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.

DIME Brochure

A DIME or Division Independent Medical Examination is a very unique process which allows those requesting it to seek to obtain a truly neutral evaluation of a claimant's impairment and treatment plus even more. It is a powerful force in keeping the system honest since most treating physicians have been selected by the employer/insurer and many claimants remain suspicious of that. To claimants such physicians often seem not to be on their side. In point of fact they may be quite capable but there are others who may be less then thorough or devoted to the patient/claimant. A DIME affords a claimant or even the other side the opportunity to have treatment and impairment reviewed. Moreover the law has made a DIME a strong force that can only be overcome by clear and convincing evidence in most cases. There are exceptions but the general rule requires strong evidence to overcome the DIME opinion especially on the issue of MMI or impairment. The Division has a brochure available to review the DIME process and it is worth reading. In my practice we use the DIME process in the vast majority of cases though in some cases we do accept the treaters opinion. By the way you can agree with the treaters rating but still seek permanent total disability by objecting and following through as set forth by the law. A physician may say you have 20% impairment but for you perhaps you can no longer work. You have the right to seek total disability but you must act timely and sensibly to make your case. A lawyer is usually essential here.

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.

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.

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!

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.

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.

Supreme Court Affirms the Nelson case

The Colorado Supreme Court affirmed the Court of Appeals decision in the Nelson case. In Nelson the claimant had obtained an advance lump sum of future permanent total benefits and years later sought another advance. The problem posed by the case is that the claimant had exhausted the advance amount earlier and only sought the new advance when the law was changed. The original statutory top dollar advance was $26292 and the statute was changed to allow a $60000 advance. Is the insurer liable for this higher advance when it was not the law back when the claimant was injured? The Supreme Court said yes it was. This decision was not unanimous and 3 judges dissented. But the majority controls. Both sides recognized that the law was not to be applied retroactively but the majority indicated that the law change was procedural so it would apply to anyone applying for a lump sum as of today. Procedural laws are not really changing rights or liabilities as compared to laws which are substantive changes in rights or liabilities. A substantive law change cannot be imposed on the parties covered by an older law. For example if the benefits were increased by a statutory change to 100% wage loss it could not be imposed on the parties later on. The higher wage would be a substantive change. So in this case it seems the majority and dissenters disagreed on whether the law change was procedural or substantive. The majority felt the advance was not extra compensation and the dissent seems to view it as giving the claimant a higher benefit because he receives value sooner then spread out over his lifetime. Mathematically when we do present value analysis there is no real difference. Of course people can die young or outlive expectations so either side may have the advantage here and now we come to another point I have not heard recently. The court said that the law should be liberally construed in favor of the injured worker so it did not split hairs here and ruled in favor of the claimant getting another advance. I posted on the Court of Appeals decision earlier.

WCMSA'S

Whenever a claimant has a workers comp claim and also perhaps a right to Social Security disability/retirement/medicare then you have to consider offsets and something called an WCMSA. Offsets are required by statute if you are receiving Social Security disability or retirement benefits. Essentially the insurer has a right to a partial credit if you are receiving or should be receiving such benefits. In the real world this means you can receive a full SS check and a partially reduced WC check at least in Colorado. That information is set forth in the statutes on offsets. In addition a potential settlement may also have to consider a workers compensation medicare set aside (WCMSA). By federal law medicare may have a very big interest in your settlement. It does not want to be solely responsible for your future medical care through Medicare when some of it may be due to your work injury claim. It may mean that the parties have to consider Medicare's rights in a settlement and even set aside funds in a way that is approved by Medicare (the agency is CMS or the Centers for Medicare Services). Usually a review is made and drafted to submit to CMS and then made part of the settlement. Any MSA will almost always mean funds are set aside that can be used and accountable to medicare. If this is not done medicare may hold anyone involved with the claim responsible. A claimant does not want to hear that medicare is seeking reimbursement directly from you or your Social Security benefits. A judge recently told me they were seeking $70000 from one claimant! So what do you do? Well in this sample you can see how complicated it gets but the basics are simple to explain: show medicare what future care is to be attributed to the work injury and figure an amount to set aside. Then hope CMS approves it and doesn't change its mind.

