The Legal Buzz – Lee & Brown Newsletter and Case Law Update August 2018

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn
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In the News

Lee & Brown was proud to be a sponsor in the third annual charity ride and rally hosted by Sturgeon Electric, July 14, 2018. This great event was a benefit for Freedom Service Dogs of America, a non-profit organization that transforms shelter dogs into custom trained, life-changing assistance dogs for people in need. Thank you to everyone who supported, sponsored, and rode to raise over $30K for this important cause!Enjoy the video: https://www.youtube.com/watch?v=yaVBBY3r_ZA
 
 
 

Noteworthy Cases

Joseph Gren Denver AttorneyMember Joseph Gren was successful in having a claim for an alleged shoulder and neck injury denied and dismissed in Washington v. United Parcel Service. Claimant alleged that he suffered an injury at his job lifting packages. Claimant claimed that his injury subsequently progressed to involvement of the neck, for which he sought surgery. Mr. Gren demonstrated to the Court that the Claimant’s account of how the alleged injury occurred was not consistent with the medical records. Respondents’ expert credibly testified that the Claimant’s job duties were not consistent with the mechanism of injury, and that the opinions of the treating providers made assumptions about the work duties that were not consistent with Claimant’s job function. Mr. Gren also elicited information at hearing that involved an undisclosed neck injury with ongoing treatment. The ALJ found that Claimant had failed to prove a compensable injury and denied the claim.

 

In Meza v. Bayou Well Services, Inc., Member Joseph Gren successfully defended against Claimant’s request to reopen his claim for a worsening of condition. Claimant sustained an admitted injury on September 6, 2013, when a large piece of equipment fell onto his back. Claimant underwent conservative care and was placed at MMI on March 27, 2014. Respondents filed a FAL on April 29, 2014. Claimant failed to object to the FAL and the claim was administratively closed. At hearing, Claimant alleged a change in his medical condition, relying on a report from his expert dated July 17, 2015. Mr. Gren presented evidence of diagnostic testing which revealed that there was no change in Claimant’s back since the MRI performed following the injury. Respondents’ expert credibly testified that Claimant lacked new objective findings on physical examination and that his condition had not changed since being placed at MMI in 2014. The ALJ credited the opinion of Respondents’ expert over that of the Claimant and Claimant’s expert. The ALJ found that Claimant did not meet his burden of proof for his Petition to Reopen. The Petition to Reopen was denied and dismissed.

 

Member Joseph Gren also successfully defended a full contest claim for an alleged foot injury in Wood v. United Parcel Service. Claimant alleged that he suffered an injury to his foot while entering his vehicle after making a delivery. Claimant reported the injury over a year later and was diagnosed with plantar fibromatosis. Mr. Gren demonstrated, through substantial medical records and expert testimony, that the condition was a naturally occurring condition. Respondents’ expert credibly testified that Claimant’s job duties did not aggravate Claimant’s naturally occurring condition. The ALJ found Respondents’ expert to be credible and that Claimant did not sustain an acute injury to his left foot on June 1, 2016. The ALJ agreed with Respondents’ expert that the current complaints were a natural and probable progression of his preexisting condition. The ALJ found that Claimant failed to prove a compensable injury and the claim was denied and dismissed.

 

Associate Matt Boatwright successfully challenged Claimant’s entitlement to ongoing temporary disability benefits in Voorhees v. United Parcel Service. Claimant had been collecting temporary disability benefits for the duration of the claim and was not at MMI. Respondents conducted surveillance, which reflected that Claimant was simultaneously engaged in non-related outdoor activities while collecting disability. Claimant sustained injuries while riding a dirt bike, after which Respondents asserted that he was not entitled to collect further temporary disability benefits due to an intervening cause. The ALJ found that Respondents had met their burden to prove that ongoing disability was not related to the original work injury and permitted termination of temporary disability benefits retroactive to the intervening injury.

 
 

 

INJURIES SUSTAINED COMING AND GOING FROM WORK — WHEN ARE THEY COMPENSABLE?

We typically think of compensable injuries occurring when the employee is already at their place of employment. But what about the time employees spend on the road, coming from and going to work? Many industries require employees to drive as part of their daily duties, not to mention the time workers in various professions spend commuting to and from the job site. Continue reading the article.
 
 

 

Cases You Should Know

Horsin’ Around at Work: In Alvarez v. Rifle Tequilas Inc., W.C. NO. 5-050-687 (July 6, 2018), Respondents sought review of the ALJ’s Order finding that Claimant sustained a compensable work-related injury as a result of an assault from a co-employee. ICAO affirmed the ALJ’s decision. Employer provided each of his employees a beer each night at the end of their shift as a perk. One night, Claimant was physically assaulted after he hid his co-employee’s beer. The Claimant and co-employee had a long-standing history of horseplay, which the employer knew about. Using the four-part test pursuant to Lori’s Family Dining Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995), the presiding ALJ found that Claimant’s act of horseplay (hiding the beer) was not a deviation from his employment and not inherently private. The ALJ reasoned that the assault arose out of the employer’s perk and was related to the duties of the employment. As such, the claim was compensable.

 

Moral of the Story: Generally speaking, a claimant’s horseplay with another employee is inherently private. However, when the horseplay between employees is related to the circumstances of the employment (an employee perk), the injury is compensable.

 

The Controlling ATP: In Morris v. Olson Heating & Plumbing Co., W.C. NO. 4-980-171-02 (July 6, 2018), Claimant sought review of an ALJ’s Supplemental Order denying a request for post-MMI medical benefits. Claimant sustained an admitted injury to the lower extremity. Claimant underwent treatment and was placed at MMI. Claimant objected to the ATP’s determinations and sought a DIME. The DIME assigned a scheduled permanent impairment rating and indicated post-MMI medical benefits were required. Respondents filed an amended FAL and admitted to the DIME’s impairment rating but denied post-MMI medical benefits pursuant to the ATP’s recommendations. Claimant argued that the DIME’s determination controlled regarding post-MMI medical treatment. The ALJ indicated that it was Claimant’s burden of proof to establish the necessity of post-MMI medical treatment by a preponderance of the evidence as the DIME’s determinations were limited to permanent impairment and MMI. ICAO affirmed stating that a DIME opinion on post-MMI medical treatment is not entitled to the same presumptive effect as that attached to DIME determinations of MMI or whole person impairment ratings. (Citing City Market v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003).

 

Moral of the Story: A DIME’s determination is controlling as to MMI and whole person impairment ratings.

 

Keep it Current: In Tew v. Zachs Transmission & 4×4 LLC, W.C. NO. 5-053-962 (July 3, 2018), Respondents sought review of 2 Orders issued by the Director of the Division of Workers’ Compensation regarding an award of penalties against Respondents. ICAO affirmed the Orders. Claimant sustained an injury on July 26, 2017. On August 10, 2017, Employer filed an Employer’s First Report of Injury. On August 17, 2017, Respondents attempted to file a Notice of Contest via EDI. The Notice of Contest was rejected. On October 5, 2017, the Director issued an Order directing Respondents to file a position statement within 15 days. No response was received. On November 17, 2017, the Director assessed penalties against Respondents; however, the Order was returned to the Division due to the insurer’s invalid mailing address. The Division notified the insurer via email. At that time, the insurer took immediate action to fulfill the Division’s requests. Respondents filed a Petition to Review and requested a prehearing conference for reconsideration of the Order. On February 13, 2018, the Director issued a Supplemental Order denying Respondents’ request for reconsideration and Petition to Review. The Director found that pursuant to Rule 5-14, W.C.R.P., an insurer is required to provide a mailing address to the Division and that mailing to the provided address is “deemed good service.”

Moral of the Story: Failure to timely update a mailing address is not a defense against an award of penalties.

