Frequently Asked Legal Questions

Colorado Workers Compensation, Personal Injury and Car Accident Questions and Answers

I’ve been injured at work, what now?

The insurance carrier for the employer usually determines what happens in a workers’ compensation claim, but if you have been hurt the place to start is with the employer. You must notify your employer in writing of the injury within 4 days. The employer must provide you with the names of at least two doctors to see for your injury. The choice of doctors is one of the most important things that occur in a claim, and usually the person who is hurt has not had a chance to consult with a lawyer experienced in workers compensation when this choice is made. As a result claimants are frequently dissatisfied with the treatment they get from the “insurance” doctor. Click Here to view the Colorado Department of Labor and Employment's Division of Workers Compensation rules and procedures for filing a workers compensation claim.

If they have failed to provide two doctors there are remedies that an attorney can pursue. In addition, a change of doctors can be made but only within the first 90 days after the injury. If you are approaching 90 days it is critical that you talk to an attorney to see if there is an option you can pursue.

The insurance company will have to decide if they are going to admit on the claim, or contest the claim, within 20 days of being notified of the injury. They may provide treatment with a physician and still not admit on the claim. The reason they do this is because they do not want the injured worker, or the attorney for the claimant, picking a doctor for treatment. By offering medical care they can still deny the claim, or consider it “under investigation” and keep control of the choice of physicians.

Even if the claim is admitted there are substantial advantages to having an attorney. The insurance company does not want the claimant to get an attorney. They know that cases involving attorney cost them more than cases where there is no attorney. The reason is simple, attorneys experienced in workers compensation know when the insurance company is not paying the benefits they owe, they know what to ask for, and how to ask for it. An attorney can tell if their doctor is trying to get the claim concluded rather than providing proper care, and they know how to get another physician involved if that becomes necessary.

At or near MMI, what comes next?

If the authorized treating doctor has said that you are at, or nearing, MMI (maximum medical improvement) then you are at a point in the case where some decisions will have to be made about how to proceed. There are a number of decisions that have to be made at this point in a case. If you are unfamiliar with how the workers compensation system operates these decisions can be fatal to your claim, and, at a very minimum they will substantially affect both the benefits you are to receive and your rights as an injured worker. Remember the insurance company is not interested in you. They are interested in paying the least amount possible in benefits and they will show us this over and over again during the course of any given claim.

What is MMI?

Maximum Medical Improvement generally means that the authorized treating physician has determined that there is no further treatment that can be offered to help you to get any better. This doesn’t mean that you have completely recovered from your injury, though that could be true. You could still have pain, limitations and restrictions, but be at MMI. You could still be in need of treatment, or have medications that are being prescribed, and be at MMI.

What happens when I am at MMI?

When someone is placed at MMI then the insurance carrier is no longer obligated to pay temporary total disability (TTD). The doctor must notify the insurance carrier that MMI has been reached and determine if the person has permanent disability (PPD) as that is defined in the Colorado Workers Compensation statutes. The insurance company will not stop TTD until they have the doctors’ report on permanent disability, so there is usually a period of time when you are at MMI but still receiving temporary benefits. They will consider these an overpayment and, if they owe permanent disability, will take it from the amount that they pay for PPD. This happens in nearly every case and is to be expected because of the time lag between MMI and getting the doctors report on permanent disability.

Example

"Joe" is getting temporary disability of 250 a week and is put at MMI by his doctor at his March 15th appt. He is scheduled for a FCE (functional capacities evaluation) for March 30. The therapist does the FCE and reports the findings to the doctor. Joe sees the Dr on April 5. The Dr. gives him a 7% impairment rating for his back injury. The doctor sends the report to the insurance company indicating 7% impairment and MMI on March 15th. The insurance company does a Final Admission of Liability of April 15th. They agree with the doctors rating of 7% and start paying permanent disability to Joe, but they say they have an overpayment of $1,000.00 (the TTD they paid from March 15th to April 15th).

How does the doctor determine the impairment rating?

When you are placed at MMI the doctor has to decide if there is permanent impairment. In many cases they will say there is no permanent impairment and the person will be released to return to work with no restrictions. (0%)

If there is permanent impairment the doctor must use the AMA Guide to Permanent Impairment 3rd Ed. to decide what impairment is appropriate. For the most part the guide will have the doctor, or his therapist, doing range of motion testing to determine impairment. It is important that you give your best effort in this testing because the guide requires the doctor to do each test 3-6 times for validity. If the range is off by more than 5% it is deemed invalid so a person trying to limit their range of motion to get a higher rating usually ends up with an invalid test and no impairment rating for that portion of the test. There is an entire book on permanent impairment so this is not all that goes into it, but this is the most common situation, and there are additional things added in by the doctor after range of motion is done.

