Colorado Workers’ Compensation Hospital, Medical & Surgical Benefits

INTRODUCTION TO COLORADO WORKERS’ COMPENSATION MEDICAL, HOSPITAL & SURGICAL BENEFITS

The Colorado Workers’ Compensation Act provides a comprehensive benefit system, including medical treatment, to injured workers who sustain an injury covered by the Act.  These medical benefits are provided at absolutely no cost to the injured worker, and, as such, there are no co-pays, waiting period, or deductible to meet to start or continue to receive these benefits.  This medical, hospital and surgical treatment is fully funded by the injured worker’s employer and/or the employer’s worker’s compensation insurance company.  There is no time or monetary limit on medical and hospital benefits under Colorado Workers’ Compensation law.

COLORADO EMPLOYER’S OBLIGATION TO PROVIDE PROMPT MEDICAL, HOSPITAL & SURGICAL CARE TO INJURED WORKER

Under the Colorado Workers’ Compensation Act every employer of an employee or employees in the state must provide medical, surgical, hospital and/or rehabilitation services as are reasonable, necessary and related to such worker’s injury or occupational disease both at the time of the initial injury and thereafter to cure and/or relieve that worker from the effects of his or her injury and/or disease. C.R.S. § 8.42.101(1)(A)  In Colorado employers have 20-days to admit or deny responsibility for payment of an worker’s claim, including the providing of medical, surgical, and hospital treatment for that worker. C.R.S. 8.43.203(1)(a)  An employer will deny its injured worker medical treatment by filing a NOTICE OF CONTEST with the Colorado Division of Labor and sending a copy as well to the injured worker and/or the worker’s attorney.

EMPLOYER CANNOT ASK EMPLOYEE TO WAIVE RIGHT TO MEDICAL TREATMENT FOR AGGRAVATION OF A PRE-EXISTING INJURY

An employee cannot waive or be asked by his or her employer to waive and/or limit his or her right to workers’ compensation including medical, hospital or surgical benefits for an injury causing an aggravation of any pre-existing, underlying or even a dormant condition under Colorado law. C.R.S. § 8.41.205

Injured Worker’s Medical Benefits Cannot Be Reduced Based On Prior Injury To That Body Part

Once it has been established that a worker has suffered a substantial and identifiable aggravation of a pre-existing condition otherwise compensable under the Colorado Worker’s Compensation Law his or her medical, hospital & surgical benefits will not be reduced or otherwise limited because of this prior injury or disability—even if a permanent disability award or settlement has been paid for on prior injury case.  To be clear—100% of an injured worker’s medical treatment will be paid for by his or her employer in Colorado for a compensable injury caused by an aggravation of a prior and/or underlying injury or medical condition. C.R.S. 85 § 8.42.104(3)

Employer Responsibility For Providing Prosthetic Devices Under Colorado Workers’ Compensation Law

Under Colorado Workers’ Compensation Law in any case where a workers’ injury causes the loss of any member or part of the employee’s body, to include the loss of vision or hearing, the worker’s employer must provide that worker with any prosthetic device, artificial limb or member which are reasonably needed to restore as well as possible the normal functioning of that part of the worker’s body so affected.  A Colorado employer’s responsibility for providing prosthetic and/or other medical devices includes, but is not necessarily limited to the following items: (1) eyeglasses, contact or implantable lenses; (2) hearing aids and other implantable devices; (3) braces and other external assistive &/or prosthetic devices; and (4) dentures. C.R.S. § 8.42.101(1)(b)

Injured Worker May Petition Colorado Workers’ Compensation Court For Replacement Prosthetic Device Where Employee Has Undergone Anatomical Change Of Condition.

Under Colorado Workers Compensation Law any injured worker, previously awarded a prosthetic device, may petition the Division of Workers’ Compensation for a replacement of that artificial device (i.e. glasses, contacts and/or other implantable lens, hearing aids, artificial joints, etc.) if that worker can prove to the Court that he or she has undergone an anatomical change since the original device was implanted or otherwise provided to that employee and that replacement of the device or prosthetic is now required as a direct and proximate result of the worker’s anatomical change of condition and otherwise to improve function of the artificial device or prosthetic or to relieve the worker of injury related pain and other discomfort. C.R.S § 8.42.101(1)(b)

Prosthetic Devices Can Be Replaced When Such Is Recommended By Injured Worker’s Authorized Treating Doctor

Prosthetic, implantable and other medical devices needed to regulate, repair and/or replace organs or structures of a worker’s body can be repaired, updated or replaced at the employer’s expense when and if that worker’s authorized treating physician recommends that such is necessary to promote or cause the continued utility of the implantable and/or prosthetic device.  This would include devices and implantable medical devices such as hearing aids, implantable cornea(s), orthopedic rods, screws, plates, artificial joints (knees, hips, and shoulders), implantable pain pumps, cardiac pacemakers stents and heart valves, and spinal cord stimulators. C.R.S § 8.42.101(b)

