All About Claims Newsletter March 2011

The Colorado Division of Workers Compensation has just released a new newsletter. In it you can read the comments of former Judge Jaynes who recently passed away. There is also something on the DIME (Division Independent Medical Exam) process. The newsletter approach is a good one and would be even better if it were a regular feature. Giving us a glimpse inside the state agency makes it rather unique. Being able to just talk about things in a very informal way is helpful. It puts a face on what we sometimes see as bureaucratic when actually it is human. Many good people do their best in this field. The field itself may need much improvement but those who work in it have not been the problem. In fact looking back on the many years I have been doing it I have to acknowledge that the people at the Division and those handling hearings have been, for the most part, very decent and intelligent people. They are decent because they are respectful of others even when they must follow the rules. They are intelligent in doing their best to be fair and legally accurate in what is often a very complex field. Most of them and most who practice in this area believe they are making a difference as do I. Having said that I should add that some adjusters and employers do not play fair at all. Yet dealing with them can be difficult but also very rewarding when done right.

Colorado Injured Workers Survey

Over at the Colorado Division of Workers Compensation they just posted the results of a survey now required by law. Once the case is over or close to over a survey request is sent out to the claimant. For this first survey not that many responded but it is enough to tell us something. The survey itself asks about courtesy, promptness, medical care and overall satisfaction. The weakest area, according to claimants finishing their case, is in disputes being promptly resolved. Amen to that as delays are common in a field originally set up with good intentions. Most cases seem to take 2 years if they involve a serious injury and an attorney. Some cases go much faster but often it is because they are being treated as minor. I have always planned on at least a year but it does depend on the injury and how much medical care is needed. Even then many cases seem to drag on largely because the system has remedies that take time to work through. A Division IME adds a minimum of 3 or 4 months to the process. You file this paper and wait for the other side. Then they file and you respond. Then you wait for the Division to give you doctor names and then once selected there is a window within which you must set the appointment. Even then it takes time to receive the report and more time for the insurer to act before the claimant can act. It is a bit like a baseball game as the law gives each side a time at bat so no matter how fast you want to go it takes time to line it all up. As for the survey results you can access them by clicking here. Pinnacol received a 3.6 grade out of 5 for overall satisfation. Zurich Insurance was a 4 and the worst among the larger companies was Kroger at 2.5 but all the results have been posted. You may need a spreadsheet program to look at it all but what it tells me is that the overall grade is like a C or C plus. Let me add this...it is not good enough for those disabled and relying on a government mandated compensation program to say it was just okay. Claimants are often hurting physically, financially and are also stressed by the situation even under the best of circumstances. They deserve courtesy, promptness and decent medical care. To me the lower the grade the more adversarial the company. Persistent low grades on surveys may warrant further review or further regulation.

Social Security Compassionate Allowances

Those seeking Social Security Disability often have to go through a long and tedious process. You file, get evaluated which takes weeks if not months and very often are then denied. In Colorado you can then appeal and seek a hearing. However any hearing date is delayed for many months. I have been figuring on it taking a year or longer for the hearing and decision. Even when you win the matter must be processed for you to begin receiving benefits. If I had to estimate the time from beginning to end I would have to say the process will take over 1 1/2 years. Typically from the time you start to the receiving of benefits is long but I say that if you can no longer work get the ball rolling on this. Doing nothing is foolish as there may be things you or your attorney can do to get ready. But there are exceptions to all this. Sometimes people are granted benefits right off the bat. Most of us are not that lucky. Despite any delay if you obtain benefits you may get them backdated to a point 6 months from when your total disability actually started. That is the rule for everyone and the date of disability or onset is not always easy to figure out. Often the judge will do so in his decision. Anyway the point of this blog posting is to make you aware that the agency does have a fast track in certain cases. It is called Compassionate Allowances. For example if the person has early onset Alzheimer's disease they can be fast tracked. In other words certain serious problems can be expedited so benefits flow faster. There are at present some 88 diseases and conditions but this list can get expanded from time to time.

