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

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

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

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)

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
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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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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.

2018 LEGISLATIVE SUMMARY

BACKGROUND

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.  Therefore, I will start with a review of what did not happen before discussing what did.

PRE-SESSION ISSUES NOT ADDRESSED LEGISLATIVELY

Several workers’ compensation groups traditionally consider areas ripe for legislative repair prior to the legislative session.  Primarily, Pinnacol Assurance, as the largest workers’ compensation carrier, the Colorado Self-insured Association (CSIA), representing entities that self-insure for workers’ compensation and the Workers’ Compensation Education Association (WCEA), representing injured workers.  Traditionally there is also communication and input from the Director between these groups and other stakeholders, that identifies other areas of the Colorado Workers’ Compensation Act needing repair.  In most years this generates a negotiated Bill that passes through the Legislature and is signed by the Governor.  In 2018 no negotiated Bill was reached.  That does not mean the Colorado Workers’ Compensation Act has reached a point of perfection.  There are still areas where a legislative fix may be needed.  Here are examples of areas not addressed legislatively in 2018.

The Loofbourrow problem:  As you may or may not be aware, there are ICAO decisions citing to the Loofbourrow decision that basically place claims where no indemnity has been paid into a non-claim limbo.  Harmen-Bergstadt, Inc. v. Loofbourrow, 320 P.3d 327 (Colo. 2014) is a case that loosely held that claims where temporary disability and permanent disability have not been paid, are not governed by a finding of maximum medical improvement.  This status calls into question whether a Final Admission of Liability filed on a no-lost-time claim is valid and whether a Division Independent Medical Examination (DIME) can be obtained in these claims, let alone what weight a DIME has if a DIME can be had at all.  Like Brigadoon these claims appear and then fade into the mist with nary proof they even existed.  This problem remains fertile for a legislative fix, but it did not happen in the 2018 session.

Interlocutory Orders: There remains an issue over whether an order can be appealed when no benefits have been granted or denied.  Decisions involving whether a benefit was granted or denied are murky.  As a general rule, to make sure a benefit is in play for there to be a sustainable appeal, always put a specific dollar figure assigned to a benefit before the hearing ALJ.  Until then solidifying what is an appealable order remains a possible area for a legislative fix, outlining an ability to appeal an order notwithstanding the grant or denial of benefits.

Reportable Claims:  Somewhat tied to the Loofbourrow problem is the issue of what constitutes a DOWC reportable claim.  The question of whether a claim should be reported after a certain amount of time receiving treatment is another possible legislative issue that may allow for a way to build around the Loofbourrow problem.  Once again, this was not legislatively addressed in the 2018 session, but may arise in the future.

SESSION ISSUES ADDRESED LEGISLATIVELY

Reciprocity:  Reciprocity allows for coverage in one state to be effectively applied in another state for employers who have employees working in that state.  It eliminates the need for buying workers’ compensation insurance to cover people working in Colorado from another state.  It is not uncommon for contiguous states to have reciprocity with each other for workers’ compensation coverage.  About 30 years ago, when Senate Bill 218 was passed, Colorado did not include its reciprocity statute and is one of the only states that did not have reciprocity with any other state.  This issue became important recently.  The Wyoming legislature was considering a statute to require employees from a Colorado employer working in Wyoming, to buy a Wyoming policy unless Colorado had reciprocity.  In 2018 Colorado passed HB 18-1308 that creates reciprocity with the contiguous states and eliminates this problem for employers.

Commercial Vehicle Operators and Similar Coverage: SB 8-178 was passed that excludes commercial vehicle operators, as defined under Section 42-4-235(1)(a)(I)(B), C.R.S., basically limousine drivers, from the definition of employee and allows players to obtain an occupational accident policy in lieu of coverage under a workers’ compensation policy.

Opioid Misuse:  Tangentially related to workers’ compensation, HB 18-1003 was passed.  This Bill sets up a committee and framework to study the substance abuse issues in Colorado associated with opioids.

BOTTOM LINE

There has been cooperation in the past between interest groups and stakeholders in fixing obvious problems in the Colorado Workers’ Compensation Act.  This year there was cooperation; however, not much activity.  For a longtime Colorado enjoyed a Legislature split between the two main parties.  This kept radical changes from being proposed to the Colorado Workers’ Compensation Act by either side.  With elections coming in November that could change and the next legislative session could end-up being much more active.

