Court Case on No Limits on Temporary Benefits

This week the Colorado Court of Appeals issued a decision I call United Airlines and it concerns temporary benefits. The claimant was injured in 2007 and received temporary benefits until the year 2011. Those benefits totaled close to $100000. Then the permanent rating came to 5%. The insurer then pointed to the statutory cap on combined temporary and permanent benefits. It was $75000. Therefore it asserted the claimant was overpaid and owes money back beyond the $75000 figure. The court decided there was nothing due back to the insurer. It made clear that temporary benefits can go beyond the statutory caps. So a claimant can in theory be paid for many years while he is not at a permanency level. Of course if you reach permanency and have exceeded the cap then no permanent benefits will be paid at all in almost all cases. I recall a case I had several years ago where the temporary benefits were quite high after several years of treatment. Any permanent benefits would have been low but the claimant asserted he was totally disabled. There was very real evidence of this so the settlement was quite high. The cap does not apply to those who cannot ever return to work and were totally disabled. So while temporary benefits are potentially long term once you do reach a permanent status you might consider whether you can return to any work. If not then your claim could be for permanent total disability. In this recent case they also asserted it was against public policy and unconstitutional but these arguments were rejected by the court. The losing side might try to get this case before the Colorado Supreme Court but for now it is the law. Of course I agree with the decision and am not in favor of any caps or limits though I understand the law is meant to limit benefits to save money. My view is that insurance should cover your real losses and having a permanent impairment is a real loss for most claimants.

ICAP Almanza case on DIME jurisdictional requirement

The Almanza case decided by ICAP several weeks ago reminds us about the awesome power of a jurisdictional situation. It is not freely available on the web but I was provided it in a recent update. It reminds us that anything that is jurisdictional must be carefully handled. In this case there was a DIME examination and report issued. Respondents were concerned about the examination and sought by motion to delay the requirement that they either admit based on the report or contest it with a hearing application. They requested an extension of time to admit or contest the DIME report until depositions were conducted. A prehearing ALJ (administrative law judge) agreed and issued an order of extension. Ultimately this led to a hearing where the claimant's impairment rating was reduced because the DIME report was not a proper DIME report and a new DIME had reduced it. The claimant appealed to ICAP. In this decision ICAP determined the original extension of time was error because it is a jurisdictional matter. The requirement to admit or contest the DIME report is 30 days and no extension granted by the judge was proper. It further ruled the original report was not improper. The DIME physician had a communication with the claimants interpreter which while improper did not invalidate the report as a matter of law. Here the claimants appeal was successful and the original DIME rating was ordered. So where a matter is jurisdictional it is almost etched in stone. Respondents must admit or contest a DIME report within 30 days as provided by law. No extensions are possible although Respondents in this case could have contested it and sought a delay of the hearing date which is not a jurisdictional matter.

January 2013 Colorado All About Claims Newsletter

Every now and then Colorado puts out a workers comp newsletter. They just recently published this issue in January 2013. It is actually quite nice to read this newsletter as it personalizes the system and

also alerts you to recent developments. The process is not faceless and this issue provides us with some information on Judge Purdie. It introduces you to Judge Lamphere. It discusses new rules and procedures too. I actually would like to see this newsletter published more frequently and have claimant and respondent input too. The newsletter is an informal way of discussing various workers comp matters and meeting those who play a role in the workers comp process. People can be critical of the system and the outcome of cases but I have to admit most of the people who work in it, from judges to attorneys to assistants, work very hard. Many cases are quite complicated and take a long time to resolve. There usually is just a formal side that you may see. The motion, the order, a brief, a form to fill out and medical reports to read can make it all seem very cold. But there really are people involved in the process. A claimant may be the most involved but the adjustor is also financially and actively involved. Newsletters and other publications can help all of us understand how it is going and even some of the players. If at all possible every claimant should obtain an experienced attorney. Going it alone is quite hazardous especially in terms of getting the proper treatment and receiving an adequate award.

The Top 10 Bizarre Cases for 2012

Over at LexisNexis they gave us their top ten bizarre workers compensation cases for 2012. Now each state has their own laws and none of these are Colorado cases. But they still are provocative. So for the that reason perhaps they are worthwhile to tell us that strange cases sometimes appear. Bizarre is the word used by the author of the LexisNexis article but these cases are, at least, unusual.

