More VA disability concerns not helping injured soldiers

It never ceases to amaze me how a comp system can be cold blooded and almost hostile to injured people. This goes beyond bureaucratic delays. When laws, rules and paperwork become so complicated that they can be used to place obstacles in the path of the disabled and instead of easing their pain they add to it then it is time for change. Here the story in the link concerns veterans disability claims and apparently trying to find ways to save money on benefits. I have no problem with efforts to save money and make any system more efficient but when they say don't help them obtain all they are entitled to that is inhuman. Beyond the paperwork there is a human being with a disability or injury. If any system makes it easy to delay, deny and discourage a claim then that system should be changed.
To read more on this story go here.

Also you can visit this article for another story!

So What Is a Full and Final Settlement?

Many times people come to see me and they say the insurance company wants to settle with me for a sum of money. I ask for more information and they show me a Final Admission of Liability which has a money figure on it. I then have to say what I have said many times before...a Final Admission is not a settlement at all. It is the Respondents (insurance, employer) saying they owe you some money but they also seek to close your case after 30 days. A Final Admission requires a swift response and usually we object and do much more to protect the claimants rights. A Final Admission is a very detailed document so never assume it is a settlement at all. It is what the insurer believes it owes you but it is often too low and leaves out benefits so once closed you are left only with limited rights, if any. A settlement is a contract which is agreed upon by both sides. It is also very negotiable or almost always negotiable. But do not drop the ball if a Final Admission is filed and you receive it. Do not think you can keep negotiating and pay no attention to the Final Admission. That is BIG MISTAKE. Closure of your case occurs if you think you can just keep negotiating after you receive a Final Admission. If you fail to properly act within 30 days of the date of the Final Admission your case will almost always be closed. Once closed trying to reopen is not easy although sometimes some benefits are left open by the language in the Final Admission. The point is act fast or you are at risk. A settlement is usually an agreed upon figure which can include many things. It can be much higher then any figure in the Final Admission and it can also address your future medical benefits and a host of other things. It is a complicated document but the two biggest points are the dollar figure you are to get and the medical situation. If represented by an attorney a claimant can rely on him to review all of the terms and negotiate a fair figure authorized by you. If you are doing this yourself historically it has required that you appear before a Judge so he can warn you it totally ends your case. There are no do overs and no way unless documented in the settlement to return for any more benefits. So if you think you can take the money and then reopen the case if your condition worsens or if you forgot to get all your meds before you settled...sorry you are out of luck. Full and Final means you are bound by all the terms of the settlement and so are they. If you get better you still keep all the money. If you get worse you still keep all the money but can't say I want more. If at all possible you should try to review your case with an attorney when either a settlement is possible or you receive a Final Admission. The fact is there are possible increases in the figures which are seldom mentioned to you by the insurer but which can dramatically increase the numbers or which can even lead to more benefits and treatment! In my last few cases the figures nearly doubled from what the insurer felt was due the client. NEVER accept at face value the insurers computations or analysis of your claim. We've even settled cases for large sums when the insurer never admitted to pay a dime! I always assume the insurer is minimizing as much as it can the benefits or amounts due. Frankly that is their job but you can often increase it. If it is a Full and Final Settlement or a Final Admission get help if at all possible. Your injury may last with you forever...make it count.

Workers Comp Claimant gets his minivan!

In an unpublished case (decided Jan 17, 2008) the Colorado Court of Appeals affirmed a decision that required the insurer to have to pay for a claimants minivan. Back in 1996 a wheelchair accessible van was denied to a quadriplegic claimant as not covered under the allowable medical benefits. Yet in this case the van was allowed not just the cost to modify the van for a wheelchair. In this area it is very much a case by case analysis and up to the Judge to determine if there was a therapeutic value. Really it boils down to how strong the medical opinions are on your need for any medical apparatus (in this case a van). So if the insurer claims it is not going to pay because of caselaw be aware that the cases vary and sometimes the insurer is mistaken. My caveat to all claimants is to let the claimant beware. Never assume the insurer is correct no matter how confident they sound to you. In the present case the van cost over $24000 and to modify it another $28000 plus. The insurer agreed to the cost of modifying the van but not for the van itself. The decision required them to pay for the van. However do not assume in all cases a van or other item needed to help you out shall be covered. Insurers can make you prove your case and may even then appeal. But it all depends on how medically needed the item is but you should know sometimes the claimant wins!