 

No Texting While Driving but Talking while Driving is Compensable: In this claim, Claimant was involved in a motor vehicle accident (MVA) on her way home from attending a work-related planning meeting. The claim proceeded to hearing for a determination on whether Claimant was in the course and scope of her employment while traveling home from a business meeting. Respondents cited the “going to and coming from” rule and argued the claim was not compensable because the MVA occurred while Claimant was going home. See Berry’s Coffee Shop, Inc. v. Palomba, 423 P.2d 212 (Colo 1967). Claimant asserted that travel was a part of her employment; therefore, the MVA was compensable. Even if found she was not in employment status, the MVA occurred while she was on a work-related cell phone call which brought her back into employment status. Respondents argued that if Claimant was on her phone, she violated the employers’ handbook policy and deviated from her employment. The ALJ found travel was a contemplated part of Claimant’s employment and that the injury was compensable. Respondents appealed. The Panel found that travel was clearly contemplated with employment and Claimant did not depart from her sphere of employment by being on her phone while driving. ICAO affirmed. Elorriga v. ADP Total Source, W.C. No. 5-047-389 (June 19, 2018).

Moral of the story: It is difficult to defend claims where employees are required to travel as a part of employment unless it can be shown the claimant substantially deviated from their employment duties.

 

The Fire is Not Out Yet: Further evaluation of the firefighter statute continues in City of Boulder Fire Department v. Dean Pacello, (Colo. App. 2018)(nfsp). Claimant was a firefighter for 35 years. After he retired, he developed tongue cancer. It was undisputed that pursuant to C.R.S. § 8-41-209, Respondents had the burden to prove the cancer was not work related. Respondents provided medical evidence that the cancer was more likely caused by HPV, a sexually transmitted disease, than exposure from firefighting. Claimant’s experts testified the cancer was caused by a combination of the virus and firefighting. The ALJ found the claim compensable. Respondents appealed and argued to overcome the presumption by showing the cancer was more likely caused by the virus and the ALJ erred in accepting the multifactorial argument because it created an irrebuttable presumption, as most cancers have multiple risk factors. The Court disagreed. It noted the presumption can be overcome by showing the cancer more likely arose from a “source outside the workplace.” But, the presumption is not automatically rebutted by identifying a non-occupational risk factor. It must be established that the non-occupational risk factor played a prominent role in the cancer’s development. The ALJ makes the determination of whether or not Respondents met the burden. The Court affirmed.

Moral of Story: The ALJ must be persuaded that exposures outside of work were more likely to have caused cancer than exposures while firefighting.

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The Legal Buzz – Lee & Brown Newsletter and Case Law Update July 2018

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn
and Alignable

 


In the News
Emily Miller & Susanna Thomas-Lovric
The Colorado Self-Insured Association (CSIA) held their annual membership luncheon on June 19, 2018. The luncheon featured comedian Nancy Norton as entertainment and provided a chance for all members to wrap up a great year. Lee and Brown, LLC, a professional member of CSIA, was proud to be a sponsor of this year’s luncheon. Attending on behalf of Lee and Brown, LLC were Of Counsel Bradley Hansen and Associate Angela Lavery. CSIA is an association of Colorado employers approved by the State of Colorado to insure their workers’ compensation benefits internally. Members include representatives of self-insured entities in both the public and private sectors as well as other professionals involved in the workers’ compensation system. CSIA’s mission is to educate members, provide networking opportunities, and promote legislative action that maintains a cost-benefit balance. CSIA also promotes the goal of promoting timely and effective programs to return injured employees to work.

 

As a part of the CSIA Legislative Committee, Of Counsel Frank Cavanaugh attended the legislative planning retreat for the remaining 2018 and upcoming 2019 year. The Legislative Committee of the CSIA deals with potential upcoming legislation that may affect CSIA members. In addition, the committee plans the upcoming meetings, including topics of interest to members. The meetings start in September and go through June of the following year. Meeting topics cover a wide range of medical, legal, and claims related subjects. Business entities other than those technically self-insured for workers’ compensation purposes are encouraged to look into membership as those employers share an equal interest in proper functioning of the workers’ compensation system. The upcoming meeting schedule is being finalized and will be available shortly. With elections just around the corner, and the possibility of a change in legislative composition, it is even more important to participate in this organization as the next legislative session could bring change to the workers’ compensation system.

 


Victory Lap

Joseph Gren Denver Attorney In Heien v. DW Crossland, LLC, Member Joseph W. Gren successfully established that Claimant willfully failed to obey a reasonable safety rule adopted by the Employer, entitling Respondents to a reduction of non-medical benefits by 50%. On October 14, 2017, Claimant sustained an amputation injury to his right upper extremity after placing his arm inside a running commercial washing machine. Mr. Gren presented significant evidence that Claimant had been adequately trained in how to properly use the machine and was additionally aware of several safety warnings and the proper safety mechanisms available to stop the machine. Claimant testified that by placing his arm into the running washing machine, he was intentionally violating a safety rule. The ALJ found that Claimant’s activities demonstrated that he deliberately violated the Employer’s safety rule regarding proper operation of the washing machine. Therefore, the ALJ held Respondents were entitled to a 50% reduction in non-medical benefits.

 

John Abraham Denver AttorneyIn Corbishley v. Walmart Associates Incorporated, Member John Abraham, successfully overcame the DIME physician’s opinion that Claimant was not at MMI for her left wrist/thumb and left knee. Claimant sustained an admitted work-related injury to her left knee and bilateral hands when she slipped and fell on a grease spot in a parking lot on July 27, 2014. Claimant ultimately underwent a total knee replacement, a right thumb arthroplasty, a left thumb arthroplasty, and a left thumb revision arthroplasty. Mr. Abraham successfully demonstrated that Claimant’s left knee complaints and issues at the time of the DIME were not a result of the work-related injury but were due to non-claim related osteoarthritis of the left knee and the natural history and progression of the disease. The ALJ found that Claimant would have required a total left knee replacement regardless of whether she fell at work. Specifically, the ALJ credited Respondents’ medical experts over the opinions of Claimant’s expert and the DIME physician in finding that the July 2014 injury did not change, aggravate, or accelerate her significant pre-existing disease process. Regarding the left wrist/thumb injury, Mr. Abraham successfully demonstrated with objective evidence, along with the opinions of Respondents’ medical experts, that the need for further surgery was due to her underlying degenerative disease process, and was not aggravated or accelerated by her work injury. In addition, the ALJ denied maintenance medical benefits, as any need for continued treatment was due to Claimant’s underlying and pre-existing degenerative conditions.

 

In Carl Ross v. US Engineering, W.C. 5-044-829, Of Counsel Sheila Toborg and Associate Evan Thompson successfully defended against Claimant’s request for authorization of left shoulder surgery. Claimant suffered an admitted injury to his left shoulder in January 2017 and a Final Admission was filed in February 2018. Two surgeons opined that Claimant required surgical intervention to repair a torn rotator cuff. At hearing, Ms. Toborg elicited testimony from Respondents’ medical expert that Claimant suffered from end-stage rotator cuff pathology that resulted in massive tearing of the rotator cuff. Respondents’ medical expert also testified that the MRI scan performed 8 weeks after the incident did not demonstrate any evidence of an acute injury or acute acceleration. The ALJ found Respondents’ medical expert’s opinion credible that the work injury did not accelerate Claimant’s pre-existing left shoulder condition beyond its normal rate of progression and it was Claimant’s end-stage rotator cuff pathology which resulted in the need for further surgery, rather than the work-related injury. The ALJ found that Claimant failed to establish by a preponderance of the evidence that the recommended left shoulder surgery was causally related to the January 2017 injury and Claimant’s request for left shoulder superior capsular reconstruction was denied.

 

Of Counsel M. Frances McCracken successfully challenged Claimant’s request for maintenance medical treatment in Grant v. Walmart Associates, Inc. As a result of the work injury, Claimant underwent a left hip arthroplasty and began to experience pain. Claimant sought continuation of pain and sleep medications to address his left hip pain. Ms. McCracken presented evidence from the testimony of two medical experts that opined narcotic pain and sleep medication were neither a reasonable or necessary medical benefit to maintain Claimant’s MMI status. Ms. McCracken successfully demonstrated that the prescribing physician had not maintained a record of Claimant’s functional history nor set forth functional goals. The ALJ noted Claimant did not sign a pain contract. The ALJ cited the testimony of Respondents’ experts and ordered Claimant be weaned off the opiate and sleep medication.