WORK RELATED MEDICAL EXPENSES TO BE PAID ACCORDING TO COLORADO ‘FEE SCHEDULE’

Colorado has established a workers’ compensation fee schedule under which all charges and fees for medical treatment rendered to an injured worker will be reimbursed and/or paid.  In all reality it is a maximum fee or ‘cap’ above which a medical provider cannot charge, since, however, there is no prohibition on a medical provider charging less than the fee schedule for treatment rendered to an injured Colorado employee.  The fee schedule applies to virtually all medical services provided to an injured worker with a Colorado Workers’ Compensation case and covers all hospital, surgical, nursing, chiropractic, therapy and physician charges.  It is illegal for any doctor, hospital, chiropractor and/or other medical provider to bill or charge an amount in excess of that amount provided for in the fee schedule for treatment rendered for an industrial injury covered under Colorado’s compensation law–unless such charges are approved by the Colorado Workers’ Compensation Court. C.R.S. § 8.42.101(3)(a)(I)

COLORADO’S ‘TWO -TIER’ ACCREDITATION SYSTEM FOR DOCTORS PROVIDING MEDICAL TREATMENT AND IMPAIRMENT RATINGS TO HURT WORKERS

Colorado has established a ‘two-tier’ training & accreditation system for doctors providing primary medical treatment and impairment ratings in Colorado workers’ compensation cases.  These classifications can be summarized as follows:

• Level I Physician Accreditation For Primary Injury Care Providers

The level one program provides the accreditation, training and skill requirements for those doctors providing direct primary care to injured workers covered under the Colorado Compensation System for what are called ‘lost-time’ injuries, i.e., those where the hurt worker has been caused to miss work for three or more shifts. C.R.S.§ 8.42.101(3.6)(a)(I)  Any physician providing primary care treatment to a hurt worker with a no ‘lost-time’ injury need not be accredited under the Colorado Workers’ Compensation System. C.R.S. § 8.42.101(3.6)(i)

• Level II Physician Accreditation For Doctors Providing Permanent Impairment Ratings To Injured Workers

Any physician providing a injured worker with an impairment rating for use under the Colorado Workers’ Compensation Act must be Level II Certified.  Interestingly enough a physician does not have to be level II accredited to provide an opinion that an injured worker is without impairment–and can be merely Level I Certified. C.R.S § 8.42.101(3.6)(a)(II)(b)

It should be noted that Specialists providing treatment to injured workers under the Colorado Worker’s Compensation Act (i.e. Orthopedic Surgeons, Neurosurgeons, Neurologists, Hand Surgeons and the like) do not have to be either Level I or Level II Accredited–but can choose to become accredited.  However-if a specialists wants to provide permanent impairment ratings in the Colorado Compensation System he or she must follow and become Level II certified. C.R.S. § 8.42.101(3.6)(a)(II)(b)

The Colorado Division of Workers’ Compensation provides a list, updated monthly, of all physicians who are either level I or II certified—as well as any physician who has lost such accreditation. C.R.S. § 8.42.101(3.6)(k)

PROVIDER CANNOT DEMAND PAYMENT FROM HURT WORKER FOR TREATMENT DEEMED COMPENSABLE UNDER COLORADO LAW

After an injured worker’s employer and/or its workers’ compensation insurance company files either a General (GAL) or Final Admission of Liability (FAL), or a final order has been issued by the Colorado Workers’ Compensation Court finding a worker’s medical treatment compensable under Colorado law—a medical provider cannot attempt to recover costs for that treatment directly from the injured worker. C.R.S. § 8.42.101(4)  Likewise, a worker’s employer and/or its insurance company cannot seek reimbursement from that worker for medical treatment voluntarily provided except in the case of fraud.  C.R.S. 8.42.101(6)(a)

ENTITLEMENT TO ‘CONTINUING MEDICAL MAINTENANCE’ UNDER COLORADO WORKERS’ COMPENSATION LAW

Employer Must Accept Responsibility For Continuing Maintenance Recommended By Treating Doctor Where Contrary Opinion Unavailable

Under Colorado Workers’ Compensation Law in any case where a hurt worker’s treating doctor recommends what is otherwise uncontroverted continuing medical maintenance treatment—the employer, or the employer’s work comp insurance company, is required by law to accept responsibility for the same by preparing a FINAL ADMISSION OF LIABILITY for this reasonable and necessary maintenance care.

