2008 Amendments to workers compensation

The Colorado Division of Workers Compensation has posted on the latest changes made to the statutes on workers compensation. You can read them right here. One change made is to prevent insurers from arguing that they only have to pay a portion of temporary and medical benefits due to prior work injuries. Such an argument could cripple the rights of injured workers when they sustain further injury. Trying to say they only owe half your medical bills or half your temporary benefits because you have had prior work injuries is now gone. Imagine being hurt on the job and now needing back surgery but the insurer says they will only pay a portion of the cost because you had prior back injuries. Insurers did not feel they should be responsible for all the benefits to be paid out when they only covered the last injury. The problem is this argument would fail to realize the last injury really was causing all the need for benefits. These amendments all became effective on July 1, 2008.

Disaboom.com at the DNC

The Democratic National Convention starts today in Denver Colorado. One group for the disabled is indicating it will be there. The link to their site (disaboom.com)
is here.
According to an ongoing poll disaboom is conducting about 57% are for Obama and 26% for McCain with the rest undecided. Why? At least historically the Democratic party was more pro-labor and the Republican party more pro-business. In Colorado until recently we had a Republican state and it showed in workers compensation "reform" as benefits/rights were cut back over at least a dozen years. Since the Democrats now are in the majority at the legislature and we have a democratic governor some changes have happened. The stronger the Democratic party the more likely further change for the better for workers will occur. One change I'd like to see is to throw out the scheduled rating and have everyone apply a whole person rating to every case. My view is that every permanent injury has an impact on your earning capacity. A hand injury can mean loss of a trade so it should be as serious as any other injury. Nowadays a hand injury can mean a low ball recovery even if you lose your trade/occupation and that is flat wrong. In any event if you are disabled/hurt then when you follow this election pay attention to who seems serious about the disabled and who gives lip service to helping the disabled. The wait for Social Security hearings is directly attributable to poor funding under the current administration.

Lump Sum $10000.00

You are allowed in workers comp to lump sum $10000 and this is frequently done. When you have a Final Admission and the insurance indicates $10000 (more or less) is due a claimant then you can get an advance of up to $10000 without any effort except to send a letter for the funds. This is quite different from a Petition for Lump Sum which we seldom use. The latter may bind you to the Final Admission. But getting $10000 is usually fast and easy. Plus, it does not bind you to the figures used by the insurance. You still have the ability to dispute it provided you act promptly within 30 days as noted in the Final Admission and its accompanying paperwork. What many people do not know is when a Final Admission is sent the insurer is usually obligated to honor it and pay biweekly until the money runs out or until able to change it by law. It does not send you one big check. Can you object to the figures or to the doctor's report about maximum medical improvement or his rating of impairment? Yes and you can also get $10000 of the amount due you while you object or dispute it further. For example, the Final Admission admits for $20000 and you feel that is wrong. Usually you get the first $10000 and also receive biweekly checks until the $20000 runs out or as provided by law. Often this is done to assist the claimant as we proceed to take the dispute to the next level. That can take several more months and the funds can ease his or her financial fears. One last thing....when you ask for this sum it is discounted. It is like getting money you'd normally receive over time all at once so the law uses a 4% discount calulation. Colorado adjusts it each year but you can look at the chart right here. There is some difference between whole person (back, neck, head, etc) and schedule (fingers, arms, legs, etc) and this is noted on the chart since benefits are paid differently in this two areas.

Sometimes appeals are premature...case decided 8/7/08

This case just decided indicates the parties could not push the appeal along. The case, to date, decides that a traveling claimant who contracted West Nile virus while working in Colorado may be covered under workers comp while living and working in Colorado under the travel status doctrine. At first the claimant lost but he appealed to the Industrial Claim Appeals panel. The panel said the first judge had not correctly applied the law when he said the claimant had to contract it during work hours. In any event the next appeal goes to the Court of Appeals who said it was too early to decide the case because the panel had remanded it back down to have the judge take further action. This makes it premature as no benefits were yet ordered. It looks like the parties then tried to agree on a way to try to keep the appeal going but it did not work. I suspect the appeal will crank out all over again since the parties were trying to expedite it and not have to go through it again. The case took over 2 years to get to where it is now with more still to come! Read the case here.

Waiting for Social Security Disability in Oregon

In this link to an excellent article in the Oregonian we see the terrible effects of the delays in processing and approving Social Security disability benefits. Years can go by and people can die just waiting. There can be appeals and more appeals. Even in the best of cases many months go by. There are simply more claims and less people to handle them but in addition there seems a concerted effort to deny the disabled a fair assessment in the early stages. Some cases astound me. A clearly disabled person who can no longer work is denied benefits and forced to wait for his hearing a year or more. Sometimes this person earned quite good pay and to think he'd give that up for a reduced benefit is plain crazy. Many would prefer to work. The stories in this article remind us that we can do better for the disabled. Congress needs to appropriate more and the process itself needs to be realistic not so technical we lose sight of the human side. As seen in this article linked here the human side is hurting.