 

Of Counsel M. Frances McCracken also successfully established that Claimant was responsible for his termination in Rollins v. Beco, Inc. Claimant was employed with Employer as a commercial truck driver. On March 14, 2017, Claimant was involved in a serious motor vehicle accident when the semi-tractor he was driving traveled off the right side of Interstate 70, collided with a fence, and subsequently collided with a mountain. Claimant was taken to a local hospital and administered a urinalysis. The results were positive for amphetamines and MDMA. A subsequent search of the tractor-trailer by Claimant’s coworkers uncovered drug paraphernalia. Ms. McCracken presented evidence of the Employer’s “Drug, Alcohol, and Controlled Substances Policy,” that provided for immediate termination upon a resultant positive test revealing the presence of a controlled substance in an employee operating a company vehicle. The ALJ found that the evidence established, more likely than not, that Claimant’s termination was due to the results of a drug urine screen that he completed and due to the drug related paraphernalia found in the tractor-trailer after it was towed back to the Employer’s facility. The ALJ found Claimant responsible for his termination as there was ample evidence that he violated the Employer’s drug policy. Any lost wages after Claimant’s termination were not the result of the industrial injury.

 

Of Counsel M. Frances McCracken also successfully defended a full contest claim in Epperson v. Allied Universal. Claimant alleged that he slipped and fell while walking on a flat top roof on December 8, 2016. Claimant reported both legs twisted inwards and he fell back onto his lower back. Claimant’s reported injuries would ultimately include strain of the cervical, thoracic, and lumbar spine, strain of the bilateral shoulders and bilateral knees, and a closed head injury and possible loss of consciousness. Ms. McCracken successfully demonstrated through substantial medical records that Claimant had inconsistencies in both his hearing testimony and the information he provided to his physicians, including during an IME. Respondents’ medical expert noted Claimant had an inconsistent and normal physical examination, an inconsistent mechanism of injury, and non-physiological findings, together with symptom magnification. The ALJ did not find the Claimant credible as to how he allegedly fell, the alleged symptoms caused by the fall, or the alleged injuries caused by the fall. The ALJ held that Claimant did not suffer an injury that required medical treatment or caused any disability or medical impairment. The claim was denied and dismissed.

 

In Campbell v. Wrangler Well Service, Inc. and New Hampshire Insurance Company & Travelers Indemnity Company, Of Counsel William Sterck successfully established that carrier liability belonged with Travelers and not New Hampshire Insurance Company. The parties stipulated, and the ALJ found, that Respondent New Hampshire’s coverage ended on April 13, 2017 and Respondent Travelers insurance coverage began on the same day. The last injurious exposure for bilateral carpal tunnel syndrome was June 15, 2017, when Travelers was on the risk. Mr. Sterck presented evidence that Claimant’s condition progressed to include additional symptoms,ultimately leading Claimant to seek medical treatment after the change of coverage. The ALJ found that there was a substantial and permanent aggravation of the bilateral carpal tunnel syndrome after the coverage change to Travelers. Specifically, the ALJ credited the opinion of Respondent New Hampshire’s medical expert that attributed the last injurious exposure to Claimant’s work after April 13, 2017. The ALJ held that Respondent Travelers was solely and fully liable for all workers’ compensation benefits, including medical benefits.

 


2018 LEGISLATIVE SUMMARY

The 2018 legislative session wrapped-up about a month ago. There are always bills that have some workers’ compensation implications, or are directly sponsored by workers’ compensation groups. This legislative session was marked by inactivity in the workers’ compensation area, rather than the usual active session. This article will review a few of the things that did not happen before discussing what did. Continue reading this article.

Cases You Should Know

“All In” on Maintenance? Prove It: In Schroeder v. Thorn Emi North America, W.C. No. 3-840-625 (May 7, 2018), Claimant sought review of an Order by the ALJ which denied and dismissed all claims for post-MMI medical maintenance treatment. Respondents filed an admission for maintenance medical care and later obtained an IME opinion that no further medical treatment was causally related to the original industrial injury. Claimant subsequently filed an Application for Hearing, endorsing (among other issues) medical benefits to challenge denial of specific medical treatments. The ALJ found that Claimant had not sustained her burden of proof to establish a right to medical treatment after July 26, 2015, and denied all further care on the basis that Claimant had not proven that the disputed treatment was causally related to the injury. Upon review, ICAO affirmed but modified the ALJ’s Order to reflect that only the specific maintenance medical benefits sought by Claimant, from July 26, 2015 through the date of the ALJ’s Order, were denied. ICAO found that, while Claimant had the burden to prove entitlement to specific medical benefits after MMI (see Snyder v. ICAO, 942 P.2d 1337 (Colo. App. 1997)) Respondents would have the burden to prove that Claimant should not be entitled to all further post-MMI maintenance care. Where Respondents seek to modify an entire award of maintenance care, they bear the burden of proof. § 8-43-201(1), C.R.S.

Moral of the Story: When there is an admission for maintenance care, Claimant has the burden to prove entitlement to a specific treatment if Respondents have denied this treatment. However, if Respondents want to terminate the entire award of maintenance care (i.e. all further care), they bear the burden of proof to show that no further care is reasonable, necessary, or related to the original injury.

 

Treatment Turns on an ATP, not a DIME: In Torres v. City and County of Denver, W.C. No. 4-937-329 (May 15, 2018), Respondents sought to overcome a DIME and review of an ALJ’s Order directing Respondents to authorize a cervical surgery recommended by a DIME physician. The DIME had found that Claimant was not at MMI and that cervical surgery was reasonable, necessary, and related. However, no ATP, within the chain of referrals, had recommended cervical surgery. An ALJ lacks jurisdiction to order an ATP to provide a particular treatment prescribed by an unauthorized provider. See Short v. Property Management of Telluride, W.C. No. 3-100-726 (May 4, 1996). Under W.C.R.P. 11-2(G), a DIME physician is not an authorized provider. ICAO therefore found that the ALJ could not order Respondents to pay for a surgery recommended by a DIME, where no authorized provider had recommended the surgery. ICAO affirmed the ALJ’s Order overcoming the DIME, but modified the Order to reflect that the ALJ only had authority to hold Respondents liable for treatment recommended by an authorized provider.

Moral of the Story: The DIME is not an authorized provider and an ALJ does not have authority to direct Respondents to pay for treatment recommended only by the DIME where there is no support from an ATP within the chain of referrals.

 

Access to DIME = Procedural, Not Medical, Analysis: In Tynnae Fisher v. University of Colorado Health, W.C. No. 5-041-216-01 (June 12, 2018), Respondents sought review of the supplemental Order of the ALJ that authorized the Claimant to request a DIME. Claimant sustained an admitted injury to her cervicothoracic and lumbar regions. After receiving conservative medical treatment, Claimant was placed at MMI by her ATP. Respondents filed a FAL acknowledging that no temporary benefits were owed and admitted for 0% permanent impairment. Claimant disputed the FAL and requested a DIME review. Claimant’s request was stricken at a prehearing conference as the DIME request was deemed premature. Claimant scheduled a hearing to contest the Order of the PALJ. The ALJ reversed the ruling of the PALJ and resolved the Claimant was presently entitled to commence with a DIME review. Respondents appealed the Order, contending it was subject to review as it required Respondents to pay medical benefits associated with the DIME. Upon review, ICAO noted the DIME procedure is not for the purpose of medical treatment. Rather, it “serves as an evidentiary function in the process of litigating disputes.” Ince v. Southwest Memorial Hospital, W.C. No. 4-535-488 (April 19, 2004). The DIME is a function of the litigation process by which each side gathers and presents evidence in support of or in opposition to the claim. Any costs incurred by the respondents in facilitating a DIME review may not be characterized as a requirement to pay a medical benefit. ICAO held that the ALJ’s Order was procedural in nature. As such, the Order was not final and subject to review. Therefore, ICAO affirmed that the issue could not be considered at this time.

Moral of the Story: Any costs respondents incur facilitating the DIME process are part of the procedural litigation process and not medical treatment. The availability of the DIME process is a procedural determination made by the ALJ.

