Thank you for visiting the web log of Steven J. Picardi, Esq. For 20 years I have specialized in the representation of Colorado's largest self-insured employers in defense of workers' compensation claims. This web log is designed to keep workers' compensation professionals informed about recent developments in workers' compensation law and practice. It is updated twice monthly, to provide you with the most recent information for your success in defending your cases.
If you have any questions you would like addressed in this blog, please don’t hesitate to Contact Me at the Law office of Steven J. Picardi, P.C.
The Picardi Law Firm is Expanding
Posted by: Steven Picardi
July 28, 2010
Topic: Picardi Web Log
Clay Thornton, Esq., joined the firm in May 2010. Clay has been working with the firm on a contract basis over the past seven years, but with the increase in the firm's case load he has come on board as an associate and has begun primary responsibility for several cases already. Clay brings extensive experience in workers' compensation litigation as well as exemplary legal writing and research skills, having served as a clerk in the Denver District Court and for the Supreme Court of the Federated States of Micronesia. A complete bio and additional information on Clay can be found here.
CMS Announces Requirement for Updated Life Tables
Posted by: Steven Picardi
July 23, 2010
Topic: Picardi Web Log
Effective for any newly-submitted Workers' Compensation Medicare Set-Aside Arrangement submitted after July 19, 2010, The Centers for Medicare and Medicaid Services will apply the 2006 United States Life Tables, Table 1: Life table for the total population: United States, 2006, recently published by The Centers for Disease Control. You will find Table 1 of the CDC's United States Life Tables on page 17 of the pdf document found here.
Disputes Over Medical Maintenance Benefits May Entitle Injured Worker to Costs of Litigation
Posted by: Steven Picardi
July 19, 2010
Topic: Picardi Web Log
It has long been the rule that each party is responsible for its own costs in litigating disputes in workers' compensation claims in Colorado. However, in an attempt to encourage respondents to admit for incurred and unpaid medical maintenance benefits (also called Grover medical benefits or medical benefits after Maximum Medical Improvement), the legislature passed Senate Bill 10-187, which, among other things, adds § 8-42-101(5). This subsection provides that an injured employee shall be entitled to recover "reasonable costs" in litigating whether the employee is entitled to "unpaid and contested" medical maintenance benefits recommended by an authorized treating physician. The reasonable costs are applicable only to medical maintenance benefits that have been incurred but not paid by the respondents, and are payable only if (1) an Administrative Law Judge enters an Order awarding the medical maintenance benefits in dispute; or (2) the respondents admit liability for the contested medical maintenance benefits fewer than twenty (20) days prior to the hearing.
The statute excludes attorney fees from the definition of costs, but does not otherwise define "reasonable costs." I anticipate that Administrative Law Judge would use the definition of costs used in civil cases, found at § 13-16-104. This statute basically permits recovery of all costs incurred in prosecution of the suit, including copying costs, deposition transcript costs and expert witness fees. Therefore, it will be very important for your defense attorneys to provide an analysis of exposure for maintenance medical benefits shortly after the Application for Hearing has been filed so that a decision can be made on whether to litigate or settle the case at least 20 days prior to the scheduled hearing. Otherwise, the respondents will be liable to claimant for the costs incurred in prosecuting the request for incurred and unpaid maintenance medical benefits.
The statutory amendment is applicable to injuries occurring on or after July 1, 2010.
2010 Legislative Changes Overview
Posted by: Steven Picardi
July 19, 2010
Topic: Picardi Web Log
The Division of Workers' Compensation overview of all legislative changes to the Workers' Compensation Act of Colorado in 2010 can be found here. I will continue to summarize each bill individually, but this overview may help put all changes into perspective.
Insurers Required to Send All Claimants an Exit Survey Beginning September 1, 2010
Posted by: Steven Picardi
June 23, 2010
Topic: Picardi Web Log
Section 8-43-220 of the Workers' Compensation Act of Colorado has been amended to require all insurers to send an Exit Survey to all injured workers (or dependents in a death benefits case) within 30 days of closure of any claim. The Division of Workers' Compensation has amended W.C.R.P. 5 to add § 5-14, which is effective September 1, 2010.
The survey shall include the name of the insurer and shall include a space for the claimant to sign if communicated by mail. The survey shall include the following language: "This survey relates to your recent workers' compensation claim. We would like to find out how satisfied you are with the way your claim was handled." The survey shall include instructions as to how to return the completed survey to the insurer, and the sentence "Insurers and employers are prohibited by law from taking any disciplinary action or otherwise retaliating against those who respond to this survey." In addition, the survey shall set forth only the following questions:
(1) On a scale from 1 to 5, with 1 being the least satisfied and 5 being the most satisfied, please describe your satisfaction with the level of courtesy shown to you in relation to your workers' compensation claim.
1 2 3 4 5
(2) On a scale from 1 to 5, with 1 being the least satisfied and 5 being the most satisfied, please describe your satisfaction with how promptly you received medical care.
1 2 3 4 5
(3) On a scale from 1 to 5, with 1 being the least satisfied and 5 being the most satisfied, please describe your satisfaction with how promptly your claim was handled.
1 2 3 4 5
(4) On a scale from 1 to 5, with 1 being the least satisfied and 5 being the most satisfied, please describe your satisfaction with how quickly any disputes in your claim were resolved. If you did not have any disputes, please mark NA.
1 2 3 4 5 NA
(5) On a scale from 1 to 5, with 1 being the least satisfied and 5 being the most satisfied, please describe your overall satisfaction with the way your claim was handled.
1 2 3 4 5
(6) The name of the adjuster handling your claim, if known.
The survey may be sent via e-mail, if the injured worker previously has authorized the insurer to communicate through electronic transmission. Otherwise, the survey shall be mailed to the claimant along with a self-addressed stamped return envelope.
The insurer is required to keep a copy of all surveys returned by injured workers. On or before the last day of January of each calendar year the insurer shall report the survey results to the Division. The report shall include the total number of surveys presented to claimants during the preceding calendar year, but shall be based on all survey results actually received by the insurer during that time. There are limitations on the information to be reported, which can be found here.
The insurer shall maintain the actual survey responses for a minimum of six months after providing the results to the Division, and shall provide the survey results to the Division upon request.
CMS Issues Amendment to Rated-Age Memorandum dated May 14, 2010
Posted by: Steven Picardi
June 23, 2010
Topic: Picardi Web Log
In a post on May 26, 2010, I discussed the May 14, 2010, Memorandum issued by Centers for Medicare and Medicaid Services (CMS) regarding Medicare Part D drugs and the use of rated ages to estimate a claimant's life expectancy in a Workers' Compensation Medicare Set-Aside (WCMSA). On June 8, 2010, CMS issued another Memorandum amending the May 14, 2010, Memorandum regarding the use of rated ages in WCMSAs.