These cases discuss rattlesnake bites and exotic dancers and pigeon droppings but they also discuss how surveillance led to a tort claim. Being claimant oriented I do not approve of the outcome in all these cases and no one should consider them Colorado law. But they are unusual and interesting to read. They remind us that workers compensation is not a simple matter. Many cases can get quite complicated. Some can last for years. It is advisable that whenever possible a claimant should seek out an attorney to assist him. Even where a claimant has been treated nicely in the beginning you usually can use an attorney to set up the final settlement or resolution. Insurers will almost always take the lowest cost way to end cases and imply that is all you get. Historically having an attorney increases your odds for a better settlement. You often just get one shot at this for a problem that you may have for the rest of your life. In my experience settlements have been far higher with an attorney than relying on the insurer to be fair.

New Policy on Agreed Walk In Prehearings

I received a notification that there can be a new approach in some prehearings. It appears to allow some quick prehearings without much paperwork if the parties agree. This will take effect next month. My only concern is that no one wants to be surprised so if you want to know, in advance, the precise issues and likely arguments you do not agree to this abbreviated approach. I do think it would be useful in some circumstances where the parties have attorneys and

are desirious of clarification of a clear issue. This is what was sent out on this new approach: The Prehearing Unit of the Division of Workers’ Compensation is instituting a new procedure, designed to cut down on paperwork and time spent scheduling prehearing conferences. It is called the Walk-In Prehearing Conference. The Walk-In Prehearing requires no notice to the Division, and will be held the 2nd and 4th Wednesday mornings of each month beginning in January, 2013 (January 9 and 23). The guidelines for a Walk-In Prehearing are: 1. All sides must agree to a Walk-In Prehearing Conference. 2. All sides must appear in person. If one is a no-show, there will be no prehearing conference. 3. Walk-In Prehearings are not available for issues involving pro se litigants. 4. The parties must exchange some type of documented notification of the issues to be heard at the Walk-In Prehearing. This can be done by email, fax, etc. A copy should not be sent to the Division, but should be available at the Walk-In Prehearing. 5. No reservation or paperwork is needed. Upon arrival, the parties sign in on a registration log. First come, first served. 6. Walk-In Prehearing Conferences will be for the consideration of any prehearing issue, but will not be used for mediating settlements. 6. Walk-In Prehearing Conferences will be held from 8 to 11:30 a.m. on the 2nd and 4th Wednesdays of each month.

Merry Christmas once again!

Proposed Rule Changes and Hearing

You can take a look at proposed rule changes at this page. It sets forth all recent rule changes. On January 29, 2013 there is to be a hearing on the proposed change to Rule 5-11 and 10. Any claimant or attorney should be aware that any rule changes may be significant. Aside from the workers compensation statutes and caselaw the rules are often critical in a case. There may be deadlines set forth in the rules or just standards that are to be utilized in a case. The Medical Treatment Guidelines are in the rules. Disputes, when they arise, may well be resolved with reference to the rules. In any event there will be a hearing on some new proposed changes as I have said so we move forward into 2013.

Colorado workers comp premiums to rise

It appears employers will have to plan on higher premiums for workers compensation in the coming year. As noted in this article the insurance

rates will be going up. It is asserted that the loss costs which pertain to lost wages and medical payments have been increasing by 5.2 per cent. You can expect many insurers will be raising their premium rates to make up for this. Pinnacol Assurance intends to raise rates by an average of 9.5 per cent as noted in this other article. The Pinnacol claim is that workers compensation has not been profitable since 2006. Colorado employers are still paying Pinnacol 32 per cent less than what they paid in 2006 even with this raise. At least that is the claim. Given the economy it seems difficult to fathom this raise. I have always thought that companies who were not profitable for many years would not be around but Pinnacol seems healthy enough to be doing okay. In any event this is the third year for rate increases in Colorado. Certainly we all know that medical costs still appear to be going up. I do point out that not every state agrees to raise rates and as pointed out here in Massachusetts the state questioned the figures as inflated and unreasonable. The point is that a state should carefully review matters and not assume the facts asserted by the industry are accurate. Seems like common sense to me.

