Maximum Benefit Rates

The calculations for top dollar benefits can vary in Colorado depending on your date of injury and the allowable maximum rate on your date of work injury. Let's say you lose an arm or leg but are not totally disabled. What is the highest permanent benefit you can receive? For injuries after July 1, 2011 the max is $54,202.72 but if you were hurt before July 1, 2010 it might be only $53,067.04 or even less. Be aware this is strictly for the loss of an arm or leg without more. Always review with an attorney all the injuries you sustained at work but also your past medical history. At times a rather minor injury may nonetheless be significant enough to make you totally disabled. The rating or per cent of your medical impairment is not always the end of the story. Impairment is not the same as disability in many cases. In this area, more then anywhere, a workers comp attorney can be invaluable in analyzing the situation. Getting back to discussing the maximum rates, effective for injuries after July 1, 2011 the highest scar benefit can be as much as $8,792.00. Next, the most you can collect when you combine temporary and permanent benefits is $153,210.00 although this cap does not apply to those totally disabled. Be aware that these amounts are not the minimum you can collect so benefits can be less or even zero if your claim is not compensable(many claims are disputed). There are many factors that go into assessing impairment and disability but the caps do remain a top dollar limit on benefits in most cases. Those totally disabled or with a need for long term medical care may still have higher benefits. By way of example a few years ago I had a case where the claimant had a high rating but had collected all but a few thousand more before reaching the cap for combined temporary and permanent benefits. The case settled for much much more because of a concern he was totally disabled. However for those able to return to work the caps must be a consideration. Credit goes to Judge Eley for calculating the above figures for us.

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.

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.

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!

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.

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.

More On the Mental Side of Workers Comp

It appears my last blog posting was picked up by another website and was noted by them along with a couple of comments. It seems that some on the insurance side see the mental part of workers comp as not often legitimate or even some sort of personal lottery benefit for the injured worker. I can accept that the insurance view is to question alleged impairments. It can dispute any psychological impairment or need for treatment. But to this day I am disappointed by some of the cynicism shown on the insurer side. The fact is any injury anywhere that has lasting physical effects may also result in post traumatic stress, depression and anxiety. Forget about whether it happens at work and forget about the claim for monetary benefits. My experience is that any lasting or chronic injury or disease can be devastating to the injured and their families. I'm not going to go into the medical side in this post. In Colorado I provided some links in my last blog post. Instead I can only say that I've observed how it can stress out some claimants. Some have lost spouses, homes and occupations. Some must deal with contests by the insurer and employers looking to end the problem. Others face adjustments they never asked for. Unless totally disabled most receive benefits that are at best one, two or three years income replacement combining all impairments. Windfall? Hardly. Colorado quantifies the amount but how do you quantify pain and suffering? Lastly Colorado caps or limits the psychological benefits. A couple of years ago there was a case that illustrates how stress can affect a vulnerable claimant. He committed suicide when his case was contested. Sadly there was no recovery for it.

The Mental Side of Workers Compensation

Often missed in the treatment of a workers compensation injury is the stress, the depression and all that goes with it. Perhaps it is not noticed by the authorized treating physician who is usually picked by the employer. Perhaps it is considered just situational and not of any significance in treatment or impairment/disability. But the claimant and claimant's attorney are often well aware of the impact of an injury on the emotional or psychological well being of the claimant. The family also must live with it. If your trade or occupation is in jeopardy the anxiety may escalate to a high level. In many ways it is the hidden side of a work injury. It may affect your treatment, your recovery and your future. We must remember that it is a human being that gets injured not a store dummy with just body damage. Additionally in some cases the fall or injury will impact the brain and cause organic damage. Legally we want the entire injury to be treated and assessed. This is permitted in an injury claim but sometimes you have to assert yourself. Tell the doctor what is bothering you and what you are concerned about. Being silent just keeps it hidden. You are allowed treatment and it can also increase the permanent disability you have unless you fully recover. This can mean additional financial and medical benefits. The Division of Workers Compensation has materials on this for you and your doctors. For example click here for some of what they teach physicians. Also click here for more on the mental side in Colorado.

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.

Who Has A Gripe about Pinnacol Assurance?

A while ago Pinnacol Assurance was involved in a controversy about its extra revenues. The state of Colorado wanted some of that revenue to help with the budget shortfall. Pinnacol said it should be treated as a private entity so it opposed the effort. The state put off a confrontation but is now flexing its muscle to rein in Pinnacol. By the way Pinnacol is the largest insurer of workers compensation claims in Colorado. Its history is long but let me say it is neither fully private nor fully a public company. So now the legislators are hot on the tail of Pinnacol and Pinnacol is on the defense. A state audit is also underway. Clearly when Pinnacol seems to be thriving and the state is not then you can expect questions to be asked and more funds to go to the state and policyholders. Anyway now they are inviting those with cases or stories involving Pinnacol to come forth and tell a legislative committee all about Pinnacol. You can do this by email so for more on this click here. I am not sure that Pinnacol is the problem. What has happened in workers compensation is that benefits have been reduced and insurers have procedural and financial ways permitted by law to defend themselves and thereby increase profits. Example? If you hurt your arm but can still work in a low wage job you'll get at most a few thousand dollars for a permanent problem if the insurer has its way. So what if you lose your trade. Another example? When someone has a permanent problem with very real pain and medical needs many treating doctors designated by the employer will say you need 6 months or a year or two of medications. So permanent problem but temporary pain relief which allows them to limit future medical benefits. Another way is to close the case out as fast as you can so money is saved. All they are doing is using the law to their advantage. The old concept of liberally construing the law to favor claims was changed. It became a game where there is more to gain by contesting and limiting claims. Without a good lawyer the claimant often doesn't have a chance or may not even know he's getting less then what he might receive. But Senator Carroll is trying to get people to talk about Pinnacol and anyone can do so. Perhaps it will help change the workers comp system to level the playing field for all claimants.