 

Rules Can’t Bend a Statute: In Vazquez Cruz v Lancelot Inc., W.C. No. 5-040-419 (ICAO May 17, 2018), Respondents sought review of an Order awarding Claimant $5,000.00 in disfigurement benefits. Claimant sustained an admitted work place facial burn injury. Claimant was placed at MMI and Respondents filed a FAL on April 13, 2018. On July 10, 2018, Claimant filed an Application for Hearing for disfigurement benefits. Respondents moved to strike the Application for Hearing pursuant to C.R.S. § 8-43-203 contending the Application was barred, as it was filed more than 30 days subsequent to the FAL. C.R.S. § 8-43-203 states that a case will be automatically closed as to the issues admitted in the FAL if Claimant does not, within 30 days, contest the FAL in writing. The Claimant contended that Rule 10 of the Office of Administrative Courts Procedural Rules for Workers’ Compensation Hearings allows for an extended period within which a Claimant may pursue an award for disfigurement. Rule 10 states that an Application for Hearing regarding disfigurement must be filed within 6 months from the date of injury or date of surgery. The ALJ agreed with Claimant’s counsel and found Rule 10 allowed a scar to be evaluated for an award of disfigurement benefits “at any time” subsequent to 6 months of rehabilitation, regardless of the 30-day limit. Respondents appealed the decision and argued Rule 10 does not serve to amend C.R.S. § 8-43-203, allowing an award of disfigurement benefits following the 30-day closure of the claim. The Panel found Respondents admitted for disfigurement at $0 and Claimant failed to dispute the disfigurement amount within 30 days. The Panel set aside the Order, stating that an administrative rule may not expand, enlarge, or modify an underlying statute.

Moral of the story: Final Admissions of Liability must admit for all benefits in order to close the claim following the 30-day deadline, pursuant to C.R.S. § 8-43-203.

 

The ALJ Tips the Scales of Evidence: In Hernandez v ABC Pro Painting, LLC, W.C. No. 5-027-576 (ICAO May 23, 2018), Claimant was working as a painter for the employer when he fell off a ladder injuring his low back. The parties went to an initial hearing on the issues of compensability, whether Claimant was an independent contractor, medical benefits, and penalties for failure to carry workers’ compensation insurance. The ALJ found Claimant was not an independent contractor, that he sustained a compensable injury, and that he was entitled to medical and temporary indemnity benefits. The ALJ also assessed penalties for violating C.R.S. § 8-43-408(1). Respondents appealed on the sole argument that the substantial evidence in the record supported the conclusion that Claimant was an independent contractor and not an employee. The Panel noted there is no precise number or combination of factors which are decisive in determining whether a Claimant is an employee or independent contractor. The Panel found the ALJ applied a totality of the circumstances test and found Claimant to be an employee. The panel opined that they had no authority to substitute their judgement for that of the ALJ concerning sufficiency and the probative weight of the evidence that was presented. The Panel affirmed the ALJ, finding his opinions were supported by substantial evidence.

Moral of the Story: It is very difficult to overcome the factual determination of an ALJ. The Industrial Claim Appeals Office will not reweigh the evidence to reach a result contrary to that of the ALJ.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update June 2018

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable


In the News

Member Karen Gail Treece attended the 2018 CLM & Business Insurance Workers Compensation Conference in Chicago, May 22-24, 2018. The event offered unprecedented knowledge access to leaders in the Workers Compensation profession. The conference focused on national trends. Ms. Treece enjoyed seeing and speaking to industry leaders from across the country.

Noteworthy Cases

Joseph Gren Denver AttorneyIn Akerley v. Sherwin Williams Co. & Indemnity Insurance Company of North America W.C. No. 5-016-101-03, Claimant sought an increase to his average weekly wage (AWW) based on concurrent employment as a hide tanner. Through extensive factual investigation, it was determined that Claimant was terminated two weeks before the industrial injury. The same investigation revealed that Claimant did not disclose a business he owned and operated on the date of injury. Coincidentally, Claimant’s non-disclosed business specialized in the same services he alleged as the basis for concurrent employment. At hearing, Member Joseph Gren and Associate Matthew Fowls cross-examined the Claimant regarding his non-disclosed business. The ALJ discredited the testimony of the Claimant denying an increase to his AWW.

 Of Counsel Frank Cavanaugh and Associate Jessica Melson successfully defended Claimant’s appeal in Romero v. Winn Residential Partnership, W.C. No. 4-978-676. Claimant fell approximately three feet from a ladder while repairing a garage door. Claimant initially reported and treated for cervical spine and left shoulder symptoms. Claimant’s cervical spine symptoms resolved and treatment focused on the left shoulder. Claimant underwent a DIME with Dr. Tyler, who opined Claimant’s cervical spine was not causally related to the fall and placed him at MMI with an advisory 18% upper extremity impairment. Claimant sought to overcome the DIME regarding causation of the cervical spine. The ALJ determined that, while Dr. Tyler found Claimant injured his cervical spine in the fall, he opined Claimant’s current cervical spine complaints and pathology were not related to the industrial incident. The ALJ found Claimant failed to overcome the DIME. Claimant appealed. The Panel noted it was for the ALJ to resolve inconsistencies and conflicting opinions of the DIME physician. Claimant essentially requested ICAO to reweigh the evidence, but the ICAO affirmed the decision of the ALJ.

 


Joshua Brown Attorney Denver#MeToo and EPLI Policies

In response to the #MeToo movement, companies have begun taking an increased role to prevent and police sexual harassment in the workplace. Protecting employees from any form of sexual misconduct or harassment should undoubtedly be the primary goal of these efforts. However, any proactive measures cannot guarantee that no incidents will occur, and companies’ future interests will be at risk. Consequently, counsel and risk managers should look to employment practices liability insurance (EPLI) which can provide coverage and pay for the defense of such claims. EPLI policies provide coverage for many types of the claims employees make against their employers that are not covered by workers compensation policies, including sexual harassment. Continue reading the article.

 


Cases You Should Know

No fake news here: While working as a banker, a man approached Claimant and handed her a note demanding $10,000. The man was provided the money and left. He was arrested several weeks later. Claimant initiated psychological treatment. After the robbery, Claimant had a miscarriage and was in a motor vehicle accident. Claimant sought workers’ compensation benefits based on mental injury. Three of Claimant’s medical providers opined she suffered from PTSD as a result of the robbery. Respondents’ IME physician testified Claimant had an exaggerated response to the robbery and her preexisting history was more likely the result of the mental condition. The ALJ found Claimant embellished facts of the robbery. Nonetheless, the ALJ found the opinions of three of Claimant’s treating providers more persuasive than Respondents’ IME opinions and held she suffered a mental impairment as a result of the robbery. Respondents appealed. Respondents argued Claimant failed to meet the requirements of C.R.S. §8-41-301(2)(a) that the “incident would evoke significant symptoms of distress in a worker in similar circumstances.” Respondents asserted Claimant exaggerated the facts of the robbery and her symptoms were more likely related to an intervening motor vehicle accident and miscarriage. The Panel affirmed. The ALJ’s finding of facts must be upheld if supported by substantial evidence. The record showed the ALJ considered the testimony and facts of the case. The ALJ found Claimant’s evidence more credibly and persuasive than Respondents in determining Claimant sustained a compensable injury. Austin v Wells Fargo, W.C. N. 4-973-614 (ICAO April 20, 2018).

 
Moral of the Story: It is very difficult to overcome the factual determination of an ALJ. The best evidence must be presented for the ALJ to consider at hearing because the persuasiveness of evidence may not be reconsidered on Appeal.

 

Tomatoe, Tomato. You call it medical treatment. I call it maintenance care: In Hughes v MV Transportation, Inc., W.C. No. 5-015-855, (ICAO April 12, 2018), Claimant sustained a compensable injury to his neck. Claimant was placed at MMI with impairment. Respondents filed an FAL. Afterwards, Claimant was recommended cervical surgery. Respondents contested the surgery arguing it did not qualify as maintenance care and that Claimant instead had the burden to prove reopening. The ALJ found that the ATP continued to opine Claimant remained at MMI after the surgery was recommended. The ALJ found the surgery qualified as maintenance treatment. Respondents appealed. The Panel noted the maintenance care is medical treatment necessary to maintain MMI or prevent further deterioration. C.R.S. § 8-43-203(3)(b); Grover v. ICAO, 759 P.2d 609 (Colo. App. 1995). This excludes treatment that will “cure” or significantly improve the condition. C.R.S. 8-40-201(11.5). Respondents cited to one opinion of the surgeon that the surgery “would improve his radicular pain” as evidence the surgery was not maintenance care. The Panel affirmed the ALJ finding his opinions were supported by substantial evidence.
 
