Administrative Law Judge Orders for September 2011

I have indicated in the past that the Office of Administrative Courts will post just about all the orders issued in the state of Colorado following hearings in workers compensation cases. In September they posted the orders and it covers some 470 pages. I skimmed through all of them and many are quite interesting reads. A great many of them involve medical legal issues so they have opinions by numerous doctors. In one early case I counted 8 doctors. Often such cases involve causality questions pertaining to whether or not a claim is work related or questions regarding treatment. I should remind claimants to discuss all your complaints at every visit with the doctor. In my experience some of the doctors do not document as we would expect them to do. As such you can provide the doctor with your history in writing if need be. By history I mean a dated statement of your current problems which you bring to your doctor each visit. Always make a copy for your records. This can prevent any misunderstandings later on. In at least one of these cases it appears the claimant asserted he was telling and telling the doctor at every visit something which never was noted by the doctor. Of course the decision went against the claimant on that point. I have had clients take a written history into their doctor every time just to keep all the details accurate. A failure to complain can be assumed to mean an absence of pain or limitation. Anyway these cases tell us what sorts of issues are going to hearing in Colorado.

Colorado workers comp insurance rates to go up

The Denver Post is reporting that businesses can expect a rate increase on their workers compensation insurance coverage. This after a few years of declines. Why? The number of claims is not going up. The explanation appears to be in the continuous and unrelenting increase in medical costs. Here is the Colorado statement on all this. This rise in medical costs when the economy is not inflating remains ominous for all of us. The failure of society to address this is rather sad. We all talk about it but it takes a concerted effort and in our politically charged country we are less interested in problem solving and more in ideology. Wouldn't it be nice if they set up a task force to address such costs in a sensible way? I mean an across the board analytical review. If medications are a big factor find ways to lower that expense. If we need more nurses or practitioners find ways to increase the numbers with educational incentives. If caution leads to the running of multiple and usually unneeded tests find ways to prioritize those tests rather then run all of them at a time. If malpractice rates are too high find ways to make providers accountable without increasing those rates. I mean weed out the bad apples especially in workers compensation. Simplify the paperwork too! While I do like the medical treatment guidelines I saw recently what appears to be making it more complicated to obtain prior authorization. In workers compensation there are many disputes in what I see as primarily medical legal issues. When we go to a hearing and it seems to be a legal issue on compensability in reality many such cases involve medical causality. So some of these rising costs involve insurers hiring experts to question causality and treatment. As an example an attorney related to me that he had obtained a DIME opinion that the claimant is not at MMI. In the past this just led to more treatment and a reassessment. Overcoming a DIME historically has not been easy but the pattern is now to question everything. There are doctors out there that will nearly always assert an injury is not work related or that the DIME doctor made a mistake. A DIME would cost $675 but they spend $5000 or more fighting it. The point is not all the rising costs in workers compensation are based on purely medical matters. Some come from the insurer disputing matters. It also drags out the proceedings which I do not really see as helping the claimant needing treatment and it is costly. In any event businesses can expect higher workers comp premiums next year.

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.

Totally disabled 74 year old denied permanent total benefits

In a recent ICAP case the claimant Lane was 74 years old and admittedly totally disabled. However he was denied permanent total disability benefits after a hearing and this was affirmed by ICAP. The claimant was injured in September 2008 and eventually received an impairment of 13% of an upper extremity which equaled a 8% whole person rating. There was some dispute on his restrictions but both vocational experts provided credible opinions the man was not likely employable. The claimant did have multiple non-work related conditions such as hip pain, hearing loss, balance problems and an abdominal aortic aneurysm. So what happened? The ALJ determined the claimant had failed to show that the industrial injury was a significant causative factor in his inability to earn wages. In the case there was evidence presented that the claimant had no restrictions from his work injury and also evidence he had restrictions. The claimant was working for the employer after maximum medical improvement (MMI see glossary) but was let go for an alleged failure to do something and this was given weight by the hearing judge. So being no longer employable at the conclusion of a workers compensation case does not mean permanent total benefits are awarded. The key is whether the work injury is a significant causative factor. In this case the medical evidence of post injury restrictions was not present so claimants should always focus on obtaining medical restrictions and establishing the work injury was a significant factor in being unemployable. Often with older workers they do have many health problems and actually those problems plus a significant work injury can make for a good case of permanent total disability but it is not an automatic award as the Lane case points out.

