1 Colorado Workers Compensation Colorado Workers Compensation Employee Union and Association Handbook Employee Union and Association Handbook Compliments of Larry Free Compliments and Brad ofunkeless Larry Free and Brad Unkeless Attorneys at Law Attorneys at Law Specializing in Workers Compensation and Personal Injury Specializing in Workers Compensation and Personal Injury
2 This book belongs to Phone Personal Phone Numbers Name Phone
3 Attorneys at Law Larry Free Greg Heron Bill Keating Mike Keating Deirdre Ostrowski Steve Polidori John Poor Brad Unkeless Bob Wagner - Workers Compensation - Personal Injury and Social Security - Personal Injury and Products Liability - Personal Injury - Personal Injury - Personal Injury and Products Liability - Personal Injury - Personal Workers Compensation Injury - Personal Workers Injury Compensation For more than 30 years, Keating Wagner Polidori Free has been committed to aggressively and successfully representing and protecting the rights of injury victims. The rm litigates cases arising from serious personal injuries, including Workers Compensation and Social Security Disability. We are known for results, not ads. Our Workers Compensation attorneys assign experienced paralegals and case managers to every injured worker. We use the latest technology to organize all aspects of each case. For more information on the kinds of work we do, please visit our website at Your questions are welcome! Please call our Workers Comp team at: (303) Our address is 1290 Broadway, Suite 600 Denver, CO We are here to help you!
4 Your Workers Compensation Claim Organizer Workers Compensation Lawyers: Marshall Larry Free Fogel Larry Free Brad Unkeless Paralegal assigned to my case: FKWPS Social Security Disability Lawyer: Greg Heron Paralegal assigned to my case: MEDICAL Authorized Primary Care Provider: Phone: Address: Floor: Surgeon: Phone: Address: Floor: INSURANCE Company Name: Claim Number: W.C. Number: Adjustor: Phone: UNION Union or Association Representative: Phone:
5 Table of Contents Introduction Our goals in representing you and other important information Workers Compensation time line Why should I read this handbook? 1 Why do I need a lawyer? 1 How will my attorney be paid? 1 What is Workers Compensation? 2 Injured workers 9 most common mistakes 3 When and how should I report my accident? 4 Who pays my medical expenses? 5 What if my claim for Workers Compensation bene ts is admitted? 6 What if my claim for Workers Compensation bene ts is denied? 6 Isn t it obvious that I was hurt doing my job? 7 Can I sue the negligent person who caused my on the job injury and still collect Workers Compensation? 8 What s included in Temporary Disability? 9 When do my Temporary Disability payments end? 11 Can my Workers Compensation bene ts be reduced? 11 What should I do about Social Security, Pension or Disability bene ts? 12 What are my obligations to my employer? 12 Should I submit to a Functional Capacities Evaluation (FCE) before I am released by a doctor? 13 What is a Permanent Impairment rating? What happens at the end of my case? 13 What s the difference between Permanent Impairment and Permanent Total Disability? 14 What is dis gurement? 14 What happens if I can never return to any type of work? - Permanent Total Disability 15 Will my future medical care be paid by the insurance company when I reach Maximum Medical Improvement? - Medical Maintenance 15 What do I do when I receive the Final Admission of Liability? 16 Can I appeal the Permanent Disability rating given to me by the Workers Compensation doctor? 16 If there is a dispute, can I go to court during my Workers Compensation case? 16 How does a case settle? 16 Can I re-open my claim after my case is closed? 17
6 Introduction Current Colorado Workers Compensation laws are dif cult to understand. Historically, the Workers Compensation system has been a political battleground in the Colorado legislature. Special business interests often prevail at the expense of the injured worker. The system may not always provide adequate bene ts to those most in need. Injured workers can feel caught in a maze as they endeavor to deal with the complexity of the present law more than 70 pages long. We at Keating Wagner Polidori Free represent injured workers in all elds of employment including, but not limited to: Airline employees Carpenters Custodial workers Educators Fire ghters Food workers Iron workers Law enforcement workers Maintenance engineers Medical personnel Of ce workers Operating engineers Other construction trade workers Package delivery Plumbers Public transportation employees Stagehands Truck drivers