The Zolman Case on Bad Faith

The Colorado Court of Appeals just issued the Zolman decision on March 3, 2011 that concerns a civil claim for bad faith against Pinnacol. In this case which arose out of a workers comp case the claimant was upset with Pinnacol denying treatment and denying a change of physicians. A separate lawsuit was started alleging bad faith. This can mean a trial by jury on whether Pinnacol acted in bad faith which involves acting unreasonably. Pinnacol filed a motion for summary judgment against the civil case which was granted. This was affirmed by the Court of Appeals. So the claimant or rather the plaintiff in the bad faith case lost the case. Summary Judgment is a severe action and historically is not granted if there are questions of fact that should go to a jury. In Zolman there certainly were questions of fact on what is appropriate treatment so you would think the issue of how reasonable Pinnacol was should go to a jury. That is Pinnacol had what it believed were good reasons for denying and the claimant had reasons for saying it was unreasonable. It was a battle of medical experts which is common in this area. Yet the Court decided Pinnacol acted reasonably as a matter of law. Certainly when there are no genuine issues then a summary judgment is appropriate and that is what the case says. What I find puzzling is the use of the concept of "fairly debatable" apparently as a basis for concluding Pinnacol acted reasonably as a matter of law. As I understand it they are saying that the need for treatment was fairly debatable given doctors did side with Pinnacol but to me if there are doctors going the other way even if the dispute could be reasonable you still could go to a jury. On November 10, 2010 another panel of the Court of Appeals in Sanderson did decide that fair debatability alone does not defeat a bad faith claim. You have to wonder if these two cases are reconciliable on the basis to grant or deny summary judgment. In any event Zolman does have the Court deciding that Pinnacol's actions did not rise to the level of bad faith.

Pinnacol Has 3 New Board Members

The Denver Business Journal is reporting that 3 new people were voted onto the Pinnacol board by the legislature. One of them was highly critical of Pinnacol so it will be interesting to see what comes of this. Pinnacol Assurance is Colorado's largest workers comp insurer and has a long history. It was originally set up by the state and is a hybrid of public and private interests. Pinnacol wants more autonomy and yet many in the state legislature are upset with how it now operates. See for example one recent legislative effort in an article in the Denver Post. However Pinnacol does have points going for it. I have previously reported on this so this is just another entry in an ongoing story.
UPDATE: New Board votes to take away the CEO's bonus and in this article in the Denver Post more is discussed about Pinnacol.

Colorado Drug Card

In that many Colorado residents on Social Security or with work injuries may have financial problems or even denials of coverage Colorado does have a Colorado Drug Card. Moreover anyone at all can obtain the drug card so it does not matter what your income. Locally KRDO did an investigation which can give you a better idea about the card. Does it work? Yes although not every pharmacy may know about it. Seniors and those on a tight budget should especially take heed. While it may not always be a big benefit the card is free to all and just let them know by asking for the discount. Additionally for injured workers there is the Injured Worker Pharmacy which has its own website. Apparently a number of attorneys do let their clients know about it so it is another resource that may lower the stress level for claimants. Often a claimant cannot obtain a medication and my view is that you should try to follow through with what your doctor has prescribed. It may turn out to be covered or not but your health should be a primary. In any event always keep receipts if you pay out of pocket as perhaps reimbursement may happen.
Also...El Paso County also has a free drug card that may be helpful too.

Unrepresented Claimants Revisited

In 2006 I posted on what resources were available for those who do not have an attorney to handle their case. That is now outdated. Sometimes attorneys will not take your case. There are many reasons for this and not always personal to your case. You may have a very good case but the attorney is busy or going in a different direction. Other times the attorney may conclude that your case has merit but does not fall into an area he wants to handle. Still other times an attorney decides there is not enough at stake to commit himself and his staff to your case. By all means keep looking for an attorney even going outside your locale if you have to do so. But if you must proceed on your own the state does provide useful information for you. You should contact the customer service people at the Division. They can assist when you do not have an attorney. There are many resources and much information available to you but I caution you to be thorough and not assume it is all common sense. Workers comp is a creature of statute, cases, rules and guidelines. All of this except the cases are available to you on the web. On this blog we often will post appellate cases. Also there are lower level decisions with caselaw you can review. Also read the publication for injured workers. At this link learn about non-lawyer workers compensation. Also at this link you can read an Overview of the Worker's Compensation Claim Process. Also from this page you can read more about representing yourself in proceedings including a non-lawyers guide. Be aware that anyone involved with a claim may also be involved with two agencies the Division of Workers Compensation and the Office of Administrative Courts. Information on this distinction can be read here. These links are important pages but really just explore what Colorado does have on the web so that you are as informed as you can be. A word of caution: represent yourself only as a last resort...this area of law is complex and difficult to navigate. But it is not impossible and if you must handle it yourself read the above and use customer service noted above.

