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Capped Out
Posted by: Christopher Richter
November 27, 2012

A little known fact about workers’ compensation benefits is that they are capped.   The legislature has seen fit, with the help of lobbyists from insurance carriers, to place caps on workers’ compensation benefits to provide cost assurance for workers’ compensation insurance carriers.  The goal is to presumptively keep premiums down for employers. However, these caps only provide cost assurance to the insurance carrier to keep their profits high, while devastating the most severely injured workers.

1) Temporary Total Disability is capped at a maximum of 91% of the state average weekly wage per week. § 8-42-105, C.R.S.  Typically, an injured worker entitled to wage loss because of an injury will get 2/3rds of their average weekly wage.  For example, a worker making $600.00 per week is entitled to wage loss of $400.00 per week.  However, a worker making an average weekly wage of $1,500.00 per week is only entitled to an average weekly wage of $848.82, instead of $1,000.00 per week.   That is because the cap on TTD for worker’s injured after July 1, 2012 is $848.82.  This cap is adjusted yearly on July 1 ^st  based on the state average weekly wage.

2) Total Amount of Temporary Disability Benefits and Permanent Partial Disability benefits are also subject to caps based on the percent of impairment an injured worker receives for his injuries.  §8-42-107.5, C.R.S.

a) No claimant whose impairment rating is 25% or less may receive more than $75,000.00* for combined temporary disability payments and permanent partial disability payments.   This means that an injured worker with an average weekly wage of $600.00 per week who has a back surgery that causes him to miss 70 weeks of work with an impairment rating of 20% whole person should have been compensated as follows without the cap: 1) $42,000 in temporary disability benefits and 2) $44,800 for the 20% impairment rating for a 40 year old worker in permanent partial disability benefits. That injured worker should have been paid $86,800, but because of the cap will only receive

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Meningitis Scare with Steroid Injections
Posted by: Christopher Richter
October 23, 2012

Epidural Steroid injections are a common form of treatment to help injured workers who suffer from spinal injuries. A few of my clients have started to think twice about these epidural injections since the meningitis scare from contaminated steroid shots. Ultimately, any decision to get an injection is up to the injured worker. However, these injections are vital diagnostic tools and usually the last step prior to ruling in or out a surgery. If one does not have the injection, it may cut off the possibility of a surgery to correct the spinal problem per the treatment guidelines for Colorado Workers' Compensation cases. It is typical for the insurance company to use the guidelines as a shield to cut off treatment.

If the meningitis scare is making you think twice about a steroid injection, here is some information you should consider:

1) Right now there have been no reported cases of meningitis from steroid injections in Colorado. Idaho becomes the 11th state to report at least one illness. The others are Florida, Indiana, Maryland, Michigan, Minnesota, New Jersey, North Carolina, Ohio, Tennessee and Virginia.

2) The contaminated steroid shots are from the New England Compounding Center, a specialty compounding pharmacy in Massachusetts. Ask your provider where their steroid injections are manufactured.

3) In the event you did contract meningitis from a steroid injection that was part of treatment for a workers' compensation claim, your treatment for meningitis would be covered under your workers' compensation claim. Also, if there was any permanent impairment as a result of the meningitis, including death, that would be covered under your workers' compensation claim.

As always if you should have any questions about your workers' compensation claim or your rights to treatment, please contact an attorney at Killian, Davis, Richter and Mayle, P.C. We will be glad to discuss your case in detail to make sure you rights are being protected.

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Permanent and Total Disability
Posted by: Erin Colleen Burke
October 23, 2012

In the wake of a catastrophic work injury, many claimants have questions about what will happen if they can never return to work. Permanent total disability is a type of benefit for claimants rendered unable to earn any sort of wage after a work injury.

Permanent total disability does not mean claimant is unable to return to his former job, or his ideal job. In order to prove permanent total disability, claimant must show by a preponderance of the evidence that she is incapable of earning any wages in the same or other employment. ?8-40-201(16.5)(a), C.R.S. (2007). A claimant therefore cannot receive PTD benefits if he or she is capable of earning wages in any amount. Weld County School Dist. RE-12 v. Bymer, 955 P.2d 550, 556 (Colo. 1998). In weighing whether claimant is able to earn any wages, the ALJ may consider various human factors, including claimant's physical condition, mental ability, age, employment history, education, and availability of work that the claimant could perform. Weld County School Dist. R.E. 12 v. Bymer, 955 P.2d at 550, 556, 557 (Colo. 1998).

