Colorado Workers' Comp Law Blog» Benefits

Are There Limits on My Colorado Workers’ Compensation Benefits?

Spencer & Spencer — Thu, 03 Feb 2011 14:53:59 +0000

Colorado statutes determine what benefits you will be entitled to in your Workers’ Compensation claim. Those benefits can have limits, otherwise known as “caps.”

Some cash benefits have caps

When you’re injured at work, you may be entitled to medical and cash benefits. But the law limits the amount of cash benefits you can receive.

TTD benefits are capped

The maximum Temporary Total Disability (TTD) rate is set each year, and is based on the statewide average weekly wage.

As we explained in an earlier post, TTD is paid at the rate of two-thirds of your average weekly wage. But if your average weekly wage exceeds the state’s average weekly wage, you will not get more than the maximum TTD rate.

Currently, that means that if your wage exceeds $1216 a week (the state’s average weekly wage for 2010), the most you will get in TTD benefits is $810.67 – which is two thirds of $1216.

TTD and PPD benefits are capped based on your rating

In addition to a limit on your weekly cash benefits, the total amount of TTD and PPD benefits you can receive for an injury in Colorado can be limited by the impairment rating you receive when you reach Maximum Medical Improvement (MMI).

If your whole-person rating is less than 25%, the most you will be entitled to in TTD and PPD combined is $75,000.
If your whole-person rating is greater than 25%, the total amount of TTD and PPD cannot exceed $150,000.

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This blog provides general information. Do not mistake it for legal advice. Please read our disclaimer.

When Should I Report an Injury That Happened at Work?

Spencer & Spencer — Mon, 27 Sep 2010 20:31:20 +0000

In Colorado, the law requires you to notify your employer of an injury within four days.

And you must notify them in writing.

Some things to keep in mind:

If you don’t report an injury within the four-day period, a judge can reduce some of your benefits.
The statute of limitations for most claims in Colorado is 2 years. This means that most claims must be filed with the Colorado Division of Workers’ Compensation within two (2) years of the injury.
The sooner you report your injury, the better.

Problems you may run into:

Don’t believe your employer or insurance company if they tell you your claim is denied simply because you didn’t give the required notice within four days. You have a right to have your case decided by a judge, not the insurance company.
Some supervisors or bosses don’t want to file an injury report because they think it will reflect poorly on them so they may suggest that you just wait a few days and see how you feel. Don’t do it – file a report.
Your employer may or may not have a form for you to fill out. Even if they don’t, write out a short statement to turn it in to a manger. Keep a copy for your records.

There are many deadlines and exceptions to those deadlines in the Colorado workers’ compensation system. An experienced workers’ comp. attorney can help you figure out whether your claim was filed on time.

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Should I Use My Health Insurance Instead of Filing a Workers’ Comp. Claim?

Spencer & Spencer — Tue, 21 Sep 2010 17:40:54 +0000

No. If you have been injured on the job in Colorado, don’t let your employer pressure you into not filing a claim.

Even if your employer questions whether the injury happened on the job, they must assist you with filing a claim.

It is common for employers of all sizes to pressure employees into not filing claims. A large California grocery chain was recently fined for systematically discouraging injured workers from filing workers’ compensation claims for their injuries. Store managers told workers to just use their health insurance.

Problems with using your health insurance instead of workers’ comp.:

To have your health insurance cover your medical treatment, you will have to lie to your doctor about how you were injured. –The doctor’s office needs to know who to bill, and if they think this is a work injury, they will want to know who your workers’ comp. carrier is.
If your health insurance finds out that the injury happened at work, they will stop paying for treatment, and then you will be responsible for all of those bills.
After your health insurance stops paying, you will need to file a workers’ comp. claim to get treatment. And the workers’ comp. insurance carrier will most likely deny your claim.
You will now have to fight to get your injury covered by workers’ comp.
To get the claim covered under workers’ comp. you’ll likely have to go to court. In court you will have to explain why you didn’t report the injury when it initially happened, why you lied to your doctor, and why you later changed your story. How likely do you think it is that the judge will believe you?
Even if later you file for workers’ comp, they could deny payment based on the fact that your doctor is a non-authorized doctor. Again, you’ll be responsible for all of those bills.

What happens if I cannot convince a judge that my injury happened at work?

your medical expenses related to the injury will not be covered,
you will not be eligible for lost time benefits (TTD),
you will not be eligible for compensation for your permanent injury (PPD),
you will not be eligible for permanent total disability if your injury is serious enough to prevent you from working.