Guidance on Epidural Injections

Here is a link to a recent update at the Division of Workers Comp website that reviews epidural injections. Some are diagnostic and some are therapeutic. I do know that sometimes they are used to give the doctor a better clue on the situation so having one does not always mean the results will be good. In my experience injections do not seem to provide much relief and as noted in the link they do not last very long. Still when the treating doctor recommends it a claimant should go ahead unless he has a very good reason. I have had claimants try it and hate it so they dread trying again but then others have had some relief. Never ask your lawyer for advice on what to do as it is a medical question for your doctor. A good doctor will inform you so you understand the situation. It is natural to have concerns. If you have concerns and are not being listened to then take it to the next level. You can write your doctor and document your concerns by asking for more information. Always tell your lawyer.

Here is the guidance.

CBS Evening News on SSD Backlog

As reported at another site the CBS Evening News is to start a two part story on the SSD backlog. Here is the link:
http://socsecnews.blogspot.com/2008/01/astrue-on-upcoming-cbs-report-on.html
And here is a link to the first part of the story on the CBS website:
http://www.cbsnews.com/stories/2008/01/14/cbsnews_investigates/main3712627.shtml
And to further update you here is a link to the second and final part of the CBS story:
http://www.cbsnews.com/stories/2008/01/15/cbsnews_investigates/main3718129.shtml

Opposition to Proposed SSA Rules

The Social Security Administration is working on some new rules. Unfortunately its proposed rules are not being met with friendly comments. The concern is that the rules will make the hearing process even more technical and adversarial. I suspect that is the case. Over the years in my two areas of practice (Colorado Workers Comp and Social Security disability) my view is that claimants are having a tougher time. Laws and rules that are overly technical or costly to deal with simply work to the advantage of denials and reduced benefits. In the link below it is the House Ways and Means Committee (yes...our political leaders) who perhaps are waking up to this effort to reduce benefits and rights all in the name of efficiency. They put out a fact sheet showing displeasure with the proposed new rules:
Factsheet

Rule 8 is new on authorized doctors

Effective now the new rule 8 for the Colorado Division of Workers Compensation sets forth the law that claimants should be provided with more than one doctor to treat the work injury and also with a right to easily switch. The prior law was that your employer simply had the first right to designate your treating doctor. Such a process has never been liked by claimants as often it meant treatment by a doctor handpicked by the employer/insurer. While some of such doctors are reasonable others are not or even hostile to a claimant (at least that is what I have been told). The new law eases up a bit but it is still permitting the employer to provide you with at least two doctors and one would then become your treating doctor. It also adds a new way to switch to the other doctor (provided you follow the rule). In the past the way to switch doctors would be to ask for a change or seek a change by order of a judge. Usually a sharp insurer would prevent that and force you to seek a hearing. At a hearing the Judge would not just grant you a change without some basis and all this took quite a bit of time to set up. The new law adds another option so it is a bit of an improvement. I still expect the two doctors you are offered to be handpicked by the employer/insurer. Here is the new rule:
Rule 8

Merry Christmas to all!

This is a very special time of the year and I am grateful for both the season and for a special delivery here shown with Santa....my twin granddaughters. Hope your holiday is special too.

Peak Vista Community Health

There are many people who truly cannot afford a doctor or medical care and seem to have run out of options. Whether injured or infirm or old if you are truly poor there is one great resource to turn to for medical help. They do not take everybody but try over at Peak Vista Community Health. I have always felt they provide quality care so this option is worth a try. My only problem which other attorneys have also commented on to me is that they do not fill out paperwork that can help someone qualify for other benefits like Social Security disability. I suspect this is because they are loaded with basic care cases and believe they have to use their time wisely. I disagree since when someone does get other benefits they may also obtain medicare or similar medical benefits. This benefits everyone. I am sure Peak Vista only can do so much but I admire what they try to do. The local newspaper commented today on this agency and how it too needs help from us.
Peak Vista

Announcing Twins!!!

Just a special message of a personal nature. Identical twins were born to my daughter and husband recently. Both are doing fine and remind us that birth and life go on so we should enjoy our family and loved one's despite all our concerns about injury and disability. Our children teach us what life is all about.