 

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

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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.

#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.

 

What is an EPLI Policy?

EPLI policies are generally sold on a claims-made basis, which means claims made against your company during the policy period are covered. There are some wrinkles to consider, however, if one is buying such a policy for the first time, or perhaps changing carriers for better terms or coverage. Most claims-made EPLI policies have a retroactive date, which provides that claims made during the policy period based on acts that took place before the “retro date” are not covered. When buying coverage new, negotiate for the earliest retro date you can get, taking into consideration relevant statutes of limitation. When switching carriers, one option sometimes available is to purchase “tail coverage” under the expiring policy that extends it to cover claims in the future, as long as the underlying acts took place before the policy expired. This can allow the new policy to have a retro date simultaneous with the policy inception. Also, consider giving notice under the expiring policy for potential claims that have not yet been made. Some policies require this. Others permit it at the policyholder’s discretion. Be careful when answering any questions on a policy application regarding known or potential claims, as this can be a minefield.

 

Coverage Basics

EPLI policies usually cover claims for discrimination on the basis of race, national origin, religion, sex (including pregnancy), age, or disability, including related claims for harassment. Policies commonly exclude claims arising under workers’ compensation laws and policies, and claims under federal labor laws unrelated to discrimination or harassment, such as union-related laws, the Worker Adjustment and Retraining Notification Act, the Fair Labor and Standards Act, the Employment Retirement Income Security Act and COBRA. Policies are not uniform, so read them carefully. Moreover, even if a policy excludes one of the above types of claims, it might be possible to have it added by endorsement.

 

One issue is the extent to which many of the claims purportedly covered under EPLI policies are insurable. Based on public policy, states often place limits on the extent to which intentional acts may be insured, and claims of discrimination or harassment can often include allegations of knowing and intentional acts. Thus, a company should consider carefully when purchasing an EPLI policy which state’s law likely will apply and whether that state has spoken on the public policy.

 

Definition of a “Claim”

A policyholder usually will receive notice of an employment claim in one of four ways:

  • Oral complaint from an employee.
  • Written notice from a claimant.
  • Written notice from an agency such as the Equal Employment Opportunity Commission.
  • Receipt of a lawsuit.

Whether any or all of the above will trigger coverage under a particular policy will depend upon the policy’s “claim” definition. This definition can affect when notice is due, when defense costs are covered, and other secondary but important matters.

Ideally, the definition will include provisions that the demand can be for relief other than monetary damages, including “reinstatement, reemployment or re-engagement.” Such a change does more than effect a change in when coverage is triggered — it can create a much broader substantive coverage grant.

 

Defense Costs and Related Issues

EPLI policies commonly require the insurance company to pay the costs of defending claims. Disputes may arise over whether the insurance company is required to advance defense costs, or reimburse the policyholder after a claim is resolved. Another common issue concerns the allocation of defense costs among covered and uncovered claims. Whether the insurance company may pay only costs associated with covered claims may depend upon the wording of the policy as well as the applicable state law

 

Fraudulent or Malicious Acts Exclusions

Most EPLI policies contain an exclusion for deliberate and seriously wrongful acts. The following example states that the insurance company will not be liable for any claim:

arising out of, based upon, or attributable to the committing in fact of any criminal or deliberate fraudulent act.

This exclusion seeks to preclude coverage for fraudulent and criminal acts, and omits an important protection for policyholders. Because so many claims contain such allegations, it is now common for these exclusions to contain an exception that provides that the exclusion applies only “if a judgment or other final adjudication adverse to the Insured establishes such a deliberately fraudulent act or omission.” This clause ensures that a policyholder who faces allegations of fraud will have its defense costs paid, and will only lose coverage if the fraud is proved. Another important exception provides that the criminal or fraudulent act of one policyholder will not be imputed to other policyholders.

 

Conclusion

Although there are many hurdles and prerequisites to securing insurance coverage for sexual harassment, employment discrimination, and other employee claims, a company’s insurance policies are a critical source for financial support against such claims. Should your company be faced with a claim related to its employment practices, immediately notify, in writing, all insurance companies that may possibly provide coverage for that claim. Forward all relevant information regarding the claim to the insurance company. And if the insurance company denies the claim, do not take no for an answer.

 

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