New Rule 11 – How’s It Going?

We’re now going on almost three months since the new Rule 11 took effect with the updated DIME fees and procedures.  Time flies, doesn’t it?   There has been some litigation that has ensued as a result of the recent changes, but overall the changes have been well received.  This is likely because most people prepared adequately for the changes that were taking effect well before the start of the New Year.

 

The litigation that has ensued has been primarily regarding the “regions” listed in the checklist contained on the Application for DIME and the body parts involved in the claim.   Since the “regions” have caused some confusion, the fees have also needed clarification.   Some of the litigation revolved around the specific body parts to a claim and Rule 11’s breakdown of cost.   The checklist looks as follows:

 

2019 DIME Application

 

Above each set of body parts, the boxes are listed as regions.  Pursuant to Rule 11, “less than three regions” is a fee of $1,000.   “Three or more regions” is a fee of $1,400.   It is recommended to double-check the Applications for DIME that are received to see if compliance with the Rule is met.   Any discrepancies and/or arguments concerning interpretation of the Rule can be handled by the Prehearing Administrative Law Judges.   The Judges have done an outstanding job of interpreting the Rule and correcting many issues for the DIME unit.  Also note, that some of the disputes have resulted in body parts that either were or were not related to the claim.   Such disputes have involved related body parts that should be part of the DIME, however claimants have tried to keep them out to lower the overall costs of the DIME.   Other disputes have arisen between the terms “and/or” as used in the Rule.  The arguments pertaining to the semantics have been resolved mostly using the word “or” to imply that either one or the other conditions must be met to trigger a particular fee.

 

 

In general, the DIME process seems to be running smoothly and interpretation of the new Rules seems to be pretty straightforward.   Like any Rule change, it will take some time to get used to and iron out the wrinkles.  It is important to double-check the new Rule and make sure compliance is met to avoid missing any particular arguments that will pose any sort of leverage in a claim.   Recall, that the new Rule only applies to Notices and Proposals filed on or after January 1, 2019.   Any Notice and Proposal filed before that date adheres to the old Rule 11.

 

If you have any questions regarding the changes to the Rules or the updated statutes, feel free to contact any of the attorneys at Lee & Brown, LLC.

 

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees.

Professional football requires two types of insurance: general liability and workers’ compensation since it is mandatory under state laws. Given the lucrative contracts these athletes sign, the Collective Bargaining Agreements often require wage continuation agreements so that these athletes continue to make the same salary if they are injured and off work. Can you imagine an athlete who makes $30 million a year being capped at the state workers’ compensation rate while recovering from an injury? Hence why wage continuation agreements are standard across the league.

With that said, one of the biggest threats to the NFL is the evaporating insurance market. According to multiple sources from the NFL, there is only one carrier willing to provide workers’ compensation coverage for NFL teams because of all the concussion litigation that began in 2011. At that time, at least a dozen carriers occupied the insurance market for pro football. Now, there is one.  Dr. Julian Bales, Medical Director and member of the NFL’s head, neck, and spine committee told ESPN “insurance coverage is arguably the biggest threat to the sport.”[1]

A study done by the University of Pittsburgh Medical Center’s sports concussion program found approximately 300,000 football-related concussions occur each year in youth, high school, college, and professional. And the biggest injury or disease that is making headlines in the NFL is traumatic brain injuries and chronic traumatic encephalopathy or “C.T.E.” The problem with this disease is the unknown “trigger” on how and when the disease starts. The disease is diagnosed after death and the symptoms of depression and delusional behavior may lay dormant for years, or even decades, before they surface. It’s concerning for carriers to know they could be on the hook years down the road given the unknown.

Similar to asbestos claims in workers’ compensation, a carrier can be at risk for a claimant who works one day and is subsequently diagnosed with lung cancer, players in California could file claims, even if they played only one game, to allege their brain disorders were caused by the sport. This cost carriers and the leagues hundreds of millions of dollars which fortunately was curtailed by new legislation in 2013. Still, carriers are cautious to cover the NFL without an exclusion for head trauma.

For many years carriers insured the NFL without restrictions for traumatic brain injuries. Now many of these companies are in a six-year lawsuit with the NFL over who will pay legal fees and claims associated with the 2013 settlement of the $1 billion-dollar class action lawsuit. Hence, these carriers are at higher risk to insure the NFL.

California has one of the most liberal workers’ compensation laws in the Union. Recently, former players who decades ago reached injury settlements with NFL teams and carriers have filed new claims alleging their settlements did not cover traumatic brain injuries. In 2015, a workers’ compensation court found that a former player’s 1989 settlement for cumulative industrial injury “does not extend to the then-unknown cumulative injury to the brain.” Similar to a worker who claims their shoulder pain is due to years of lifting heavy equipment, a former football player can argue their continued migraine headaches are a result of them playing professional football. Chances are several brain disorders like dementia, Parkinson’s and Alzheimer’s could be blamed on football. Doctors may ask, “how long did you play football and how many head injuries did you have?” and cite that as the cause for a claimant’s brain disorder when a claim against the NFL is filed. Fortunately, claimants must still meet their burden and prove that pro football alone, and not youth or college football, was the “cause” of their injury or diseases.

Workers’ compensation attorneys in California are handling numerous settled cases in which former NFL players have filed new claims for head trauma. The new claims will only increase costs for litigation and further deter carriers on what they will and will not cover. Fortunately, monetary costs for workers’ compensation claims are capped which will help put a cork in the damn but if the floodgate of old settled claims are allowed to be reopened, the market for coverage will continue to be washed away down the river…

As always, if you have any questions regarding workers’ compensation insurance and laws, please contact one of the attorneys at Lee & Brown, LLC.

 

[1] http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn

Rules Are Meant to be Broken – or At Least Updated. 2019 Rule Updates

2019 brings changes to two Rules that affect Colorado Workers’ Compensation. Rule 11 and Rule 16 have both been revised and the changes go into effect January 1, 2019. The changes to Rule 11and the DIME process are extensive. Below is a brief summary of the changes.

 

Rule 16 is undergoing a few changes.  The rule has been reordered.  Most of the changes are not substantive.  It is strongly recommended that the new rule be referenced in dealing with any prior authorization or billing issue for specifics.  The more substantive changes are highlighted below; however, the specifics of the rule should be reviewed in each situation.

