Colorado, Arizona and Utah.
Lee & Brown was well-represented this year by Members Joshua D. Brown and John Abraham at the NAMWOLF Annual Meeting and Law Firm Expo held in Los Angeles September 22-25th. A member of the National Association of Minority and Women Owned Law Firms since 2013, Lee & Brown is proud to be a part of this outstanding organization and its efforts to promote diversity in the legal community by connecting companies who support this fundamental initiative with the minority and women-owned law firms and legal vendors who embody it and seek opportunities to succeed.
Josh and John’s very well received contribution to the conference was the screening of their video, “THIS is NAMWOLF”, shown at the conference awards banquet. The video was an entertaining sequence of NAMWOLF member interviews conducted by the dynamic duo during the conference exposition. In it, members themselves were able to express and share with all attendees their personal insights into what this national organization means to them and its profound impact in creating a more diverse culture throughout the legal community. Click here to watch the video.
Lee & Brown was a platinum sponsor at the Professionals in Workers’ Compensation Annual Golf Tournament, held this year at Raccoon Creek Golf Course on September 20th. Out representing the Firm in style were Members Katherine Lee and Josh Brown; Of Counsel, Frank Cavanaugh, Jessica Melson and Angela Lavery; as well as Associate Matt Boatwright. Lee & Brown regularly sponsors this event which promotes the camaraderie and fellowship amongst workers’ compensation professionals from both sides of the Bar and in related fields and businesses. This year, the PWC held a funniest hole contest, which Lee & Brown took very seriously and won! Our Caddyshack theme was a huge success and we want to thank everyone who visited us at the Bushwood Country Club, hole no. 17!
Noteworthy Cases – Colorado
Member Joshua D. Brown and Associate Kristi M. Robarge successfully defended a claim for TTD benefits and proved Claimant was terminated for cause in Hansen v. J-R Motors Company North, W.C. 5-101-017. Claimant sustained an admitted injury when she slipped and fell in the car sales lot while showing a vehicle to some customers. When Claimant sought treatment for her injury, she underwent a post-accident drug screen. Claimant tested positive for marijuana and was terminated by Respondent-employer for violation of the drug policy. Claimant sought TTD benefits. Respondents argued that Claimant was terminated for cause and was not entitled to TTD benefits. Claimant argued that her employer knew about her drug use because she took a pre-employment drug screen and was still hired; however, evidence showed that Respondent-employer did not test for marijuana in the pre-employment drug screens. Since Respondent-employer had a strict drug policy and Claimant admitted knowledge of the policy, the ALJ found that Claimant was terminated for cause and not entitled to TTD benefits.
Member Karen Gail Treece, successfully defended a full contest claim in Lopez-Pando v Martin Marietta Materials, W.C. No. 5-081-406. Claimant alleged depression as well injuries to his low back, bilateral shoulders and cervical spine, which he claimed resulted from moving a frozen mud/rock clod from a conveyor belt into a chute on April 9, 2018. Claimant’s testimony of the size of the clod was inconsistent with that described by the credible employer witnesses. Ms. Treece elicited testimony that Claimant was using short term disability and did not report this as a work injury claim until the day after the expiration of his short term disability. Claimant’s testimony attributing his injury to a specific event was inconsistent with what he had told his physicians. Medical records demonstrated Claimant had underlying pre-existing conditions affecting his left shoulder, low back and neck. The ALJ did not find the Claimant’s alleged multiple injuries from the described mechanism of injury credible, and found no persuasive evidence of an acute injury. The ALJ determined Claimant failed to prove he suffered a compensable injury or occupational disease.