The May 14, 2010, Memorandum required all WCMSA submitters to include a certification statement in association with Rated Age information. Effective immediately the Rated Age (RA) certification required by the May 14th memorandum is revised to:
"Our organization certifies that all rated ages we have obtained and/or have knowledge of regarding this claimant, and generated at any time on or after the Date of Incident for the alleged accident/illness/injury/incident at issue, have been included as part of this submission of a proposed amount for a Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) to the Centers for Medicare & Medicaid Services."
The June 8, 2010, Memorandum goes on to state that CMS will not accept any variation or substitute wording. If a submitter is including RA information in its WCMSA proposal, the revised certification language must be included as written, with no exceptions. If this specific language is not included as part of the WCMSA proposal, CMS will not accept the RA provided. Instead, CMS will estimate the claimant's remaining life expectancy using Actual Age. For the convenience of those already in the process of submitting a proposal, CMS will continue to accept the certification language required by the May 14, 2010 memorandum for proposals received up through and inclusive of June 30, 2010.
All other requirements of acceptable proof of a Rated Age for a claimant are unchanged. Acceptable proof of Rated Age is demonstrated through inclusion of independent rated ages on the letterhead of an insurance carrier or settlement broker.
Ex-Parte Communication with Providers Still Permissible
Posted by: Steven Picardi
June 23, 2010
Topic: Picardi Web Log
On May 27, 2010, Governor Ritter signed Senate Bill 10-011, which enacts a number of procedural changes to the handling of workers' compensation claims. One of those changes is an amendment to § 8-43-404, by adding subsection (5)(c), which prohibits a treating physician from communicating with the employer or insurer unless (1) the injured worker is present for the communication; or "the treating physician makes an accurate written record of the communication, containing all relevant and material information that was communicated, and provides the injured worker access to the writing in the same manner as medical records disclosures as required by director rules." [sic]
This statutory amendment is a clear indication that employers and adjuster still are permitted to contact treating physicians without the presence of the injured worker or the injured worker's counsel. However, if the injured worker or counsel is not included in the conversation, then the treating physician must make an accurate written record and provide it to the claimant in the same manner as medical records. The statute is silent on what happens when the treating physician fails to create a written record of the conversation. However, I recommend that adjusters remind physicians of the duty to create a written record of the conversation, to avoid a claim for penalties or other litigation in the event the physician neglects to do so.
Average Weekly Wage Limited to Maximum Rate at Time of Injury - Overruling Avalanche Industries
Posted by: Steven Picardi
June 14, 2010
Topic: Picardi Web Log
In 2008, the Supreme Court, addressing the issue of Average Weekly Wage, stated in dicta that a claimant’s “time of injury” could refer either to the time of the accident or the time of disablement. Avalanche Industries, Inc. v. Clark, 198 P.3d 589, 597-98 (Colo. 2008). In several cases since that time, different panels of the Court of Appeals have upheld an Administrative Law Judge’s award of benefits based on the maximum rate at the time the injury became disabling (which was higher than the maximum rate at the time of injury). In City of Colorado Springs v. Bennett, the Supreme Court overruled that portion of Avalanche Industries which permitted a claimant to obtain benefits based on the maximum rate at the time of disablement, and limited an award of benefits to the maximum rate at the time of injury. City of Colorado Springs v. Bennett, ___ P.3d. ___, 09SC586 (Supreme Court, June 1, 2010).
In City of Colorado Springs v. Bennett, the claimant was injured in a motor vehicle accident in 2000. Claimant’s conditioned worsened in 2004, and the respondent agreed to reopen his case, eventually admitting liability for Permanent Total Disability benefits at the maximum rate in effect in 2000. Claimant objected to the Final Admission of Liability and requested Permanent Total Disability benefits based on the maximum rate in 2004, when his injury became disabling again. The Court of Appeals, citing the Supreme Court's opinion in Avalanche Industries, increased claimant’s Permanent Total Disability benefits based on the maximum rate in effect in 2004. The respondent appealed to the Supreme Court, arguing that the dicta in Avalanche Industries was incorrect and unnecessary to a determination to the case it was deciding at that time.
The Supreme Court agreed, overruling the section of its opinion in Avalanche Industries which held that the term “time of injury” could mean either the time of the accident or the time of disablement because the language was unnecessary to its ruling in that case. It further reasoned that, because the Court of Appeals relied upon that section of the opinion in Avalanche Industries to award Permanent Total Disability benefits based on the maximum rate in effect at the time of disablement, the Supreme Court reversed the Court of Appeals opinion and limited the claimant to the maximum rate at the time of injury.
This case resolves much of the ambiguity and concern caused by the Avalanche Industries case, and should put to rest any claims for an increase in Average Weekly Wage based on the date the injury became disabling.
CMS Issues Memorandum to Clarify Guidance Regarding Prescription Drugs and Rated Language in Medicare Set-Aside Accounts
Posted by: Steven Picardi
May 26, 2010
Topic: Picardi Web Log
On May 14, 2010, The Centers for Medicare and Medicaid Services (CMS) issued a Memorandum which clarifies previous memoranda regarding Medicare Part D drugs and the use of rated ages to estimate a claimant’s life expectancy in a Workers’ Compensation Medicare Set-Aside (WCMSA).
For those workers’ compensation settlements effectuated prior to June 1, 2010, and where the settlement included non-covered Part D drugs as part of the WCMSA, CMS will consider funds spent for those non-covered Part D drugs by beneficiaries and claimants as being an appropriate expenditure of funds as part of the WCMSA.
For those workers’ compensation claims that were not settled prior to June 1, 2010, and where the settlement includes non-covered Part D drugs as part of the WCMSA, CMS will consider a re-pricing of those cases that included non-covered Part D drugs. Once CMS performs a re-pricing of the WCMSA, beneficiaries and claimants may not use funds from their WCMSA to pay for non-covered Part D drugs. Doing so constitutes an inappropriate expenditure of WCMSA funds.
For those workers’ compensation settlements resolved on or after June 1, 2010, and where the settlement does not include non-covered Part D drugs as part of the WCMSA, beneficiaries and claimants may not use funds from their WCMSA to pay for those non-covered Part D drugs. Again, doing so constitutes an in-appropriate expenditure of funds as part of the WCMSA.
Please be aware that this Memorandum may result in a re-pricing of previously agreed-upon WCMSAs where a case is resolved after June 1, 2010 and the WCMSA included non-covered Part D drugs. Adjusters may want to review any such WCMSA to ensure that settlement reserves are sufficient to satisfy any re-priced WCMSA.
