Walmart and Concentra to Pay $8,000,000 Settlement

In the Gianzero federal case Wal-Mart and Concentra were sued in a class action lawsuit alleging various violations including of the Colorado Workers Compensation Act, bad faith, RICO, and much more. The basics of the case was the assertion that Wal-Mart and its insurer conspired to dictate, withhold, delay, deny or interfere with the medical care of injured workers. The case made a big impression and received commentary elsewhere. The allegations involved setting forth protocols for treatment and referrals which violated the Workers Comp Act and which restricted or denied or dictated care. As alleged, Concentra then implemented "flowsheets" which were then imposed on its doctors which preempted the exercise of independent medical judgment. In my view the adjuster could control treatment which I see as the inherent conflict in most health insurance situations. He who has the money can be expected to try to set the rules! Naturally all of this was hotly contested but in the proposed settlement Wal-Mart, Concentra and their insurers have recently agreed to pay $8,000,000 to settle the case without formally admitting they were out of line. Class members would receive up to $520 each if they were treated at a Concentra facility between 2001 and November 1, 2011. The detailed proposal sets forth the proposed settlement and more is available at this website including the original complaint and the notice of the proposed settlement to potential class members. If you were injured working at Wal-Mart you may be eligible for a check should it all be approved. Added expenses are also sought by the attorneys for fees and costs. Moreover as part of the settlement they are to cease the disputed activity for 4 years and have educational training for adjusters and certain staff of Concentra regarding the prohibition on dictation of care provisions of the Workers Compensation Act. In my view this is a significant victory for doctors and claimants who deserve to have medical treatment handled as a medical matter and not unduly influenced by non-medical personnel who work for the employer or its insurer.

The Zolman Case on Bad Faith

The Colorado Court of Appeals just issued the Zolman decision on March 3, 2011 that concerns a civil claim for bad faith against Pinnacol. In this case which arose out of a workers comp case the claimant was upset with Pinnacol denying treatment and denying a change of physicians. A separate lawsuit was started alleging bad faith. This can mean a trial by jury on whether Pinnacol acted in bad faith which involves acting unreasonably. Pinnacol filed a motion for summary judgment against the civil case which was granted. This was affirmed by the Court of Appeals. So the claimant or rather the plaintiff in the bad faith case lost the case. Summary Judgment is a severe action and historically is not granted if there are questions of fact that should go to a jury. In Zolman there certainly were questions of fact on what is appropriate treatment so you would think the issue of how reasonable Pinnacol was should go to a jury. That is Pinnacol had what it believed were good reasons for denying and the claimant had reasons for saying it was unreasonable. It was a battle of medical experts which is common in this area. Yet the Court decided Pinnacol acted reasonably as a matter of law. Certainly when there are no genuine issues then a summary judgment is appropriate and that is what the case says. What I find puzzling is the use of the concept of "fairly debatable" apparently as a basis for concluding Pinnacol acted reasonably as a matter of law. As I understand it they are saying that the need for treatment was fairly debatable given doctors did side with Pinnacol but to me if there are doctors going the other way even if the dispute could be reasonable you still could go to a jury. On November 10, 2010 another panel of the Court of Appeals in Sanderson did decide that fair debatability alone does not defeat a bad faith claim. You have to wonder if these two cases are reconciliable on the basis to grant or deny summary judgment. In any event Zolman does have the Court deciding that Pinnacol's actions did not rise to the level of bad faith.

High Heels = Work Injury and Discrimination Claim

This case being reported by the American Lawyer and at Law.com is not a Colorado workers comp case. But what makes it interesting is the allegation that females at a law firm were required to wear high heels which then led to a workplace injury. Then the allegation is that no accomodation was made and there was reinjury and this went on until the lady lost her job. So the case goes beyond the routine work injury to result in an additional claim for discrimination. It is unusual enough that it seemed worthy to post here. High heels...work injury...seems like a blast from the past. In many Colorado law firms the dress is casual but even when it is not I am unaware of any required dress code that says you must wear high heels.

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.

Colorado Employment Law information

We receive many calls from people asking for help with an employment law issue. I guess perhaps they misunderstand that workers compensation is not the same as other employment related matters. Someone who is wrongfully terminated or discriminated against or asking about vacations or unemployment or medical leave may turn to us since we represent injured workers. But we do not handle these areas although sometimes they can affect workers compensation benefits. But first there must be an actual injury or occupational disease. We only practice in the areas of work injuries and disabilities. Even there we only take a limited number of cases. However the state has posted what it calls advisory bulletins in a number of these areas. To view them click here. Perhaps they do not answer all questions but the materials do try to provide some guidance in some of these areas. For example did you know that there is no required vacation policy in Colorado? At least none for private employers but that just means it is not state mandated. You may still have rights as may be part of your particular employment contract. Want to know about tips or overtime? It's there.

Other Types of Claims from work injuries

While we only handle work injuries and disability claims if you have a workers comp claim it does not mean that you are limited to just that claim. Sometimes from a work injury there may be other types of claims. One easy and common example is when someone is severely hurt at work and obtains workers compensation benefits. That person may also have a claim for Social Security disability benefits (SSDI). If so the workers comp insurance company gets a credit of a portion of your SSDI benefits (this may also apply to some other types of Social Security benefits too so check with a lawyer). Still you may get both benefits if you are totally disabled even if one of the benefits is somewhat reduced. It is always better to get two checks then just one. Of course when and if you should apply for SSDI is a matter to discuss with your lawyer so don't just go for it without checking further. There are many situations where it is a big mistake to apply too soon for Social Security benefits. Now aside from SSDI or even other Social Security programs can there be other claims? Yes. For example if you are delivering for your job and hurt in an auto accident you may also have a personal injury claim. Again do not handle this on your own because it does affect other benefits. Or, let's say the equipment which injured you is defective....again this can lead to another claim on top of the work injury or disability claim. In that this is quite complex you will need a lawyer. Don't do it yourself. An injured worker may even be able to file for unemployment benefits especially if workers comp benefits are delayed or disputed. Also if you are totally destitute there may be other social programs to assist you. Colorado has aid to the needy disabled. If you are fired it may lead to a wrongful termination claim or claim for discrimination. So don't think you can only have one claim when you are hurt at work. Other claims or benefits are possible though each type of claim or benefit may also affect your workers comp benefits. Your attorney may have to concentrate on what his area of expertise is but he can make suggestions in the other areas so discuss this with him. In my practice we maximize the workers comp benefits and then also pursue Social Security disability benefits for those severely disabled. If other claims are discussed or known to us we suggest other attorneys who can help in those areas.