Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal.

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.

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.

Maximum Rates

Workers Compensation benefits are all set by statute. Benefits are a form of insurance coverage for those who have been shown hurt at work. But like any insurance it does not pay unlimited benefits. Benefits are restricted by what we call caps and that means they are limited depending on the situation. Anyone's true losses and pain may be much higher but workers comp given it is insurance only covers what the state sets forth it will cover. Even then disputes are common especially over the severity of the injury and whether work activities caused or aggravated your condition. There may also be disputes on wage calculations, dates, doctors or medical care, job termination, and much more. One cap noted is on maximum rates. Each year this figure can change but what it means is that you can get less but never more then the cap if your wage exceeds $1216 a week (which can include certain other wage related benefits if applicable). Given this figure it means that the top amount of $810.67 is the maximum figure for temporary total disability (2/3rds of the $1216.00).

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 issues decision on AWW

In the Simpson/Bennett cases the Colorado Supreme Court reversed the Court of Appeals to the extent it used the concept of date of disablement to determine a claimant's average weekly wage or AWW by applying a higher maximum rate in effect years later. The wage calculation can be a very important figure that is used to pay out benefits. The higher the calculation the higher the benefits may be. The case reviews the two ways a judge can determine AWW. One way is the statutory way which can involve computing your wage as of the date of injury. Another allows a judge to use his discretion when another way would be more appropriate. For the last year we also dealt with the concept of date of disablement which suggests another approach. Actually most of us in the field realized that the date of disablement concept is unnecessary anyway in most cases. The discretion given a judge is enough to afford him the ability to figure an appropriate wage if he exercises that discretion. Usually your wage at time of injury includes tips and overtime, perhaps room and board and perhaps even the cost of health insurance if it was paid in part by your employer and can be cancelled. Using some other concept seemed to be somewhat confusing but it came because of a prior Supreme Court case called Avalanche. Now the court simply corrected itself although the rest of that prior case still holds that wage calculations may include a subsequent wage if the judge in exercising his discretion decides it is appropriate.

ICAP says no wage adjustment in Whalen case

In Whalen the claimant appealed a decision by the hearing judge not to make any adjustment in the wage calculations when the claimant lost his employer health coverage and went on medicaid. Normally when you have health coverage through your employer then the cost of obtaining similar coverage is added into the wage calculations. This often results in higher temporary and permanent benefits. In a sense being provided health coverage by your employer is a wage benefit so losing it should mean an adjustment must be made. But in this case ICAP (the Industrial Claim Appeals Panel) decided the appeal against the claimant. ICAP reviewed the law and decided that medicaid was an equivalent insurance and since it was at no cost to the claimant then nothing gets added into the wage calculations. There was a dissent so perhaps this case will be appealed to a higher court. ICAP did reason that since medicare was an equivalent health insurance (based on an older case) then medicaid was also. The problem for me is that medicaid is provided at no cost to the poor. So a claimant with an employer health insurance who loses it and then cannot afford anything turns to medicaid. He may be on medicaid for only a short period yet this case says the fact it is free means no added benefit for the loss of the employer health insurance. His inability to purchase health coverage is then used against him. The statute on wages is at 8-40-201(19). In 2006 the Colorado Supreme Court decided in the Ray case that you add the cost to purchase health coverage to the wage figures and if the claimant cannot or does not actually purchase it then it is still added. Medicaid is a non-purchase matter and it would be interesting to see what a higher court would decide.
Pending legislation also may change this. SB 10-187.