Moral of the story: Medical maintenance treatment is to maintain MMI and does not include treatment to cure or relieve a condition.

 
The ALJ can only change the future, not the past: In this case, Claimant suffered an industrial shoulder injury. He was recommended for surgery, but he failed to present to the scheduled surgery three times. Respondents requested termination of Claimant’s TTD benefits due to his injurious practice of refusing to submit to surgery pursuant to C.R.S. § 8-43-404(3). The ALJ ordered termination of Claimant’s TTD benefits as of the date of the Order until he underwent surgery. Respondents appealed seeking termination of TTD benefits as of the date the first surgery was scheduled. ICAO affirmed because when a claim is admitted, an Order may only grant prospective relief. Ferguson v. Lane Electric, Inc., W.C, No. 5-030-198 (ICAO May 4, 2018).
 
Moral of the Story: An Order terminating benefits will be from the date of the Order as it can only grant prospective relief.

 

Til death do us part: In Ortega v. Blue Star Holding Co. & Fidelity & Guaranty Insurance, the Respondents sought to terminate death benefits to the Claimant’s widow using the theory that she entered a common law marriage with another man. The Respondents looked to the unique facts of the widow’s relationship with the alleged common law husband to meet their burden to prove the existence of the common law marriage. These facts included that the two had a child together, lived in the same house, and shared in many functions of daily life. The ALJ disagreed with the Respondents, and the Respondents appealed. The ICAO affirmed the ALJ’s decision, underscoring the high burden that a party must meet to disturb the factual findings of an ALJ.
 
Moral of the Story: Terminating death benefits using a common law theory of remarriage is difficult, and very reliant on the unique facts of each case.

 

Metal matters: The Claimant in Ramirez-Chaves v. In-Out Oil Field Services & Farmington Casualty Company injured her low back while lifting a piece of metal during her work as a welder. The matter proceeded to a DIME, wherein Claimant was found at MMI with permanent impairment. Despite placement at MMI, the DIME physician opined that the Claimant required a EMG. Claimant filed an application for hearing to overcome the DIME’s findings with respect to MMI, and succeeded by arguing the EMG was needed before a determination of MMI could be appropriate. Respondents appealed, arguing that necessity of an EMG study is not inconsistent with a finding of MMI. ICAO affirmed the ALJ.
 

Moral of the story: Where an ATP or DIME physician opines that further medical services are indicated, any finding of MMI faces serious jeopardy.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update May 2018

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In the News

Lee & Brown was this year’s Hospitality Sponsor and well represented at the Annual Professionals in Workers’ Compensation Awards Banquet on April 27th. Members Joshua Brown and Joseph Gren were accompanied by Of Counsel Brad Hansen and Office Manager Denise Iannotti as the PWC of Colorado honored those who contribute outstanding efforts in the workers’ compensation community. The PWC is a diverse non-profit organization that provides educational programs, seminars and networking opportunities for professionals involved in the Colorado Workers’ Compensation system, bringing together medical, legal, insurance and human resources professionals, as well as service providers. Member Joshua Brown humbly and graciously accepted Lee & Brown’s award for Outstanding Sponsor. The PWC also granted scholarships to four very deserving high school seniors planning to major in a business, medical or legal emphasized degree in a college or university this fall.

 


Noteworthy Cases

John Abraham Denver AttorneyIn Krein v. Walmart Associates Incorporated d/b/a Sam’s Club, Member John Abraham, successfully defended a full contest claim. Claimant alleged she sustained an aggravation of her chronic and pre-existing thoracic spine condition while moving a soda “BIB” on July 12, 2017. Claimant testified on her own behalf and had an expert witness conduct an IME at her request. Claimant’s IME had indicated that there was an aggravation of the underlying condition based on the location of Claimant’s pain. Mr. Abraham successfully demonstrated through substantial prior medical records that Claimant had inconsistencies in both her hearing testimony and in the information she provided to her physicians, including her IME physician. Respondents’ medical expert noted that Claimant denied any prior thoracic spine pain complaints even though her medical records had numerous notations in which she was treated for chronic thoracic spine complaints and was on several narcotic medications for her ongoing pain. The ALJ found that Claimant failed to prove she sustained a compensable injury. Specifically, the ALJ credited Respondents’ medical expert and the opinion of Claimant’s treating physician over the opinion of Claimant’s expert in finding that Claimant’s pain complaints represented a natural progression of her underlying degenerative spine condition, rather than an aggravation. The claim was denied and dismissed.

 

Of Counsel M. Frances McCracken successfully challenged Claimant’s request for maintenance medical treatment in Dunfee v. Best Buy Corporate. Claimant suffered an admitted injury in October 2015 while installing a retail display and was subsequently diagnosed with a mild traumatic brain injury/concussion. Respondents filed a FAL on December 6, 2017. Claimant testified that after MMI, he continued to have severe headaches and issues with short-term memory. Ms. McCracken presented evidence from Claimant’s medical records along with the testimony of the DIME physician in support of Respondents’ position that maintenance medical treatment was not reasonable or necessary. The ALJ found that Claimant failed to demonstrate that it was more likely than not that the recommended post-MMI treatment, consisting of physical therapy and injections, would prevent further deterioration of his physical condition. In fact, the ALJ found that it was more likely that the recommended medical treatment would have an effect of worsening the Claimant’s reported conditions. Claimant’s claim for maintenance medical treatment was denied and dismissed.

In Cybert v. Town of Castle Rock, Of Counsel Bradley J. Hansen successfully defended a full contest claim for Claimant’s assertion that he sustained a new back injury in the course and scope of his employment. Mr. Hansen elicited testimony from Respondents’ medical expert and entered medical records into evidence to demonstrate that Claimant was treating for his lower back prior to the alleged incident of October 9, 2016. Mr. Hansen emphasized that there was evidence that Claimant’s complaints were a continuation of previous back claims due to Claimant’s chronic degenerative back condition and prior L4-L5 surgery. The ALJ found that Claimant’s reported mechanism of injury on October 9, 2016 did not aggravate the underlying back condition and that the alleged incident did not accelerate Claimant’s need for medical treatment. The ALJ found that Claimant was already treating for the same condition prior to the alleged incident and the evidence also established that Claimant was being considered for surgery on his lower back prior to the alleged work incident in October 2016. The ALJ therefore found that Claimant failed to meet his burden of proof that he suffered a new compensable injury.

In Suomie v. Spectrum Retirement Communities, Mr. Hansen was also successful in challenging Claimant’s request for a DIME, after the filing of the FAL and Claimant’s objection to it. There was no lost time or PPD paid in the claim, so Respondents’ took the position that Claimant did not have the statutory right to a DIME, based on recent case law. See; Harmon-Bergstedt v. Loofbourrow. A Prehearing Administrative Law Judge (PALJ) granted Respondents’ Motion to Strike the DIME Application and denied Claimant’s request for a DIME without prejudice. Claimant filed an Application for Hearing to appeal the PALJ’s Order. At hearing, Mr. Hansen successfully argued that since no indemnity had been paid on the claim, Claimant did not meet the statutory definition of MMI based on the holding in Harmon-Bergstedt v.Loofbourrow. He further argued that Claimant had no statutory right to a DIME under the Workers’ Compensation Act. The ALJ ruled in Respondents’ favor by affirming the PALJ’s Order denying Claimant’s request for a DIME. The claim is being appealed by Claimant, so we will keep providing updates on the evolution of this important claim where there is no lost time and no awarded PPD.

