Author Archives: Steven Gurwin

REOPENING A CASE

I am often asked about the possibility of reopening a case.  While under some circumstances it is possible to reopen a case, it can be very difficult to do so.

There are two main ways that a case can be closed.  The first way is if you settle the case with the insurance company, and actually sign settlement documents.  These documents are usually about 3-6 pages long, and they are required to be signed in front of a notary.  It is pretty easy to know if you have gone through this process, since you should remember if you signed settlement documents and then had them notarized.

If your case has been closed by a settlement, then you have given up your right to reopen, except in two very limited situations. You can reopen your case if you can prove that there has been fraud by the insurance company, or a mutual (both parties) mistake of material fact.  Both of these situations are extremely difficult to prove.  Therefore, if your case has been closed based on a final settlement with the insurance company, chances are that you will not be able to get it reopened.

The second way a case can be closed is by Final Admission of Liability, and this is quite common.  What this means is that the insurance company has sent out a Final Admission of Liability, and you did not properly object to it within 30 days.  If you did not object to the Final Admission within 30 days, then your case has automatically closed.

Reopening a case that has been closed by a Final Admission of Liability is also not easy.  It generally requires you to prove a worsening of your condition.  That means you have to prove that since the time the case was closed, your condition has significantly worsened.  If you go into court and prove that you need surgery, that is not enough.  You must also prove that your condition has become significantly worse.  This is the difficult part, since the insurance company might agree that you need surgery, but claim that even though you need surgery your condition has not gotten any worse since the time the case was closed.

As you can see, reopening issues are always very difficult, and you can expect the insurance company to fight very hard to prevent your case from being reopened.  That is why it is always best to do whatever is necessary to keep the case open, and not let it close.  If the case does not close, then you will not have to worry about getting it reopened.

The best way you can make sure that your case will not be closed is to have a good attorney who understands the complexities of reopening, and who can make sure that the insurance company is not permitted to close your case.

What’s an Arm Worth?

As previous posts have mentioned, Colorado pays out permanent disability benefits based upon an “impairment system”, as opposed to a ‘disability system’.  What this means is that if you lose or injure a particular body part, the amount that you can recover is determined by the particular body part involved, and not the effect which the loss or injury has on your ability to earn a living.

For example, if a landscaper and an attorney each lose an arm, they would both be entitled to receive the same amount in permanent disability benefits.  The fact that the landscaper could no longer do his job or earn any money, but the attorney could still continue working without a wage loss, does not matter. They would both receive the same amount.

Under the old system (prior to 1991), the effect which the injury had on the worker’s ability to earn a living was very important.  Considering the above set of facts under the old law, the landscaper would be entitled to a much greater award than the attorney, since the injury affected his ability to earn a living.  This is no longer the case, since the law has changed, and each would now be entitled to receive exactly the same amount.

Furthermore, the amount which is paid out for different body parts is woefully small.  For example, loss of an arm at the shoulder may pay under $60,000.  Loss of an arm at the elbow pays less, and loss of a hand pays even less.  When it comes to fingers, even in the cases of a brain surgeon or a concert pianist, who can no longer do their respective jobs, it is not unusual for the payout to be several hundred dollars.

 

Colorado Workers’ Compensation- Over 100 Years

100This year marks 100 years since Colorado enacted its first workers’ compensation law. Before the law went into effect, an injured worker would have to sue the employer in court, and prove that the employer was negligent. In other words, the injured worker would have to prove in court that the injury was the fault of the employer. The problem with this is that it often took a long time to get into court, sometimes even years. During this time, the injured worker was without any monetary or medical benefits. Another problem is that it is often very difficult to prove that the employer was at fault, meaning that the injured worker would lose the case. Also, there are many injuries that are caused by nobody’s fault. In these cases, the injured worker would also lose.

The workers’ compensation law which was enacted in 1915 made workers’ comp a “no fault system”. This means that if an injury occurred at work, it is generally covered. It does not matter whose fault the injury was, or whether it was anybody’s fault. Unlike the old system, where the injured worker had to wait years to get into court, the no fault system was designed to insure that the case would be decided promptly, and that the injured worker would get lost wages and medical benefits if the judge found that he had a legitimate work-related injury.

In exchange for these good changes, the injured worker gave up the right to sue his employer in court. Even today, it is still not possible for an injured worker to sue his employer in court if he is injured on the job.

However, things are not always as they seem. Over the years, there have been many changes to the workers’ compensation act. Most of those changes have taken rights and benefits away from the injured worker. For example, it has become harder and harder for an injured worker to prove that he is totally disabled. Also, the insurance company now has very strict control over the doctors who the injured worker has to see during the course of the workers’ compensation case. The insurance company selects the doctors and pays the doctors. This means that the doctors who will be treating you after an injury may be more concerned with making the insurance company happy than with providing you with good medical care.

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