The bottom line is, DO NOT let your employer pressure you into not filing a claim if you are hurt at work.

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What is TTD or TPD?

Spencer & Spencer — Tue, 14 Sep 2010 19:46:59 +0000

TTD:

TTD is “Temporary Total Disability” benefits.

In Colorado, TTD is paid when you are totally off work due to a work-related injury. TTD is paid at the rate of two-thirds of your average weekly wage (not to exceed a state maximum that changes each year).

TPD:

TPD is “Temporary Partial Disability” benefits.

In Colorado, TPD is paid when you are able to return to work, but because of your restrictions, you can’t work full-time or are earning less wages. You will be paid two-thirds of the decrease in wages.

TTD & TPD are based on your Average Weekly Wage (AWW)

An incorrect average weekly wage can result in you not getting all the benefits you are entitled to. How your average is determined is very important.

Frequently, insurance carriers will average wages by going back a year. This may not reflect the wages you were earning when you were injured. It is important to fight for an average weekly wage that accurately reflects what you were actually earning.
Commissions and overtime can be overlooked by the insurance company when they calculate your average weekly wage. You have to make sure that your employer has accurately reported your overtime and commissions. Seasonal earnings must also be factored in to get an accurate picture of your average earnings.
Certain fringe benefits such as employer-paid health insurance, paid meals and lodging should also be factored in to the computation of your average weekly wage.
Have you held more than one job? Your average weekly wage should reflect that. If you were working two different jobs when you were injured and are unable to work at either job because of your injury, your average weekly wage should be based on both jobs.

You will receive TTD or TPD until one of the following happens:

You are released to work at full duty. When you can return to your old job, TTD will stop. This is true even if the employer no longer has a position available for you.
You are returned to work with restrictions and your employer provides a job within these restrictions for the same hours and wages.
You are terminated from your job for fault. See our previous post on being fired while getting workers’ comp. in Colorado.
You quit your job.
You reach maximum medical improvement (MMI). MMI is when your medical condition is not expected to improve significantly. Even if you aren’t able to return to your old job because of restrictions, TTD stops.

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In Colorado, What Medical Benefits Are Covered by Workers’ Compensation?

Spencer & Spencer — Tue, 20 Apr 2010 18:06:43 +0000

If you are injured on the job in Colorado, your employer’s workers’ compensation insurance will pay the medical expenses related to your injury.

Some examples of medical treatment that are covered are:

Physical therapy
Surgery
Injections
Prescriptions
Follow-ups with your doctor(s)
Mental health treatment, including therapy or counseling
Blood work
Imaging scans such as MRIs or X-rays
Massage therapy
Chiropractic treatments

For the insurance carrier to pay for these costs, they have to be authorized. Usually, treatment that is recommended by your workers’ comp. doctor is authorized for payment.

But there are times when the carrier will not authorize a particular treatment, or refuses to reimburse you for treatment that you needed and paid for yourself. That is when having an experienced workers’ comp. attorney on your side can make a difference.

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Will Getting Social Security Affect My Workers’ Compensation Benefits?

Spencer & Spencer — Mon, 12 Apr 2010 20:35:57 +0000

Colorado is what is known as a “reverse offset state,” which means that Colorado workers’ compensation benefits are reduced (or offset) by Social Security disability benefits.

It is called “reverse offset” because in most other states Social Security is reduced if you get workers’ comp. benefits.

If you receive Colorado workers’ compensation benefits, your benefits will be reduced during any month that you are also eligible for Social Security benefits.

The reduction is one-half of the Social Security benefits you were entitled to when your Social Security was first awarded. This is also called your “initial entitlement amount” or “primary insurance amount.”

For example, if your workers’ comp. benefits are $1,000 per month, and your Social Security (initial entitlement amount) was $500 per month, your workers’ comp. would be reduced to by $250, down to $750.

There is currently a bill pending in the Colorado Legislature (SB 110-187) that would eliminate the offset for Permanent Partial Disability benefits (PPD). We will keep you posted if that passes.

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What is a Final Admission of Liability?

Spencer & Spencer — Fri, 05 Mar 2010 22:02:22 +0000

If you have a Colorado Workers’ Compensation claim, at some point your insurance company will send you either a General Admission of Liability, or a Final Admission of Liability. These documents list the benefits that the insurance company thinks it should pay you.

