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.

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.

New Court Case on Medical Benefits

The Colorado Court of Appeals issued a decision yesterday that concerns ongoing medical benefits. In the Hire Quest case we have a rather technical argument that is addressed by the court. It seems an example of how technical arguments get in workers compensation proceedings. In this case the parties went forward at a first hearing which addressed a safety rule violation, credits for paid temporary benefits and the permanent impairment based on a DIME (Division Independent Medical Examination). Before the hearing the issue of permanency became uncontested because the employer/insurer withdrew the opposition to the DIME doctors impairment rating. So the first hearing addressed permanency, temporary and safety rule violation issues but that judge said issues not expressly decided are reserved for future determination. Well claimant later went forward on the issue of ongoing medical treatment needed and the other side said he could not because he never raised the issue at the first hearing and it was waived. They also asserted that the judge reserving issues was not specific enough so that prior hearing closed out the matter. The court decided that the reservation was good enough to preserve the right to address medical benefits after the first hearing so they found in favor of the claimant. Common sense would tell you that medical benefits could be addressed later but the insurer tried to use a prior court decision to say the claimant was required to add the medical issues at the first hearing or else it was waived. This waiver argument is essentially saying address all issues at once or the insurer saves money by alleging too bad so sad you lose (waive) your potential right to further treatment. Even if the judge reserves matters it is not good enough unless it is a specific reservation of a medical issue according to the insurer's view of an early case they were citing. The court disagreed with that interpretation. My view is that workers comp should handle all treatment that is needed for a work injury and not made into a game of technicalities which passes the buck on treatment to others such as the taxpayers. In this case we did have the DIME doctor saying more treatment was needed and I am not sure why it was not made an issue but it could be that there was no dispute made by the insurer until later. To me you have to wonder if the insurer waived objecting to further treatment but anyway the claimant prevailed.

Division IME Forms Including a new one WC78

You can access numerous forms pertaining to DIME's or Division IME's at this webpage maintained by the Division. It includes a new form which pertains to requesting a DIME to assess maximum medical improvement (MMI) after 18 months. Usually your treating physician determines MMI as soon as possible but there are times when he has not addressed it despite the passage of much time and treatment. The insurer may then seek to arrange a DIME to determine MMI. This new form WC78 is part of that process. Be aware that this 18 month DIME is addressing MMI. If impairment is also addressed it does not mean that is anything more then informational. In a recent Industrial Claims Appeal case I call Baca the insurer went with an 18 month DIME and then went with that DIME's impairment rating which was zero. They filed a Final Admission trying to close the case. The local judge ruled against them and struck the Final Admission. directing that the claimant return to the treating physician for the rating. The higher panel in effect stopped the appeal because that ruling did not deal with money or benefits but the case makes us all aware that an 18 month DIME may not address impairment in a way that can be acted upon by the insurer. Of course the Baca case may not be over but the form WC78 issued shortly thereafter indicates any rating by a 18 month DIME is informational only.

Rule 16 and 18 Proposed Changes

The Division lets us know about proposed rule changes and this change concerns Rules 16 and 18. These are medical matters which are changed just about every year because medical costs keep rising. Rule 18 involves medical billing and Rule 16 utilization review. The proposed rules are posted and then adopted after comments are received and reviewed. Most of this is not very exciting information except for doctors and other providers although at times a claimant or claimant's attorney does have to look at the rules. What a doctor can charge for legal things like testimony, consultations, reports and the like are important to know. Such matters are often the responsibility of the claimant if he or she asks for any of them. So wanting to have the doctor come to the hearing is fine but it is also at a cost to the claimant. So while these rules seem complicated to read and perhaps not that important to claimants most of the time there are situations where a claimant needs to check on what the rule says. For example, in the past there has been litigation on the subject of what is called prior authorization. This area involves a provider getting advance approval for something and when approval is not forthcoming the doctor and perhaps the claimants attorney may wish to dispute it and even seek penalties. What is addressed in Rule 16 on the subject becomes quite important in such a situation.

Medicare Quickly Covers End Stage Renal Disease

There need be no prolonged wait to obtain medicare if you have ESRD (end stage renal disease). Often those who obtain Social Security disability have to wait for medicare but in this situation no matter who you are or even if you have not obtained any disability benefits you can quickly get medicare coverage. This article which appears in this link addresses this matter along with other points. Sadly obtaining disability can be a prolonged process but it is good to know that in this area you can quickly get on medicare regardless of your age or circumstance. I still believe that leaving medical care in the hands of private insurance is not the best approach for those with serious injury or illness. We can believe in free enterprise but also realize that society has to step in when it affects all of us. We see this with fire protection and police and the military and education. Also we should see that in the human area of healthcare. Its high cost and immense impact on all of us should be a social or societal concern. In any event medicare can step in for you if you have ESRD without much waiting around.

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.

Munoz Court Case on DIME waiver

The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.

