Colorado workers comp insurance rates to go up

The Denver Post is reporting that businesses can expect a rate increase on their workers compensation insurance coverage. This after a few years of declines. Why? The number of claims is not going up. The explanation appears to be in the continuous and unrelenting increase in medical costs. Here is the Colorado statement on all this. This rise in medical costs when the economy is not inflating remains ominous for all of us. The failure of society to address this is rather sad. We all talk about it but it takes a concerted effort and in our politically charged country we are less interested in problem solving and more in ideology. Wouldn't it be nice if they set up a task force to address such costs in a sensible way? I mean an across the board analytical review. If medications are a big factor find ways to lower that expense. If we need more nurses or practitioners find ways to increase the numbers with educational incentives. If caution leads to the running of multiple and usually unneeded tests find ways to prioritize those tests rather then run all of them at a time. If malpractice rates are too high find ways to make providers accountable without increasing those rates. I mean weed out the bad apples especially in workers compensation. Simplify the paperwork too! While I do like the medical treatment guidelines I saw recently what appears to be making it more complicated to obtain prior authorization. In workers compensation there are many disputes in what I see as primarily medical legal issues. When we go to a hearing and it seems to be a legal issue on compensability in reality many such cases involve medical causality. So some of these rising costs involve insurers hiring experts to question causality and treatment. As an example an attorney related to me that he had obtained a DIME opinion that the claimant is not at MMI. In the past this just led to more treatment and a reassessment. Overcoming a DIME historically has not been easy but the pattern is now to question everything. There are doctors out there that will nearly always assert an injury is not work related or that the DIME doctor made a mistake. A DIME would cost $675 but they spend $5000 or more fighting it. The point is not all the rising costs in workers compensation are based on purely medical matters. Some come from the insurer disputing matters. It also drags out the proceedings which I do not really see as helping the claimant needing treatment and it is costly. In any event businesses can expect higher workers comp premiums next year.

Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal. UPDATE: The Colorado Supreme Court affirmed this decision on January 27, 2014.

Chavez: Court Decision on Subrogation Rights

In the Chavez decision the Colorado Court of Appeals ruled against Pinnacol's efforts to obtain or share in a settlement made between the injured worker and a third party. Subrogation can give the workers comp insurer rights to obtain reimbursement from some other responsible party. Here the claimant was injured in an auto accident but received workers comp benefits. He then sought to pursue a tort claim on the accident against others. Pinnacol joined that case because it can assert its right to reimbursement should there be a big recovery. However in this case the employee settled what was called his non-economic damages such as pain and suffering. The settlement was set up not to prejudice Pinnacol's right to proceed but Pinnacol felt it was entitled to approve the settlement or at least that it was entitled to some portion of that settlement. The court ruled that the settlement was reasonable and did not affect Pinnacol's rights. As set up by the language in the settlement Pinnacol's ability to pursue its claims was not affected by all this so it was not entitled to any of the settlement. Here the non-economic damages that were settled involve matters never paid through workers comp by Pinnacol. Pain and suffering for example is not a workers comp benefit but Pinnacol felt it was wronged anyway. It lost in the original case and then in this appeal.

RIP Curt Kriksciun

Former prehearing Administrative Law Judge and Industrial Claims Appeal Panel member Curt Kriksciun passed away on October 4, 2011. While I may not have always agreed with his views he was truly a gentleman. As a prehearing judge especially in handling settlement conferences he was usually seeking compromise whenever possible. To do so he would chat and provide comments from his experience. This usually would have a calming effect with my clients who were often stressed by the process. My impression is that he always sought to be neutral and objective...even if it was difficult. But by being friendly and relaxed in his approach he would lower the stress level. I am sure he had this effect with many people that had matters before him. He then became a decision maker or member of the panel reviewing cases appealed after the initial decision. He performed well in this last position and I daresay the quality of those decisions improved with his involvement.
Services will be Tuesday October 11th.

