SB 11-199

While this senate bill 11-199 is awaiting the governor's signature I expect it to become law. There are 4 provisions in the bill worth noting. First, it requires that the insurer pay costs in advance, if requested by the claimant, for an insurer IME or vocational evaluation. This means the cost for the claimant to travel, food and even a hotel must be paid or the claimant can refuse to attend. If they pay and claimant does not attend they can get an offset from future compensation due the claimant. Next, a Final Admission must admit for future recommended treatment by the authorized doctor unless there is a record of a contrary medical opinion. This prevents the insurer from disregarding physician maintenance treatment once the claimant reaches MMI. At times insurers never admit for further treatment even though its need is undisputed. A claimant may think or even be told by the doctor he can get further treatment only to be denied by the insurer and the bill seeks to avoid such a practice. Third,procedurally it corrects a discovery matter by not requiring those represented by an attorney to first ask permission before starting discovery. That extra step (documenting you asked permission) seemed just a waste of time and paper. Last, the bill makes it clear that any lump sum request regardless of the date of injury is not a waiver of the right to seek permanent total benefits. For those readers not familiar with the last issue the history of it is a claimant would receive an admission for permanent partial benefits of a certain amount, let us say $30000.00, and yet feel he was much more disabled so he'd seek permanent total disability benefits. Since by law the admission had to be paid out every other week the claimant sought it in a lump sum. That was deemed a waiver of his claim for permanent total benefits. The poor claimant was stopped in his tracks by accepting the lump sum perhaps just to pay bills and other expenses. You had to be careful to avoid this but the law has been changed. A total disability claim is no longer waived by accepting a lump sum.

SB 10-187 Impacts Claims on or after July 1, 2010

In Senate Bill 10-187 Colorado is making some significant changes in workers compensation claims. For a complete reading just look at the bill but here are the highlights as I see them (effective only for injuries on or after July 1, 2010):

1. If the claimant has to seek a hearing to continue to obtain maintenance medical care then should the other side give in within 20 days from the hearing the claimant can seek his costs to support his effort to continue maintenance care. I see this as trying to stop the other side from objecting to care and forcing the claimant at some expense to try prove his ongoing entitlement but then backing off.
2. Two matters pertain to calculating average weekly wage. One, stops the effort to not count the claimants cost of converting from employer health coverage when he gets medicaid or indigent medical care. A recent case said do not add or adjust for a claimants cost of health insurance when he gets indigent care for free. My view is that the employer health benefit was worth something and should be a wage benefit that is counted in calculating your wage. Second, any wage calculation is to be based on your accident date or based on a judge using his discretion to figure what is appropriate. To me this just codifies what is the law today anyway.
3. Permanent partial disability benefits are no longer to be reduced if you receive Social Security benefits or an employer financed pension/disability plan. I recall one case where the fellow had a reduction of his benefits to zero because of the statutory offset which is corrected by this bill. However these offsets do apply to other benefits such as permanent total disability.
4. A modified job offer may be refused under some circumstances and not result in job termination and asserting the claimant by refusing was responsible for his own termination so his temporary benefits should stop. Personally I wish they had simply repealed the existing law on this which triggers much litigation. In the old days if you were fired when disabled you were often not cut off your temporary benefits as you were still disabled and other work was not that simple to obtain.
5. The caps or limits of top dollar compensation are to be adjusted each year for any claim for injury on or after Jan. 1. 2012.
6. Lastly it is said that there is no waiver of your right to pursue permanent total disability by seeking a lump sum of all the admitted permanent benefits.
Every point raised in the new law was important to correct problems or other interpretations of the law. I'd encourage all to look at the bill as this just represents my simplified take on it.

Supreme Court Affirms the Nelson case

The Colorado Supreme Court affirmed the Court of Appeals decision in the Nelson case. In Nelson the claimant had obtained an advance lump sum of future permanent total benefits and years later sought another advance. The problem posed by the case is that the claimant had exhausted the advance amount earlier and only sought the new advance when the law was changed. The original statutory top dollar advance was $26292 and the statute was changed to allow a $60000 advance. Is the insurer liable for this higher advance when it was not the law back when the claimant was injured? The Supreme Court said yes it was. This decision was not unanimous and 3 judges dissented. But the majority controls. Both sides recognized that the law was not to be applied retroactively but the majority indicated that the law change was procedural so it would apply to anyone applying for a lump sum as of today. Procedural laws are not really changing rights or liabilities as compared to laws which are substantive changes in rights or liabilities. A substantive law change cannot be imposed on the parties covered by an older law. For example if the benefits were increased by a statutory change to 100% wage loss it could not be imposed on the parties later on. The higher wage would be a substantive change. So in this case it seems the majority and dissenters disagreed on whether the law change was procedural or substantive. The majority felt the advance was not extra compensation and the dissent seems to view it as giving the claimant a higher benefit because he receives value sooner then spread out over his lifetime. Mathematically when we do present value analysis there is no real difference. Of course people can die young or outlive expectations so either side may have the advantage here and now we come to another point I have not heard recently. The court said that the law should be liberally construed in favor of the injured worker so it did not split hairs here and ruled in favor of the claimant getting another advance. I posted on the Court of Appeals decision earlier.