Colorado Drug Card

In that many Colorado residents on Social Security or with work injuries may have financial problems or even denials of coverage Colorado does have a Colorado Drug Card. Moreover anyone at all can obtain the drug card so it does not matter what your income. Locally KRDO did an investigation which can give you a better idea about the card. Does it work? Yes although not every pharmacy may know about it. Seniors and those on a tight budget should especially take heed. While it may not always be a big benefit the card is free to all and just let them know by asking for the discount. Additionally for injured workers there is the Injured Worker Pharmacy which has its own website. Apparently a number of attorneys do let their clients know about it so it is another resource that may lower the stress level for claimants. Often a claimant cannot obtain a medication and my view is that you should try to follow through with what your doctor has prescribed. It may turn out to be covered or not but your health should be a primary. In any event always keep receipts if you pay out of pocket as perhaps reimbursement may happen.
Also...El Paso County also has a free drug card that may be helpful too.

The FCE in Workers Comp

An FCE is a functional capacity evaluation. Often in a workers compensation case a doctor wants an FCE. It may be through his office or set up at another location. A true FCE may take several hours of testing a person's physical functioning or at least whatever functioning is sought by the doctor. You can consider it almost a tool used by the doctor to define your work related restrictions. Years ago the doctor would simply rely on his own best judgement to set your restrictions but the desire for a more accurate evaluation led to what we now call an FCE. Often it is done through a physical therapist and results in several pages of data which the doctor may or may not accept. Usually the doctor will accept the FCE results but the doctor has the option to form his own opinion. He can therefore totally adopt the FCE or adopt portions of it or only what he believes is appropriate. A claimant may be asked to lift various weights and perform other activities. Sometimes your blood pressure is taken since many in pain from activities can have a spike in their blood pressure. Similarly if you complain about high pain from an FCE activity but without any blood pressure elevation they can question your situation or so goes the theory. My impression is that an FCE can be useful information for the doctor but it does depend on the therapist and the doctor. In other words it is not purely objective. Also I have noticed that those with severe disabilities can have problems with an FCE. My guess is that they are more guarded or do not handle the structure of an FCE. Stamina may be a factor and of any results considered invalid my experience is that those most disabled have the hardest time with the testing. Last in my locale many FCE's include a claimant's range of motion measurements. While separate from an FCE the doctor may want the therapist to do the measurements that help the doctor with his impairment rating.

Three Wishes

As the year 2010 ends and we then head into 2011 let me express my 3 wishes for workers compensation in Colorado. They are major points and would have significant opposition yet they are sensible for workers comp to be fair and efficient. I acknowledge that workers comp is insurance and this can mean limiting benefits. That is not fair but we all know that insurance has its limits. But we can make the system better. As it is the current system is seriously flawed in 3 areas. Let me detail my concerns:
1. Colorado's definition of permanent total disability is unrealistic. If you can earn any employment wages whatsoever you are not totally disabled. It is quite unlike the way the Social Security Administration looks at total disability. Colorado at one time had a reasonable approach but intense efforts at "reform" some 20 years ago led to a very narrow way of defining total disability. Example, if you can work a few hours a week for minimum wage the other side will argue you lose on this issue even if it is below poverty level. While not perfect the SS view is more realistic. But then changing this could be costly to insurers.
2. My second wish is that our system dispense with the scheduled rating and add for loss of earning ability. In Colorado an arm, hand, foot, leg injury receives a specific quantity of benefits. A scheduled rating treats the human being as a mannequin. The problem is that we use our arms and legs at work a lot. Damage from a work injury can result in a loss of your occupation or trade. The claimant receives some money and then his claim may be over. How fair is losing your trade when you obtain permanant benefits of $10000 or $15000 based on the Colorado formula now in place in this state? It is simply wrong and most of us in the field know it. Insurers save but then the buck is passed to others or to society.
3. My third wish is meant to level the playing field in the area of medical disputes. Insurers can spend a considerable sum obtaining doctors who report and can testify against the claimant. It can mean losing your entire claim. A claimant has no such deep pocket and all of us in the field know it. I've seen the other side spend over $10000 on medical experts and what can the typical claimant afford? Currently a doctor can bill at $450 an hour for his testimony which includes travel and waiting around. If every claimant had access to an insurance fund in some reasonable amount then any battle could be a fair fight. A state fund set up for this purpose with contributions from all insurers could administer this. Insurers love the current system but we all know it is unfair. An injured worker may have no income and fairness suggests he or she should have a fair chance when such a dispute arises.
So there you have it. My concern is that if we truly want workers comp to be fair and efficient then these changes make sense. What happens currently is that someone else or society has to take on the burden of helping the injured worker. We pass the buck and most of us pay for what should be handled within the workers comp system. We must pay when the system is unfair whether it be all of us or those insuring you. By the way consider this an editorial opinion and Happy New Year!

Workers Comp Educational Conference

The Colorado Division of Workers Compensation placed all of the written materials from its first annual educational conference online. You can access it here. The materials are fairly extensive and insightful. Be aware that some of the materials seem to be in outline form because these materials were handed out at an actual conference where the writer also lectured. The materials do presuppose some knowledge of workers compensation but I have to admit they are a valuable resource to anyone in this area. It helps to keep us up to date and to address areas where there may be questions.

