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.
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.
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.
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The Southern Association of Workers’ Compensation Administrators (SAWCA) held the 2017 Colorado Workers’ Compensation Educational Conference hosted by Director Paul Tauriello and the Colorado Division of Workers’ Compensation at the Broadmoor in Colorado Springs April 17 – 19th.Lee + Kinder LLC was proud to be a sponsor and one of 43 exhibitors at this educational experience, not held in Colorado since 2014. Several of our legal eagles – Joseph Gren, Sheila Toborg, Kelsey Bowers and Matt Boatwright – were among the over 300 attendees who contributed to the success of this event which included a silent auction for The Pinnacol Foundation, providing educational opportunities for children of injured workers.
The Professionals in Workers’ Compensation, Colorado held their 14th Annual Awards Banquet on May 12th at the Doubletree, Stapleton North. Lee + Kinder, LLC was happy to be present as Hospitality Sponsor. In attendance for the evening’s events, which included recognition of outstanding contributions in the workers’ compensation industry to multiple recipients and scholarship presentations, was the Firm’s Managing Member Katherine Lee and Of Counsel representatives Frank Cavanaugh and John Abraham.
In a second win for Ms. McCracken, the ALJ denied a Petition to Reopen and a claim for compensability of an alleged new injury upon remand to the ALJ from a previous decision by ICAO, in Jaterka v. Johnson & Johnson, W.C. 4-984-216. The ICAO decision is addressed in case summaries below. Claimant failed to timely object to Respondents’ FAL and her subsequent Petition to Reopen the claim for an award of medical benefits, temporary disability benefits and permanent partial disability benefits was dismissed by the ALJ for lack of jurisdiction. ICAO set aside the Order, holding that the ALJ did have jurisdiction to hear the issues in dispute, and remanded to the ALJ for further determination. The ALJ addressed the issues in dispute on the merits and denied and dismissed all claims for additional workers’ compensation benefits.
Associate Matt Boatwright successfully defeated claims for medical and temporary disability benefits in Ouellette v. United Parcel Service and Liberty Mutual Insurance, W.C. 5-006-922. Claimant slipped and fell on ice in the company parking lot after her shift and alleged a work-related injury. Claimant alluded a multitude of symptoms that caused ongoing disability and an inability to work. Claimant was also involved in two subsequent motor vehicle accidents. Respondents’ medical expert opined that the fall would have caused only a contusion, which would have resolved independently without treatment or significant disability, and that any ongoing symptoms would more likely than not be related to the car accidents. Claimant’s medical expert testified that her ongoing symptoms were consistent with the mechanism of injury and required additional diagnostics and treatment. The ALJ credited the opinion of Respondents’ expert over Claimant’s expert and found that, while there was a compensable injury, there was no resultant disability that required further treatment or wage loss benefits.
Mr. Boatwright also successfully secured an Order denying a claim for temporary total disability benefits on the bases of the affirmative defenses of late report of injury and termination for cause in Bennett v. Pepsi Beverages Company and ACE American Insurance, W.C. No. 4-992-112. Claimant sustained a compensable injury to his right elbow while at work. Claimant was off work after the injury and alleged temporary disability benefits were owed due to alleged work-related wage loss. The ALJ found that Respondents’ employer witnesses testified credibly that the Claimant did not properly or timely report a work-related injury to his supervisor per company policy and per requirement of the Act. The ALJ found that after Claimant did report a work-related injury to the insurer, he was terminated for cause for noncompliance with company policy and reasons unrelated to the work injury. The ALJ denied and dismissed Claimant’s claim for temporary disability benefits during the periods of non-compliance with the Act and for wage loss not related to the work injury.
In a third win for Mr. Boatwright, Respondents successfully defended against Claimant’s attempt to convert his scheduled impairment rating of the upper extremity to a whole person impairment rating in Penman-Keever v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 5-000-253. Claimant suffered a work-related injury from lifting and subsequently underwent labral repair. Claimant underwent a DIME, wherein the DIME physician found that the labral injuries were unlikely to be causally related, but did give a rating for loss of strength in the arm due to a cervical component. The Claimant’s expert testified that the labral injuries were related and resulted in functional impairment, whereas the Respondents’ expert agreed with the DIME physician that the mechanism of injury was insufficient to have caused the labral injuries. Respondents’ expert further testified that, despite the rating of the cervical component, there was no functional deficit in the neck itself. The ALJ found Respondents’ expert to be persuasive and denied the Claimant’s attempt to convert his admitted scheduled rating to a whole person rating.
In Rasmussen v. Manpower Group U.S., Inc., Associate Daniel Mowrey successfully dismissed Claimant’s claim for workers’ compensation. The claim was scheduled to proceed on a full contest hearing. Respondents filed a Motion to Dismiss due to Claimant’s failure to participate in discovery. Respondents persuasively argued that Claimant willfully refused to participate in discovery without any mitigating factors. The ALJ opined that dismissal should be imposed only in extreme circumstances. The ALJ credited Respondents’ arguments that the claim warranted dismissal. The ALJ Ordered that Claimant’s Request for Hearing filed on January 25, 2017 was dismissed. As a result of the dismissal, the ALJ further Ordered that the Notice of Claim Status, dated October 26, 2016, denying the claim was final.
One of the questions I hear frequently about the Colorado workers’ compensation system from risk managers, insurance adjusters, and even some medical professionals is: “Why does Colorado still use the AMA Guides Third Edition, Revised, when calculating impairment?” In other words, why do Division Level II accredited physicians providing impairment ratings to injured workers use the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (December 1990)? As of 2002, Colorado was, and still is, the only jurisdiction to use the Third Edition in the workers’ compensation system.
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Cases You Should Know
I love rules and I love following them, unless that rule is stupid: In Cordova v. Walmart Stores, Inc., W.C. No. 4-926-520 (March 14, 2017), the ICAO addressed the application and weight of the Medical Treatment Guidelines (MTG) in consideration of determination of whether a request for prior authorization for treatment was reasonable, necessary and related. Claimant had a work-related lumbar injury for which he requested surgery. Claimant also had a diagnosis of cancer in the lumbar spine. Respondents denied the request for surgery for multiple reasons, including Claimant’s alleged inability to identify the work-related condition as the pain generator and on the assertion that Claimant could not justify surgery under the MTG because he could not demonstrate that this would improve function or relieve pain. The ALJ agreed with Claimant’s expert opinion that the surgery would both improve function and relieve pain. Upon appeal, ICAO upheld the ALJ’s Order, finding that W.C.R.P. 17 acknowledges that reasonable medical care may include deviations from the MTG in individual cases and that an ALJ is statutorily identified as the arbiter of such disputes over medical care. See Section 8-43-201(3), C.R.S.
Moral of the Story: In disputes over reasonable, necessary and related medical treatment outside of the MTG, an ALJ may consider the MTG, but is ultimately not bound by these criteria.
Speak now (in response to a FAL), or forever hold your peace: In Heib v. Devereuax Cleo Wallace and Zurich American Insurance, W.C. No. 4-626-898 (March 15, 2017), the ICAO upheld the ALJ’s Order holding that the issue of AWW was administratively closed pursuant to the Claimant’s failure to object to a FAL within the requisite time period. Respondents filed both a FAL and a subsequent Amended FAL after Claimant was placed at MMI. Claimant did not endorse AWW in response to her objection to either the initial FAL or the Amended FAL, instead endorsing the issue later in a Response to Respondents’ Application for Hearing on a separate matter. Citing Section 8-43-203(2)(b)(II), C.R.S., which requires that disputed issues be endorsed in an Application for Hearing within 30 days of the filing of a FAL, the ALJ found that AWW was closed by operation of statute and denied and dismissed the issue. Upon appeal, Claimant asserted the right to litigate AWW based upon case law that permitted hearing on the issue where there was also an issue of reopening. ICAO found the Claimant’s reliance on these cases was misplaced, as there was no reopening at issue in this claim and no mutual consent to litigate the issue.
Moral of the Story: Issues not endorsed by a Claimant in an Application for Hearing filed within the requisite 30 days from a FAL are closed administratively and can only be reopened on the basis of fraud, overpayment, error, mistake or a change of condition.
Reality is contradictory. And it’s paradoxical: The ICAO upheld an ALJ’s Order finding that Respondent failed to meet its burden to overcome the DIME where the ALJ declined to apply issue preclusion on an asserted conflict between the ALJ’s Order and a previous hearing Order in Holcombe v. Fedex Corp., W.C. No. 4-824-259 (March 24, 2017). The first ALJ found that Claimant failed to meet his burden in proving by a preponderance of the evidence that surgery requested for Claimant’s left elbow was reasonable and necessary. Claimant subsequently underwent a DIME, which determined that he was not at MMI because the surgery for the left elbow was reasonable and necessary. Respondent sought to overcome the DIME at a second hearing and the second ALJ found that Respondent had failed to meet its burden to overcome the DIME by clear and convincing evidence. On appeal, Respondent asserted that issue preclusion, which bars re-litigation of issues previously determined, should prevent the second ALJ from reaching a different outcome than the first. ICAO found that issue preclusion did not apply, as the issues were decided under differing burdens of proof. See Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006). ICAO found that because the burdens were different, issue preclusion did not apply. ICAO further found that, regardless, the issue was not identical because the Claimant’s condition had changed between the first and second hearings.
Moral of the story: An ALJ is not necessarily precluded from reconsidering medical benefits that were the subject of previous litigation where the burden of proof on the parties changes after a DIME or where the passage of time affects the Claimant’s condition.
Sometimes you don’t get closure. You just move on: In Jaterka v. Johnson & Johnson, W.C. No. 4-984-216 (March 22, 2017), ICAO set aside and remanded an Order of the ALJ, which concluded that he lacked jurisdiction, and therefore authority, to hear an issue of reopening brought by Claimant. Claimant did not object to Respondents’ FAL with either an Application for Hearing or DIME within the requisite 30 days. Claimant filed a Petition to Reopen her claim because she was not at MMI and because her claim for a shoulder injury was inappropriately denied. The ALJ found that, because Claimant had failed to timely object to the FAL, the claim was administratively closed and the ALJ lacked jurisdiction to address reopening. ICAO found that the ALJ misapplied the law in determining that he had no jurisdiction to address the issue of reopening. Pursuant to Section 8-43-303, C.R.S., any award may be reopened on the ground of error, mistake or change of condition, and the statutory authority of the court to reopen is broad. ICAO noted that it was bound by the Court of Appeals’ decision in Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005), and found that the ALJ erred by dismissing the issue rather than making findings pursuant to the issue of reopening. ICAO remanded for additional findings by the ALJ. Upon remand, however, the ALJ denied and dismissed Claimant’s request to reopen her claim and also denied her claim for a left shoulder rotator cuff injury.