  • ‘Payer’ definition is the same, but the definition now states that use of third parties to pay bills does not relieve the carrier or self-insured employer of obligations under the rules.
  • Recognized healthcare providers previously under 16-5 is now under 16-3.
  • Required use of the medical treatment guidelines, previously under 16-3 is now under 16-4
  • Notification requirements previously under 16-9 is now under 16-5.
  • Prior authorization previously under 16-10 is now under 16-6
  • Contest of prior authorization previously under 16-11 is now under 16-7.

* In conjunction with 16-11 in the new rule governing payment of medical benefits, contest for payment of prior authorization for non-medical reasons now contains examples of non-medical reasons including: no claim has been filed, compensability is not been established, the provider is not authorized, insurance coverage is at issue, typographic, gender or date errors on the bill, failure to submit medical documentation and unrecognized CPT codes.

  • Required use of the medical fee schedule previously under 16-4 is now under 16-8 and specifically sets forth the payment for build services without an established value under the medical fee schedule require prior authorization.
  • Required billing forms and accompanying documentation previously under 16-7 is now under 16-9 and has been added to somewhat.
  • Required medical documentation previously under 16-8 is now under 16-10 and sets forth in greater detail specifically what Form 164 should look like from the doctor’s office.
  • Payment of medical benefits previously under 16-12 is now under16-11.
  • Dispute resolution process previously under 16-13 is now under 16-12.
  • On-site review of hospital or other medical charges previously under 16-14 is folded into 16-10 regarding required medical record documentation.

 

Rule 11 changes are more substantial. Of Counsel, Brad Hansen, wrote an article about the updates last month and you can read it as well: Because It Goes to 11 – Rule 11 changes for 2019. 

 

The following is a brief summary of the Rule 11 changes:

Why?

  • No real change for years.
  • Doctors’ reluctance to continue to do DIMEs due to reimbursement and increased complexity.

 

Effective Date

  • January 1, 2019
  • DOWC says there is some leeway for the first month.

 

Overview of changes

  • Cost
  • Forms
  • Time-frames
  • Logistics

 

Cost

  • 3 tiers based on DOI, and number of body parts
  • $1,000 = DOI < 2 years and < 3 regions marked on the application
  • $1,400 = DOI > 2 years but < 5 years and 3 – 4 body regions marked
  • $2,000 = DOI > 5 years and ≥ 5 or more body regions marked

 

Forms

  • FAL – includes objection to the FAL, notice proposal and application for DIME
  • Request for Appointment to the DIME
  • Notice and Proposal and Application for DIME
  • DIME Examiner Summary Sheet
  • Notice of DIME Negotiations
  • Follow-up DIME
  • DIME Physician Summary Disclosure Form
  • Notice of Reschedule or Termination of DIME
  • Notice of Agreement to Limit the Scope of the DIME
  • DIME Report Template

 

Time-frames – font color corresponds to responsible party. Key to color below list.

  • FAL = 30 Days After Receipt of MMI (calendar 30 days after report for safety)
  • Notice and Proposal and Application for DIME = 30 Days After Filing of FAL
  • Claimant Files for Indigency = 15 Days After Filing the Notice and Proposal and Application for DIME
  • Attempt to Negotiate DIME = 30 Days After Notice and Proposal and Application (Notice of Negotiation Form to be filed within 30 Days)
  • DOWC Issues Panel = 5 days
  • Summary Disclosure Request = 5 Business Days
  • Requesting Party Strike If No Disclosure Request = 5 Business Days
  • Non-Requesting Party Strike = 5 Business Days
  • DOWC Send DIME Confirmation = 5 Business Days
  • Pay For and Schedule DIME = 14 Days
  • Schedule DIME = Between 35 – 75 Days After DIME Confirmation
  • Complete Copy of Medical Records to Claimant = 14 Days from DIME Confirmation
  • Claimant submits additional Medical Records to Carrier = 10 Days After Medical Packet From Carrier
  • Completed Packet Provided to DIME = 14 Days Before Exam
  • Claimant Notifies Carrier of Need for Interpreter = 14 Days Before Examination
    • Carrier is Responsible for Paying for the Interpreter
  • After DIME = 20 Days After Examination a Report is Generated

Key = Respondent duty       = Claimant duty     = Either Party’s duty

 

Logistics

  • New Rule applies to any Notice and Proposal with a certificate of service after 1/1/19
  • Applies to any follow-up DIME after 1/1/19
  • Applies to 24-month DIMEs

 

Questions

  • Body Parts?
    • The checklist proports to control body parts considered
    • PALJs likely to address
    • DIMEs still not confined to specific body parts
  • DIME Cancellation
    • Very tight cancellation time-frames with fixed penalties

 

The above summaries of Rule 11 and 16 are not intended to be used as legal advice. They are an outline of the changes to those Rules effective January 1, 2019. Please contact an attorney at Lee & Brown for case specific legal recommendations.

BECAUSE IT GOES TO 11

It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. 2019 Rule 11 revisionsWith the New Year, several changes and updates to the Workers’ Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11, which pertains to the DIME process.

The DIME program has seen little change since its inception in 1991, yet it is an essential piece of the Colorado Workers’ Compensation system. There have been attempts throughout the years to change the procedures from both respondent’s and claimant’s bars but to no avail. After three years of collaboration and tedious consideration, the Division of Workers’ Compensation has finally adopted a new rule that will address key challenges of each stakeholder. This is due in part to weekly staff meetings with representatives from both sides of the bar commenting on the changes and individual meetings with each side of the bar. There were over 50 revisions to Rule 11 and a Public Rule Hearing held for additional comment.

 

Effective January 1, 2019, these revisions and changes to Rule 11 will take place. Several key changes to the Rule:

     

    • There will now be a three-tiered payment system based on the date of injury to the filing of the DIME application and the number of body regions indicated on the DIME application;
    •  
    • The DIME physician must receive the fee prior to the requesting party scheduling the DIME appointment;
    •  
    • The Notice and Proposal and DIME Application are now combined as one document;
    •  
    • The time-frame to schedule a DIME appointment is extended to no earlier than 45 days or later than 75 days after the requesting party receives the notice of the DIME Physician Confirmation; and
    •  
    • Parties will now be responsible for agreeing on a singular medical records packet to send to the DIME physician.