Colorado case on Firefighters and cancer

This week the Court of Appeals issued a decision in the Littleton case. In this case a Littleton firefighter developed brain cancer. He filed a claim in workers compensation which was contested. The firefighter relied on a recent

Colorado statute which provides for a statutory presumption that certain cancers came from on the job exposures for firefighters. The Respondents fought hard and presented several witnesses to assert that his cancer was not from firefighting. The judge at the hearing decided against the claimant firefighter who then appealed. At next level of appeal it was decided in the firefighters favor so the Respondents appealed to the Court of Appeals. This court decision issued this week also determined in favor of the firefighter. The court went about analyzing the statute and concluding the efforts to provide evidence the cancer did not come from firefighting were not enough to overcome the statutory presumption the cancer was work related. It seemed the medical evidence the Respondents presented was really attacking the statute and in order to overcome that presumption you must present evidence as to where the cancer came from other than work activities. At least that is my view but read the case. In that respect the Respondent burden is very high. If fire fighters had to prove their exposure to toxic things caused a cancer it would be quite difficult. Fire fighters do not monitor all the chemicals they are exposed to or the level of that exposure. The other side can often come up with medical experts to provide opinions such exposures are not likely to cause cancer. So when the firefighter can rely on the statute he has a big edge. UPDATE: This case is now at the Colorado Supreme Court as of October 2013. Look for its decision in 2014.

Traumatic Brain Injury proposed guideline

On November 15, 2012 the Division of Workers Compensation will have a hearing to address its proposed treatment guideline for Traumatic Brain Injury. For more information on this check out this page. Treatment guidelines are the recommended protocols for all to consider in the treatment of those with a traumatic brain injury. Such an injury, even if seemingly mild, may have long term effects on a claimant to include their employability. Assuming the proposed guidelines go through then it may be important when we are dealing with such injury to refer to these guidelines from time to time. While deviations from the guidelines may be possible the guidelines provide a framework for assessing ongoing treatment. In returning a claimant to work the proposed guidelines note that those with a TBI should not just be released to light or sedentary duty without specific physical or cognitive limitations. Drawing the attention of the treating physician to the guidelines and even specific quotes from those guidelines might be an important thing to act on. In any event these proposed guidelines are coming up for hearing so those with a TBI case should monitor the situation.

Court case on interest and subrogation

A few days ago the Colorado Court of Appeals issued a decision which concerns CIGA (Colorado Insurance Guaranty Association). In this case the Claimant had an industrial injury to his left index finger and it was amputated.

Regretably there were complications which led to a surgery which had its own complications. As a result the claimant sustained an anoxic brain injury and now cannot work at all. He resides in an assisted living facility for brain injured individuals. This claimant is now permanently and totally disabled. The claimant then filed malpractice claims against physicians and a hospital and recovered several million dollars. By statute a workers compensation insurer does have rights (subrogation) to proceeds actually collected. Apparently this subrogation lien was paid but CIGA asserted a right to the interest earned when some of the malpractice proceeds were invested and structured in amounts to be paid out over time. The court decided that the interest was not something the insurer was entitled to assert a subrogation lien against so CIGA lost the appeal. I see this as indicating that the claimants investment of his proceeds does not entitle the insurer to seek any part of the gain or interest from his proceeds. Of course the case goes into more detail and does point out that workers comp insurers are entitled to a subrogation lien on actual proceeds collected by a claimant in other claims which can come out of work injuries.

Rodriguez Court of Appeals case on falls

Just a few days ago the Colorado Court of Appeals decided the Rodriguez workers comp case. In this case the claimant

was injured in a fall descending the stairs to her office. The employer initially admitted liability for disability but then sought to withdraw its admission of liability arguing the injuries did not arise out of the employment. A CT scan found unruptured brain aneurysms but it was determined the fall did not come from the aneurysms but was unexplained. The judge found the claim to be not compensable because the fall was unexplained. The hearing judge recognized that the employer bore the burden in proving non-compensability and it did so when the fall was determined to be unexplained. Claimant appealed and it was affirmed by the panel leading to the Court of Appeals decision when the claimant appealed again to a higher court. The court said the burden being on the employer the fact it was unexplained was a failure of proof. Essentially the burden of proof was on the employer since they had admitted liability and that burden requires more then saying the fall was unexplained. All claimants should be aware that unexplained falls are usually not compensable because normally the burden is on the claimant to show the injury was work related. However here the employer had the burden when it admitted liability. Clearly it appears the court is saying the burden you have is a real one and there must be evidence to carry that burden. A lack of explanation is not good enough. To me falling on stairs is usually work related but it is important to have an explanation of what happened. You might return to the scene of any fall if you are worried. Perhaps the traction is a problem or the angle or the step itself may be a problem. Fortunately in this case the claimant was lucky not to have it contested where the burden would be hers to prove. In many cases the other side disputes or contests the claim. If at all possible a claimant should have an attorney to handle such contested claims because they are often tough cases to win. UPDATE: This case went to the Colorado Supreme Court and while affirming the decision the court went further so see my post of February 4, 2014.