In addition, the Memorandum, in order to “mitigate confusion and eliminate ambiguous statements” concerning Rated Ages used in a WCMSA, all WCMSA submitters must include the following certification statement in association with Rated Age information:
“Our organization certifies that all rated ages obtained on the claimant, at any time during that individual claimant’s lifetime, have been included as part of this submission to the Centers for Medicare & Medicaid Services.”
The Memorandum uses some very strong language regarding the importance of this certification: “The CMS will not accept any variation or substitute wording. If a submitter is including RA information in its WCMSA proposal, the new certification language must be included as written, with no exceptions. If this appropriate statement is not included as part of the WCMSA proposal, CMS will not accept the RA provided. Instead, CMS will estimate the claimant’s remaining life expectancy using Actual Age.”
All other requirements of acceptable proof of a Rated Age for a claimant are unchanged. Acceptable proof of Rated Ages is demonstrated through inclusion of independent rated ages on the letterhead of an insurance carrier or settlement broker.
Impairment Rating Worksheets Required to be Attached to Final Admission of Liability Only When Worksheets Have Been Completed by the Rating Physician
Posted by: Steven Picardi
May 20, 2010
Topic: Picardi Web Log
The Workers’ Compensation Act of Colorado mandates that when a Final Admission of Liability is predicated upon medical reports, those medical reports shall be attached to the Final Admission of Liability. Section 8-43-203(2)(b)(II). The Court of Appeals previously has held that when the rating physician prepared a worksheet on the same date as the examination, but the employer failed to attach the worksheet to the Final Admission of Liability, the Final Admission of Liability was invalid. Paint Connection Plus v. Indus. Claim Appeals Office, ___ P.3d ___, ___ (Colo. App. No. 09CA0598, Jan. 7, 2010).
However, physicians do not always prepare worksheets at the time the adjuster files the Final Admission of Liability. The Court of Appeals issued an opinion today which holds that in those instances where worksheets do not exist at the time of filing the Final Admission of Liability, the failure to attach the worksheets does not invalidate the Final Admission of Liability. Aguilar v. Industrial Claim Appeals Office, ___ P.3d ___, (Colo. App. No. 09CA1792, May 20, 2010)(not selected for publication). The Court of Appeals in Aguilar bases its opinion on the specific holding in Paint Connection, which limited its holding to “include only those situations where worksheets had actually been prepared by the rating physician.”
Though the Aguilar case was not selected for publication (and therefore may not be cited as controlling authority), the case almost certainly will be followed by Administrative Law Judges and the Industrial Claim Appeals Office. Therefore, an adjuster should be safe in filing a Final Admission of Liability without worksheets if no such worksheets exist at the time of filing the Final Admission of Liability.
If you would like to discuss this case in more detail, please feel free to contact me.
All Initial Admissions or Denials Must Include Notice of Rights to Claimant
Posted by: Steven Picardi
May 13, 2010
Topic: Picardi Web Log
On May 13, 2010, the Colorado General Assembly sent House Bill 10-1038 to Governor Ritter for signature. The Bill requires that all initials determinations of liability (i.e. initial admissions or denials) must contain a brochure setting forth the claimant’s rights under the Workers’ Compensation Act of Colorado. The bill applies to all dates of injury and becomes effective upon signature of the Governor (which should occur in the next few days). Therefore, all employers, third-party administrators and insurance carriers should start attaching the brochure to all initial determinations of liability immediately. The brochure can be downloaded from the Division of Workers’ Compensation here.
Supreme Court Finds $60,000 Lump Sum Applicable to All Dates of Injury
Posted by: Steven Picardi
May 11, 2010
Topic: Picardi Web Log
In 2009 the Court of Appeals reversed the Industrial Claim Appeals Office’s denial of a $60,000 lump sum application, and found that the $60,000 lump sum was to be applied retroactively to all dates of injury. Nelson v. Industrial Claim Appeals Panel, 219 P.3d 416 (Colo. App. 2009). The Supreme Court accept certiorari to consider whether the Court of Appeals was correct in holding that the $60,000 lump sum statute was to be applied retroactively to all dates of injury. While the Supreme Court appeal was pending in Nelson, a separate panel of the Court of Appeals reached the same decision in Navarette v. Industrial Claim Appeals Office, 09CA0794, January 28, 2010 (not selected for publication). See, February 23, 2010, web log entry.
On May 10, 2010, the Supreme Court affirmed the Court of Appeals’ opinion in Nelson and found that the $60,000 lump sum is retroactive to all dates of injury. Specialty Restaurants Corp. v. Nelson, 09SC536, May 10, 2010. This lays to rest the issue of the retroactivity of the lump sum statute, and any requests for the $60,000 lump sum pursuant to Section 8-43-406 C.R.S. (2009) should be paid pursuant to the Supreme Court opinion.
If you would like to discuss this or any other workers’ compensation issue, please feel free to contact me.
Status of Proposed Workers' Compensation Bills
Posted by: Steven Picardi
April 28, 2010
Topic: Picardi Web Log
Three proposed workers' compensation bills remain on the blocks in the Capitol. These bills are worth looking at to determine whether you want to write to legislators:
Senate Bill 10-011
Section 1 of the bill requires a physician who has been proposed by the Division of Workers' Compensation to perform a Division IME of an injured worker to disclose any business, employment, financial, or advisory relationship with an insurer or self-insured employer if a party requests the information, gives a party to the Division IME process the right to obtain and review the information regarding any physicians proposed to conduct the Division IME prior to making a determination to eliminate one of the proposed physicians as an examiner, and directs the Director of the Division of Workers' Compensation to adopt rules as
necessary to implement the disclosure requirements.
Section 2 of the bill prohibits the payment of a financial incentive by an insurer, self-insured employer, or health care provider to deny or delay a workers' compensation claim, or to deny or delay medical care or payment for medical treatment for any such claim, and declares that a violation of its provisions constitutes bad faith and an unfair or deceptive practice in the business of insurance and subjects the person committing the violation to penalties under the unfair or deceptive insurance practices statutes, which may be up to $3,000 per violation, not to exceed an aggregate penalty of $30,000, or, in the case of knowing violations, up to $30,000 per violation, not to exceed an aggregate penalty of $750,000 annually, as well as subjects persons violating its rovisions to penalties under the "Workers' Compensation Act of Colorado".
Section 3 prohibits a treating physician from communicating with the insurer or employer of an injured worker unless the injured worker is present or the communication is in writing and is provided to the injured worker.