7 Our goals in representing injured workers: To help workers receive fair compensation while off work, during recovery. To maximize Permanent Disability awards. To help obtain quality medical care. To help injured workers understand that Workers Compensation settlement values vary with each claimant and that these values are not automatically set by the law. To help workers with an on-the-job injury caused by someone outside of their company. To help injured workers obtain reimbursement for items such as mileage. Unfortunately, an injury can result in the loss of a job and even a career. We can help identify this possibility early so workers can make appropriate plans and make the most of their settlement. We can help determine when to apply for social security, short and long term disability, and retirement bene ts in order to minimize the reduction of Workers Compensation bene ts. Workers Workers built built the West the West and continue and continue to be to America s be America s strength. strength. Our Our team team looks looks forward forward to to continuing to guide to guide and and protect protect injured injured workers. Please read this warning! This Union and Association Workers Compensation handbook is issued to provide basic information about the Workers Compensation system, but should not be used as a guide to handling your own claim.
8 Colorado Workers Compensation Time Line This time line represents the order of events from an on-the-job accident and injury until there is a disability rating. It may be helpful for your reference as you learn more about the many aspects, events and terms that are unique to Workers Compensation. Date of Accident Never say, I don t need to worry about Workers Compensation. I ll be okay in a few days.
9 W hy should I read this handbook? An on-the-job injury could affect your ability to work and support your family; an injury might alter your future plans and goals. No one expects to be injured so being prepared is important. Why do I need a lawyer? The Workers Compensation system is complicated and most people need a lawyer to protect their rights and obtain fair compensation bene ts. Insurance companies (and sometimes employers) have lawyers to defend their positions. Workers deserve the same! Retaining a lawyer relieves the stress of being fully responsible for making legal decisions that may affect the outcome of your case. Your lawyer puts you on a level playing eld with the insurance company and their lawyers. How will my attorney be paid? Costly legal fees can discourage workers from hiring an attorney. To avoid this problem, Keating Wagner Polidori Free charges a contingency fee. A contingency fee is a reasonable percentage of the value of your case. The advantage of this fee arrangement is that fees are strictly based on the value of your claim and nothing more. Our rm does not charge for an initial consultation to discuss your legal rights within the Workers Compensation system
10 What is Workers Compensation? and scope of their employment. Workers Compensation is a system which provides medical bene ts and compensation to individuals injured in the course If you suffer an on-the-job injury, you have the right to le a Workers Compensation claim. If you are eligible to le that claim, you cannot sue your employer or a co-employee for damages, even if their negligence is the cause of your injury. Workers receive the same bene ts o even if they are negligent in causing their injury o even if no one is negligent o even if a co-worker s negligence causes their injury Workers Compensation bene ts are limited by law. Because the system allows the payment of bene ts regardless of fault, the bene ts are less than compensation in a non-work related personal injury case where fault must be established. Workers Compensation bene ts include: Payment of reasonable and necessary medical expenses. Temporary Total Disability (TTD) bene ts that pay 2/3 of a worker s average weekly gross wage, while not able to perform their job, before reaching Maximum Medical Improvement (MMI). Temporary Partial Disability bene ts (TPD) that pay 2/3 of the difference between a gross weekly wage at the time of injury and the worker s present modi ed duty wage before reaching MMI. A Permanent Partial Disability bene t (PPD) which is the value of a permanent impairment at the time the worker reaches Maximum Medical Improvement (MMI). MMI is when the worker s medical condition, due to injury, is stable and further medical care will not improve their health. Workers are permitted to work for their employer, within the worker s doctor s written restrictions, while receiving Temporary Partial Disability bene ts. Workers are not permitted to work while receiving Temporary Total Disability bene ts