Social Security Disability Update

There is a new rule on Fibromyalgia. SSR 12-2p pertains to evaluating the disease. The policy on this is to make sure there is solid medical evidence of fibromyalgia. Merely having a diagnosis of fibromyalgia is not enough. They will review the physicians notes to see if they document the condition over time. The point is that when seeking disability that there be decent medical evidence of the condition including strength and functional abilities. Read what it says so that the treating physician can be alerted when providing a report. Getting your ducks lined up is important in obtaining disability benefits. Often relying on a diagnosis alone is dangerous. You may know your situation but the details are important in any case. Many times I have seen doctors say you have problems but that is only part of the story. The big part is how it affects you and has it been established in the records. Moreover as part of this update it is important to know that they are tightening up on issuing favorable decisions. One attorney posted on his blog about this with links to other commentators. With approval rates down you can expect that attorneys will be careful on taking a case. In turn a claimant should check with other attorneys if your first choice declines to take your case. Many times I was surprised that an attorney had declined a case which I thought with good effort was winnable. It is all a matter of experience and personal style with an attorney so if you truly believe you are not employable keep trying to obtain an attorney to work with and follow his suggestions. You can help with your own case not so much by knowing the law as by following through on your attorneys suggestions. He will want to line up your claim and any way you can help will improve your chances. For example in many cases I have used questionnaires for a doctor to fill out. They help document your condition and your functional abilities. The claimant being a patient of the doctor may be asked to bring this to his doctor and ask for his help. If your doctor is really supportive then he will do it at low or no charge. You help your own case by following along with the plan of your attorney. At present if disability approvals are going down that is all the more reason to follow your attorney's plan.

Psychological Trauma Case Kieckhafer

This week the Colorado Court of Appeals decided a case involving mental injury. In Kieckhafer

the claimant asserted a claim for work related emotional distress. She did not succeed and the appeal followed. In Colorado stress cases are difficult to handle. All work has some measure of stress and claims would be immense if the standards for recovery were loose so Colorado has tightened up on them. In this case the claimant lost the appeal because the court determined that you need evidence from a physician or psychologist to establish the claim. The claimant only used a licensed social worker and a physicians assistant. That is simply not enough. The claimant alleged that the law makes it impossible to prove the claim because you have to prove a permanent disability before you can get benefits so it forces you to pay for your own treatment. Once you reach MMI then you are permanent so the law prevents coverage until you reach MMI (maximum medical improvement). The court disagreed with that view but a claimant still has to provide proper evidence. In any event a full reading of the case is wise because it is a bit complicated and involved. Anyone with a pure stress case has a tough road to obtain benefits so obtain an attorney if you can.

Two cases on bad faith, subrogation and offsets

While not applicable in most work injury cases these two cases remind us that a work injury can lead to additional claims and that offsets are still a complicated matter. Decided on April 26,2012 the Zerba case involves offsets. That is, what can be deducted from your workers comp benefits. Social security benefits can be an offset to permanent total disability benefits and the case goes into the subject of offsets. Military retirement benefits are not typical offsets for Colorado employers as is noted in the case. The claimant also did assert constitutional matters so we shall see if an effort is made to take the case to the Colorado Supreme Court. In the Schuessler case

the decision addressed claims that came from a work injury claim. The claimant sued a doctor for malpractice and the workers comp insurer for bad faith. The insurer raised many issues to include subrogation or its right to seek reimbursement. The case addresses many matters but this was not a workers comp appeal. It more involved matters which came from the underlying workers comp case.