Colorado Workers’ Compensation

THE ULTIMATE GUIDE Tricks – Don’t Fall for Them Traps – Don’t Get Caught In Them What You Absolutely Need to Know

A Powerhouse of InformationCreated by:

Colorado Workers’ Compensation & Accident Attorneys

Bell & Pollock, P.C.Injury Attorneys • Champions Of The People.com

★ ★ ★Industrial-Strength

Tips for Workersand Their Families

★ ★ ★

ABOUT THE AUTHORS Gary Bell, Jr. and Bradley P. Pollock are the owners of Bell & Pollock, P.C. Gary Bell, Jr. and Bradley P. Pollock have been representing individuals against insurance companies for over 30 years. The practice of law at Bell & Pollock, P.C. is limited to accident and injury cases. Bell & Pollock, P.C., and its owners, Gary Bell, Jr. and Bradley P. Pollock, are known as Champions of the People, because they “Champion” people’s cases and causes of action against insurance companies. Hopefully you have already visited championsofthepeople.com. This is an information loaded website, designed to answer your questions. One of the most popular features is called “Meeting by Accident.” “Meeting by Accident” gives you the answers to people’s most commonly asked questions when they have been involved in an accident. Gary Bell, Jr. and Bradley P. Pollock also do a number of radio shows, all to help individual people. You can listen to the podcasts of their shows at championsofthepeople.com.

GARY BELL, JR. • Graduated2ndinhislawclass. • HewasaCaptainintheUnitedStatesAirForce. • FormerInstructorforParalegalsatArapahoeCommunityCollege. • PreviouslytaughtlawtoCPAcandidatesstudyingfortheCPAexams. • PreviouslyonBoardofDirectorsofColoradoSpecialOlympics. • HisAwardsInclude: • TheAmericanSocietyofLegalAdvocatesTop100LitigationLawyers2014. • Top100LitigationLawyersintheStateofColorado2013and2014. • TheBestAttorneysofAmericaAward. • TheSupremeCourtoftheStateofColoradoProBonoAchievementfor2012, 2013and2014. • TheNationalTrialLawyersTop100TrialLawyers2014. • TheBestAttorneysofGreenwoodVillageAward. • HepreviouslyrefereedhighschoolbasketballinColorado. BRADLEY P. POLLOCK • BradleyisaDenverNative. • HeattendedDenverUniversityundergraduateschoolandDenverUniversity SchoolofLaw. • Hisawardsinclude: • TheAmericanSocietyofLegalAdvocatesTop100LitigationLawyers of2013and2014. • Top100LitigationLawyersintheStateofColorado2013and2014. • TheNationalTrialLawyers’Top100TrialLawyers2014. • TheBestAttorneysofAmericaAward. • TheSupremeCourtoftheStateofColoradoProBonoAchievement for2012,2013and2014. • TheBestAttorneysofGreenwoodVillageAward. • HepreviouslyrefereedhighschoolbasketballinColorado.

Gary Bell, Jr. and Bradley P. Pollock formed the law firm of Bell & Pollock, P.C. in 1984.

Bradley P. Pollock

AdmittedtotheBaroftheStateofColoradoin1978,Mr.PollockhasbeenpracticingasapersonalinjurylawyerinDenvertogetherwithattorneyGaryBellJr.since1984.Hisareasofconcentrationincludeaccidentandpersonal injury law dealing with car accidents, truck accidents, wrongful death, uninsured and underinsured motorists, bad faith insurance, com-mercial property, as well as automobile/truck accidents. Mr. Pollock received his Bachelor of Science in Political Science and PsychologyfromDenverUniversityin1975andhisJurisDoctoratefromtheDenverUniversity College of Law in 1978. Mr. Pollock is a member of theColoradoBarAssociation,theDenverBarAssociation,ArapahoeCountyBarAssociation,ColoradoTrialLawyersAssociationofAmericaandtheAmericanAssociation forJustice.AsaDenver injuryandautoaccidentlawyer, he has taught litigation to paralegals at the Arapahoe Community College. Mr. Pollock is admitted to practice in all Colorado Courts and agencies,U.S.DistrictCourtaswellastheTenthCircuitCourtofAppeals.

EducationUniversity of Denver College of Law,Denver,Colorado,1978,JurisDoctorDenver University,1975,BachelorofScienceMajor:PoliticalScienceandPsychology

Bar admissions• Colorado,1978• ColoradoCourtofAppealsandSupremeCourt,1978• U.S.CourtofAppeals,1978• U.S.DistrictCourtfortheDistrictofColorado,1978

Awards• TheAmericanSocietyofLegalAdvocates Top100LitigationLawyerintheStateofColoradofortheYear2013 Top100LitigationLawyerintheStateofColoradofortheYear2014• TheNationalTrialLawyers Top100TrialLawyersfortheYear2014• MemberofColoradoTrialLawyersAssociation• MemberofAmericanAssociationforJustice

1 40

OUR WEBSITE IS:www.championsofthepeople.com

BECAUSEWe Champion People, Cases & Claims

Servicing the entire State of Colorado

Denver Office:5660 Greenwood Plaza Blvd., Suite 220

Greenwood Village, Colorado 80111

Steamboat Springs Office:505 Anglers Drive, Suite 104

Steamboat Springs, Colorado 80487

www.championsofthepeople.com

Gary Bell Bradley Pollock

Gary Bell Jr.

Practicing as an injury attorney in Denver since his admission to the Bar of the State of Colorado in 1975. His emphasis of representation not only includes personal injury, but also car accidents, products liability, truck accidents, workers’ compensation, motorcycle accidents and law. A native of New Mexico, Mr. Bell has lived in Colorado since 1974. He served approximately five years in the United States military during the Vietnam War era and was honorably discharged as a Captain in the United States Air Force. Attorney Bell has taught the law portion of the Certified Public Accountant (CPA) review course for accountants studying to pass the legal portion of the CPA Examination. As a Denver injury and auto accident attorney, he has taught litigation to paralegals at Arapahoe Community College. Mr. Bell has served on the Board of Directors of the Colorado Trial Lawyers Association. He has won multi-million-dollar cases, improving the lives of his clients.

EducationOklahoma City University School of Law, Oklahoma City, Oklahoma, 1974, Juris Doctor• Honors: With High Distinction• Honors: 2nd in his classUniversity of Oklahoma, 1972, Master in Business AdministrationUniversity of New Mexico, 1967, Bachelor in Business Administration

Bar admissions• Colorado, 1975• U.S. District Court• U.S. Court of Claims• 10th Circuit Appellate Court• U.S. Supreme Court

Awards• The American Society of Legal Advocates Top 100 Litigation Lawyer in the State of Colorado for the Year 2013 Top 100 Litigation Lawyer in the State of Colorado for the Year 2014• The National Trial Lawyers Top 100 Trial Lawyers for the Year 2014• Graduate of National Institute for Trial Advocacy• Member of Colorado Trial Lawyers Association• Member of Association of Plaintiff Interstate Trucking Lawyers of America• Member of American Association for Justice• Previous Member of Board of Directors of the Colorado Trial Lawyers Association

2

Copyright © 2015 by Bell & Pollock, P.C.