Delays Cause Poverty in Social Security

Here is a link which again reminds us that delays cause impoverishment. This is especially true in Social Security claims because a claimant believes he can no longer work anywhere and yet must wait months or years for benefits. In workers comp there also are delays but nothing like Social Security cases. What amazes me is that with Social Security disability the benefits are far less then what a worker can earn if he is able to work. A good paycheck and company benefits can be substantially more then disability benefits. Many who apply are not looking for a windfall and yet must wait and wait and wait. The average wait for a hearing is well over a year and further appeals can mean years before benefits are granted to a deserving claimant.

Delays

Here is the latest Division newsletter

From time to time the Colorado Division of Workers Compensation puts out a newsletter which it calls "All About Claims" and the link below is to the latest one just published. Each newsletter covers specific areas of interest so don't expect it to cover everything or "all" about workers comp. This issue covers changing from one designated doctor to another and does try to clarify the topic which comes from a new statute passed this year.
Newsletter

When is a Final Admission not Final...the Leewaye case

This case is interesting and was just decided by the Colorado Court of Appeals. The facts are that there were two Final Admissions filed by the insurer. A Final Admission requires action by a claimant within 30 days or it appears too late to object or seek relief from what the insurer has stated in the Final Admission. In my field this means we always act within the 30 days or the claimant may be in peril of being unable to disagree with a Final Admission if it was properly sent to the claimant. Here the insurer decided to issue a second Final Admission to correct a minor matter. The claimant missed the first deadline so the insurer argued as to that first Final Admission matters were closed. The Court however decided to indicate that when a second Final Admission is filed within those 30 days set by the first admission then the 30 days runs from the second Final Admission. By that result the claimant was timely. My view is more simplistic in viewing any Final Admission as starting the 30 day deadline regardless of how many are issued. My concern is about objecting to the first one and the insurer deciding to file two or three more with minor changes. Must a claimant object to each? I would but an unrepresented claimant may be fooled by such a tactic. Anyway below is the link to the case issued November 29, 2007. The case does point out how technical and deadline oriented workers comp can be.
Here is the case.

Moore- Workers Comp suicide case(s)

Moore (name of the deceased) is actually two cases. One was decided and unpublished a while ago and the second just decided on Nov. 15, 2007. This involves a sad situation. The claimant who worked at Western Forge had an injury but then received a Notice of Contest which disputes the claim. This led to his suicide along with his lack of income. For more of the facts visit the link below. It appears his estate sought workers comp death benefits and lost the case all the way up to the Colorado Court of Appeals. Then the estate sued the insurer for bad faith and abuse of process leading to the claimants death. I gather the contest was not appropriate but nonetheless the estate lost this case too. The reasoning appears to be that a suicide is just too far removed from the contest to blame the insurer legally. Seems to me that contested cases are common nowadays and certainly stressful so depression should be a realistic consequence to contesting a case. If depression (which is an illness) leads to death then it is a consequence of the contest and also from the injury. Common sense should tell us that it is all related. While suicide is an extreme act of depression it still is what happened and flows from the injury. If we say that the physical damage from a typical injury is all covered no matter how much then so should the mental damage. Nonetheless the decision is there to read.

Read the case here.

Surveillance Videos

Many times in a workers comp claim the claimant is surveilled and videotaped. It is not usually illegal to videotape someone out in public view. It is then shown to a doctor and even to the Judge. Of course such videotaping never shows the claimant going in to his residence and having to lay down. It never shows someone struggling to get up in the morning. It also can be edited to show activities not in line with what the doctors are saying. In one recent appealed case the claimant was seeking permanent total disability benefits and there were doctors who examined him along with vocational experts on each side to provide opinions on his employability. He lost his case for this in great part I am sure to a videotape that showed him more functional then how he presented to the doctor. When the doctor says 10 pounds lifting and you lift 30 lbs you are out of line with your doctor and setting up to lose or greatly reduce your benefits. I've seen surveillance of claimants in retail stores, outside walking the dogs, gardening, washing the car and lifting and carrying boxes. If you violate what your doctors say are your restrictions then don't complain when it's revealed to all. Saying you had to do it or were medicated at the time does not alter the situation. Saying it was painful and afterwards you laid down is still not very good. Videotaping happens in many cases and can take place at any time or multiple times. Imagine the shock to your doctor or lawyer when this is shown to them. Imagine what goes through the Judge's mind when he sees a claimant gardening but saying he can't work. There really is no good excuse for exceeding your restrictions medically or legally.