The Nelson case allowing a second lump sum

Decided today by the Colorado Court of Appeals is the Nelson case. This is a case where the claimant was permanently and totally disabled. The law allows a claimant to obtain a lump sum. She did in the amount of $26292.00 which was the amount allowed to be lump summed back when the claimant was originally injured. Since that time the statute was changed to allow for up to $60000.00. So later the claimant sought the $60000 less the $26292 she had already received. She lost on this with the reasoning being she was bound by the law in effect when she was injured. The Court however let the claimant obtain more by deciding the lump sum law was procedural. As such it was not impermissively retroactive or trying to wrongly impose a new law on an old case. The decision makes sense. There was no change in the fact that a permanently and totally disabled person was entitled to lump sum or obtain an advance of the biweekly benefits. It just allowed the claimant to obtain a bigger advance. This is simply a math matter that does not really give a claimant more then he or she is due but just allows for a bigger advance of future money that is owing.

3 Court of Appeals cases decided April 16, 2009

The Colorado Court of Appeals decided 3 workers comp cases yesterday. In Simpson there was an assertion of overpayment to the claimant. Alleging all sorts of arguments the claimant was not successful in preventing the overpayment effort. The case is an interesting read but has one twist that may be significant just by itself. The claimant also sought to recalculate higher his permanent total benefits. Citing a recent case, Avalanche, his argument was that the calculations be based on his date of disablement not just the original date of injury. On this the court remanded it back to the lower judge for more fact finding. In Landeros the claimant alleged his jail time tolled the statutory time limits to seek to reopen. He lost. In the last case, Aviado, the claimant also asserted many arguments when he lost his permanent total claim at the hearing. It is also an interesting read and alleges that the claimant should have a right to proceed civilly apart from the workers comp system. It even asserts the Act itself is unconstitutional. He lost on all his arguments. My brief comments here do not do justice to these cases and I urge anyone interested to click on the links and read them for themselves.
UPDATE: Aviado noted above was denied cert by the Supreme Court on Apr. 5, 2010 so it means that court will not review further the decision of the Court of Appeals.
UPDATE: June 1, 2010, the Supreme Court reverses Simpson and a related case and overrules itself on date of disablement but AWW can be by determined by statute or by the discretion of the judge. Date of disablement is not to be used and does seem to be unnecessary anyway.

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.

Colorado Mortality Table

At Colorado Revised Statutes 13-25-103 the state sets forth life expectancies as we all age. Important in workers comp? Yes because if you might receive benefits for life then this tells us how long the average person lives based on current age. From that we can figure the value of a claim after discounting for interest rates and other factors. That makes this table important to some degree. Insurers sometimes assert the average age is not always correct and use what they call the rated age (a reduced age based on stats the insurers have for those as sick/disabled as you). I am posting the current Colorado life expectancies between 16 and 72 in full here but refer to the statute if you are younger or older:

16..... 61.5
17..... 60.6
18..... 59.6
19..... 58.7
20..... 57.7
21..... 56.8
22..... 55.8
23..... 54.9
24..... 53.9
25..... 53.0
26..... 52.0
27..... 51.1
28..... 50.1
29..... 49.2
30..... 48.2
31..... 47.3
32..... 46.3
33..... 45.4
34..... 44.4
35..... 43.5
36..... 42.6
37..... 41.6
38...... 40.7
39..... 39.8
40...... 38.8
41..... 37.9
42..... 37.0
43..... 36.1
44..... 35.2
45..... 34.3
46..... 33.4
47..... 32.5
48..... 31.6
49..... 30.7
50..... 29.8
51..... 29.0
52..... 28.1
53..... 27.2
54..... 26.4
55..... 25.5
56..... 24.7
57..... 23.9
58..... 23.1
59..... 22.3
60..... 21.5
61..... 20.7
62..... 20.0
63..... 19.2
64..... 18.5
65..... 17.8
66..... 17.1
67..... 16.4
68..... 15.7
69..... 15.0
70..... 14.3
71..... 13.7
72..... 13.1

The Dictionary of Occupational Titles (DOT)

