Antartica in Colorado workers comp case!

Decided on March 19, 2009 the Iler case involved a claimant hurt in Antartica. He sought to add the value of his room and board to the wage calculations by comparing it to his room/board in Colorado. So how do you calculate its value in Antartica? The judge felt he couldn't and the claimant appealed. The next level up in an appeal is called an ICAP decision. The Industrial Claim Appeals Panel decides at this stage. In his case they agreed with the Judge. The next appeal is to the Court of Appeals and here the claimant succeeded in getting his case remanded back down to the Judge to assess a reasonable value and add it to the calculations. Read the Iler case here. It is always in the best interests of a claimant to have a high average weekly wage. This figure is often used in determining the amounts of temporary and permanent benefits you are entitled to receive. The most common increase comes when they forget to add your overtime. Also they should add your health coverage if you are going to lose it through your employer. But also as is the case here an employer provides you with room and board. It may be part of your wage package so it too can be added. The Colorado statutory definition of what is your average weekly wage is as follows at 8-40-201:

(19) (a) "Wages" shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.

(b) The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.

(c) No per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes.

The Top Ten Reasons

Why do injured workers hire attorneys? Over at the Workplace Injury and Law Advocacy Group one writer set forth ten major reasons. Quoting from the article here is the list:

TOP 10 REASONS
10. Does not know the value of Permanent
Partial disability final payment.
9. Harassment from employer while on
restricted duty.
8. Has other legal issues (SSD, Short/Long
Term, ERISA subrogation, unemployment).
7. Poor Medical Care.
6. Fear of losing job or loses job.
5. Poor Treatment by adjuster/nurse case
manager.
4. Total Permanent situation.
3. Temporary Total Benefits not paid timely or
in correct amount.
2. Employer ignores Injury and refuses to
refer for medical treatment.
1. Changes in the law.

It is rather clear above that "protection" is the biggest single consideration. I would also like to add that an attorney can not only protect but also will seek to maximize your medical and compensation benefits. This can mean doubling, tripling or multiplying by over 10 times what the insurer says they still owe you. It can mean taking a claim when the insurance says you've been treated and released without impairment and obtaining more treatment and benefits. A decent attorney can not only protect but also increase your benefits considerably.

Larson's National Workers Comp Advisory Board

I have just been invited to become a member of Larson's National Workers Compensation Advisory Board. This is maintained by LexisNexis a very large legal publisher. I do appreciate the invitation and accepted. So from time to time I'll provide information to them on Colorado workers comp matters. Larson's Workers Compensation Law is historically the major publication and source of knowledge in this field. With the internet much is now moving onto the web. For example I do my legal research using Westlaw which maintains a searchable database of legal materials. In the old days we had to search through digests and state law books followed by "shepardizing" cases just to verify the decided issue was still good law. Now we can do all this and more in less time.

Quasi-course of employment case: Kelly

Decided on March 5, 2009, the Kelly case addressed the legal issue of quasi-course of employment. The Colorado Court of Appeals decided that a claimant returning to Colorado for re-scheduled surgery (for his work injury) who was then injured in Elko Nevada in an auto accident cannot make it part of his workers comp claim. The court decided that injuries while traveling to and from a medical appointment can be covered through workers comp but in the case on appeal it was too much of a deviation. The claimant was on vacation and was told his medical appointment for surgery could be reset so he decided to travel back from Reno and was hurt during the travel. While it was travel for treatment for his work injury it was too much a deviation from the typical home to medical office to say the accident should be covered. Each case should be reviewed on its facts because it now seems a question of how much of a deviation to throw out coverage. While the case makes sense it may lead to more litigation as it's not clear what is a "substantial deviation" but it does seem to be a rule of reason case. That is, if it is unreasonable then it won't be covered.

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.

Recent WC cases for January 2009

Here is a link to recent decided cases/orders in workers compensation proceedings in January 2009. These are hearings held at the local level on a variety of issues. This link is to over 300 pages of decisions and some are quite complicated. It is not exactly easy reading but makes you aware how difficult these proceedings can get. The format for these are that first the judge issues findings of fact based on the testimony and reports/exhibits provided at the hearing. Then the judge makes conclusions and enters an order. You can see that many times the claimant loses. Hearings certainly place each side at risk as these cases show.

The Ortega case or 20 days means 20 days!

Just decided by the Colorado Court of Appeals on Feb. 19, 2009 the Ortega case involved a request for a continuance made during a hearing. It seems the Claimant received a medical report less then 20 days before the hearing and wanted to submit it although the law (Colorado statute 8-43-210) says it must be submitted to the other side no later the 20 days before the hearing. The report was from a family doctor who said the injury was related to work activities when this was hotly disputed. The other side also had late medical reports. They also had a medical witness at the hearing. The judge denied all the late reports. He then denied the request of the Claimant for a continuance. The hearing led to a decision denying benefits to the Claimant. The Claimant appealed and finally the case went to the Court of Appeals. Essentially the court said that 20 days is the law and there was no reason to say the local Judge committed any legal error which would justify reversing the decision. I will say the Claimant had a chance to submit his late report if the other side's reports also came in but that is really not well detailed. Apparently the Claimant's lawyer felt he had a solid reason to be excused from the 20 day law since the doctor did not even get it out timely. I cannot see what the reason was for the other side to be late. In any event a continuance was denied in part because the other side had a medical witness they had to pay. The court commented on the law but here is what is strange to me...the law does permit the Judge to order the case be continued but lets the Judge go forward with part of the hearing. Strict compliance with the law is not always necessary. It is hard to second guess the local Judge's decision but on the facts presented I question the decision to deny a continuance. The Court also seemed to suggest that the Claimant's lawyer should have acted sooner since there was an earlier report by the same doctor on the issue. I am just not sure why, in a search for the truth, when the medical report was really late that we say it's the lawyer's problem to anticipate the doctor sending a late report. Given part of the hearing could have gone forward and also continued for more evidence why insist on the 20 day law? Anyway read the Ortega case here. Hearings are administrative proceedings and many times they start one day and finish a month later.