Retaliatory Discharge and Temporary Benefits

In a recent Industrial Claim Appeals Panel decision I'll call Gaines there was a retaliatory discharge of an injured worker. The worker was hurt and complaining about the employer not filing a report of injury or providing further medical help. As a result she was taken off the work schedule. Since she was not working and attributed it to the reprisal for her work injury she sought temporary benefits. The hearing judge denied her such benefits saying a reprisal is not a reason for temporary benefits. She appealed and the Panel agreed that the reprisal alone is not a proper statutory basis for temporary benefits but then remanded the case to the hearing judge to address whether her possible restrictions from the injury should entitle her to temporary benefits. Apparently this was not fully looked at by the hearing judge. There was evidence of restrictions but the judge did not adequately address that issue. The reasoning here appears to say that a claimant has to show both a medical problem and loss of wage due to an inability to work or restrictions which impair that ability. A reprisal alone is not enough. However such a reprisal may result in a separate civil claim for retaliatory discharge. The point being made is there is a distinction between a reprisal for having a claim and actual time and wage loss due to an injury. Let's say you fall out of your chair, complain it hurts even if temporary and want to file a claim. Your boss then just takes you off the schedule. So you are fully able to work but in reprisal they give you no hours. Under the Gaines case, as I read it, you'd receive no temporary benefits because you can work and really have no injury. It may be wrongful but your loss of pay is due to reprisal not to the injury. My preference is that this loss due to reprisal or retaliation be able to proceed in the workers comp case rather then in a separate civil case. The reason is that any separate civil case can take many months but the worker is receiving no income directly due to a work injury incident. But my preference is not the law. It takes disability not just reprisal to obtain temporary benefits though in Gaines the remand was to force the hearing judge to decide the disability issue.

The latest data on Social Security appeals and judges

If you are wondering how long it may take to obtain a hearing once you appeal the answer depends on where you live. It is reported that in Colorado Springs the delay to a hearing or disposition is 431 days. While they have been trying for years to speed up the process over a year remains a long time to wait. An attorney may use that time to obtain more reports or assessments but the wait is still too long for many people. In Puerto Rico the wait is shorter. In one office (Mayaguez, PR) the wait is 177 days. Then again in Lansing Michigan you can take 566 days to a disposition. Yet have the claim in Livonia Michigan and the wait is 257 days. Seems not that complicated to smooth all this out but apparently it has been tough to achieve. Waiting too long is much tougher on the disabled so wish they'd get it right. I realize it can be a matter of staffing and numbers but when video hearings are now permitted I fail to see why such a huge variance is tolerated. Last you can look up the latest figures for any judge at the website that compiles this data. You can look up what each judge in Colorado Springs is doing with the cases he or she is handling. What I saw in the latest stats is that 4 out of the 5 judges are somewhat more favorable to claimants and one is statistically denying more claims then issuing favorable or partially favorable decisions. We all know that statistics can be misleading and the types of cases a judge may be involved in can make a difference. The problem is when we discuss the odds we have to say its 50 50 but for some judges your odds are over 60% of obtaining an award. No question the older you are and the more restricted you are the better your chances but each case requires a very individualized approach.

Does Charlie Sheen Have a Workers Comp claim?

Here is just some humor: Over at The Spoof they posted a bit of satire about Charlie Sheen filing a workers compensation claim. If so does the rehab at home become a medical benefit? Of course any temporary benefits would be quite limited. They allege that given his job entails a certain lifestyle his "research" into his character should be covered since he sustained injury. I am not sure what injury but he was hospitalized so does he have a claim? Some might say he was on a frolic or detour of his own. In Colorado would his treatment even be deemed authorized? So many issues so little time. I would bet that at any hearing there would be very interesting testimony.

Retired Prehearing Judge Ron Jaynes Passes Away

I was just notified today that retired Judge Jaynes passed away this morning after a long illness. There are no further details yet. Judge Jaynes retired in 2009. What most impressed me about him is that he was very down to earth and always polite. In a day and age when we are often having to pierce through a cloud of confusing details you always knew that he would try to keep it simple and understandable. He could do so with a sense of humor too. You can see him in this 2008 newsletter on page 3. Rest in peace.

Update: Services for Ron Jaynes are Friday, February 11, 2011 at 1:00 p.m. at Highline Community Church, 6325 South University Blvd, Denver.