Medications Involved with Injury Claims

Over at LexisNexis they posted about many of the common medications by name and generic version which are often prescribed for the injured. It is set up in a chart format but still you may need to scroll down as you look for the medication. It sometimes amazes me how many medications a person can be taking. Moreover those with Social Security disability claims can have multiple health problems. That can mean they may be taking a great many medications for pain, for the heart, for the stomach, for sleep, for anxiety, for diabetes and a host of other things. When I talk with people I must admit that some medications really do work. However it very much depends on the person. I can see the reason doctors have to try one thing and then another to see what works for you.

TLC Pharmacy

There are times when some are poor or disabled with no way to obtain needed medications. In this article from the Gazette in Colorado Springs we see where there is one resource for those who cannot afford it and have no insurance coverage. Those involved with TLC Pharmacy deserve a great big thank you from all of us! In any event please be aware that they can be another source of help when insurers are playing the denial game or where there is no insurance coverage. A fair number of workers comp cases are contested and as such they are disputing that there is any insurance at all. Sometimes the claim never is allowed. At least there is one resource out there that may help with your medications.

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.

Continuing Legal Education WC Webcast

Attended a seminar on Colorado Workers Compensation today. For the first time I did so by what is called a webcast. The weather in Denver was projected as snowy so my plan to attend in person became a problem needing a solution. The solution was something called a webcast. It was televised over the web for those who signed up. The materials were sent to my email and from there I could open it up and watch the seminar. This was an all day affair although given the weather they did break a few minutes early. Usually these seminars pack a great deal of material into the day. That meant reviewing many cases, a discussion on the Medical Treatment Guidelines, ethics, rules, recent important legal points and lastly a presentation by two doctors on what used to be called RSD and is now abbreviated as CRPS. You can view more about CRPS by reading the material on it in the treatment guidelines noted above. Webcasts like this save time and today let me devote the time without concern for the weather.

The ICAP Case of the Dirty Money

It seems that a claimant was picking up trash when he saw a $5 dollar bill in the trash. In the act of getting it he scrapped his hand on a Yucca plant. The skin was not broken but it became infected. The Respondents disputed the claim by bringing in a doctor who questioned the infection because the skin was not broken. They also alleged the act of picking up the $5 was a personal deviation and was not within the course and scope of his employment so it's not a work injury at all. In other words he was to pick up trash not cash. The case did not get into what is trash or is dirty money really trash or if he didn't pick it up isn't it then litter and on and on. The hearing Judge determined it was a work injury and also used a doctor for the claimant to determine the skin need not be broken for infection to get in at the spot of the scrape. The Industrial Claim Appeals Panel also known as ICAP affirmed the hearing judge. Of course we never get the answer to the question...can cash be trash?

Impairment Rating Tips February 2010

Colorado workers compensation claimants who reach or seem to have reached MMI (maximum medical improvement) are often rated by an authorized treating physician or if requested by another doctor in an Independent Medical Examination. The Division has just issued its new Impairment Rating Tips. These are recommendations primarily for the use of the rating physicians but they are useful to others. The tips are 7 pages so quite a bit of ground is covered. One tip concerns the use of what is called contralateral measurements. This tip seems to allow a doctor to measure the uninjured side and compare it with the injured side. My view is that this seems to disregard the AMA guides for Colorado which set forth how to rate impairment. By statute (see CRS 8-42-107(8)) the Guides instructions seem to be required. Setting them aside for another way to calculate in my view conflicts with the law but the contralateral tip is there to read. These new Tips are an interesting read and I'd suggest spending a few minutes to look them over. While these are not legally mandatory since they are written primarily for physicians we may see them referred to and followed by them.

New Case- Respondents Cannot Pick and Choose

In this recent case just decided by the Colorado Court of Appeals that we'll call Paint Connection Plus the Respondents appealed the imposition of penalties. What happened is that the claimant's authorized or rating physician noted two injuries. For the shoulder where the claimant had two surgeries he said the claimant was at MMI (maximum medical improvement) with a rating for permanent impairment. However for the cervical area he said the claimant was not at MMI. Respondents alleged that all along they only admitted the shoulder was a work injury so they filed a Final Admission on the rating for the shoulder and denied for the cervical area. The claimant sought penalties and to strike the FAL (Final Admission of Liability). Respondents lost and appealed. At the Court of Appeals the decision was affirmed against the Respondents Paint Connection Plus and its insurer. The court noted that MMI is not divisible and the Final Admisssion was improper. There is no partial MMI and Respondents had other ways to proceed when they questioned the cervical injury. Also the FAL did not attach the worksheets used by the doctor in his shoulder rating and this was a separate ground to strike the FAL. The court ruled there can be no attachment of incomplete reports to a FAL. On penalties it is up to the judge and here they were upheld as Respondents were unreasonable in their actions.