In Colorado there is a distinction made between injuries to the extremities (arms, legs) and those to the rest of the body (called whole person). The statutes here require the insurance company to use a different table for payment for extremity injuries and generally this means that arms, shoulders, legs and hips will be paid out separately. Currently, if you were injured in 2008, the maximum that you could receive for total loss of use of the arm or leg is -----------, so a 10% impairment of the leg would be------. This figure changes slightly each year so injuries in prior years would use a different number. This is based on the schedule of disabilities found at CRS 8-43-107. In extremity cases (arms, legs) permanent impairment is not affected by age or how much you were making at the time you got hurt.

Permanent impairment for injuries not covered on the schedule of disabilities (like backs or necks) is based on a formula that takes into account your impairment rating, your age and your average weekly wage (make sure you have told us of any disagreement you have with the AWW, or if you had OT, two jobs, employer provided health insurance or just got a raise prior to your injury). UNDER THIS SYSTEM TWO PEOPLE WITH EXACTLY THE SAME INJURY CAN GET PAID VERY DIFFERENT AMOUNTS OF PERMANENT DISABILITY.

Example:

Bob is 21, making 7.25 an hour and has a 10% impairment rating from his doctor. George is 50, making 21.00 an hour and also got a 10% rating. Bob would get-----, George would get----------. Using the formula, Bob would be given credit for being younger, and have more work years left ahead of him, but would get substantially less because his average weekly wage is a lot less than Georges.

IMPORTANT TO KNOW!

Permanent impairment is NOT affected by whether someone can, or cannot, return to the job or profession they had prior to the injury.

Permanent impairment is NOT affected by inability to do the recreational things you could do prior to the injury, your relationship with your spouse, kids or significant other, or your “pain and suffering”. While all of these things are significant and important they are NOT covered under the workers compensation statutes.

What happens after the doctors determines my impairment rating?

The insurance company must decide if they agree or disagree with the rating. If they agree they will file a FINAL ADMISSION OF LIABILITY. Generally they will agree because they got to choose the doctor. The Final Admission will have the doctors report attached and will state what permanent impairment they are admitting for, and whether they are admitting for medical benefits to be provided after the date of MMI. (called maintenance treatment because it is treatment designed to assist the injured worker to MAINTAIN their level of maximum medical improvement).

If the insurance company disagrees with the doctors’ impairment rating they must file a request for an independent doctor chosen by the Division of Workers Compensation (DIME) to do an evaluation and determine impairment. If they are the ones to request the DIME they must continue to pay TTD until the independent doctor issues his report, but if the DIME doctor says he agrees with the original doctors date of maximum medical improvement there will be a significant overpayment that will be deducted from the permanent disability they owe you.

What if we decide that we disagree with the doctor on MMI or impairment?

If the doctor puts you at MMI and we disagree with either the MMI determination or the impairment rating that you were given the ONLY option available to us to ask for the Division of Workers Compensation Independent Medical Exam. The physician is picked by sending the names of three doctors to the attorney for the claimant and to the insurance adjuster or their attorney. Both sides get to eliminate one name so that the doctor that is left is the one to do the exam. (The choice of doctors here is VERY important and should be made by an attorney who is experienced in workers compensation because only someone who practices in this area will have experience with these physicians and be able to eliminate the physicians most likely aligned with the insurance company).

The DIME doctor cannot be someone who has been involved in your case or working for the same company as a doctor on your case. The insurance company must send all of the medical records from your case to the DIME doctor. Neither party is allowed to talk to the doctor, so the only one that gets to speak to the physician is the injured worker. The cost of the exam is $675.00. If you qualify as indigent the insurance company can be required to pay for this but that application must be submitted to the Division of Workers Compensation soon after the DIME application goes in.

The DIME doctor can agree or disagree with the authorized treating physicians rating, or can say that someone is “not at MMI” and require the insurance company to provide more treatment. Unfortunately this means going back to the doctor that just said you were at MMI for the treatment. The DIME doctor cannot be a treating physician.

What if I can’t go back to work at all?

