Issues to Think About for 2012

Around this time of the year I look back at the year and ahead too. Someone asked me about national issues in the field of workers comp but really not much has changed over the last year in Colorado. By that I do not mean that there were no changes or interesting developments but that it was a year of slow or minimal changes in the law. Still there were some developments. For the statutory developments just click here for an overview. For what is new at the Division of Workers Compensation you can click here. For caselaw we cover this in our blog. But as for the national or evolving issues in this field I guess the overriding issue is the economy. Still that is not unique to workers comp. What I have noticed over the years is there are increasingly technical or more precisely medical issues in workers comp. They usually trigger a battle of experts. What you then see are many cases that have become medical battlegrounds. The battling experts are the doctors. In such battles the advantage is often with the insurer. First, the treating doctor is usually selected by the insurer or the employer. Not exactly a good deal for the employee especially when there is a controversy. Next they cultivate those doctors who issue reports and testify to the benefit of the insurer position. It's expensive for a claimant to use his or her own doctors. Testimony expenses are billed at $450 an hour in most cases and includes commuting and wait time too. It is easy to spend over $2000 for one such expert. Advantage? Insurer (I have had insurance defense attorneys tell me they can pay $5000 or even $10000 for their experts). This can cripple a claimant's case. It strikes me that this is impairing a fair fight or what I would call access to the system. In civil matters there is a growing awareness of a need to simplify proceedings because when matters are complex or highly technical it works to the advantage of those with the money. In Colorado there is a interesting new seminar on this as relates to civil proceedings other then workers comp but it strikes me that improving access in workers comp is extremely important. By permitting many experts we skyrocket the costs of a hearing. It may be wise to limit this. Perhaps for a fair fight we should let the claimant have his expert as a covered benefit but that is not the current law. In my opinion any effort that speeds the process, makes it a fair fight and reduces something that is complicated to what the computer crowd would call user friendly is to be lauded. The workers compensation system was not intended to be unfriendly to injured workers. It was intended to be an efficient way to deal with work injuries and hopefully protect the worker while he recovers from his injury. In my view that is not happening and perhaps we need address this so we get back to the original purpose of the workers comp laws...to assist injured workers even if benefits are limited by statute. Otherwise the problem is shifted to all of us.

RIP Curt Kriksciun

Former prehearing Administrative Law Judge and Industrial Claims Appeal Panel member Curt Kriksciun passed away on October 4, 2011. While I may not have always agreed with his views he was truly a gentleman. As a prehearing judge especially in handling settlement conferences he was usually seeking compromise whenever possible. To do so he would chat and provide comments from his experience. This usually would have a calming effect with my clients who were often stressed by the process. My impression is that he always sought to be neutral and objective...even if it was difficult. But by being friendly and relaxed in his approach he would lower the stress level. I am sure he had this effect with many people that had matters before him. He then became a decision maker or member of the panel reviewing cases appealed after the initial decision. He performed well in this last position and I daresay the quality of those decisions improved with his involvement.
Services will be Tuesday October 11th.

Rule 16 and 18 Proposed Changes

The Division lets us know about proposed rule changes and this change concerns Rules 16 and 18. These are medical matters which are changed just about every year because medical costs keep rising. Rule 18 involves medical billing and Rule 16 utilization review. The proposed rules are posted and then adopted after comments are received and reviewed. Most of this is not very exciting information except for doctors and other providers although at times a claimant or claimant's attorney does have to look at the rules. What a doctor can charge for legal things like testimony, consultations, reports and the like are important to know. Such matters are often the responsibility of the claimant if he or she asks for any of them. So wanting to have the doctor come to the hearing is fine but it is also at a cost to the claimant. So while these rules seem complicated to read and perhaps not that important to claimants most of the time there are situations where a claimant needs to check on what the rule says. For example, in the past there has been litigation on the subject of what is called prior authorization. This area involves a provider getting advance approval for something and when approval is not forthcoming the doctor and perhaps the claimants attorney may wish to dispute it and even seek penalties. What is addressed in Rule 16 on the subject becomes quite important in such a situation.

