are often much lower then the 5th edition. Colorado has stayed with the 3rd edition revised but my concern is that all such impairments are artificial ways of paying benefits. The whole concept of paying for your disability has been hijacked by this impairment rating process. No one seems to care if you lose your trade. All these "reforms" did was to remove permanent disability issues and replace them with artificial ways of calculating benefits. I do understand that insurers wanted to save money but for that we have caps or limits in total benefits. What they did to the purpose of workers comp has always bothered my sense of fairness in compensating injured workers. The only exception is when you are totally disabled. Then the rating is less important and consideration is given to your age, education and lack of employability. I am including an excellent link to an audio discussion that interviews the prime proponent of the 6th edition and also a claimant's attorney. It is long but quite a listen. That link is here. Additionally a crtical review was written and put at the LexisNexis website here.

Wondering About Social Security Entitlement?

I came across a simple website run by the government that lets you answer some
multiple choice questions to see what, if any, Social Security entitlements you might be eligible for. It's pretty basic but it is very simple to use and may give you some insight as to what programs may be there for you. You do not post any personal identifying information. It is just a tool to see what pertains to you. If you want to talk with a representative at your local SS office (rather then use online resources) you should call them at (719) 574-9279 to see if you need an appointment. Often the office visit can take a while. Should you wish to apply much information is needed such as the names/addresses of your doctors and employers for many years. Also be aware that when you describe the jobs you've done do not be incomplete or inaccurate. Realize that disability in its simplest sense means that you are no longer employable. So if you can physically/mentally do one or more of the jobs you've done in the past 15 years on a sustained basis then you're not disabled. If you've done very easy work then they can wonder why you cannot do it again. Needless to say an attorney is often needed since denials are common. Also in this area your doctor can be very important to itemizing your problems and restrictions. Anyway click here for the eligibility tool.

Changing Physicians by statute and rule

Traditionally in workers comp in this state you have a physician designated to provide you with medical care selected by your employer (who in turn usually has been provided with help on this by the insurer). Then if you were unhappy or just needed another doctor you had three ways to do it. You could agree with the insurer to a new named doctor, or you could send a 20 day letter per 8-43-404(5)(a)(VI)that you want a certain doctor who then would be your doctor if the insurer did not timely respond denying it. Last, you could seek a hearing. If there was a dispute on this you'd have to seek a hearing and that takes time to schedule. In a practical sense it was not easy to get a fast change. To this traditional process was added another way and a new wrinkle. Now the employer has to provide you (in writing) with two providers for you to pick from. If not you can choose your own doctor. It also allows for you to switch between the doctors. Sounds simple but it's not. You only have 90 days to do this from your date of injury. You have to comply with the statute at 8-43-404(5) and with the rule noted as Rule 8-5. You have to use the form provided by the Division. In fact they are proposing a change to Rule 8-5. So what do you do? I'd check the Division website for the latest information and proceed from there. Remember though if there is a dispute then you may still need a hearing unless it can be quickly resolved.

Happy Holidays!

Avalanche Industries Supreme Court decision Dec. 15, 2008

Back on March 22, 2007 I reported on the Avalanche decision at the Court of Appeals level and then noted it was up before the Colorado Supreme Court. The court decided the case on Dec. 15, 2008. Briefly the court decided that a Administrative Law Judge can decide that your wage is whatever is fair and just. It is not necessarily simply what you were making at the time of the accident. In this case the claimant was earning a wage and paid out for permanent partial disability but retained her right to reopen. She did reopen and her higher new wage and health benefit was what was used to calculate her increased permanent disability. She was now totally disabled so benefits were long term at the much higher calculation. The other side said the law restricts average weekly wage calculations to what you were earning at the time of the accident. The court determined that there are two ways for a judge to decide matters. He can decide based on wages at the time of disability (not just accident) or if that is unfair he has the discretion to decide what is fair even if it is a later and higher wage. There were dissenting judges but the case was specific in its analysis so injured workers win big here. Read the case here.
Postscript: I am advised that the facts may not be correct in that the claimant was not seeking permanent total benefits as reported by the court. Further a rehearing is to be sought. I do not see this as affecting the legal determination that an Judge can decide on average weekly wage in his discretion but we shall see what happens. UPDATE: the Court corrected the decision on Jan. 20, 2009 and it can be read by clicking here.

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.