The General Admission has no deadline attached to it, but the Final Admission has some very important deadlines that you must meet.

The Final Admission of Liability is used by the insurance company to close your workers’ compensation case. It is generally filed after your treating physician has placed you at maximum medical improvement (MMI) and issued a report stating whether you have any permanent impairment from your injury.

Key facts about your Final Admission of Liability:

This is one of the most important documents that you will get in your case.
You have only 30 days from the date of the admission to respond to it.
The 30-day deadline is very strict.
If you miss the deadline you can destroy your case.
Protecting your rights at this stage of your claim is very important.

What do I have to do when I receive a Final Admission?

You must file an Objection to Final Admission within 30 days from the date the admission was mailed to you.
You must also either request a hearing or ask for a Division Independent Medical Examination (DIME).

Deciding whether to request a hearing or DIME is best left to an experienced attorney.

The insurance company is required by law to include two forms with the Final Admission: (1) the Objection to Final Admission and (2) the Notice and Proposal to Select a Division IME. But they are not required to send you a copy of the Application for Hearing form. As a result, you may not even have all of the documents you need to protect your right to seek additional benefits for your injuries!

You must be very careful when deciding to ask for a DIME.

The selection of the DIME doctor can make or break your case.
Choosing the DIME doctor can have drastic consequences for your case. If your case ends up in court, the DIME doctor’s opinion is entitled to extra weight, and can only be overcome with “clear and convincing” evidence.
It is crucial to select a doctor who is likely to be fair to you. Overcoming the opinion of the DIME doctor is usually very difficult. Generally, judges will not find that a DIME doctor is wrong.
The law requires you to negotiate with the insurance company and try to agree on a doctor to perform the DIME. Of course, the claims adjuster has done this multiple times and knows which doctors are more likely to favor the insurance company and the employer. On the other hand, you have no way to know which doctors tend to be fair.
For this reason, its easy for the adjuster to take advantage of you and trick you into agreeing to an unfavorable doctor. At the very least, you lose the opportunity to suggest a reasonable doctor that the insurance company might agree to.
If you cannot agree with the adjuster on a doctor to perform the DIME, the Division of Workers’ Compensation will issue a list of three doctors, and each side has a chance to strike one doctor. The adjuster knows what doctor on the list will give them the best result, but probably won’t know which doctor is most likely to be fair to you.

For these reasons, it is generally advisable to have an experienced attorney working for you to maximize your odds of a favorable DIME.

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Are You an Employee or an Independent Contractor?

Spencer & Spencer — Wed, 24 Feb 2010 20:31:41 +0000

The economic downturn has led some companies to cut payroll costs by illegally classifying workers as independent contractors rather than employees.

If you work as an independent contractor you will have no workers’ compensation coverage if you are hurt on the job, unless you purchase your own coverage.

It can be a blurry line between being an employee or an independent contractor, but it is important to know which you are.

Here are some tips for determining your status to make sure you receive the benefits you deserve and to prevent yourself from being taken advantage of.

How Many Companies Do You Work For? – A good indicator that you are an independent contractor is when the you do the same type of work for multiple companies.
Is Your Employment Permanent?– If you are hired with the expectation that the job will be permanent, or until further notice, you are generally considered an employee.
Are You Reimbursed for Expenses? – Independent contractors are more likely to have expenses that are not reimbursed by the company. But employees are generally reimbursed for business-related expenses.
Do You Provide Your Own Workspace or Tools?– Independent contractors will usually have an office or work space, or tools, equipment, or supplies that they pay for themselves.
How Often Are You Paid?– Independent contractors are typically paid by the job, while employees are paid by the hour, week, or month.
Who Pays for Your Benefits? – Independent contractors typically do not get benefits from the company, while employees, if eligible, receive benefits such as insurance, pension plans, vacations, sick days, and workers’ compensation coverage.

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What Your Adjuster May Not Tell You

Spencer & Spencer — Fri, 12 Feb 2010 00:44:51 +0000

Colorado Workers’ Compensation law is complex and difficult to understand. While this may be the first time you have dealt with the law, it is not the first time your adjuster has. You must be sure that you know the law before you agree to anything that the adjuster suggests.

There are many areas where the adjuster can try to pull the wool over your eyes and hope to get one over on you because you don’t know your rights.

