The Legal Buzz – Lee & Brown Newsletter and Case Law Update March 2018
Member Katherine Lee was honored by her peers to be named one of the Top 50 Women Super Lawyers in Colorado for 2018.
Members Joshua Brown and John Abraham attended the Annual NAMWOLF Business Meeting held in San Diego, California, February 24th – 27th. This annual event, held every February, allows NAMWOLF Member Firms to provide greater insight into each Member Law Firm’s experience and capability to handle complex legal matters. The Business Meeting also provides the opportunity to network with NAMWOLF Leadership, such as the Advisory Council and NAMWOLF Board of Directors. Mr. Brown and Mr. Abraham represented the Firm and attended several meetings and social functions promoting the Firm’s diversity and practice areas.
In Foster v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that he sustained a compensable injury to his right upper extremity. Claimant contended that he injured his right upper extremity when his supervisor grabbed his right arm and pulled on his elbow. Claimant provided significant medical evidence to support his position. The ALJ was persuaded by the testimony of Respondents’ medical expert who testified that even if Claimant was grabbed by his coworker, such a mechanism would not have caused a tear of the supinator muscle or any of Claimant’s other symptoms. The ALJ was also persuaded by the testimony of Claimant’s supervisor who credibly testified that she did not pull Claimant’s arm. The ALJ concluded that, based on the objective medical evidence, the credible opinion of Respondents’ medical expert, and the credible testimony of the employer witness, Claimant failed to demonstrate that it was more likely than not he sustained a compensable industrial injury. The ALJ ordered that Claimant’s claim for benefits was denied and dismissed.
Cases You Should Know
Overpayments: Too late to Turn Back; This is the Payback: In Turner v. Chipotle Mexican Grill, W.C. 4-893-631-07 (February 8, 2018), Claimant appealed an Order requiring her to repay $250.00 monthly installments for an overpayment of temporary total disability (TTD) benefits. Respondents had previously obtained an ALJ’s Order noting that they were entitled to recover an overpayment of TTD benefits in the amount of $97,641.12, after a 24-month DIME and surveillance determined Claimant had reached MMI. A second ALJ had determined the terms of the repayment and that was the issue addressed by the Industrial Claim Appeals Office (ICAO). The ICAO Panel affirmed the ALJ’s Order and determined the ALJ had discretion to fashion the remedy for overpayment of TTD benefits. The Panel found the repayment installment plan ordered by the ALJ was fair and reasonable. In their decision, the Panel noted that cases from the Colorado Court of Appeals and the Panel previously held that Respondents may retroactively recover an overpayment of benefits. Furthermore, they noted ALJs are expressly granted authority in §8-43-207(q), C.R.S., to conduct hearings to require repayment of overpayments and that the ALJs schedule for recoupment of an overpayment will not be disturbed absent an abuse of discretion.
Moral of the Story: If an actual overpayment exists, ALJs have broad authority to fashion a remedy for the overpayment of benefits, including the retroactive recoupment of an overpayment.
Doughnut mistake the burden of proof! In Gagnon v. Westward Dough Operating Co., W.C. 4-971-646 (February 6, 2018), Claimant injured her shoulder while lifting heavy quantities of dough to make doughnuts. She eventually underwent a DIME, which yielded ambiguous findings on MMI and scheduled permanent impairment. The ALJ resolved the ambiguity favorably toward Respondents after considering new evidence. In resolving the ambiguity, the ALJ cited that Claimant failed to meet the heightened clear-and-convincing burden of proof applicable in DIME challenges. The Claimant appealed. Though the ALJ’s findings on MMI were left undisturbed, the ICAO Panel clarified that in DIME challenges to permanent impairment, the clear-and-convincing burden of proof applies only to whole-person permanent impairment; while scheduled ratings are subject to a preponderance of the evidence standard. The case was remanded for findings on scheduled permanent impairment under the preponderance standard.
Moral of the Story: There is a lower standard of proof needed to overcome a DIME’s opinions as to a scheduled impairment rating.
Although not formally published, there were two interesting cases from the Colorado Court of Appeals that are worth noting:
Oh Doctor! Doctor! Can’t you see I’m Hurting, Hurting?Mulgeta v. ICAO, 17CA0568 (February 1, 2018)(nsfp). Claimant had reached MMI and received a 5% whole person impairment rating. Respondents pursued a DIME to challenge the impairment rating. The DIME physician opined that Claimant reached MMI but had no permanent impairment. Claimant objected to the FAL filed based on the DIME and filed an Application for Hearing to overcome the DIME. Claimant argued that the DIME physician failed to conduct a spinal examination in accordance with the AMA Guides, Third Edition (Revised). In the DIME report, the DIME physician recognized the need to perform a full spinal evaluation but noted Claimant would not allow further examination because of her extreme reaction to pain. The ALJ found (and the Court of Appeals agreed) that the DIME physician’s failure to perform range of motion tests was due to the Claimant’s own decision not to perform the tests; therefore, Claimant failed to overcome the DIME. The Court of Appeals also determined that Respondents had no duty to pay PPD benefits based on the prior rating because they were entitled to pursue a DIME and contest the ATP’s 5% rating.
Moral of the Story: A DIME physician complies with the AMA Guides, Third Edition (Revised), as long as he/she recognizes the need to perform a spinal examination despite an inability to complete the range of motion testing.
TPD or not TPD: The question is actually: Medical Incapacity OR Wage Loss? Montoya v. ICAO, 2018COA19 (February 8, 2018)(nsfp). Claimant was a sales person paid entirely by commission. Claimant suffered a wage loss from attending doctor and therapy appointments related to her work injury; however, she was never given any work restrictions. The ALJ determined Claimant’s wage loss was attributed to her work injury and awarded TPD benefits. The ICAO Panel set aside the ALJ’s decision and reasoned that disability benefits are only available if there are both medical incapacity and wage loss. The Court of Appeals disagreed, set aside the Panel’s decision, and remanded the case with instructions to reinstate the ALJ’s Order, concluding that Claimant was entitled to TPD benefits. The Court of Appeals concluded that a Claimant need not prove both a medical incapacity and wage loss to establish entitlement to disability benefits.
Moral of the Story: A Claimant may be entitled to temporary disability benefits even if released to full duty, if he or she is able to demonstrate wage loss.