New Proposed Bill SB 10-187 Has Many Changes

A very new proposed bill, Senate Bill 10-187, has many changes of significance for Colorado. Here are some of the important proposed changes:

1. It wants to provide the claimant with the costs (not attorney fees) of obtaining medical maintenance benefits recommended by the authorized physician if they are unpaid and contested but the claimant gets them ordered or Respondents agree to pay within 20 days of the hearing. I assume this is to try to reimburse the claimant if he or she must go to a hearing and expert testimony costs are necessary.
2. It clarifies what is to be the average weekly wage calculation problem raised by a recent case (Avalanche). It proposes to use the date of injury or whatever the judge in his discretion deems fair (not to use two dates such as date of injury and date of disablement as appears in the Avalanche court case).
3. There is to be no Social Security offset on permanent partial benefits. Such an offset would often be so onerous that partial benefits might go to zero so this prevents that should it become law. For those not aware the law reduces your workers comp benefits by one half of your Social Security benefits to prevent what some say would be double benefits. It is the law and this proposal tries to eliminate the problem of the SS offset applying to partial disability cases.
4. Another proposal is that should an employee reject a modified job offer that it not be considered his responsibility (such that temporary benefits may end) if it is a reasonable decision or if the job offer is over 50 miles away. Employers at times have tried to stop temporary benefits by unreasonable job offers that are not very nice or accomodating. In other words this proposal lets the claimant explain to a judge why he cannot take the job and perhaps avoid stopping his temporary benefits.
5. Annually requires an adjustment in the caps (currently top dollar for all but permanent total benefits are $75000/$150000 combining temporary and permanent partial benefits).
6. Proposes that a claimant can get a lump sum of permanent partial benefits but not be required to waive a claim for permanent total benefits.
I think you can see that this proposed bill has many provisions so we'll see if it becomes law. By and large it is reasonable in its approach at least from the claimant's point of view. It is not possible to review this in more detail in this blog post but those interested may read it and follow it as it moves through the legislative process.

Supreme Court to decide on 2 workers comp issues

Today the Colorado Supreme Court granted certiorari in 3 Court of Appeals cases. That means they have decided to address the issues in those cases. In fact there really are just two primary issues. Two of the cases involve one specific issue. That issue is what is called "time of disablement" and was addressed by the Court of Appeals earlier this year. One of the cases was published and is the Simpson case. What is important is that some claimants want another date to apply in making the average weekly wage calculations for permanent benefits. The lower court said there was date of injury and also what is called date of disablement. In any event it was a big enough issue for the highest Colorado court to want to review further. It should be noted that the Supreme Court did last year in Avalanche also address this so maybe they want to clarify something. Next in Nelson the issue was a claimant seeking a higher lump sum then was the law at the time of his injury. The Court of Appeals decided that the law passed after his injury can be used by the claimant to obtain a bigger lump sum. Its reasoning is that the law was procedural which can be applied at anytime in a case. This as opposed to a substantive law change which you cannot backdate in a case. The claimant had previously collected a lump sum (advance on his benefits) that had a limit of $26292.00 and returned seeking another advance that was increased (to $60000.00)after the date of injury by a later law. No doubt some wonder how can a later law be applied against a party but the law did not change the permanency calculations only that another advance of money to become due could be sought. Neither of these two issues affects very many claimants or respondents but it will be interesting to see the arguments fully addressed and decided. It may be several months before we know but both issues are novel enough for the Colorado Supreme Court to take on.

The Nelson case allowing a second lump sum

Decided today by the Colorado Court of Appeals is the Nelson case. This is a case where the claimant was permanently and totally disabled. The law allows a claimant to obtain a lump sum. She did in the amount of $26292.00 which was the amount allowed to be lump summed back when the claimant was originally injured. Since that time the statute was changed to allow for up to $60000.00. So later the claimant sought the $60000 less the $26292 she had already received. She lost on this with the reasoning being she was bound by the law in effect when she was injured. The Court however let the claimant obtain more by deciding the lump sum law was procedural. As such it was not impermissively retroactive or trying to wrongly impose a new law on an old case. The decision makes sense. There was no change in the fact that a permanently and totally disabled person was entitled to lump sum or obtain an advance of the biweekly benefits. It just allowed the claimant to obtain a bigger advance. This is simply a math matter that does not really give a claimant more then he or she is due but just allows for a bigger advance of future money that is owing.

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.