Average Weekly Wage Desk Aid

The Division of Workers Compensation has what it calls a desk aid to help compute a claimant's average weekly wage. You can view it here. The subject of average weekly wage is an ongoing matter in Colorado. Even now the Supreme Court is to review a case soon (soon means this year).
The importance of the issue cannot be disregarded. Your wage calculations can play a very big role in your compensation benefits. A claimant wants it to be as high as possible and Respondents want it to be as low as possible. The reason is that it can increase your temporary and permanent benefits by a significant amount. As an example let us say you are making $10 an hour and get injured on the job. Does that mean the average wage is $400 for a 40 hour week? Not necessarily. Overtime does count. Having a second job may also count. Getting tips can also be counted (if timely reported to the IRS). Even health benefits from your job may be counted in many circumstances. The Desk Aid for wage calculations is actually more of a guide because a Judge has a great deal of discretion in calculating your average weekly wage. Do not blindly accept the figure provided to you as it may not be the only way to calculate benefits. Many insurers just take the last quarter's earnings (13 weeks) prior to the work injury and this may be way off. A judge may decide there is a different way to calculate it. Back to the example...if the $10 an hour employee worked overtime, or had tips or a second job or health coverage or even if there is another reasonable factor to consider the wage can go up. Even a figure just a few dollars higher can mean thousands more in temporary and permanent benefits. Always do your own calculations and your attorney should review the calculations considering the current caselaw and statutory law. This issue is a subject that is very current and often controversial so do pay attention to it. Look at my last post of March 20, 2010 where it is brought up in a proposed piece of legislation. See also this post where the wage calculation approach is to be reviewed by the Supreme Court.

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.

What is Your Impairment worth?

I received a comment on this from someone and I thought it deserved a posting on this Blog. First any impairment rating may or may not be correct. Any of the parties may be able to dispute the rating or number and this often happens for the claimant. Do not take the first impairment rating as the end of the story. It is often wrong and even a medical opinion you are at maximum medical improvement can be wrong. When you receive a rating consider questioning it (legally this is an involved process and best done by your attorney). In any event let's say that the rating you receive is a high one. Let's also assume you are not permanently and totally disabled (if you might think you are get with an attorney right away). Lastly let's assume it is truly a whole person rating as certain injuries are not. Even then if you receive say a valid 20% whole person impairment rating what is it worth? Believe it or not there are other variables to consider. There is an age variable. There is a variable for your wage. The lower your age the higher the worth of the impairment. The higher your wage the higher the worth of the impairment. These variables make it essential that the calculation be performed on a case by case basis. One person may get $1000 for every one percent whole person and another $4000 for each percent or even more. Colorado also puts limits or caps on how much you can get so there simply is no easy answer here. Finally if the insurer agrees with the rating they will file a Final Admission often seeking to close the case. Please realize you must also consider your future medical needs. Insurers will try to limit all benefits so take any Final Admission as an effort to end your claim or at least greatly restrict it. This means any Final Admission requires a very careful analysis to protect your interests. Do not accept it at face value without doing so. We almost always object to Final Admissions and take timely and appropriate legal action to advance the cause of the claimant.

Effective July 1, 2009 Maximum Rates

Just posted over at the Division of Workers Compensation website is a chart that sets forth the top dollars paid out on benefits. For example, the most you can receive in weekly temporary benefits is $807.24 and that only happens if you were making $1210.86 a week in wages or more. Few injured workers ever will be paid at that rate and if not they can be paid 2/3rds of what is determined to be their average weekly wage. Historically you do not pay taxes on the standard workers comp benefits so 2/3rds is close to your take home pay when you cannot return to work. Of course to obtain any benefits they must admit you were hurt on the job and are entitled to temporary total benefits. If your case is contested then as long as it is you are not paid such benefits. Moreover even if you are entitled to temporary benefits they will adjust them if they have you working part time. There are rules on all this but this post just lets you see what the top dollar figures can be. The rates are set each year and made effective every July 1st.

3 Court of Appeals cases decided April 16, 2009

The Colorado Court of Appeals decided 3 workers comp cases yesterday. In Simpson there was an assertion of overpayment to the claimant. Alleging all sorts of arguments the claimant was not successful in preventing the overpayment effort. The case is an interesting read but has one twist that may be significant just by itself. The claimant also sought to recalculate higher his permanent total benefits. Citing a recent case, Avalanche, his argument was that the calculations be based on his date of disablement not just the original date of injury. On this the court remanded it back to the lower judge for more fact finding. In Landeros the claimant alleged his jail time tolled the statutory time limits to seek to reopen. He lost. In the last case, Aviado, the claimant also asserted many arguments when he lost his permanent total claim at the hearing. It is also an interesting read and alleges that the claimant should have a right to proceed civilly apart from the workers comp system. It even asserts the Act itself is unconstitutional. He lost on all his arguments. My brief comments here do not do justice to these cases and I urge anyone interested to click on the links and read them for themselves.
UPDATE: Aviado noted above was denied cert by the Supreme Court on Apr. 5, 2010 so it means that court will not review further the decision of the Court of Appeals.
UPDATE: June 1, 2010, the Supreme Court reverses Simpson and a related case and overrules itself on date of disablement but AWW can be by determined by statute or by the discretion of the judge. Date of disablement is not to be used and does seem to be unnecessary anyway.