11 Injured Workers 9 Most Common Mistakes 1. Not reporting an on-the-job injury due to an accident (such as falling off a ladder or picking up a heavy box) or due to a work place exposure (repetitive work such as an injury to a worker s back from picking up boxes over a period of time). 2. Not going to the medical clinic, or doctor designated by the employer. 3. Not immediately reporting all their injuries at the time of the accident. 4. Consenting to surgery without asking the surgeon the right questions. 5. Not obtaining a second surgical opinion, when necessary, in order to decide whether or not to consent to surgery. 6. Not knowing if medical care is designed to help them return back to work. 7. Not understanding the types of Workers Compensation bene ts and settlements they are entitled to receive. 8. Not understanding their legal rights. 9. Not understanding that it is improper for any authorized medical facility or doctor to charge the worker for medical care
12 When and how should I report my accident? On-the-job injuries include a single accident, workplace exposure caused by repetitive work, aggravation of a preexisting injury or medical condition, heart attack, chemical or other work site exposure. Immediately notify your supervisor of your injury. Your employer must post a sign in a prominent place stating that you must report your injury in writing within four (4) working days after the accident. Your foreman, supervisor or manager can ll out a written injury report if you are unable to do so. Your employer is required to provide the forms needed to report your accident or workplace exposure. However, whether or not forms are available, always report immediately. If your injury arises from a single event, you should report the accident immediately. If your injury is due to workplace exposure, such as wrist problems resulting from checking groceries, report the injury date within four (4) days of when you rst believe you are in need of medical attention. Failure to report your injury within four (4) days does not legally preclude you from reporting the injury at a later time. Late reporting, however, can result in suspicion that you were not injured at work. Late reporting can result in denial of your claim or loss of compensation for each day the injury is not reported. You have a valid job related injury even when you have a previous back injury or medical condition that is substantially aggravated from an accident at your work or a workplace exposure. For example, since childhood, a thirty- ve year old worker has lived with degenerative disc disease. At age thirty, the disc problem worsened due to an automobile accident during a vacation and a work related injury two months later. A month ago, after falling from a ladder while working, the worker injured his back further aggravating previous back problems. Despite these issues, the worker has a valid job related injury. Report to your employer and doctors every body part that you believe is injured, no matter how minor. A minor injury can develop into a major injury. Your failure to report these injuries can result in denial of bene ts. If your employer fails to post a written notice of the requirement for reporting an injury, you may not be required to give written notice of your injury. The best advice, however, is to always give written notice
13 Who pays my medical expenses? least two designated providers within 7 days. You must seek medical attention from a doctor at a medical facility designated by your employer, or its insurance company. Your employer must give you written notice of at Your employer is responsible to pay all authorized reasonable and necessary medical expenses as a result of your injury. These medical expenses can include medical examinations, surgery, assisted transportation, therapy, nursing care, hospitalization, rehabilitation services, prescriptions, homecare, pain clinic care, mileage to medical appointments and to your pharmacy, psychological counseling, MRI, CT Scan, x-rays, medical supplies, and medical appliances. If you are injured at work and you need immediate medical attention, the law allows you to travel to the nearest hospital or emergency facility even though the facility is not designated by your employer. Except in cases of true emergency, if you seek treatment from a doctor that has not been authorized by your employer, you will be responsible for the bill. Disputes may occur between you and your employer s insurance carrier about what is reasonable and necessary medical care. These disputes may be resolved between the insurance adjuster and your lawyer. If there is no resolution, the con ict can be litigated before a judge. Lawyers also have the right to try to negotiate a change of a worker s physician, as well as to negotiate getting a second opinion from a doctor or surgeon. Your authorized primary care doctor has the right to refer you to other authorized doctors who are specialists. You are not required to have elective surgery in order to receive Workers Compensation bene ts and a settlement. There are limits regarding how long your medical care can continue. In certain circumstances, your right to ongoing medical care can continue after you have settled on the value of your permanent medical impairment
