Reduced Aid to Needy Disabled

I guess I am always surprised when the disabled are treated as worth so little. They are often helpless physically and financially but to hit on them to save money seems way out of line. As reported in the Coloradoan the benefit called Aid to the Needy Disabled in Colorado has been reduced effective January 1st to no more then $200 a month. This is not Social Security Disability but is some assistance for the disabled while they perhaps wait for Social Security disability benefits. I researched this a bit and it seems about ten years ago the benefit went from $229 to $239 a month. To roll back benefits in this area seems incredible to me. Surely in these economic times there are other places to save then cut benefits for those most vulnerable.

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.

Wondering About Social Security Entitlement?

I came across a simple website run by the government that lets you answer some
multiple choice questions to see what, if any, Social Security entitlements you might be eligible for. It's pretty basic but it is very simple to use and may give you some insight as to what programs may be there for you. You do not post any personal identifying information. It is just a tool to see what pertains to you. If you want to talk with a representative at your local SS office (rather then use online resources) you should call them at (719) 574-9279 to see if you need an appointment. Often the office visit can take a while. Should you wish to apply much information is needed such as the names/addresses of your doctors and employers for many years. Also be aware that when you describe the jobs you've done do not be incomplete or inaccurate. Realize that disability in its simplest sense means that you are no longer employable. So if you can physically/mentally do one or more of the jobs you've done in the past 15 years on a sustained basis then you're not disabled. If you've done very easy work then they can wonder why you cannot do it again. Needless to say an attorney is often needed since denials are common. Also in this area your doctor can be very important to itemizing your problems and restrictions. Anyway click here for the eligibility tool.

Changing Physicians by statute and rule

Traditionally in workers comp in this state you have a physician designated to provide you with medical care selected by your employer (who in turn usually has been provided with help on this by the insurer). Then if you were unhappy or just needed another doctor you had three ways to do it. You could agree with the insurer to a new named doctor, or you could send a 20 day letter per 8-43-404(5)(a)(VI)that you want a certain doctor who then would be your doctor if the insurer did not timely respond denying it. Last, you could seek a hearing. If there was a dispute on this you'd have to seek a hearing and that takes time to schedule. In a practical sense it was not easy to get a fast change. To this traditional process was added another way and a new wrinkle. Now the employer has to provide you (in writing) with two providers for you to pick from. If not you can choose your own doctor. It also allows for you to switch between the doctors. Sounds simple but it's not. You only have 90 days to do this from your date of injury. You have to comply with the statute at 8-43-404(5) and with the rule noted as Rule 8-5. You have to use the form provided by the Division. In fact they are proposing a change to Rule 8-5. So what do you do? I'd check the Division website for the latest information and proceed from there. Remember though if there is a dispute then you may still need a hearing unless it can be quickly resolved.

Happy Holidays!

Avalanche Industries Supreme Court decision Dec. 15, 2008

Back on March 22, 2007 I reported on the Avalanche decision at the Court of Appeals level and then noted it was up before the Colorado Supreme Court. The court decided the case on Dec. 15, 2008. Briefly the court decided that a Administrative Law Judge can decide that your wage is whatever is fair and just. It is not necessarily simply what you were making at the time of the accident. In this case the claimant was earning a wage and paid out for permanent partial disability but retained her right to reopen. She did reopen and her higher new wage and health benefit was what was used to calculate her increased permanent disability. She was now totally disabled so benefits were long term at the much higher calculation. The other side said the law restricts average weekly wage calculations to what you were earning at the time of the accident. The court determined that there are two ways for a judge to decide matters. He can decide based on wages at the time of disability (not just accident) or if that is unfair he has the discretion to decide what is fair even if it is a later and higher wage. There were dissenting judges but the case was specific in its analysis so injured workers win big here. Read the case here.
Postscript: I am advised that the facts may not be correct in that the claimant was not seeking permanent total benefits as reported by the court. Further a rehearing is to be sought. I do not see this as affecting the legal determination that an Judge can decide on average weekly wage in his discretion but we shall see what happens. UPDATE: the Court corrected the decision on Jan. 20, 2009 and it can be read by clicking here.

New Hearings Office for Colorado Springs

It appears that the hearing room and the offices for the Colorado Springs area are going to be bigger and better. At least that is my read from the website maintained for hearing information. It sounds like it will be ready to go this week:

"The OAC Southern Regional Office in Colorado Springs will be moving to a new suite 230 right next door to our old suite in the 5 Star Bank Building at 1259 Lake Plaza Drive. The new space should be more comfortable and functional for all. The new courtroom is more spacious and is without a roof support pillar obstruction. The new conference room will be accessible to hearing participants."