All rights reserved. No part of this book may be used or reproduced in anymanner whatsoever without written permission of the author.

Printed in the United States of America.

Gary Bell and Brad Pollock’s experience hashelped numerous people put their lives back

together again. Here are some of their awards:

39

It probably shouldn’t be complicated, but it has become very complicated and technical, with deadlines that are deadly to your case. If you don’t correctly meet some of the deadlines, or meet them appropriately, then you will lose your case, and it may drastically affect your compensation, even maybe to the extent of getting no compensation at all. We highly recommend you have an attorney represent you in the Workers’ Compensation system, with your Workers’ Compensation injuries. We have tried to give you a flavor of the “traps” and hope that this has been helpful to you.

Good Luck!

THE LAWYERS AT BELL & POLLOCK, P.C. STAND READY, WILLING, AND ABLE TO HELP YOU, ANSWER

YOUR QUESTIONS, AND ADDRESS YOUR ISSUES.

CALL US AT 303-795-5900OR IN THE MOUNTAINS AT 970-870-8989

OR ON OUR WEBSITE:CHAMPIONSOFTHEPEOPLE.COM

WE’LL HELP YOU!

3

TABLE OF CONTENTS For the Workers — by Gary Bell, Jr. . . . . . . . . . . . . . . . . . . . 4 What You Need to Know — disclaimer . . . . . . . . . . . . . . . . . 5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Expedited Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 What do these Mean? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 History of Workers’ Compensation Law in Colorado . . . . . 10 Does Colorado State Law (i.e., the Workers’ Compensation Act) Apply to Everyone? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I have been Hurt on the Job. What do I do Now? . . . . . . . . . 11 When does the Insurance Company Get Involved? . . . . . . . 12 The Insurance Company has not been involved Because my Employer Failed to Report it! What are my options? . . . . . . 13 Can I Choose my own Doctor for an On-the-Job Injury? . . . 14 What Will my Pay be while I’m Off Work? . . . . . . . . . . . . . . . 15 The Insurance Company Accepted my Permanency Rating. What Happens Now? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The Insurance Company Denied my Permanancy Rating. What next? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Division-sponsored Independent Medical Examination (aka “DIME”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 What if I Disagree with the Insurance Company through the Process? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Fatalities on the Job . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Can I get a Lump Sum Payment of my Permanent Partial Disability? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Can I settle my Claim? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Do I need an Attorney? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 What If I Decide to not Hire an Attorney? . . . . . . . . . . . . . . . 20 So Who Cares about the Legal Fight? . . . . . . . . . . . . . . . . . . 22 Will I be Fired? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Myth about Workers’ Right and Workers’ Compensation . . 23 How you get Blamed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Traps in the Workers’ Compensation System — Don’t Get Caught in Them . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

38

receive, or potentially receive, if you are over the 25% rating.

TRAP #15.

Another trap is the fact when you are off work for a substantial period of time, as a result of your work injury, the amount of money you are paid as wages gets counted against the CAP. That is going to ultimately affect the amount of money you will be or might be paid. You have to be very careful of this.

TRAP #16.

Part of the rating and “payment system” is looking at your wages, plus looking at your age. There is a formula that is not going to be covered in this book but those are two factors in the formula. They do affect your payment, and they do affect the CAP. You must know about this trap in advance.

TRAP #17.

If your Insurance Company has treated you improperly, wrongly or in bad faith, then there can be penalties claimed against the Insurance Company. As far as penalties are concerned, penalties generally have a one year statute of limitations, but Bad Faith generally has a two year statute of limitations. There are some exceptions. So if you missed the time period for a penalty you can sometimes use the penalty situation for a Bad Faith claim and hopefully, arguably, extend the statute of limitations. In any event you need to be on top of this at all times.

Hopefully, we have disclosed some, not all, of the “traps” that can harm you in the Workers’ Compensation system. Obviously this is a system that has thousands of rules and regulations. We would highly recommend that you have an Attorney represent you through this complicated system.

4 37

FOR THE WORKERS

THE WORKER:

THE ONE WHO WEARS THE HARD HAT WORKS THE SOIL BUILDS WHAT NEEDS BUILDIN’ FIXES WHAT NEEDS FIXIN’ SWINGS THE HAMMER & DRIVES THE NAIL

AND GIVES:

THEIR LABOR TIME PRODUCTIVITY HONEST WORK & SWEAT

ALL FOR AN HONEST DAY’S JOB & PAY

TO THE LABORER, THE WORKER, THE WAITRESS, THE MECHANIC, THE CONSTRUCTION WORKER, THE FACTORY WORKER, THE FARMER, THE ROAD CREW, THE LOAD HANDLER, THE COOK, AND TO THE MEN AND WOMEN WHO MAKE PARTS OF EVERY KIND, WHO BUILD THE PRODUCTS AND SEND THE PRODUCTS ON DOWN THE LINE: AND TO EVERY WORKER IN AMERICA —

WHO USES THEIR HANDS LIKE THE GLUE THAT BINDS AMERICA AND BUILDS IT FROM THE GROUND UP:

THANK YOU!

AND GOD BLESS THE AMERICAN WORKER!

BY: GARY BELL, JR.

were injured previously. They are going to want to try to deduct “something” from the compensation that they are going to pay you for your new injury, but they have a hard time doing that if you have no previous rating. They have an easier time doing that if you had a previous rating.

TRAP #13.

There are CAPS on the amount of money you can recover under Workers’ Compensation. You’ve learned by now that since the Workers’ Compensation system makes you automatically waive any suit against the employer, on a general basis, then you are destined to be in the Workers’ Compensation system that has CAPS on damages and CAPS on the amount of money you can recover. As far as the CAPS are concerned, they change every year but the basic thing is that the amount of lost wages paid to you and PPD, which is your Permanent Partial Disability (your disability rating), may have to be added together to see if you have exceeded or busted the CAP. Once it comes to the CAP and assuming your lost wages and disability come to the CAP, then you cannot get any more money. Sometimes it goes over the CAP, and if so, you cannot receive any more money, or be paid any more money, in excess of the CAP. These change over time and it is necessary to know what they are with regard to your injuries.

TRAP #14.

As a general rule ( there are exceptions), if your rating is 25% or less, then the CAP amount is approximately $78,000, and if your rating is over 25% then your CAP is approximately $156,000. What would you guess your rating would be from doctors paid by the insurance company to treat you? Do you think it would be higher than the 25% or 25% or less? If these doctors are paid by the Insurance Company and they see many patients per day, on behalf of the Insurance Company, you can see how some of them might be inclined to make your permanent rating, after MMI, at 25% or less. It is an entirely different CAP. An entirely different amount of money.You can see the numbers are approximately one half of what you can

5 36

What You Need to Know if you have beenInjured on the Job:

A Guide To Workers’ Compensation Law in Colorado

Disclaimer

The information contained herein is for informational purposes only. It is offered as a service to the public, and is not legal advice or a substitute for legal counsel. This information does not constitute advertising or solicitation. Advertising is not our intention.