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.

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.

Court of Appeals decides the Eller case today

This is a case where the claimant lost on compensability (coverage) after a hearing. She appealed but lost at the Court of Appeals level. Eller asserted that, while there was no admission of liability, the Respondents provided medical care and the authorized treating provider determined she was at MMI(maximum medical improvement) and also rated her with an impairment. She then said that this determination was never attacked by the Respondents so by statute (section 8-42-107.2(2)(b), C.R.S. 2008) they are bound by it. Her view was that it was required by statute that Respondents seek a DIME(Division Independent Medical Evaluation)so because they did not the doctors opinion was binding even on the Administrative Law Judge. This even should have included compensability or causality. The Court disagreed and affirmed the loss by claimant. Respondents contested the claim so they had a right to contest the question of compensability at the hearing which is a threshold issue not a medical opinion. Here the lower judge decided the claimant was not very credible and the specific injury was not caused at work. The claimant then argued that the way the case was handled deprived him of a right to seek a DIME which could have led to a presumption the DIME opinion addressed causality. This was shot down. The one point that is unclear to me is whether the authorized doctor addressed the mechanism of injury such that it could be said to be a binding finding or determination as noted in the statute. The Court said the statute should mean that the doctor addressing MMI or impairment is not a finding on the question whether the injury was caused at work. But even if you say the doctor cannot address whether it happened at work he may have addressed the way the claimant was injured. Here the impairment perhaps was attributed to falling out of a chair at work by her doctor who provided the rating. Seems to me that Respondents medical witness was not an eyewitness. Yet Respondent's doctor concluded the claimant's injury was not caused by falling out of a chair. Not sure why this opinion was allowed over the authorized doctor but the facts are not fully set forth on that point. However the case says that when Respondents contest your claim they can take it to a hearing and win even if the authorized doctor is on your side. The case is an interesting read so for more complete details and the Court's reasoning click here.

Burden of Proof on modification

I previously posted on some statutory changes but overlooked one which on a second look seems pretty significant. This is stated effective for claims filed on or after August 5, 2009. SB 09-168 amends Colorado Revised Statutes 8-43-201 on hearings to say that the party seeking to modify an admission or order has the burden of proof when it wants to modify it. The best example of this is that under current law the Respondents can come in at a hearing and assert compensability (that is question coverage even after they admitted the claim). Common sense says fine but it should be their burden to prove it after they admitted the original injury was on the job. Well under the current law it was always the claimants burden when the other side raised this issue. Having the burden could mean that in a close call situation the claimant months later could lose his entire case. You can bet Respondents knew this and used it to their advantage at times. Now the law is that it becomes a Respondent burden. A Judge can now be permitted to question the other side's reasons so claimants have a bit more law on their side now. Click here to see the law changes.

Quasi-course of employment case: Kelly

Decided on March 5, 2009, the Kelly case addressed the legal issue of quasi-course of employment. The Colorado Court of Appeals decided that a claimant returning to Colorado for re-scheduled surgery (for his work injury) who was then injured in Elko Nevada in an auto accident cannot make it part of his workers comp claim. The court decided that injuries while traveling to and from a medical appointment can be covered through workers comp but in the case on appeal it was too much of a deviation. The claimant was on vacation and was told his medical appointment for surgery could be reset so he decided to travel back from Reno and was hurt during the travel. While it was travel for treatment for his work injury it was too much a deviation from the typical home to medical office to say the accident should be covered. Each case should be reviewed on its facts because it now seems a question of how much of a deviation to throw out coverage. While the case makes sense it may lead to more litigation as it's not clear what is a "substantial deviation" but it does seem to be a rule of reason case. That is, if it is unreasonable then it won't be covered.

