McDivitt Law Firm Very poor resolution on a 4 1/2 year old workers comp claim Colorado Springs, Colorado

I am writing today to express my extreme displeasure in the manner that McDivitt Law Firm, 19 E Cimarron St., Colorado Springs, CO 80903 handled a 4 year workers compensation case on my behalf.

Here are the facts of the case:

1. I was hurt on the job on July 21, 2007. I missed a step delivering a large order of pizzas and jammed my Achilles tendon on my left foot. With underlying peripheral arterial disease and diabetes, I was at risk for limb loss and subsequently became an above the knee amputee on July 26, 2007. I had previously been under the care of a very competent vascular surgeon and he opined that the missed step was likely the final straw that pushed me towards amputation. Regardless, the limb loss was a work related injury.

2. In looking at my options, I felt the need to engage an attorney to handle this tragic event. After examining on the internet all of the firms in town that handle these types of cases, one firm in particular stood out, it was McDivitt Law Firm. In particular it was one attorney, Sheila Toborg who caught my attention. Her credentials were more than sufficient and their website touted her as one of Colorado's most experienced and effective workers' compensation attorneys. I had a friend call and speak to an intake person and I was told that I should call her and explain the case more fully. I did and within a half an hour Mike McDivitt called me and said he was on the way to my hospital bed. We talked about the case and we signed an agreement on July 31, 2007.

3. By December of 2007 I was running out of money and I hollered loudly at someone on the other end of the phone at the law firm. So finally on December 10, 2007 the insurance carrier did admit to liability and back compensation was paid. I also applied online for Social Security Disability and it was approved at about the same time with back pay to February 2007 when Social Security determined that I was disabled do to my peripheral arterial disease.

4. I was never sent to a workers' compensation doctor by my employer or their insurance company. The workers compensation law is clear that in El Paso County I must be afforded managed care. I was not. Since I was under the care of my vascular surgeon I continued to follow his lead for stump and pain issues while he did needed work on my right side. I also continued to see my family doctor to follow my diabetes and general health issues.

5. In September of 2008 I complained to my family doctor about severe pain that had crept up in both of my hands, wrists and arms over the past six months. My wrists were hurting a lot and were so sore some mornings that it was very painful to pull a sock apart to put it on my foot. He diagnosed it as bi-lateral carpal tunnel syndrome and referred me to a Dr. at Memorial Hospital for an EEG test which confirmed the diagnosis on October 1, 2008. At this point I was just a medicaid patient so far as my family doctor was concerned as he does not desire to get involved in a workers compensation case, and so a subsequent referral to a hand surgeon followed the Medicaid payer instead of workers' compensation. The hand surgeon agreed with the diagnosis and said that the preferred plan was for surgery but I needed to be out of my wheelchair for that to happen and so he offered cortisone shots which gave me immediate relief for nearly a year. I have since been back for more injections.

6. On October 23, 2008 In a FAX to Kristen Becker, a paralegal at McDivitt Law Firm I let them know about my carpal tunnel syndrome and the general feeling that it had been caused by over use of my upper extremities. Ms. Becker advised me that The Attorney Sheila Toborg was aware of it and it was her intention that it be included as part of my case. One thing I have learned about attorney's and people who speak for them it never gets put in writing!

7. I had to seek all of my care pretty much on my own with no direction or guidance from either my attorney or any compensation doctor. When it came time for rehab, I had to seek it on my own. I first asked Dr. Kelly who saw me as an inpatient rehab patient while still at Memorial Hospital. He suggested that I see Dr. Castrejon who was an outpatient rehab Dr. The referral to see him actually came from my vascular surgeon.

8. The attorney for the insurance carrier had been harassing my vascular Dr. to be the Authorized Treating Physician on my case and at one point even fired him and sent me to two other vascular doctors, neither of which would get involved in my case.

