Odds When You Appeal in Workers Comp

Here is a statistic mentioned at a recent seminar I attended. Going back over ten years anyone who appeals a workers comp decision only has a 17% chance of any success. The odds are very much against you although some appeals are easy to decide against the appealing party. If you are untimely in an appeal it gets dismissed. If you missed a deadline that can mean a dismissal. If you simply disagree with the Judge's weighing of the evidence the odds are a fairly clear your appeal will be dismissed. But it is still sad that so many appeals are a waste of time. Of course we are talking about the rate of dismissals at the next level up from the hearing judge. That level is called ICAP which stands for the Industrial Claim Appeals Panel. Beyond that level is the Court of Appeals and then the Colorado Supreme Court for a few cases. You can lose at the hearing, at the first appeal, at the Court of Appeals and then win at the Supreme Court. So odds mean little if you have a good argument with a solid legal basis. The problem is that few losing cases are that solid and most appeals simply result in a dead end. Being upset at the hearing judge is not enough to appeal...it takes a solid legal argument. So if you are convinced you are right and appeal be aware that 83% of the time appeals are lost at the ICAP level.

Randy Golob and Social Security

I saw this clip on another website but it is about a local (Pueblo) man and how he waits for benefits. It ran on KOAA television. Click right here.

What is appealable? Recent Case

We all believe in the right to appeal. It applies to both sides and until we have an infallible local Judge the right to appeal permits us to point out legal errors the Judge made. Appeals, when we do not like the Judge's weighing the evidence are often foolish. The local Judge is the fact finder and higher courts seldom reverse the choices made on the evidence by the Judge. In other words you do not have the right to ask the higher court to try the case all over again. Instead appeals usually involve an assertion the Judge made a legal error that warrants reversal or another hearing. In the case decided today at the Court of Appeals the court pointed out that you cannot appeal a workers comp case when it is not timely. I am posting the decision here as an example of how complicated the workers comp system can be. If you read it you quickly realize that the decision may be proper but it may seem bewildering to the average person. Here the insurer lost the appeal but it also involved a complicated review by the Court of Appeals. It makes you want to say...please make the rules simple and clear so the system moves faster and with less confusion. As lawyers we love to question and challenge and analyze but the parties usually just want to move along matters.

Expedited Hearings

When there is a dispute that requires a hearing an Application For Hearing must be filed and you must comply with the appropriate rules to follow through and have the hearing. So when they contest your claim or do not provide benefits or when there is some dispute that can take a Judge to resolve it takes a hearing. We can seek hearings on a variety of matters. Examples include disputes on what is the correct average weekly wage (this is important and can result in higher computed benefits), on medical care, on temporary or permanent benefits and much more. Of course you cannot just seek a hearing anytime you want to do so. It does take a dispute and timely action by you as provided by the rules and law. Respondents too can seek hearings and often do when they have a dispute that should go before a Judge. I cannot provide a detailed list but be aware any side may need a hearing depending on the situation. Hearings at best are scheduled out around 3 months from when you apply (80-100 days). Is there any way to speed this up? There is but it is very limited. There is a 40 day expedited hearing but only on issues of compensability and medical matters from the claimants point of view. Other issues pertain to the affirmative defenses of the other side and trying to get prior authorization for medical treatment. The parties can agree to add issues but that is rare so if you are seeking money it is best to file the regular Application for hearing. Forms are located online. This means almost always we use the regular route to a hearing. Actually whenever there is a dispute it takes time to investigate, gather up the evidence and get ready. 80-100 days may seem long when you have no income or must wait for resolution of the dispute but it is much faster then civil cases at the courthouse. In any event it is all regulated by rule and law so we must abide by it.

Less Money, Less Judges, More SS Backlogs

As noted at this link the backlog in SS disability hearings is not hard to figure out. With less funds appropriated then requested the result is more delays. The Social Security Administration has more duties but less Judges and less funds then needed. We all want a fast and fair process to determine SS disability but it requires more funds. When appropriations are inadequate then people suffer delays. More Judges and more dollars are needed to make the system function correctly along with other changes to assist in disability determinations. Until it happens the disabled will be forced to wait.

