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.

Pinnacol Part 3 The Legislature Slows Down

The effort to assess $500 million against Pinnacol Assurance this year is over. The politicians decided that they would not likely obtain any funds from Pinnacol this year to help with the state shortfall. Pinnacol made it quite clear they would litigate and we all know litigation can take time so the money would not be available to help with the budget. However it is clear they intend to try reassert state control over Pinnacol. Read the latest here. As I noted in earlier blog posts Pinnacol is a hybrid company that is part public part private in how it operates. As I said workers comp claimants would not benefit either way from all this but I still maintain that employers and employees lost here. Employers paid more then was needed and injured employees received less in benefits such that Pinnacol accumulated a ton of funds. Yet Colorado itself, including the hearings office have had to make cuts to operate. I am sure Colorado will push for reform in this area but it will take time to fashion a solution that is going to work.

Pinnacol Part 2...Why the Politics?

Colorado legislators are seeking some $500,000,000.00 from Pinnacol (the state's largest workers comp insurer which is also a political subdivision of the state) to help the state with education and perhaps other worthy matters at a time when the state is economically hurting. This has triggered much political debate and cries of foul from Pinnacol. Given the amount involved it seems clear that it is becoming a major battle. Money talks so they say. I must admit that Pinnacol has rallied much support that its excess funds are not up for the taking. This is well organized. Look at the Denver Post article with a photo of Pinnacol supporters. From what I have researched it appears that Pinnacol has $2 billion in reserves much of which came from insurance premiums and reduced benefit payouts. Of this amount some 700 million is excess or essentially slush money. The legislators seek 500 million and Pinnacol says that is wrong. What is certain here is that Pinnacol is far from being a private company. It was set up by the state, has a board appointed by the governor, does not pay taxes and has accumulated a huge surplus. Here is a quote from State Senator Carroll:

"Pinnacol is now trying to claim that they are like a private company, even though the statute says they are a “political subdivision”. This solution is not easy and not popular either.

"Pinnacol has managed to mobilize the business community in its defense. The business community should be pondering how much they have been overcharged in premiums for the company to have $700 million in surpluses above and beyond the $1.3 billion they have in reserves for known and anticipated claims."

It also appears that another bill was introduced to force Pinnacol to disburse back 5% to its policyholders (businesses) who also seem to have contributed to this huge growth. Clearly Pinnacol has made huge "profits" so does that state have a right to control some of that for the well being of its residents? The important thing to realize here is that Pinnacol is a hybrid that operates as a public and private business. But once it made huge sums it was bound to be considered as a source for state budget money. It was just as likely that big money makes Pinnacol want to remain big and private.

For injured workers I doubt this will have much impact. This seems more like an argument as to who gets the extra money. But what does seem a big concern is why was there so much extra money that accumulated? Could it be that businesses were charged too much or injured workers received too little? Makes you wonder....but this political issue is all about money and who controls it.

Pinnacol Assurance is it private or public?

In the last few days a big dispute arose over a proposal to take what might be considered excess funds from Pinnacol to help the state in the present economic downturn. Pinnacol handles a great many workers comp claims and that means more then any other insurer. In any event Pinnacol has attacked this as a "raid" and outrageous. At the Pinnacol website here is their view. A former Colorado governor chimed in for Pinnacol here. But the Pinnacol story is not quite that simple. Pinnacol has a long story in Colorado. When you look at its history you can see why there is a controversy over the right of the state to take from Pinnacol. Under several names Pinnacol has evolved over time but it originally was set up and funded by the state of Colorado. It was intended to protect workers and employers from other insurers. Truly private companies don't like high risk businesses (construction is one high risk business) so Colorado just sought to ensure that such businesses could obtain coverage at a fair price. Over time Pinnacol has become more private then public but to this day it has some of each. It has a separate statutory section and its board is appointed by the governor. Clearly over time it has evolved away from being a public agency but it is not truly private yet. I am not saying that the effort to get some of Pinnacol's fund is appropriate but arguments that imply it is immune from legislative control are inaccurate. Want to see the statute itself that says Pinnacol is a political subdivision of the state but not a state agency? Go to 8-45-101 from this link.