Injured Worker Entitled To Award Of Costs For Denied Or Untimely Payment Of Continuing Medical Maintenance Benefit

If an injured worker, or that worker’s Colorado Workers’ Compensation Attorney, is forced to request a court hearing on that worker’s entitlement to contested continuing medical maintenance benefits all as recommended by the worker’s authorized treating doctor—The Court shall award that worker his litigation costs of the proceeding.  Such costs, however, do not include the worker’s attorney fees. C.R.S. § 101(6)

EMPLOYER MUST REIMBURSE INJURED WORKER FOR MEDICAL TREATMENT COSTS PAID FOR BY WORKER DURING PERIOD COMPENSABLE CLAIM IS DENIED

If and after an injured worker gives his or her employer (or its insurance carrier) proper and timely notice of his or her injury, and the employer does not provide the worker with necessary medical treatment for an otherwise compensable claim—that employer must reimburse the worker for all reasonable and necessary medical treatment costs that worker receives for his or her injury rendered during the period of any neglect or refusal to provide treatment by the employer and/or its insurance carrier. C.R.S. § 8.42.101 (6)(a)

If an injured worker has paid out-of-pocket for medical treatment otherwise deemed compensable under the Colorado Workers’ Compensation Act and in an amount in excess of that payable under the Colorado Fee Schedule—that worker’s employer, or its workers’ compensation insurance company, must reimburse the worker for the entire amount paid by the worker for that treatment. C.R.S. § 8.42.101(6)(b)

EMPLOYEE CAN REQUEST EXPEDITED COURT HEARING ON DENIED CLAIM FOR MEDICAL TREATMENT UNDER COLORADO COMPENSATION LAW

Under the Act an hurt worker and/or his or her Colorado Workers’ Compensation Lawyer can request an expedited court hearing if that worker’s employer has denied liability for the claim entirely or, if the claim has been admitted, for specific medical treatment in particular.  However—such APPLICATION FOR EXPEDITED HEARING must be filed by a Colorado Worker’s Comp Attorney within forty-five (45) days after the date of mailing of the NOTICE OF CONTEST by the injured employee’s employer and/or the employer’s workers compensation insurance company. C.R.S. 8.43.203(1)(a)  Once this all has been done—an expedited hearing will be set within forty (40) days of the expedited application for such if the issue is medical benefits only C.R.S. § 8.42.105(2)(a), or sixty days if the case has been denied entirely C.R.S. 8.43.203(1)(a).  However—these dates can be extended for ‘good cause’ shown. C.R.S. 8.43.209  Otherwise, if an injured worker and/or his or her Colorado Work Comp Attorney fail or neglect to request an expedited hearing pursuant to this section the normal rules for asking for and setting hearings on Colorado compensation cases apply and the case will be set in regular order. C.R.S. 8.43.203(1)(a)

Medical Disputes Resolved By Judges With Colorado OAC

Original Disputes regarding an injured worker’s initial entitlement to workers’ compensation benefits under Colorado law, or any other dispute regarding the type, duration and nature of medical treatment a worker receives under Colorado law will be decided and resolved by an Administrative Law Judge (“ALJ”) with the Office of Administrative Courts (“OAC”).  The injured worker and/or his or her Workers’ Compensation Lawyer have the burden to prove, by a preponderance of the evidence (i.e. more likely than not), that the worker is entitled to the medical benefits asked for. C.R.S. § 8.43.201(1)

Utilizing Colorado Medical Treatment Guidelines In Court

Although an Administrative Law Judge with the Office of Administrative Courts can refer and rely upon the Colorado Medical Treatment Guidelines in reaching his or her decision regarding an injured worker’s entitlement to medical benefits—he or she is not is bound by these regulations and can reach a decision not mandated by these Guides. C.R.S. 8.43.201(3)

RESOLVING DISPUTES INVOLVING ‘MAXIMUM MEDICAL IMPROVEMENT’ AFFECTING ONGOING TREATMENT

As described above, an injured worker’s right to receive active medical care, mainly surgery, injections and other interventional treatment and therapies, under Colorado Law, ends when that worker has been determined to have reached his or her maximum medical improvement.  Disputes regarding when, in fact, and injured worker reaches MMI abound.  An injured worker and/or his or her Colorado Workers’ Compensation Attorney may want to dispute a finding by a treating doctor or independent medical examiner that the worker has reached MMI since that worker feels he or she needs further active treatment, including surgery, or additional time to heal.  On the other hand–an employer and/or its workers’ compensation insurance company may challenge a finding by an examining or treating physician that the worker’s condition is not stable and further active treatment and time is needed to reach that point.  C.R.S. § 8.42.107(8)(b)(I)

Disputes under the Colorado Workers’ Compensation System regarding the issue of maximum medical improvement are resolved as follows.