9. I never saw an attorney or anyone at McDivitt Law Firm from July 31, 2007 when I signed with Mr. McDivitt until September 22, 2009. On that day I met with Kirk Whitehead at their offices on Cimarron St. It seems that Ms. Toborg had left the firm. So, on this day I am informed that there was a feeler of sorts from the other side concerning settlement. This attorney advised that we wait until I am at Maximum Medical Improvement. He never followed up so see what offer might be pending or what their thinking was on the other side. That was the only time I saw that attorney.

10. On January 11, 2010 Dr. Castrejon issued a Discharge Summary/Impairment Evaluation Report based on his 12/17/2009 final examination in which he found me to be at Maximum Medical Improvement. He found me to be at a whole person impairment of 41% which was later revised by him to be at 36% in a subsequent report. He noted my bilateral carpal tunnel syndrome to be stable and for maintenance care that I should retain access to repeat cortisone injections, brace replacement once per year, oral anti-inflammatory medications and bilateral carpal tunnel release.

11. On February 23, 2010 the insurance company issued a Final Admission of Liability in which the Carrier admitted to medical benefits after MMI per Dr. Castrejon's 12/17/2009 report.

12. The first week of March as I recall, there is yet another attorney assigned to my case, Matthew Gizzi. This attorney and the paralegal assigned to my case decided to challenge the rating of MMI by sending me to a Division Independent Medical Examiner. They are hoping that he will rate my carpal tunnel and perhaps find issue with the 36% whole impairment rating. The problem with this is that there was very little evidence of my hands deteriorating at that point in time. The hand surgeon saw me as a medicaid patient and I advised the firm in my October 23, 2008 FAX. My rehab Dr (also became the authorized treating physician) had noted only that it was stable.

13. On July 19, 2011 I meet with the DIME. He finds no carpal tunnel syndrome at all and instead finds that it is likely that I have a polyneuropathy related to my diabetes. When I went back to the hand surgeon he said that I could have that in addition to my bi-lateral carpal tunnel syndrome but the results of the EEG test were conclusive. This whole experience was not all all good. I got charged $675 for this DIME appointment. My attorney, at my request, arranged the transportation. Some lady picked me up very late in her private vehicle to take me to this appointment in Denver. On July 19th her air conditioning was broke. We were an hour late to my appointment and the Dr. was angry. He said because I was late, that I would get the short version. I complained loudly to the paralegal about the ride and she said that we would not pay for it. But on the final settlement I was charged $355.25 for this botched transportation. I complained about it at settlement but never got an answer back. Proves that you can not believe anything the legal team says. And to make matters worse, I was charged another $355.00 for this Dr. to do an additional records review. Had anyone consulted me, I may have said no to this additional review and I was never told of it, nor do I know when it even occurred. So altogether my attorney spent $1385.25 of my money just on this one Dr. that accomplished absolutely nothing to help my case. Seems like a huge error in judgment to me.

14. The end of July 2010 I received a bi-weekly workers compensation check that was short $53.20 from the usual amount. I faxed a copy of it with proper notations asking why. I received no response so I finally called the paralegal handling my case and she seemed puzzled and remarked that they had received no notice from the insurance carrier. What happened was the amount they owed me in bi weekly checks by the insurance company had been exhausted. I simply cannot believe that my legal team didn't have the same figures as the insurance company and their consul. Had they been paying attention, I should have been prepared for this to stop. There were numerous times questions that I posed to consul never got answered. In March of 2010 there was a $10,000 lump sum payment that got discounted down to $9519.95 and no one could give me an answer as to why.

15. The insurance company (Commerce & Industry, part of AIG) stopped my rehab after a second severe pain issue in my stump just as I was progressing over 450' on a 4-point cane. The pain issue did get resolved but I was never invited back to rehab.