Moral of the story: Even if a claimant does not timely object to a FAL, this does not prevent them from subsequently seeking to reopen a claim on the bases of fraud, error, mistake or change of condition, and an ALJ must make a determination whether the asserted grounds warrant reopening under the facts.
No free lunch for Claimants just because Respondents seek a DIME: In Mulgeta v. ISS Facility Services, Inc., W.C. No. 4-978-510-02 (March 8, 2017), a Claimant had an admitted low back injury. However, due to the Claimant’s diffuse and non-physiologic pain complaints, the ATP provided only a 5% impairment rating based on six months of medical documented pain at the time of MMI. The Respondents did not file a FAL, but instead sought a DIME. The Claimant sought penalties against the Respondents on the basis that the Respondents should have paid TTD or PPD while the DIME was pending, because the Claimant was no longer employed with the employer. The ALJ denied penalties partly on statute-of-limitations grounds, but noted that TTD need not be paid while the Respondents seek a DIME where the Claimant was not receiving TTD prior to being placed at MMI by the ATP. The ICAO agreed.
Moral of the story: When Respondents seek a DIME instead of filing a FAL, the Claimant is statutorily entitled to ongoing TTD if he was receiving TTD at the time of MMI.
Shopping for impairment ratings: In Newton v. True Value Co., W.C. No. 4-978-459-02 (April 4, 2017), one of the Claimant’s authorized treating physicians, Dr. Kawasaki, placed the Claimant at MMI on September 17, 2015 and provided a scheduled rating for the upper extremity. Shortly thereafter, another of the Claimant’s authorized treating physicians, Dr. Adams, placed the Claimant at MMI as of October 5, 2015, but provided a whole-person impairment based on a spinal cord injury. The Respondents filed a FAL admitting for the scheduled injury provided by Dr. Kawasaki but admitted for the MMI date based on Dr. Adams’ report. Both were attached to the FAL. The Claimant argued that the Respondents were obligated to admit Dr. Adams’ rating because they relied on her report for the admitted date of MMI. The ALJ and ICAO disagreed. ICAO held that the Respondents could choose among the MMI dates and impairment ratings provided by the several authorized treating physicians when filing their FAL.
Moral of the story: Where various ATPs have differing opinions regarding MMI and impairment rating, Respondents may pick and choose on which to admit.
Where the DIME physician is right, it does not matter how he got there: In Powell v. Aurora Public Schools, W.C. No. 4-974-718-03 (March 15, 2017), a Claimant suffered an admitted hip injury. The Claimant was placed at MMI by her ATP, and the DIME physician concurred, noting that the Claimant suffered only minor tenonosis and joint irritation. After the DIME, the Claimant underwent an MRI that showed a torn labrum of the hip. The Claimant sought to overcome the DIME with regard to MMI and sought additional treatment, arguing that the DIME physician’s opinion was in error because he did not know of the torn labrum that would later appear on the MRI. The ALJ relied on expert testimony to conclude that the Claimant failed to overcome the DIME regarding MMI because the DIME physician would have come to the same result anyway. Therefore, even though the DIME physician did not have all information available to him, the Claimant still failed to prove by clear and convincing evidence that the DIME physician came to the wrong result. ICAO affirmed.
Moral of the story: Even if the DIME physician did not have all information available, the DIME doctor’s opinion will not be overcome so long as the DIME doctor reached the correct result.
DIME’s opinion does not preclude maintenance disputes: In Walker v. Life Care Centers of America, W.C. No. 4-953-561-02 (March 30, 2017), a Claimant sought maintenance medical treatment for a surgical consultation for her neck. The Claimant had previously undergone a DIME that concluded that the Claimant had an impairment of the upper extremity but which did not provide an impairment for the neck. The Respondents filed a FAL admitting for the rating as well as maintenance medical benefits. When the Claimant sought a hearing on the reasonableness and relatedness of recommended surgical consultation for the neck, the Respondents argued claim preclusion on the basis that the relatedness of the neck was already decided by the quasi-judicial determination of the DIME physician. The ALJ rejected the argument and concluded that the DIME’s opinion did not have any preclusive effect, noting that a previous ALJ had, in fact, converted the Claimant’s scheduled rating to whole person. ICAO affirmed.
Moral of the story: The DIME physician’s opinion regarding relatedness of body parts does not preclude later litigation of whether specific maintenance medical benefits are related.
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Lee + Kinder LLC sponsored the PWC 8th Annual Bowling tournament on Friday, February 10, 2017. The Firm was well represented with 3 teams entered. Team “Spare Us” won the event behind the strong showing of Richard Lutterman who was the highest scoring player in the tournament! Rich was accompanied on the team by Cheryl Stevens, Harvey Flewelling and Frank Cavanaugh. A good time was had by all and money was raised for the PWC scholarship fund.
The 2017 Colorado Workers Compensation Educational Conference is being held April 17-19 at the Broadmoor in Colorado Springs. Lee + Kinder LLC is an event sponsor. We invite you to join us for this educational event.
In Wilks v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended against a request for right wrist surgery. Respondent presented the testimony of Dr. Fall to prove that Claimant’s alleged mechanism of injury could not have caused the arthritic condition for which Claimant was seeking treatment. The ALJ ultimately found that, although Claimant needed the recommended procedure, the need for the procedure was not related to Claimant’s admitted injury. The ALJ relied on Dr. Fall’s persuasive testimony giving little weight to Claimant’s expert who admittedly relied on some “guesswork” in reaching his conclusions.
Of Counsel M. Frances McCracken requested an order striking Claimant’s request for disfigurement benefits in Rodarte v. Sam’s Club. Claimant suffered an industrial injury to her right middle finger and underwent surgery. Afterwards, Claimant sought disfigurement benefits. Ms. McCracken presented undisputed evidence and testimony from the Claimant that she was scheduled to undergo a second surgery that could correct some of the visible disfigurement. The ALJ determined an award for disfigurement was not yet ripe and struck Claimant’s Application without prejudice.
EMPLOYEE OR INDEPENDENT CONTRACTOR?
Why is it important to know if the person working for you is an employee or an independent contractor? Because the answer determines if he or she must be covered by your workers’ compensation insurance policy. An incorrect guess exposes you to substantial penalties under Colorado’s Workers’ Compensation Act.
A worker’s status as an “employee” versus an “independent contractor” has been one of the most heavily litigated areas of workers’ compensation since the enactment of Colorado’s Workers’ Compensation Act in 1915. Fortunately, after decades of appellate decisions addressing the independent contractor versus employee issue, in 1993, the General Assembly enacted Section 8-40-202(2), C.R.S. Click here to continue reading this article.
Cases You Should Know
Employer mandate: not optional. In two opinions issued on the same day, In the matter of Angels of God Early Learning Center, Inc. (November 8, 2016) and In the Matter of AWF, LLC d/b/a Cherry on Top (November 8, 2016), ICAO upheld penalties issued by the Director following second violations of the Workers’ Compensation Act requirement that an employer maintain workers’ compensation insurance coverage. Both employers argued on appeal that they did not receive notice that their insurance coverage had lapsed. The employer in AWF further argued that it obtained new coverage upon notice from the Division and that no employees had been injured in the meantime. In both cases ICAO upheld the penalties issued by the Division, noting that an employer is not entitled to a hearing, when the employer did not avail itself of the opportunity for a prehearing conference. Moral of the Story: When the Division issues penalties on an uninsured employer, and the employer does not seek a prehearing to challenge the fines, the employer waives its right to a hearing.
“You don’t need more treatment, but I didn’t say you were at MMI.” In Dean v. Southwest Airlines, W.C. No. 4-988-024-01 (November 7, 2016), a flight attendant alleged injuries to multiple body parts, including the ankle, as a result of falling due to motion of the airplane on which he was working. The ALJ found that the ankle injury resolved within two days and required no additional medical treatment and that the other injuries were unrelated to the incident. The Claimant appealed, arguing that the ALJ improperly ruled on whether Claimant’s ankle injury was at MMI without having first undergone a DIME. Noting that MMI was not at issue, ICAO upheld the ALJ’s Order finding the decision merely denied additional medical and temporary disability benefits based on a determination of causation. Moral of the Story: An ALJ’s denial of further medical and temporary disability benefits does not equate to a finding of MMI.
Collateral attack via DIME. In Jackson v. Select Comfort Corp., W.C. No. 4-914-418-03 (November 17, 2016), an ALJ found that a Claimant’s lumbar condition was not causally related to the admitted work injury. The Claimant later received an impairment rating from a DIME physician for the lumbar condition. The Respondents challenged the DIME’s impairment rating at hearing before a different ALJ. The ALJ found that the Respondents failed to overcome the DIME’s impairment rating by clear and convincing evidence. The Respondents appealed arguing that causation and relatedness could not be relitigated through a collateral attack on the first ALJ’s Order by means of a DIME. ICAO upheld the second ALJ’s finding noting that, although both hearings involved the question of causation, the burdens of proof were different. Therefore, they concluded that issue preclusion did not apply. Moral of the Story: Insofar as a DIME’s MMI or impairment rating determinations turn on relatedness, the DIME physician is not bound by a prior ALJ’s findings.
John Hancock, PA-C. In MacDougall v. ICAO, 2016CA705 (December 15, 2016)(nsfp), a Claimant was receiving TTD benefits on a GAL. The Respondents then filed a FAL admitting for no PPD benefits, relying on a medical report by the Claimant’s treating PA with the stamped signature of the Claimant’s ATP. The report stated that the Claimant was at MMI with no restrictions, but did not address an impairment rating. Upon receipt of a letter from the ATP stating that Claimant needed an impairment rating and review by a Level-II accredited physician, the Respondents filed an Amended GAL that terminated TTD as of the date of the PA’s report. The Claimant sought penalties on the basis that Respondents should not have terminated TTD based on a “fraudulent report.” However, the ALJ denied penalties noting that Respondents terminated TTD based on the PA’s full-duty release, which had not been rescinded by the ATP. ICAO and the Court of Appeals affirmed. Moral of the Story: Respondents may rely on a PA’s report if it bears the ATP’s stamped signature insofar as the ATP does not rescind the parts of the report on which the Respondents rely.
“Everyone has an Achilles’ heel.” In Kendrick v. United Airlines, W.C. No. 4-991-007-01 (Nov. 15, 2016), the Claimant sought review of an ALJ’s Order finding that Claimant’s injury did not occur within the course and scope of employment and subsequently denying Claimant’s temporary disability and medical benefits. Claimant was a co-pilot for the employer and was scheduled to spend the night in Seattle, Washington. After arriving at his hotel, Claimant went on a jog and ruptured his Achilles’ tendon ascending a flight of stairs. Claimant alleged that his jogging was within the course and scope of his employment. On appeal, the Claimant argued that the practice of running falls within the category of personal comfort activities found to be within the course and scope of employment. ICAO explained that participation in recreational activity is usually excluded from the context of employment and also excluded from being considered an element of the comfort doctrine. The Claimant’s jogging was considered a substantial deviation from the Claimant’s travel status. ICAO upheld the ALJ’s Order that Claimant’s injury did not occur within the course and scope of his employment. Moral of the Story: Unless the type of recreational activity is considered part of the employment, participation in recreational activities is usually outside the scope of most employment.
