LAW OFFICE OF O’TOOLE & SBARBARO, P.C. | 303-595-4777 | FREE CONSULTATION
For injuries or occupational disease claims occurring in the course and scope of employment an employee's exclusive remedy against the employer is under the Colorado Workers' Compensation Act.
The work comp benefits available to you after July 1, 1991, are:
1. medical treatment;
2. temporary disability;
3. permanent medical impairment (if applicable); and,
4. disfigurement (if applicable).
To receive any of these benefits you must prove that you are entitled to them. You are not entitled to compensation for other items such as pain and suffering, loss of enjoyment of life, loss of future wage earning capacity, etc.
You will receive temporary total or partial disability benefits while you are receiving this care and are unable to perform your full duties at work, unless you are at fault for termination. Temporary disability benefits are paid when you are unable to work due to the company doctor's orders. To avoid problems obtain a written excuse from work from your doctor and keep a copy.
Temporary disability benefits are paid at the rate of 2/3 of your average weekly wage up to a maximum weekly amount adjusted annually. Temporary disability benefits are required to be paid once every two weeks. At the beginning, it may take longer to get your first check. These benefits stop when you are released to full duty (even if you are still in treatment), reach maximum medical improvement, or refuse a written offer of modified work within your physical restrictions.
Once your doctor tells you that you are as good as you are going to get, you have probably reached maximum medical improvement. This stops your temporary disability benefits even if you are unable to work due to your injury.
The next step is determining whether you have suffered permanent medical impairment under the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). Permanent impairment is either awarded for extremities (arms, legs, etc.) on a schedule, or as a whole person. Prior to January 1, 2006, the limitation on total indemnity benefits (i.e. temporary disability plus permanent impairment benefits) is:
• $60,000.00, where an individual has a whole person impairment rating of 25% or less; and,
• $120,000.00 when the rating is greater than 25% whole person. A rating higher than 25%, however, is difficult to reach.
For injuries occurring on or after January 1, 2006, the limits described herein have been increased from $60,000.00 to $75,000.00, and from $120,000.00 to $150,000.00.
To challenge the company doctor's rating the Division of Workers' Compensation runs an independent medical examination ("IME") program. The person requesting the exam pays $675.
The process of selecting the doctor to do the IME is complicated and we strongly recommend retaining an attorney before applying for a Division IME. You have a right to future medical benefits as long as they are ordered by the doctor, and a right to reopen your case in certain limited situations.
To protect these rights it is critical to respond in a legally appropriate way to any legal documents submitted by you employer or its insurance carrier affecting these rights, especially a Final Admission of Liability.
Insurance adjusters, employers, and even some co-employees may suggest that a lawyer is not necessary to help you protect your rights.
This is wrong!! Money is at stake. In fact, a study commissioned by the State of Colorado indicated that workers without attorneys received half the benefits of those with attorneys. Because of the complexity of the workers' compensation law, most individuals lack the ability to competently protect their rights. You are strongly advised to consult an attorney.
The workers' compensation law requires that the injury be reported in writing to the employer within 4 days of the accident. Do not rely on other people. Write the report yourself, file it with the Division of Workers' Compensation, and keep a copy unless you have already received a General Admission of Liability. Failure to report could cost you money. Assuming you informed your employer about your injury, the employer should have filed your claim if you missed more than three consecutive shifts from work.
Effective January 1, 2008, any employee injured on-the-job who notifies the employer of an on-the-job injury must receive a designated provider from the employer within seven business days. The employer is required to provide the injured worker with a written list indicating the insurer responsible for the claim, the contact information for the claim representative, and two individuals that are the designated providers. If the employer fails to do any of the above, the injured worker may select an authorized treating physician of the workers’ choosing. Additionally, within ninety days following the date of injury but before reaching maximum medical improvement ("MMI") an injured worker may request a one-time change of authorized treating physician. The new physician must be one on the designated provider list provided to the worker at the time of his/her injury. The requirements to make a change are complicated and counsel should be sought on this issue.
For injuries that occurred prior to January 1, 2008, The employer is allowed to select the doctor in the first instance. That doctor is authorized to refer you to any other doctors for treatment or testing. If the employer does not select a doctor, you can choose one. In some cases, if sufficient evidence is presented, a Judge will order that someone other than the company doctor provide medical care.
Regardless of how displeased you may be with your medical care, you must follow all your doctor's instructions. The law allows the insurance company to stop paying benefits if you miss one appointment which is rescheduled and then missed. Your benefits are stopped without notice or a hearing, so you must keep all medical appointments.
You should attend all testing or therapy appointments, do all home excercise programs, and live within the physical limitations set by the doctor. If you are unhappy with the care you are receiving, it is even more important that you follow your doctor's instructions. Keep your own records regarding such things as how long the doctor spent talking with you and examining your, what the doctor said, and what the doctor reccommended. You may be asked to testify about some of these issues later, so do not rely on your memory alone. Do not be surprised if it seems that the doctor cares more about the insurance company/employer than about your injury. Some doctors have practices that are largely dependent on insurance companies or employers for referrals. You should always treat the doctor with respect and report any problems to your attorney.
Save a copy of any medical records you receive.
You have to document these miles and submit them to the insurance company. This office has a form to help you keep track of your mileage in connection with all medical treatment, including physical therapy or chiropractic visits which you attend as part of your workers' compensation case. We can submit these forms and request mileage compensation for you.
Even though you may have serious doubts about your ability to perform the requirements of your former job, if any doctor clears you to return to work, even with restrictions such as "light Duty",you must try to return to work. You should report to your supervisor with your restrictions and offer to return to work under the restrictions. If they refuse to accept your offer advise us. If you return and cannot do the job due to your injury, then you should:
1. inform your supervisor
2. call to make an appointment with the doctor and
3. notify your attorney
Disputed issues are resolved either by negotiation or by hearing at the Office of Administrative Courts. Unfortunately, there is little that can be done to speed up the hearing process. The first step is to file an Application for Hearing. Ten to twenty days after the filing of the Application, the Office of Administrative Courts sets a date for the hearing. Typically, this is about three to four months later. These are trials. The insurance company/employer will be represented by an attorney.
You must remember that anything you say to the insurance company/employer may be used against you at a later date. Thus, in responding to questions to which you don't know the answer, do not guess or speculate. Rather, answer only those questions about which you have firsthand knowledge.
Because questions about average weekly wage frequently arise, you should obtain pay stubs for the six months before the accident. Your W-2 forms for the two years before the accident may also help establish your pay rate. If you were employed under a written contract, a copy of the contract is helpful. If any portion of your income came from overtime or IRS reported tips, it is important that you provide us with all the documents you have which show the amount of tips or overtime earned. Also collect documentation showing fringe benefits, such as employer contributions to your health insurance plan.
There has been an increasing amount of surveillance conducted by employers and insurance companies. At all times, you should follow your doctor's instructions regarding restriction of your physical activities. You should be aware that when you are in public, you might be photographed or filmed.