Issues to Think About for 2012

Around this time of the year I look back at the year and ahead too. Someone asked me about national issues in the field of workers comp but really not much has changed over the last year in Colorado. By that I do not mean that there were no changes or interesting developments but that it was a year of slow or minimal changes in the law. Still there were some developments. For the statutory developments just click here for an overview. For what is new at the Division of Workers Compensation you can click here. For caselaw we cover this in our blog. But as for the national or evolving issues in this field I guess the overriding issue is the economy. Still that is not unique to workers comp. What I have noticed over the years is there are increasingly technical or more precisely medical issues in workers comp. They usually trigger a battle of experts. What you then see are many cases that have become medical battlegrounds. The battling experts are the doctors. In such battles the advantage is often with the insurer. First, the treating doctor is usually selected by the insurer or the employer. Not exactly a good deal for the employee especially when there is a controversy. Next they cultivate those doctors who issue reports and testify to the benefit of the insurer position. It's expensive for a claimant to use his or her own doctors. Testimony expenses are billed at $450 an hour in most cases and includes commuting and wait time too. It is easy to spend over $2000 for one such expert. Advantage? Insurer (I have had insurance defense attorneys tell me they can pay $5000 or even $10000 for their experts). This can cripple a claimant's case. It strikes me that this is impairing a fair fight or what I would call access to the system. In civil matters there is a growing awareness of a need to simplify proceedings because when matters are complex or highly technical it works to the advantage of those with the money. In Colorado there is a interesting new seminar on this as relates to civil proceedings other then workers comp but it strikes me that improving access in workers comp is extremely important. By permitting many experts we skyrocket the costs of a hearing. It may be wise to limit this. Perhaps for a fair fight we should let the claimant have his expert as a covered benefit but that is not the current law. In my opinion any effort that speeds the process, makes it a fair fight and reduces something that is complicated to what the computer crowd would call user friendly is to be lauded. The workers compensation system was not intended to be unfriendly to injured workers. It was intended to be an efficient way to deal with work injuries and hopefully protect the worker while he recovers from his injury. In my view that is not happening and perhaps we need address this so we get back to the original purpose of the workers comp laws...to assist injured workers even if benefits are limited by statute. Otherwise the problem is shifted to all of us.

Workers Comp Costs Decline

As noted in this press release/article workers compensation costs have been declining. While medical costs are always high the fact is there is more unemployment and more hiring of overseas labor, especially in manufacturing. Construction is down. Hiring is down. With less workers there can be less claims and those working may hesitate to file a claim in such a tough economy. I also think that many claims are still contested and in medical matters the advantage is with the insurer/employer. You usually do not chose your doctor, they do. In many cases it can be difficult to prove you sustained a work injury when the other side fights it and brings in their doctors. The claimant, again in this tough economy, may not have the funds to make it a fair fight. I read case after case where I suspect claimants lose when the hired guns (experts hired by the other side) provide opinions which overwhelm what I consider common sense. Yet that is the way it is when a matter is medical in nature (such as did the claimant's problems come from work or elsewhere) and experts are required to analyze the claim. The smart claimant may fight back and spend the bucks but it remains a risk every time there is a hearing. The word spreads and some hurt at work decide it is not worth the hassle. Originally the workers compensation system was set up to provide prompt action and benefits. That has eroded away in recent years. Cases take months and often years to be settled or resolved. I have heard of people deciding to use their health insurance just to avoid the workers comp system. That is not only a shame and not only shameful it is also wrong. What does it mean? Employer costs for workers comp insurance are down to levels not seen in 30 years as noted in the article.

Let Us Not Forget

Over at another workers comp blog they posted a great article on one of the early twentieth century worker tragedies known as the Triangle Factory Fire. Factory workers died because doors were locked and a fire killed 146 women and girls. It was horrific and a wake up call for safety in the workplace. As the article notes now with outsourcing we are seeing it happening outside this country. This should make us mindful that workers and consumers should not tolerate poor safety and unsafe products. Actually the history of workers compensation goes back around 100 years in this country. An excellent brief history is available here. However in the last 20 years efforts have been made to get away from disability and focus on impairment. But we must not forget that work injuries can be devastating to some and workers comp was intended to provide treatment and benefits in an efficient way. Tragedies require safety measures and fair benefits or problems just get passed along to society as was the case in the days before workers compensation.

Here is a View of the Top 10 Workers Comp Issues in the Nation

At the LexisNexis website there is an article that summarizes the top ten issues for workers compensation from a national perpective. It is an interesting read but workers compensation is very state specific. Colorado has its own sets of statutes, rules and cases that apply to workers compensation claims. Still some issues cut across all state laws. For instance medicare has certain aspects that can impact a claim. This is not state law but federal in scope and is meant to avoid passing the buck of future medical care for a work injury to medicare without considering medicare's interests. These national concepts and trends are important to stay informed about even if Colorado has its own laws. My experience over many years has been to observe the move away from disability to impairment as the single most important issue in workers comp. Impairment is a medical concept of damage which has been adopted in workers compensation and moved us away from the traditional concept of disability.