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.

Continuing Legal Education WC Webcast

Attended a seminar on Colorado Workers Compensation today. For the first time I did so by what is called a webcast. The weather in Denver was projected as snowy so my plan to attend in person became a problem needing a solution. The solution was something called a webcast. It was televised over the web for those who signed up. The materials were sent to my email and from there I could open it up and watch the seminar. This was an all day affair although given the weather they did break a few minutes early. Usually these seminars pack a great deal of material into the day. That meant reviewing many cases, a discussion on the Medical Treatment Guidelines, ethics, rules, recent important legal points and lastly a presentation by two doctors on what used to be called RSD and is now abbreviated as CRPS. You can view more about CRPS by reading the material on it in the treatment guidelines noted above. Webcasts like this save time and today let me devote the time without concern for the weather.

Pinnacol Worth $374,000,000?

The Denver Post is indicating that Pinnacol Assurance is worth $374,000,000. This follows last months effort by Pinnacol to pay $200,000,000 (some cash some over time)to the state of Colorado for greater autonomy. Pinnacol is the largest workers comp insurer in the state and is a hybrid of public-private insurance having been created by the state and yet is now seeking,in my opinion, to be as close to a private company as it can get. In tough times when the state budget is having its own problems Pinnacol is making the state think about getting some cash from it to ease the state's money woes. This seems to be an ongoing story that just keeps going so will the state try to cash out of Pinnacol or structure a cash settlement with it? Time will tell but I do know that any cash figure that is paid out over time is not valued by totaling the sum of the payments. When you buy a house and pay for it over time that is not the present value of the house if you had cash in hand.

Proposed SB 10-163

This recently submitted and proposed bill just may pass. It seeks to spruce up certain prior laws of 2009 and have new or old cases have the same procedural laws at least in certain areas. SB 10-163 as currently proposed can be read here. It contains a number of significant matters. For example if the insurer/employer seeks to withdraw an admission and totally contest the claim the proposed law makes it their burden no matter how old the case. In the old days when they did this the Judge would turn to the claimant and say it is your burden so prove your case even though it was admitted and benefits paid for many months. Imagine going to seek an increase in your benefits and being told...well we changed our mind so now you must prove your claim is even valid or compensable. That scary situation was changed in 2009 but the proposed law now applies even to very old cases. Another proposal is to have the law regarding audio recordings by insurer IME's also apply to all cases not just the more recent cases. So if you have an older case but must go to an insurer independent medical exam (no such thing exists in my opinion when one party handpicks the doctor) that doctor may have to comply with the law mandating audio recordings. A couple of other wrinkles seem interesting to me. They require the mortality tables be adjusted yearly or the fed table be used. Mortality is important as the longer your life expectancy the more you seek in a settlement in many cases. Also the proposal seeks to end the game of sending someone a fax or email but using regular mail to notify the other side. It makes such communications more uniform in delivery. It is my belief this proposed bill is broadly supported so it may pass.
UPDATE 3/19/10 : This bill passed and is headed to the Governor for his signature.

Appealing in Workers Compensation

In Colorado when a workers comp dispute has not been resolved one of the parties or both of them may seek to proceed on the disputed issues to a hearing. Should that happen an Administrative Law Judge (ALJ) will likely issue an Order deciding the disputed issue or issues. So if the decision goes against the claimant or in favor of the claimant it does not mean the matter has been resolved. One side or sometimes both sides have a right to appeal. The next stage is ICAP (Industrial Claim Appeals Panel) when an appeal of the decision is sought. From there you can appeal even further to the Court of Appeals and perhaps even to the Colorado Supreme Court. You can read some information on this process by clicking here. In this process there may be good news and bad news. You can win at the hearing and lose at the appeal or even lose at ICAP but then win at the Court of Appeals. Even if it is all good news and you are winning and winning through this process the bad news is that it all takes time. It is not good to be owed money but payment is delayed for many months during an appeal. Let me give an example...the insurer admits you are permanently partially disabled and even begins paying those benefits but the claimant says he is permanently and totally disabled. This dispute may go to a hearing and then an appeal but does the claimant continue to get benefit checks during this process? Not always. The other side may pay but only as much as it admitted for even though it lost at the hearing. It is allowed to appeal and to contend the hearing judge was wrong. This entire process can take over a year or even longer and while statistics tell us the hearing judge is more often affirmed then reversed the delays can be financially tough to handle. Of course there are times the claimant loses and after appeals the judge is reversed. This might mean a lot of back due compensation is due a claimant. Nothing simple or quick about appeals but at times they are necessary to resolve some cases.