Mandatory Colorado Division Of Worker’s Compensation Independent Medical Examination (‘DIME’) To Resolve MMI And Treatment Disputes

Colorado has developed a comprehensive network and system of independent medical examiners maintained by the Colorado Division of Labor and Employment for resolving many disputes arising under the Colorado Workers’ Compensation Act–including disputes over whether a given injured worker either has, or has not, reached his or her maximum medical improvement.  In fact, the system is mandatory for resolving MMI disputes and an injured worker must be examined by a Division doctor before the issue of MMI can be litigated in Court.

Initiating The DIME And The “Twenty-Four-Month’ DIME

Either the employer or most typically the injured employee can challenge the determination by the treating physician that the worker has reached maximum medical improvement by simply requesting a Division of Workers’ Compensation Independent Medical Examination (commonly referred to as a ‘DIME’).  C.R.S. § 8.42.107.2(2)(b)  However–if the treating physician has not made a decision that the injured worker has reached MMI, an employer and/or insurer dissatisfied with that failure to do so may only request a Division Independent Medical Examination after the following three (3) preconditions have been met:

1. The worker’s injury is at least two-years old;
2. That the employer and/or insurer has asked the worker’s treating doctor to provide a medical opinion as to the hurt worker’s MMI status–and the physician has responded that the worker is still under treatment and not at MMI;
3. That another doctor (usually a one-time defense medical examiner paid for and scheduled by the work comp insurance company) has provided his or her opinion that the hurt worker does not need any further active medical treatment and has, contrary to the opinion of the treating doctor, reached maximum medical improvement.

C.R.S. 8.42.107(8)(B)(II)

An employer initiated DIME challenging a treating doctor’s opinion that his or her patient has not reached MMI is commonly referred to as a ‘twenty-four-month DIME’.

Division IME’s Opinion On MMI Can Only Be Overcome By ‘Clear-And-Convincing’ Evidence

A Division IME’s finding that a worker has either reached or not reached MMI can only be overcome in Court by ‘clear and convincing evidence’. C.R.S. 8.42.107(8)(b)(III)

Selecting Division Independent Medical Examiner (DIME) To Determine MMI And Need For Further Treatment

The rules for selecting a DIME doctor vary depending on whether it is the injured worker, or his or her employer, who is challenging the treating doctor’s opinion on MMI and need for further treatment.  These rules can be summarized as follows:

• Claimant Initiated DIME: An injured worker, and/or his or her Colorado Workers’ Comp Attorney, who disagree with a treating doctor’s opinion on maximum medical improvement and/or further treatment, must request a Division IME within thirty-days of filing of a FINAL ADMISSION OF LIABILITY by the worker’s employer and/or insurer. C.R.S. § 8.42.107.2(2)(a)(I)(A) & (2)(b)
• Employer Initiated DIME: Any employer taking issue with a treating doctor’s failure to place the injured worker at MMI has thirty-days following that disputed finding to request a DIME. C.R.S. § 8.42.107.2(2)(a)(I)(B)

If either party fails to properly request an IME within the time frames given above–the findings of the treating doctor as to the injured worker’s MMI status and need for further active treatment are binding on the parties and the Court. C.R.S. § 8.42.107.2(2)(b)

Cost: The party requesting a Division IME pays for it. C.R.S. § 8.42.107.2(5)(a)

Negotiating, Selecting Or Striking Doctors From Colorado Division Three-Doctor Panel

The party initiating the IME process will put forth the names of three doctors acceptable to that party.  The parties at that point will have thirty-days to negotiate the selection of a physician to perform the Division Independent Medical Examination.  If the parties can agree on an examining physician–that doctor will be notified of his or her selection.  If, however, the parties cannot agree on a doctor notice should be given by the employer to the Division of Workers’ Compensation of such failure. C.R.S. § 8.42.107.2(2)(b) & (3)(a)  The Division will then provide the parties with the names of three doctors selected at random from a list of level II accredited doctors.  Both parties will strike one doctor’s name from the list–the requesting party going first.  The physician not stricken will operate as the Division IME and will conduct the examination and determine whether the injured worker has, indeed reached MMI and what, if any, additional treatment is needed in the case. C.R.S. § 8.42.107.2(2)(b) & (3)(a)

Procedure Upon Receipt Of The Division Independent Medical Examiner’s Report

An employer and/or its work comp insurance carrier, within twenty-days of receiving the Division IME report addressing MMI and further treatment has two choices: (1) file an admission of liability for benefits consistent with the DIME report; or (2) request a court hearing contesting the IME’s findings on MMI and further treatment. C.R.S. 8.42.107.2(3.5)(c)