14 What happens if my claim for Workers Compensation bene ts is admitted? You will receive a written notice entitled General Admission of Liability that provides written proof you were injured on the job. A General Admission allows you to receive all legally required Workers Compensation bene ts, including medical bene ts and temporary disability payments. A General Admission does not automatically mean you will receive the correct temporary disability payments or the appropriate medical care. An attorney should review a General Admission of Liability to make sure all bene ts due you are correct. If your injury results from your use of alcohol or a controlled substance, your Workers Compensation bene ts may be reduced by one-half. What happens if my claim for Workers Compensation bene ts is denied? You will receive a written Notice of Contest denying your claim. Usually the denial means the insurance adjuster has questioned the validity of your claim. Your claim may be denied for late reporting. Again, late reporting of a valid on-the-job injury creates a suspicion that you did not get injured while performing your job. Judges do not like late reporting cases and a judge will then be more inclined to deny your entire claim and all of your bene ts. Report your injury immediately and do not forget to report every injured body part, no matter how minor the injury seems at the time. Often, your attorney can provide the claims adjuster with eye witness statements, or other competent evidence, to change the insurance company s denial of your claim to an admission. Nonetheless, if your claim has merit, your attorney can request a hearing before a judge
15 Isn t it obvious that I was hurt doing my job? Witnesses may disagree as to the circumstances of how you were hurt. For example, a witness may claim you were not seen picking up heavy boxes as you claim or that you already had a bad back, and you never complained to anyone of an on-the-job injury. Evidence can be discovered to overcome inaccurate witness accounts. A denial of your claim can be due to inaccurate information or a lack of understanding of the law by the insurance adjuster. For instance, on-the-job injuries may happen: in an employee designated parking lot before you clock in for work. in an employee designated parking lot after your work shift has ended. in an employee designated locker room preparing for work before you clock in to start work. in an employee designated lunch area. by being assaulted by a fellow employee through no fault of your own. running an errand for the bene t of your employer. Even if you are negligent in causing your on the job injury, you are still entitled to Workers Compensation bene ts
16 Can I sue the negligent person who caused my on-the-job injury and still collect Workers Compensation? If you are injured while on loan to a subcontractor by a general contractor, you can sue a negligent party not associated with your workplace who injured you while you are working. Independent contractors must carry their own Workers Compensation insurance. However, signing independent contractor agreements does not necessarily prove that you are an independent contractor or that you have waived your right to prove that you are an employee. In some instances you can sue a property owner or a property lessee if you are injured at work. If you are injured due to the conduct of your employer or a co-employee, you can receive Workers Compensation bene ts, but you cannot sue either of them personally due to their negligence. You can sue a third party and also collect Workers Compensation bene ts. Keating Wagner Polidori Free can help workers with third party claims on-the-job injuries caused to workers by someone outside of their company. For example, if you are driving a delivery truck while working and you are injured when your truck is hit by a negligent driver who runs a red light, you can collect Workers Compensation bene ts and you can sue the negligent driver. However, the Workers Compensation insurance company will be entitled to a portion of the money collected from the negligent driver based on the Workers Compensation bene ts they have paid on your behalf
17 W hat s included in Temporary Disability? Temporary Disability includes both Temporary Total Disability (TTD) and Temporary Partial Disability (TPD) payments. $ Temporary Disability benefits are paid until you are at Maximum Medical Improvement (MMI) from all of your injuries due to your work related accident. $ Temporary Total Disability (TTD) payments start after you are off work for three calendar days or three shifts. $ You will receive Temporary Total Disability payments if the primary care physician states, in writing, that you are not to work, or imposes work restrictions that your employer cannot comply with, such as light duty or modified work within those restrictions. $ You receive Temporary Partial Disability payments (TPD) when you are released to light duty by the primary care physician and the employer provides work that is available within your restrictions, but you are still earning