The information contained in this booklet may or may not reflect the most current legal developments; accordingly, information in this booklet is not promised or guaranteed to be correct or complete, and should not be considered an indication of future results. Bell & Pollock, PC expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this booklet.

Because legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel. The materials in this booklet do not necessarily reflect the opinions of Bell & Pollock, PC, or any of its attorneys or clients.

This booklet is not intended to create, and does not create, an attorney-client relationship between you and Bell & Pollock, PC, and you should not act or rely on any information in this booklet. Bell & Pollock, PC’s intention is to provide this information as a convenience to you. Your use and reliance on this booklet is at your own risk. It is not intended as professional counsel and should not be used as such. You should contact your attorney to obtain advice with respect to any particular issue or problem. This booklet is for general informational purposes only.

be the same disc (assuming, for example, L3 to L4) and the same part of the spine. But if it’s a “different injury,” a different fracture, a different compression fracture, herniated disc, as, opposed to a bulging disc, for example, then you may have the ability to take the position that it’s a different part of the body, and a different injury. This is to try to avoid the subtraction of your previous disability rating to the “same part of your body” from your current rating with your current employment. This is all for them to try to save money. There are other ways too numerous to mention here but you probably need the services of an attorney on many, if not most, of these issues herein.

TRAP #11.

Let’s take the example that you have a previous injury before you came to your current work and the previous injury was not a Workers’ Compensation injury and was not one that you received “on the job” from a different employer. Since it was not a previous Workers’ Compensation injury, but still a previous injury, there are ways to try to avoid them apportioning anything to the previous injury and subtracting your benefits as shown above. A good example would be if you were in a previous car accident (not on the job), you were injured in the previous car accident, and you received injuries in the previous car accident to your low back. Then you injured your low back again, on the job. Then there are arguments to be put forth that they cannot apportion, and cannot subtract your benefits because the “previous injury” was not a Workers’ Compensation injury.

TRAP #12.

Also, along these lines, assume that you had a prior Workers’ Compensation injury, with a different employer and that you now have injured the same body part that you had injured before. We are assuming low back in this example. You are currently on the job, you reported the injury to your employer as you are required to do. Assume also there was “no rating” from your previous employer at the time that you

6 35

INTRODUCTION

We at Bell & Pollock, P.C. are writing this book for you, the Worker, to help you understand the very basics of the Workers’ Compensation system and Workers’ Compensation claims.

Suffice to say, there are thousands of rules and regulations governing Workers’ Compensation, employers, and workers. This is what lawyers call “micro managing” an area, meaning having thousands of Statutes, Rules, and Regulations covering a specific area. In this case, Workers’ Compensation.

What if we could show you?

EXPEDITED REMEDY

In the early days, the employee had a cause of action by way of civil suit against the employer. This led to long, drawn-out proceedings, civil district court trials, jury trials, etc. The Workers’ Compensation statutes were designed to provide a “quicker” remedy to the worker, and although it doesn’t seem so sometimes, the remedy is quicker than a district court civil litigation trial or lawsuit with a jury.

However, for the expedited process (again, some don’t think it’s expedited) certain things had to be given up. One was a civil right to sue your employer and collect money damages from the employer. The other was, under the Workers’ Compensation System, the employee usually gets less Compensation than he or she would if they were allowed to sue in District Court. However, as stated, there are no suits allowed in District Court and the Workers’ Compensation System is the exclusive (there are some exceptions) system to use when one has been injured on the job.

So, to be entitled to Workers’ Compensation, one must be injured “on the job” and “in the course and scope of employment.”

gets money paid back to it, i.e. subrogated, by the insurance company of the at-fault party who caused the crash, for any economic losses. A good example is medical bills because that’s an economic loss. The Jorgensen case also held that the Workers’ Compensation insurance carrier does not get paid back (does not get subrogation) on non-economic losses recovered from the third party. This usually creates a fight. You want to be very careful on how you proceed with regard to a Workers’ Compensation claim, and the car claim, once you have been involved in an “on-the-job” car crash, vehicle crash, van crash, or truck crash while you are on the job.

TRAP #10.

Another trap is if you are working on the job, you are injured and you report the injury to your employer, and then your employer says that you had an injury to the same part of your body previously and that it was a previous Workers’ Compensation injury with a different employer. What they are trying to do is indicate that you were injured on the same part of your body in a previous Workers’ Compensation injury with a previous employer, and/or a previous employment, and that you now are claiming that you have an injury, on your current job, to the same part of the body. They want to try to deduct from your current benefit the amount of the previous rating. An example would be that you previously injured your low back at a different employer and received an 11% disability rating. Now assume you have been injured again, on the job, with an injury to your low back (they will claim the same body part) and your rating now is a 15% rating. They want to subtract the previous 11% rating from the 15% current rating to pay you only a 4% rating amount, which will result in a much lower dollar amount payout than you might otherwise receive. This is a trap waiting to happen. You need to try to avoid this and there are several ways to try to do it. One of the best ways to try is to be able to scientifically and medically prove that your injury is to a different part of the body (even though it may be the same general area like the low back). The injury may even

7 34

WHAT DO THESE MEAN?

As a preface to this thought, and as used in the Workers’ Compensation Act, the term “injury” encompasses not only industrial accidents but occupational diseases as well. Thus, an employee must establish that his/her industrial injury or occupational disease “arose out of” and “occurred within the course and scope of his/her employment,” all of which necessitated medical treatment and caused his/her need for medical treatment. The statutory cite is C.R.S. §8-41 301(1.1).

So there must be what many call an “industrial accident.” This means that the accident is traceable to a time, place, and event, and related to employment.

A good example is when a roofer, working on a roof, falls off the roof and injures himself. This is clearly an “on-the-job” accident. There may be some questions as to the violation of safety rules by not having the appropriate harness, but this is nevertheless a work- type injury.

There has been much litigation as to the phrases “in the course and scope of” and “arising out of employment.” In essence, the injury/incident has to be sufficiently related to the employment and to related duties and obligations so that it is sufficiently related to the actual work. This is essential to be considered part of the Workers’ Compensation System. Other examples may include: driving a truck on errands given to you by the employer; house calls; driving on a construction site; working heavy machinery; and delivering copiers. Those are merely some examples.

The main thread that runs through these is if the injuries happen during a job or assignment that is “reasonably incidental” to the employment itself. Then it may be covered under the Workers’ Compensation System.

Sometimes employment job descriptions or employment requirements have to be looked at to see if the injury was “on

you are injured in a car crash:

A. While on the job.

B. Which was caused by a third person.

We are assuming a third person, not related to your employment, caused the car crash, truck crash, van crash, or vehicle crash.