Maximum rates and the caps

The Division of Workers Compensation has just posted the rates for maximum benefits and related math calculations. For example they indicate that as of January 1, 2012 the caps are to be $76605.00 and $153210.00. Maximum rates are usually related to your average weekly wage not to the severity of your injury. Those with a workers compensation injury are paid two thirds of their average weekly wage for temporary benefits in the majority of times. There are exceptions that can lower this amount and there are occasions when the average weekly wage should be adjusted higher. If you are a claimant never assume the figure your employer or its insurer says is your wage. Never assume they are right no matter what is told you. If you are an employer or insurer never assume the figure provided by a boss is correct. A wage calculation is not a simple matter and there can be many variables that affect the calculation. However the fact you sustained a horrific injury is not going to affect the math. It is based on the math and when in doubt is determined by a judge when someone takes it to a hearing. In a typical situation the injured worker receives two thirds of his average weekly wage during the time he is temporarily disabled which s adjusted if you work part time. If a claimant returns to work full time temporary benefits stop. Such benefits can stop for other reasons as well as provided by law. You can review that with your attorney or seek help from the Division to understand it. Customer Service phone is (303) 318-8700. Please note the two thirds figure has not been considered taxable but it is not the same as your paycheck amount. It is what it is as set forth by law. But each year there can be adjustments and that is what has been done and posted at the Division today. Caps are amounts that place a limit on your compensation. They do not apply to medical benefits which are not capped (at least not yet) and they do not apply to those permanently and totally disabled. But if you are drawing temporary benefits and then entitled to permanent benefits those amounts can be capped when added up. Temporary benefits alone are not capped but if added to permanent benefits the law can apply a cap. Regretably this is a tough matter for claimants but the state has decided through its elected representatives to place limits in certain areas. In a sense most insurance policies have limits and workers compensation is no different.

DIME Brochure

A DIME or Division Independent Medical Examination is a very unique process which allows those requesting it to seek to obtain a truly neutral evaluation of a claimant's impairment and treatment plus even more. It is a powerful force in keeping the system honest since most treating physicians have been selected by the employer/insurer and many claimants remain suspicious of that. To claimants such physicians often seem not to be on their side. In point of fact they may be quite capable but there are others who may be less then thorough or devoted to the patient/claimant. A DIME affords a claimant or even the other side the opportunity to have treatment and impairment reviewed. Moreover the law has made a DIME a strong force that can only be overcome by clear and convincing evidence in most cases. There are exceptions but the general rule requires strong evidence to overcome the DIME opinion especially on the issue of MMI or impairment. The Division has a brochure available to review the DIME process and it is worth reading. In my practice we use the DIME process in the vast majority of cases though in some cases we do accept the treaters opinion. By the way you can agree with the treaters rating but still seek permanent total disability by objecting and following through as set forth by the law. A physician may say you have 20% impairment but for you perhaps you can no longer work. You have the right to seek total disability but you must act timely and sensibly to make your case. A lawyer is usually essential here.

Munoz Court Case on DIME waiver

The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.

All About Claims Newsletter March 2011

The Colorado Division of Workers Compensation has just released a new newsletter. In it you can read the comments of former Judge Jaynes who recently passed away. There is also something on the DIME (Division Independent Medical Exam) process. The newsletter approach is a good one and would be even better if it were a regular feature. Giving us a glimpse inside the state agency makes it rather unique. Being able to just talk about things in a very informal way is helpful. It puts a face on what we sometimes see as bureaucratic when actually it is human. Many good people do their best in this field. The field itself may need much improvement but those who work in it have not been the problem. In fact looking back on the many years I have been doing it I have to acknowledge that the people at the Division and those handling hearings have been, for the most part, very decent and intelligent people. They are decent because they are respectful of others even when they must follow the rules. They are intelligent in doing their best to be fair and legally accurate in what is often a very complex field. Most of them and most who practice in this area believe they are making a difference as do I. Having said that I should add that some adjusters and employers do not play fair at all. Yet dealing with them can be difficult but also very rewarding when done right.