 

Associate Matt Boatwright successfully defended against Claimant’s appeal to the Industrial Claim Appeals Office (ICAO) of the denial of his claim in Eastman v. United Parcel Service. Claimant’s claim for compensation for an alleged shoulder injury was denied by the ALJ at hearing. Claimant pursued an appeal through ICAO, which affirmed the ALJ’s Order on the basis that it was supported by substantial evidence in the record.

 


Acts of Employees that Reduce Compensation

There are a few defenses often overlooked when investigating a workers’ compensation claim and deciding whether to admit liability. Some of those defenses include safety rule violations, willful misleading of the employer regarding the claimant’s physical abilities, and intoxication defenses. These defenses should always be considered as part of a checklist when determining compensability and benefits owed to the claimant. Each defense can reduce compensation to the claimant by up to 50% and can be taken immediately upon initial filing of the admission with the Division. It is important to note the distinctions with each defense as they must be noted in the remarks section of the admission when filing with the Division. Continue reading the article.

 


Cases You Should Know

 

Career Opportunities – Conditional Offers of Modified Employment: In Cruz v. ICAO, 17CA1469 (March 22, 2018)(nsfp), the Colorado Court of Appeals addressed the topic of offers of modified employment. Claimant was receiving TTD benefits when the employer sent a letter to Claimant advising of a proposed modified job offer within Claimant’s modified work restrictions. The offer letter indicated that the start date was tentative, dependent on Claimant’s completion of an application and background check. Claimant did not complete the background check or commence with employment. As such, Respondents terminated Claimant’s TTD benefits. Claimant alleged penalties for improper termination of TTD benefits. Claimant argued that the employer improperly terminated his TTD benefits after Claimant failed to appear for modified work that the employer offered to him. Claimant relied on contractual law arguing that the employer’s modified job offer was not a valid offer because it was conditional on Claimant’s background check. The ALJ found, and the Industrial Claim Appeals Office and the Court of Appeals agreed, that the employer’s modified employment offer fulfilled the necessary elements of an offer. The fact that the offer of employment was conditional upon Claimant successfully completing a background check and application did not invalidate the offer of modified employment.

 

Moral of the story: A valid modified job offer can be a conditional offer as long as it complies with Rule 6 and meets the statutory requirements of a valid offer of modified employment.

 

There’s No Benefit – Nothing Special About “Going to and Coming From Work”: In LaGasse v. ICAO, 17CA1438 (March 29, 2018)(nsfp), a widow sought death benefits after her husband, a derrick hand for the oil-driller employer, died in a single-car automobile accident after leaving work. Claimant sought appeal for death benefits. On appeal, Respondents argued the longstanding “going to and coming from” rule applied, which negated entitlement to benefits. Claimant argued that the special circumstances exception rule applied in this matter to justify the granting of death benefits. The law is clear that injuries or death that occur when an employee is traveling to or from his / her job are not compensable. Exceptions to the “going to and coming from” rule have been set forth in case law. Specifically, Claimant argued that the exception applied in cases where travel is a substantial part of the service to the employer. Case law notes that examples of providing substantial service or benefit to the employer include: when a task is assigned to an employee; when the travel is by the employer’s implied or express request or confers a benefit on the employer beyond the sole fact of an employee’s arrival at work; and when travel is singled out for special treatment as an inducement into employment. The Colorado Court of Appeals applied the law as written. Under the facts and circumstances of this particular claim, the “going to and from” rule applied, there were no special exceptions, therefore this was not a work-related accident. The claim for death benefits was denied.
Moral of the story: Generally speaking, injuries arising when an employee is traveling to and from work are not compensable, unless there is an incidental benefit to the employer. This is a matter of fact for an ALJ to decide.
Time is Tight –Statute of Limitations Bars Claimant’s Claim: In Barbara McGlothlen v. Karman, Inc., W.C. No. 4-937-396-01 (April 2, 2018), pro se Claimant sought review of an ALJ’s Order which granted Respondents’ Motion for Summary Judgment and dismissed, with prejudice, Claimant’s claim for benefits. The employer filed a First Report of Injury on December 4, 2013. The insurer filed a Notice of Contest on December 24, 2013. DOWC notified Claimant December 26, 2013. Claimant filed an Application for Hearing on September 6, 2017, on compensability, among other issues. Respondents filed a Motion for Summary Judgment, contending that the Claimant had not filed a claim for compensation within the two-year statutory period. The ALJ granted the Motion, based on the Claimant’s failure to file a workers’ compensation claim within two years pursuant to §8-43-103(2), C.R.S, which states that the right to workers’ compensation is barred unless a formal claim is filed within two years of the injury, or three years if a reasonable excuse exists. Claimant argued on appeal that the employer fraudulently filed a First Report of Injury and provided argument supporting her claim for compensability. ICAO noted that the First Report of Injury was different than a Workers’ Claim for Compensation and noted that the statute of limitations begins when a Claimant knows, or should have known, the nature and seriousness of the injury. ICAO affirmed the ALJ’s Order.
Moral of the story: Although the employer is required by statute to timely file the First Report of Injury, Claimant must take some action and file a claim within two years of the injury to preserve their right to pursue benefits.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update April 2018

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable

 


Noteworthy Cases

In Lagasse v. Xtreme Drilling and Coil Service and New Hampshire Insurance Company, Court of Appeals No. 17CA1438, Of Counsel Bradley J. Hansen successfully defended against Claimant’s appeal to the Court of Appeals to set aside the ICAO decision affirming the denial and dismissal of her claim for death benefits. Claimant’s husband died while driving home after working his shift on an oil rig in northeast Colorado. At hearing, the ALJ found that as Decedent’s death occurred while driving home, it would fall under the “going to and from” rule, which does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. Claimant alleged an exception to the rule, relying on Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999), arguing that the travel conferred a benefit to the employer beyond the sole fact of the Decedent’s arrival at work since the oil rigs occasionally moved to new locations and therefore travel was implicitly contemplated by the employment agreement. Despite Claimant’s contention, the ALJ rejected the argument that special circumstances existed outside of Decedent’s arrival at work and denied Claimant’s claim for death benefits. ICAO affirmed the ALJ’s Order.

On appeal to the Court of Appeals, Claimant argued that ICAO erred in affirming the ALJ’s Order, contending that the ALJ made Findings of Fact that contradicted how he applied them to the law. The Court of Appeals rejected Claimant’s argument, finding substantial evidence supporting the Findings of Fact by the ALJ. The Court noted, “The mere fact that the ALJ made some findings that could have supported Claimant’s position does not alter the fact that, on balance, the ALJ determined the facts ultimately weighed in the employer’s favor. These findings confirmed the ALJ carefully weighed all the evidence presented to him.” All three judges on the Panel concurred in affirming ICAO’s Order.

 

Of Counsel M. Frances McCracken challenged a request for a spinal cord stimulator trial and ongoing prescriptions under maintenance medical benefits in Turner v. Sam’s Club, Inc., W.C. No. 4-799-129. Claimant sustained an admitted industrial injury to his right hip on May 25, 2009 and underwent various forms of conservative treatment and diagnostic procedures. On February 27, 2012, Respondents filed a FAL placing Claimant at MMI as of July 12, 2011, admitting for reasonably necessary and related post-MMI medical benefits. Claimant’s treating physician requested authorization for a spinal cord stimulator and ongoing prescription medications under maintenance care. The ALJ determined Claimant failed to prove the DRG spinal cord stimulator/IPG reprogramming was reasonable and necessary to cure and relieve the effects of the May 25, 2009 industrial injury. The ALJ credited the opinions of Respondents’ expert that Claimant did not meet the Medical Treatment Guidelines (MTGs) criteria for neurostimulation, as Claimant’s pain generator was unclear and there were strong psychological factors. The ALJ noted while Claimant’s treating physician had repeatedly recommended neurostimulation throughout Claimant’s claim, he had not provided any analysis of the criteria for implantation under the MTGs, or any reason to deviate from the MTGs. The ALJ further concluded that Claimant failed to establish, by a preponderance of the evidence, that the ongoing prescription for Celebrex was reasonable and necessary.