“Special employment hazard.” In Leal v. UPS, W.C. No. 4-977-019-02 (Aug. 15, 2016), the Claimant sought review of an ALJ’s Order denying medical and temporary disability benefits and dismissing the claim as not compensable. The Claimant alleged that he hurt his back while working for the employer. The Claimant had a history of back injuries including a 15-year history of sciatica symptoms. The Claimant underwent significant treatment until the DIME physician, Dr. Lesnak, placed him at MMI without impairment or restrictions. Another physician, Dr. Gellrick, later concluded that the Claimant was suffering from an aggravation of previous symptoms, concluding that the Claimant was not at MMI. At hearing, the Claimant testified that he had no history of back pain prior to the date of injury. Dr. Lesnak testified that the Claimant’s previous testimony regarding his prior episodes of back pain contradicted several medical records. Dr. Lesnak further testified that the Claimant’s symptoms, subsequent to the date of injury, were due to Claimant’s age, weight, and the degenerative condition of his spine. The ALJ ultimately did not find the Claimant’s testimony credible concluding that the Claimant failed to provide a causal link between his work duties and his industrial injury. On appeal, the Claimant alleged that the ALJ misapplied the special hazard of employment doctrine to deny compensability of the claim. ICAO noted that the ALJ’s Order showed that she applied the hazard of employment analysis to the extent she found no work activities were involved in the Claimant’s symptoms or need for treatment. Citing the City of Brighton v. Rodriguez, ICAO noted that in order to to render an injury compensable, a special employment hazard must have contributed to the injury even if the most direct cause of that injury is a preexisting idiopathic disease or condition. ICAO noted that the ALJ found no evidence that twisting at work contributed to the Claimant’s injuries. ICAO then concluded that the ALJ located the Claimant’s injury in the category of personal risk, which is not compensable, and the exception of the hazard of employment did not apply. Moral of the Story: Personal risk injuries are not compensable and the special hazard doctrine only applies when there is a preexisting idiopathic disease or condition and the special employment hazard contributes to that injury.
“Make sure your stories line up.” In Parrot v. Havana Auto Parts, W.C. No. 4-987-940-02 (Dec. 29, 2016), the Claimant sought review of an ALJ Order denying and dismissing the Claimant’s workers’ compensation claim. The Claimant contended that he injured his left knee while engaging the emergency brake in a work truck. He did not report his injury immediately to the employer. An employee for the employer credibly testified that there were no records documenting complaints about the truck’s emergency brake. Dr. Paz later performed an IME and concluded that the Claimant’s injuries were not causally related to the date of injury due to the Claimant’s inconsistent accounts of the mechanism of injury. At hearing, the ALJ credited the testimony of Dr. Paz and disregarded other medical opinions. On appeal, ICAO upheld the ALJ’s findings noting that an if ALJ determines that a Claimant has met their burden of proof to establish a compensable injury, then the appeals court must give deference to an ALJ’s resolution of conflicts of evidence and plausible inferences drawn from the record. Moral of the Story: An ALJ is given great deference in his/her determinations at hearing.
“Mager pain.” In United Parcel Service v. Industrial Appeals Office, Colorado Court of Appeals No. 15CA2142 (Nov. 10, 2016), the Court of Appeals affirmed an ICAO Order affirming an ALJ’s Order awarding the Claimant, Jennifer Magers medical benefits and temporary total disability benefits, and rejecting employer’s intervening cause and injurious practice arguments. While making a delivery, the Claimant developed pain in her left hamstring and lower left buttocks. She could not recall a specific event that precipitated the pain. It was later determined that Ms. Magers had a moderate sized posterior and left lateral disc protrusion and extrusion of her L4-5 and L5-S1 vertebrae. Dr. Jernigan opined that this was a result of her work performed on the date of injury. Ms. Magers took a road trip with her family, and reported a sudden increase in back pain after shifting her body weight in the car. An IME physician opined that Ms. Magers’ condition was not work-related because Ms. Magers had initially indicated to her primary care provider that the pain began four to five weeks before her visit, which would have put the injury outside the reported accident date. At hearing, the ALJ found that Ms. Magers had established she suffered a work-related injury, and rejected the Respondents’ injurious practice and intervening cause arguments. The Respondents challenged that (i) Ms. Magers sustained a compensable injury; (ii) Ms. Magers’s use of an inversion table was an intervening cause; and (iii) Ms. Magers engaged in an injurious practice by going on vacation. After applying the substantial evidence test in determining whether the evidence supports the ALJ’s findings, the Court of Appeals concluded: (i) Ms. Magers’ testimony and the medical opinions establish that Ms. Magers suffered a compensable injury, and Ms. Magers’ inability to pinpoint a specific event that caused her pain was not enough to indicate that the ALJ erred in crediting her testimony; and (ii) Ms. Magers’ one-time use of an inversion table and her family road trip were not a likely cause or contributed to her injury. After concluding that the ALJ resolved conflicting evidence, the Court of Appeals upheld the ALJ’s and ICAO’s findings. Moral of the Story: An ALJ is given great deference in weighing medical opinions and hearing testimony to determine whether a claimant suffered a compensable injury, whether a claimant participated in an injurious practice, and whether there was an intervening cause.
DIME opinions are great and all, but are not that impressive in evaluating PTD benefits: In this next case, the Claimant sustained multiple injuries when she tripped and fell over a box. The DIME physician opined Claimant had impairments to her left shoulder and left knee, but no impairments to her spine. Claimant sought PTD benefits. The ALJ credited Claimant’s IME physician that Claimant’s spine injuries were related to the fall and awarded PTD benefits. Respondents appealed and argued the ALJ did not properly apply the correct burden of proof in awarding PTD benefits. The Court held that this burden of proof did not apply in the context of PTD benefits. Rather, the PTD analysis focused on the Claimant’s ability to earn wages and Claimant was only required to show a causal link between her disability and work injury. Dish Network v. ICAO, W.C. No. 4-918-651 (nsfp). Moral of the story: The DIME physician’s opinion regarding causation of additional body parts does not carry presumptive weight in evaluating PTD benefits.
In the News
Lee + Kinder LLC had a great showing at the 2016 Professionals in Workers’ Compensation golf tournament with 4 lawyers in attendance. Member Katherine Lee and Of Counsel Frank Cavanaugh played with different foursomes. Member Joseph Gren and Associate Matt Boatwright manned the Lee + Kinder sponsored golf hole number 17 wherein a lucky hole-in-one would win $10,000.00. Unfortunately, no one aced the hole, but a great time was had by all.
In Manuel Ledoux v. Walmart, Of Counsel Fran McCracken, defeated Claimant’s assertion that he sustained a cumulative trauma injury to his right elbow and wrist through repetitive work activities. Ms. McCracken successfully persuaded the ALJ to place significant weight on the steps provided by the Medical Treatment Guidelines (MTG) to formulate causation for cumulative trauma conditions. The ALJ was not persuaded by Claimant’s expert, Dr. Rook, because he failed to explain how Claimant’s work activities fulfilled the criteria needed to develop a cumulative trauma disorder.
Associate Matt Boatwright successfully won dismissal of a full contest claim in Henry Leal v. United Parcel Service and Liberty Mutual Insurance. Claimant alleged that he had suffered a low back injury from twisting while driving a work vehicle. Claimant later alleged a subsequent work-related aggravation and sought additional treatment. The ALJ found that the described mechanism of injury was not sufficiently work-related to find the claim compensable and, notwithstanding, that Claimant was not credible as a medical historian. The ALJ denied and dismissed the claim.
OSHA Injury and Illness Reporting Requirements
The Occupational Safety and Health Administration (OSHA) requires many employers with ten or more employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted). OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data. Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically. Click here to continue reading this article
Workers’ Compensation Rules of Procedure Changes – Effective 9/14/16
The Division of Workers’ Compensation recently changed and revised several Rules. These changes became effective September 14, 2016. Employers and carriers participated in public comment, voicing concerns over this change since it will certainly create over-payments. Frank Cavanaugh of Lee + Kinder, LLC participated in these public comments on behalf of the Colorado Self-Insured Association.
Several changes are more substantive than others and track statutory amendments adopted by the legislature in the last session. For example, changes to Rule 5-5 regarding the filing of final admissions of liability will affect day-to-day claims handling. Rule 5-5 now requires the physician’s narrative report along with the M164 and measurement sheets be attached to the final admission of liability. In addition, this Rule now requires that the final admission of liability state a position on maintenance medical benefits, making specific reference to the medical report including the name of the physician and the date of the report. Failure to properly abide by these requirements may void a final admission of liability and potentially lead to imposition of penalties by the Director and/or audit issues. Rules 8-6 and 8-7 also track legislative changes over requests for a change of physician. An original treating physician’s role remains in place and does not terminate until there is an initial visit with the new physician . Further, a request for change of physician and a response to the request must now be on a specific form, WC197. Please also be aware that Rules 16 and 18 are undergoing changes and have not yet been finalized. We will apprise you of these additional changes once they occur. For a detailed review of all changes to the WCRP, please click on the link below.
Cases You Should Know
Who said lawyers can’t do math? In Richard Hutchison v. Pine Country, Inc., W.C. No. 4-972-492 (July 29, 2016), ICAO upheld the ALJ’s Order that required Respondents to pay one third of the cost of medical and temporary disability benefits because Claimant’s knee arthritis and need for a total knee replacement was equally caused by three factors including genetics, age and weight, and work tasks. ICAO held that Section 8-42-104 (3), which states that medical and temporary disability benefits shall not be reduced based on a previous injury, did not apply because the occupational disease of osteoarthritis did not involve a “previous injury.” Instead, the disability was the aggravation of the arthritis, which was equally attributed to the three different factors.
Moral of the Story: In cases of occupational diseases, the employer’s liability for medical and indemnity benefits is limited to the extent the work activities acted on the occupational disease to create the disability.