PTD may be admitted by the insurance company, or decided by a judge. As a PTD claimant will be paid two-thirds of his average weekly wage for the rest of his life, insurance companies will vigorously defend most claims for permanent total disability. A claimant should be prepared to have

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The First Medical Appointment
Posted by: Christopher Richter
May 25, 2012

Injuries at work will happen, particularly in many fields involving manual labor.  It is important that you immediately report any injury you have at work, whether the injury is minor or major.  The first thing you should do with any injury is notify your employer, see (Insert link to I Just Got Injured at Work in Colorado, What Should I Do?).  

After you have notified your employer, request medical attention to diagnose and start treating the injury, even in minor cases.  Prompt medical attention is key to documenting your injury and minimizing the impact of the work injury.   The faster you seek medical attention, the quicker you can get treatment to get you back to full duty and capable of the job you have been performing.  Numerous times I have seen delay by the injured worker and/or the insurance carrier in getting proper treatment make a minor injury become a major injury. 

When you seek medical attention keep the following in mind:

1)         Two Options for Medical Providers.   When you request medical attention your employer will need to provide you with a list of at least two medical providers.   The two medical providers should

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Workers Compensation Coverage While Travelling to Work
Posted by: Erin Colleen Burke
May 15, 2012

Potential clients and curious acquaintances frequently ask me whether an injury on the way to work is covered by workers compensation. The answer depends on a variety of circumstances.

            For an injury to be compensable under workes compensation, the injury must have happened in the course and scope of employment. Section 8-41-301(1)(c), C.R.S. There must be a causal connection between the injury and the work conditions for the injury to arise out of the employment. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001). 

            Colorado has adopted the going to and from work rule. Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999). Under the rule, a claimant who is injured while going to or coming from work does not qualify for workers compensation benefits because such travel is not considered to be performance of services arising out of and in the course of employment.  However, there are many exceptions to the going to and from work rule to account for varying and unusual circumstances that create a causal connection between the employment and an injury that occurred while the employee was going to and from work.Madden, 977 P.2d at 86364.

            Factors that are considered in determining whether the travel to work was in the course and scope of employment include:

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Effect of a Termination on One?s Worker?s Compensation Claim
Posted by: Erin Colleen Burke
March 28, 2012

Many injured workers have questions regarding what happens to their worker's compensation claim if they are terminated after the injury. Depending on the reason for the termination, worker's compensation benefits are not necessarily affected.

The worker's compensation statutes state in two different locations that a worker is not entitled to wage loss benefits after a termination if he was "responsible" for the termination. See sections 8-42-105(4) and 8-42-103(1)(g), C.R.S.

Case law has defined further defined "responsible" for purposes of these statutes. A claimant is not responsible for the loss of employment unless the claimant performs some volitional act or exercises some control over the circumstances that caused the termination. Gonzales v. Industrial Com. of State, 740 P.2d 999, 1003 (Colo. 1987). An employee is responsible for his termination if the volitional act is one which an employee would reasonably expect to result in the loss of employment. Patcheck v. Colorado Dept. of Public Safety, W.C. No. 4-432-301 (September 27, 2001). The rationale behind this law is that after such a termination, the reason the claimant is earning no wages is not because he was injured, but because

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Medical Marijuana and Your Workers' Compensation Claim
Posted by: From the firm
December 20, 2011

In November 2000, Colorado voters approved Amendment 20, which legalized the use of marijuana for medicinal purposes by patients with certain debilitating medical conditions. Since November 2000, the number of medical marijuana users in the state has grown. This creates complications for a workers' compensation claim.

Pinnacol Assurance, one of the biggest insurers for workers' compensation injuries in the State of Colorado, put out a newsletter in February 2010, suggesting several ways in which an injured worker can be penalized for using medical marijuana. For example, Pinnacol Assurance points out in its newsletter that, although medical marijuana has been legalized in Colorado, it remains illegal on a federal level. As a consequence, physicians are only permitted to "recommend" medical marijuana, not prescribe it. Because medical marijuana cannot be "prescribed," it qualifies as a "not medically prescribed controlled substance," and the presence of marijuana in your system allows a workers' compensation insurer, such as Pinnacol, to reduce your indemnity (i.e., wage replacement) benefits by 50% for intoxication or for violation of a safety rule if it is found in your system at the time your work injury occurre

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