Denver Worker's Compensation Info: September 2016

Friday, September 16, 2016

Amendment 69 and Workers' Compensation

Passage of Amendment 69 Could be Bad News for Colorado Workers’ Compensation
by Kaplan Morrell
Colorado has long been a sort of “proving ground” for new and tentative legislation. Some reasons for this is our status as a swing state and the ease of getting initiatives on our voting ballots in the first place. National groups frequently test proposals in our state, and often the proposed legislation is quite extraordinary. Take legalized recreational marijuana in 2012, for instance. This election year will be no different, and there will be several controversial initiatives on the ballot for voters to decide upon, such as “right to die” and raising the minimum wage to $12. One such ballot initiatives that is of particular interest for Colorado’s workers’ compensation system is universal health care.

Amendment 69 – ColoradoCare Ballot Initiative

This proposed amendment is an attempt to introduce a single payer system, also called universal health care, to Colorado. The proposed program, named ColoradoCare, would replace the Affordable Care Act. Estimates place the yearly price tag for ColoradoCare at around $25 billion dollars. A business and worker tax, along with an increased state tax rate, is meant to pay for the program. This tax option does away with deductibles and medical insurance premiums. However, this tax increase would practically double the current state budget, and saddles Coloradans with the highest income tax rate in the nation.

Accountability is questionable. This program is to be run by a board of 21 members who will be elected by plan members. Furthermore, there are no real specifics about what the new plan will cover, just what programs it will replace. The board will retain sole authority on coverage decisions. Hospital and doctor reimbursement levels are uncertain, calling into question continued quality care under the new system.

Potential Impact on our Workers’ Compensation (WC) Program

ColoradoCare will collect funding and administer the Colorado Workers’ Compensation program, as well as all other state and federal programs, with the exception of Medicare. This has the very real potential of destabilizing a well-functioning system. Our Workers’ Compensation program in Colorado is widely viewed as one of the best in the nation, as it efficiently balances affordable premiums for employers and the provision of fair benefits for injured employees. Denver Workers’ Compensation attorneys are a big part of this system.

– Overhaul of how the Colorado Workers’ Compensation program works

Currently, the system both replaces lost wages and provides medical care for injured workers. The proposed single-payer system will remove the healthcare portion of this system from the program and move it under ColoradoCare. It’s not known how the new set-up will work with only wage replacement under WC, but confusion and disarray are far too likely. There is also the question of cost. Employers currently pay for Workers’ Compensation insurance to cover all of the benefits for injured employees. They will now pay a higher tax rate for ColoradoCare and still be on the hook for the indemnity portion of Workers’ Compensation. It’s a quagmire.

– Unsettles a working system

Workers’ Compensation in Colorado does more than pay out benefits. It promotes worker-safety programs and encourages employers to prevent workplace injuries. Providers and established Workers’ Compensation health professionals are experienced in managing worker injuries. They collaborate with employers and workers to help them get to maximum medical improvement and get back to their jobs safely, whenever possible.

– Eliminates subrogation

Workers Compensation is a no-fault system. But sometimes, there is fault, due to a non-employer third-party. In these cases, Workers’ Compensation insurers can pursue monetary recovery from the negligent party through subrogation. With the passage of Amendment 69, first rights to subrogation cedes to ColoradoCares. This loss of funds impacts the insurers and injured workers ability to recover for injuries.

– More Unknowns

At this time, it is not even known whether ColoradoCare will cover the incidental expenses that Workers’ Compensation in Colorado addresses, such as transportation to medical appointments. And there is no guarantee that injured workers will continue to be able to see qualified professionals in occupational medicine and other specialties that are required to give injured employees the best possible specialized care in a timely manner. Overall, there are simply too many variables and unknowns to enthusiastically support Amendment 69 for implementation of ColoradoCare in our state this November. For individuals who are injured at work, the best thing they can do is seek a qualified attorney. Our top rated Denver workers’ compensation attorneys can help injured workers file their claim, get the medical care they need, and help them seek lost wages to help cover living expenses and medical bills.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Tuesday, September 6, 2016

Companies Can't Set Own Rules For Injured Workers

A national campaign to rewrite state laws and allow businesses to decide how to care for their injured workers suffered a significant setback Tuesday when the Oklahoma Supreme Court ruled that Oklahoma's version of the law is unconstitutional.