Associate Matt Boatwright successfully contested a request for a three-level cervical fusion surgery in Toombs v. Pepsi Beverages Company f/k/a Pepsi Bottling Group and ACE American Insurance. Respondents admitted for a shoulder injury suffered as a result of lifting. The surgeon’s initial request was denied pursuant to a Rule 16 review conducted by Respondents’ expert. The requesting surgeon issued a rebuttal opinion and Respondents took the matter to hearing. The ALJ found that Respondents’ expert testified credibly and persuasively that the cervical condition would not have been aggravated or accelerated by the admitted work injury, notwithstanding the presence of cervical complaints in records documenting the initial injury. The ALJ denied the requested procedure as not reasonable, necessary, or related to the work injury.

 


Injuries Resulting from Workplace Violence — When Are They Compensable?

Under the Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable. An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions. An injury arises “out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract. Continue reading the article.

 

 


Cases You Should Know

Too little, “Two” late? In Galagar v. E2 Optics, W.C. No. 5-016-677 (March 6, 2018), Claimant sought review of a corrected Order, dated October 19, 2017, that granted Respondents’ Motion for Summary Judgement and dismissed the claim for benefits. Respondents filed a Motion for Summary Judgement on October 12, 2017. The Motion asserted Claimant sustained an alleged workplace injury in August of 2015. Claimant subsequently filed a claim for workers compensation on April 29, 2016. An Application for Hearing was later filed on August 23, 2017. Respondents asserted the two-year statute of limitations specified in C.R.S. § 8-43-103(2). The ALJ issued an Order granting summary judgement and dismissing the claim. The ICAO reversed and set aside the Order. The ICAO stated that while C.R.S. § 8-43-103(2) provides a two-year period to file a claim for compensation, the section does not provide a restriction upon an Application for Hearing.

Moral of the Story: Injured workers have 2 years to file a claim for workers’ compensation following an injury under C.R.S. § 8-43-103(2). The two-year period under this statute may not apply to the filling of an Application for Hearing, although the law is unclear, as this is only ICAO authority.

 

Admission? What Admission? In Yeutter v CBW Automation, Inc., W.C. 4-895-940 (February 26, 2018), Claimant was struck by a machine on part of the face, ear, and shoulder. Claimant returned to work 2 weeks after the injury. He was later taken off work and diagnosed with work-related narcolepsy. Claimant was placed at MMI. The DIME physician agreed the narcolepsy was work related. Respondents filed a FAL. Claimant pursued PTD benefits alleging he was unable to work due to the narcolepsy. The ALJ determined the narcolepsy was not work related and denied medical benefits to treat narcolepsy. The ALJ also found, even if narcolepsy was related, Claimant could return to work and denied PTD benefits. Claimant appealed and argued the DIME findings regarding relatedness of the narcolepsy were binding because Respondents did not dispute the DIME. ICAO upheld the determination, denying PTD and medical maintenance benefits were supported by substantial evidence. ICAO disagreed Respondents were bound by the uncontested DIME opinion. The Panel noted the presumptive effect of a DIME opinion only applies to MMI and impairment. Because Respondents were challenging PTD benefits, the heightened burden of proof to overcome the DIME required by C.R.S. § 8-42-107(8) did not apply. Claimant failed to prove entitlement to PTD benefits and ICAO upheld the ALJ’s decision. However, the dissent found it was unfair to permit Respondents to accept Claimant’s narcolepsy for impairment, but challenge it for PTD and medical maintenance benefits.

Moral of the Story: Causation may be litigated in determining PTD and future medical benefits, even though a carrier had accepted a rating for that body part.

 

Watch where you are going: In Rinehart v. Employbridge Holding Company, W.C. 5-038-309 (February 27, 2018), Claimant sought review of an Order that determined the compensable injury was limited to a laceration on the top of her head and denied temporary indemnity benefits and penalties. Claimant sustained an open wound head injury after walking into a backhoe. Claimant initially treated for a laceration on her forehead. Her complaints later grew to include headaches, neck pain, and dizziness. The ALJ found Claimant’s compensable injury was limited to a laceration to her forehead. Crediting the opinions of Respondents’ expert, the ALJ was not persuaded Claimant sustained another injury due to the January 5, 2017 incident. Claimant’s primary argument was that the ALJ’s opinion was not supported by substantial evidence, as 8t different medical professionals opined Claimant sustained a concussion. The ICAO panel held that the ALJ’s opinion was supported by the opinions of Respondents’ expert. While there was conflicting evidence, the ALJ made reasonable inferences to resolve the conflicting evidence to which the Panel may not disturb. C.R.S. § 8-43-301(8). The ICAO upheld the ALJ’s opinion that Claimant’s compensable injury was limited to a laceration on the top of her head.

Moral of the Story: The ALJ’s opinion regarding compensability will be upheld if supported by substantial evidence, regardless of whether there is conflicting evidence.

 

Checkmate. ALJ’s Opinion Inconsequential Without the DIME: Claimant sustained a work-related low back injury in Portillo v. ICAO, 17CA0895 (March 8, 2018)(nsfp). There was a dispute whether the doctor was an ATP. At Claimant’s initial visit with the doctor, Claimant signed an IME disclosure form. The doctor continued seeing Claimant and placed him at MMI. Respondents filed a FAL. Claimant filed an Application for Hearing to strike the FAL and continue medical treatment. Claimant also requested a DIME. The parties presented to hearing before the DIME took place. Respondents argued the ALJ lacked jurisdiction because the DIME had not yet taken place. Claimant argued the doctor was not an ATP; therefore, his MMI determination was ineffective, the FAL was invalid, and a DIME was not ripe. The ALJ granted Claimant’s request for medical treatment; however, the ALJ did not provide a factual analysis or opinion as to whether the doctor was an ATP. Therefore, ICAO held Respondents could file a FAL based on the doctor’s determination. A DIME was a prerequisite to any hearing concerning the validity of an ATP finding of MMI. Thus, the ALJ lacked jurisdiction without a DIME.

Moral of the Story: Once a DIME is requested, it must take place before a hearing can proceed regarding MMI or impairment.

 

ICAO Review of ALJ DIME and Grover Orders, “Exceedingly Narrow”: In Veronica Kehler v. Labor ETC., Inc., W.C. No. 5-000-017-01 (February 12, 2018), the pro se Claimant sought review of an Order determining the DIME physician’s opinions on permanent impairment and maintenance medical benefits were not overcome. Claimant sustained an admitted lumbar strain. After extensive conservative treatment, Claimant was placed at MMI and provided a 20% whole person impairment of the lumbar spine. A DIME physician found Claimant’s presentation consistent with the assessment of malingering and that the permanent impairment range of motion loss, restrictions, and additional maintenance care were not appropriate. A subsequent Respondent IME agreed with the DIME physician’s assessment that the impairment rating, activity restrictions, and maintenance care were not appropriate. The DIME physician’s opinion on permanent impairment is binding unless overcome by “clear and convincing evidence”. Section 8-42-107(8)(c), C.R.S. The ALJ determined that the Claimant failed to overcome the DIME physician’s impairment rating or prove entitlement to maintenance medical benefits. ICAO upheld the ALJ’s findings as supported by substantial evidence.

Moral of the Story: The ALJ’s findings regarding a DIME physician’s medical impairment rating and award of maintenance medical benefits will be upheld if supported by substantial evidence.

 

ALJ’s Fact-Finding Reigns Supreme: These next 2 summaries involve Maria De La Luz Saenz v. Tagawa Greenhouse Enterprises, LLC, W.C. Nos. 4-972-238-02 & 5-112-306-01 (August 29, 2017). In the first claim, Claimant sought review of an Order that denied and dismissed her claim and determined that Respondents overcame the DIME physician’s opinion. Claimant alleged a work injury to her left knee on August 18, 2014, when she misjudged the final rung on a ladder and fell onto both knees. Although Claimant notified her supervisor of the incident, she did not report an injury and declined medical treatment. Claimant initially sought medical treatment on December 26, 2014, stating that the knee pain began “three days ago” and failing to mention the August 18, 2014 work incident. Claimant told co-workers she “hurt her knee at home”. Claimant was referred to a knee surgeon who diagnosed Claimant with degenerative arthritis in her left knee and discussed the possibility of a total left knee arthroplasty. The ALJ determined that Claimant failed to prove she sustained a compensable knee injury.