Therefore you have the ability to proceed under both systems, meaning you have the right to file a Workers’ Compensation claim for your injuries and your medical treatment, and you have the right to make a claim against the at-fault party (other driver) for your injuries that you received in the crash. This is true even though you are filing a Workers’ Compensation claim. YOU CAN DO BOTH. YOU CAN DO BOTH AT THE SAME TIME. The issue here is that the Workers’ Compensation carrier (Insurance Company) always wants subrogation (meaning being paid back) as to monies they paid on your Workers’ Compensation injuries, through the Workers’ Compensation system. This would apply to economic losses that the insurance company paid out. A good example would be if they paid for your medical bills. For example, if they paid $20,000 of your medical bills, and you have a recovery from the at-fault party (who is the other driver and third party), then the Workers’ Compensation insurance carrier wants to be paid back the money that they paid you, or paid on your behalf. You have to be very careful here because there are several traps here. One of the main traps is that the Workers’ Compensation insurance carrier does not always get subrogation (meaning does not always get paid back) on all the monies that it spent on your behalf. There’s a case called Jorgensen v. Colorado Compensation Insurance Authority. This was a case decided in Colorado that deals with what the Workers’ Compensation insurance carrier is entitled to be paid back and what it is not entitled to be paid back, even though it might be claiming the “entire amount.” Basically the Jorgensen case held that: The Workers’ Compensation carrier

8 33

the job” or “in the course and scope of employment.”

There has been much litigation in this area about these two phrases which could help determine whether or not Workers’ Compensation may apply or whether some other law may apply.

Once you have suffered an “on the job” injury, you are required to report the injury to your employer. The employer is then required to take certain actions to open up a Workers’ Compensation Claim. Benefits that you can potentially look forward to include:

1. Medical care and benefits, paid for.

2. Wages for lost time from work.

3. Final Resolution of the claim, with analysis of, and payment for, your permanent injuries.

There are certain parts of a Workers’ Compensation claim that are essential to be handled appropriately, meaning time wise. That’s not to say that all aspects shouldn’t be handled appropriately, but there are points and/or procedures in each Workers’ Compensation Claim that are critical time-wise, with absolute deadlines. If you miss these deadlines you can suffer drastic consequences, including losing your case or claim entirely and not being paid at all.

You must first look for a “GA,” General Admission of Liability, from the Insurance Company. This means that the Insurance Company and the employer are not contesting whether you were hurt or injured “on the job” nor “in the course and scope of your employment” and, in fact, just the reverse. The employer and insurance company are admitting that you were injured “on the job” and that you were “in the course and scope of employment,” and that you are entitled to some benefits. They usually admit to liability for being on the job (so

TRAP #8.

We cover in this book the procedures that you need to follow with regard to requesting a “change of physicians.” You may initially have to go to a doctor that you do not like, a doctor that doesn’t really pay attention to you or seem to care about you, and you may want to change physicians. It is important that you follow the rule. The rule basically states that you may ask you employer or your employer’s Insurance Company for permission to change your doctor at any time. This may or may not be granted. You should know that if you change doctors without requesting permission in writing, the Insurance Company may refuse to pay your bills. So what do you do? You follow the procedures in the rule. They define the situation where you can change doctors if you so desire. They basically tell you that if you originally selected a doctor from a list provided to you by your employer, you’re entitled to a one time change to another doctor which is on that list, provided that you let all the required parties know of the change within 90 days after your injury and before you reach Maximum Medical Improvement. As you recall Maximum Medical Improvement means that you are not going to improve any further and that you are as good as you are going to get. So you have to do it within 90 days after your injury and before you reach Maximum Medical Improvement (MMI). You must complete a form, sign it, and provide the form to the current and future doctors and the representative whose name appears in the case. You may also request permission to change your doctors by writing a letter to your adjustor at the Workers’ Compensation Insurance Company. Your adjustor is required to give you an answer, and respond within 20 days from the date the request was “post-marked” or “hand- delivered” to the Insurance Company. This is really important. If no decision has been given to you within the 20 days, you can see the doctor of your choice. However, we must caution you and remind you that you must be able to prove that you mailed the letter and that the Notice was appropriately given.

TRAP #9.

Another potential trap comes in the fact that you may be driving a vehicle on the job and you have a crash. That means

9 32

you do not have to go to a hearing to prove that) and usuallyfile a general admission (GA) as to your medical benefits. They usually do not make any further General Admissions and therefore you have to go through the process, make sure you meet all of the deadlines, jump through the legal hoops and over the hurdles, at which time, if legitimate, you can be paid for your injuries under the Workers’ Compensation System.

NOTE AND WARNING: The authors of this book warn you and give you notice, herein, right now, that the Workers’ Compensation System is loaded with time deadlines, it is pre-managed and micro managed by thousands of rules, regulations, and statutes, and this is one area of the law where you likely need an attorney to represent you. Sometimes, we recommend to people that they don’t need an attorney for a given case or situation. However, in the Workers’ Compensation System, the worker does need representation from the beginning.

At Bell & Pollock, P.C. we have been representing Workers for over 25 years and have successfully helped numerous people put their lives back together again, successfully prosecuting their claims through the Workers’ Compensation System. The good news for the worker is that this representation is done on a contingency basis, which is usually 20%, subject to some exceptions, like appeals, etc.

The more you know about the Workers’ Compensation System, the better off you’ll be.

So let’s get started!

Read on and learn!

doctor you need to report to the doctor that you have tried to do the work, that you could not do the work for whatever legitimate, truthful reason and that you want him or her to re-evaluate your situation immediately.

TRAP #6.

As to your medical records, you should be automatically furnished your medical records with regard to injuries. This is very important. When you are treating in the Workers’ Compensation system, the Insurance Company covering your Workers’ Compensation injuries will get your medical records from the doctor, hospital, health care provider, etc! They are required to furnish you the medical records so that you can see what is going on. If you are not receiving the medical records, then you don’t really know what the doctor is saying about you in writing to the Insurance Company or to anyone else. You must insist on obtaining all of your medical records from the doctors and from the Insurance Company once they receive them. You have a right to understand and know what your conditions are, what the diagnoses are, what your treatment plan is, and what the doctors are saying about you. Not only to you personally but also in the records.

TRAP #7.

Another trap involves you being injured on the job, you report the injury to your employer, you’re treating with doctors over time, and eventually you reach a point in time where the Doctors say that you have reached “MMI,” which means Maximum Medical Improvement. They then give you an “impairment rating” and proceed accordingly. The Insurance Company should file a Final Admission of Liability (FA), showing you exactly what their Final Admission of their Liability is to your injuries, to your compensation, to your disabilities, and/or to your medical bills. If they delay filing or do not file a Final Admission of Liability as required, they can be subject to penalties and bad faith lawsuits.

10 31

History of Workers’ Compensation Law in Colorado

During the early 1900s, state legislatures recognized the need for a system of workers’ compensation insurance. As a result of the Industrial Revolution, work-related injuries rose dramatically, in both number and severity. Civil lawsuits against employers took years to settle and employees often ended up depending on welfare or the charity of others.