All About Claims...August 2008 Newsletter

The Division of Workers Compensation has just put out its latest newsletter. They call it "All About Claims" and though it is late July they have it as August 2008. That is close enough for me. Anyway this is an excellent newsletter that I wish was published more often. In this latest one they review some new law/procedural matters (on apportionment and aggravation) and also present to the public photos and information about some Judges. It highlights Judge DeMarino who is highly capable and experienced. The Judges noted are handling prehearings and settlement conferences as promptly and wisely as they can. I appreciate their involvement in these areas. Otherwise we'd be left with a slower and more adversarial system. Their mere presence in a settlement conference makes the parties and the attorneys far more amenable to a reasonable compromise. Clients who are present come away with a more realistic understanding of the process and what has to be considered in a compromise. Anyway read the newsletter here.

Conflict of Interest Recent Case

On July 24, 2008 the Colorado Court of Appeals issued a case dealing with conflict of interest. The claimant was involved with the Division IME process. The DIME doctor received over 1/3 of his income from the insurance company as a regularly used provider and advisor to the insurance (Pinnacol). A DIME doctor is supposed to be truly independent and medically provide an opinion on treatment and impairment. He or she is not a treating doctor who is often designated by the employer/insurance to treat a claimant. Here the DIME doctor had close ties with the insurer but not on the specific case itself. The ties were from other activities although anyone receiving 1/3 of your income from contractual arrangements would seem pretty close to an insurer. The Court of Appeals determined this was not a conflict of interest and upheld the DIME doctors opinion in the case. Now many of us, even claimant attorneys obtain much income from insurance companies although we obtain it in an adversarial way (we battle with them). But having close contractual ties does seem to be at least an apparent conflict of interest. The mere receipt of money from insurance companies is not a conflict because if it were nearly all doctors would be deemed in a conflict of interest situation. So it is not an easy task to assume a conflict of interest exists from dealings with the insurance. It can be a question of fact but I am personally uncomfortable with the decision. If an attorney had a rather close relationship with an insurer he would likely not take a case against them. But doctors are not usually adversarial and getting paid by insurance does not mean there is a conflict. Anyway read the case here.

Free Consultations

Many attorneys in the injury and disability field state that they offer free consultations or a free initial office visit. That makes sense because most of the injured or disabled do not have the means to pay $100 or $200 or $300 or more to even see an attorney. Such a visit often takes more then one hour to be thorough. Usually mine take 1 1/2 hours as I really like to review much at the meeting. The paperwork, medical records or related legal/correspondence have to be reviewed to get an accurate picture. So talking by telephone is simply not good enough. The same with emails...just not good enough. Looking at the documentation and chatting is important to shed light on the situation. Is there some sort of catch to this free appointment? Absolutely not. It is free no matter whether you or the attorney do anything further. Of course it is also a way for the attorney to eventually earn fees but that is down the line. However do not expect the attorney to discuss other legal problems not related to your claim. The one thing that does amaze me is when someone calls and wants a free consultation but it is not something we handle or where we are not available for an appointment. When that happens most people understand and just keep seeking someone who can help them. But a few seem to think that "free" means they are entitled to it or an attorney has to see them. Nope. It just means the consultation or appointment is free when it is set by us. It is not required an attorney must consult with you only that if he does then it be free.

Colorado Minimum Wage

As of January 2008 the minimum wage in Colorado is $7.02. The federal law has minimum wages going to $6.55 an hour as of this week and to $7.25 an hour by next July 2009. Colorado's will likely be higher by then. So if you are making $15000.00 a year you are over the minimum wage! Still many business owners complain and may even cut back on their employees. Costs are rising. For example in the pizza business costs of the food items are going up just as they are in the grocery store. So either a business owner will try raise prices or cut back. This all seems rather sad to me. The problem with service industries is that it is not as profitable as manufacturing can be. Our growth was for a long time tied to manufacturing and that is now going downhill as it is outsourced to other countries. That leaves us with more low paying jobs. Some then sought wealth in finance and global corporations. We all know of the quite high compensation in those areas at least until the recent slowdown in the economy. But the average american sure isn't benefiting from this as he downsizes his house, his vehicle, his job. This is just my observation but it does make you wonder how it will all play out.