The subject of W.C. No. 5-112-306-01 was the Claimant’s admitted left knee injury on April 8, 2016. Claimant was diagnosed with bilateral knee contusions and prescribed conservative treatment. A subsequent MRI showed a torn medial meniscus. A knee arthroscopy and debridement was recommended. Another doctor performed a Respondent IME that determined Claimant’s left knee complaints were caused by advanced chronic degenerative and pre-existing tri-compartmental osteoarthritis and there was no evidence of worsening or aggravation related to the April 8, 2016 knee injury. The surgical request was denied. The doctor placed Claimant at MMI on August 15, 2016 and provided Claimant no permanent impairment or maintenance medical benefits. In a DIME, the physician concluded that Claimant’s left knee problems were related to the work injury and that she required surgery. Respondents sought to overcome the DIME. The ALJ determined that Respondents produced clear and convincing evidence to overcome the DIME. ICAO affirmed the ALJ’s Order.

Moral of the Story: The ALJ’s assessments on credibility, weight, and inferences drawn from evidence regarding compensability and medical opinion testimony are paramount.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update March 2018

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable

 


In the News

Member Katherine Lee was honored by her peers to be named one of the Top 50 Women Super Lawyers in Colorado for 2018.

 

 

 

John Abraham Denver Attorney

Joshua Brown Attorney DenverMembers Joshua Brown and John Abraham attended the Annual NAMWOLF Business Meeting held in San Diego, California, February 24th – 27th. This annual event, held every February, allows NAMWOLF Member Firms to provide greater insight into each Member Law Firm’s experience and capability to handle complex legal matters. The Business Meeting also provides the opportunity to network with NAMWOLF Leadership, such as the Advisory Council and NAMWOLF Board of Directors. Mr. Brown and Mr. Abraham represented the Firm and attended several meetings and social functions promoting the Firm’s diversity and practice areas.

 

 


Victory Lap

Joseph Gren Denver AttorneyIn Foster v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that he sustained a compensable injury to his right upper extremity. Claimant contended that he injured his right upper extremity when his supervisor grabbed his right arm and pulled on his elbow. Claimant provided significant medical evidence to support his position. The ALJ was persuaded by the testimony of Respondents’ medical expert who testified that even if Claimant was grabbed by his coworker, such a mechanism would not have caused a tear of the supinator muscle or any of Claimant’s other symptoms. The ALJ was also persuaded by the testimony of Claimant’s supervisor who credibly testified that she did not pull Claimant’s arm. The ALJ concluded that, based on the objective medical evidence, the credible opinion of Respondents’ medical expert, and the credible testimony of the employer witness, Claimant failed to demonstrate that it was more likely than not he sustained a compensable industrial injury. The ALJ ordered that Claimant’s claim for benefits was denied and dismissed.

 


Frank Cavanaugh Denver Attorney

Frank Cavanaugh Denver AttorneyDIMEs ARE NOT WORTH A DIME and/or ICAO’S DESCENT (VIA DISSENT) INTO MADNESS

On February 26, 2018 Industrial Claim Appeals Office (ICAO) issued an opinion captioned Yeutter v. CBW Automation, Inc. and Pinnacol Assurance, W.C. No. 4-895-940. The decision sparked great interest in the workers’ compensation community and was a primary topic of discussion at the recent Spring Update CLE as well as the latest Case Law Update. The decision raises questions over how causation over different components of an injury can/should be litigated during the progression of a claim. Continue reading the article.

 

Cases You Should Know

Overpayments: Too late to Turn Back; This is the Payback: In Turner v. Chipotle Mexican Grill, W.C. 4-893-631-07 (February 8, 2018), Claimant appealed an Order requiring her to repay $250.00 monthly installments for an overpayment of temporary total disability (TTD) benefits. Respondents had previously obtained an ALJ’s Order noting that they were entitled to recover an overpayment of TTD benefits in the amount of $97,641.12, after a 24-month DIME and surveillance determined Claimant had reached MMI. A second ALJ had determined the terms of the repayment and that was the issue addressed by the Industrial Claim Appeals Office (ICAO). The ICAO Panel affirmed the ALJ’s Order and determined the ALJ had discretion to fashion the remedy for overpayment of TTD benefits. The Panel found the repayment installment plan ordered by the ALJ was fair and reasonable. In their decision, the Panel noted that cases from the Colorado Court of Appeals and the Panel previously held that Respondents may retroactively recover an overpayment of benefits. Furthermore, they noted ALJs are expressly granted authority in §8-43-207(q), C.R.S., to conduct hearings to require repayment of overpayments and that the ALJs schedule for recoupment of an overpayment will not be disturbed absent an abuse of discretion.

Moral of the Story: If an actual overpayment exists, ALJs have broad authority to fashion a remedy for the overpayment of benefits, including the retroactive recoupment of an overpayment.

 

Doughnut mistake the burden of proof! In Gagnon v. Westward Dough Operating Co., W.C. 4-971-646 (February 6, 2018), Claimant injured her shoulder while lifting heavy quantities of dough to make doughnuts. She eventually underwent a DIME, which yielded ambiguous findings on MMI and scheduled permanent impairment. The ALJ resolved the ambiguity favorably toward Respondents after considering new evidence. In resolving the ambiguity, the ALJ cited that Claimant failed to meet the heightened clear-and-convincing burden of proof applicable in DIME challenges. The Claimant appealed. Though the ALJ’s findings on MMI were left undisturbed, the ICAO Panel clarified that in DIME challenges to permanent impairment, the clear-and-convincing burden of proof applies only to whole-person permanent impairment; while scheduled ratings are subject to a preponderance of the evidence standard. The case was remanded for findings on scheduled permanent impairment under the preponderance standard.

Moral of the Story: There is a lower standard of proof needed to overcome a DIME’s opinions as to a scheduled impairment rating.

 

Although not formally published, there were two interesting cases from the Colorado Court of Appeals that are worth noting:

Oh Doctor! Doctor! Can’t you see I’m Hurting, Hurting?Mulgeta v. ICAO, 17CA0568 (February 1, 2018)(nsfp). Claimant had reached MMI and received a 5% whole person impairment rating. Respondents pursued a DIME to challenge the impairment rating. The DIME physician opined that Claimant reached MMI but had no permanent impairment. Claimant objected to the FAL filed based on the DIME and filed an Application for Hearing to overcome the DIME. Claimant argued that the DIME physician failed to conduct a spinal examination in accordance with the AMA Guides, Third Edition (Revised). In the DIME report, the DIME physician recognized the need to perform a full spinal evaluation but noted Claimant would not allow further examination because of her extreme reaction to pain. The ALJ found (and the Court of Appeals agreed) that the DIME physician’s failure to perform range of motion tests was due to the Claimant’s own decision not to perform the tests; therefore, Claimant failed to overcome the DIME. The Court of Appeals also determined that Respondents had no duty to pay PPD benefits based on the prior rating because they were entitled to pursue a DIME and contest the ATP’s 5% rating.

Moral of the Story: A DIME physician complies with the AMA Guides, Third Edition (Revised), as long as he/she recognizes the need to perform a spinal examination despite an inability to complete the range of motion testing.

 

TPD or not TPD: The question is actually: Medical Incapacity OR Wage Loss? Montoya v. ICAO, 2018COA19 (February 8, 2018)(nsfp). Claimant was a sales person paid entirely by commission. Claimant suffered a wage loss from attending doctor and therapy appointments related to her work injury; however, she was never given any work restrictions. The ALJ determined Claimant’s wage loss was attributed to her work injury and awarded TPD benefits. The ICAO Panel set aside the ALJ’s decision and reasoned that disability benefits are only available if there are both medical incapacity and wage loss. The Court of Appeals disagreed, set aside the Panel’s decision, and remanded the case with instructions to reinstate the ALJ’s Order, concluding that Claimant was entitled to TPD benefits. The Court of Appeals concluded that a Claimant need not prove both a medical incapacity and wage loss to establish entitlement to disability benefits.

Moral of the Story: A Claimant may be entitled to temporary disability benefits even if released to full duty, if he or she is able to demonstrate wage loss.