SB07-258 signed today by Colorado Governor

This bill pertains to many different workers comp matters which needed adjusting. For example for many years the most you could "lump sum" was $37500 but this is increased to $60000. Let's say the insurer admits for your permanent impairment that it owes you $70000 (with a serious back injury and decent pay rate this can happen). Under the old law you could take an advance of $37500 and the rest was paid out biweekly till exhausted. Now you can lump sum up to $60000 of the awarded benefits. Another provision spruces up some procedural matters and requires for example that all relevant medical and expert records be exchanged with the other side at least 20 days prior to the hearing date. I saw 10 or more law changes in this just passed bill but most make sense to me. One I do question is that a hearing can be postponed or extended but some may only be for 20 days and I doubt this is workable in my locale but guess we'll see how it goes. The bill has too many details to review here but here is a link to it:
http://www.leg.state.co.us/clics/clics2007a/csl.nsf/fsbillcont3/25F0E8DAEE0A8C3D872572C30052A494?Open&file=258_enr.pdf

Updates on Holnam and Sigala cases

Back on Dec 28, 2006 I commented on two cases decided at the Colorado Court of Appeals. The first was Sigala and involved a decision that if your temporary benefits are suspended for not making a doctors appointment sent to you by certified mail (by special rule) that suspended means terminated even if later you do see the doctor. So if you were foolish and missed a specially arranged medical appointment and later make it up you still lost some of your temporary benefits. This issue has been granted review today by the Colorado Supreme Court. The court wants to hear from each side on what the word "suspension" is supposed to mean. The second case, Holnam involved trying to have two hearings on compensability using two different theories to obtain coverage for a claimant (one theory was accident and the second was occupational disease). On Holnam further review was denied by the Supreme Court and the claimant lost his case to show it was an on the job injury. As is clear from these two examples caselaw in workers compensation matters is happening on a regular basis. Nothing simple about this field as often the arguments pertain to highly technical matters.

By the way as always my comments are simply my opinions and for simplicity sake I do tend to abbreviate the details. Otherwise you'd have boring and long winded materials on this blog. For the most accurate details you can read the actual case, statute or rule or review further with your attorney.

Medical Ops Investigation Considered

As reported by Channel 7 Denver someone in the company called Medical Ops Management may be investigated after allegations that he was altering reports and pressuring doctors to issue Independent Medical Examinations favorable to the insurance. In Colorado workers comp this company has been frequently used by insurers who wish to have the claimant examined for a medical opinion. It is also reported to be used in Social Security cases. In other words the doctor may have dictated but not signed off on the report and it was then altered. Many claimants were sent to a doctor going through Medical Ops Management...and this raises many questions about the accuracy of many medical reports. Since this can affect medical and even money compensation it is a disturbing story. Here is the most recent link:

http://www.thedenverchannel.com/news/13369088/detail.html

Here is the earlier story which is quite disturbing in its allegations:
http://www.thedenverchannel.com/7newsinvestigates/13326461/detail.html

What is sedentary or light work?

Whether in workers comp or Social Security disability we often come across the term sedentary or light duty. For example it is common for someone with a back injury to be at light duty levels or have even more restrictions so he is at sedentary levels. The importance (in a legal sense) to this is that it can relate to how employable a person really is and the answer to this can greatly affect his or her benefits. Especially in Social Security cases age and restrictions play a major role in qualifying for benefits. In workers compensation cases they are also significant although it is more complicated since they play a role with temporary and permanent benefits but impairment ratings may also be significant. Strictly from a safety standpoint I've always felt that obtaining restrictions lets you and possible employers know what is the extent of safe phyiscal activity. In any event here is a link to a "disability doc" who sets forth the accepted definitions of sedentary, light, medium and beyond levels of activities:
http://www.disabilitydoc.com/work-descriptions/

The Fera case decided May 3, 2007

This case involved a denial of preauthorization by the insurer. Typically when something like surgery is needed the doctor seeks to have the surgery preauthorized so it will be paid. Here that was sought and the insurer denied it. The claimant sought penalties but the insurer said it had promptly run the need for surgery by a physician and he said it was not needed so they could deny it. The claimant however had other physicians who said it was needed so he felt the denial was unreasonable. The case went against the claimant at the lower levels as it seemed the insurer had acted promptly and had a basis for denial so the effort to seek penalties was struck down. However at the Court of Appeals level it was decided that merely acting promptly and having one physician advise them the surgery was not needed may not be reasonable given all the evidence and it should go to a hearing not be struck down by summary judgement. Here is the link to the decision:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6119&CourtID=1

Disfigurement New Law!