Recent National Hot Topics in Workers Comp

I am posting a link to a website maintained by insurance interests. The information there makes us aware of the status of workers compensation in the nation. As expected claims are down over the last ten years as of 2006. That is the last year they provided data. It is interesting to see what is happening in other states. Of course insurers complain about rising medical costs and the efforts in some states to increase benefits but that has always been the case. I am beginning to wonder if this downturn in claims is the result of industry fleeing the country for production in foreign countries. As American laboring jobs are lost there are less claims too. The workplace is safer if the higher paying job is gone and now you are a greeter or in customer service. The news and comments at this site provide a broader perspective on injuries in America and what some states are doing. Click here to visit the site.

A Dose of Reality

Lately it seems I am seeing people who have seen some ads and called attorneys who imply it is fast, simple or suggest that you'll get big bucks in your claim. The reality is that if you have a workers compensation claim not all mean big bucks. Also fast or simple likely means only that the call to the attorney is fast or easy...the claim itself is not fast or easy unless it is a late in the process. You don't select your attorney by watching slick ads that seem like short infomercials. How do you do it? First you ask around of people you trust. But that is just one part of it. Then you look for solid information. The best place might be online where you can check websites or blogs about the attorney. I mean many of us now shop online right? We review products and obtain information that helps us to save or get the best product at the best price. So search by the type of claim and your location or search by name or search by your problem or when in doubt search by whatever you wish. Do not disregard ads or the yellow pages but when you locate a possibility then follow through with an online search. Information can be your friend in trying to locate an attorney. Then if you can get an appointment does the attorney answer your questions? Does he take time with you? And...does he tell you the problems too? You want the whole picture not some simple promise to take care of you. I suggest you do this as soon as possible and then decide who is right for you. The reality is that every claim has its upside (reward) and its downside (risk) and you need to be informed not sold a bill of goods. As for some ads...don't they remind you of a barker at a carnival? You know the guy who says come over here we have an easy game to play and the prize is huge. And it's fast and easy too! Advertising is not all bad and can help in the information gathering process but the key is getting real information not a sales pitch. Search and select based on reality not pie in the sky.

A Quick Note About Posted Links

In some stories or postings I've made I will put a link to the story or article of interest. However sometimes the posting which can be current at the time no longer is available due to the passage of time. Usually with court cases that is not a problem because they are kept posted for 2 years or longer. But every now and then a perfectly good link becomes unavailable. This can happen with news articles or if the website I am sending you to has changed. If you are really interested in the link you might try going over to the way back machine at archive.org and they may be able to go back in time to the old link.

Decline in Social Security personnel

When people wonder why there are delays in handling Social Security claims they have to realize that the agency is handling more claims with less people. Technology may help with efficiency but that is not enough. Service requires people helping people and over the last ten years there has been an actual reduction in personnel despite increasing claims. Here is a link to a story on this which sets forth the actual numbers per year decline in agency personnel. It does make you wonder if getting old or disabled is not a good idea. Click here.

Apportionment SB08-241 New Law

Effective for all injuries happening after July 1, 2008 a recent law addresses the subject of apportionment. This is where the claimant has a prior impairment and then sustains further injury. The issue caused much litigation so hopefully the new statute will clarify matters. There was one case in Colorado where the apportionment applied to reducing even medical benefits. Imagine re-injuring yourself at a job and then someone saying we'll only pay for half of your medical care due to a prior work injury. Anyway that is gone now. Claimants receive temporary and medical benefits in full even where it is a re-injury or aggravation. But also apportionment still can occur for any permanent impairment if it existed at the time of the latest injury. At the Division of Workers Compensation website they are also working on new rules to implement the new law. For a general overview check it out here.

Lip Service

Whether federal disability or workers compensation disability we all expect fairness and justice in the process. That expectation is not realistic. Far too often good people are misinterpreting lip service for reality. Lip service says you should be promptly and fairly treated. If you have an injury you should receive quality care and benefits. If you lose your job you should be compensated. You should be communicated with by the insurer and taken care of by the law. In Social Security you should receive benefits for total disability where you cannot effectively work anymore and it should kick in as soon as possible. Reality? No. Instead 25% of the people with a work injury in Colorado have their claim contested. This means prove it before a Judge and until then you may receive very little if any benefits. A hearing takes a few months to receive but even if successful the insurer can appeal. Starvation and lack of adequate medical care can be a big problem. Even with treatment and some benefits the insurance always looks for the lowest way to calulate benefits. This does not mean the adjuster is mean or being tough on you...it is just a fact that insurance seeks to save money and that can be at your expense. Social Security hearings take months to obtain and it could be years before benefits are coming if at all! Prompt and fair? No way. As Americans we believe in fairness and justice. That is the American way but reality can be quite different from the lip service. Here is a link to one story about how the Social Security office was cut back yet claims were increasing. Sometimes you do wonder if it is a planned effort to end the current system by making it worse then it should be. Anyway here is the link to the story.