     

 

The Division Rule will go into place January 1st, but the Division has indicated there will be some leniency the first month to sort out compliance issues. By February the Division will be enforcing the new process. Any Notice and Proposal with a certificate of mailing dated on or after January 1, 2019 is subject to the new Rule 11 provisions.

 

One provision of the Rule that will be advantageous for respondents is the requirement that once a Notice and Proposal is filed, claimant must simultaneously file a DIME application. With the current Rule 11 provision, claimant could file a Notice and Proposal to perfect their jurisdictional requirement to object to the Final Admission of Liability but could wait on filing for a DIME. Sometimes it would be months, or even close to a year, before a DIME application was filed and physician selected. Hopefully, the new Rule 11 revisions will bring a speedier DIME process and claim resolution/closure.

 

One negative effect of the new Rule is that parties are now to agree on one set of medical records to be sent to the DIME physician. This could create more litigation as claimants may not want to provide certain records, but respondents may feel they should be included in the medical packet. A standoff could require pre-hearings to adjudicate the matter. This is likely why the Division extended the time requirement to 45 – 75 days so that parties have time to reach an agreement on the medical records submitted and additional time to set the DIME appointment.

 

With these changes to Rule 11, there will be a lot of questions that need to be addressed. The attorneys at Lee & Brown, LLC are here to answer any questions you may have regarding the new changes to Rule 11 and will be conducting training seminars “on our DIME” early next year to go over all these changes. Below are some helpful links from the Division of Workers’ Compensation which provides general DIME information and new timelines to consider.

 

https://www.colorado.gov/pacific/sites/default/files/DIME_Presentation_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/Important_DIME_Timelines_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/General_DIME_Fee_Information.pdf

 

 

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

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on recent developments within our Firm, as well as in the insurance defense community.
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In The News

Members Joshua Brown and John Abraham, along with Office Manager Denise Iannotti, represented Lee & Brown at the National Association of Minority and Women Owned Law Firms’ (NAMWOLF) Annual Conference held in Chicago September 25-29th. A member since 2013, Lee & Brown is proud to be a part of this outstanding organization and assist in its efforts to promote diversity through the creation of legal opportunity for minority and women owned law firms.

The Firm was very recognized throughout the conference thanks to their ability to “clone” Members Brown and Abraham as life-size cardboard cutouts, which were utilized in the implementation of their well-received game of “Finding Josh and John”. Fellow NAMWOLF Member Krishna Reddy, Esq. of Paul Garcia & Associates in San Antonio, Texas was the very happy winner of an Apple Watch as a result of his savvy game playing skills.

Everyone is now preparing for the next NAMWOLF event – the annual Business Meeting, to be held in New Orleans in February 2019.

 


Noteworthy Cases

Joshua Brown Attorney DenverMember Joshua Brown and Associate Kristi Robarge  successfully defended a full contest claim in Kelson v. SkyWest Airlines, Inc., W.C. 5-061-588. Claimant, a flight attendant, was traveling to her hotel on a shuttle bus when the bus stopped suddenly to avoid a collision. Claimant alleged an injury to her left shoulder from bracing against the seat in front of her. However, Claimant did not report the alleged injury until one month later when she had an unrelated stroke and ended up in the hospital. From the date of the alleged injury until Claimant’s unrelated stroke, she continued to work full duty. Respondents’ expert testified that it was not medically probable that the left shoulder injury was causally related to the shuttle bus incident. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.

 

John Abraham Denver AttorneyMember John Abraham and Associate Jessie M. Tasselmyer successfully defended against Claimant’s request for ongoing maintenance medical care in Riccillo v. Parkview Medical Center. Claimant suffered a slip and fall accident in 1996. Claimant underwent extensive treatment and was ultimately placed at MMI. Thereafter, the indemnity portion of her case was settled, except for maintenance medical care. Claimant continued to treat and receive medications. Respondents retained an expert to opine on Claimant’s ongoing maintenance medical care. Respondents’ expert testified at hearing that Claimant suffered from a somatic pain disorder as well as pre-existing depression and anxiety. He further testified that even though Claimant’s ongoing depression and anxiety may have been related to the industrial injury in the past, it was no longer probable that her continued complaints of depression and anxiety were related to the industrial injury approximately 22 years later. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.

 

Of Counsel Sheila Toborg and Associate Jessie M. Tasselmyer successfully defended against Claimant’s attempt to overcome a DIME in Thompson v. The Home Depot. Claimant alleged that the DIME failed to address her psycho-social issues impacting her physical condition. Claimant also alleged that her physical abilities at the time of the DIME were inaccurate due to the performance of a steroid injection prior to the exam. Respondents’ expert credibly testified that the findings of the DIME were appropriate, and that Claimant’s ongoing complaints were unrelated to the work injury. The ALJ relied on testimony of Respondents’ IME physician and the DIME report, stating that the report addressed all of Claimant’s complaints and conditions and that there was no convincing evidence that the DIME’s determination of MMI was invalid.

 

Of Counsel M. Frances McCracken, successfully defended a full contest claim in Garza v. Walmart Associates. Inc. dba Sam’s Wholesale Club. Claimant alleged he injured his back when he slipped on water at work. Claimant denied falling but stated he “significantly wind-milled his arms in a Charlie Chaplin like manner” to maintain his balance and felt a twinge in his back. Security video did not show Claimant wind-milled or cartwheeled his arms. It showed he walked, slipped, bent slightly forward, and did not spill any liquid from the cup he was carrying. Ms. McCracken elicited credible witness testimony that Claimant stated he worked on a 40-acre ranch and lifted 80-pound hay bales after the incident. Respondents’ expert testified there was no mechanism of injury that would cause Claimant’s complaints. The claim was denied and dismissed.

 

    Associate Dan Mowrey defended a compensability claim in Nunez v. Custom AG Pak, LLC before the Industrial Commission of Arizona. The Applicant asserted he injured his back and neck at work on December 1, 2017. He testified reporting the injury to “a younger gentleman in human resources”, who told him to rest. The Applicant stated he rested the remainder of his shift and went home. He sought medical treatment the next day in Mexico. He did not return to work for the employer. At the hearing, the Applicant’s brother testified Claimant injured his right shoulder; however, Applicant did not present a medical professional to show a connection between the alleged workplace exposure and injury in advance of the hearing as required by the Rules of Procedure before the Industrial Commission, A.A.C. R20-5-141. Applicant further did not file any medical records or other documentation. Therefore, the ALJ found that Applicant did not provide sufficient evidence to support his claim and ordered it dismissed.