A DIME called by any other name is still a DIME: In Sean F. Clark v. Mac-Make-Up Art Cosmetics, W.C. No. 4-858-859 (August 3, 2016), claimant sustained an industrial back injury on March 5, 2010. In a respondent IME, Dr. Pitizer opined the claimant was at MMI with a 10% whole person impairment rating. Afterwards, respondents sent the ATP a letter asking whether the claimant was at MMI. The ATP did not respond, and respondents filed an application for a 24-Month DIME. At the DIME, Dr. Hattem noted the ATP placed the claimant at MMI on January 28, 2014, with a 34% whole person rating. Dr. Hattem agreed with the ATP’s date of MMI, but provided claimant with a 15% impairment rating. Claimant requested a hearing to strike the DIME report as the ATP, unknown to either party, had placed claimant at MMI before the 24-Month DIME was requested. The parties stipulated that neither party received a copy of the ATP’s MMI report before the 24-Month DIME. The ALJ determined respondents complied with the 24-Month DIME requirements set forth section 8-42-107(8)(b)(II) of requesting the ATP’s opinion whether the claimant was at MMI, and another physician opining the claimant was at MMI. Therefore, the ATP’s failure to timely disclose their report that the claimant reached MMI did not serve to frustrate the DIME process. Claimant appealed. ICAO affirmed. Of importance, the Panel clarified that 14 days from the date of service of a letter to the ATP regarding MMI was a reasonable amount of time to wait before respondents could request a 24-Month DIME.
Moral of the Story: Before requesting a 24-Month DIME, respondents must request from the ATP whether the Claimant is at MMI, and have an opinion from another physician the claimant is at MMI.
The perpetually open case of medical only claims: In Michael Thibault v. Ronnie’s Automotive Services, W.C. No. 4-970-099, (August 2, 2016), the claimant injured his right hand and index finger. Claimant received medical treatment and was placed at MMI with no impairment. Respondents filed an FAL denying indemnity and maintenance medical benefits. The claimant did not object to the FAL. Afterwards, the claimant sought to reopen the claim. The ALJ determined the claimant’s condition worsened after the FAL was filed and reopened the claim. Respondents appealed and argued claimant failed to establish his condition had worsened, and the claimant only sought to reopen the claim because he failed to timely object to the FAL. ICAO held the matter was not closed by the FAL because claims that do not admit for temporary or permanent benefits cannot be closed through an FAL. Therefore, the claimant did not need to meet the requirements to reopen the claim, and was only required to prove the medical treatment was reasonable, necessary, and related to the industrial injury, which he proved.
Moral of the Story: WCRP 5-5(A) recently changed effective 09/14/16 to allow for final admissions on medical-only claims. The FAL should be filed with a narrative report and appropriate worksheets.
Race you to the DIME in under 6 months: In Carol Lopez v. The Evangelical Lutheran Good Samaritan Society and Sentry Insurance, W.C. No 4-972-365 (ICAO August 16, 2016), ICAO reiterated the Colorado Supreme Court holding that a Claimant can qualify for a Table 53 specific spine disorder and impairment rating even if the Claimant reached MMI in less than 6 months of treatment. According to the AMA Guides, a Table 53 disorder is categorized by evidence of medically documented pain and rigidity for over six months. In this case, the DIME took place over a year after Claimant’s original back injury. The DIME physician opined that Claimant reached MMI one month after the injury and provided a 15% whole person impairment rating based on the Table 53 disorder and the loss of range of motion. Respondents argued that there could not be a Table 53 diagnosis because there was no evidence of pain for at least six months prior to the date of MMI. However, ICAO held that the impairment rating was appropriate based on the date the DIME took place. It reasoned that, at the time of the DIME, there was a rateable injury pursuant to Table 53 because there had been over a year of reported pain. ICAO held that the date of MMI does not affect the analysis of whether there is a Table 53 diagnosis.
Moral of the Story: If a Claimant reaches MMI for a back injury in less than 6 months, he or she could still receive a rating for a Table 53 disorder unless the DIME is completed in less than 6 months from the date of injury.
It’s not the claimant’s fault he got a DUI. In Brian Iten v. Meadow Mountain Plumbing and Pinnacol Insurance, W.C. No. 4-975-033 (ICAO August 15, 2016) the claimant was employed as a plumber and his job required him to drive a company van to job sites. Claimant injured his low back at work on February 11, 2015. Respondents admitted for ongoing temporary total disability benefits since the date of injury. On February 25, 2015, claimant was arrested for a DUI while driving his personal vehicle. Claimant contested the DUI charge and ultimately entered into a plea agreement. Claimant did not lose his driver’s license as a result of the DUI. Employer terminated the claimant as company policy required employees to have valid driver’s license and that if the insurance carrier refused to cover an employee, the employee could be terminated. Respondents filed a Petition to Suspend TTD benefits due to termination for cause pursuant to C.R.S. § 8-42-105(4)(a). The employer provided conflicting testimony that the claimant was either terminated because he lost his driver’s license as a result of the DUI or the insurance carrier indicated they would not insure the claimant due to the DUI charge. The ALJ did not find the testimony of the employer witnesses credible. The ALJ found that when the claimant was able to maintain his driver’s license, he reasonably believed he complied with the employer’s driving policy. Therefore, the claimant did not commit a volitional act making him responsible for his termination. ICAO affirmed.
Moral of the Story: To successfully assert termination for cause, respondents must prove the claimant violated a specific company policy and that his or her actions were volitional, which means the employee exercised a degree of control over the circumstances resulting in the termination.
In the News
Of Counsel Sheila Toborg and associate Stephen Abbott were successful on a recent full-contest hearing in Odell Walker v. Raytheon Co., et al. The claim involved an employee who alleged an injury to his cervical spine while working with his arms overhead. ALJ David Cain found that the claimant’s radicular symptoms began before his employment with Raytheon, and that his cervical condition was not aggravated by work. ALJ Cain denied and dismissed the claim.
Of Counsel Sheila Toborg and associate Stephen Abbott also succeeded on a recent hearing on medical benefits in Rocco Desantis v. Northwest Airlines, Inc., et al. The claimant sought a shoulder replacement surgery that respondents previously authorized several years earlier. The respondents argued that, despite the previous authorization, the surgery was not reasonable, necessary, or related to the admitted work injury. ALJ Timothy Nemechek agreed with the respondents and denied the request for surgery.
Of Counsel Joseph Gren and associate Dan Mowrey, received a favorable order denying psychological treatment and medications in Marcie Rhysling v. Pier 1 Imports and Liberty Mutual Insurance, W.C. No. 4-981-841. Claimant sought psychological treatment including prescription medications. Mr. Gren introduced testimony from Dr. Kleinman who maintained that Claimant was no worse now than she was before the injury and her need for current treatment and medication was attributed to stressors outside the scope of the occupational injury. Mr. Gren persuasively argued that there was no substantial reliable medical evidence in the record to support Claimant’s claim for additional medical benefits. ALJ Turnbow agreed noting that Dr. Kleinman, Dr. Gomer, and Dr. Boyd were all unable to link Claimant’s current depression and anxiety with the compensable injury. The ALJ found reports and testimony of Dr. Kleinman to be persuasive and more credible than Claimant’s testimony and issued an Order denying the request for medical benefits.
Of Counsel Frank Cavanaugh, filing as an amicus curiae (friend of the Court) on behalf of the Colorado Self-Insured Association, received a favorable opinion from the Colorado Supreme Court involving the firefighter cancer presumption under Section 8-41-209, C.R.S. Zukowski v. Town of Castle Rock, 13SC560, ___ P.3d ___ (May 2, 2016)
Mr. Zukowski began working for the Castle Rock fire department in 2000. In 2002 Mr. Zukowski had five moles removed and biopsied. In 2008 he developed a mole on his right calf and ultimately in 2011 Mr. Zukowski was diagnosed with melanoma on his right outer calf at the same site where a mole that developed several years earlier. He had several surgeries to remove the mole and returned to full duty work, but made a claim for medical and temporary disability benefits under the presumption statute. At hearing the parties stipulated that Mr. Zukowski was entitled to the presumption that the cancer was related to his occupational exposure as a firefighter; thus the only issue was whether the employer overcame the presumption. The employer presented evidence regarding Mr. Zukowski’s known risk factors for developing melanoma including exposure to the sun and history of abnormal mole growth. The ALJ found that Castle Rock’s burden in trying to overcome the presumption was to prove by medical evidence that claimant’s cancer came from a specific cause not occurring on the job.
On appeal to the ICAO, the ICAO essentially agreed with the ALJ. Castle Rock appealed the ICAO’s decision to the Colorado Court of Appeals, arguing that the ALJ misapplied the presumption when the ALJ determined that risk factor evidence was insufficient to rebut the presumption. The Court of Appeals agreed with the town of Castle Rock, looking at cases from other jurisdictions with a similar presumption statute and concluding that employer may overcome the presumption with specific risk evidence demonstrating that the particular cancer was probably caused by a source outside of work.
The Colorado Supreme Court granted certiorari in Zukowski, along with a companion case involving a similar issue. The Colorado Supreme Court held that Castle Rock was not required to establish an alternate cause for the cancer to overcome the presumption. The Court further held that presenting risk factor evidence which demonstrates the cancer was more probably caused by something other than work can rebut the presumption.
Of Counsel Frances McCracken successfully terminated Respondents’ liability for post-MMI medical treatment in two claims: Ronda Conley v. Wal-Mart Stores, Inc., et al. and Lynzea Hetrick v. Wal-Mart Stores, Inc., et al. In both claims, Respondents previously voluntarily admitted for post-MMI medical treatment to maintain the claimant at MMI then later sought to withdraw the admissions through litigation. Ms. McCracken elicited persuasive medical testimony and utilized surveillance video to prove by a preponderance of the evidence that post-MMI medical treatment was no longer reasonable, necessary, and related, thus halting Respondents’ liability for ongoing treatment in two claims.
Of Counsel John Abraham successfully defended an appeal brought by Claimant to alter the rate of an over-payment recovery by Respondents in Toby Heffner v. Wal-Mart Stores, Inc., et al. ALJ Cannici found that Respondents were entitled to recover an over-payment of $13,721.35 in TTD benefits per C.R.S. §§8-40-201(15.5) and 8-42-113.5. Claimant was ordered to pay it back at a rate of $250 per month, based on his AWW of $1,822.88. The panel was persuaded and agreed with Respondents’ position that the rate was a reasonable rate proposed by Respondents because it was appropriately based on the AWW and the amount of time it would take to have the recovery paid back.
In 2007 the Colorado Legislature enacted a firefighter cancer presumption statute at Section 8-41-209, C.R.S. The statute created a presumption that certain cancers were caused by work as a firefighter if the individual diagnosed with the cancer worked in the capacity for at least five years. For the cancer to be deemed a compensable occupational disease, the firefighter would have had to undergo physical examination upon becoming a firefighter that failed to reveal the cancer at that time. The presumption could be rebutted if the firefighter’s employer or insurer could show by a preponderance of medical evidence that the condition did not occur on the job.
This statute is similar to other presumption statutes that sprung up across the country in the wake of firefighters’ and other first responders’ actions during the 9/11 terrorist attacks. The general premise behind the presumption is that firefighters are exposed to known carcinogens to a greater extent than other occupations and that development of cancer is a known effect caused by exposures to these carcinogens.