Member Fran McCracken successfully defended against Claimant’s attempt to reopen his claim in Luszko v. Allied Universal, W.C. 5-034-956. Claimant originally filed a claim for compensation and an Application for Hearing in January 2017. The case was closed following Respondents’ Motion to Close for Failure to Prosecute in January 2018, pursuant to the Director’s Show Cause Order. In June 2019, Claimant filed a second Application for Hearing endorsing multiple issues, including compensability and a petition to reopen on the basis of a change in condition. Because there was no determination of compensability of the injury prior to claim closure, Respondents filed a Motion for Summary Judgement arguing the Claimant was precluded from reopening his case on the basis of a change in condition, having never established a compensable injury for the condition to have changed. The ALJ agreed with Respondents’ interpretation of the facts and law, granted Respondents’ Motion for Summary Judgment and struck Claimant’s June 2019 Application for Hearing with prejudice.
Keep an Eye on the Statute of Limitations: In Packard v. Industrial Claim Appeals Office of the State of Colorado and City and County of Denver, Colorado, 2019COA146 (Colo. App. 2019), Claimant appealed the Panel’s holding that his claim was barred by the statute of limitations. Claimant claimed a workplace injury arising from his job duties as a firefighter for the City and County of Denver. On August 5, 2013, the City filed a report of Injury. On August 6, 2013, the City filed a Notice of Contest. On October 6, 2017, Claimant applied for hearing seeking medical and TTD benefits. Section 8-43-103 provides a 2-year general statute of limitations. The Court of Appeals held that a Notice of Contest, a First Report of Injury, and assignment of a W.C. number do not constitute notification that a Claimant is claiming entitlement to indemnity benefits within the meaning of the statute of limitations. Thus, the Court of Appeals found that Claimant’s Application for Hearing, filed 4 years after the date of injury, was untimely and his claim for indemnity benefits was barred by the statute of limitations.
Moral of the story: In order to satisfy the statute of limitations, a Claimant seeking compensation must file an Application for Hearing or Claim for Workers’ Compensation within 2 years.
If Benefits are Granted, File the GAL: In Miller v. Industrial Claim Appeals Office of the State of Colorado and City and County of Denver, Colorado, 18CA1894 (Colo. App. 2019), Claimant appealed the Panel’s affirmation of the denial and dismissal of her claim for penalties. The parties had gone to hearing on Claimant’s claim for entitlement to medical and indemnity benefits. The ALJ ruled in Claimant’s favor. Under Rule 5-5(C)(1) of the Colorado Workers’ Compensation Rules of Procedure, an employer has thirty days to file a general admission of liability following an ALJ’s resumption or increase of benefits. The Employer filed the GAL more than thirty days after the ALJ’s Order. Claimant subsequently applied for hearing on penalties for the Employer’s alleged failure to comply with Rule 5-5(C)(1). The Court of Appeals held that the rule was not triggered because the ALJ’s Order did not cause a resumption or increase in benefits, as no benefits had been previously paid to Claimant. Thus, the Court of Appeals affirmed that Claimant was not entitled to penalties.
This opinion is an unpublished opinion of the Court of Appeals meaning it is not binding upon lower courts. Nevertheless, following its issuance, an amendment to the rule was proposed altering its language to state that a GAL must be filed “[f]ollowing any Order (except for Orders which only involved disfigurement) becoming final which alters OR AWARDS benefits.” A public hearing regarding the adoption of this rule has not been set as of the publication of this newsletter.
Moral of the story: To avoid exposure for penalties, file a GAL after an ALJ’s order instituting payment of benefits to claimant.
Can you earn it?: In Jose Cruz Verdeja v. Bakers Transmission Service, W.C. No. 5-047-467 (ICAO August 19, 2019), the Claimant sought review of the ALJ’s Order denying his entitlement to PTD benefits. The Claimant sustained a compression fracture to the low back on May 19, 2017. The Claimant underwent conservative care; however, surgery was not recommended. The Claimant was placed at MMI on March 29, 2018. The Claimant was assigned permanent work restrictions in the light duty category. The Claimant contended that he was permanently and totally disabled and unable to earn any wages. In preparation of hearing, Respondents retained an IME and vocational evaluation. Respondents’ vocational evaluator identified multiple positions within the Claimant’s permanent work restrictions. The positions considered the Claimant’s education, skills, and commutable labor market. The ALJ credited the opinions of Respondents’ experts. The Claimant argued that the positions identified by Respondents’ vocational evaluator were beyond his work restrictions. ICAO affirmed the ALJ’s ruling finding that the issue of PTD is primarily factual and that her ruling was supported by substantial evidence in the record.