Colorado Injured Workers Survey

Over at the Colorado Division of Workers Compensation they just posted the results of a survey now required by law. Once the case is over or close to over a survey request is sent out to the claimant. For this first survey not that many responded but it is enough to tell us something. The survey itself asks about courtesy, promptness, medical care and overall satisfaction. The weakest area, according to claimants finishing their case, is in disputes being promptly resolved. Amen to that as delays are common in a field originally set up with good intentions. Most cases seem to take 2 years if they involve a serious injury and an attorney. Some cases go much faster but often it is because they are being treated as minor. I have always planned on at least a year but it does depend on the injury and how much medical care is needed. Even then many cases seem to drag on largely because the system has remedies that take time to work through. A Division IME adds a minimum of 3 or 4 months to the process. You file this paper and wait for the other side. Then they file and you respond. Then you wait for the Division to give you doctor names and then once selected there is a window within which you must set the appointment. Even then it takes time to receive the report and more time for the insurer to act before the claimant can act. It is a bit like a baseball game as the law gives each side a time at bat so no matter how fast you want to go it takes time to line it all up. As for the survey results you can access them by clicking here. Pinnacol received a 3.6 grade out of 5 for overall satisfation. Zurich Insurance was a 4 and the worst among the larger companies was Kroger at 2.5 but all the results have been posted. You may need a spreadsheet program to look at it all but what it tells me is that the overall grade is like a C or C plus. Let me add this...it is not good enough for those disabled and relying on a government mandated compensation program to say it was just okay. Claimants are often hurting physically, financially and are also stressed by the situation even under the best of circumstances. They deserve courtesy, promptness and decent medical care. To me the lower the grade the more adversarial the company. Persistent low grades on surveys may warrant further review or further regulation.

Retired Prehearing Judge Ron Jaynes Passes Away

I was just notified today that retired Judge Jaynes passed away this morning after a long illness. There are no further details yet. Judge Jaynes retired in 2009. What most impressed me about him is that he was very down to earth and always polite. In a day and age when we are often having to pierce through a cloud of confusing details you always knew that he would try to keep it simple and understandable. He could do so with a sense of humor too. You can see him in this 2008 newsletter on page 3. Rest in peace.

Update: Services for Ron Jaynes are Friday, February 11, 2011 at 1:00 p.m. at Highline Community Church, 6325 South University Blvd, Denver.

Brown Bagging It on ICAP cases

Once a month an administrative law judge has a brown bag lunch where he reviews cases of interest to those in the Colorado workers comp field. These cases are not readily available to the public although most attorneys in the field have access to the decisions. The Industrial Claim Appeals Office handles a great many appeals from hearings held at the local level. Many such cases never get appealed further and the next stage is to the Colorado Court of Appeals. Judge Eley is well liked and respected by most attorneys in this field and his free Brown Bag Lunch Seminar is well attended. Even if you cannot make it he emails you the materials and an audio of his presentation. Today is the January lunch and from the materials I have already received I note two cases that are exceptionally interesting to me and perhaps to most readers. The first can be called the Wheeler case. The claimant was admittedly permanently and totally disabled and thus entitled to PTD benefits. The issue was how to compute those benefits where they are paid out every two weeks perhaps for life. So the case involved AWW which is average weekly wage. The claimant when hurt at work was earning a very low figure if you look at her actual average wage. Respondents said it was under $75 a week. However vocational evidence was provided which helped show that the rate would be much higher then her actual wage at the time of the accident. While this must all relate to the date of the injury a Judge does have discretion to depart from your actual wage and consider loss of earning capacity. Here the difference was enormous though any calculations still are based upon the law as of the injury date. The judge applied the law as of the date of maximum improvement which was a mistake. The claimant still won big here.
The second case involved a fall at work. Caselaw tells us that not all falls at work are really work injuries entitled to benefits. The claimant in Landes was determined to have a work related tramatic brain injury injury which arose from work activities despite the fact he had amnesia and remembered nothing about the fall. Often Respondents will assert it is the claimants burden to prove his case and falls can come for many reasons. No change in the law from this ICAP decision favorable to the claimant so it is up to the hearing judge to decide on the evidence presented. There was a dissent that essentially said the evidence was speculative either way making the fall unexplained and not compensable.

Workers Comp Educational Conference

The Colorado Division of Workers Compensation placed all of the written materials from its first annual educational conference online. You can access it here. The materials are fairly extensive and insightful. Be aware that some of the materials seem to be in outline form because these materials were handed out at an actual conference where the writer also lectured. The materials do presuppose some knowledge of workers compensation but I have to admit they are a valuable resource to anyone in this area. It helps to keep us up to date and to address areas where there may be questions.

The Survey

Insurers are now required to survey each claimant after the case is over as set forth in this rule just posted by the Division of Workers Compensation. This is then yearly reported by them. I wonder how many angry claimants will respond to the few questions posed to them. They relate to claimant satisfaction and this mandatory survey may reveal how many are dissatisfied. Many are not pleased by the process which originally was designed to promote the prompt and efficient delivery of benefits. Nowadays we have disputes all over the place which if not quickly resolved proceed to hearings and sometimes to appeals.