HB 1297 was just signed into law by Gov. Ritter. For many, many years an injured worker with a scar or disfigurement was limited to no more than $2000 for it. You would appear before the Judge or provide a photograph and from that the Judge would sign an order for a sum up to $2000 but no more. I've seen low amounts around $200 and other amounts that were higher awarded by a Judge. But if you had horrendous scars you were still limited to no more than $2000. Despite the passage of many years the top amount awarded stayed at $2000. Colorado legislators failed to consider increasing it and the disfigurement benefit was ignored. Today this was changed by HB 1297. The basic disfigurement benefit was increased to as much as $4000. But also for horrendous scars that deserve more the top dollar could go to $8000. Lastly they added a yearly review so it could even increase each year. Anyway here is the link to the bill:
http://www.leg.state.co.us/CLICS/CLICS2007A/csl.nsf/fsbillcont3/AF150CF1FE93E20E8725726C0065CB1D?Open&file=1297_enr.pdf

Refunds from Pinnacol to businesses

It appears from an article in the Denver Post that Pinnacol (the state's largest workers comp insurer) will be refunding or redistributing money back to employers. Quite a bit of money actually. One possibility is that there are less claims because everyone is safer. Another possibility is more ominous....money is being saved by not paying out enough benefits. I personally suspect the latter because the law and rules make it easier on insurers and harder on claimants. Read the article here:
http://www.denverpost.com/headlines/ci_5735325

All 50 States link to agencies

Here is a link that seems to have info on each state's agencies involved with workers comp. I provide it to make a point that each state has its own way to handle work injuries. While the laws and procedures can seem the same they are in fact different from one state to another. Workers compensation is a creature of statute (created by each state legislature) and the rules, procedures and caselaw vary from one state to another.
http://www.comp.state.nc.us/ncic/pages/all50.htm

State Representative Carroll

Rep. Carroll maintains a blog and this link shows her concern for injured workers. She is in the forefront of efforts to provide fairness in the law. She is pushing HB 1176 mentioned previously in this blog. Bravo !
http://www.repmorgancarroll.com/blog

Her current position is state senator and visit her blog by clicking here.

Social Security Disability Blog

Here is a link to a blog by an attorney in the Atlanta area who handles disability cases in his area. What makes it so good is that he answers specific questions on SSD and SSI claims in a very easygoing manner. Many topics are covered in his blog and it makes an excellent read. Most that he writes about concerning Social Security applies here in Colorado too. I notice that in his region getting a SS hearing can take over 2 years. There are delays here too and this is unfortunate. We tell people to expect a delay of one year or more. In any event since some injured workers may need to consider filing for SS benefits go ahead and explore this blog for some easy to understand information.
http://www.ssdanswers.com/

Colorado House Bill 1176 (UPDATE: signed into law)

The Colorado legislature seems to be moving to pass a law which involves an injured workers right to have a choice and change doctors. The current law says your employer has the first right to pick your treating doctor when you report your injury and need medical treatment. This usually results in being sent to a facility hand picked by your employer/insurer. Trying to change doctors is not easy and my experience has been that such hand picked doctors often will treat and release claimants too early. The proposed law gives claimants a bit more protection. As of Jan.1, 2008 it requires they be given two choices and also lets them switch more easily within the first 90 days. It really is not as good as having a choice of any doctor you wish but it is more then being stuck with one doctor. Still it has been opposed and it is alleged the current system works just fine and few workers request any change of physician. Most of us in this field know perfectly well that changing doctors is seldom easy and if it requires going to a hearing can take many weeks with an uncertain outcome. If we truly care about recovery then this law gives a bit more help to the worker if he feels his employer picked doctor is not helping him. Hopefully this bill will pass and be signed into law by the governor. Here is the current version of the proposed bill:
http://www.leg.state.co.us/Clics/Clics2007A/csl.nsf/fsbillcont3/E3C7D5EE3B482E3E87257251007A4308?Open&file=1176_ren.pdf

