Humphrey...a case on what is a statutory employer

On April 1, 2010 the Colorado Court of Appeals decided the Humphrey case. It addressed the question of what is a statutory employer. An important purpose of a statutory employer is to impose responsibility often on the general contractor when a worker for a subcontractor is injured but that subcontractor has no workers compensation insurance. By statute the coverage is then to go through the general contractors insurance because it is deemed by statute the employer. But another impact of this is to prevent any further claims against the general contractor outside of workers compensation. So when the subcontactor does have workers comp and the employee does receive benefits but thinks there was negligence by the general and he tries to sue in a civil proceeding the general can assert it was a statutory employer and can't be sued even if it was negligent. In Humphrey a delivery person for Phil's burritos was hurt while in Whole Foods delivering and stocking Phil's burritos. He received workers compensation through Phil but then sued Whole Foods asserting they were negligent. Whole Foods said it was a statutory employer and can't be sued given he had workers compensation coverage. The court agreed. In a basic sense it is important to be aware that workers compensation law is set up to prevent an injured worker from suing his employer and yet also receiving workers compensation coverage. It is often considered to be an exclusive remedy. Clearly what is a statutory employer can turn on the facts. In Humphrey the court felt the delivery person was stocking and removing outdated burritos from Whole Foods shelves and active enough such that Whole Foods was a statutory employer. In any event it makes for interesting reading.

Work Injury Statistics in the USA

I have not yet found any statistics for last year but for prior years there are statistics on work injuries available at the national level. You can check it out at this link. I am not sure why Colorado only reports on fatal injuries to the US Bureau of Labor Statistics but the overall statistics show that for 2008 there were work injuries in 3.9% of the working population. This has been trending down over the last several years. Of those injuries about one-third or so result in time lost from work. Are these statistics accurate? I suspect it is much like auto accidents...only some are reported. Colorado has its last reported year as 2005 and is based on the actual filings of claims. In 2005 there were some 29000 lost time claims in Colorado. Does the poor economy affect anything? Probably so since the unemployed never have work injuries.

No Deal for Pinnacol This Year

The Denver Post is reporting that there will be no deal for Pinnacol this year. I've posted on Pinnacol numerous times here and more recently Pinnacol was trying to put together a deal for greater autonomy from state control. Pinnacol was originally set up by the state to help Colorado businesses obtain decent workers compensation coverage. Over the years it has worked itself into a major force in the workers compensation market. It handles the biggest share of work injury claims in this state. Given its size and revenues the state sought to obtain income to help with the state budget and also had increased interest in Pinnacol. In any event Pinnacol and the state ended any effort this year to work something out. Pinnacol wanted to pay for greater autonomy and that is out for now. I expect more on this next year. The story does not impact claimants except that some legislators have been unhappy with what they perceive is Pinnacol's power and unfair treatment of claimants. It can lead to law changes that benefit all claimants.
Update: View a more detailed story on this here.

Average Weekly Wage Desk Aid

The Division of Workers Compensation has what it calls a desk aid to help compute a claimant's average weekly wage. You can view it here. The subject of average weekly wage is an ongoing matter in Colorado. Even now the Supreme Court is to review a case soon (soon means this year).
The importance of the issue cannot be disregarded. Your wage calculations can play a very big role in your compensation benefits. A claimant wants it to be as high as possible and Respondents want it to be as low as possible. The reason is that it can increase your temporary and permanent benefits by a significant amount. As an example let us say you are making $10 an hour and get injured on the job. Does that mean the average wage is $400 for a 40 hour week? Not necessarily. Overtime does count. Having a second job may also count. Getting tips can also be counted (if timely reported to the IRS). Even health benefits from your job may be counted in many circumstances. The Desk Aid for wage calculations is actually more of a guide because a Judge has a great deal of discretion in calculating your average weekly wage. Do not blindly accept the figure provided to you as it may not be the only way to calculate benefits. Many insurers just take the last quarter's earnings (13 weeks) prior to the work injury and this may be way off. A judge may decide there is a different way to calculate it. Back to the example...if the $10 an hour employee worked overtime, or had tips or a second job or health coverage or even if there is another reasonable factor to consider the wage can go up. Even a figure just a few dollars higher can mean thousands more in temporary and permanent benefits. Always do your own calculations and your attorney should review the calculations considering the current caselaw and statutory law. This issue is a subject that is very current and often controversial so do pay attention to it. Look at my last post of March 20, 2010 where it is brought up in a proposed piece of legislation. See also this post where the wage calculation approach is to be reviewed by the Supreme Court.