Section 4 specifies that contractual provisions that establish a reversionary interest in an insurer for indemnity benefits are void as against public policy.
Senate Bill 10-012 increases the penalty for violating the workers' compensation laws from up to $500 to up to $1,000, changes the mental state from "willfully" to "knowingly" in the statute that penalizes denying workers' compensation medical benefits, delaying payment of medical benefits for more than 30 days, or stopping payments, and allows the director of the division of workers' compensation or an administrative law judge to apportion the penalties, in whole or part, among the aggrieved party, the medical services provider, and the workers' compensation cash fund.
Senate Bill 10-013
Section 1 of the bill requires workers' compensation insurers to survey a limited number of injured workers at the close of each claim, requires the insurers to report the results of the surveys to the division of workers' compensation, and prohibits an employer or insurer from taking disciplinary action or otherwise retaliating against an injured worker or his or her dependents for completing a survey.
Section 2 of the bill requires the chief executive officer of Pinnacol Assurance to submit an annual report to the governor and committees of the general assembly reporting on the business operations, resources, and liabilities of the Pinnacol Assurance fund.
Section 3 of the bill requires the division to post on the division's web site the procedure for an injured worker to follow to file a complaint with the division regarding any issue over which the director or his or her designee has authority to pursue, settle, or enforce.
To review the actual bills, click here.
If you would like to discuss these bills or any other workers' compensation matters, please feel free to contact me.
Colorado Court of Appeals Upholds Statutory Employer Defense for Merchandisers
Posted by: Steven Picardi
April 6, 2010
Topic: Picardi Web Log
The Colorado Court of Appeals, in Humphrey v. Whole Foods Market, ___ P.3d ___ (Colo. App. 09CA0234, April 1, 2010), recently affirmed the trial court's dismissal of the a negligence suit brought by a merchandiser against the grocery store where he was injured. Humphrey was a delivery driver working for Phil's Fresh Foods who supplied and stocked Phil's products inside the Whole Foods market (frequently the job duties are characterized as a "merchandiser"). Humphrey injured himself while working for Phil's inside the Whole Foods Market. He filed a workers' compensation claim, and also pursued a premises liability action against Whole Foods. The District Court granted summary judgment, concluding that the "statutory employer" provisions of the Workers' Compensation Act of Colorado granted Whole Foods complete immunity from suit because Humphrey's employer carried workers' compensation insurance.
Whether an employer is a statutory employer depends upon the nature of the work the employee performs for the employer. The test for whether an employer is a "statutory employer" is whether the work "contracted out" is part of the employer's regular business as defined by its total business operation. Finlay v. Storage Technology Corporation, 764 P.2d 62, 67 (Colo. 1988).Humphrey argued that, because there was no contract between Phil's and Whole Foods which required Phil's to service its products in the store, Whole Foods did not "contract out" the services Humphrey performed, so that Whole Foods was not a statutory employer immune from tort liability under section 8-41-401(2). The District Court found an implied contract existed, such that Whole Foods contracted out to Phil's the work it otherwise would have had to perform.
The Court of Appeals affirmed the reasoning of the District Court in dismissing Humphrey's action against Whole Foods.
Many of my clients utilize the services of merchandisers in their business operations. This is an important case to keep in mind when a merchandiser is injured on the job and brings a negligence action against the store where he was injured.
CMS announces new Life Tables for use in Medicare Set-Asides
Posted by: Steven Picardi
March 22, 2010
Topic: Picardi Web Log
The Centers for Medicare and Medicaid Services (CMS) announced last week that any Workers’ Compensation Medicare Set-Aside Accounts (WCMSAs) submitted after April 12, 2010 (whether a new MSA or a reopened MSA) must use the 2005 United States Life Tables, Table 1: Life table for the total population: United States, 2005, published by the Centers for Disease Control. Table 1 can be found at the CDC’s website: http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_10.pdf. You will need to go to page 8 to find Table 1.
Refusal to undergo surgery or treatment may reduce compensation benefits
Posted by: Steven Picardi
March 18, 2010
Topic: Picardi Web Log
I have seen quite a few cases in the past several months where claimants are refusing surgery which has been recommended by a treating physician. Oftentimes the respondent has no desire to force an employee to undergo surgery, since surgery will result increase the exposure for medical benefits and temporary disability benefits. However, in addition to the savings in medical benefits and temporary disability benefits, a claimant’s refusal to undergo surgery may also decrease the respondent’s exposure for Permanent Partial Disability benefits.
Section 8-43-404(3) provides, in pertinent part: “If any employee ... refuses to submit to such medical or surgical treatment or vocational evaluation as is reasonably essential to promote recovery, the director shall have the discretion to reduce or suspend the compensation of any such injured employee.” This section “seeks to prevent the situation where a claimant by refusal of reasonable medical treatment aggravates the compensable consequences of the industrial injury and thereby imposes increased liability on the respondent. Aranda v. Evraz, Inc., W. C. No. 4-628-418 (February 17, 2010); See generally 1 Larson, Workers’ Compensation Law, §10.10. This section provides the respondent an opportunity to argue the claimant’s Permanent Partial Disability benefits award should be reduced as a result of the claimant’s refusal to undergo a reasonable medical treatment or surgery which would have reduced the claimant’s overall disability.
This issue is rarely raised in workers’ compensation claims, but there is statutory and case law which permits the argument to be made before an Administrative Law Judge. Therefore, remember this statutory section when an injured employee refuses medical treatment and then receives an impairment rating, as the refusal to undergo the treatment may provide a basis to reduce Permanent Partial Disability benefits.
If you would like to discuss this or any other workers’ compensation issue in more detail, please fee free to contact me.
OSHA Releases Workplace Injury and Illness Information
Posted by: Steven Picardi
March 8, 2010
Topic: Picardi Web Log
Every year since 1996, the Occupational Safety and Health Administration (OSHA) has collected work-related injury and illness data from more than 80,000 employers, which it uses to calculate injury and illness incidence rates to guide its strategic management plan and to focus its Site Specific Targeting (SST) Program, which the agency uses to target its inspections. For the first time ever, For the first time, OSHA has made this data available in an online database searchable by establishment or industry-specific injury and illness data. Information available includes: an establishment's name, address, and industry; associated Total Case Rate (TCR): Days Away, Restricted, Transfer (DART) case rate; and the Days Away From Work (DAFWII) case rate. The data is specific to the establishments that provided OSHA with valid data through the 2008 data collection (collection of CY 2007 data). This database does not contain rates calculated by OSHA for establishments that submitted suspect or unreliable data.
To access the searchable database, click here.
If you have any questions or would like to discuss this information further, please feel free to contact me.
