Update on the Holnam case noted earlier

As I mentioned earlier in Holnam the claimant was unable to seek coverage for an alleged occupational disease based on the legal theory called claim preclusion. The case is a bit complicated but essentially having lost on a traumatic claim the effort was made to allege the condition was caused by occupational activities. The Court said you cannot come back and do this at another hearing. I believe this is not sound reasoning and by way of an update I understand this case is being sent to the Colorado Supreme Court. Of course it is up to the court as to whether it will rule on it but I remain hopeful. I should note further that appeals take a lot of time. It is sad but speedy outcomes are not part of workers compensation when there are appeals. In my view this works to the advantage of the insurers since they can wait it out as compared to claimants.

Vocational Rehabilitation

If you've been injured on the job or even if you simply have health problems which restrict work activities and you're worried about what work or job you can now do check out the Colorado Division of Vocational Rehabilitation. It is unlikely you will receive any vocational rehab through a workers comp insurer. Workers comp used to have a more active vocational rehab effort but that has changed so seldom will you be offered voc rehab by the insurance carrier. My experience has been that they simply pay you a settlement or by Final Admission and you are then on your own. This can be especially difficult when you feel you've lost your trade or occupation. If you are permanently and totally disabled from returning to any work then you may also seek Social Security disability benefits or other disability benefits if available. Moreover any resolution of your workers comp case can mean a substantial recovery if it is properly handled by your attorney. But if you simply cannot continue in your line of work yet believe you can work then consider contacting the Colorado Division linked here: http://www.cdhs.state.co.us/dvr/

Can You Do It Yourself?

Workers comp is so complicated that it has its own rules, its own separate caselaw and statutes, medical guidelines, and even comes under two Colorado agencies (the Division of Workers Compensation and the Office of Administative Courts). Deadlines and forms are also quite complicated and even those with experience must stay on top of them in every claim they handle. Some claimants believe they can try to handle their own claim. Others feel they will be treated fairly especially if they are receiving some benefits. While there are cases where you can receive decent medical care and benefits it is rare that any claim will go smoothly all the way to the end. Certainly the Division has a customer service section which does provide some basic help and it is possible to handle your claim pro se (without an attorney). I suspect many claimants want to avoid using an attorney and think they can come out ahead by saving on the legal fees. All I can say is this....if you can retain an experienced workers comp attorney then do so as he or she will usually maximize your benefits. Too many times the medical care is incomplete. Too many times the amounts due you are very low and you are told it is all you are entitled to receive. Many times an attorney can obtain substantially more benefits for you and far more then the legal contingency fee which is 20% in Colorado. So try to obtain a lawyer to help you with your claim. Do it yourself only as a last resort when a lawyer cannot be found to take your claim. Moreover here is one more tip: whenever possible obtain an attorney early on in your case. The sooner the better given the contingency fee is the same anyway.

Dec. 28, 2006 two Court of Appeals cases

These cases are not favorable to claimants. In one case, Sigala, the claimants temporary benefits were "suspended" for missing an appointment with his authorized doctor. The appointment was set by the insurer and sent certified mail to the claimant after he missed an earlier appointment. The rule permits a suspension and in this case the claimant finally went ahead with a later appointment and then wanted the suspended back benefits to be provided. While his temporary benefits were reinstated the back suspended benefits were never provided. In this case several weeks were never paid. The Court of Appeals decided the "suspension" for those several weeks was a forfeiture for those weeks. I disagree with this decision. Despite the Court's view I see no due process and cannot understand how "suspension" can mean "forfeiture" as the statute could have said forfeiture. The next case, Holnam, involved a claimant trying to win on two different theories. First he said he had a work injury to his neck. He lost. Then he said, okay, my neck problem comes from an occupational disease in that work activities caused or aggravated it. The hearing Judge agreed and the insurer/employer appealed. The court decided that you only get one bite of the apple here and the claimant loses on both theories. The concept is what they called claim preclusion. My view is the court was wrong. Workers comp hearings are very specific on issues and evidence and dates. A work injury is date specific and the mechanism of injury is one specific incident. An occupational injury develops over time and was never addressed in the first hearing when one date one incident was the theory. The issues are quite different in the two hearings. If a trauma on one date did not cause the problem then other dates with work activities are ongoing aggravations. It really requires more medical evidence beyond one date one trauma. In any event the court focused on it being a neck claim and you do not get two tries to establish a neck claim. To me this is off base. I hope both cases either go to the Supreme Court or are limited in how they are interpreted.

Merry Blizzard!!!!

Just a note about Christmas as the snow flies here in Colorado. It's not a lot of snow but the wind makes it a blizzard in Colorado Springs though elsewhere in the state there has been significant accumulations of the white stuff. This time of year is almost magical. It is festive and hectic but the spirit of Christmas is in the air. If love could be measured then Xmas would be overflowing the cup, spilling over and over and over. Sure there is the marketing and hawking of "stuff" but the spirit of Christmas exceeds the materialism of the holiday. The joy of a giggling child, the excitement of gift giving/receiving, the songs, the smiles, the warmth of memories of old and memories being made right now...it is a truly blessed time. So deck the halls and have a great time with family and friends. We can all be the Santas and childlike all over again this year. It is an awesome holiday. Have a MERRY CHRISTMAS from snowbound Colorado!

Listen in on an appeal!

You can listen in on the audio of cases set for oral arguments at the Colorado Supreme Court or Court of Appeals. These are real cases where the lawyers argue in front of the appeals judges. As an example I have a link below to several cases heard a few months ago. When you click on the link you should click on the STC case (05CA2340). The case involves apportionment. Insurers love to limit benefits and try to use this legal theory of apportionment to pay for only a portion of benefits. So over the years there have been numerous cases involving apportionment. By way of example insurers may say they only need to pay for half of your surgery if they can establish it should be apportioned. In any event the oral arguments of both sides can be heard in the case noted above. http://www.courts.state.co.us/coa/oraldock/2006/aug2006.htm#7

Special Issue

The Workplace Injury Law and Advocacy Group (wilg.org) is a national group of attorneys interested in protecting injured workers. They have just put out a fascinating issue which has extensive information on the state of workers comp in the country. This is in pdf and will take quite a bit of time to load depending on your internet connection but the issue is simply an excellent read. Here is the link: http://66.6.98.12/data/firstwatch/WFWSpecialIssue.pdf