The 2013 legislation gave Oklahoma employers the ability to "opt out" of the state workers' compensation system and write their own plans, setting the terms for what injuries were covered, which doctors workers could see, how workers were compensated and how disputes were handled. The statute was backed by the oil and gas industry and retailer Hobby Lobby.

Buoyed by the success in Oklahoma, proponents took the idea nationwide as a coalition led by Wal-Mart, Lowe's and several of the largest retail, trucking and health care companies sought to pass similar laws across the country. Bills and draft proposals have been floated in Tennessee, South Carolina, Georgia, Mississippi, West Virginia, Wisconsin and Illinois.

Last year, an investigation by ProPublica and NPR found that the plans typically had lower benefits and more restrictions than workers' comp. The story was part of a series on how states have been dismantling workers' comp, which was designed a century ago to protect businesses from lawsuits while providing medical care and lost wages to workers who had been hurt on the job.

Tuesday's decision is the latest in a series of state Supreme Court rulings that have struck down several business-driven workers' comp laws featured in the ProPublica and NPR investigation.

The Florida Supreme Court struck down laws that placed strict caps on attorney fees and limited workers to two years of temporary disability pay regardless of whether they were able to return to work. Two-year caps have also been passed in California, North Dakota, Oklahoma, West Virginia and Texas.

In addition, the top Oklahoma court in April overturned a provision that drastically cut compensation for workers who suffered permanently disabling injuries. Florida, New York and Tennessee have also significantly reduced benefits for such injuries in the past 13 years, but those provisions are still in place.

The stories also prompted two groups — one of academics and one of workers' comp regulators — to schedule separate forums later this month to discuss the various changes that have occurred and ways to improve workers' comp.

Oklahoma's ruling leaves Texas as the only state that lets employers opt out of workers' comp insurance.

Bob Burke, a longtime workers' comp attorney who has filed several successful challenges to Oklahoma's new law, called opt out "the biggest attack on the American worker" since he started practicing law.

Had the Supreme Court not acted, the Oklahoma opt-out law "would have deprived injured workers out of necessary surgeries and weekly benefits," he said in an email. "Opt out also would have allowed companies to shift the cost of paying for work-related injuries to Medicare, Medicaid and Social Security."

Bill Minick, a Dallas lawyer whose company PartnerSource wrote most of the Oklahoma opt-out plans and about half of those in Texas, said in a statement that the ruling was specific to "Oklahoma's unique constitution." He vowed that his company and other supporters would continue their efforts to promote the alternative plans in other states.

"We believe it's critical to provide better care and benefits for injured workers, decrease the number of disputed claims and significantly decrease insurance premiums and claim costs for all employers," he said.

The Oklahoma case involved an employee at Dillard's department store who injured her neck and shoulder while lifting shoe boxes in 2014. Dillard's, which had opted out of workers' comp and created its own benefit plan, initially paid for her medical care. But the company later denied her claims, insisting that any further damage and surgeries she might need were due to a pre-existing degenerative condition and not her injury at work.

In a 7-2 ruling, the justices found that such opt-out plans were unconstitutional because they treated one group of injured workers differently from all other injured workers in the state. In a concurring opinion, Justices Noma Gurich and Tom Colbert noted that while most Oklahoma workers have 30 days to report an injury and can request a hearing before a judge, Dillard's employees had to report injuries by the end of the workday and could only appeal in writing to a committee made up of people picked by the company.

The court sent the case back to the state's workers' comp commission to determine whether the injury was work-related and what benefits, if any, the woman should receive.

Original Source