Medical Only Admissions - Practice Pointer
Posted by: Steven Picardi
February 28, 2010
Topic: Picardi Web Log
I have seen a number of General Admission of Liability lately which have admitted for medical benefits only but have not taken any position on temporary disability benefits or Permanent Partial Disability benefits. Remember that Colorado Workers' Compensation Rule of Procedure 5-5(B) provides that an admission filed for medical benefits only "shall include remarks outlining the basis for denial of temporary and permanent disability benefits." Therefore, all medical only admissions should contain some type of statement explaining the reason for denying disability benefits. A very general statement explaining the basis for denying benefits (e.g. "Claimant has not lost any time from work as a result of the injury and is not at Maximum Medical Improvement") is sufficient to satisfy the requirements of Rule 5-5(B).
There is no requirement to attach a Supplemental Report of Return to Work or wage records if temporary disability benefits have not yet been admitted or paid. However, if Temporary Total Disability benefits or Temporary Partial Disability have been admitted or paid, then respondent must comply with Rule 6.
If you have any questions, please feel free to contact me.
$60,000 Lump Sum applicable to all dates of injury
Posted by: Steven Picardi
February 23, 2010
Topic: Picardi Web Log
In a previous post I discussed the case of Nelson v. Industrial Claim Appeals Office, 219 P.3d 416 (Colo. App. 2009), where the Court of Appeals reversed the Industrial Claim Appeals Office's interpretation of Senate Bill 07-258 (amending § 8-43-406(2) increasing the lump sum amount to $60,000), and found that the $60,000 lump sum applies retroactively to any date of injury. The respondent did not appeal that Order and the Court of Appeals decision became final.
A separate panel of the Court of Appeals recently reached the same decision in Navarette v. Industrial Claim Appeals Office, ___ P.3d ___, (Court of Appeals No. 09CA0794, January 28, 2010). In Navarette, the Director denied a $60,000 lump sum based on a 1976 Court of Appeals' case holding that, in the absence of express legislative intent to the contrary, the increase in the maximum lump sum payment applied only to injuries occurring after the amendment's adoption. The claimant appealed, arguing that Nelson, decided in 2009, controlled the issue and the Director should have followed Nelson. The Court of Appeals agreed that Nelson controlled, despite the employer's argument that "Nelson was incorrectly decided and [the Court of Appeals] should disregard it because the substantive rights of employers could be affected by an unanticipated increase in the amount of a lump sum payment." The Court of Appeals was not persuaded to deviate from the reasoning in Nelson, and remanded the case to the Industrial Claim Appeals Office to enter an Order awarding the $60,000 lump sum. Thus, unless the Supreme Court grants certiorari to review the decision, the $60,000 lump sum statute will be retroactively applied to all claims, regardless of date of injury.
If you have any questions regarding this or any other workers' compensation issue, please fee free to contact me.
DWC Issues Updated Impairment Rating Tips for Physicians
Posted by: Steven Picardi
February 2, 2010
Topic: Picardi Web Log
Last fall the Division of Workers' Compensation convened a Focus Group (consisting of physicians and other medical practitioners, claimant and defense attorneys, officials from the Division of Workers' Compensation) to discuss some proposed revisions to the Division of Workers' Compensation's "Impairment Rating Tips." The update contains significant changes to the previous Impairment Rating Tips, and serves as a good refresher on impairment ratings for adjusters and attorneys.
The document contains new tips addressing the following areas:
- Partial Shoulder Joint Replacement (recommended to rate at 20%)
- Recommendation on "Grover Meds" and Impairment
- Rating Abdominal Hernias (just some reminders)
- Musculoskeletal Cumulative Trauma Disorders (written in tandem with the preceding existing section, "Peripheral Nerve Injuries Resulting from Cumulative Trauma," which is now slightly modified)
- Diagnostic Tests and MMI (In the section for DIME Doctors (page 7))
The document also changes or adds to the following existing sections:
- Rating Extremities Using the Contralateral Joint (differentiating apportionment);
- Peripheral Nerve Injuries Resulting from Cumulative Trauma: slightly modified in connection with the new section, Musculoskeletal Cumulative Trauma Disorders
The new Division of Workers' Compensation Impairment Rating Tips can be found here (scroll down to Desk Aid # DK11).
If you would like to discuss this document further or have any other questions, please feel free to contact me.
2010 Proposed Statutory Amendments to Work Comp Act
Posted by: Steven Picardi
January 26, 2010
Topic: Picardi Web Log
As always, the Colorado General Assembly has proposed a number of bills affecting the workers' compensation system. Some of these bills may have a significant impact on the claims handling process.
The most concerning bill is House Bill 10-1012, which would prohibit an insurer or employer from conducting surveillance of an employee who has submitted a workers' compensation claim unless the insurer or employer has a reasonable basis to suspect that the employee has "committed fraud or made a material misstatement concerning the claim." The vague language very well might prohibit the employer and insurer from obtaining surveillance in a multitude of situations where surveillance previous has been a useful tool in the adjusting of a questionable claim.
Senate Bill 10-012 proposes an increase in penalties for violations of the Act, from the current maximum penalty of $500 per day to a new maximum of $1,000 per day, and would permit the Administrative Law Judge to apportion the award between the claimant, medical provider or other aggrieved party. If passed, this amendment to the statute would increase the incentive of claimants to file for penalties against the insurer, including penalties for late payment of medical bills.
The bills and the current status of the bills can be viewed here.
If you would like to discuss these bills, please feel free to contact me.
Penalties for filing FAL before MMI for "all conditions"
Posted by: Steven Picardi
January 20, 2010
Topic: Picardi Web Log
On January 7, 2010, the Court of Appeals affirmed the Administrative Law Judge's award of penalties against the respondents for filing a Final Admission of Liability denying liability for a part of the condition which an authorized physician determined to be caused by the injury. Paint Connection Plus v. Industrial Claim Appeals Office, ___ P.3d ___ (Court of Appeals No. 09CA0598, January 10, 2010). A copy of the decision can be obtained by clicking here.
The respondent insurer filed several general admissions of liability admitting for medical and temporary disability benefits for a "right shoulder rotator cuff tear and right shoulder SLAP tear only." The claimant's surgeon referred him to another physician for an impairment rating to his right upper extremity. The physician found that the claimant had reached maximum medical improvement for that injury and provided an impairment rating. However, the rating physician further opined that claimant was suffering from a neck condition that was related to the original injury, and was not at MMI for that neck condition. Respondents filed a Final Admission of Liability admitting for the impairment rating to the shoulder condition but denying liability for the neck condition.