Antartica in Colorado workers comp case!

Decided on March 19, 2009 the Iler case involved a claimant hurt in Antartica. He sought to add the value of his room and board to the wage calculations by comparing it to his room/board in Colorado. So how do you calculate its value in Antartica? The judge felt he couldn't and the claimant appealed. The next level up in an appeal is called an ICAP decision. The Industrial Claim Appeals Panel decides at this stage. In his case they agreed with the Judge. The next appeal is to the Court of Appeals and here the claimant succeeded in getting his case remanded back down to the Judge to assess a reasonable value and add it to the calculations. Read the Iler case here. It is always in the best interests of a claimant to have a high average weekly wage. This figure is often used in determining the amounts of temporary and permanent benefits you are entitled to receive. The most common increase comes when they forget to add your overtime. Also they should add your health coverage if you are going to lose it through your employer. But also as is the case here an employer provides you with room and board. It may be part of your wage package so it too can be added. The Colorado statutory definition of what is your average weekly wage is as follows at 8-40-201:

(19) (a) "Wages" shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.

(b) The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.

(c) No per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes.

Avalanche Industries Supreme Court decision Dec. 15, 2008

Back on March 22, 2007 I reported on the Avalanche decision at the Court of Appeals level and then noted it was up before the Colorado Supreme Court. The court decided the case on Dec. 15, 2008. Briefly the court decided that a Administrative Law Judge can decide that your wage is whatever is fair and just. It is not necessarily simply what you were making at the time of the accident. In this case the claimant was earning a wage and paid out for permanent partial disability but retained her right to reopen. She did reopen and her higher new wage and health benefit was what was used to calculate her increased permanent disability. She was now totally disabled so benefits were long term at the much higher calculation. The other side said the law restricts average weekly wage calculations to what you were earning at the time of the accident. The court determined that there are two ways for a judge to decide matters. He can decide based on wages at the time of disability (not just accident) or if that is unfair he has the discretion to decide what is fair even if it is a later and higher wage. There were dissenting judges but the case was specific in its analysis so injured workers win big here. Read the case here.
Postscript: I am advised that the facts may not be correct in that the claimant was not seeking permanent total benefits as reported by the court. Further a rehearing is to be sought. I do not see this as affecting the legal determination that an Judge can decide on average weekly wage in his discretion but we shall see what happens. UPDATE: the Court corrected the decision on Jan. 20, 2009 and it can be read by clicking here.

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.

Effective July 1, 2008 Comp rates

Anyone earning over $61321.00 receives no additional compensation for their Colorado work injury. As of July 1, 2008 the highest temporary and permanent weekly benefit is capped at $786.17. To get that you have to earn $1179.25 a week. If you earn more Colorado says too bad. If you earn less it's 2/3rds of your average weekly wage. So if you earn $600 a week then your weekly temporary benefits would be $400 (2/3rds of $600). What is your average? Add all your overtime and use a common sense approach. The insurer may only use your base pay. Often that is because that is what is told to them by your employer. However your average weekly wage can include overtime and other benefits (especially if they cancel or end your health coverage through work). Your employer or the insurer may decide to only count the last 3 months when that may not reflect a true average. Unless agreed upon you can seek a hearing to question what is a true average for you. However it also does not mean you only count the highest checks you've received. There is a statute on this but really just be sensible and if you are uncertain try to resolve it before seeking a hearing. In any event there is a lid or cap on benefits and for July 1st til next year the figure is set forth above. Also disfigurement is now capped at $4174 or possibly double that if you have extensive and visible disfigurement. It can be less so when I say cap it does not mean that is what you get. You may have a very minor scar and receive only a few dollars.