Follow this link to read the entire article and learn about the recent case this affected.
Cases You Should Know
All or Nothing: a general award of benefits is not appealable. In Alex D. Miller v. United Insurance Group, W.C. 4-940-803 (February 25, 2016), Respondents sought review of an order determining Claimant was an employee rather than an independent contractor. ICAO dismissed the petition to review on the basis that ICAO did not have jurisdiction to address Respondents’ arguments. ICAO explained that the ALJ’s Order determined Claimant was an employee rather than an independent contractor and generally awarded workers’ compensation benefits to Claimant; however, it was not a final reviewable order because it did not require payment of a specified amount of benefits or penalties nor did it deny benefits. Moral of the Story: When litigating the issue of employee versus independent contractor status, ask the Court to order payment of a specific benefit to preserve the right to appeal.
A Physician Assistant’s MMI determination is of little consequence in the eyes of the law. In Howard MacDougall v. Bridgestone Retail Tire Operations, W.C. 4-908-701 (April 12, 2016), Claimant requested penalties against Respondents on multiple bases, including the fact that Respondents terminated TTD benefits based on a report by a physician’s assistant. ICAO denied the request for penalties, stating case law holds that penalties in such a situation are not a matter of strict liability, and negligence is measured by an objective standard based on whether a reasonable insurer would have taken a particular action under the circumstances. Moral of the Story: Per WCRP Rule 6-1(A)(1), an authorized treating physician must find MMI or release the claimant to full duty before Respondents may terminate TTD. Respondents may not rely on an opinion from a physician’s assistant or nurse practitioner to terminate TTD.
To Err is Human, but Forgive the DIME: No auxiliary shoulder ratings without arthroplasty. In Freeman v. Platte Valley Medical Center, W.C. No. 4-942-096-01 (May 4, 2016), the Claimant sought review of an ALJ’s order finding that the respondents overcame the DIME opinion with regard to an impairment rating for a shoulder surgery. The Panel held that the AMA Guides and the Impairment Rating Tips prohibit the addition of an auxiliary rating for shoulder surgeries pursuant to Section 3.1j in the case of surgeries other than an arthroplasty procedure. The ALJ’s opinion was supported by substantial evidence insofar as it found that an acromion resection did not constitute an arthroplasty under the AMA Guides. As such, the DIME erred in assigning an auxiliary impairment rating for the acromion resection. Moral of the Story: There is no auxiliary rating for shoulder surgeries unless the surgery is specifically an arthroplasty procedure.
No duty, No standing: Respondents’ duty to provide a designated provider list extends only to Claimant. After a claim reached a full and final settlement, a physician sought a hearing on the question of whether he was the authorized treating physician. In Horiagon v. Codi Manufacturing, Inc., W.C. No. 4-985-020 (March 15, 2016), the Panel found that the physician did not have standing insofar as he did not suffer an injury in fact and the question of authorized treating physician was moot. The Panel noted there were no outstanding medical bills and the claim was resolved fully and finally. With regard to the physician’s request for penalties for the respondents’ failure to tender a designated provider list to the claimant, the Panel noted that the duty to provide a designated provider list is a duty owed to the claimant, and that the physician lacked standing to pursue such relief. Moral of the Story: Respondents have a duty to provide the designated provider list to the Claimant, but the duty extends to no one else.
Can’t Always Call It Like You See It: Independent Contractor or Employee? In Pierce v. Pella Windows and Doors, Inc., W.C. 4-950-181-01 (April 26, 2016), the Industrial Claim Appeals Office reviewed a claimant’s appeal of a decision by an ALJ that he was an independent contractor instead of an employee. The ICAO panel reversed and set aside the ALJ’s order. In this case, the employer had laid off all sixteen of their service technicians and immediately rehired eight of them as independent contractors to perform the same work. Upon review, although the panel cited the nine statutory factors constituting whether an individual is an employee or independent contractor under C.R.S. §8-40-102(2), it noted that additional factors could be considered. In this case, in addition to the statutory factors, ICAO noted that Respondents basically employed Claimant in the same job he held previously and also had knowledge and control over whether Claimant could engage in independent business because he was working his same prior full time hours. Moral of the Story: An employer calling someone an independent contractor does not necessarily make the individual an independent contractor without supporting statutory factors.
No soup for you! No impairment rating without a Table 53 Diagnosis. In Silva v. Corporate Services Group Holdings, Inc.,W. C. No. 4-44-337-03 (February 23, 2016), ICAO affirmed the ALJ’s finding that the permanent impairment rating from the DIME should be set aside and Claimant’s request for PPD benefits denied. The DIME noted on the rating sheet that a rating for a specific Table 53 disorder of the spine was not applicable. Respondents cited the AMA Guides and DOWC Guidelines noting that a physician is precluded from assigning a rating for range of motion deficit unless there is first a rating based on Table 53. An impairment rating cannot be based on a range of motion measurement alone. Moral of the Story: If there is no Table 53 Diagnosis for spinal conditions, then there cannot be an impairment rating based on loss of range of motion.
Snake Bit: COBRA costs may be included in AWW even if not elected by Claimant. When a Claimant is terminated and does not elect COBRA or other health insurance, the health insurance replacement cost is still calculated into average weekly wage. An unpublished Colorado Court of Appeals decision addressed this issue in Restaurant Technologies v. ICAO, WC 481-542-001 (nsfp). The ALJ and Panel ruled that Claimant was entitled to an increase in his AWW equivalent to the full cost of covering his health insurance premium under COBRA. The only circumstances under which health insurance costs are not included in the AWW is when the employer continues to pay its share of the premium. C.R.S. §8-40-201(19)(b) does not require that the Claimant actually demonstrate that he purchased coverage. The Court of Appeals noted that in the event that the policy chosen by Claimant costs more or less than the calculated cost under COBRA, either party may seek a readjustment of the AWW. Moral of the Story: Health insurance replacement costs are included in AWW unless the employer continues to pay for insurance coverage.
In the News
Congratulations to Joseph Gren on his recent admittance to the Arizona State Bar for the practice of law.
Lee + Kinder LLC is proud to be a sponsor of the 7th Annual PWC Bowling Cup on February 19th. Good luck to all the teams!
Member Joshua D. Brown was the guest presenter at this month’s Colorado Self-Insured Association’s meeting. Mr. Brown presented on the topic of workplace bullying and the potential liabilities that may result, both in workers’ compensation and in general employment practices. As a hot topic issue, workplace bullying is gradually increasing social interest through proposed legislation by various lobbying groups across the county. Mr. Brown provided an overview of the proposed legislation that exists in other jurisdictions, along with recommendations on how employers both nationwide and in Colorado can adequately protect themselves against potential liability.
Member Tiffany Kinder and Associate Kelsey Bowers were successful on a recent Motion for Summary Judgement in Josue v. Anheuser-Busch, Inc. and ACE American Insurance Company, WC 4-954-271 (January 26, 2016). The Court agreed with Respondents’ argument and dismissed Claimant’s Application for Hearing endorsing the issue of over-payment with prejudice. ALJ Jones upheld the over-payment asserted in the Final Admission of Liability and ordered Claimant to repay the over-payment of $16,222.32.
Of Counsel Joseph Gren and Associate Daniel Mowrey were also successful on a Motion for Summary Judgment in Meza v. Bayou Well Services, Inc., and Liberty Mutual Group, W.C. 4-929-946 (January 29, 2016). The issue was whether Claimant received the FAL. Opposing counsel claimed Liberty Mutual did not properly serve the FAL on them when it was originally filed with the Division but admitted to receiving it six months later. Respondents asserted that Claimant’s counsel received a copy of the FAL and failed to object within 30 days of receipt. ALJ Cannici granted Respondents’ Motion for Summary Judgment noting Claimant’s counsel received a copy of the FAL, though months after the date of the original FAL, and that Claimant did not object to FAL when served a second time. Thus, the claim is closed administratively, and Claimant cannot reopen on the grounds of fraud or mistake.
History of Workers’ Compensation Law: Part IlI: Emergence of the Modern-Day System
This is the final piece of the three-part series surveying the history of workers’ compensation. Prior to 1911, an individual residing in the United States, regardless of their state residency, who suffered a workplace injury could only recover damages by utilizing traditional tort based law. In other words, an injured worker would need to sue their employer and claim the employer’s negligence or intentional conduct caused the subsequent injury. The employer could raise defenses such as contributory negligence or assumption of risk to bar the receipt of monetary damages. This system was often cumbersome, time-consuming, unpredictable, and expensive for both the employer and employee. Click here to continue reading this article
Cases You Should Know
Attack of the carpeted floor – A personal risk we face daily: In Miles v. City and County of Denver, W.C. 4-961-742 (December 15, 2015), the ALJ found that a Claimant stepped forward with her leg on level, unremarkable carpet without twisting. The Claimant experienced a pop, and MRI imaging showed a torn meniscus. The ALJ found that the Claimant’s pre-existing degenerative knee condition contributed to the injury, was necessarily personal in nature, and that the knee condition did not combine with any special hazard of employment. ICAO agreed, noting that the Claimant’s injury did not constitute an “unexplained fall,” since the ALJ had found that the Claimant’s injury was caused at least in part by the Claimant’s idiopathic knee condition, and that the injury necessarily stemmed from a personal risk, not from her employment. Moral of the Story: Just because an employee was injured at work does not necessarily mean the injury is compensable.
AWW is a magic number: In Defrece v. 20/20 Theatrical, W.C. No. 4-920-455 (December 7, 2015), Claimant sought to reopen his claim on the basis that an ALJ erred in calculating AWW. ICAO stated the issue of AWW may be reopened pursuant to C.R.S. §8-43-303 in case of a mistake in fact or law. Because the authority to select an alternative method for computing AWW is discretionary, an AWW calculation by an ALJ may not be set aside unless it amounts to an abuse of discretion. Moral of the Story: Since an ALJ has wide discretion regarding the method of AWW calculation, mere disagreement with the ALJ’s method does not constitute a mistake and is not a basis for reopening.
Getting in the door is easy…getting benefits once you’re in is hard. In Mitchem v. Donut Haus #2, Inc., W.C. No. 4-785-078 (December 28, 2015), Claimant sought review of an ALJ’s order denying and dismissing her request for authorization of certain maintenance care benefits in a claim where Respondents had filed a Final Admission of Liability admitting for a general maintenance care award. ICAO clarified that there is a different evidentiary standard for determining whether a Claimant is initially entitled to a general maintenance award versus determining whether a Claimant has proven entitlement to a specific medical benefit when Respondents have already admitted to a general award. A Claimant seeking initial entitlement to a general award is subject to the substantial evidence standard while a Claimant seeking entitlement for a specific benefit under a general award is subject to the preponderance of evidence standard. Moral of the Story: A Claimant seeking entitlement to a general maintenance care award faces a lower evidentiary burden than a Claimant seeking entitlement to a specific maintenance medical benefit.