There are cases in which an injury prevents a worker from going back to work in any job for which the worker has previous training or skill. In these cases it is very important to know what your rights are and how to challenge the insurance companies Final Admission of Liability. Failure to timely object to the Final Admission means the case will close and they will only be responsible for those benefits that are admitted on that document. If the injured worker can’t go back to work at any job it is unlikely the insurance carrier will admit this and pay these benefits. In this case please talk to an attorney before the 30 days to object has expired.

Social Security Disability and Workers Compensation can be similar in this area. An attorney can describe the differences and make recommendations concerning pursuit of one or both claims.

Car Accidents, Questions, Answers, and Information

A major emphasis in the practice at Franklin D. Azar & Associates is the representation of individuals injured as a result of motor vehicle accidents.

Unfortunately, driving or riding in a car can have dangerous results. According to statistics kept by the National Highway Transportation Safety Administration, there are currently almost 6 million auto accidents in the United States reported to the police each year, and nearly one-third of them resulted in injuries that were reported at the scene. The Colorado Division of Motor Vehicles reported that in 2004 there were nearly 250,000 motor vehicle accidents in Colorado with one-fourth of them resulting in fatalities or injuries reported at the scene. In many cases, people are injured in auto accidents but do not develop symptoms immediately afterward or seek medical attention at the scene, so the actual injury rate is higher than these statistics reflect.

If you have had the misfortune of being injured due to the negligence of another in an automobile accident, you probably have numerous questions concerning what will happen next and how to recover for your losses. Without experienced legal counsel to advise you, obtaining optimum results may seem a daunting task.

At Franklin D. Azar & Associates, we have a large team of attorneys and supporting staff to represent victims of automobile accidents competently and aggressively. The key areas where we can provide assistance are described below.

Who Is At Fault?

In most cases, a law enforcement officer will be dispatched to the scene of an accident to investigate and attempt to determine the person at fault. In many cases, the officer’s opinion of who was at fault will be accepted by the parties and the insurance companies. In many other cases however, the investigating police officer will be unable to reach a decision on fault or the officer’s decision will be questioned or even disregarded by one or more of the parties or insurance companies.

In Colorado, evidence of the particular traffic citation that anyone received in an auto accident is not admissible evidence at trial on the civil claim, although the investigating officer may still be allowed to express an opinion on who caused the accident.

The on-site investigation performed by the police officer, sheriff’s deputy or state trooper is not always exhaustive. It must be kept in mind that they have varying degrees of training and experience and their main job is to attempt to secure a criminal conviction of the person who they believe is primarily at fault. The more serious auto accidents receive more attention from law enforcement, but even in those cases there may be evidence that is not obtained or considered. If warranted, an outside accident reconstruction expert may be retained to provide a more thorough analysis and report.

Colorado has a comparative negligence law, which means that in a civil case a jury may be asked to consider whether more than one person was at fault for the accident. The injured person is not allowed to recover to the extent of their own fault or negligence. For example, if the injured person is found to be 10% at fault, then he or she will not recover 10% of his or her damages or losses. If the injured person is found 50% or more at fault, he or she recovers nothing. Insurance companies often assert that the injured person does bear some of the fault for an auto accident and so refuse to pay the victim to that extent. We often can develop evidence and argue effectively on your behalf should comparative negligence be asserted as a defense against you.

How Do I Get Medical Treatment?

Other than going or being transported to an emergency room, many people may not know where to turn next for medical treatment after an accident. Colorado law requires that automobile insurance companies offer their policyholders medical-payments coverage that will pay up to at least $5,000 in medical bills even if another person caused the accident, but that coverage may be quickly exhausted in the first few weeks after an accident. If you have private health insurance, that will typically pay for medical treatment after an accident although most health insurers have the right to be reimbursed the medical bills that they pay due to an accident out of any recovery the injured party receives.

Many people, including some health care providers, believe that the insurance company for the driver who caused an automobile accident will pay the medical bills as they are incurred by anyone else injured in the accident. That ordinarily is not the case. The at-fault driver’s insurance company has no obligation to do so unless there is medical-payments coverage on the vehicle that driver was operating in the accident, and that coverage applies only to passengers in that vehicle. Otherwise, the insurance company for the at fault driver will typically not want to pay anything towards the medical bills or the other losses suffered by the victims unless there is a final settlement under which those damages are paid in exchange for a release of any further claims.

