Federal Subcommittee Examines State Workers Comp Systems

On November 17th a congressional subcommittee looked into and expressed concern about state workers compensation systems. There was testimony taken and written statements provided which reflect what I see as legitimate concerns about many state systems. The link I have provided here takes you to the webpage and from there you can listen to and read much of what was provided. One concern was over the American Medical Association 6th edition for rating permanent impairment. Colorado still uses an older version. The 6th edition deviates from past editions in a significant way including what appears to be a lack of evidence based protocols. In any event more worrisome is the view that over the last 20 years benefits have been reduced and this may have increased other disability claims such as SSDI and SSI claims. What was historically intended to help injured workers in an efficient manner has, over time, become inadequate and not equitable. In Colorado you only have to look at the definition of permanent total disability to see how legislation has intentionally sought to cut benefits. At Colorado Revised Statutes 8-40-201(16.5) total disability is defined as being unable to earn any wages in any employment. Does this mean if you can only work a few hours for minimum wage you are not totally disabled? Insurers do so argue that very point and Colorado is tough compared even to Social Security disability. Harsh results? Often but insurers merely use existing Colorado law to keep benefits low. Other areas of controversy are pre-existing conditions or for that matter insurers questioning if work activities are responsible at all. In Colorado nearly 25% of workers comp claims are contested and never admitted without a hearing. Those interested can read the last published figures for the year 2005.

Partially Amputated Fingers are Stumps Court Says

The Colorado Court of Appeals ruled in the Leffler case to uphold the decision to add $4800.00 for partial amputation of the index and middle finger. The claimant had this happen while involved with a sod harvesting machine. This added benefit decision was appealed by the insurer by asserting that benefit only applied to "stumps" and fingers are not "stumps". The case is a simple and quick read but it amazes me that the insurer appealed. The cost to appeal to the Court of Appeals is far more then $4800.00 since it goes from the deciding judge to the Industrial Claim Appeals Panel to the Court. Quite a bit of legal work is devoted to such an appeal. I am not saying the insurer did not have a right to address this issue in an appeal. But it seems impractical and going forward with an appeal to clear up what is a stump for all future cases seems a bit of a waste. After all how many such cases are there? I have always believed that extremity injuries to include hands and fingers can be devastating matters for some people. Imagine if you were a surgeon or piano player or even a carpenter. You can lose your trade and receive a low sum for the injury. So getting a few bucks such as was done in Leffler is better then nothing.

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.

What is sedentary or light work?

Whether in workers comp or Social Security disability we often come across the term sedentary or light duty. For example it is common for someone with a back injury to be at light duty levels or have even more restrictions so he is at sedentary levels. The importance (in a legal sense) to this is that it can relate to how employable a person really is and the answer to this can greatly affect his or her benefits. Especially in Social Security cases age and restrictions play a major role in qualifying for benefits. In workers compensation cases they are also significant although it is more complicated since they play a role with temporary and permanent benefits but impairment ratings may also be significant. Strictly from a safety standpoint I've always felt that obtaining restrictions lets you and possible employers know what is the extent of safe phyiscal activity. In any event here is a link to a "disability doc" who sets forth the accepted definitions of sedentary, light, medium and beyond levels of activities:
http://www.disabilitydoc.com/work-descriptions/