Spring Workers Comp CLE seminar

Twice a year a full day seminar is held on workers compensation for attorneys. It is also called CLE for Continuing Legal Education. Continuing education is mandatory for all practicing attorneys although you can concentrate in the fields you prefer. My fields of practice are workers comp and Social Security disability. This seminar I plan to attend. Even though I may be up to date it's good to hear from others, gain new perspectives and meet those in my field of practice. Whether representing claimants or insurers/employers we are also human beings not just adversaries against the other. At times that humanity is important and helps both sides to resolve tough problems and cases. In any event here is the latest info on the seminar.

Social Security Disability Coalition

Here is a link to the website of the Social Security Disability Coalition. It contains quite a bit of content and interesting comments from the point of view of the injured and disabled. It does seek to change laws and procedures that are not helpful to the disabled. For example did you know that even after you are to get Social Security disability the benefits do not start on the date your total disability began (called date of onset)? At best they start 5 months later as the first 5 months of possible benefits are not counted at all. In any event this website is an interesting read and is by and for the disabled.

Time Limits all over the place

The Colorado Division of Workers Compensation at its website gives us a list of most of the time limits in the field. Yet others are not posted. For example if you file a motion or the other side files a motion it will have a time limit to respond. In any event here is the link to the time limits posted at the Division site. It is one reason that claimants seeking all they are entitled to should have representation. Another reason is that on average an experienced attorney significantly increases your benefits. Your attorney will take the case on a contingency basis of 20% but will simply deal with all the deadlines and all the legal hassles. He'll also get you ready when that is needed and give you a heads-up on most that is going on. He will negotiate for you and add in to the calculations thousands you might miss. But most of all he is there to protect your interests.

Update on Apportionment Case

Back on July 27, 2007 I reported on a case where the claimant's rating of permanent impairment was apportioned (reduced) because of a prior work injury. The doctor performing a Division Independent Medical Examination did in fact reduce the rating because of a prior work injury which he also rated in his calculations. The Court of Appeals decided that the apportionment was proper and the claimant sought to appeal it to the Colorado Supreme Court. Why? Apportionment means less compensation is due the claimant on the last injury. Today the court rejected the appeal by denying certiorari to look at it more thoroughly. The Supreme Court does not have to review every case brought before it. It can decide it is not reviewable. That is what the court did in this case. The decision by the Court of Appeals stands as the law. I must admit that the lower court did make it clear that the doctor considered the pre-existing condition as "active" when the last injury occurred. So the case does mean that apportionment is proper if the old impairment was still "active" when someone is hurt again. The only real surprise in the case was that the older impairment was never rated , there were no restrictions and perhaps no ongoing symptoms. Still the DIME doctor has to use his own independent judgement. What I conclude from this is to really get the evidence lined up if you do not like apportionment. It is then up to the hearing judge to weigh the evidence.

More on Social Security Disability delays and denials

This Rochester NY newspaper article once again reveals the incredible delays and denials in disability process. The stories here are sad and show us how some cases are put into a bureaucratic hell. I have no doubt that many who apply for disability are not totally disabled but many others who apply are wrongfully denied and delayed justice. Two points are important to me. First long delays are simply part of an apparently overloaded and underfunded system. That is shameful. Second far too many legitimate claims are denied. The process should be speedy and just. If not we must wait for reform. Here's a link to this excellent newspaper article.

Never Never Miss a Deadline...the Speier Case

A claimant who goes to hearing and loses still has a right to appeal when benefits are denied or lost. In this state there are many deadlines to act in workers compensation proceedings. Miss them and it can be big trouble. One such deadline is to appeal and in the Speier case (decided Feb 7, 2008) the claimant was late to appeal, tried to say he had an excuse or could seek relief from the deadline. He lost at hearing and lost his appeal because he was untimely. How much time did he have to appeal? 20 days and it starts on the date the order is mailed to you, not when you receive it or it gets to your lawyers desk. On the 21st day you are late and an appeal can be dismissed no matter how wrong the result. In any event you can read the case here.