Without health insurance or sufficient medical payments coverage, the only option for most auto accident victims is to obtain medical treatment on liens, meaning that the victims sign agreements to pay the medical bills from the potential recovery by settlement or verdict on the case. Not all doctors and other healthcare providers will see patients on this basis. We are able to arrange medical treatment on liens for most of our clients when there is no insurance coverage available to pay the bills as they are incurred.

What If I Did Not Wear a Seat Belt?

Colorado law has two basic requirements as to seat belts. Front seat passengers must wear their seat belts. Back seat passengers are not required to wear seat belts, but the driver is responsible to have any children in the front or back of the car restrained by a seat belt and to use a car seat or booster seat for them as appropriate.

Failure to wear seat belts when required is not considered negligence in Colorado, but it is a defense to claims for non-economic damages, which includes compensation for things like pain, suffering, anguish, inconvenience, and loss of enjoyment of life. Therefore, a jury may consider whether it believes that the injuries and so the non-economic consequences could have been reduced or avoided had the victim worn a seat belt if they were required to do so. Economic damages, which include past and future medical bills and past and future loss of earnings, are not reduced in Colorado due to any failure to wear a seat belt.

Colorado law does not require that the party asserting a seat belt defense prove that the seat belt probably would have made a difference. If you did wear a seat belt at the time of your auto accident, we may be able to establish through expert testimony or otherwise that wearing a seat belt would have made little or no difference. The primary function of a seat belt is to keep the passengers inside the car in the event of an accident, and many people suffer injuries even when they wear seat belts in accidents. In fact, seat belts may serve to cause or worsen certain types of injuries.

Can I Make Claims under My Own Auto Insurance Policy?

The initial reaction a lot of people have after an accident is that the at-fault driver and his or her insurance company should pay for all the damages and losses due to the accident. However, there are several instances when we recommend that our clients use their own auto insurance coverage.

Colorado law requires that insurance companies offer medical payments coverage of at least $5,000 to everyone taking out an automobile insurance policy in this State, although such coverage can be rejected. This coverage, also known as “med pay,” pays medical bills incurred by anyone in the insured motor vehicle at the time of an accident. Priority is given under Colorado law to the bills incurred to ambulances and the initial trauma care providers. Unlike payments made with health insurance, the injured person does not have to pay back the payments made under med pay.

Colorado law also requires that insurance companies offer uninsured motorist (“UM”) coverage of at least $25,000 per person, $50,000 per accident to everyone taking out an automobile insurance policy in this State, although such coverage also can be rejected. This coverage provides compensation in the event the person or persons at fault in an accident are not insured. UM coverage must also act as under-insured motorist coverage to provide additional compensation when the at-fault person or persons are insured but the amount of the liability insurance is not sufficient to compensate the injured person in full.

Victims of automobile accidents should not hesitate to take advantage of either med pay or UM coverage if available to them, as they or whoever took out the insurance policy has paid a premium for the coverage in the event of an accident. We can assist with obtaining these coverages, especially where the issues become complex, including when an at-fault party is considered uninsured or under-insured, or whether multiple insurance policies may apply to provide med pay or UM benefits.

If the injured person and the insurance company cannot agree on what compensation is owed to the injured person in UM benefits, we can determine whether the insurance policy allows for arbitration or requires litigation to resolve the dispute and whether the uninsured party or parties must be included in the lawsuit. If the insurance company unreasonably denies or delays the payment of UM benefits, we may be able to hold it liable for damages beyond just the benefits it should have paid when the claim was first presented.

Can insurance be mentioned in the trial of a personal injury case?

The existence of insurance coverage on any defendant generally cannot be mentioned by any of the parties in the trial although defendants are typically insured. Injured persons must sue the person or persons who caused their injuries and do not have the right in Colorado to sue the at-fault parties' insurance companies, although insurance companies normally pay for the defense of the lawsuit and pay the amount of the verdicts or judgments up to the limits of coverage.

Can evidence of who received the traffic ticket in a motor vehicle accident be introduced at trial?

Generally evidence of who received a traffic ticket is not admissible in a civil trial as it pertains to injuries and damages from an auto accident in Colorado. This is because a statute in Colorado prohibits admission in any civil action of evidence of conviction of a traffic violation, and cases have held that evidence of who was given a ticket is also not admissible. The judge presiding in a civil trial has discretion whether to allow the investigating police officer to give an opinion as to which driver caused the accident to occur.