New Court Case on Medical Benefits

The Colorado Court of Appeals issued a decision yesterday that concerns ongoing medical benefits. In the Hire Quest case we have a rather technical argument that is addressed by the court. It seems an example of how technical arguments get in workers compensation proceedings. In this case the parties went forward at a first hearing which addressed a safety rule violation, credits for paid temporary benefits and the permanent impairment based on a DIME (Division Independent Medical Examination). Before the hearing the issue of permanency became uncontested because the employer/insurer withdrew the opposition to the DIME doctors impairment rating. So the first hearing addressed permanency, temporary and safety rule violation issues but that judge said issues not expressly decided are reserved for future determination. Well claimant later went forward on the issue of ongoing medical treatment needed and the other side said he could not because he never raised the issue at the first hearing and it was waived. They also asserted that the judge reserving issues was not specific enough so that prior hearing closed out the matter. The court decided that the reservation was good enough to preserve the right to address medical benefits after the first hearing so they found in favor of the claimant. Common sense would tell you that medical benefits could be addressed later but the insurer tried to use a prior court decision to say the claimant was required to add the medical issues at the first hearing or else it was waived. This waiver argument is essentially saying address all issues at once or the insurer saves money by alleging too bad so sad you lose (waive) your potential right to further treatment. Even if the judge reserves matters it is not good enough unless it is a specific reservation of a medical issue according to the insurer's view of an early case they were citing. The court disagreed with that interpretation. My view is that workers comp should handle all treatment that is needed for a work injury and not made into a game of technicalities which passes the buck on treatment to others such as the taxpayers. In this case we did have the DIME doctor saying more treatment was needed and I am not sure why it was not made an issue but it could be that there was no dispute made by the insurer until later. To me you have to wonder if the insurer waived objecting to further treatment but anyway the claimant prevailed.

Recent Social Security Rule Hinders Claimants

Just recently effective the Social Security Administration issued SSR 11-1p which affects those appealing a denial after a hearing. The appeal process is an ongoing process and after a hearing you can seek an Appeals Council review and thereafter also can proceed into the federal courts. So you wait for a hearing and if, for some reason, you are denied benefits after a hearing you can pursue further appeals. This takes time but I have seen appeals take several years but finally be successful. But to any claimant this new policy is bad news. For some time if you lost at the hearing and appealed further you often would be told to file another application for benefits with a date after the hearing decision. Then you would have two proceedings going primarily to preserve your right to several months of benefits. The theory is that if you just waited on the appeal and it took 6 months or longer then when you get around to trying all over again you lost those months of waiting. Now the agency has decided not to allow that new application or so it seems on first impression. Imagine having cancer but losing at the hearing on some basis. Then you take a turn for the worst but are told by this policy that any new application has to wait on your appeal or give up your appeal to file a new application. I understand the need not to complicate matters but this policy may result in denials of due process. At least those representing claimants are quite disturbed by it. Here is one view on this and here is another and still another. I would say that this is an area that requires proceeding very carefully. This ruling is new and untested and may well be attacked by those who believe you have a right to file a new application but for now I am just letting you know about it. Time will tell how this is best handled.

Division IME Forms Including a new one WC78

You can access numerous forms pertaining to DIME's or Division IME's at this webpage maintained by the Division. It includes a new form which pertains to requesting a DIME to assess maximum medical improvement (MMI) after 18 months. Usually your treating physician determines MMI as soon as possible but there are times when he has not addressed it despite the passage of much time and treatment. The insurer may then seek to arrange a DIME to determine MMI. This new form WC78 is part of that process. Be aware that this 18 month DIME is addressing MMI. If impairment is also addressed it does not mean that is anything more then informational. In a recent Industrial Claims Appeal case I call Baca the insurer went with an 18 month DIME and then went with that DIME's impairment rating which was zero. They filed a Final Admission trying to close the case. The local judge ruled against them and struck the Final Admission. directing that the claimant return to the treating physician for the rating. The higher panel in effect stopped the appeal because that ruling did not deal with money or benefits but the case makes us all aware that an 18 month DIME may not address impairment in a way that can be acted upon by the insurer. Of course the Baca case may not be over but the form WC78 issued shortly thereafter indicates any rating by a 18 month DIME is informational only.

Social Security Disability Close to Insolvent?