In 1915, the Colorado General Assembly passed the Colorado Workers’ Compensation Act. Employers were mandated to cover medical care and provide wage replacement for injured workers regardless of fault; in exchange for this protection, workers’ compensation became the exclusive remedy for workers injured on the job. The Colorado Workers’ Compensation Act provides the procedure for providing medical treatment and compensation for employees hurt on the job. It is the only recourse for employees. Employers are required to purchase insurance for their workers, to cover on-the-job injuries. Workers’ compensation is intended to protect businesses from unnecessary lawsuits and employees from financial difficulty. The insurance covers full-and-part-time employees from the first day on the job until termination of employment. If an employer fails to comply with the law which requires them to carry compensation insurance, or allows their insurance to lapse, an employee can claim the benefits allowed by law plus an additional 50% of those benefits.

Does Colorado State Law (i.e., the Workers’ Compensation Act) Apply to Everyone?

No, in certain circumstances Federal Law applies. Federal workers’ compensation law applies in only four specific situations. They are:

Energy Employees Occupational Illness Compensation Program (EEOICP)- This provides lump sum compensation payments for eligible persons employed with the Department of Energy working on nuclear weapons.

the doctor indicating that your restrictions have been violated. Therefore, they say that you are suddenly now responsible for any aggravation or further worsening of your injuries, that they do not owe you the money for those injuries, and that you caused your own problems. Do not fall for this and do not get caught in this trap.

TRAP #4.

You are injured on the job, you report the same to your employer which you are required to do, and you are treating with doctors. One or more of the doctors returns you to work verbally, indicating that you have no restrictions and that you can do any part of the job whatsoever. You feel that you still have restrictions, you feel that you cannot do “any job” and that you are limited physically and/or mentally because of your “on the job” injuries; yet the Doctor has returned you verbally to work with no restrictions whatsoever. If there are no restrictions, your employer can ask you to do any job that you are required to do, even though it hurts you more and even though it may injure you in the future. If you are “good” to return to work, with no restrictions, then you must request the Doctor put that in writing, put that in the notes, and also give you a prescription note, if possible, indicating that you are to return to work with no restrictions. There is an entirely different set of procedures of what you should do, and follow, once you go back to work if you cannot perform the work because of your injuries. At a minimum, you have to report that to your supervisor and/or employer. Immediately.

TRAP #5.

The “trap” above in #4 may be one where the doctor sends you back to work too early, without restrictions. If you cannot do parts of the job, or all of the job, you need to inform your employer immediately, and you need to go back to the doctor as soon as possible. You also need to call the doctor or the doctor’s nurse, report to them the problems that you are having, and confirm it in writing. Once you go back to the

11 30

Federal Employees’ Compensation Act - This act provides compensation and medical benefits for federal and postal employees.

Division of Longshore and Harbor Workers’ Compensation (DLHWC)- This covers persons employed oversees on military bases and employees working under contract with the U.S. government for national defense or public works. It also covers persons employed in jobs occurring in “navigable waters of the United States, or in adjoining areas customarily used in the loading, unloading, repairing, or building of a vessel.”

Black Lung Benefits Program - Provides compensation for coal miners totally disabled from working in the mines.

Therefore, if one of these situations applies to you, the remainder of this booklet will not apply to your situation, as this booklet speaks only to the Colorado Workers’ Compensation Act from here forward.

I have been Hurt on the Job. What do I do Now?

If you experience a life or limb threatening injury on the job, seek immediate medical attention at the nearest emergency room and then notify your supervisor in writing when your condition is stable. A life or limb threatening injury means an injury that you believe threatens a portion of your body or your life in such a way that immediate medical care is needed to prevent death or serious damage. In all other instances, notify your employer or supervisor that you have been injured before obtaining any medical care. All injuries, no matter how small, should be reported to your employer.

If your employer has designated a list of medical providers before or at the time of the injury, you will be required to choose one of the providers on that list for medical care. If you choose to seek your own medical care (for instance, with

treatment, and other vital areas of the Workers’ Compensation system that affect you, your life, and your ability to work. And your ability to recover. Do not be fooled into believing that an employer has actually formally filed a Workers’ Compensation claim, when in fact they haven’t. One of the things you can look for to solve this problem is to ask for, and receive, the “WC” number, which means “Workers’ Compensation” number. You can follow up with your attorney, but a good indication that a Workers’ Compensation claim has been filed with the Workers’ Compensation Division is that there is a “WC” number assigned to your claim.

TRAP #2.

You can be sent to the Company Doctor all day long, you can be treated by the “Company Doctor” and if you don’t have a formal claim filed, then you may not be entitled at all to certain disability benefits, lost wages, compensation for your injuries, or any other matter that you are entitled to under the Workers’ Compensation system. You must be careful of this trap.

TRAP #3.

You’re injured on the job, you report the injury to your employer, as you are required to do, you are going through the Workers’ Compensation system and treating with doctors. Then one or more of the doctors places you on “restrictions.” Then one or more of the doctors returns you to work and says that you are able to work within these “restrictions.” Then you find that your employer, or one of the employees (your supervisor), violates your restrictions, instructs you to do work which is a violation of your restrictions and you do nothing about it. This is a trap ready to harm you. In many ways. If you are working, and violating restrictions (either voluntarily or by being forced to) given to you by a doctor, you may ultimately be blamed for any further injury and you won’t be covered for further treatment or benefits. They will say that you have violated the restrictions, you weren’t supposed to, you didn’t report it to anyone, and you didn’t go back to

12 29

your family physician), it may result in nonpayment of medical benefits and you may be liable to pay your own medical costs. If your employer does not direct you to a medical provider, you may seek treatment from the provider of your choice.

By law, you must notify your employer in writing within four working days of an injury, even if you have advised them verbally. If you do not report your injury to your employer in writing within four working days, you may be penalized and lose up to one day’s compensation for each day of delay, provided that your employer has posted a sign requiring four days written notice. You may still file a claim for benefits even if you are late reporting the injury to your employer.

When does the Insurance Company Get Involved?

It is the employer’s duty to report the injury to their insurance company within ten days from the time the employee reports it. This is what triggers your workers compensation claim. Once you miss more than three days or three work shifts, or the work related injury results in permanent physical impairment, the insurance company has 20 days from the date the employee reported the injury to determine if benefits will be paid. In doing this, the insurance company will either admit or deny your claim. When they admit your claim, they file an Admission of Liability. When they deny the claim, this is called a Notice of Contest.

If you receive an Admission of Liability, the insurance company has determined that you are eligible for benefits and will start paying for your authorized medical benefits and compensation for your lost time from work if you have missed more than 3 work days. Compensation is paid directly to you every two weeks.

If you receive a Notice of Contest, the insurance company has denied your claim for one or more reasons, including that the employer does not believe the injury is work related, or they

TRAPS IN THE WORKERS’ COMPENSATION SYSTEM —DON’T GET CAUGHT IN THEM

We’ve tried to impress upon you that the Workers’ Compensation system is micro-managed by thousands of rules and regulations, including being micro managed by numerous complicated laws and statutes. There are many deadlines that are deadly to your Workers’ Compensation claim if you do not meet them. Also, there are certain things that can happen in a Workers’ Compensation case that you need to be aware of. We can’t cover all of them in this book. However, we have included some of the “traps” in this book. These are for your benefit. To educate you. To teach you. And hopefully give you the edge. If you are aware of these “pit falls” then hopefully your case, your claim, and your life will not be affected by them. They include:

TRAP #1.