If the ATP isn’t under duress, odds are good the referral is legit. In Sackett v. ICAO, et al. (Colo. App. 2015) (nsfop), ICAO reversed an ALJ’s holding that an Authorized Treating Physician’s (“ATP”) referral of Claimant to her Primary Care Provider (“PCP”) was valid on the basis that the ATP did not employ independent medical judgment. Rather, the referral appeared to be the product of a nonmedical decision made in response to Claimant and her attorney’s request that she see her PCP in the event of a contested claim. The Colorado Court of Appeals reversed ICAO, recognizing a broad definition of the term independent medical judgment. The appellate court stated, “In our view, independent judgment may take many forms, so long as the physician determines, without undue outside influence, that a referral is in the injured worker’s best interest.” Moral of the Story: Independent medical judgment is an amorphous concept—if the ATP finds the referral in the Claimant’s best interest, the referral likely is valid.
All work and no TPD makes Johnny a dull boy: In Edgar v. Halliburton Energy Services, W.C. 9-971-336-01 (December 22, 2015), Claimant sustained a compensable injury and was placed on work restrictions that did not allow him to perform his pre-injury job duties requiring heavy lifting. He found subsequent employment within his work restrictions but at a lower wage. On appeal, Claimant was awarded TPD benefits because the panel determined his economic wage loss was caused by the by the work injury. The panel reasoned that once a Claimant establishes a disability in the sense that the injury impairs his or her ability to perform his regular job duties, the right to temporary disability benefits is measured by Claimant’s wage loss, because physical restrictions caused the injury to affect the Claimant’s prospects for finding alternative employment. Moral of the story: If there is a causal link between the industrial injury and the subsequent wage loss, TPD must be awarded.
Time waits for no one: In Muro-Rios v. Ashley Manor, LLC, W.C. 4-964-081 (December 22, 2015), Claimant was denied a claim for TTD benefits based on the termination statutes after suffering work-related injuries on September 17, 2014. The question posed by the termination statutes, C.R.S §§8-42-105(4) and 8-42-103(1)(g), is whether Claimant is responsible for the termination of employment. Claimant was hired in 2008 and at the time of hire, he represented that he was a lawful permanent resident and an alien authorized to work by submitting a driver’s license and a Social Security card. Shortly after Claimant’s injury, the employer discovered that Claimant’s Social Security number was invalid and asked Claimant to provide information to remedy the issue. Claimant failed to do so and was terminated. The ALJ and Appeal panel found that Claimant’s false submission of a Social Security card, and then later failure to correct the matter, constituted volitional acts and he was responsible for his termination on October 21, 2014, six years later after submitting the false information. Moral of the story: The remoteness of the volitional act does not necessarily affect the application of the termination statutes.
Double-dipping in the sweet spoils of Comp: In Keel v. ICAO et al. (Colo. App. 2015) (nsfop), the Colorado Court of Appeals addressed double-dipping in multiple states’ workers’ compensation systems. Section 8-42-114, C.R.S. sets forth that Colorado workers’ compensation benefits may be offset by 50% of out-of-state benefits paid for the same injury. Those benefits paid in another state for the same injury may not be credited toward the Colorado benefits. Moral of the story: As a result, since different states provide different offsets for other states’ workers compensation benefits, a Claimant may strategically file a claim in one state first so that he or she may benefit from the more generous offset provision of another state in a later claim for the same injury.
ICAO’s punting game: Appealing a decision requires an award denying or awarding benefits: In Taylor v. Alpine Management, W.C. 4-959-907, (December 22, 2016), a Claimant brought a claim against a respondent company alleging that the company was a statutory employer. The ALJ found that the respondent was not the Claimant’s employer at the time of injury, and dismissed the respondent from the claim, but no specific benefits were awarded or denied. The Claimant appealed the decision. ICAO declined to address the merits of the order on the basis that the order was interlocutory. Moral of the story: § 8-43-301(2), C.R.S., provides grounds for appeal only of those orders that award or deny benefits.
There are changes coming to Workers’ Compensation Rule of Procedure 16 that will be effective January 1, 2016.
The changes to the rule are noted in RED below.
WCRP 16-9(B) requires a provider to submit a written request for prior authorization with supporting medical documentation when:
(1) The service exceeds recommended limitations under the medical treatment guidelines,
(2) The medical treatment guidelines require prior authorization,
(3) The services identified within the medical fee schedule is requiring prior authorization, or
(4) The prescribed service is not identified in the medical fee schedule.
WCRP 16-10(A) requires the payer notify the provider and the parties in writing of any contest to the prior authorization within seven business days from the date of receipt of the request, including a certificate of mailing.
If the prior authorization request is from an authorized treating provider and includes reasoning and relevant documentation that the treatment is related to the work injury, the payer cannot deny based on relatedness without a medical review of the request.
WCRP 16-10(B)(1) now requires the following for a seven-day medical records review:
The medical records review must be done by a physician or healthcare professional LICENSED IN COLORADO, and
The medical records review must be done by a provider in the SAME OR SIMILAR SPECIALTY, who would typically manage the medical condition, procedures or treatment being reviewed, and
The medical reviewer must be LEVEL I OR LEVEL II ACCREDITED by the State of Colorado.
WCRP 16(10)(E) provides that failure to timely comply with the denial requirements results in automatic authorization for payment unless:
- A hearing is requested within the seven business day time frame; and
- The provider is notified about that the request for prior authorization is being contested and the matter is going to hearing.
SHOW CAUSE ORDERS AND POTENTIAL PENALTIES ON RULE 16 MEDICAL RECORD REVIEWS:
WCRP 16-10(F) provides, “Unreasonable delay or denial of prior authorization, as determined by the Director or an administrative law judge, may subject the payer to penalties under the Workers’ Compensation Act.”
Recently, the Director has issued show cause orders to payers as a result of complaints by injured workers over disputes regarding medical care. The Director has issued orders requiring payers to show cause as to why a request for prior authorization was denied, when the procedure/treatment in question fell within the Colorado Medical Treatment Guidelines. The Director stated that a response that the matter is set for hearing will not suffice as “good cause” or provide a competent response to a show cause order. The Director expects a substantive response to any show cause order he issues.
Potential changes to Rule 16 that are still under consideration by the Director include: a medical review panel whose opinion regarding authorization would need to be overcome by clear and convincing evidence, and a requirement that payment be made subject to potential reimbursement in the event that a denial is upheld.
This article is intended to provide information only and not as a substitute for legal advice. If you have specific questions or cases that you would like to discuss, please contact the attorneys of Lee + Kinder, LLC for further guidance.
In the News
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Member Tiffany Scully Kinder and associate Jessica Melson were successful in proving claimant’s headaches and ongoing treatment by Dr. Machanic were not related to his industrial injury in Galindo v. Resource Real Estate Management and Federal Insurance Company, W.C. 4-972-112 (December 16, 2015). Claimant alleged ongoing headaches due to a dural puncture occurring during an epidural injection procedure. ALJ Broniak found that claimant’s testimony and statements to his doctors regarding his headaches were not credible. The ALJ credited the testimony of respondents’ expert, Dr. Ridings, in his explanation that dural headaches resolve fairly quickly after administration of a blood patch, which claimant had received. ALJ Broniak found claimant’s ongoing headaches months after the ESI and need for headache medications and treatment were not related to the industrial injury.
Member Karen Gail Treece successfully pursued a two-prong attack against claimant’s request for temporary disability benefits. In Tarman v. US Transport and Arch Insurance, W.C. 4-981-955 (December 15, 2015), claimant continued to work after the injury, but then asserted he was unable to drive to his job due to medication. Respondents made several written offers of modified employment to claimant, offering to change the location of the employment, and offering to provide transportation for him. Claimant failed to report for modified duty and was terminated for attendance issues and job abandonment. Claimant argued that as a practical matter he could not accept the offer of modified duty. Ms. Treece presented testimony from the employer noting the number of times they communicated with claimant and the efforts made to accommodate his restrictions. ALJ Michelle Jones found the employer representative’s testimony compelling and more credible than claimant’s testimony. ALJ Jones found the employer had properly made a written offer of modified employment, which claimant failed to begin. Thus, claimant was not entitled to TTD benefits. ALJ Jones further found that respondents had proven Claimant was responsible for his termination and thus, was also not entitled to TTD benefits after his termination.
Of Counsel Frances McCracken successfully defended against a request for authorization of a total hip replacement in Andrade v. Wal-Mart Stores, Inc. and New Hampshire Ins. Co., W.C. 4-921-309 (December 8, 2015). Drs. White, O’Connell, and Ellman recommended a total hip replacement (THR) as they thought this would provide the best surgical outcome due to claimant’s age and weight. Drs. Davis, Henke, and Kindsfater instead recommended arthroscopic surgery. Dr. Davis testified that the Medical Treatment Guidelines did not support a THR given claimant’s pathology. He also testified he was unaware of any literature indicating that age and weight be considered in determining whether to perform THR. ALJ Cain denied request for THR.
Of Counsel John Abraham had a successful month with two big wins. Mr. Abraham defeated Claimant’s request for ongoing lumbar spine steroid injections and convinced the ALJ to enforce a tapering program for Claimant’s ongoing opioid medications in Larry Moss v. Nana Regional Corp. and ACE American, W.C. 4-873-272 (November 18, 2015). ALJ Lamphere was persuaded by respondents’ expert witness, Dr. Bernton, who testified that the injections were not causally related to the industrial injury and explained why Claimant’s opioid medications should be tapered and terminated within four months.
Mr. Abraham also received a favorable judgment from ALJ Cannici in Toby Heffner v. Wal-Mart Stores, Inc. and Illinois National Insurance Company, W.C. 4-869-417 (November 13, 2015). Mr. Abraham successfully argued that respondents were entitled to an over-payment of $13,721.35 for TTD benefits paid after MMI based on the DIME physician’s retroactive MMI determination. ALJ Cannici ordered the Claimant to pay respondents $250 per month until the over-payment was recovered.
Associate Jessica Melson defeated claimant’s request for temporary partial disability benefits, and successfully defended against claimant’s assertion that respondents failed to properly deny a request for prior authorization. In Evon v. Wyndham Worldwide Corporation and Liberty Mutual, W.C. 4-977-410 (December 2, 2015), claimant alleged she was owed TPD benefits. Claimant had multiple employers over a period of several months, resigning from one, and beginning work at a new job. Ms. Melson argued it was speculative that claimant would have continued serving for her prior employer when she was subsequently working a full-time position with the new employer and earning a higher wage. ALJ Mottram found claimant’s testimony that she was earning less after her work injury unpersuasive. Claimant also argued that respondents had failed to properly deny a request for prior authorization. Ms. Melson argued the initial request for authorization by Dr. Joseph did not comply with WCRP 16(F), and therefore respondents’ obligation to timely deny the request for authorization had not been triggered. ALJ Mottram agreed with respondents’ argument and found claimant had failed to meet her burden to prove Dr. Joseph had properly submitted a completed request for prior authorization.