16. My attorney had executed with me his standard Contingent Fee Agreement on July 31,2007. Paragraph 5 of this agreement said ATTORNEY will advance all necessary out-of-pocket expenses for medical reports, expert witness fees, filing fees, depositions and other similar costs but CLIENT, in any event, is to be liable to ATTORNEY for his reasonable expenses and disbursements. Such expenses and disbursements are estimated to be $2,200.00. Authority is given to ATTORNEY to incur expenses and make disbursements up to a maximum of $2,200.00 which limitation shall not be exceeded without CLIENT'S further authority

17. After my appointment with the DIME The Attorney, Matthew Gizzi arranged interviews with 2 different occupational therapists both of which duly noted the effects that over use of my upper extremities had caused. A Functional Capacity Evaluation was performed on March 3, 2011 by Gail Gerig, M.Ed, PT, CHT-retired. Among her findings she reported grip strength readings significantly below mean and tripod pinch strength below mean bilaterally. Her final conclusion was: Because of Ralphs chronic extremity symptoms, wheelchair level function, severely limited prosthetic use, severe bi-lateral hand symptoms which have increased with overuse because of wheelchair/walker use and current work restrictions return to work does not appear feasible. Additionally, there was a Workers Compensation Evaluation on April 11, 2011 by O.T. Resources Inc. The evaluators were Mary Capoccioni, OTR,CHT and Doris J. Shriver, OTR, FAOTA, QRC, CLCP. The Summary and Impression of these Evaluators are: Then injuries Mr. Zimmerman sustained on June 21, 2007 have eliminated work in the food delivery field or in any field in which he has prior vocational experience. If lifting, standing, walking and hand use are essential functions for work, he cannot do itWorker traits are overall at the 10th percentile compared to other workers. The combination of his limitations renders him unable to earn any wage. At this time Mr. Zimmerman is not a good candidate for vocational rehabilitation. His chronic pain levels, as well as impaired tolerance of standing, walking and extended hand use, and endurance for activity make it impossible for him to tolerate the vocational rehabilitation process.

18. Seems like The Attorney, Matthew Gizzi was trying to prove a case of total disability. But he never impressed me as a person who could win at trial. Most of what he spoke of was the fact the only about 20% ever win at trial. Problem was this was all too late. Had these reports been done BEFORE the DIME evaluation maybe we would have stood a chance.

19. The Attorney , Matthew Gizzi, drafted a settlement demand for $250,000.00 and sent it off to the other side. So far as I can recall from my notes, this happened about the third week of October 2010. There was no response and so he told me that it looked like they wanted to go to trial.

20. On May 23, 2011 The Attorney, Matthew Gizzi had arranged a settlement conference. Prior to this and very late in my case I was informed about a Medicare Set-aside Account. So any settlement monies would go to Medicare to pay for future medicals costs associated with my limb loss etc. I asked how this set aside amount was determined. He said it was negotiated. Not once was I ever made aware of the costs the attorney was incurring on my case. Of course I agreed to the experts because I had no information or another attorney to argue anything The Attorney, Matthew Gizzi was doing. Fact is he exceeded the $2200 contractual amount by over $4900 and never once advised me of what these experts would cost during the case nor how it might relate to any final settlement.

21. The settlement conference was a joke, in my humble opinion. We had faxed to the other side estimated future medical costs of $188,200.40. To arrive at that figure, The Attorney, Matthew Gizzi incurred an expense of $2700.00. of my money. So the attorney on the other side offered $106,317 take it or leave it. The Attorney, Matthew Gizzi never even had the presence of mind to ask what the difference was between between the $188,200.40 and what they offered at $106,317. The attorney for the other side did say that the figure was subject to review by CMS and that if it came in at that amount or under it would be capped but if the review came in over, then it would remain open. The Attorney, Matthew Gizzi and the paralegal, Kristen Becker advised me to accept the settlement saying we would do no better if we went to trail than their offer which also included $10,000 cash for home modifications.