The AP news is reporting that Social Security disability is getting close to insolvent. The news article points out that with the aging of boomers and the economy more people are applying for disability benefits. So right when we are all concerned about debt and revenues we have another sign of the times. Despite the fact that for years the entire Social Security system was dipped into by the federal government instead of set aside we have another potential problem. I am not sure how many may think that those getting SSDI and SSI are not entitled but the vast majority of those drawing benefits have run a gauntlet to obtain benefits which are a fraction of what you can earn in the world of employment. I remember one time realizing how tough it must be for one client who was earning over $60000 a year to seek annual benefits that were perhaps 20% of what he had earned. Yet he had to go to a hearing (the wait took over a year) to prove he no longer was employable. When you are not working and in poor health the process can seem agonizingly slow. Sure some of those receiving benefits may not deserve them but almost all do deserve them and the program has worked for many years. There is a need for increased revenues into the system yet politics is getting in the way. I can say that some feel lifting the cap or lid for contributing into the system would make it solvent but that may not be passed. Currently all wage earners pay into it up to $106800. If you make more you do not pay more. So the athletes, the corporate executives and others making really good pay have a benefit none of the rest of us have. They do not pay a dime over $106800.
UPDATE AND A NEW VIEW ON THIS: Over at another website they are reporting that this story about insolvency is not totally accurate. The article points out SSD programs and the fund are not close to insolvent but that it is more of an accounting situation. In the past the disability fund and the retirement fund have separate accounts but have transferred funds between them from time to time. A simple accounting transfer and both are solvent until at least the year 2035. This should remind us to be careful about assuming all the stories swirling about Social Security are accurate. One source for further details to strengthen Social Security is here.

Workers Comp Costs Decline

As noted in this press release/article workers compensation costs have been declining. While medical costs are always high the fact is there is more unemployment and more hiring of overseas labor, especially in manufacturing. Construction is down. Hiring is down. With less workers there can be less claims and those working may hesitate to file a claim in such a tough economy. I also think that many claims are still contested and in medical matters the advantage is with the insurer/employer. You usually do not chose your doctor, they do. In many cases it can be difficult to prove you sustained a work injury when the other side fights it and brings in their doctors. The claimant, again in this tough economy, may not have the funds to make it a fair fight. I read case after case where I suspect claimants lose when the hired guns (experts hired by the other side) provide opinions which overwhelm what I consider common sense. Yet that is the way it is when a matter is medical in nature (such as did the claimant's problems come from work or elsewhere) and experts are required to analyze the claim. The smart claimant may fight back and spend the bucks but it remains a risk every time there is a hearing. The word spreads and some hurt at work decide it is not worth the hassle. Originally the workers compensation system was set up to provide prompt action and benefits. That has eroded away in recent years. Cases take months and often years to be settled or resolved. I have heard of people deciding to use their health insurance just to avoid the workers comp system. That is not only a shame and not only shameful it is also wrong. What does it mean? Employer costs for workers comp insurance are down to levels not seen in 30 years as noted in the article.

Pinnacol Withdraws Handling Cases for State

This article from the Pueblo Chieftain states that Pinnacol Assurance is withdrawing from being the adjustor or representative for the state of Colorado's workers comp cases. If you worked for the state and had a work injury Pinnacol would have handled the claim for the state. It charged for doing that and decided it no longer wanted to handle the claims. The state acted and replaced Pinnacol with another company, Broadspire. Some may be upset with Pinnacol since it was very closely associated with the state from its inception. The reason given...that state claims are hard to handle may or may not be so but Pinnacol may be setting up to break away from the state entirely too. I do know that in the past it was more difficult to settle when we had to go through an attorney who then went to Pinnacol who then had to go through the state agency/employer.

Colorado Governor Reviewing Privatization of Pinnacol

As noted today in this Denver Post article it appears there still is interest in privatizing Pinnacol. Pinnacol Assurance is the state's largest workers comp insurer and originally was set up by the state to assist businesses especially high risk businesses in obtaining workers comp insurance. Despite many insurers saying otherwise usually premiums generate decent revenues. The so called cash reserves are amounts set aside to deal with claims or matters that require reserves but they do seem like profits when they get pretty high. Colorado legislators, in the past, thought about taking some of that to help with the budget problems but it never happened. New board members were appointed and there remains interest in exploring privitizing Pinnacol. The last time Pinnacol was willing to pay to obtain more private operations. One Republican legislator has said any cash to do so should go to the business owners who paid Pinnacol and are considered policyholders but of course Pinnacol also has a public side so once again we will see what happens.