 

 


John Abraham Of Counsel

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years. Several claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid. As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible. Employers and carriers usually protect themselves and recoup overpayment from future benefits owed. Several cases have emerged (as well as arguments from claimants) that recovery of overpayments is impermissible, unconstitutional, and burdensome. Continue reading the article.
 

Cases You Should Know

Death is Guaranteed but WC Benefits are Not: In Becirovic v. ICAO, 17CA1505 (August 16, 2018)(nfsp), Claimant passed away on November 19, 2013, before a hearing could be held on the issue of compensability in her workers’ compensation claim. On March 23, 2015, Dr. Hall sent Claimant’s attorney a letter opining Claimant’s work injury may have contributed to her death. Claimant filed a Dependent’s Notice of Claim on December 9, 2015. Respondents filed a Notice of Contest contending the claim was barred by the statute of limitations because it was filed more than two years after Claimant’s death pursuant to C.R.S. § 8-43-103(2). The ALJ dismissed the case as barred by the statute of limitations. Claimant appealed and asserted the statute of limitations should not have begun to run until he received Dr. Hall’s report at which time the nature and probable compensable nature of the injury was first recognized, City of Boulder v. Payne, 426 P.2d 194 (1967). However, the ALJ found Claimant had the medical records and information that were sent to Dr. Hall and provided no explanation as to why she waited more than a year after the death to obtain a medical opinion or to timely file a claim. The Court of Appeals affirmed the ALJ’s dismissal.

 

Moral of the Story: Comply with procedural and jurisdictional requirements because failure to do so may bar claims indefinitely.

 
 

ATP Trumps DIME Regarding Medical Treatment: Respondents sought to overcome a DIME finding that Claimant was not at MMI. The ALJ determined Respondents failed to overcome the DIME and ordered them to pay for the EMG and surgical consultation recommended by the DIME physician. Respondents appealed. The Panel found Respondents did not overcome the DIME, but it held the ALJ was without authority to order Respondents to pay for the surgical consultation. An ALJ may order payment for diagnostic testing because it serves an evidentiary purpose to determine MMI and impairment; however, surgical consultations constitute a medical benefit, which must be recommended by an ATP. Potter v. Grounds Service Company and Truck Insurance Exchange, W.C. No. 4-935-523 (August 2018).

 

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

 
 

What a Relief: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant sought review of the ALJ’s Order denying Claimant’s request for “assistance with general home services and activities, including yard services…” The ALJ ruled that Claimant’s request for home and yard services “would not cure and relieve the symptoms and effects of the Claimant’s industrial injury” and that the “services were not incidental to medical treatment…” to relieve Claimant’s symptoms. The ALJ relied on the opinions of Respondents’ IME physician in rendering her decision. ICAO affirmed the credibility decisions of the ALJ and reasoned that the ALJ credited the testimony of Respondents’ IME physician more than the testimony of Claimant and her expert.

 

Moral of the Story: Medical treatment, including home health care, must be related to the industrial injury to cure and / or relieve symptoms of the industrial injury.

 
 

What a Relief, Part 2: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant appealed and argued that the ALJ erred in permitting the testimony of Respondents’ IME physician and the IME report due to failure to timely disclose the report. Respondents admitted that Respondents’ IME report was exchanged beyond the 20-day time period prescribed in Rule 9-1. ICAO ruled that the ALJ properly admitted the testimony and report of Respondents’ IME physician. ICAO reasoned that the IME report was properly admitted through the testimony of the IME physician. Furthermore, ICAO reasoned Claimant failed to exercise procedural safeguards prior to hearing. Specifically, Claimant did not request the report prior to hearing, had knowledge of the IME physicians’ testimony through Respondents’ interrogatories, and had an opportunity to cross-examine Respondents’ IME physician. The ALJ’s Order was affirmed.

 

Moral of the Story: Evidence, including anticipated testimony disclosed 21 or more days after hearing, may be precluded if the opposing party is not provided an opportunity to contest the late disclosure of evidence.

 
 

Lost Time, No DIME?: In Gibson v. Atlantic Relocation Services, W.C. NO. 5-020-939-01, ICAO affirmed the ALJ’s denial of Respondents’ request to strike the DIME. ICAO reasoned that the decision in Harman-Bergstedt v. Loofbourrow, 320 P.3d 327 (Colo. 2014), did not preclude the Claimant from pursuing a DIME when he suffered no wage loss or no lost time. ICAO agreed with the determinations of the ALJ that the Claimant suffered a “disability,” which is evidenced by his physical restrictions which impaired his ability to perform his job. In this case, Claimant was assigned work restrictions by the ATP. However, his Employer continued to pay his full wages. ICAO reasoned that a Claimant must obtain a DIME to challenge “the ATP’s MMI determination, the impairment rating, or both…” even if the Employer continues the Claimant’s wages despite work restrictions.

 

Moral of the Story: Even if a Claimant suffered no wage loss or no lost time, they are still permitted to obtain a DIME.

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years.   Several claimsOverpayment in WC Claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid.  As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible.  Employers and carriers usually protect themselves and recoup overpayment from future benefits owed.  Several cases have emerged, (as well as arguments from claimants), that recovery of over-payments is impermissible, unconstitutional, and burdensome.

 

The parties must always take into consideration that the workers’ compensation system is a gamble at every stage.   The parties often encounter substantial risk throughout the claim that could tip the scales in favor of one party or the other.  The Division IME is one such process.  Another example is a merits hearing and the ultimate determination of the ALJ.  Claimants risk that benefits paid earlier in the claim will suddenly become an overpayment based on the opinions of either a physician or a Judge, or both.

 

Pursuant to section 8-40-201(15.5), C.R.S., an overpayment is defined as: “money received by a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles. For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits under said articles.”