22. So finally on September 30, 2011 I met The Attorney, Matthew Gizzi for the last time. I was horrified. The final net amount for the loss of my leg and functional use of my hands was $2883.19. That was the $10,000 for home modifications less the costs incurred which far exceeded the $2200 contractual amount. That final check was deposited with a without prejudice on the back above my signature.

23. So, from the time I was injured on June 21, 2007 until September 30, 2011 I received as cash to my pocket a whopping total of $27,930.00 or about $548.00 a month for the 51 months since my injury. Workers Compensation in Colorado leave much to be desired as does the Firm that represented me. And course to get that final whopping check I had to sign: By signature hereto, client acknowledges receipt of a copy of the foregoing disbursement schedule, agrees to the allocation set forth in the Disbursement Schedule and client is fully satisfied with the services of McDIVITT LAW FIRM,P.C. 24. They beat you down to where you have no choice but to agree. And of course, there is no recourse except to let everyone know just how crappy the laws are and how my case got so mismanaged. I had to sign the final settlement, The Attorney, Matthew Gizzi had to sign and then the other side and the judge also. I have since asked for a copy of those documents via email on November 8, 2010 and have received no reply. More than 6 months after the agreement and I see no sign of any set aside account at my-medicare account online. 25. The following is from the Centers for Medicaid and Medicare Services page on Workers Compensation Agency Services and Workers Compensation Medicate Set-aside Arrangements: The computation of the total settlement amount includes, but is not limited to, wages, attorney fees, all future medical expenses (including prescription drugs), and repayment of any Medicare conditional payments. Payout totals for all annuities to fund the above expenses should be used rather than cost or present values of any annuities. Also, any previously settled portion of the WC claim must be included in computing the total settlement amount. I have never been apprised of what the $106,317 is supposed to cover since was was a long way from the $188,200.40 that we had submitted. 26. I wrote to Mike McDivitt twice expressing my dissatisfaction in the way that my case was being handled. Once on March 22, 2011 and again on June 28, 2011. Neither letter got any written response. 27. My personal feeling is that the $250,000 settlement demand precluded any meaningful negotiations with the other side and so McDivitt Law Firm pats themselves on the back saying that they waived $23,263.40 in Attorney Fees. There was no settlement negotiation, just a take it or leave it offer from the other side . The less than $28,000 total that I received over the 4 years is a long way from the $250,000 demand and further away is the $10,000 for home improvements that McDivitt whittled down to less than $2900.00 28. I would complain to the Better Business Bureau but according to their website: We do not handle:workplace disputes;discrimination claims;matters that are or have been litigated;claims about the quality of health or legal services. It may very well be that McDivitt Law Firm and their staff did everything legal and made no errors in applying the law, nor broken any rule of ethics but concerning the facts of my case, I am not at all happy with the outcome and it is my sincere hope that this will at least initiate some meaningful dialog on workers compensation reform in Colorado. It is in no way possible a personal attack on any member of the law firm. Just stating the facts and extreme displeasure in the way my case was handled. As I read about the Colorado Supreme Court -Attorney Regulation Counsel, I doubt that any complaint I might make through them would not find a serious violation of their code of ethics. Attorneys are like legislatures, they make their own rules to protect themselves so if they make a mistake, everyone has their back. 29. I did in fact write Mike McDivitt on August 23, 2011 thanking him and his staff for the job they did. I was thinking that I'd at least walk away with a good bit of the $10,00 that the other side offered up for home improvements to make me safe in my home. It was a month later that I learned they had eaten up most of it in fees paid to others well over and above the maximum contractual agreement to which there is no remedy other than to let others know of the facts. 30. So, I have lost functional use of my arms, wrists and hands and will probably need assisted devises to walk forever, all of which severely limits my enjoyment of life and employ-ability. And of course, I have the rest of the story. My sincere hope is that this will cause anyone to investigate the firm they may hire to represent them much more carefully than I was able. Don't be fooled by all the TV ads. Everyone knows someone who has been hurt on the job. November 26, 2011