The tidal wave of TV ads by attorneys

I am amazed at the TV ads by some attorneys. The viewer is left with the impression it is all so easy and also fast. Perhaps this is part of our culture to look for the magic pill or the quick fix or instant results. I recall someone telling me they went to one such attorney and their case was settled for $5000. Fair? Who knows but it was fast. Just today someone said they've been calling and calling but no one returns their calls. I can only shake my head because when so much advertising is done it is bound to lead to many many cases but also overload is possible. I suspect it also can mean a push to settle cases to feed the expenses of operating and marketing such an office. Be aware that many cases can take quite a while to resolve and are not simple and easy. If you have a small claim perhaps that is simple and easy but not a case where you require extensive medical treatment and have a serious health problem from your injury or disability. The last thing you want is to be pushed out of the system with less rather than more. Going for the quick buck may get you the quick buck but not top dollar. An injury can well mean chronic pain and permanent limitation. Do not cash it out and give up your rights without getting the maximum care and value. That simply takes time but it is usually well worth it.

What is a Fair Final Settlement?

That is a question I am asked over and over but usually too early. I like to tell people that the legal determination is like the tail of the dog...and the dog itself is the medical treatment. It is usually too soon to be guessing about any settlement or amount due before the medical care has finished. Trying to figure it out before a person reaches MMI (maximum medical improvement) is nearly impossible. If someone is in a hurry then any settlement is going to be based on very unclear facts. After all if the doctor can improve your condition then finish the treatment. If you do not then do not expect the insurer to give you big bucks. They too have a right to say give it a chance. Don't say you are in horrible shape and deserve a lot of money when you don't finish the treatment. If you do then seek to settle the figure will often be much lower. My preference is to finish out with your treatment and then see what is the best way to resolve the case. If you are permanently and partially disabled we pay attention to the rating and the future medical care. The rating or damage estimate is also called impairment and more then one doctor can be involved in the rating. The treating doctor would rate and then we usually ask for a second opinion through the state. The second opinion is called a DIME for Division Independent Medical Exam. That opinion can address your rating and much more including your treatment. I've seen treating doctors say zero and a DIME come back much much higher. Further a treating doctor may say you are finished but the DIME says more can be done. It almost always benefits the claimant to go with a DIME. However it is a judgement call (it can also hurt your claim) so attorney advice is often essential. All of this enters into a possible settlement but never expect the insurer to roll over or guide you on this. Regretably extremity injuries such as to a hand or leg usually receive low permanent benefits but there are exceptions. As for losing your trade or occupation...Colorado gives nothing for this unless you can allege you are permanently and totally disabled which can lead to very high settlements. Trying to do this on your own is not just complicated it almost guarantees a battle. Still total disability does not mean you are flat in bed all the time. It is more a matter of how employable you are in the real world. Insurers like to say if you can work anywhere even part time you are employable but it is more complicated then that. Often we have to use vocational experts to help out with this. In any event the right time to discuss settlement is after treatment and a rating. At that time it must be carefully reviewed. Finally we also have to consider Medicare in some cases. Here is an example....your cash calculation amounts to $100000 but also the insurer arranges a medicare fund of $60000. The numbers can be higher or lower but requires much thought. What is a medicare fund? Medicare may require money be set aside in a fund to help with your future medical needs where you are going to also be getting medicare benefits. So to the question...what is a fair final settlement? It can be as big as legally allowable but like snowflakes each case is different. I really recommend that anyone wanting to settle or contacted by the adjuster to settle use an attorney. They can do two things. First, they can protect you and help you to max out your benefits. Second, they can calculate and negotiate a settlement that usually is quite a bit higher then what has been offered.

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.