You are injured on the job. You report the injury to your employer and you “think” the employer is following through by “opening” a Workers’ Compensation claim with the Workers’ Compensation Division. In fact, sometimes you are led to believe this has happened. Otherwise you are just left with “silence,” and you assume that the Workers’ Compensation claim has been filed. We have found one of the traps in this area is that the employer and/or Insurance Company lead you, either expressly or implicitly, to believe that a Workers’ Compensation claim has been formally filed with the Workers’ Compensation Division, thus putting you in the “system” and allowing you the protections of the system. Sometimes employers do not file any claim whatsoever, even though they send you to a “company doctor” and even though they give the appearance that a Workers’ Compensation case has been formally filed. If no Workers’ Compensation claim has been filed, then the Company’s “safety record,” remains perfect, immaculate, and intact, and there is no formal reporting of the claim. Further, you miss out on the entire Workers’ Compensation process with regard to certain doctors, medical

13 28

do not have complete information and further investigation is necessary. If the workers’ compensation insurance company denies your claim, you may be responsible for all medical bills associated with the illness or injury. You may then be eligible for coverage through your private health care insurance policy. If you feel your claim has been incorrectly denied, there are several options available to you, which are discussed below. You should seek the advice of an attorney, or you can contact the Division of Workers’ Compensation. Certain time limits apply to your options. It will be important to act fast in exploring the options available to you.

The Insurance Company has not been Involved Because my Employer Failed to Report it! What are my Options?

Employers are under a legal obligation to report the claim but may fail to do so because they do not have proper insurance, or they do not want their insurance premiums to increase. Whatever the reason, if your employer does not properly report your claim to the insurance company, you should protect your future rights by filing a claim with the Division of Workers’ Compensation. To do this, you go to the Colorado Division of Workers’ Compensation website, or call the Colorado Division of Workers’ Compensation to obtain the proper forms. The Division will initiate the process by sending the claim to your employer’s insurance company. If your employer does not have proper insurance and you are thereafter awarded compensation, the employer will be personally liable to pay your benefits plus an additional penalty equal to half the wage loss benefits you are owed. You have two years from the date of your injury (or three with a reasonable excuse) to file your claim with the Division of Workers’ Compensation.

The Insurance Company has Accepted Responsibility for my Injuries. What Happens Next?

Once the insurance company accepts responsibility by filing an Admission of Liability, the medical provider will seek

with the law, you should comply with the safety protocols and procedures, you should use the safety equipment, and you should truthfully report your physical abilities to your employer. It is amazing how they can search for, and try to find, matters concerning your work, your abilities, etc., when you have worked there for several years and had no problem whatsoever.

As always you can call the Law Firm of Bell & Pollock and ask any question that you want. Our telephone number is 303-795-5900 and our website is championsofthepeople.com

WE REPRESENT WORKERS AND WE HAVE FOR YEARS.WE ARE HERE TO PROTECT YOU.

14 27

payment for the medical expenses directly from the insurance company. The insurance company will pay for all reasonable and necessary medical expenses if you receive your care from the doctor designated by the company to provide your care. If that provider refers you for additional treatment with other providers, those charges will also be covered. You will not be billed for the medical treatment you receive. If you receive any bills, send them to the adjuster for payment.

You will also be reimbursed for medical supplies, prescriptions, and mileage to and from your medical appointments.

Can I Choose my own Doctor for an On-the-Job Injury?

The employer has the right in the first instance to designate the medical provider that injured employees must use. If your employer does not do so at the time of the injury, you may choose your own medical provider. In most cases, the employer is required to provide you with a list of approved providers so you have at least some right of selection. If you go to a doctor that is not authorized, you may be responsible to pay your own medical bills.

After the claim is filed, the insurance company may request that you be examined by another doctor of its choice, at its expense. If you do not go to this examination, the insurance company may ask the Division for permission to stop your benefits.

You might have rescheduled appointments, which you must honor. If you do not like your doctor, you may ask permission from your employer or your employer’s insurer to switch doctors, which may or may not be granted. If you are within 90 days of your injury, and you chose a doctor from an employer-provided list of doctors, you can change once as a matter of right. To do this, a particular form must be completed, signed by the former doctor and the future doctor,

they allege that you willfully misled your employer about your physical ability to do a certain job, then they can use that to try to reduce your benefits as well. You must be truthful with regard to your physical abilities. They usually have you fill out employment sheets, employment checklists, and/or employment questionnaires with regard to the same subject. You must be consistent, accurate, and complete.

6. Obviously the use of drugs or alcohol, which causes an injury, can be used against you to reduce your own benefits. That’s pretty much just common sense. However, they must prove that it caused your injury and/or contributed to your injury.

7. If you are receiving Social Security Disability benefits, then that can be used to reduce your benefits. This is a little like the unemployment benefits covered above.

8. Obviously, if you return to work either “full-time” or “part-time,” then they are not going to be paying you benefits for being “off work” when you are working.

The actual amount of the reduction of benefits is based on your individual facts in your case. Just keep in mind that if you return to employment you must inform the Insurance Company that you have returned to employment and you must inform the Insurance Company of any other source of income that might reduce the compensation benefits. This would include Social Security Disability benefits and/or Unemployment Compensation.

This notice we are talking about must be sent by you to the Insurance Company within 20 days after learning of any payment or award and failure to so report this, under the statutory Workers’ Compensation scheme, may result in suspension of your benefits.

This is very important to the worker. The overriding theme or theory of this section is to show you that you must comply

15 26

as well as the representative listed on the provider list. You should contact the Division or your attorney for more specifics before switching providers so proper procedure is followed. If proper procedure is not followed, you risk the insurance company not paying for your care and treatment.

What Will my Pay Be while I’m Off Work?

Temporary Disability:

There are two types of temporary disability benefits that may apply to you: temporary total disability and temporary partial disability. These apply during the time you have not fully recovered from your work related injury and are missing time from work or working at less than full pay. Temporary benefits continue until you are able to go back to work, whether at regular or modified duty, when you are given a medical release to go back to work, or when you are deemed to have reached maximum medical improvement by your doctor. Maximum Medical Improvement (MMI) is when your treating physician feels that you are 100% or that you are as good as you are going to get.

Maximum medical improvement triggers a new set of procedures related to your permanent impairment, which are explained in the next subsection.

Your temporary benefits are calculated at two-thirds of your average weekly wage (up to a maximum as allowed by law). If your weekly wage varies, an average of your gross wages/salary, commissions, overtime, tips, per diem, board, reasonable value of rent, housing or lodging, and your cost of contributing to a group health insurance plan, may each be included in the calculation. Your average weekly wage is typically based on your earnings from the last twelve weeks of work prior to the injury. If you are on temporary total disability, you receive the full amount. If you are able to work part time or on modified duty, you will receive a portion of the 2/3rds of

HOW YOU GET BLAMED

Yes, even in the Workers’ Compensation system, the employer and/or the Insurance Company for the employer tries to blame you, all for the reason of saving money and for reducing your benefits that you may otherwise receive under the Workers’ Compensation System.