New Policy on Prehearings

In an email sent to many representatives the word is out on some changes in setting up prehearings in Colorado workers compensation cases. Prehearings are useful in clearing up some disputes. For example if the other side has not provided discovery you might ask for a prehearing to compel the disclosures. Imagine going into a real hearing without disclosures of what the witnesses may say and what evidence will be submitted. A prehearing judge hears what is argued and decides on these preliminary but important matters. An order is issued which you disregard at your peril. A prehearing is not a full scale hearing with evidence and testimony but usually concerns legal arguments where the judge assists in moving the matter forward by issuing an order. In any event we are now told the email for this is dowc-phc@state.co.us. We are also told not to submit more then 10 pages by fax so seemingly they prefer that you email the materials. Should you do so at the last minute call them at 303-866-5508 (the number to set a prehearing)so they can retrieve the email in time for the prehearing. They also want you, when setting a prehearing, to confirm the date and time with the other side and provide email addresses to the prehearing unit. They also request being notified as soon as possible when a party is cancelling a settlement conference. Most of this is just common sense and contact information. No one likes it when someone is a no show or the proceeding is slowed. The prehearing judge does not have unlimited time to wait on faxed materials or emails so the point of this is to speed the process along. I can say that often in the past settlement conferences were cancelled at the last minute by the respondents. Usually it was because the respondent attorney did not have the dollar authority to settle.

Australian Woman Claims sex accident is work related

This recent news article caught my eye so it makes for a good read. I am posting it here without any further comment other than to say that most of us in the field have had unusual situations that require research to assess if an injury could be considered compensable. Never let it be said that the law is boring! Those traveling for a company or stationed at some distance from their home are not simply limited to asserting a claim for injuries sustained during working hours. The average employee goes home and has his own time in his own home but when you are stationed elsewhere other factors may apply. Here this young lady in Australia was having sex in her hotel room when the activity caused an accident resulting in injury. Workers comp? In Colorado and elsewhere you should review the law for that jurisdiction.

Rule 16 and 18 Proposed Changes

The Division lets us know about proposed rule changes and this change concerns Rules 16 and 18. These are medical matters which are changed just about every year because medical costs keep rising. Rule 18 involves medical billing and Rule 16 utilization review. The proposed rules are posted and then adopted after comments are received and reviewed. Most of this is not very exciting information except for doctors and other providers although at times a claimant or claimant's attorney does have to look at the rules. What a doctor can charge for legal things like testimony, consultations, reports and the like are important to know. Such matters are often the responsibility of the claimant if he or she asks for any of them. So wanting to have the doctor come to the hearing is fine but it is also at a cost to the claimant. So while these rules seem complicated to read and perhaps not that important to claimants most of the time there are situations where a claimant needs to check on what the rule says. For example, in the past there has been litigation on the subject of what is called prior authorization. This area involves a provider getting advance approval for something and when approval is not forthcoming the doctor and perhaps the claimants attorney may wish to dispute it and even seek penalties. What is addressed in Rule 16 on the subject becomes quite important in such a situation.

Retirement is coming soon!

While I shall continue to publish this blog it is just about my time to retire from an active law practice. I am not taking any new matters and only seeking to resolve all the remaining cases that I have. What I can say to all those thinking about and searching for an attorney is whenever possible at least consult with an attorney about your case. The laws and rules involving workers compensation and Social Security disability are quite complex. Thinking it is just common sense and form work is a major mistake. Deadlines are not to be ignored and some matters seem to go against common sense. The reason is that these areas are creatures of statute. Benefits, rights and responsibilities are what the law says they are not what you think it should be. Entire claims can be lost by assuming something that is not so. So it is better to consult to assess what can be done and if you need legal help. Claims that look like small matters or you are told are minor can be worth an enormous sum. Never rely on the accuracy of what you are being told by your employer or the insurer. Just protect yourself and the best way to do that may well be with an attorney. I have nothing to gain here because I am retiring but I know this...wherever possible use an experienced attorney. Even cases where you think the offer to settle is decent may actually be worth much more. Even where all is going along fine so you think you are being taken care of by the insurer please consult with an attorney. Too much may be at stake financially, medically and emotionally to not obtain good legal advice. And do not be afraid to check with more then one attorney. It is your claim and your future that is at stake. As I head into the sunset of my practice I can say that the legal profession has been rewarding not just financially but in making a difference for others. You usually do it one person and one case at a time but you also achieve real results for real people. You also stand up for those injured and disabled just when they are most vulnerable. For me that has been very special. So thanks for allowing me to help. I shall continue however to write and speak up in this blog for as long as I can.