In the News
In Krein v. Walmart Associates Incorporated d/b/a Sam’s Club, Member John Abraham, successfully defended a full contest claim. Claimant alleged she sustained an aggravation of her chronic and pre-existing thoracic spine condition while moving a soda “BIB” on July 12, 2017. Claimant testified on her own behalf and had an expert witness conduct an IME at her request. Claimant’s IME had indicated that there was an aggravation of the underlying condition based on the location of Claimant’s pain. Mr. Abraham successfully demonstrated through substantial prior medical records that Claimant had inconsistencies in both her hearing testimony and in the information she provided to her physicians, including her IME physician. Respondents’ medical expert noted that Claimant denied any prior thoracic spine pain complaints even though her medical records had numerous notations in which she was treated for chronic thoracic spine complaints and was on several narcotic medications for her ongoing pain. The ALJ found that Claimant failed to prove she sustained a compensable injury. Specifically, the ALJ credited Respondents’ medical expert and the opinion of Claimant’s treating physician over the opinion of Claimant’s expert in finding that Claimant’s pain complaints represented a natural progression of her underlying degenerative spine condition, rather than an aggravation. The claim was denied and dismissed.
In Cybert v. Town of Castle Rock, Of Counsel Bradley J. Hansen successfully defended a full contest claim for Claimant’s assertion that he sustained a new back injury in the course and scope of his employment. Mr. Hansen elicited testimony from Respondents’ medical expert and entered medical records into evidence to demonstrate that Claimant was treating for his lower back prior to the alleged incident of October 9, 2016. Mr. Hansen emphasized that there was evidence that Claimant’s complaints were a continuation of previous back claims due to Claimant’s chronic degenerative back condition and prior L4-L5 surgery. The ALJ found that Claimant’s reported mechanism of injury on October 9, 2016 did not aggravate the underlying back condition and that the alleged incident did not accelerate Claimant’s need for medical treatment. The ALJ found that Claimant was already treating for the same condition prior to the alleged incident and the evidence also established that Claimant was being considered for surgery on his lower back prior to the alleged work incident in October 2016. The ALJ therefore found that Claimant failed to meet his burden of proof that he suffered a new compensable injury.
In Suomie v. Spectrum Retirement Communities, Mr. Hansen was also successful in challenging Claimant’s request for a DIME, after the filing of the FAL and Claimant’s objection to it. There was no lost time or PPD paid in the claim, so Respondents’ took the position that Claimant did not have the statutory right to a DIME, based on recent case law. See; Harmon-Bergstedt v. Loofbourrow. A Prehearing Administrative Law Judge (PALJ) granted Respondents’ Motion to Strike the DIME Application and denied Claimant’s request for a DIME without prejudice. Claimant filed an Application for Hearing to appeal the PALJ’s Order. At hearing, Mr. Hansen successfully argued that since no indemnity had been paid on the claim, Claimant did not meet the statutory definition of MMI based on the holding in Harmon-Bergstedt v.Loofbourrow. He further argued that Claimant had no statutory right to a DIME under the Workers’ Compensation Act. The ALJ ruled in Respondents’ favor by affirming the PALJ’s Order denying Claimant’s request for a DIME. The claim is being appealed by Claimant, so we will keep providing updates on the evolution of this important claim where there is no lost time and no awarded PPD.
Cases You Should Know
Career Opportunities – Conditional Offers of Modified Employment: In Cruz v. ICAO, 17CA1469 (March 22, 2018)(nsfp), the Colorado Court of Appeals addressed the topic of offers of modified employment. Claimant was receiving TTD benefits when the employer sent a letter to Claimant advising of a proposed modified job offer within Claimant’s modified work restrictions. The offer letter indicated that the start date was tentative, dependent on Claimant’s completion of an application and background check. Claimant did not complete the background check or commence with employment. As such, Respondents terminated Claimant’s TTD benefits. Claimant alleged penalties for improper termination of TTD benefits. Claimant argued that the employer improperly terminated his TTD benefits after Claimant failed to appear for modified work that the employer offered to him. Claimant relied on contractual law arguing that the employer’s modified job offer was not a valid offer because it was conditional on Claimant’s background check. The ALJ found, and the Industrial Claim Appeals Office and the Court of Appeals agreed, that the employer’s modified employment offer fulfilled the necessary elements of an offer. The fact that the offer of employment was conditional upon Claimant successfully completing a background check and application did not invalidate the offer of modified employment.
Moral of the story: A valid modified job offer can be a conditional offer as long as it complies with Rule 6 and meets the statutory requirements of a valid offer of modified employment.