A Few Interesting Stats

It appears there were over 10000 hearing applications in 2004 in Colorado. The actual hearings held were around 1500. There were however some 7000 settlements. So the general rule with injuries at work is that most result in settlements. But getting to a settlement or a hearing is often a complicated matter. For example there also were some 8000 motions filed in cases in 2004. Disputes are common in work injury cases and often the injured worker is truly mystified by it all. It seems as if they go from productive worker to problem employee overnight even if they've worked for the same employer for years. Medical, legal and financial worries can all be part of the stress on an injured worker. Employers and insurers suddenly can treat you like an adversary but even if they are trying to be decent about it the stress of needing to recover and move on with your life can be high. Even a minor injury can have long term consequences on your life so you should keep informed and if possible obtain good legal advice with your case. You can call us at 719-596-8900. If you cannot obtain an attorney or need further questions answered contact the Division customer service people at 1-888-390-7936 (toll free).

House Bill 1008 (UPDATE: signed into law)

This proposed legislation tries to offer presumptive coverage for firemen who develop certain types of cancer. Firemen are exposed to many dangerous or toxic substances... and the bill attempts to shift the burden to insurers to fight a workers comp claim. A major difficulty for injured workers and a major defense for insurers is to assert the burden is on the worker to establish his health problem is related to work activities. Thus with a fall where your back is hurt insurers may allege you had a pre-existing back problem so whatever you have is not their problem. Or if you are exposed to toxic chemicals and develop a disease they say it is up to the claimant to prove it is work related. Then they obtain medical opinions it is unrelated to work or of unknown causality. The expense of fighting for benefits can be high (you may need your own expert at your cost). The bill simply cuts this insurance defense off and forces them to carry the burden where it concerns certain cancers with firefighters. Bravo! Ever since this was proposed it appears the insurers have been fighting it by screaming it is unfair. They assert this even though they can pick your treating doctor and then another doctor to defend themselves. This choice they have prevents fairness and often overburdens the claimant. After all how many company selected doctors will say your cancer came from the company work? Anyway here is a link to the dispute:
http://colorado.mediamatters.org/items/200703270002

New Court Decision Today...on Average Weekly Wage

The Colorado Court of Appeals issued a decision today favorable to claimants. The Avalanche case involved calculating average weekly wage. Such a wage can often lead to increased temporary and permanent benefits. Traditionally such a wage is calculated as your pay rate at the time of injury. But this can be reassessed by the Administrative Law Judge. Here the person had a claim with one employer and it was closed out based on her wage at the time of injury. Then later on she sought to reopen the case because her condition had worsened. It was reopened and also the judge calculated her benefits on reopening at a higher wage calculation including adding for health insurance. In effect 5 years after the injury her wage calculations were made higher. In fact they were based on her pay rate with another employer and with the other employers health insurance. However unusual the principle is simple...a judge can determine your average weekly wage in any way that fairly compensates you. The employer asserted this was extremely unfair to them to be saddled with some new calculation years later but what we are really involved with is insurance and with claimants who could be trapped into low calculations despite the passage of many years or other valid considerations. After all we must remember that workers compensation should be keyed around fair compensation for injured workers. Someone not injured who kept working would have pay increases over the years...should the injured worker be stuck at low levels of pay? The court said there are situations where a judge has the discretion to adjust this. I applaud this decision for far too often benefits are limited and never consider the passage of time on pay rates. Yet in a job you are often paid higher wages over time. You can read the decision here:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6056&CourtID=1

UPDATE (August 2007) : This decision will be reviewed by the Colorado Supreme Court so any final outcome is pending. You can figure a decision will issue next year on this.

Workers Memorial Day April 28th

According to information posted at the AFL-CIO website there were 4.2 million work injuries in 2005 and also 5072 deaths from work injuries. They have designated April 28th as a memorial day for those injured and killed on the job. The link below will take you to the AFL-CIO website with its references to this day. Also at the site there is quite a bit of other information. This of course is a pro-labor website but I've always been concerned that few groups or organizations are out there trying to protect workers, especially injured workers.
http://www.aflcio.org/issues/safety/memorial/