Unjust “Treatment” In Colorado’s Workers’ Compensation System

Certain fundamental injustices are inherent to the Colorado Workers’ Compensation system. Below, I outline a few of the issues that don’t always receive the public attention they deserve.

“Fraud for thee but not for me…”

C.R.S. 8-43-402 states that it is a Class 5 felony “if, for the purpose of obtaining any order, benefit, award, compensation, or payment” in the workers’ compensation system, “or for self-gain or for the benefit of any other person, anyone willfully makes a false statement or representation material to the claim.” Also, if a workers’ compensation Claimant does so, they “shall forfeit all right to compensation under said articles upon conviction of such offense.”

Presumptive penalties for Class 5 felonies in the state of Colorado are: (1) fines ranging from $1,000.00 to $100,000,00; (2) 1 to 3 years in the Colorado State Prison; and (3) two years of parole.

The statute clearly leans into punishing individuals who lie to obtain benefits. In my career as a workers’ compensation attorney spanning roughly 30 years, I’ve rarely seen it deployed. Whether that means it actually works to dissuade miscreants, however, is likely unknowable. Because losing at least one-third of income is an immediate result of missing work in the system, maybe lying to obtain “any order, benefit, award, compensation or payment” isn’t quite the lucrative grift some assume it to be. (Note: it isn’t.) But if a public purpose is served by penalizing those who lie to obtain workers’ compensation benefits, it is past time to amend the statue and make it equally clear that anyone who lies to prevent an injured worker from obtaining benefits is equally offensive and also subject to prosecution. Far too often, I encounter insurance-company hired doctors who, perhaps for the sake of securing additional income from the insurance company who hired them, seem willing to put the insurance company’s “wants’ before an injured workers’ needs. In those instances where protecting their income steam crosses the line into making false statements, shouldn’t there be consequences?

The Money Hammer

Generally, in Colorado, employers get to pick the doctors who treat their injured employees. Depending on the employers’ location, they may have to provide the injured worker with up to four different choices, but that hardly “cures” the power imbalance. Moreover, despite that gross imbalance of power, employers and their insurers can also second-guess treatment recommendations made by doctors (again, the ones they picked). They can force injured workers to undergo so-called “independent” medical examinations (IMEs). This happens whenever the self-inured employer or workers’ compensation insurer does not feel like paying for treatment (like an expensive surgery) recommended by one of the treating physicians they picked to treat the injured worker.

In practice, and not surprisingly, the doctors hired to perform these “independent” medical exams often issue opinions favoring the people who pay them to meddle. This system can prevent injured workers’ from getting the reasonable, necessary and/or related medical treatment they need.

In fact, over time injured workers can be forced to attend multiple IMEs during the life of their claim. Additional IMEs can even be with different doctors. Pursuant to C.R.S. § 8-43-404-(1)-(a) injured workers can be forced to submit to these IMEs “from time to time” and nothing in the law flatly bars a self-insured employer or workers’ compensation carrier from switching to a different doctor if they weren’t satisfied with the “service” provided by their first hired gun.

Injured workers cannot refuse to attend these IMEs without risking the loss of benefits. Of course, injured workers can go to court and fight to obtain the treatment they need. But to do that, the injured worker is often forced to spend as much money to fight for care as the injured workers’ employer or insurer spends to keep them from getting it. That’s unjust and is another case of deep pockets prevailing over empty ones. The workers’ compensation laws in the state of Colorado should be amended to balance the IME system. When an injured worker is forced to attend an IME, the self-insured employer or workers’ compensation carrier who scheduled that IME should be required to pay the injured worker an amount equal to what was spent on the IME. This would enable the injured worker to pay for an IME with a doctor chosen by the injured worker.  After all, it is the self-insured employers and insurance companies who force injured workers to attend IMEs. They should bear the full cost of a process they started.

Finally, when considering whether our workers’ compensation laws should be amended to level the playing field, we need to remember that, in 1998, the Colorado Supreme Court concluded that, unlike treating physicians, IME physicians owe no duty of care to the injured workers they evaluate. Martinez v Lewis,  969 P.2d 213 (Colo. 1998). While IME doctors cannot cause, or contribute to cause, actual physical injuries to injured workers, the opinions provided by IME doctors can be just as devastating. The opinions if IME physicians often can and do prevent injured workers from getting treatment that the injured worker’s treating physicians deemed reasonable, necessary and related.  At the very least, the IME process forces injured workers to spend money they rarely have just to secure treatment recommended by actual treatment providers. Sadly, according to Martinez, IME doctors owe a duty of care only to the people who pay them.

It’s unlikely that this will change in the near future. Unless and until it does, however, injured workers will never enjoy some of the “freedoms” that only money can buy.