The FCE in Workers Comp

An FCE is a functional capacity evaluation. Often in a workers compensation case a doctor wants an FCE. It may be through his office or set up at another location. A true FCE may take several hours of testing a person's physical functioning or at least whatever functioning is sought by the doctor. You can consider it almost a tool used by the doctor to define your work related restrictions. Years ago the doctor would simply rely on his own best judgement to set your restrictions but the desire for a more accurate evaluation led to what we now call an FCE. Often it is done through a physical therapist and results in several pages of data which the doctor may or may not accept. Usually the doctor will accept the FCE results but the doctor has the option to form his own opinion. He can therefore totally adopt the FCE or adopt portions of it or only what he believes is appropriate. A claimant may be asked to lift various weights and perform other activities. Sometimes your blood pressure is taken since many in pain from activities can have a spike in their blood pressure. Similarly if you complain about high pain from an FCE activity but without any blood pressure elevation they can question your situation or so goes the theory. My impression is that an FCE can be useful information for the doctor but it does depend on the therapist and the doctor. In other words it is not purely objective. Also I have noticed that those with severe disabilities can have problems with an FCE. My guess is that they are more guarded or do not handle the structure of an FCE. Stamina may be a factor and of any results considered invalid my experience is that those most disabled have the hardest time with the testing. Last in my locale many FCE's include a claimant's range of motion measurements. While separate from an FCE the doctor may want the therapist to do the measurements that help the doctor with his impairment rating.

Repeal of Healthcare Effort and Medicare

By now we all know of the effort to repeal what some call Obamacare. It cannot pass Congress and withstand a veto but the effort is being made anyway. The Medicare Rights Center has put out a press release which brings home the point that repeal will harm those on Medicare and also increase the federal deficit. They go into detail and alert us with real life stories. Sometimes in pursuit of an agenda many overlook the truth because it conflicts with their beliefs. Healthcare is so controversial that it makes for an adversarial situation which is obvious in today's political climate. We all lose when the problem is not addressed and solved.

Brown Bagging It on ICAP cases

Once a month an administrative law judge has a brown bag lunch where he reviews cases of interest to those in the Colorado workers comp field. These cases are not readily available to the public although most attorneys in the field have access to the decisions. The Industrial Claim Appeals Office handles a great many appeals from hearings held at the local level. Many such cases never get appealed further and the next stage is to the Colorado Court of Appeals. Judge Eley is well liked and respected by most attorneys in this field and his free Brown Bag Lunch Seminar is well attended. Even if you cannot make it he emails you the materials and an audio of his presentation. Today is the January lunch and from the materials I have already received I note two cases that are exceptionally interesting to me and perhaps to most readers. The first can be called the Wheeler case. The claimant was admittedly permanently and totally disabled and thus entitled to PTD benefits. The issue was how to compute those benefits where they are paid out every two weeks perhaps for life. So the case involved AWW which is average weekly wage. The claimant when hurt at work was earning a very low figure if you look at her actual average wage. Respondents said it was under $75 a week. However vocational evidence was provided which helped show that the rate would be much higher then her actual wage at the time of the accident. While this must all relate to the date of the injury a Judge does have discretion to depart from your actual wage and consider loss of earning capacity. Here the difference was enormous though any calculations still are based upon the law as of the injury date. The judge applied the law as of the date of maximum improvement which was a mistake. The claimant still won big here.
The second case involved a fall at work. Caselaw tells us that not all falls at work are really work injuries entitled to benefits. The claimant in Landes was determined to have a work related tramatic brain injury injury which arose from work activities despite the fact he had amnesia and remembered nothing about the fall. Often Respondents will assert it is the claimants burden to prove his case and falls can come for many reasons. No change in the law from this ICAP decision favorable to the claimant so it is up to the hearing judge to decide on the evidence presented. There was a dissent that essentially said the evidence was speculative either way making the fall unexplained and not compensable.

Pinnacol Golf Junket for Executives in 2010 Hits News Again

Channel 9 News and other media in Denver are reporting today on last years golf trip by Pinnacol executives. Pinnacol was required by a court order to disclose this information and as might be expected it is raising eyebrows. Some are saying the chief executive should resign. It does seem outrageous especially when you realize Pinnacol is meant to be nonprofit. Things like pink golf balls for the ladies, lavender pedicures, and even over $400 spent at the airport lounge and over $7000 in room charges for the chief executive. The total? Over $300000.00 for this Pebble Beach Golf trip. It is also reported that state auditors criticized Pinnacol for its lavish spending history in September. Pinnacol fought to prevent release of this information but had to do so. Now many are very upset at Pinnacol. Since Pinnacol is a mix of public and private the disclosure could not be kept a secret as can be the case with private companies. I imagine that compared to others such as the financial bank companies this is not that horrible or lavish but tell that to the injured worker of even the small business that is pinching pennies in these hard times.