 

Recovery of overpayments is permitted within the Act.  Many examples exist in which a claimant may have been paid money that they were not owed.  Most of the time, Respondents recoup an overpayment from PPD or future indemnity.  However, in a situation in which there are no future benefits owed, the Act allows for garnishment of the claimant’s assets upon filing of a final order with the district court.  Section 8-43-306(1), C.R.S. states, “A certified copy of any final order of the director or an administrative law judge ordering the payment of  any penalty  or  repayment  of  overpayments  pursuant  to  articles 40 to 47 of this title may be filed with the clerk of the district  court  of  any  county  in  this  state  at  any  time  after  the  period  of  time  provided  by  articles  40  to  47  of  this  title  for  appeal  or  seeking  review  of  the  order  has  passed  without  appeal or review being sought or, if appeal or review is sought, after  the  order  has  been  finally  affirmed  and  all  appellate  remedies and all opportunities for review have been exhausted. The party filing the order shall at the same time file a certificate to  the  effect  that the  time  for  appeal  or  review  has  passed without appeal or review being undertaken or that the order has been  finally  affirmed  with  all  appellate  remedies  and  all  opportunities for review having been exhausted. The clerk of the  district  court  shall  record  the  order  and  the  filing  party’s  certificate in the judgment book of said court and entry thereof made in the judgment docket, and it shall thenceforth have all the effect of a judgment of the district court, and execution may issue thereon out of said court as in other cases. Any such order may be filed by and in the name of the director or by and in the name of the party in the worker’s compensation action who was injured by the violation of any provision of articles 40 to 47 of this title  or  who  was  found  to  be  entitled  to  repayment  of  overpayments under said articles.”

 

It is quite difficult for a claimant attorney to explain to their client that money that was previously received by a claimant, now had to be paid back to the carrier.  For example, when a Division IME physician backdates the date of MMI, and TTD that was paid during the prior MMI period, now becomes an overpayment; a claimant is often left with the burden of understanding how a physician can retroactively find that MMI happened earlier in time.  Another example is recovery of benefits against SSDI that is being collected.  Claimant sometimes believe that they are entitled to SSDI and TTD/TPD concurrently without an offset.

 

Many arguments have been made to the appellate courts unsuccessfully regarding collection of an overpayment.  One such argument involves “monies due and owed at the time of payment.”  Any money paid to the claimant at the time it was owed should not be an “overpayment” pursuant to the Act.  This argument was addressed by the Court of Appeals and they declined to follow it indicating that the Act allows for repayment of monies in situations in which the money was never due in the first place.  It wouldn’t be surprising for this line of thinking to be quickly eroded by a legislative change in which an overpayment is defied expressly in the statute by other means in which the facts of a case would not change the overall intentions of the way it was written.

 

For now, Respondents have one-year from the date the overpayment exists or accrued to claim it.  If it is not claimed, it is considered waived.  If an overpayment of indemnity exists on a file, it is best to claim it right away and strategize with counsel how best to recoup the overpayment.  Sometimes, remedies can be worked out with the claimant to make both parties happy and ensure that there is not prejudice to either side.  It can certainly prevent an Order being granted which puts the claimant is a difficult position of having to make a repayment of monies, when in all likelihood the money is either gone and/or has a very little chance of being seen again.

 

If you have any questions regarding an overpayment, recoupment, or strategy regarding benefits on a claim; please contact any of the attorneys at Lee & Brown, LLC.

 

 

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

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In the News

Lee & Brown attended the 25th Annual PWC Golf Tournament held at Wellshire Golf Course on September 14th. Members Katherine Lee and Joshua Brown played on a team as well as Of Counsel Frank Cavanaugh and Bill Sterck. The Firm sponsored the Hole-in-One competition, which included a chance to win a $10,000 prize. While there was no hole-in-one, there was an Elway’s gift card giveaway, along with golf balls and tees. Everyone enjoyed the seasonably warm weather and refreshing beverages. Congratulations to all the players and to the PWC for putting on a great event.

 

Noteworthy Cases

Member Joshua Brown successfully defended against a National Labor Relations Board (NLRB) charge in Rood v. Colorado Professional Security Services, LLC. The charging party alleged that he and his spouse were retaliated against in violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”). The charging party alleged that he was named as a defendant in a lawsuit filed by the employer in retaliation for having initiated a wage and hour lawsuit against the employer. The employer filed the lawsuit against the charging party because of harassing conduct and a social media video. The NLRB found that there was no retaliatory motive.

Member Joshua Brown also successfully defended against a National Labor Relations Board (NLRB) charge in David v. Colorado Professional Security Services, LLC. The charging party alleged that he was disciplined and discharged in retaliation for joining a wage and hour lawsuit against the employer. Specifically, the charging party posted a video on social media criticizing the employer. The NLRB found that in the video, the charging party made several unprotected comments about his supervisor and employer’s owner. The NLRB found that the employer discharged the charging party for the unprotected conduct and disciplinary history, rather than in retaliation for any protected concerted activity.

 

In Rodarte v. Walmart Associates, Inc. (d/b/a Sam’s Wholesale Club), Of Counsel M. Frances McCracken, successfully defended against Claimant’s attempt to obtain both post-MMI medical maintenance care (in the form of additional physical therapy) and conversion of her scheduled rating of permanent impairment to whole person. The Claimant sustained a compensable injury after a baking tray fell off a shelf and crushed her right long finger. The matter eventually proceeded through the DIME process. The DIME physician opined that no post-MMI maintenance care was appropriate. At hearing, Ms. McCracken elicited evidence that the Claimant attained no meaningful benefit from approximately 80 physical therapy sessions, alongside other treatment modalities. With respect to conversion, Ms. McCracken highlighted evidence to the Court revealing that the Claimant could only show pain extending beyond her hand into the whole person. Ms. McCracken emphasized that mere pain is not enough to substantiate conversion; instead, the Claimant was required to show functional impairment or disability into the whole person. The Claimant’s requests for both the post-MMI medical care and conversion of the impairment rating were denied and dismissed.

 

Associate Matt Boatwright successfully defended a fully contested claim in Foster v. United Parcel Service. The Claimant asserted that he suffered a knee injury while delivering packages, despite completing his route, without report of an injury or any incident. The ALJ found that the Respondents’ employer witness testified credibly that the Claimant did not report any work injury until being informed that he was terminated for insubordination. The employer witness also testified credibly that the Claimant did not appear to have a limp until after he was terminated. Respondents’ IME expert credibly opined that it was medically unlikely that the Claimant’s condition would have become worse while off work without an aggravating activity. The ALJ denied and dismissed the Claimant’s claim for compensation.