Time Lines or How Fast Does It Go?

We always seem to get this question from most of our workers compensation clients. First, any time frame may still depend on the doctors. Only after you reach maximum medical improvement(MMI) and also obtain an impairment rating do we then try to guess on the time line. It is truly just an educated guess because so much depends on factors not within our control. The other side can take one day or 30 days to decide what to do. We then must review what they have done and determine if the doctors are correct. More often then not we decide to question what your authorized physician concluded on MMI/rating. This process can take several months and involves legal actions and another medical examination. Even then each side has to act again. The other side has to decide to accept or dispute matters and we also have to review and decide how to proceed. Should you not be at MMI then more treatment can take place and we then wait for that to conclude. The point is that it's like a chess game where one move you make means the other side has time to also make a move. So when we say it can take several months just when you think it's all coming to an end it is because of this back and forth legal/medical process. Many people are quite anxious to resolve matters but this process simply takes time. Having said all this I can indicate that once the treating doctor says you are at MMI (and that is really the case) it can easily take 6 months to either settle or go to the hearing in a typical case. I've had cases which settle faster but then I've had cases which took longer. From the very beginning of your case to the end can take just a few months or much much longer even without any appeal. A key point is that most of the time is devoted to your treatment and medical examinations.

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.

Statutory Law Changes for 2009

Here, from the Division of Workers Compensation website is an overview of recent Colorado legislation that affects injured workers, doctors, insurers and even Pinnacol Assurance (the largest quasi-public/private insurer in workers comp in Colorado. Also if you click here you can read the actual legislative changes. I notice that some of these legislative changes are because of cases that went against claimants. For example there is a change to allow psych impairments so as to get over the first statutory cap (yes there are caps limiting benefits). Another avoids the Division IME being attacked for not contacting the authorized treating physician so long as he has resolved certain differences with other doctors. These items have been ways for claimants not to receive adequate benefits. They allowed the other side to attack the claimants Division IME rating by saying the doctor did not contact some other doctor so his opinion could be overcome as not following the procedure in the AMA Guides. In another case the rating was kept under 25% and did not go higher because a psych rating was not added to make the rating higher. The difference can be many thousands of dollars. In any event the legislative changes are, by and large, helpful to claimants. Also Pinnacol has been in the news recently when it disputed the state effort to use some of its excess reserves towards the state budget. As I noted earlier Pinnacol is a hybrid mix of public and private elements. The state is going to seek more control over Pinnacol and some of this recent legislation seems to be setting up to do that. Lastly one change does seem unusual. An insurer IME must now be audio recorded which suggests that some of these IME's were misrepresenting what the claimant was saying during the examination. Regretably such matters often were so hostile that it led to making it mandatory to record the exam. These law changes are effective on different dates as indicated in the overview.

Colorado versus Kansas workers comp

Workers compensation benefits are not governed by any national law. In Colorado they are established by state legislation. The state has imposed dollar limits or caps on benefits (not on medical benefits) although not on those permanently and totally disabled. Apparently in Kansas they have capped even those benefits. Efforts are being made to change the situation in Kansas. Here is an article on this. Unless changed injured workers in Kansas are limited to $125,000 even if they are unable to work for the rest of their lives! It is well known that nationally until recently workers compensation benefits were reduced but we are seeing some improvement. Hopefully this trend will continue. It is simply unreasonable if not unconscionable to fix benefits and never change them. The result is that those severely disabled are often left to turn to government resources. Sorry but all we do then is turn the problem over to the taxpayers rather then insisting on decent insurance coverage for those injured at work. Roughly a century ago when the workers comp laws were enacted it was society that was upset with laws that a work injury was just a risk of every job. All of us know that without adequate coverage the problem is shifted to government. While I have problems with parts of Colorado law it is not on the subject of permanent total disability where Colorado allows for lifetime benefits. Unfortunately the Colorado definition is tougher then one for Social Security disability but at least benefits for a total case are not capped.