less than your gross wages at the time of your injury. If light duty work is not available, you continue to receive TTD. $ Temporary Disability payments end (including both TTD and TPD) when you reach MMI, even when your permanent restrictions preclude you from your job. $ Maximum Medical Improvement (MMI) is when your primary authorized doctor finds that your medical condition, due to your injury, is stable and further medical care will not improve your condition. $ Temporary Total Disability is two-thirds of your gross average weekly wage. A fair gross wage can be averaged by including past wages going back a reasonable period of time. An anticipated pay raise, just before your accident, can be considered in raising your average weekly wage. $ Your average weekly wage can include overtime. $ Your average weekly wage can include the value of employer paid health insurance benefits. The Colorado Supreme Court recently ruled that workers who lost their employer paid health insurance benefits would be entitled to having the cost of continuing the health insurance included in their average weekly calculation. This is true even if the worker does not actually purchase the insurance after his or her health insurance is terminated. $ Sick and vacation benefits, paid to you by your employer, while you are receiving temporary benefits, can be added to your Temporary Disability payments and cannot be used to substitute for your Temporary Disability benefits
18 Your gross average weekly wage is very important in order to determine the value of your temporary and permanent disability payments. In addition to your modi ed duty pay, you also receive Temporary Partial Disability (TPD) bene ts, which is two-thirds of the difference between your regular gross wages and your modi ed duty gross wages. If you are working at two jobs (concurrent employment) and you are injured and cannot work either job, you will receive Temporary Disability bene ts based on the gross wages of both jobs. Example TTD: Gross average weekly wage $ Health insurance $ Overtime $ Concurrent employment $ Total gross average weekly wage $ = $900 x 2/3 = $ TTD Payable every two weeks Accrued Sick Leave Payable every two weeks $ Accrued Vacation Pay Payable every two weeks $ TOTAL paid every two weeks $ You are paid every two weeks for the days your doctor states that you cannot work. Example TPD: Gross average weekly wage $ Modi ed job wages $ $ = $300 x 2/3 = $ TPD Total TPD $ Wages $ = $ TOTAL paid every two weeks $ TTD and TPD payments are limited by law at a xed maximum amount that, by law, changes every July 1 st. TTD and TPD bene ts are not taxable. Employers are allowed to pay your full salary instead of temporary disability payments
19 When do my Temporary Disability payments end? As we ve discussed, there are two types of disability bene ts: Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Payment of Temporary Disability (TTD and TPD) bene ts stops when: you return to regular or modi ed work you are given a written release to return to regular work by your authorized treating doctor you begin modi ed work; after your doctor releases you to work with restrictions, and you later refuse to report to work; you quit, or you are red your authorized treating doctor determines that you have reached Maximum Medical Improvement (MMI). Again, MMI means that the injury or disease causing your disability has become stable and no further medical treatment will improve your medical condition. If your employer s Workers Compensation insurance company discontinues the payment of TTD, you may be without any source of income unless you are entitled to compensation for your permanent impairment or disability. Can my Workers Compensation bene ts be reduced? Yes, your bene ts can be reduced if any of the following conditions are met: You willfully fail to use a safety device. You willfully fail to obey a reasonable safety rule. When you were hired, you willfully misled your employer about your physical ability to do the job. Your injury resulted from the use of drugs or alcohol. You owe child support. You return to full or part time work, and you are eligible to receive TPD. You and/or your dependents receive Social Security Disability bene ts. You receive a pension or other disability bene t that is funded by your employer. The reduction is only the percentage of your employer s contribution to your pension. You receive Workers Compensation bene ts for the same injury from another state. You receive Unemployment Insurance bene ts because you are not allowed to receive unemployment bene ts and temporary disability at the same time