Associate Matt Boatwright also successfully defended against compensability in Floyd v. United Parcel Service. The Claimant claimed that he injured his shoulder while detaching a tractor trailer. While the Claimant admitted that he had previously injured the shoulder in a prior motor vehicle accident and had undergone some limited conservative treatment, he denied having any other prior issues with the shoulder. The medical evidence reflected that the Claimant had chronic shoulder issues, a preexisting motor vehicle accident injury, as well as more recent pain from his personal recreational activities. The Respondents’ medical expert testified credibly that the Claimant’s MRI findings reflected a degenerative rotator cuff tear, which was not likely the result of a single, acute incident. The ALJ favored the opinion of the Respondents’ medical expert over the Claimant’s testimony and denied and dismissed the claim.

 

The Cross Contamination between Workers’ Compensation and OSHA:
Considerations for Handling Blood-Borne Pathogen Claims in Colorado and Arizona.

Exposure to blood-borne pathogens presents unique risks in the work place. Workers in health care or in-resident home care are, on a daily basis, subject to the potential of disease transmitted by bodily fluids. Given the ubiquitous daily potential for exposure to workers across the board, from direct patient care workers to maintenance workers to transport personnel, risk managers and adjusters need to understand the overlap with workers compensation and the Occupational Safety and Health Administration’s (“OSHA”) rules. Understanding exposure and needlestick law is critical to containing risks as well as protecting employees from life-altering danger. Continue reading the article.
 

Cases You Should Know

Take this Job and Shove It: Modified job offers and initial entitlement to TTD benefits: In Valle v. Precision Drilling, W.C. No. 5-050-714-01 (January 8, 2018), Respondents sought review of the ALJ’s Order requiring them to pay TTD benefits. Claimant sustained an admitted injury in his position as a floor hand. Claimant was put on temporary work restrictions and offered a modified job duty prior to missing any work. He declined to accept the modified job duty offer and sought TTD benefits. Respondents declined to pay TTD benefits, relying on C.R.S. §8-42-105(3)(d)(1), which states that refusal to accept a modified job duty offer may serve as a basis for terminating TTD benefits. The ICAP ruled that Respondents incorrectly relied on C.R.S. §8-42-105(3)(d)(1) because Claimant was neither entitled to nor receiving TTD benefits when the modified job duty offer was made. ICAP did state that the refusal to accept the modified job duty offer would be a proper factor to consider in determining Claimant’s initial entitlement to temporary disability benefits but the applicable statute would be C.R.S. §8-42-103(1), which establishes a Claimant’s initial entitlement to temporary benefits and not the termination statute, C.R.S. §8-42-105(3)(d)(1).

Moral of the Story: Refusal to accept a modified job duty offer may be considered in determining initial entitlement to TTD benefits if refusal of the job offer is the cause of the Claimant’s wage loss pursuant to C.R.S. §8-42-103(1).

 

Take this Job and Shove It Part 2: More fun with modified job offers and TTD benefits: In Willhoit v. Maggie’s Farm, W.C. No. 5-054-125 (March 14, 2018), Claimant sought review of an ALJ’s Order denying TTD benefits. Claimant sustained a work-related injury in his position as a Cultivation Technician for a marijuana farm and was placed on temporary work restrictions. He then received a modified job duty offer, which was approved by his ATP, to trim buds in the cultivation room. Claimant refused the modified job offer on the basis that he believed it violated his work restrictions, due to treatment recommendations by his ATP to rest, apply ice, compress, stretch, and elevate his knee. Respondents denied Claimant’s request for TTD benefits due to his failure to accept the modified job duty offer. ICAP found that Claimant’s refusal of the modified job offer was not reasonable because his ATP was aware of his treatment recommendations and physical limitations when he approved the Claimant’s modified job offer.

Moral of the Story: An ATP’s treatment recommendations are not the same as work restrictions for purposes of a modified job duty offer.

 

He Said. She Said. Challenging an ALJ’s factual determinations with conflicting medical opinions: In a Colorado Court of Appeals decision, Old Dominion Freight Line, Inc. v. ICAO, 17CA1959 (July 19, 2018)(nsfp), Respondents sought review of a final ICAO Order upholding an award of PTD benefits. The ATP found Claimant sustained brain, central nervous system, and psychiatric injuries in his work-related motor vehicle accident and was permanently and totally disabled. The first DIME physician found Claimant had reached MMI for the cervical, shoulder, and spine injuries but required additional treatment for the brain injury. Respondents sought a second DIME after substantial treatment had been rendered. The second DIME physician disagreed that Claimant suffered any permanent impairment from a brain injury, an injury to the central nervous system, or psychiatric issues. Claimant sought to overcome the DIME’s findings and the ALJ agreed, finding that Claimant was permanently and totally disabled. ICAO held the ALJ relied on several opinions of treating physicians in reaching his determination that Claimant sustained a traumatic brain injury that caused profound psychological dysfunction. While ICAO acknowledged the difference in medical opinions, it held the ALJ’s factual determinations were binding – even when there was conflicting evidence. ICAO held substantial evidence supported the ALJ’s findings and thus the Panel’s decision affirming the award of benefits should be sustained.

Moral of the Story: An ALJ’s factual determinations regarding the DIME’s findings and PTD benefits are difficult to overcome in claims with conflicting evidentiary interpretations because it is the ALJ’s discretion to determine credibility of witnesses with differing opinions.

 

Quantity > Quality: Substantial Employment to determine proper jurisdiction: In Turner v. ICAO, 17CA1647 (July 19, 2018) (nsfp), Claimant sought review of the dismissal of his claim on jurisdictional grounds. Claimant was a resident of British Columbia and a Canadian citizen. Claimant was hired as a truck driver by a Canadian based company to haul goods throughout Canada and the western United States. While making a lumber delivery in Henderson, Colorado, Claimant slipped on ice and sustained injuries to his hips, shoulders, and neck. At hearing, the ALJ noted Claimant was only entitled to benefits under Colorado law if he established that a substantial portion of his employment was performed in Colorado. Because 90% to 95% of Claimant’s working hours were outside of Colorado, the ALJ determined he lacked jurisdiction to hear the claim. Claimant alleged that his nine trips to various locations throughout Colorado over an eight-month period evidenced routine and regular work in the state. Claimant advocated a qualitative over quantitative analysis should be used in determining whether Colorado was the proper jurisdiction. ICAO noted that a substantial portion of the employee’s work must be performed in Colorado and that the quantitative analysis used by the ALJ was the appropriate standard. ICAO affirmed the Panel’s Order that substantial evidence supported the ALJ’s determination that Claimant’s time in Colorado was insubstantial and did not meet the jurisdictional minimums.