Moral of the story: PTD is determined on a factual basis and an ALJ’s order will only be overruled if not supported by substantial evidence in the record.
Shifting Burdens and the DIME: In James Jones v. The Mitre Corporation, W.C. No. 5-034-047 (ICAO August 27, 2019), the Pro Se Claimant’s claim was found compensable for injury sustained to the neck and ears in the form of tinnitus, but not for his alleged hearing loss, as the result of being exposed to a loud noise. The Pro Se Claimant was placed at MMI on June 26, 2018 and assessed a 4% whole person permanent impairment rating of the cervical spine. Respondents requested a DIME. At the DIME, the Pro Se Claimant, without leave of court, presented the prior ALJ’s Order regarding compensability/causation for review by the DIME doctor. The doctor assessed a 14% whole person permanent impairment award for the cervical spine but did not address causation. Respondents filed an Application for Hearing to overcome the DIME and requested a Samms conference with the DIME doctor to clarify her opinion and to determine whether she used the prior Order to influence her assessment and opinions on causation pertaining to the cervical spine. The doctor changed her opinion after the Samms conference and assessed no permanent impairment rating for the cervical spine. At hearing, the ALJ ruled that the Pro Se Claimant improperly influenced the DIME doctor by presenting her with the prior ALJ’s Order. In addition, the ALJ ruled that the Pro Se Claimant reached MMI as of February 26, 2017, with no permanent impairment based on the DIME doctor’s subsequent testimony from the Samms conference. On appeal, the Pro Se Claimant argued that the ALJ misapplied the burden of proof as it was Respondents who appealed the opinions of the DIME. ICAO affirmed the ALJ’s Order and indicated that once an ALJ determines the DIME opinion concerning MMI and impairment, then the party seeking to overcome those opinions bears the burden of proof by clear and convincing evidence.
Moral of the story: When a DIME physician offers conflicting opinions on MMI, impairment or causation, the ALJ is to resolve the conflict and to determine the true opinion of the DIME physician. As such, the burden may shift to the party who disagrees with the ALJ, not necessarily the party who initially sought to overcome the DIME.
An Unjoyful, Joy Ride: In Rush v. Enterprise Leasing, W.C. No. 5-081-615 (ICAO September 6, 2019), the Claimant was injured as a passenger in a motor vehicle accident. The Claimant and a co-worker drovethe company vehicle to another location to pick up more vehicles. En route, the co-worker drove down a dirt road and took off traction control before accelerating rapidly, which caused the vehicle to flip over several times. Respondents argued that the Claimant’s activities in the vehicle constituted horseplay and was a personal deviation from his employment. The Claimant testified that he believed they were traveling to the second location to pick up vehicles and did not have any part in the joy ride down a dirt road. The ALJ credited the Claimant’s testimony and found the claim compensable. The Respondents appealed the decision, arguing that the ALJ cannot rely on the Claimant’s subjective beliefs about the joy ride and deviation in her decision. ICAO disagreed and found that there was substantial evidence to support the ALJs findings that the Claimant was not involved in a deviation from work.
Moral of the story: Non-participating victims of horseplay are entitled to workers’ compensation benefits because the employment placed them in the “zone of danger” created by the horseplay.