20 What should I do about Social Security, Pension or Disability bene ts? Your attorney will advise you if, and when, you should apply for Social Security Disability, a retirement pension or other disability bene ts What are my obligations to my employer? You must provide written notice to the insurance company of: a return to any employment any award for Social Security, pension or disability bene t Your employer, or insurance company, has the right to request that you apply for Social Security Disability bene ts. A notice that you will receive any of these bene ts must be sent to the insurance company or the self-insured employer within twenty (20) days after you learn of the payment or award. Failure to report may result in the suspension of your bene ts and an obligation to pay back any overpayments. Your attorney will assess and assist you with social security and pension issues and questions
21 Should I submit to a Functional Capacities Evaluation (FCE) before I am released by the doctor? A Functional Capacity Evaluation (FCE) consists of a series of physical tests and activities used to determine your permanent physical restrictions. The FCE can last from one hour to six hours. Sometimes the results of these evaluations may not be accurate in assessing your physical abilities or your restrictions. The compensation laws do not require that you submit to an FCE; however, the employer may require the evaluation as a condition to your continuing employment at the time you are released from medical care (MMI). We want to advise you regarding whether or not to agree to an FCE before the doctor schedules you for the evaluation, as the results of an FCE may adversely affect your chances of future employment. What s a Permanent Impairment Rating? What happens at the end of my case? When you reach the point that no additional medical care will improve your condition, your doctor will place you at Maximum Medical Improvement (MMI). At that time, your doctor will determine the percentage, if any, of medical impairment caused by your injury. This rating is based on a book issued by the American Medical Association that contains guidelines for physicians to review when determining your rating, based on your limited range of motion. The percentage of impairment has monetary value. When you reach MMI and are provided a Permanent Disability Rating, your temporary bene ts will end. You can receive a settlement in one lump sum, subject to a modest discount, instead of receiving payments every two weeks over a lengthy period of time. If we disagree with your doctor s impairment rating on the date of Maximum Medical Improvement, we can contest your claim by requesting a Division Independent Medical Examination (DIME). There are time deadlines and limits when applying for a DIME. The DIME request gives you another opportunity for a doctor to examine you and re-evaluate your medical condition. The doctor will determine if you are at Maximum Medical Improvement and recommend the same or a different permanent disability rating
22 What is the difference between Permanent Impairment and Permanent Total Disability? There are 3 types of permanent impairment: 1. Scheduled Impairment: Loss of function affecting the toes, feet, legs, ngers, hands, arms, eyes, vision or deafness. 2. Whole Person Impairment: Loss of function affecting the body parts such as the spine, lungs, heart and mental impairment. A scheduled, or whole person permanent impairment rating does not preclude your returning back to work. It is your permanent physical restrictions that determine your ability to return to the job that you held at the time of your injury. 3. Permanent Total Disability: Inability to earn any wages. An impairment rating is provided by a doctor at the time you are at MMI. Ratings are not automatically the same for similar injuries. The rating determination provided by a doctor involves the measurement of your range of motion at various positions. The doctor refers to a uniform medical guide to determine your percentage of impairment based on your limited range of motion measurements. Except for permanent total disability, awards for permanent impairment do not include any wage loss that may have occurred as a result of the injury or disease. Any award for permanent impairment is based on functional impairment (measurement of your range of motion) as measured by the authorized treating physician and is usually limited to the part of the body that is affected. Your age and your average weekly wage are important factors in determining the value of your permanent impairment. We will evaluate which of the three types of permanent impairment you are entitled to receive as a fair compensation value. We will advise you if a scheduled rating can be converted to a whole person rating which can result in a higher monetary award. Failing to convert a scheduled rating, in a proper case, can result in the loss of thousands of dollars of compensation. Shoulder injuries are the most common injuries that may be converted to a whole person rating. What is dis gurement? In most cases, if you have a scar, limp or other dis gurement caused by the injury, you may be entitled to a dis gurement award of up to $4, (or $8, in certain severe cases)