Mileage For Medical Treatment:

You are eligible to be reimbursed for mileage to and from any medically prescribed treatment in Colorado workers’ comp cases.

“Medically prescribed” mileage is mileage to and from any type of treatment for your condition that is prescribed by your doctor, including:

physical therapy,
picking up prescriptions,
surgery and
appointments with your doctor.

Your adjuster may not tell you that you are entitled to this reimbursement.

Your Treating Physician:

Under Colorado law, your employer has the right to choose a doctor for you. But if your employer doesn’t choose a doctor you may have the right to choose your own doctor. Once the doctor is chosen, it cannot be changed unless you and the insurance company agree to a new doctor.

Your Average Weekly Wage and Fringe Benefits:

The benefits you receive for your time off work are calculated from your average weekly wage (AWW). If you are unable to return to work due to your work injury, you are entitled to receive Temporary Total Disability (TTD) or TPD benefits. TTD is two-thirds of your average weekly wage.

What you may not know is that certain fringe benefits such as employer-paid health insurance, paid meals and lodging should also be factored in to the computation of your average weekly wage.

Independent Medical Examinations:

Once you are put at Maximum Medical Improvement (MMI) by your doctor, either you or your insurance company can request a second opinion through a Division Independent Medical Examination (DIME) The DIME doctor will decide whether they agree with your doctor’s date of MMI, and will calculate an impairment rating.

Choosing the DIME doctor can have drastic consequences for your case. If your case ends up in court, the DIME doctor’s opinion is entitled to extra weight, and can only be overcome with “clear and convincing” evidence. Therefore, it is crucial to select a doctor who is likely to be fair to you.

The law requires you to negotiate with the insurance company and try to agree on a doctor to perform the DIME.

Of course, the claims adjuster has done this multiple times and knows which doctors are more likely to favor the insurance company and the employer.
On the other hand, you have no way to know which doctors tend to be fair.
For this reason, it is easy for the adjuster to take advantage of you and trick you into agreeing to an unfavorable doctor.
At the very least, you lose the opportunity to suggest a reasonable doctor that the insurance company might agree to.

If you cannot agree with the adjuster on a doctor to perform the DIME, the Division of Workers’ Compensation will issue a list of three doctors, and each side has a chance to strike one doctor. The adjuster knows what doctor on the list will give them the best result, but you are unlikely to know which doctor is most likely to be fair to you. For these reasons, it is generally advisable to have a competent attorney working for you to maximize your odds of a favorable DIME.

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Can Being on Facebook or MySpace Hurt My Workers’ Compensation Case?

Spencer & Spencer — Tue, 29 Dec 2009 23:49:54 +0000

Yes it can.

Many insurance defense lawyers are aware of Facebook, and routinely do searches for claimants. If your Facebook page is set to allow anyone to view it, everyone, including the insurance company’s lawyer can see what you’ve posted. Many people are not aware that the default privacy setting gives you no privacy.

Recently, Dollar Tree used MySpace to bust a fraudulent claimant.

Even people who have legitimate claims should be careful about what they post online. Photos and posts can easily be taken out of context and used against you in court. Even the number of times you post things on your page could be used to show that you can work at a clerical job.

Things to keep in mind:

What photos or videos are posted that might hurt your case?
What comments have you made that might hurt your case?
Have you made excessive comments that might make it look like you can type a lot and can work?
How does your profile look to people who don’t know you?

If you use social media:

Be very careful about any pictures you post or things you say about yourself. One lie can damage an otherwise good case.
Most importantly, check your privacy settings and make sure that only people who know you are able to view your profile.
Or, disable your profile altogether.

You should also keep in mind that anything you post or do online may stick around on the Internet for a long time. If you have any concerns about these issues, you should discuss it with your attorney.

Some helpful links:

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2010 Colorado Workers’ Comp Mileage Rate is Going Down

Spencer & Spencer — Wed, 25 Nov 2009 21:02:44 +0000

As of January 1, 2010, the Colorado workers’ compensation mileage rate is decreasing from .55 a mile to .52 a mile.

You can be reimbursed for travel to and from treatment for your condition that is prescribed by your doctor, including:

physical therapy,
picking up prescriptions,
surgery,
and appointments with your doctor.

It is important to track and submit your mileage on a regular basis. Be sure to keep an accurate log of your miles. Your adjuster will probably use mapquest or another online mileage estimator to verify the number of miles you list.

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