The Ortega case or 20 days means 20 days!

Just decided by the Colorado Court of Appeals on Feb. 19, 2009 the Ortega case involved a request for a continuance made during a hearing. It seems the Claimant received a medical report less then 20 days before the hearing and wanted to submit it although the law (Colorado statute 8-43-210) says it must be submitted to the other side no later the 20 days before the hearing. The report was from a family doctor who said the injury was related to work activities when this was hotly disputed. The other side also had late medical reports. They also had a medical witness at the hearing. The judge denied all the late reports. He then denied the request of the Claimant for a continuance. The hearing led to a decision denying benefits to the Claimant. The Claimant appealed and finally the case went to the Court of Appeals. Essentially the court said that 20 days is the law and there was no reason to say the local Judge committed any legal error which would justify reversing the decision. I will say the Claimant had a chance to submit his late report if the other side's reports also came in but that is really not well detailed. Apparently the Claimant's lawyer felt he had a solid reason to be excused from the 20 day law since the doctor did not even get it out timely. I cannot see what the reason was for the other side to be late. In any event a continuance was denied in part because the other side had a medical witness they had to pay. The court commented on the law but here is what is strange to me...the law does permit the Judge to order the case be continued but lets the Judge go forward with part of the hearing. Strict compliance with the law is not always necessary. It is hard to second guess the local Judge's decision but on the facts presented I question the decision to deny a continuance. The Court also seemed to suggest that the Claimant's lawyer should have acted sooner since there was an earlier report by the same doctor on the issue. I am just not sure why, in a search for the truth, when the medical report was really late that we say it's the lawyer's problem to anticipate the doctor sending a late report. Given part of the hearing could have gone forward and also continued for more evidence why insist on the 20 day law? Anyway read the Ortega case here. Hearings are administrative proceedings and many times they start one day and finish a month later.

September 11th Responders still hurting

Here is a link to a recent article that tells us that many who responded with courage and dedication have not been compensated for efforts once they developed health problems. Many such problems seem related to their work and rescue activities at the 9-11 site in NYC. I expect it is relatively simple to defend claims made because the medical evidence can be subject to different interpretations. We all assume that injuries and disabilities will be taken care of but many cases are contested. The contest is often because insurers can question the cause of the injury or disability. Yet it is a shame when we see this happen to those who were involved with 9-11 efforts at the site of an American Tragedy. Click here for the article.

9/11 Cop's death...is he a hero or not?

While not a Colorado matter the recent controversy over the death of a NYC detective who spent over 400 hours at the 9/11 site and died from lung problems points out that injuries or diseases from work exposure may not be simple matters. In this case one side says death came from the 9/11 exposure to dust, fibers etc., and another side says the death was inflicted by injecting ground up drugs which then went to the lungs and killed him. This problem is one where medical experts disagree and that is trouble. It is far more common then most people realize. One very common example is carpal tunnel syndrome or cumulative trauma disorder where the injured worker claims work activities caused hand, arm or wrist pain and the other side says not so. The claimant has to prove it likely came from work or they lose. Well, it takes a courageous authorized treating doctor to go against a medical expert hired by the insurer to question the work relatedness of the injury. Often the doctor is designated by the insurer/employer so they may have to balance between the patient and the insurance (just my opinion dear reader but I believe it is so). Anyway back to the cop story. If the officer worked hundreds of hours at ground zero and developed lung problems and he was then prescribed numerous drugs which may have gone to his lungs isn't it still work related? Do we blame the hero for this? If he was so stressed he also went the wrong way do we say it's all on him? Doesn't it all really flow from his work at ground zero? In this case I believe that he was being taken care of so he likely died from his job activities or treatment for his occupational disease but it's not my call. To me he's absolutely a hero. Read about the dispute here:
http://www.usatoday.com/news/nation/2007-10-25-9-11-death_N.htm