So the question you ask is how can I be blamed?

Below are lists of some of the ways that you can be blamed, with the objective of the Insurance Company to “reduce” your benefits, and to reduce payment to you.

READ AND HEED

1. Believe it or not you can have your benefits reduced by not paying child support. If you owe child support, that is a legitimate ground that can be used to reduce your benefits.

2. If you are receiving Unemployment Insurance Benefits, that can be used against you.

3. Safety devices. Let’s talk about safety devices. Every company involved in heavy type of Labor Employment has safety rules, safety procedures, and safety protocols. If you fail to follow these and/or you fail to use a safety device, then it can be alleged that your benefits can be reduced because you didn’t employ the appropriate protocols, the appropriate procedures, and/or the appropriate safety equipment. You must use safety equipment religiously and you must follow the safety protocols and rules.

4. Along these same lines, they have grounds for you willfully failing to obey a reasonable safety rule. That can be used against you to reduce your benefits as well.

5. There are certain “catch all” provisions in every statute and statutory scheme in the Workers’ Compensation System. If

16 25

your average weekly wages based upon your ability to work. This is referred to as temporary partial disability.

Your temporary benefits may be reduced due to your actions in some circumstances, including if you willfully failedto use a safety device, you willfully failed to obey a safety rule, you willfully misled your employer about your ability to perform your job, or if your injury resulted from drug or alcohol use. Your benefits may also be reduced if you owe child support, if you are receiving social security disability benefits, if you are receiving unemployment, or if you have received workers’ compensation benefits for the same injury. Benefits may be reduced or canceled if you return to work at the same job or another job.

If you are not receiving your payment as scheduled, first contact the insurance adjuster to see if the issue can be worked out. If it cannot, contact an attorney, or the Division of Workers’ Compensation Customer Service Unit. If you are not getting paid properly, you or your attorney can ask the Division to impose a penalty on the insurance company.

Keep in mind, workers’ compensation law does not require your employer to hold your job for you. Other state and federal laws may require them to, but when all is said and done, if you can no longer perform the duties your job requires, your employer can, and likely will, terminate your employment.

Permanent Disability:

If you are unable to fully recover from your work related injury, your doctor will determine if your injury is permanent. This is usually done through a referral to another doctor who will assess if any functional impairment has resulted from the injury. If there is a finding of functional impairment, the doctor will assign a rating based upon certain approved standards. The insurance company then determines whether they will accept that rating, or contest it. The result of both of these scenarios is discussed in the following sections.

rating it really doesn’t make any difference to my claim. I’ll be paid the same amount anyway.

• I don’t have to file any documents in the Workers’ Compensation System because it’s all automatic and the employee is protected.

• There is no Statute of Limitation for the accruing of penalties against the Workers’ Compensation Insurance Company.

• I will always be treated fairly.

As you can see, there are numerous myths about the Workers’ Compensation System, about injured workers, and about the treatment they receive. You need to clearly understand these myths, clearly understand the system, and you need to clearly understand that you need help in this area because it is so micro-managed with rules, regulations, and statutes.

You also need to understand that the Insurance Companies, who are in the business of Workers’ Compensation Insurance coverage daily, have their own lawyers.

Why?

You have to ask yourself why an Insurance Company that does nothing but cover injured workers has its own lawyers?

Time and time again?

Why?

You should also realize by now that you have to absolutely meet the required deadlines, some of which are absolutely fatal to your claim if you don’t fully, and appropriately, comply.

If you have any questions with regard to any of these “myths” or anything involved in the Workers’ Compensation System or with you and your injuries, you can always call the Law Offices of Bell & Pollock, P.C. at 303-759-5900 or you can go to our Website at championsofthepeople.com.

WE’RE HERE TO HELP YOU AND GLAD TO DO IT.

17 24

There are three types of permanent impairment. The firstis scheduled impairment, where a loss of function affects the toes, feet, legs, fingers, hands, arms, vision, or hearing. The next is a whole person impairment, which is where the loss of function affects body parts not listed in the schedule, such as the spine, torso, pelvis, or lungs, or a mental impairment. The final category is Permanent Total Disability, where you are deemed unable to earn any wage ever again. Permanent Total Disability includes compensation for future lost wages. Scars or disfigurements caused by the injury and in public view can entitle an injured worker to just over $4,800, and extensive disfigurements can entitle a worker up to $9,600. These amounts are adjusted yearly.

The Insurance Company Accepted my Permanency Rating. What Happens Now?

If the Insurance Company agrees with the functional impairment rating assigned to you by the doctor, then the insurance company will file what is called a “Final Admission of Liability.” This is a statement that outlines what has been paid to you so far, and what is still owed to you, if anything. If you disagree with the final admission, you have 30 days to object in writing. This deadline is important, as you will waive your rights to object after that date.

Additionally, you must also do one of two things to pursue your objection.

(1) If you disagree with the doctor’s determination of your date of maximum medical improvement, your impairment rating, or your need for further treatment, you need to file a form called the Notice and Proposal to Select an Independent Medical Examiner. This will start the process of obtaining a second independent medical opinion through the Division of Workers’ Compensation called a Division-sponsored Independent Medical Examination or DIME, explained below in detail.

only have one remedy at a time: namely, I have to finish my Workers’ Compensation claim before I have any claim with regard to the car accident case.

• The Insurance Company will be fair in figuring out my “average weekly wage” to pay me for the time that I cannot work.

• I can never change doctors once the Insurance Company and the Employer tell me what Doctors to see.

• If I just do what my supervisor tells me, and what my Employer’s Doctor tells me, I will be treated fairly and I will be ok with regard to payment for my disability.

• If the Insurance Company does not file a General Admission of Liability then they are still required to pay me for my disability, over and above my lost wages.

• There is no cap on the amount of money I can recover under the Workers’ Compensation System.

• If I am sent to my Employer’s Doctor, then my Employer automatically opens a Workers’ Compensation claim with a “WC number.”

• Once I get to MMI (Maximum Medical Improvement), then the Insurance Company automatically files a Final Admission of Liability.

• The Workers’ Compensation Insurance Company can never be guilty of Bad Faith Insurance Practices.

• There is no Statute of Limitation with regard to filing a Workers’ Compensation claim.

• If I had a previous Workers’ Compensation injury, and if I have a subsequent Workers’ Compensation injury with a different employer, then neither my current employer nor the Insurance Company can subtract out the impairment rating from my previous injury to affect my current payment.

• I had a Workers’ Compensation injury prior to being injured on the job currently. Since there was no prior impairment

18 23

(2) If you have any other disputed issues, you mustcomplete an Application for Hearing and send it to the Office of Administrative Courts.