Moral of the Story: Jurisdictional analysis for substantial employment is quantitative, not qualitative, in nature.

The Cross Contamination between Workers’ Compensation and OSHA: Considerations for Handling Blood-Borne Pathogen Claims in Colorado and Arizona.

Exposure to blood-borne pathogens presents unique risks in the work place. Workers in health care or in-resident home care are, on a daily basis, subject to the potential of disease transmitted by bodily fluids. These diseases range from methicillin-resistant staphylococcus aureus (MRSA), spinal meningitis, tuberculosis, hepatitis, to HIV. Given the Sharps Containerubiquitous daily potential for exposures to workers across the board, including direct patient care workers to maintenance workers to transport personnel, risk managers and adjusters need to understand the overlap with workers compensation and the Occupational Safety and Health Administration’s (“OSHA”) rules. Understanding exposure and needlestick law is critical to containing risks as well as protecting employees from life-altering danger. [1]

 

The OSHA rules pertaining to disease transmitted though bodily fluids are found on the public domain at: https://www.osha.gov/SLTC/bloodbornepathogens/gen_guidance.html. The federal regulations governing OSHA’s rules and role is found at 29 CFR 1910.1030. OSHA laws, since 2002, also conform to the federal Needlestick Safety and Prevention Act (NSPA) of 2000.[2] Congress in large part delegated the enforcement of the NSPA to OSHA. In turn, OSHA rules require employers evaluate controlled safety programs to keep employees safe from potential exposures and to implement engineering controls to effectuate any respective safety plan. The NSPA requires that “Requires certain employers to: (1) review and update exposure control plans to reflect changes in technology that eliminate or reduce such exposure, and document their consideration and implementation of appropriate commercially available and effective safer medical devices for such purpose; (2) maintain a sharps injury log, noting the type and brand of device used, where the injury occurred, and an explanation of the incident (exempting employers who are not required to maintain specified OSHA logs); and (3) seek input on such engineering and work practice controls from the affected health care workers (exempting employers who are not required to establish exposure control plans).”[3]  The federal NSPA and OSHA law do not alter the scope of workers compensation liability insurance coverage or impose additional coverage requirements upon employers. However, OSHA regulations do require the employer of an exposed employee set up an immediate confidential medical evaluation. Under OSHA standards, the evaluation: “This evaluation and follow-up must be: made available at no cost to the worker and at a reasonable time and place; performed by or under the supervision of a licensed physician or other licensed healthcare professional; and provided according to the recommendations of the U.S. Public Health Service (USPHS) current at the time the procedures take place. In addition, laboratory tests must be conducted by an accredited laboratory and also must be at no cost to the worker. A worker who participates in post-exposure evaluation and follow-up may consent to have his or her blood drawn for determination of a baseline infection status but has the option to withhold consent for HIV testing at that time. In this instance, the employer must ensure that the worker’s blood sample is preserved for at least 90 days in case the worker changes his or her mind about HIV testing.”[4] The employee has recourse under OSHA regardless of state workers compensation laws and coverage to have the employer pay for lab tests and blood analysis to determine the presence of blood-borne illnesses.

 

One interesting aspect of the OSHA regulations deals with the employer-employment relationship of a physician using a health care facility under a contract for staff privileges.  Surgeons, for example, may have staff privileges at a hospital to perform surgeries they otherwise could not do in their office. According to OSHA’s interpretation of its own rules, “Under OSHA’s blood-borne pathogens compliance directive (OSHA Instruction CPL 02-02-069 [formerly CPL 2-2.69]) the status of the physician as an employer or employee is important to establish in order to determine the application of OSHA standards. According to the paragraph XI.D. in the directive, physicians “… may be cited if they create or control blood-borne pathogens hazards that expose employees at hospitals or other sites where they have staff privileges in accordance with the multi-employer worksite guidelines of CPL 02-00-124 [formerly CPL 2-0.124], Multi-Employer Citation Policy.”[5] In terms of needlestick or exposure cases in both Colorado and Arizona, an employer/carrier should always assess the corresponding contracts (or independent contractor status) to determine whether a what (or whose) particular workers compensation insurance policy applies in these situations.

 

Arizona has passed specific legislation pertaining to exposure risks. Section 23-1043.04, A.R.S., specifically deals with MRSA, spinal meningitis, and tuberculous exposures. Mere exposure to a needlestick is not an automatic claim for compensation. The workers must first file a claim with the ICA. The statute then requires, to sustain a claim: (1) The employee’s regular course of employment involves handling of or exposure to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis; (2) Within thirty calendar days after a possible significant exposure that arises out of and in the course of employment, the employee reports in writing to the employer the details of the exposure. The employer shall notify its insurance carrier or claims processor of the report. Failure of the employer to notify the insurance carrier is not a defense to a claim by the employee; (3) For a claim involving methicillin-resistant staphylococcus aureus, the employee must be diagnosed with methicillin-resistant staphylococcus aureus within fifteen days after the employee reports pursuant to paragraph 2 of this subsection. (4) For a claim involving spinal meningitis, the employee is diagnosed with spinal meningitis within two to eighteen days of the possible significant exposure; (5) For a claim involving tuberculosis, the employee is diagnosed with tuberculosis within twelve weeks of the possible significant exposure.

 

What is also of interest for employers is that the respective Arizona statue contains protects the medical information of third parties. In the course of an exposure case, an employer may allege that a sexual partner or perhaps drug use caused the alleged condition. Under A.R.S. 23-1043.04(D) “a person alleged to be a source of a significant exposure shall not be compelled by subpoena or other court order to release confidential information relating to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis either by document or by oral testimony. Evidence of the alleged source’s methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis status may be introduced by either party if the alleged source knowingly and willingly consents to the release of that information.” Proving an alternative source of the exposure may be challenging without court intervention.

 

The statutory provisions pertaining to HIV is found in section 23-1043.2, and the provisions pertaining to Hepatitis C is found in 23-1043.3. Each respective section has reporting requirements similar to 23-1043.3, and contain the same provision barring compelled blood tests of third parties. Additionally, an employee may file a notice with the Industrial Commission reporting a significant exposure to blood-borne illness.[6] The worker must also file a separate claim, for which the employer/carrier may then respond by operation of a Notice of Claim Status.

