Proposed SB 10-163

This recently submitted and proposed bill just may pass. It seeks to spruce up certain prior laws of 2009 and have new or old cases have the same procedural laws at least in certain areas. SB 10-163 as currently proposed can be read here. It contains a number of significant matters. For example if the insurer/employer seeks to withdraw an admission and totally contest the claim the proposed law makes it their burden no matter how old the case. In the old days when they did this the Judge would turn to the claimant and say it is your burden so prove your case even though it was admitted and benefits paid for many months. Imagine going to seek an increase in your benefits and being told...well we changed our mind so now you must prove your claim is even valid or compensable. That scary situation was changed in 2009 but the proposed law now applies even to very old cases. Another proposal is to have the law regarding audio recordings by insurer IME's also apply to all cases not just the more recent cases. So if you have an older case but must go to an insurer independent medical exam (no such thing exists in my opinion when one party handpicks the doctor) that doctor may have to comply with the law mandating audio recordings. A couple of other wrinkles seem interesting to me. They require the mortality tables be adjusted yearly or the fed table be used. Mortality is important as the longer your life expectancy the more you seek in a settlement in many cases. Also the proposal seeks to end the game of sending someone a fax or email but using regular mail to notify the other side. It makes such communications more uniform in delivery. It is my belief this proposed bill is broadly supported so it may pass.
UPDATE 3/19/10 : This bill passed and is headed to the Governor for his signature.

Appealing in Workers Compensation

In Colorado when a workers comp dispute has not been resolved one of the parties or both of them may seek to proceed on the disputed issues to a hearing. Should that happen an Administrative Law Judge (ALJ) will likely issue an Order deciding the disputed issue or issues. So if the decision goes against the claimant or in favor of the claimant it does not mean the matter has been resolved. One side or sometimes both sides have a right to appeal. The next stage is ICAP (Industrial Claim Appeals Panel) when an appeal of the decision is sought. From there you can appeal even further to the Court of Appeals and perhaps even to the Colorado Supreme Court. You can read some information on this process by clicking here. In this process there may be good news and bad news. You can win at the hearing and lose at the appeal or even lose at ICAP but then win at the Court of Appeals. Even if it is all good news and you are winning and winning through this process the bad news is that it all takes time. It is not good to be owed money but payment is delayed for many months during an appeal. Let me give an example...the insurer admits you are permanently partially disabled and even begins paying those benefits but the claimant says he is permanently and totally disabled. This dispute may go to a hearing and then an appeal but does the claimant continue to get benefit checks during this process? Not always. The other side may pay but only as much as it admitted for even though it lost at the hearing. It is allowed to appeal and to contend the hearing judge was wrong. This entire process can take over a year or even longer and while statistics tell us the hearing judge is more often affirmed then reversed the delays can be financially tough to handle. Of course there are times the claimant loses and after appeals the judge is reversed. This might mean a lot of back due compensation is due a claimant. Nothing simple or quick about appeals but at times they are necessary to resolve some cases.

The ICAP Case of the Dirty Money

It seems that a claimant was picking up trash when he saw a $5 dollar bill in the trash. In the act of getting it he scrapped his hand on a Yucca plant. The skin was not broken but it became infected. The Respondents disputed the claim by bringing in a doctor who questioned the infection because the skin was not broken. They also alleged the act of picking up the $5 was a personal deviation and was not within the course and scope of his employment so it's not a work injury at all. In other words he was to pick up trash not cash. The case did not get into what is trash or is dirty money really trash or if he didn't pick it up isn't it then litter and on and on. The hearing Judge determined it was a work injury and also used a doctor for the claimant to determine the skin need not be broken for infection to get in at the spot of the scrape. The Industrial Claim Appeals Panel also known as ICAP affirmed the hearing judge. Of course we never get the answer to the question...can cash be trash?

First Colorado Workers Comp Educational Conference

Just announced by the Director of the Division of Workers Compensation is the first educational conference in what may likely become an annual event. Aside from educational information on the law, rules and the like there will be workshops and an Exhibit Hall so that all manner of professionals and more may interact and learn from each other. This event is set for September 16-17th, 2010 and may be well attended. I know I am interested in it so will try to attend and gain insight although it would be nice to obtain some continuing education credits. You can view the announcement here.

Pinnacol in the News Again

In the Denver Post Pinnacol is again in the news for making what is said to be a $200 million dollar offer to Colorado. It is said they want a number of things but in return would pay the state $75 million one year, $75 million the next year and then $50 million over 30 years. In return it wants certain concessions and to have some of the currently pending legislative efforts go away. Although the details remain to be worked out and there is much criticism of Pinnacol the state is in a financial bind so I am sure that negotiations will continue. What if anything that will be worked out remains to be seen. Pinnacol Assurance handles a majority of the work injury claims in Colorado and while I realize Colorado like much of the country is financially strapped I do think any deal should not harm the best interests of injured workers. Time will tell how this all plays out.
UPDATE...FEB. 23, 2010...Senate President pans the idea for now but we shall see as it may depend on further negotiations or how bad off the state budget may be.

Impairment Rating Tips February 2010

Colorado workers compensation claimants who reach or seem to have reached MMI (maximum medical improvement) are often rated by an authorized treating physician or if requested by another doctor in an Independent Medical Examination. The Division has just issued its new Impairment Rating Tips. These are recommendations primarily for the use of the rating physicians but they are useful to others. The tips are 7 pages so quite a bit of ground is covered. One tip concerns the use of what is called contralateral measurements. This tip seems to allow a doctor to measure the uninjured side and compare it with the injured side. My view is that this seems to disregard the AMA guides for Colorado which set forth how to rate impairment. By statute (see CRS 8-42-107(8)) the Guides instructions seem to be required. Setting them aside for another way to calculate in my view conflicts with the law but the contralateral tip is there to read. These new Tips are an interesting read and I'd suggest spending a few minutes to look them over. While these are not legally mandatory since they are written primarily for physicians we may see them referred to and followed by them.

Pinnacol's Position on Pending Bills

Here is a link to Pinnacol's viewpoint on the currently proposed bills at the Colorado legislative level. They have expressed disapproval of the proposed bill to limit surveillance by saying an investigation is not just to stop fraud suggesting the bill is too restrictive. However my experience is that surveillance is sought to try show the claimant is exaggerating. Some investigators will follow claimants almost everywhere. They follow when you enter the supermarket, or pump your own gas, or go for walks or trim your weeds. Then they allege you can work or are not that disabled because you are seen as functional in the video. Hours of surveillance are edited down to minutes which fail to disclose all the poorly functional moments. Doctors and Judges may be faced with a tough problem when determining what is the truth. Some claimants have told me that they had taken an extra pain pill or took hours to do the task or then had to lay down but none of that is on video. But the video suggests they were doing fine. But the biggest problem I have with surveillance is the level of stalking it implies. Big Brother is watching you! Also Pinnacol is opposing the bill on conflicts of interest by claiming this is already disclosed but many would disagree with that. In any event Pinnacol does set forth its viewpoint on all these proposed bills.