Hyperbaric Oxygen Therapy

If you read up on hyperbaric oxygen therapy you will find that it has been useful in some types of treatment. I am writing this to encourage its use in injury and disability treatment where appropriate. We have all sorts of therapies in workers comp. Often these therapies are temporary in nature. However in my opinion I think hyperbaric treatment has the potential in some cases to actually improve the situation. I have seen videos of its use in brain injury, with wounds and burns, with improving athletes and in a host of disabilities from autism to cerebal palsy and much more. The treatment of the injured and disabled should not simply proceed along current approved standards. The trouble with standards is that they can inhibit or stall progress. Medicine is a science that should be forward looking. It should not be limited by laws and rules that sometimes restrict progress. Colorado has treatment guidelines. Sometimes these guidelines are useful but sometimes they seem too rigid. The problem is that medical providers seem to believe they are held to these guidelines yet medical science blows right by them as it progresses forward. Insurers need to realize that if the goal is improve the claimant that hyperbaric (HBOT) can be a win win situation. I am arguing for its increased use in workers comp and even with those totally disabled who may be made more functional with hyperbaric treatments. By the way think of hyperbaric treatment as the use of a decompression like chamber to assist with oxygen absorption into the muscles, tissues and organs of the body to promote healing. It is actually quite simple to do. You enter a small chamber where you spend about an hour a session getting the treatment. Sounds a bit strange until you research it and find out that it is associated with improvement after numerous treatments. Think of it as another form of physical therapy. If you truly research it you may be surprise at how many areas it may be able to improve functionality. A lawyers job is made easier if the doctors and insurers look at the goal of recovery at a reasonable cost. The legal area will only litigate this which causes more expense that could go towards giving hyperbaric a trial run in cases where a doctor suggests it is worth a trial. I must say that many times a client tells me that all they really want is to receive reasonable medical treatment. Many times they tell me that but for the denial of treatment or poor treatment they'd never even use an attorney. The point is that we need encourage whatever works to improve the injured and disabled. HBOT is one more tool to use to improve and increase the chance for recovery in certain types of areas. I would certainly go to bat to obtain approval for its use in workers' compensation.

Which do you prefer Colorado or NY workers comp?

The Hew York Times has a long article on the terrible state of comp in New York. It gave me the shivers to read. In Colorado much can be done to improve our state's workers comp system. I still believe that arm and leg injuries deserve more benefits especially when the person loses his trade or occupation. But there are parts of our system that have worked well especially the DIME or Division Independent Medical Exam process. No doubt there are many cases where things do not go well but overall it seems at least better then NY State. Anyway read about the horrible state of workers comp in NY here. Those of us in this field know that most of our judges do try to apply the law. They also know that many doctors are not just hired guns by the insurers or second rate. Those that are can often be overridden by the DIME process. Our system is not perfect and many times employees are treated like old newspapers but there are some safeguards and rules which can be used to equalize the case. At least with solid legal effort you can increase benefits but the NY article makes it seem like NY is out of control. I am not sure on that but the article is an interesting read.

Social Security Disability delays frustrate lawmakers

As noted in The Oregonian there are still heartbreaking stories about the delays in obtaining benefits. Apparently despite good intentions the delays can cause extreme hardship. In our area it is common to take a few months for the initial decision and then if denied over a year to obtain a hearing. After the hearing it can take many months to actually collect all the back benefits due, assuming you win. If you are receiving assistance and eligible for SSDI and SSI benefits it can take a great deal of time as the finance people at the agency compute the amounts. They must compute any deduction from your back benefits so you don't obtain more then you are entitled. We all know this should go much faster but historically delays seem ingrained in the system. The agency, according to the news article, has over 63000 employees and is trying to make itself more efficient. Nonetheless, imagine going down to your bank and being told it will take even a month to get your money. I really believe the math should not take that long. However it does take many months to obtain a hearing. Even if the Judge tells you the decision will be favorable at the hearing (which usually does not happen) it can take several weeks for him to issue the formal decision. I always tell those I represent to expect at least 6 weeks. Recently one case took 3 months to receive the favorable decision. Compare this to a workers comp decision which seldom takes very long. I suspect this is a case of inadequate funding to deal with the crush of cases that Social Security must handle. Can anything be done about this? More funding would help but also I think there should be other changes. The longest delays are waiting for a hearing. I'd require another legal review of all cases with claimants over 50 years old to see if perhaps the situation can be clarified so they obtain benefits. Many of these cases involve long term workers with severe enough health concerns that they can no longer work and should more easily qualify for benefits. Too often I've seen claimants denied who have enough health concerns to merit a more careful analysis. Such workers often have worked many years with decent earnings. For them seeking benefits is actually a come down. I also would give more credibility to pain complaints that are consistent with the medical evidence. Pain alone can be disabling and lately it seems that pain is discounted too much. I also think the treating doctor is discounted more then is fair since he likely knows far more about the claimant. There are many ways to improve the system with appropriate safeguards to prevent abuse but it takes an honest appraisal. It would take a dedicated effort to study the existing system. This study could include judges, attorneys, claimants and even doctors.