Covering your tracks: In Hansen v. Bavarian Inn Restaurant, Inc., W.C. No. 5-061-844 (ICAO September 4, 2019), the Claimant appealed a decision of the ALJ that he was terminated for cause and not entitled to TTD benefits. Claimant worked at a bar in downtown Denver where a fight occurred between employees of the bar and patrons entering the establishment. During the fight, Claimant was hit in the head several times and a co-worker was shot. While filling out an incident report, the Claimant was permitted to review the surveillance video of the incident. The following day, the employer was unable to access the surveillance video and noted that the Claimant’s Google drive was open on the computer. The Claimant admitted to uploading the surveillance videos to his Google drive account. Claimant was charged with tampering with evidence. The employer had a written policy prohibiting disclosure, distribution, transmission or copying of confidential information and the Claimant had signed a document affirming his knowledge of this policy. The ALJ found that the Claimant was provided permission to view the surveillance video but not upload any files to his personal Google drive account. The ALJ found that the Claimant’s actions violated the company’s written policy, which led to his termination. The ALJ denied and dismissed the Claimant’s claim for TTD benefits. ICAO upheld the ALJ’s Order.
Moral of the story: Having written policies that employees review, with receipt acknowledgment of same, helps prove termination for cause.
Colorado, Arizona and Utah.
Noteworthy Cases – Colorado
Members John Abraham and Fran McCracken successfully defended against Claimant’s claim of a compensable occupational disease in Vargas v. Cargill Meat Solutions, W.C. 8-093-534-001. Claimant worked as a snout trimmer and alleged to have suffered bilateral carpal tunnel syndrome as a result of an occupational disease. At hearing, Ms. McCracken elicited testimony from Respondents’ expert that Claimant’s duties as a snout trimmer did not meet the causation requirements for carpal tunnel syndrome. Furthermore, Claimant’s job duties lacked the sufficient force to cause a work-related condition pursuant to Rule 17, Exhibit 5 of the Division’s Medical Treatment Guidelines. The ALJ credited the opinion of Respondents’ expert and found Claimant failed to prove that he suffered an occupational disease in the form of bilateral carpal tunnel syndrome. The claim was denied and dismissed.
In Gammill v. Walmart Associates Inc., Member Fran McCracken successfully defended against Claimant’s claim of compensability for a back injury. Respondents sought to withdraw a General Admission of Liability, based on prior medical records indicating that Claimant’s back injury was pre-existing. Respondents’ medical expert also testified that Claimant’s congenital deformity was an incidental finding not related to the work injury and that fusion surgery to treat low back pain should only be considered after conservative treatment was exhausted. The ALJ found that Claimant failed to meet his burden of proving entitlement to workers’ compensation benefits by a preponderance of the evidence. Respondents were therefore permitted to withdraw the GAL as improvident.
Member Fran McCracken also successfully defended against a claim for penalties for the alleged failure to timely pay a lump sum settlement amount to Claimant within fifteen days in McDonald v. Walmart Associates Inc. The ALJ found that Claimant failed to demonstrate that penalties should be assessed for Respondents’ untimely payment of the settlement check. Specifically, the ALJ noted that Respondents acted reasonably in ensuring that Claimant timely received the check by stopping payment on a first check that was issued and requesting a new check be overnighted to Respondents’ counsel while consistently communicating with Claimant’s counsel regarding the arrival of the check. Additionally, the ALJ found that Respondents cured the issue of delayed settlement prior to Claimant filing the Application for Hearing and Amended AFH, which resulted in the curing of the alleged violation as allowed by statute.
Noteworthy Cases – Arizona
Before The Industrial Commission of Arizona, Associate Daniel Mowrey defended Claimant’s full contest claim in Johnson v. KWD Enterprise, Inc., ICA No. 20183310358. Claimant alleged a low back injury as a result of her employment as a home health care nurse. Claimant stated that she was injured while lifting a patient in her bed. At hearing, Mr. Mowrey elicited testimony from Claimant that she did not initially report the injury or seek treatment for over two weeks following the alleged injury. Claimant further admitted to not filing a claim for workers’ compensation until her unemployment benefits were denied. Mr. Mowrey also submitted an expert medical opinion that the claim was not compensable. The ALJ found the testimony and corresponding medical records did not meet the standard to establish an industrial injury. The ALJ denied and dismissed the claim.