The ICAP Case of the Dirty Money

It seems that a claimant was picking up trash when he saw a $5 dollar bill in the trash. In the act of getting it he scrapped his hand on a Yucca plant. The skin was not broken but it became infected. The Respondents disputed the claim by bringing in a doctor who questioned the infection because the skin was not broken. They also alleged the act of picking up the $5 was a personal deviation and was not within the course and scope of his employment so it's not a work injury at all. In other words he was to pick up trash not cash. The case did not get into what is trash or is dirty money really trash or if he didn't pick it up isn't it then litter and on and on. The hearing Judge determined it was a work injury and also used a doctor for the claimant to determine the skin need not be broken for infection to get in at the spot of the scrape. The Industrial Claim Appeals Panel also known as ICAP affirmed the hearing judge. Of course we never get the answer to the question...can cash be trash?

First Colorado Workers Comp Educational Conference

Just announced by the Director of the Division of Workers Compensation is the first educational conference in what may likely become an annual event. Aside from educational information on the law, rules and the like there will be workshops and an Exhibit Hall so that all manner of professionals and more may interact and learn from each other. This event is set for September 16-17th, 2010 and may be well attended. I know I am interested in it so will try to attend and gain insight although it would be nice to obtain some continuing education credits. You can view the announcement here.

Pinnacol in the News Again

In the Denver Post Pinnacol is again in the news for making what is said to be a $200 million dollar offer to Colorado. It is said they want a number of things but in return would pay the state $75 million one year, $75 million the next year and then $50 million over 30 years. In return it wants certain concessions and to have some of the currently pending legislative efforts go away. Although the details remain to be worked out and there is much criticism of Pinnacol the state is in a financial bind so I am sure that negotiations will continue. What if anything that will be worked out remains to be seen. Pinnacol Assurance handles a majority of the work injury claims in Colorado and while I realize Colorado like much of the country is financially strapped I do think any deal should not harm the best interests of injured workers. Time will tell how this all plays out.
UPDATE...FEB. 23, 2010...Senate President pans the idea for now but we shall see as it may depend on further negotiations or how bad off the state budget may be.

Impairment Rating Tips February 2010

Colorado workers compensation claimants who reach or seem to have reached MMI (maximum medical improvement) are often rated by an authorized treating physician or if requested by another doctor in an Independent Medical Examination. The Division has just issued its new Impairment Rating Tips. These are recommendations primarily for the use of the rating physicians but they are useful to others. The tips are 7 pages so quite a bit of ground is covered. One tip concerns the use of what is called contralateral measurements. This tip seems to allow a doctor to measure the uninjured side and compare it with the injured side. My view is that this seems to disregard the AMA guides for Colorado which set forth how to rate impairment. By statute (see CRS 8-42-107(8)) the Guides instructions seem to be required. Setting them aside for another way to calculate in my view conflicts with the law but the contralateral tip is there to read. These new Tips are an interesting read and I'd suggest spending a few minutes to look them over. While these are not legally mandatory since they are written primarily for physicians we may see them referred to and followed by them.

Pinnacol's Position on Pending Bills

Here is a link to Pinnacol's viewpoint on the currently proposed bills at the Colorado legislative level. They have expressed disapproval of the proposed bill to limit surveillance by saying an investigation is not just to stop fraud suggesting the bill is too restrictive. However my experience is that surveillance is sought to try show the claimant is exaggerating. Some investigators will follow claimants almost everywhere. They follow when you enter the supermarket, or pump your own gas, or go for walks or trim your weeds. Then they allege you can work or are not that disabled because you are seen as functional in the video. Hours of surveillance are edited down to minutes which fail to disclose all the poorly functional moments. Doctors and Judges may be faced with a tough problem when determining what is the truth. Some claimants have told me that they had taken an extra pain pill or took hours to do the task or then had to lay down but none of that is on video. But the video suggests they were doing fine. But the biggest problem I have with surveillance is the level of stalking it implies. Big Brother is watching you! Also Pinnacol is opposing the bill on conflicts of interest by claiming this is already disclosed but many would disagree with that. In any event Pinnacol does set forth its viewpoint on all these proposed bills.