Settlement Documents

This link to the Division website lets you take a look at the standardized workers compensation settlement agreements. These documents are uniform so the language is the same for just about everybody. That said there are ways to make some changes or attach other documents that may be side deals between the parties. If you've been provided documents and want to see if they conform or where they differ check it out.

Legislative Advisory 2010

The Colorado Division of Workers Compensation has posted a legislative advisory that briefly reviews the 2010 legislation that is applicable to workers compensation. While the legislative session is over the Division will proceed forward with rule making that may pertain to the recent legislation. Some of this recent legislation is significant. The advisory is just 6 pages so you can easily see for yourself.

Colorado Labor Department on Twitter

Colorado presses on into the 21st Century! They twitter...or is it tweat? In any event these are short comments which you can access or have sent to you. The subjects vary a great deal but can include workers compensation, unemployment or other areas within the purview of the Colorado Department of Labor. My view is more is better then less...I recall the days when obtaining information was not so easy. Now we can do our legal research online. In the old days legal research was very time consuming and meant handling many big law books. You then copied pages by taking the book to the copier and page by page making a copy of a case. Now I can be on a laptop and directing a wireless printer to copy the case. With the development of the computer age we have seen an enormous increase in knowledge and efficiency even if at times we are all frustrated by technology. Just some 30 years ago we were in its infancy. In any event Colorado is active on the internet. It is making available many resources for all of us.

Continuing Legal Education WC Webcast

Attended a seminar on Colorado Workers Compensation today. For the first time I did so by what is called a webcast. The weather in Denver was projected as snowy so my plan to attend in person became a problem needing a solution. The solution was something called a webcast. It was televised over the web for those who signed up. The materials were sent to my email and from there I could open it up and watch the seminar. This was an all day affair although given the weather they did break a few minutes early. Usually these seminars pack a great deal of material into the day. That meant reviewing many cases, a discussion on the Medical Treatment Guidelines, ethics, rules, recent important legal points and lastly a presentation by two doctors on what used to be called RSD and is now abbreviated as CRPS. You can view more about CRPS by reading the material on it in the treatment guidelines noted above. Webcasts like this save time and today let me devote the time without concern for the weather.

First Colorado Workers Comp Educational Conference

Just announced by the Director of the Division of Workers Compensation is the first educational conference in what may likely become an annual event. Aside from educational information on the law, rules and the like there will be workshops and an Exhibit Hall so that all manner of professionals and more may interact and learn from each other. This event is set for September 16-17th, 2010 and may be well attended. I know I am interested in it so will try to attend and gain insight although it would be nice to obtain some continuing education credits. You can view the announcement here.

New Website for Division of Workers Compensation

Colorado redesigned the website for the Division of Workers Compensation and posted it online. It certainly has a cleaner appearance and I suspect it has all that it had before. For me it will take a bit of getting used to since I was comfortable with the old website. What does happen when you give it a cleaner appearance is that it can take an extra click to find some pages. I did like the old website but it was cluttered with details. For a guy who prefers details I took to it but can see the reason to simplify it.

Settlements use Specific Forms but there are twists

In Colorado the parties in any settlement must use forms called USA's which stands for Uniform Settlement Agreements. The Division put some information on this in a recent posting you can click here. Colorado in doing so was attempting to make settlements easy to understand since they are all supposed to have standardized language. Sounds simple but there are some twists here. First, there is one form to use for the pro se or unrepresented claimant and another for the claimant represented by an attorney. Next, despite the effort to standardize things the parties often have side deals that are really part of any settlement. Those must be addressed somewhere. For example often the insurer and employer may require that the employee resign and waive such matters as discrimination or bad faith. Or, there is a need to address certain medical matters. Often these side deals are really requirements for a settlement but the Division does not approve the side deals even though we all know that the parties must have them. Whether attached or not these side deals are important enough that no one should simply sign them and assume anyone at the Division will review them. They are not reviewed at all as the Division is concerned with the work injury itself. So pay attention to everything you sign as you may be giving up something valuable or dealing with certain medical issues that are important.

Injured Worker Claim Form and Contact Number

If you are injured on the job and must file a claim with the state or just need some basic information please do not be afraid to call the Division of Workers Compensation customer service number at 1-888-390-7936. The claim form can be found here at this form page. It is a big download in pdf format but can be filled out and sent in whenever you are being ignored on your claim and should proceed on it. Sometimes you report your injury and nothing is done by your employer. Colorado lets you file your own employee claim, gives you general information at its website and customer service is a telephone call away. Of course as soon as possible consult with an attorney. Please do not rely on your employer or the insurer to act in your interests.