SUBROGATION – SALE OF THE LIEN
Colorado’s workers’ compensation subrogation statute, located at Sec. 8-41-203, C.R.S., is poorly worded and has become more complex through legislative revisions over the years. At its heart, the statute allows payment of compensation under the Colorado Workers’ Compensation Act to operate as an assignment of a cause of action against another person or entity “not in the same employ” whose negligence or wrong produced injury or death for which benefits are paid. The right of subrogation applies to all compensation including medical, hospital, dental, funeral and other benefits. The assigned and subrogated case includes the right to recover future benefits. It extends to money collected from the third party that produced injury for all economic damages, physical impairment and disfigurement. The assigned and subrogated cause of action does not extend to money collected for non-economic damages awarded to the injured worker for pain and suffering, inconvenience, emotional stress or impairment of quality of life. Follow this link to read the entire article.
Cases You Should Know
Be Specific, Be-e Specific, B-E S-P-E-C-I-F-I-C! Once again, the Industrial Claim Appeals Office (ICAO) held that an Order that does not award or deny specific medical benefits will be deemed interlocutory and not reviewable. Robert Quina v. Employment Solutions Management, Inc. and American Casualty Co. of Reading, PA, W.C. 4-883-847 (ICAO, October 8, 2015). In this claim, respondents appealed an order from the ALJ that ordered respondents to pay for medical treatment to cure and relieve Claimant of the effects of the injury. While the parties discussed specific treatment in position statements, the ALJ did not make a determination as to the reasonableness, necessity, and relatedness of any specific treatment. ICAO remanded the issue to the ALJ for additional findings and clarification as to what specific medical benefits, if any, were awarded.
The Power to Reopen = The Power to Increase Reserves: ICAO found that a Claimant can seek to reopen a claim even in circumstances where the determination of a prior DIME physician is sought to be questioned. In David Valdez v. Alstom, Inc. and Zurich American Insurance Company, W.C. 4-784-196 (ICAO, November 3, 2015), the DIME physician previously found that Claimant was at MMI and that several body parts/conditions were not related to the injury. Claimant later filed a petition to reopen based on a worsening of condition involving the “unrelated” body parts as well as a mistake of fact by the DIME. The ALJ granted respondents’ Motion for Summary Judgment based on issue preclusion, reasoning the DIME physician previously determined relatedness and claimant had failed to challenge the DIME findings. However, ICAO overturned this decision and noted that either party has the opportunity to file a petition to reopen for genuine mistake of fact, which cannot be dismissed by a Motion for Summary Judgment.
You Have the Right to Attend a DIME, Anything the DIME Says May be Held Against You: ICAO affirmed that a DIME is a prerequisite to challenge an ATP’s opinions. In Baran v. Amgen and ACE American Insurance Company, W.C. 4-906-018 the ATP placed claimant at MMI. Respondents filed an Application for Hearing challenging the ATP’s rating. Claimant endorsed ongoing temporary benefits. The ALJ agreed with the ATP’s determinations of MMI and impairment. Both parties appealed. ICAO noted that the parties may request a DIME before hearing if they disagree with the ATP’s impairment rating. Additionally, since claimant had endorsed ongoing TTD, MMI was at issue which also required a DIME before hearing. The order was set aside and the case was remanded.
I Did Not Volitionally Visit That Adult Website: Claimant installed Google Chrome web browser on his work computer to access job applications submitted to the employer. He used his personal Gmail account login and password to access the browser at work. When claimant left work he did not log out of Google Chrome on the work computer. He then accessed a number of adult websites using his Gmail account, which then showed up on the employer’s computer. Claimant was terminated for violating the employer’s Electronic Communications System policy. The ALJ found claimant did not commit a volitional act that constituted a violation of established company policy, only that claimant had made a mistake. The ALJ awarded temporary disability benefits. ICAO affirmed noting evidence supported the ALJ’s determination that claimant’s acts did not rise to the level of “volitional.” Kasper v. U.S. Beef Corporation and XL Specialty Insurance Co., W.C. No. 4-951-444 (ICAO, October 30, 2015).
In the News
Lee + Kinder LLC was named by U.S. News & World Report and Woodward/White as a Metropolitan Tier 1 Best Law Firm 2016 in the field of Workers’ Compensation Law – Employers.
Member Joshua Brown and Of Counsel Frank Cavanaugh successfully filed for Summary Judgment in favor of their client, Scottsdale Insurance Company, in a complicated bad faith and breach of contract case. Scottsdale was a third level excess insurer for a general contractor. After a year of litigation in the Federal District Court of Colorado, Scottsdale was added as a party. Plaintiff settled with numerous other defendant carriers, leaving Scottsdale as the remaining defendant to the litigation. The bad faith claim against Scottsdale was dismissed, leaving only a breach of contract claim. For procedural reasons, Scottsdale had only days to file both an Answer and a Motion for Summary Judgment in the weeks before a jury trial was scheduled to commence. Mr. Brown and Mr. Cavanaugh filed a Motion for Summary Judgment arguing Scottsdale’s excess policy had not been triggered as the underlying policies from the other carriers had not been exhausted; the other carriers had settled but failed to pay out their policy limits. The Judge agreed with Scottsdale’s position and granted Summary Judgment.
Member Karen Gail Treece and Associate Jessica Melson successfully defended Claimant’s appeal in Satchell v Coach America and American Home Assurance Company, W.C. No. 4-825-725 (ICAO May 28, 2015). In this claim, Claimant suffered an admitted knee injury. The DIME physician opined Claimant had reached MMI. Claimant sought to overcome the determination of MMI and alleged she also injured her low back in the original injury. ALJ Jones determined Claimant failed to overcome the DIME and that the low back was not causally related to the original claim. Claimant appealed. ICAO affirmed the ALJ’s Order.
History of Workers’ Compensation Law: Part II: The Rise of Workers’ Compensation Coverage
This second segment, of the three part series on the history of workers’ compensation law, briefly summarizes how the industrial revolution fueled the workers’ compensation system. The first resemblances of workers’ compensation insurance coverage primarily arose because of increased revolutionized industrial practices and socialist schisms in European political ideals. Around the 1860s, the industrial revolution was beginning to take hold in Europe; the American Industrial Revolution area would steam forward in the later part of the 1800s. Industrial imperial countries, specifically Germany, wrestled with growing the economics of their respective country while continuing to expand their empires. To achieve these goals, political leaders were required to balance the progressive social worker-centered ideals and traditional conservative business goals. Click here to continue reading this article
Cases You Should Know
CRPS You Have; Compensable It Is Not.
In Amy Gordon v. Ross Stores, Inc., W.C. 4-878-759 (ICAO, August 20, 2015), Respondents initially admitted compensability and Claimant underwent authorized surgery for carpal tunnel syndrome (“CTS”). A DIME determined Claimant’s CTS was not work related, and the CTS surgery caused chronic regional pain syndrome (“CRPS”). ICAO held that Claimant’s CRPS was not compensable under the quasi-course of employment doctrine because it was not the “direct and natural” consequence of an original compensable condition. Moral of the Story: Employers often provide medical treatment then later contest compensability of an injury—mere admission that an injury occurred cannot be construed as a concession that all subsequent conditions and treatment were caused by the work injury.
DIME Got You At MMI? Don’t Delay, Endorse PTD Today!
In David Weibel v. The Kroger Company, W.C. 4-878-425 (ICAO, September 22, 2015), Respondents filed an Application for Hearing to overcome the DIME’s impairment rating, and Claimant responded endorsing multiple issues, but not Permanent Total Disability (“PTD”). Respondents subsequently filed a Final Admission of Liability and Claimant timely objected, applying for hearing on the issue of PTD. ICAO held the PTD claim was barred by the doctrine of claim preclusion because Claimant failed to endorse PTD when responding to Respondents’ application on the issue of permanent impairment. Moral of the Story: Claim preclusion bars re-litigation of matters that have already been decided as well as matters that could have been raised in a prior proceeding but were not.
Farmers Sure Work Hard But They Are Not Statutory Employers.
In Juan Galdamez v. Jose Enriquez, W.C. 4-897-023-03 (ICAO, August 17, 2015), Respondents’ Motion for Summary Judgment to deny Claimant’s claim against Schneider Farms as a statutory employer was upheld. Schneider Farms hired Jose Enriquez to clean irrigation ditches. Mr. Enriquez in turn hired Claimant. Claimant attempted to move some metal pipes in the field, when they came into contact with power lines and Claimant was injured by electrical current. Claimant filed suit against both Enriquez (direct employer) and Schneider (statutory employer). C.R.S. §8-41-401(1)(a) provides an agricultural exemption to statutory liability and therefore, Schneider Farms was not the statutory employer in this case. Moral of the Story: The agricultural exemption statute places an obligation on the party contracted by the farm or agricultural entity to obtain and maintain compensation insurance for farm or ranch labor. The farm is not required to demand or obtain a certificate of insurance from its hired contractor.
Location, Location, Location: ATP Shopping When An ATP Changes Facilities.
In William Benton v. Lowe Enterprises, Inc., W.C. 4-903-810-04 (ICAO, September 14, 2015),. Claimant initially treated at a Concentra in Thornton, Colorado with Dr. Nystrom. Dr. Nystrom eventually moved his practice to the Concentra in Greeley. Claimant continued treatment in the Thornton/Denver area for several months with an authorized physician. Upon reaching MMI, asserted to Dr. Nystrom in Greeley. C.R.S. §8-43-404(5)(a)(V) states that if the ATP moves from one facility to another, or from one corporate medical provider to another, the injured worker may continue care with “the” ATP. A Claimant may continue with the ATP who moves locations so long as the ATP is Claimant’s primary physician with whom it is most necessary for Claimant to continue his care. The progress or frequency of care from a particular ATP is a factor in determining whether the physician is “the” primary physician. In this case, the case was remanded for review to determine whether “the” ATP was Dr. Nystrom, as there was evidence that Claimant may not have sought treatment again with Dr. Nystrom until filing the Application for Hearing on the issue. Moral of the Story: A Claimant may continue medical care with the ATP who has moved locations, as long as the ATP is “the” primary authorized physician providing care and there is evidence to support this. Note that this is different than the statute that allows Claimant to simply request a change of physician.