Three Proposed Colorado Bills

In 2010 we will see several bills that are introduced which would impact Colorado Workers Compensation if passed. Three that have already been submitted are interesting. The first concerns putting restrictions on surveillance. Many claimants are followed and video is taken as part of an insurers investigation. I remember once walking into an opposing attorneys office and seeing mounds of videotapes. Anyone with a workers comp claim should expect surveillance especially when they go shopping. In any event read this proposed bill on surveillance here. Another proposed bill concerns increasing penalty claims from $500 to as much as $1000 a day. Read this proposed bill on penalties here. Finally another proposed bill seeks to address what it considers conflicts of interest with certain medical doctors. I would assume this is effort to prevent too cozy relationships between some doctors and Respondents. Read this proposed bill here.

Privatizing Pinnacol?

Colorado given its budget shortfall is now looking at privatizing Pinnacol Assurance. I've written about Pinnacol before but this is a new twist. Originally Pinnacol was set up by the state to make it easier for employers to obtain workers comp coverage. This was especially true of employers in higher risk areas such as construction or truck driving. The state believed it could set it up to keep costs down and for the most part that is what happened. Many private insurers will naturally want to avoid some fields or have much higher rates. Pinnacol did seem to help and more then 50% of all workers comp insurance is now through Pinnacol. Time moves on and perhaps privatizing it can mean help with the state budget and let Pinnacol be truly independent which it has said it wants. I do wonder how this will all play out but the future of Pinnacol makes for an interesting story.

New Website for Division of Workers Compensation

Colorado redesigned the website for the Division of Workers Compensation and posted it online. It certainly has a cleaner appearance and I suspect it has all that it had before. For me it will take a bit of getting used to since I was comfortable with the old website. What does happen when you give it a cleaner appearance is that it can take an extra click to find some pages. I did like the old website but it was cluttered with details. For a guy who prefers details I took to it but can see the reason to simplify it.

New Case- Respondents Cannot Pick and Choose

In this recent case just decided by the Colorado Court of Appeals that we'll call Paint Connection Plus the Respondents appealed the imposition of penalties. What happened is that the claimant's authorized or rating physician noted two injuries. For the shoulder where the claimant had two surgeries he said the claimant was at MMI (maximum medical improvement) with a rating for permanent impairment. However for the cervical area he said the claimant was not at MMI. Respondents alleged that all along they only admitted the shoulder was a work injury so they filed a Final Admission on the rating for the shoulder and denied for the cervical area. The claimant sought penalties and to strike the FAL (Final Admission of Liability). Respondents lost and appealed. At the Court of Appeals the decision was affirmed against the Respondents Paint Connection Plus and its insurer. The court noted that MMI is not divisible and the Final Admisssion was improper. There is no partial MMI and Respondents had other ways to proceed when they questioned the cervical injury. Also the FAL did not attach the worksheets used by the doctor in his shoulder rating and this was a separate ground to strike the FAL. The court ruled there can be no attachment of incomplete reports to a FAL. On penalties it is up to the judge and here they were upheld as Respondents were unreasonable in their actions.

Settlements use Specific Forms but there are twists

In Colorado the parties in any settlement must use forms called USA's which stands for Uniform Settlement Agreements. The Division put some information on this in a recent posting you can click here. Colorado in doing so was attempting to make settlements easy to understand since they are all supposed to have standardized language. Sounds simple but there are some twists here. First, there is one form to use for the pro se or unrepresented claimant and another for the claimant represented by an attorney. Next, despite the effort to standardize things the parties often have side deals that are really part of any settlement. Those must be addressed somewhere. For example often the insurer and employer may require that the employee resign and waive such matters as discrimination or bad faith. Or, there is a need to address certain medical matters. Often these side deals are really requirements for a settlement but the Division does not approve the side deals even though we all know that the parties must have them. Whether attached or not these side deals are important enough that no one should simply sign them and assume anyone at the Division will review them. They are not reviewed at all as the Division is concerned with the work injury itself. So pay attention to everything you sign as you may be giving up something valuable or dealing with certain medical issues that are important.