Court of Appeals decides a DIME is not a medical benefit

In a short case decided on August 6, 2009 the Colorado Court of Appeals decided that a Division IME is not a medical benefit. In Jones the court was presented with an effort to reopen the comp claim for more medical benefits. The problem for the claimant was that she was injured in 1998 so there were time limitations to deal with in trying to reopen the claim. The court said that the only way the claimant still had time to try reopen her claim is if the DIME was deemed a medical benefit. This would mean her 2004 DIME examination let her have until 2006 to try reopen if the court agreed. The court did not and determined a DIME is not a medical benefit. A DIME is a medical examination but because it involves no treatment or healing it is not a "medical benefit" according to this decision. While I understand the reasoning (the case is very brief) I do have to question it. Believe it or not there is no statutory definition of what is a "medical benefit". There is no question the DIME physician does not render treatment but the opinion he renders may address further treatment. For more information on a DIME click the subject on our blog. For example your authorized doctor may have said you need medications for another 6 months but the DIME doctor may say you need psychological care or long term medications. In a sense the DIME can trigger more treatment but at a minimum even if nothing further is recommended he does address medical issues. This includes your need for further treatment as of the date of his exam. If we think of medical benefits as treatment then clearly a DIME is not a medical benefit. If we think of medical benefits to include any medical exam to assess the need for more treatment then it is a medical benefit. If we ask was it a medical matter I think it was. If we ask if its a benefit then again it is one created by statute. So then putting the two words together and using their plain meaning you do have to question the decision. However for now the Jones case tells us a DIME is not a medical benefit.

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.

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.

Time Limits all over the place

The Colorado Division of Workers Compensation at its website gives us a list of most of the time limits in the field. Yet others are not posted. For example if you file a motion or the other side files a motion it will have a time limit to respond. In any event here is the link to the time limits posted at the Division site. It is one reason that claimants seeking all they are entitled to should have representation. Another reason is that on average an experienced attorney significantly increases your benefits. Your attorney will take the case on a contingency basis of 20% but will simply deal with all the deadlines and all the legal hassles. He'll also get you ready when that is needed and give you a heads-up on most that is going on. He will negotiate for you and add in to the calculations thousands you might miss. But most of all he is there to protect your interests.