Member Tiffany S Kinder and Associate Kelsey Bowers successfully defended a claim for medical benefits and Temporary Total Disability (TTD) benefits in Josue v. Anheuser-Busch, Inc., et al. Ms. Kinder presented testimony of a medical provider to prove that a platelet-rich plasma injection, that was performed without prior authorization, was not medically reasonable, or necessary, to treat Claimant’s knee injury. Ms. Kinder also successfully argued that Claimant’s wage loss was solely attributed to the unauthorized and unreasonable injection. ALJ Margot Jones found in favor of Respondents on all issues and permitted Respondents to terminate TTD benefits as of the date of the injection and found that Respondents were not liable for the injection costs.
Of Counsel Sheila Toborg and Associate Angela Lavery successfully defended Respondents’ interests in Lozoya v. Dragon ESP, Ltd. et al. Claimant asserted that he was entitled to medical benefits consisting of an L3-S1 discogram, requested by one of his ATPs. At hearing, Ms. Toborg presented evidence in the form of medical records and expert witness testimony that, although the discogram may be causally related to Claimant’s work-related injury, it was not reasonable or necessary. The ALJ was persuaded by the credible testimony of Respondents’ medical expert, as well as by a Peer Review report submitted into evidence, that the perquisites for the discogram procedure as outlined in the MTG had not been met. The ALJ agreed that although the MTG are advisory, in this case, it was not appropriate to deviate from them. The ALJ agreed with Respondents’ position that the request for the discogram was not reasonable or necessary and therefore the request for medical treatment consisting of the L3-S1 discogram was denied and dismissed.
Associate Matt Boatwright successfully defended a claim for increased Average Weekly Wage (AWW) in Steiner v. Intrawest/Steamboat Ski and Resort Corporation, et al. Claimant sought to have his AWW significantly increased for alleged concurrent employment through his personal business. Claimant contended that he had contracts through the business during the weeks prior to his injury and that his AWW should include calculations for these contracts for a limited number of weeks prior to the injury. Respondents presented evidence of Claimant’s tax records for the business from the year prior to the injury and argued that these indicated that the wage calculations by Claimant were grossly exaggerated. Claimant also sought a nominal increase in AWW for alleged “fringe” benefits which included meal discounts at his job with the employer. The ALJ disagreed that these constituted fringe benefits under the Act. The ALJ agreed with Respondents that the evidence presented by Claimant did not reflect higher wages for concurrent employment and denied the increase in AWW.
Of Counsel Frank Cavanaugh and Associate Jenna Zerylnick, co-wrote an article that was recently published in The Colorado Lawyer. The article examines tort liability, workers’ compensation, and employment law issues that pose unique challenges and create exposure to K-12 school districts. The article also provides examples and practice tips for attorneys practicing in these areas.
Click here to read the entire article that was published in the October 2015 issue of The Colorado Lawyer.
Cases You Should Know
Age is Just a Number for Offsets: In Zwanziger v. King Soopers, W.C. No. 4-872-758-02 (May 14, 2015), Claimant appealed an Order that determined the Respondent was entitled to a offset against TTD benefits of Claimant’s receipt of social security survivor benefits received due to age. Claimant received social security survivor benefits based upon her age, and not her disability from the work place injury. Pursuant to section 8-42-103(c), C.R.S., of the Act, Respondent’s right to offset temporary indemnity benefits depends on whether Claimant receives social security benefits based upon disability. Since the social security disability benefits was for old-age/widow’s benefits rather than for disability, Respondent was not entitled to an offset for those benefits against TTD payments. Moral of the Story: It is important to understand exactly what benefit a claimant is receiving, and if you can assert an offset against the benefit.
Volunteering for a Compensable Claim: In Payan v. Victor Payan d/b/a Payan Construction, et al., W.C. No. 4-920-556 (August 17, 2015), ICAO upheld an ALJ’s Order denying compensability of a claim on the basis that Claimant was a “volunteer” and not an “employee” at the time of the injury. The employer ran a construction business and employed Claimant (his nephew) sporadically with no expectation of future employment. Claimant, who lived in the employer’s home, was in his pajamas and walked outside to offer his assistance with hooking a ladder onto a truck. He suffered a laceration to his leg in the process. The ALJ found a contract of hire did not exist between Employer and Claimant and that claimant was acting as a volunteer when the injury occurred. In Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo. App. 1992), the Colorado Supreme Court held that if services are volunteered without any expectation of compensation in return, an employer providing some gratuitous benefits will not convert a volunteer into an employee. Moral of the story: An injured worker must fundamentally be an “employee,” even if he or she were doing a job related task at the time of the injury, to qualify for workers’ compensation benefits.
Convicting Yourself of Non-Compensability: In Sanchez v. Honnen Equipment Company, W.C. No. 4-952-153-01 (August 10, 2015), the ALJ determined that Claimant failed to establish that he sustained a compensable right knee injury during the course and scope of his employment. The ALJ found that there was no mechanism of injury described in the medical records that accounted for the Claimant’s injuries. After Claimant lost on compensability, Claimant appealed on the grounds that the ALJ erred in allowing the Respondents to question him regarding his prior felony convictions. Claimant also testified he had a felony from a conviction dating back five years. ICAO held that Claimant voluntarily offered testimony regarding his felony conviction. Additionally, ICAO held that substantial evidence supported the ALJ’s order. Moral of the story: A claimant’s credibility (or lack thereof) plays a major role in winning a full contest case.
Oh, Those Pesky Self-Imposed Deadlines: In Chavez de Meza v. St. Anthony Hospital, W.C. No. 4-885-762-02 (August 21, 2015), Claimant sustained admitted injuries to her bilateral knees. Respondents filed an Application for Hearing contesting the authorization of bilateral knee surgeries. The parties reached a stipulation to withdraw the Application for Hearing as the left knee surgery had already been authorized. The stipulation held the issue of authorization of the right knee surgery in abeyance until March 15, 2015. Respondents re-filed their Application for Hearing on April 1, 2015. Claimant moved for summary judgment arguing that Respondents waived their right to challenge the authorization of the right knee surgery. The ALJ concluded that the Respondents did not re-file their Application for Hearing on or before March 15, 2015 and granted Claimant’s Motion. ICAO held that the ALJ’s order was based upon substantial evidence and upheld the decision. Moral of the Story: Don’t miss deadlines, especially if the deadlines are set by court approved orders.
ALJ Gets First Bite of the Causation Apple: In Day v. ICAO, et al. (August 6, 2015)(nsfop), the Colorado Court of Appeals held that a DIME is not a necessary prerequisite to a hearing on causation of the need for treatment. An ALJ denied Claimant’s claim for medical benefits on the basis that further treatment was not related to the work injury. Claimant contended upon appeal that a DIME was first necessary to determine causation. The Court of Appeals affirmed the ICAO decision holding that causation was a question of fact for an ALJ and that a DIME determination was unnecessary. Moral of the story: Proceeding to hearing before an ALJ on causation can be a better choice as the burden of proof is by a “preponderance of the evidence.” If a DIME physician provides an opinion on causation, that opinion may only be overcome by “clear and convincing evidence.”
A Power Play in Jurisdiction between ALJs and PALJs: Jeckonias Muragara v. Sears Roebuck & Co. et al., W.C. Nos. 4-726 & 4-712-263 (September 8, 2015), involved the scope of an ALJ’s jurisdiction and authority in the instance of abuse of judicial process. Compensability of Claimant’s claim was denied at a hearing in 2007 and he lost all appeals. Claimant attempted to reassert a different injury under the same claim and a PALJ dismissed the claim and ordered that Claimant not be able to bring another claim without being represented by an attorney. Claimant thereafter sought penalties in connection with an Application for Hearing that also endorsed compensability. The Director struck the Application in its entirety on the basis of the PALJ’s Order. ICAO held that Claimant could still pursue penalties under C.R.S. § 8-43-304 even though his claim was denied at hearing. ICAO also held that the PALJ was without jurisdiction to issue an order barring Claimant from filing future claims without an attorney. Moral of the story: Recognize that PALJs have limited jurisdiction and cannot require a Pro Se Claimant to retain an attorney.
Maintaining a Worsening Condition: ICAO upheld an ALJ’s order denying Claimant’s petition to reopen her claim on the basis of a worsening of condition in Pavelko v. Southwest Heating and Cooling, LLC, et al., W.C. No. 4-897-489 (September 4, 2015). Claimant sustained a cervical injury and was placed at MMI and prescribed maintenance care by Dr. Sacha. Claimant shortly thereafter asserted she experienced “flare-ups” and was evaluated by Dr. Hughes. Dr. Hughes concluded that Claimant was not at MMI and needed additional diagnostics and treatment to cure and relieve the effects of her injuries. Dr. Sacha disagreed and indicated that further care could be performed as maintenance, regardless of “flare-ups.” The ALJ found Dr. Sacha’s opinion more persuasive and denied reopening. ICAO must defer to the factual determinations, absent an abuse of discretion, and found that the ALJ had weighed the totality of the medical evidence and that the Order was based upon substantial evidence. Moral of the story: Though an injured worker may experience increased pain after MMI, temporary increases of pain may not always be a sufficient basis to reopen a claim.
Plucking the Low Hanging Fruit: a Study in Ripeness: In McMeekin v. ICAO, et al. (June 18, 2015)(nsfop), the Colorado Court of Appeals upheld an ICAO decision which found the issue of authorized provider to be ripe for hearing and set aside an ALJ’s Order for attorney fees. Respondents endorsed both medical benefits and authorized provider in a hearing over post-MMI medical treatment and ICAO determined that only the issue of medical benefits was ripe upon appeal. An ALJ awarded attorney fees upon remand for the unripe issue of authorized provider. Upon second appeal, ICAO reversed its former opinion that the issue of authorized provider was not ripe at the time it was endorsed for hearing. The Court of Appeals found the issue of authorized provider may involve the scope of the referral for the authorized provider. Moral of the story: The issue of authorized provider, when endorsed as a hearing issue, can bring into dispute the scope of substantive medical treatment.
If the Issue is Moot, You’re Going to be Muted: The Colorado Court of Appeals upheld an ALJ’s Order declining to rule on a dispute over administration of an MSA agreement because the issue was moot. Savidge v. ICAO, et al. (June 11, 2015)(nsfop). Claimant settled her claim and agreed to a self-administered MSA. Claimant later requested a third party administrator for the MSA and sought a hearing. The ALJ declined to rule on the issue, indicating that he lacked jurisdiction over the MSA. Respondents agreed to a third party administrator prior to appeal and ICAO determined that the issue was moot due to lack of a dispute. Claimant persisted with the appeal, regardless, arguing that the issue was “of great public importance” and that mootness may be disregarded in such instances. The Court of Appeals disagreed, indicating that the dispute was simply over who would administer the MSA, not whether it would be administered, and held that the issue was moot. Moral of the story: Even if previously endorsed, if an issue is resolved prior to hearing it will likely become moot.