Claimant objected to the Final Admission of Liability and set the matter for hearing on the issues of the validity of the FAL and penalties. The Administrative Law Judge found that because the rating physician found Claimant was not at MMI, the FAL was invalid because it did not comply with Rule 5-5(E), which requires that the carrier file a Final Admission of Liability "consistent with the physician's opinion" within 30 days of receipt of an impairment rating from an authorized Level II accredited physician. The Court of Appeals, relying on the line of cases holding that MMI is not divisible, held that respondents were not at liberty to disregard the determination by the rating physician that the neck injury was caused by the original compensable industrial original. The Court, therefore, affirmed the determination that the Final Admission of Liability was invalid because it did not comply with the rating physician's determination that the neck condition was caused by the industrial injury. The Court went on uphold the award of penalties based on the failure to comply with Rule 5-5(E).
This case now makes it very clear that the respondents cannot file a Final Admission of Liability when an authorized physician determines that a particular condition is causally related to the injury and has not reached MMI for that condition, even when the respondents previously have admitted for only particular components of the injury. If Respondents disagree that a portion of the injury is compensable, they must challenge the determination of causation and MMI by setting the matter for hearing for a judicial determination of the causal relationship of that condition, obtaining an 18-month Division IME pursuant to §8-42-107(8)(b)(II), or some other procedure.
The requirement to challenge the determination of causation and MMI necessarily will result in delay before a Final Admission of Liability can be filed. If the claimant is entitled to Temporary Total Disability benefits while the process proceeds, the respondents may be required to pay substantial Temporary Total Disability benefits. If the rating for the admitted portion of the claim entitles the claimant to a significant award of Permanent Partial Disability benefits, challenging the condition through hearing or Division IME probably will not create a problem, as the respondents can claim any overpayment of Temporary Total Disability benefits against the award of Permanent Partial Disability benefits. However, if the rating for the admitted portion of the claim does not entitle the claimant to a significant award of Permanent Partial Disability benefits, the insurer faces the possibility of a significant overpayment of Temporary Total Disability benefits while the Division IME or hearing is pending.
If you would like to discuss the impact of this case on one of your claims, please feel free to contact me.
The Division of Workers' Compensation announced the new compensation rates effective for injuries on or after July 1, 2009.
Posted by: Steven Picardi
June 22, 2009
Topic: Picardi Web Log
The maximum rate for Temporary Total Disability benefits, Permanent Total Disability benefits or death benefits is $807.24.
The scheduled impairment rate is $254.06.
The disfigurement maximum is $ 4,286.00, or up to $ 8,572.00 for extensive facial or body scars, burn scars or stumps resulting from the loss of limbs.
The Memorandum from the Division of Workers' Compensation and the Order from the Director establishing these rates can be found at http://www.coworkforce.com/dwc/Notices/Other_Notices/AWW_Order_2009.pdf
Industrial Claim Appeals Office lump sum payment decision reversed
Posted by: Steven Picardi
June 22, 2009
Topic: Picardi Web Log
You will remember that one of the legislative changes found in Senate Bill 07-258 included an amendment to § 8-43-406(2) increasing the lump sum amount to $60,000. The statute was silent on whether the increase applied retroactively, to claims with a date of injury before the effective date of July 1, 2007. The Director had interpreted the statutory amendment as a procedural change having retroactive effect, and granted lump sums up to $60,000 even when the statute in effect at the time of the injury limited the maximum lump sum to a lesser amount. The Industrial Claim Appeals Office reversed the Director's order in Nelson v. Specialty Restaurants Corp., W. C. No. 3-987-235 (May 2, 2008), and denied the Director's award of a lump sum up to $60,000, as the statute in effect at the time of the injury did not permit lump sums in that amount.
Claimant appealed the decision to the Court of Appeals, which just reversed the decision of the Industrial Claim Appeals Office and held that the statute can be applied retroactively to grant lump sums of up to $60,000 for all dates of injury. Nelson v. Industrial Claim Appeals Office, ___ P.3d ___, 2209 WL 1477557 (Colo App. 2009). The Order was released only a few days ago, so we will not know if Respondents will appeal the Order for some time.
Caution on Final Admissions of Liability
Posted by: Steven Picardi
May 1, 2009
Topic: Picardi Web Log
The Industrial Claim Appeals Office recently announced a holding with potentially significant ramifications for reopening a claim. In Barfoot v. XCEL Energy, W. C. No. 4-540-676 (April 16, 2009), the ICAO held that the statute of limitations for reopening a claim was tolled because Respondents' Final Admission of Liability failed to properly identify the date when claimant's Permanent Partial Disability benefits would be paid out in full.
The reopening statute provides that a case may be reopened to award additional compensation or medical benefits at any time within two years of the last payment of temporary or permanent disability benefits become due or payable. § 8-43-303(2)(a) (emphasis added). In Barfoot, the Benefits History on respondents' Final Admission of Liability incorrectly calculated the date when the last payment of Permanent Partial Disability benefits would be paid (the benefits were paid out in full in April 2005, but the Final Admission of Liability indicated they would be paid through May 2006). Claimant filed his Petition to Reopen within two years of the date the last benefits would be paid pursuant to the Final Admission of Liability, but more than two years from the last date the Permanent Partial Disability benefits actually were paid. Respondents argued that claimant's Petition to Reopen should be dismissed because it was not filed within two years of the date the last payment of Permanent Partial Disability benefits because due and payable. Claimant argued that the two year statute of limitations should be equitably tolled because the Final Admission of Liability put him on notice that the last benefits would be due and payable in May 2006. ICAO held that, because claimant testified that he relied on the incorrect date in the Final Admission of Liability in calculating when he needed to file his Petition to Reopen, the matter must be remanded to the Administrative Law Judge to determine whether the incorrect date in the Final Admission of Liability equitably tolled the statute of limitations.
This case emphasizes the importance of correctly calculating the date through which Permanent Partial Disability benefits will be paid, so that claimants cannot argue they were not properly informed of the date they needed to file a Petition to Reopen. In addition, the case may require companies to reconsider their methods of admitting for Permanent Partial Disability benefits in the Benefits History section of Final Admissions of Liability. Many carriers or TPAs admit for Permanent Partial Disability benefits from the date of MMI through "payout". This case may allow claimants to argue that using the term "payout" did not give sufficient notice of the date that a Petition to Reopen needed to be filed, such that the statute of limitations should be equitably tolled. This may require reconsideration of the use of the term "payout" on a Final Admission of Liability. Given the uncertainty and potential to lose the statute of limitations defense, it probably would be wise to calculate the date through which benefits will be paid in order to put claimants on notice of the date a Petition to Reopen must be filed.