Scheduled Injuries the latest way to figure benefits

Anyone who hurts their arm, leg, hand, foot at work is often shocked to learn that in Colorado there is a separate way to figure their permanent impairment benefits. So unless it can be considered a whole person injury by a judge or it results in a possible claim for permanent total disability Colorado law says it is paid by using the "schedule" for the injury. The problem is that these injuries are treated as not as important so they are paid lower benefits. At least that is how Colorado law makes it out. It is ironic but some people lose their trade and have a horrific drop in earning ability but insurers pay following the schedule. Roughly for every one percent of your arm or leg that you are permanently impaired means $500 for you. So ten percent of your arm is about $5000.00. You can figure this out yourself by looking at the chart here. You multiply the doctors rating by the number of weeks in the chart by the amount shown based on your date of injury. I assure you if your entire arm were to be amputated or useless the permanent benefit would be under $52000.00. Again there are exceptions. Also much more can be considered in a settlement but insurers relish the low payouts. I've said this before...Colorado should abolish this terrible way of calculating a permanent injury. Imagine a carpenter who can no longer grasp a hammer and do his job. His earnings loss over his lifetime could be enormous even if he goes to work in another field. Or, consider the fellow who plays a musical instrument and makes good money but loses his trade because of the work injury. The problem with the schedule is that it completely disregards your pre-injury earnings and pays a flat amount even when you lose your trade/occupation. I can say if the injury affects both arms or hands or both legs we do seek to make it a bigger case whenever possible. There are variables where even a small injury can mean a major claim but this is not true for everyone. In contrast if you hurt your back it can mean much higher benefits because the permanent figures do use your wage rate and your age. These variables often make the calculation much higher.

Impairment vs. Disability in Workers Comp

A number of years ago Colorado joined most of the other states in changing permanent disability to permanent impairment. With respect to permanent disability unless you are totally disabled your benefits are limited to what is called impairment. You receive a "rating" from an authorized doctor or a Division IME doctor and unless overturned your benefits are based on this impairment rating. This amounts to the medical people deciding on your legal benefits by determining your impairment. While the judge can decide which rating is correct it is still a function of anatomical damage in almost all cases. The older historical basis of determining your loss of earning capacity was discarded. So let's say you are hurt and lose your trade and it means a true loss of future earnings over your life. The amount you'd receive is still based on the rating although for whole person injuries the formula does include an age factor and a wage factor. Still it is not an individual assessment of your loss of a job or trade. What Colorado and most other states did was say that physicians must use the American Medical Association Guides that are published to perform the rating. In Colorado we use the AMA Guides 3rd edition revised. This is old. They are now publishing the AMA Guides 6th edition. Is this edition better for injured workers? Nope...it's worse. Any edition of the Guides will say that it is not trying to determine disability only damage to the body or psyche. In the real world it is used to determine benefits in what used to be a legal question of disability. Also in my opinion the editorial board assembling the Guides are largely composed of doctors who are not really claimant oriented. The 6th edition seems to now be diagnostic based rather then measurement based on your individual range of motion. Claimant lawyers are highly critical of this and also well aware that the ratings coming out from this are often much lower then the 5th edition. Colorado has stayed with the 3rd edition revised but my concern is that all such impairments are artificial ways of paying benefits. The whole concept of paying for your disability has been hijacked by this impairment rating process. No one seems to care if you lose your trade. All these "reforms" did was to remove permanent disability issues and replace them with artificial ways of calculating benefits. I do understand that insurers wanted to save money but for that we have caps or limits in total benefits. What they did to the purpose of workers comp has always bothered my sense of fairness in compensating injured workers. The only exception is when you are totally disabled. Then the rating is less important and consideration is given to your age, education and lack of employability. I am including an excellent link to an audio discussion that interviews the prime proponent of the 6th edition and also a claimant's attorney. It is long but quite a listen. That link is here. Additionally a crtical review was written and put at the LexisNexis website here.

After Your Rating...Now What?

Many people go through the workers compensation system in Colorado and eventually get rated (they receive an impairment calculation). Often they are then faced with a Final Admission by the insurer who seeks to close out the case. Perhaps they are to receive some permanent benefits if they did get rated but do they have any further remedy? Absolutely YES! In Colorado workers comp it is not over if you promptly act to protect yourself. You have 30 days from the date of mailing of the Final Admission to act and this deadline is strictly enforced. Your first choice is often to proceed with a DIME (Division Independent Exam) to obtain a new opinion on MMI and the rating. Often more is needed or the rating is higher then what you were given by the authorized physician. Also if you are severely disabled then you need to look into whether you are employable. If not you may be entitled to lifetime benefits or a much higher settlement then the admitted amount. Recently someone posted a comment on this blog and was concerned about getting a 12% rating yet being in much pain. I responded but it is an important enough comment to make sure everyone realizes that you do not have to accept the rating given to you by the doctor as all you are entitled to despite pain and other problems. While workers comp does not always compensate you for all your losses it is important to know that anyone unable to work may be entitled to much more then a rated award. Also you can also be entitled to more treatment. DO NOT ACCEPT A FINAL ADMISSION without carefully reviewing it (hopefully with an attorney). Do not accept one doctors rating as the end of your case. That may be the worst thing you can do. Those with severe disabilities really need to consult with an attorney wherever possible. Almost always much more can be done but at least check into it further. I've seen cases where doctors have said there is a zero rating receive substantial benefits. Sure I want law changes to provide more help for the injured but don't think the existing law is worthless. It is not at all. Pursue your options but do so with promptness.