In both cases, the forms are due within the same 30-day time period. These forms must also be sent to the insurance carrier. These steps are rather complicated, and you should seek the advice of an attorney to ensure the procedure is properly followed to protect your interests.

The Insurance Company Denied my Permanency Rating. What Next?

The Insurance Company will proceed with the same steps as described above in the scenario that they, rather than you, disagree with either the date you reached maximum medical improvement or your impairment rating. The only difference is that if the insurance company disagrees with the impairment rating, they will file the Notice and Proposal to Select an Independent Medical Examiner, and they pay for the exam.

Division-sponsored Independent Medical Examination (aka “DIME”)

A Division-sponsored Independent Medical Examination (DIME) is the next step when either you or the insurance company, disagrees with the doctor’s impairment rating or the date of maximum medical improvement. The party that disagrees requests a DIME. The following is a brief outline of the process:

(1) The requesting party completes the paperwork, including the Notice and Proposal for Independent Medical Examination within 30 days of the date of the final admission.

(2) The requesting party arranges to pay for the DIME (the fee is usually $675).

(3) The parties have 30 days to select a DIME physician.

MYTHS ABOUT WORKERS’ RIGHTSAND WORKERS’ COMPENSATION

• Since I am injured on the job, my employer will take care of me.

• I don’t need an attorney because the Insurance Company will be fair to me.

• I don’t need to know all the rules and regulations applying to the Workers’ Compensation System. I’ll be just fine.

• Since I am being sent to Insurance Company Doctors, selected by either my employer or its Insurance company, surely they will be fair to me. I have nothing to worry about.

• I have faith in Doctors, especially Workers’ Compensation Doctors, and therefore I don’t think they would return me to work prematurely without restrictions and without protection.

• The Insurance Company owes duties to me because I am a Workers’ Compensation claimant and have been injured.

• The Doctors will protect me because I’m involved in the “Workers’ Compensation System.”

• Once I reach MMI (Maximum Medical Improvement) in my Workers’ Compensation treatment, then I don’t have to do anything special to obtain medical treatment in the future.

• Once I reach MMI in my Workers’ Compensation treatment, then I don’t have to do anything special to be paid.

• Once I close out my case and receive compensation to be paid for my disability, my medical treatment will automatically continue and be paid for by the Insurance Company.

• If I am hurt “on the job,” while in a car accident (such as driving a van, company car, or on a sales call) then all I have to do is file for Workers’ Compensation Insurance and the car accident, crash, and damages will take care of themselves.

• If I am “injured on the job,” while I am driving a car, I can

19 22

The parties can either agree (which virtually never happens),or the Division will designate a panel of three physicians, from which each party strikes a physician. The remaining physician will conduct the DIME.

(4) Within 5 business days after the doctor is selected, the requesting party must schedule the exam to occur between 35 and 50 days later.

There are then several deadlines pertaining to notification of the DIME once the physician is selected, to the production of relevant medical records to the physician, to the timeliness of payment, and to the deadline for the DIME doctor’s report. It is important that you understand and meet these deadlines, as failure to do so can affect your rights. Please consider consulting an attorney if you are unsure of the deadlines.

What if I Disagree with the Insurance Company through the Process?

At any point where you disagree or are unable resolve a problem, a formal hearing can be requested. At the hearing, an Administrative Law Judge decides benefits, if at issue, and/or all other issues upon which there are disputes. Both sides can present evidence, and a record is made, but there is no jury.

Fatalities on the Job

Colorado Workers’ Compensation law provides for weekly payments to the surviving dependents and up to $7000 for funeral expenses. While the weekly wage is calculated in the same manner as temporary total disability benefits, there is both a minimum and maximum benefit rate. Payments are made for the life of a dependent spouse or upon remarriage. Upon remarriage, and if there are no dependent children, a lump sum of two years of benefits is paid. If there are dependents, the spouse’s benefits are reapportioned among the remaining dependents. Dependents are defined as children until age 18, or age 21 if enrolled full-time in school. Thereafter, the benefit stops.

SO WHO CARES ABOUT THE LEGAL FIGHT?

Many times, we are asked or told: I really don’t want to fight my employer and I really don’t want to make them mad, because I’d like to keep my job. So what do I do?

You need to understand that the main fight is between you and the Workers’ Compensation Insurance Company covering your employer. The main one in Colorado is Pinnacol but there are other Insurance Companies as well. This is not to say that the fight is not between you and your employer, but the main fight is between you and the Insurance Company covering your employer. They pay for the attorneys who fight you, they pay for any compensation you receive, they pay for your medical benefits, and they pay for your permanent disability. One thing the worker has to pay for is for the DIME (Division Independent Medical Examination) if the worker chooses to opt for one after being declared at MMI and after being rated by the Workers’ Compensation Doctor. There may be other expenses as well. More on this later.

WILL I BE FIRED?

The sad news is that sometimes employers do fire their employees. It is illegal to fire an employee because they filed a Workers’ Compensation claim; however many employers try to “invent” or “make up” sudden, new excuses or reasons to fire the employee after they filed the Workers’ Compensation claim. There are causes of action and rights to bring an action with regard to an illegal termination and firing; however, in many instances it is difficult to prove, although not impossible.

20 21

Can I get a Lump Sum Payment of my Permanent Partial Disability?

Yes, but with limitations. You can request a lump sum “advance” on your claim after a final admission or final order are issued and at least 6 months have elapsed since the date of injury or death. The total advance cannot exceed $10,000 if you continue to dispute the amount the insurance company admitted in the final admission, or just over $84,000 (adjusted yearly) if you accept the amount contained in the final admission. The lump sum is automatically reduced by 4% per annum.

Can I Settle my Claim?

Yes. Settlements usually waive your rights to future benefits on your claim in exchange for an agreed upon amount. Settlements require approval by the Division of Workers’ Compensation.

Do I Need an Attorney?

You can seek and hire an attorney throughout any part of your case. Workers’ compensation hearings and procedures are complicated and you may benefit from the guidance of counsel. Most attorneys work on a contingency fee basis, which means they will take a percent of the money awarded to you, rather than you paying the attorney a fee on an hourly basis. In workers’ compensation cases, a fee of 20% is statutorily imposed-an attorney cannot charge you more than 20% of your award, assuming you do not appeal a judgment of the administrative law judge.

What if I Decide not to Hire an Attorney?

You will represent yourself, and will be responsible for filing of all necessary papers within the time limits. While the Workers’ Compensation Division is available to give you information about your general rights and responsibilities,

explain the process, and list what benefits you might beentitled to, they cannot give you legal advice or answer any legal questions about your claim.

Contact Numbers:

Bell & Pollock, PCWorkers’ Compensation Attorneys

5660 Greenwood Plaza Blvd, Ste. 220Greenwood Village, CO 80111

303-795-5900

Division of Workers’ Compensation633 17th Street, Suite 400Denver, CO 80202-3660Customer Service Unit

303.318.8700Toll-free number (in Colorado) 1.888.390.7936

Special Funds UnitMajor Medical, Subsequent Injury, and Medical