CMS's Standards for Acceptable Proof of Rated Age
Posted by: Steven Picardi
April 23, 2009
Topic: Picardi Web Log
Effective April 21, 2009, submitted rated ages that do not conform to CMS's standards for acceptable proof of Rated Age (which requires an independent rated age on the letterhead of an insurance carrier or settlement broker, and includes a statement from the submitter that all rated ages obtained on the claimant have been included in the MSA proposal), will be priced using actual age. CMS will not consider re-pricing the workers' compensation case using the new or corrected rated age information provided by submitters. Therefore, make sure all MSA proposals include independent rated ages on the letterhead of an insurance carrier or broker.
Governor Ritter Signs Amendment to Workers' Compensation Act
Posted by: Steven Picardi
April 15, 2009
Topic: Picardi Web Log
On March 24, 2009, Governor Ritter signed Senate Bill 09-070 into law. The intent of this bill is to amend the Workers' Compensation Act in an effort to clarify several workers' compensation procedures. The most important for adjusting purposes is the change to § 8-42-105(2)(a), which previously provided that the first payment of compensation was due no later than twenty days after notice or knowledge of a lost-time injury. The new statute requires payment of compensation at the time an admission of liability is filed. The statute "shall apply to workers' compensation claims (not injuries) on or after the effective date of the Act (which probably will be August 4, 2009, unless a referendum petition challenging the Act is filed, which is extremely unlikely).
To view the statute please click here.
If you have any questions regarding the new Act or any other issue, please feel free to give me a call or send me an e-mail.
Review of MSA Proposals for Drug Treatment Costs/Expenses
Posted by: Steven Picardi
April 9, 2009
Topic: Picardi Web Log
The Centers for Medicare and Medicaid Services (CMS) issued a formal memorandum on April 3, 2009, announcing that effective June 1, 2009, all Workers' Compensation Medicare Set-Aside (MSA) proposals will be reviewed to ensure the adequacy of future drug treatment costs/expenses using average wholesale price (AWP). The CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals (including Colorado's Medical Fee Schedule).
The full memorandum can be found at http://www.nuquestbridgepointe.com/news/uploads/cms_memo_4-6-2009.pdf.
If you have any questions regarding this memorandum or any other issue, please fee free to give me a call or send me an e-mail.
2008 Legislative Changes
Posted by: Steven Picardi
June 30, 2008
Topic: Picardi Web Log
Senate Bill 08-241 was the only bill having any impact on the handling of workers' compensation claims this year, but the bill significantly changed the law on apportionment.
Section 8-42-104(2) regarding apportionment for Permanent Total Disability benefits has been repealed completely. The legislature enacted new procedures for apportionment of Permanent Total Disability benefits, which were codified at § 8-42-104(4).
Section 8-42-104(3) disallows reduction of temporary total, temporary partial or medical benefits to an injured worker based on a previous injury (which had been permitted by decision of the Supreme Court). Therefore, an employer no longer may pay only a portion of medical or temporary disability benefits, arguing that a percentage of those benefits should be apportioned to prior injuries.
Section 8-42-104(4) disallows apportionment of permanent total disability benefits when the disability is the result of (1) work-related injury; or (2) work-related injury combined with genetic, congenital or similar conditions. Permanent total disability benefits may be apportioned in cases where an occupational disease results from contributing factors both within and outside the workplace as set out in Anderson v. Brinkhoff, 859 P.2d 819, (Colo.1993). Therefore, if an injury aggravates or combines with a previous industrial or non-industrial disability to make an employee unable to earn any wages, the employer bears full responsibility for the Permanent Total Disability benefits.
Section 8-42-104(5)(a) allows for the reduction of a permanent medical impairment award (apportionment) when the employee has suffered more than one permanent medical impairment to the same body part and has received a previous award or settlement under a workers' compensation act. The permanent medical impairment rating applicable to the previous injury to the same body part shall be deducted from the permanent medical impairment rating for the subsequent injury to the same body part. Thus, in order to obtain apportionment under this subsection, the employer must show (1) a previous injury to the same body part; and (2) an award or settlement under a workers' compensation act of Colorado or some other state.
Section 8-42-104(5)(b) allows for the reduction of a permanent medical impairment award based on a non-industrial medical impairment to the same body part, only where the previous non-work related injury has been (1) identified; (2) treated; and (3) at the time of the work-place injury was independently disabling. If all these factors apply, the non-work related medical impairment percentage existing at the time of the work injury may be subtracted from the medical impairment rating for the work-related injury by the percentage of the non-work related medical impairment. The classic example of a non-industrial medical impairment is a degenerative spine. In order to receive apportionment for degenerative conditions, the employer must show that, at the time of the industrial injury, the employee was in treatment for the condition and it was, to some degree, independently disabling. If the condition is asymptomatic, then employers will not be able to obtain apportionment for the degenerative or non-industrial condition.
Section 8-42-104(6) permits employers or insurers to seek reimbursement or contribution by other employers or insurers for benefits paid to or for an injured worker, as long as the claimant's benefits are not reduced or affected by such contribution or reimbursement.
The statute applies to injuries occurring on or after July 1, 2008.
If you would like to discuss the statutory changes, please feel free to contact me.
2008 Benefit Rates
Posted by: Steven Picardi
June 24, 2008
Topic: Picardi Web Log
The Division of Workers' Compensation has released the compensation rates for the 2008 fiscal year (July 1, 2008, through June 30, 2009). The new maximum rate for Temporary Total Disability benefits, Temporary Partial Disability benefits, Permanent Total Disability benefits and Death benefits for injuries occurring between July 1, 2008, through June 30, 2009 is $786.17. The maximum rate for Permanent Partial Disability benefits is $431.97. The scheduled rate is $247.42. The maximum payable for disfigurement is $4,174.00, and for "extensive facial or body scars, burn scars or stumps resulting from the loss of limbs" is $8,348.00. For a Desk Aid listing the yearly compensation rate for each year since 1980, click here.
Penalties for Late Payment
Posted by: Steven Picardi
June 16, 2008
Topic: Picardi Web Log
The Industrial Claim Appeals Office recently upheld an award of penalties of $200 per day for a 7-day late payment of a TTD check, in Twiss v. Advance America, W. C. No. 4-717-937 (June 11, 2008). The Director issued the penalty based on a letter from Claimant complaining that the check for TTD benefits was late, which the Director considered a motion for penalties. The Director requested a response from the respondent, who admitted that the check was late, expressed remorse and indicated that remedial procedures had been established to prevent delays in payment in the future. The respondent also requested a hearing if the Director did not believe that the response was sufficient. The Director granted $200 per day in penalties for seven days, primarily because the respondent admitted it had violated the Act and previously had been penalized for "similar conduct" in the same claim.