 

Colorado does not have specific statutory provisions concerning blood-borne illness exposures. The Colorado exposure analysis is traditionally done in the general rubric of whether an event caused an injury in the course of employment, and that the injury arose out of employment.[7] It is the claimant’s legal burden to prove a causal nexus with work.[8] In other words, whether a needlestick caused an injury requiring medical treatment to cure or relieve the effects of the respective industrial injury. If you have a needle stick or blood-borne illness exposure issue, please contact an attorney at Lee and Brown of specific guidance on these complex issues.

 

[1] For example, see the story of one health care worker exposed to a needle stick. https://www.nursingworld.org/practice-policy/work-environment/health-safety/safe-needles/safe-needles-law/

[2] https://www.gpo.gov/fdsys/pkg/PLAW-106publ430/html/PLAW-106publ430.htm

[3] https://www.congress.gov/bill/106th-congress/house-bill/5178

[4] https://www.osha.gov/OshDoc/data_BloodborneFacts/bbfact04.pdf

[5] https://www.osha.gov/laws-regs/standardinterpretations/2003-02-20

[6] https://www.azica.gov/claims-significant-work-exposure

[7] C.R.S. section 8-41-301

[8] See. e.g., Manzanares v. Quality Uniform Linen Supply & Liberty Mutual WC #4-268-197 (ICAO 1999)

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.

 

In 2017 alone, there were 648 fatalities in Colorado resulting from motor vehicle accidents.  https://www.codot.gov/library/traffic/safety-crash-data/fatal-crash-data-city-county In the same year, there were close to 3,500 injury-only accidents.   https://www.colorado.gov/pacific/csp/traffic-safety-statistics.   Generally, injuries sustained while travelling to and from work are not considered to have arisen out of, and in the course and scope of, the employment relationship.  However, special circumstances may exist which establish a causal relationship between the employment and the travel to and from the worksite.  In the sentinel case of Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the Supreme Court reiterated the longstanding rule that injuries sustained going to work from home, and while returning, are not compensable because they are not seen as arising out of employment.  The Madden opinion however, also acknowledged the facts of any particular case may justify an exception to this general rule.  The decision sets forth four categories of “variables” to consider in determining compensability of travel-related accidents.  The Madden court indicated that the variables include, but are not limited to; (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the obligations or conditions of employment created a “zone of special danger” out of which the injury arose. The Madden court also recognized the question of whether the travel was contemplated by the employment contract has the “potential to encompass many situations.” Generally, these situations involve the following: (a) whether the particular journey was assigned or directed by the employer, (b) whether the travel was at the express or implied request of the employer and conferred a benefit beyond the employee’s arrival at work, and (c) whether the travel was singled out for special treatment as an inducement to employment. The common element in these types of cases is that the travel is a substantial part of the service to the employer. Finally, if the Claimant establishes only one of the four Madden “variables,” recovery depends upon whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury, such that the travel to and from the work arises out of and in the course of employment.

 

Following the Supreme Court’s holding in Madden, the courts have applied the analysis with varying outcomes.  In Norman v. Law Offices of Frank Moya, W.C. No. 4-919-557 (April 23, 2014), the Claimant was employed as an attorney performing public defender duties for the employer pursuant to its contract with the City and County of Denver. The Claimant was required to use her automobile at work to travel from her office to the court house, to the jails, and to other miscellaneous locations. When the Claimant was injured in a traffic accident while she was driving to her first appointment of the day at the court house, the Industrial Claim Appeals Panel upheld the ALJ’s determination the Claimant’s travel was contemplated by the contract of hire and the Claimant’s injuries were compensable. The Claimant’s travel by automobile to the court house was deemed to confer a benefit upon the employer beyond the sole fact of the Claimant’s arrival at work. Therefore, “…the circumstances of the auto accident on that date fell within the exception to the going and coming rule specified in the Madden decision.”

 

However, in In the Matter of the Claim of: Holly Lagasse, Claimant, 4-993-361, 2018 WL 15445488 (March 29, 2018) (NSFOP), the Court of Appeals affirmed the ALJ’s denial of benefits based on the coming and going rule.  The Claimant in the case was the decedent’s wife. The decedent worked for the employer as a derrick hand on an oil rig. The decedent worked for 12.5 hours each day from December 11, 2013 through December 17, 2013. The decedent voluntarily worked extra shifts from 6:00 am to 6:00 pm on December 19, 21, and 23, 2013. On December 24, 2013, the decedent began working the 6:00 pm to 6:00 am shift. The Claimant slept for about six hours on Christmas day and left for work at approximately 4:30 pm on December 25, 2013, to begin his 6:00 pm shift. After the decedent completed his work shift the morning of December 26, 2013, he started driving home. At approximately 6:36 am, the decedent’s pickup truck drifted across the center line of the County Road 66 in Weld County and collided with a bread truck. At hearing, the Claimant contended that the decedent’s death occurred during the course and scope of employment. The Claimant asserted that the decedent’s accident was compensable because of two special circumstance exceptions to the general rule that injuries sustained while coming and going to work are not compensable. The Claimant argued that the decedent’s work created a “zone of danger” because his work schedule produced significant fatigue and caused him to fall asleep at the wheel.  Claimant further argued the decedent’s employment implicitly contemplated the use of a personal vehicle as the work location could change without notice because of a “rig move.” According to the Claimant, there was a benefit to the employer because if the employees did not bring their personal vehicles to work, the employer would have had to arrange and pay for transporting the employees to the new work site after a rig move. Finally, the Claimant argued that the employer benefitted from the employees transporting their uniforms and special apparel home for cleaning.

 

The ALJ rejected the Claimant’s argument regarding the “zone of danger exception.” The ALJ also determined that the travel was not contemplated by the employment contract. The ALJ found the employer did not require the decedent to use his vehicle to work; mainly the decedent’s vehicle was not used to perform job duties and did not confer a benefit to the Claimant beyond his mere arrival at work. The ALJ determined that the Claimant failed to show that special circumstances existed to justify an exception to the general going to and coming from work rule, concluded that the decedent’s accident was not compensable and denied the Claimant’s request for death benefits.

 

The “special circumstances” outlined by the Madden court sufficient to establish the required nexus between travel and a compensable work injury can present complicated factual and legal issues. Should you have any questions concerning accidents occurring while an employee is coming or going from work, please contact any of the attorneys at Lee & Brown.

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

 


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.

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