Anyone who may be permanently and totally disabled or Social Security disabled may want to know about the federal publication called the Dictionary of Occupational Titles. This is an outdated (1991)but important resource when trying to ascertain how disabled a person might be. In SS cases it is extensively used and often relied on by Judges. In WC cases it is important but not quite as much as in SS cases. Still the job description and physical/skill demands of a job are quite important in all cases where employability is an issue. Each law defines unemployability differently but both make the concept of unemployability a key factor in determining total disability. In both areas jobs such as ticket taker, receptionist, customer service, telephone sales, hotel clerk, dispatcher, driver, assembler have detailed job requirements including physical, educational and skill levels. Each occupation receives a code number and a small paragraph describing it. Vocational experts use this information to assist in analyzing possible jobs for a claimant. They do much more but this old publication remains the bible in the field. The Social Security Administration goes further with its rules in analyzing how age, education and other limitations play into work ability but in Colorado workers comp we tend to rely on the experts to provide opinions rather then any further rules. The Social Security Administration realizes those over 50 have a harder time adjusting and there are rules in this area. In Colorado workers comp being over 50 is not going to stop someone from saying you can work in low paying or unskilled jobs. So if you want to check into occupations and what is required for that job you might take a look at the DOT Dictionary of Occupational Titles.

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.

Lip Service

Whether federal disability or workers compensation disability we all expect fairness and justice in the process. That expectation is not realistic. Far too often good people are misinterpreting lip service for reality. Lip service says you should be promptly and fairly treated. If you have an injury you should receive quality care and benefits. If you lose your job you should be compensated. You should be communicated with by the insurer and taken care of by the law. In Social Security you should receive benefits for total disability where you cannot effectively work anymore and it should kick in as soon as possible. Reality? No. Instead 25% of the people with a work injury in Colorado have their claim contested. This means prove it before a Judge and until then you may receive very little if any benefits. A hearing takes a few months to receive but even if successful the insurer can appeal. Starvation and lack of adequate medical care can be a big problem. Even with treatment and some benefits the insurance always looks for the lowest way to calulate benefits. This does not mean the adjuster is mean or being tough on you...it is just a fact that insurance seeks to save money and that can be at your expense. Social Security hearings take months to obtain and it could be years before benefits are coming if at all! Prompt and fair? No way. As Americans we believe in fairness and justice. That is the American way but reality can be quite different from the lip service. Here is a link to one story about how the Social Security office was cut back yet claims were increasing. Sometimes you do wonder if it is a planned effort to end the current system by making it worse then it should be. Anyway here is the link to the story.

Can you return to work or are you totally disabled?

Often a person may not be able to return to his usual trade or occupation. This can occur because of restrictions or complications from the work injury as set forth by a doctor. Sometimes a person may have worked for many years and really enjoyed his trade but now is not sure what he can do. If you are only permanently and partially disabled or restricted you may receive compensation but not anything else. What then? Does the insurer have to retrain or put you into voc rehab? Not usually and you may wish to contact the state Vocational Rehabilitation office. There is an earlier blog post on this which I posted. But then if you think it is unfair and seek permanent total benefits (which can be substantial) it is your burden to prove it. Your attorney can apply for a hearing and line up his witnesses and evidence. He may also discuss a settlement. However if it goes to a hearing what will the other side say when you try to show you cannot work at all? Well, the other side can seek to show through its witnesses or evidence that you can work, even if just part time. Believe it or not if they show this and the Judge accepts it then you cannot get further benefits beyond what is allowed by an admission or the Judge. Just thinking it is unfair and no Judge would do this is a mistake. You must be ready to prove your viewpoint if it goes to a hearing. It is a true legal battle with high stakes. Here is a sample of some of the jobs that may be asserted through evidence you can do part time: "The claimant can work as a ticket seller, hotel desk clerk, restaurant host, pizza deliverer, customer service clerk, cashier, automobile salesperson, and sales clerk." This list does not end here...it can go on and on to include working at home! Decent pay comparable to your trade is not a legal consideration. This means it can be difficult to establish you can no longer work. Hard as it may seem it is quite possible to show this but it requires a solid effort. In this area your attorney may do the most good for you. There is caselaw to consider. There is vocational evidence to obtain. There may be further medical evidence to develop. Much can be done here so blindly accepting the insurance viewpoint is not wise.