What makes the decision important is that it shows the relatively-new Director will grant significant penalties without a hearing based on relatively minor misconduct, and that he will do so without granting a hearing. Therefore, adjusters should be very careful when responding to letters from the Director concerning penalties.
Prior Authorization required for home health care
Posted by: Steven Picardi
May 14, 2008
Topic: Picardi Web Log
In a recent case, the Industrial Claim Appeals Panel has determined that a request for home health care or essential services is subject to the Rule 16-9 requirement of prior authorization. In Galicia v. Pietraszek Enterprises, Inc., W. C. No. 4-610-668 (May 9, 2008), ICAO determined that claimant's obtained home health care services without a prescription. Several years later the authorized treating physician opined that the home health care was reasonable and necessary. ICAO determined that the claimant did not seek prior authorization of the request for home health care services pursuant to Rule 16-5(A)(2) (which requires any provider not listed as a "physician provider" to obtain prior authorization under Rule 16-9 in order to provide covered services). ICAO found that the failure to obtain prior authorization for the home health care was a fatal defect to the claim for benefits, and dismissed the claim for services which were incurred prior to a contemporaneous referral (the services rendered after a third hospital stay, where the surgeon wrote a prescription for home health care upon discharge from the hospital, were found reasonable and necessary).
Increase in Lump Sum statute not retroactive
Posted by: Steven Picardi
May 07, 2008
Topic: Picardi Web Log
In a prior post I discussed the legislative changes found in Senate Bill 07-258, which included a provision increasing the lump sum amount to $60,000. The statute was silent on whether the increase applied retroactively, to claims with a date of injury before the effective date of July 1, 2007. As you probably know, the Director had interpreted the statutory amendment as a procedural change having retroactive effect, and granted lump sums up to $60,000 even when the statute in effect at the time of the injury limited the maximum lump sum to a lesser amount. The Industrial Claim Appeals Office recently reversed the Director's order in Nelson v. Specialty Restaurants Corp., W. C. No. 3-987-235 (May 2, 2008) (attached below), and denied the Director's award of a lump sum up to $60,000, as the statute in effect at the time of the injury did not permit lump sums in that amount. Since this case is so recent, it is not known whether Claimant will appeal the decision. Please keep this decision in mind if you receive a new Application for Lump Sum on your older cases.
New Office Address
Posted by: Steven Picardi
March 31, 2008
Topic: Picardi Web Log
The Picardi Law Firm has moved! The new address is:
Law Office of Steven J. Picardi, P.C.
12900 Stroh Ranch Way, Suite 110
Parker, CO 80134-7401.
Phone, fax and e-mail remain the same:
(303) 872-7461 - Local
(888) 781-0369 - Toll-free
(303) 778-8947 - Facsimile
steve@picardilawfirm.com - E-mail
Penalties for dictating medical care
Posted by: Steven Picardi
January 29, 2008
Topic: Picardi Web Log
Section 8-43-503(3) provides that employers and insurers "shall not dictate to any physician the type or duration of treatment..." The Industrial Claim Appeals Office just issued a very concerning opinion affirming the award of $14,000 in penalties against an employer for "dictating" medical care. Gianzero v. Wal-Mart Stores, Inc., W. C. No. 4-669-749 (December 10, 2007).
Dr. Quick, the authorized treating physician, referred Claimant to a hand surgeon, Dr. Hart. Claimant sought a change of physician to Dr. Conyers, a different hand surgeon. The attorney for the employer denied the change of physician, but also indicated that Dr. Quick and Dr. Hart were capable of determining whether an additional referral was warranted. Dr. Quick then referred Claimant to Dr. Conyers. A case manager, through an intermediary at Conentra, then contacted Dr. Quick and asked Dr. Quick to provide the medical necessity of referring Claimant to Dr. Conyers. Dr. Quick then stated that he would "hold off" on the referral until his deposition in the matter, so the appointment with Dr. Conyers was "deferred" until after Dr. Quick's deposition. Following Dr. Quick's deposition, the adjuster authorized treatment with Dr. Conyers.
The Administrative Law Judge found that the insurer "used written directives at Concentra to attempt to dictate to the authorized treating physicians the type or duration of treatment" and "interfered with Dr. Quick's care of the claimant by requiring pre-authorization of Dr. Quick's referral of the claimant ... and then refusing to pre-authorize the referral" until after Dr. Quick's deposition. The ALJ found a pattern of attempts to dictate medical care by the insurer, and awarded penalties of $400 per day.
While the rationale for awarding penalties is questionable and probably is based on the particular facts of the case (since, from what I can tell from the decision, it was Dr. Quick's decision to place the referral "on hold", not a directive from the employer), this decision clearly indicates the danger of questioning the authorized treating provider's referrals. I would caution any insurer or self-insured employer to be careful when attempting to keep referrals limited to particular providers, as an ALJ may interpret those attempts as "directing" medical care.
If you would like to discuss this case in more detail, please feel free to contact me.
Rule 8 - Report to Division
Posted by: Steven Picardi
January 02, 2008
Topic: Picardi Web Log
The Division of Workers' Compensation has published a notice reminding all insurers, employers, and third-party administrators that they must track how often employees request a change of physician under Rule 8's automatic one-time change of physician provisions.
Rule 8 hidden trap - change of physician request form
Posted by: Steven Picardi
January 02, 2008
Topic: Picardi Web Log
As addressed in my previous post regarding Rule 8, Rule 8-5 permits the employee to request a one-time change of physician within ninety (90) days of the date of injury (but before reaching maximum medical improvement). The employee initiates the change of physician request by completing the form established by the Division (which is set forth below) designating another provider on the initial Designated Provider List. However, there is a hidden trap in this form which creates a significant danger to employers.Technically, a claimant could insert the name of any physician into the form. While this does not meet the statutory requirements of the form, the burden is on Respondent's Representative to provide written objection to the request, setting forth the basis for believing the notice does not meet the statutory requirements, within seven (7) business days. Rule 8-5 specifically provides if the Respondent's Representative does not timely challenge the form of the request for a one-time change, the request for a one-time change must be processed and the new authorized treating physician appointed as of the date of the first appointment. Thus, the rule effectively changes the previous 20-day period to object to a change of physician down to seven (7) business days. All Respondents' Representatives need to be aware of the potential for a claimant to insert a "rogue" physician on the form, and must timely object to the request to change to the rogue physician.
If you would like to discuss this issue or any other issue with me, please feel free to contact me.