New Proposed Bill SB 10-187 Has Many Changes

A very new proposed bill, Senate Bill 10-187, has many changes of significance for Colorado. Here are some of the important proposed changes:

1. It wants to provide the claimant with the costs (not attorney fees) of obtaining medical maintenance benefits recommended by the authorized physician if they are unpaid and contested but the claimant gets them ordered or Respondents agree to pay within 20 days of the hearing. I assume this is to try to reimburse the claimant if he or she must go to a hearing and expert testimony costs are necessary.
2. It clarifies what is to be the average weekly wage calculation problem raised by a recent case (Avalanche). It proposes to use the date of injury or whatever the judge in his discretion deems fair (not to use two dates such as date of injury and date of disablement as appears in the Avalanche court case).
3. There is to be no Social Security offset on permanent partial benefits. Such an offset would often be so onerous that partial benefits might go to zero so this prevents that should it become law. For those not aware the law reduces your workers comp benefits by one half of your Social Security benefits to prevent what some say would be double benefits. It is the law and this proposal tries to eliminate the problem of the SS offset applying to partial disability cases.
4. Another proposal is that should an employee reject a modified job offer that it not be considered his responsibility (such that temporary benefits may end) if it is a reasonable decision or if the job offer is over 50 miles away. Employers at times have tried to stop temporary benefits by unreasonable job offers that are not very nice or accomodating. In other words this proposal lets the claimant explain to a judge why he cannot take the job and perhaps avoid stopping his temporary benefits.
5. Annually requires an adjustment in the caps (currently top dollar for all but permanent total benefits are $75000/$150000 combining temporary and permanent partial benefits).
6. Proposes that a claimant can get a lump sum of permanent partial benefits but not be required to waive a claim for permanent total benefits.
I think you can see that this proposed bill has many provisions so we'll see if it becomes law. By and large it is reasonable in its approach at least from the claimant's point of view. It is not possible to review this in more detail in this blog post but those interested may read it and follow it as it moves through the legislative process.

Continuing Legal Education WC Webcast

Attended a seminar on Colorado Workers Compensation today. For the first time I did so by what is called a webcast. The weather in Denver was projected as snowy so my plan to attend in person became a problem needing a solution. The solution was something called a webcast. It was televised over the web for those who signed up. The materials were sent to my email and from there I could open it up and watch the seminar. This was an all day affair although given the weather they did break a few minutes early. Usually these seminars pack a great deal of material into the day. That meant reviewing many cases, a discussion on the Medical Treatment Guidelines, ethics, rules, recent important legal points and lastly a presentation by two doctors on what used to be called RSD and is now abbreviated as CRPS. You can view more about CRPS by reading the material on it in the treatment guidelines noted above. Webcasts like this save time and today let me devote the time without concern for the weather.

Pinnacol Worth $374,000,000?

The Denver Post is indicating that Pinnacol Assurance is worth $374,000,000. This follows last months effort by Pinnacol to pay $200,000,000 (some cash some over time)to the state of Colorado for greater autonomy. Pinnacol is the largest workers comp insurer in the state and is a hybrid of public-private insurance having been created by the state and yet is now seeking,in my opinion, to be as close to a private company as it can get. In tough times when the state budget is having its own problems Pinnacol is making the state think about getting some cash from it to ease the state's money woes. This seems to be an ongoing story that just keeps going so will the state try to cash out of Pinnacol or structure a cash settlement with it? Time will tell but I do know that any cash figure that is paid out over time is not valued by totaling the sum of the payments. When you buy a house and pay for it over time that is not the present value of the house if you had cash in hand.