Enough of this Horseplay!: In Rifle Tequilas, Inc. and Truck Insurance Exchange v. Pena Alvarez, No. 18CA1367 (July 11, 2019), Claimant was a restaurant employee who sustained injuries to his facial area as a result of an altercation with another employee. Claimant, as permitted by the employer, had a beer after the restaurant closed. The altercation regarding the beer arose while Claimant was washing dishes. The ALJ found the claim to be compensable, notwithstanding the Respondents’ argument that Claimant was engaged in horseplay at the time of injury. Specifically, the ALJ used the four factor test from Lori’s Family Dining, Inc. v. ICAO to determine whether the horseplay deviated so substantially that Claimant’s resulting injury was not compensable: (1) the extent and seriousness of the deviation; (2) the completeness of the deviation, i.e. whether it was commingled with the performance of a duty or involved in an abandonment of duty; (3) the extent to which the practice of horseplay had become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some horseplay. The ALJ found the claim to be compensable, noting that Claimant was permitted to drink beer while working, the altercation involved the beer, and there was “no credible evidence” that Claimant was reprimanded for prior altercations. Thus, the ALJ concluded that horseplay was “an inherent part of the workplace.” The Court of Appeals noted that the finding of the extent of a deviation is a question of fact for the ALJ and that a claimant is not required to prove every element of the four-part test. Rather, the ALJ’s finding only needs to be sound and readily discernible based on the factors.
Moral of the story: Horseplay may be considered an inherent part of the workplace when there are no consequences for prior acts of horseplay.
Grant or Deny? The Director Will Decide: In Webster v. Czarnowski Display Service Inc., W.C. No. 5-009-761 (July 16, 2019), Claimant sought to change his physician under C.R.S. § 8-43-404(5)(a). The Director of the Division of Workers’ Compensation denied Claimant’s request, as Claimant sought treatment for injuries and conditions not related to his work injury. The ICAO held that the Director has broad discretionary authority to grant a Claimant’s request for a change of physician. In this case, Claimant’s request was based on his personal dissatisfaction with his physician. The ICAO upheld the Director’s denial of Claimant’s request, as there was no abuse of discretion.
Moral of the story: The Director and ALJ have broad discretion in granting a request for change of physician under C.R.S. § 8-43-404(5)(a).
IME on My Way: In Wanner v. Patterson UTI Drilling Co, W.C. No. 5-065-967-001 (July 17, 2019), ICAO affirmed an ALJ’s Order that found Claimant’s claim compensable. Claimant was initially injured at work on December 22, 2017, when he was struck by a board on his left side. Claimant sustained additional injuries on March 28, 2018, while driving home from an IME. There were two primary issues in this claim: 1) whether the initial injury on December 22, 2017 was a compensable claim; and 2) whether Claimant was entitled to ongoing medical benefits following the motor vehicle accident on March 28, 2018. Respondents argued on appeal that the motor vehicle accident was an intervening event that severed the causal connection. The ALJ opined that Respondents’ intervening event argument was based on the mistaken premise that an injury during travel to an IME appointment is an intervening event. The ALJ ruled, and the ICAO agreed, that under the “quasi-course of employment” doctrine, an injury occurring during travel to and from authorized medical treatment is compensable. The ALJ’s Order was affirmed.
Moral of the story: Injuries that occur during travel to and from authorized medical treatment are compensable.
Safety First? Sometimes: In Burd v. Builder Services Group Inc., d/b/a Mato, W.C. No. 5-058-572-01 (July 9, 2019), Respondents sought review of the ALJ’s Order that denied a reduction in disability benefits due to a safety rule violation and increased the average weekly wage (AWW). Claimant was injured when he fell off a roof while installing fire insulation products. Claimant was not attached to a safety line, as was required; therefore, Respondents reduced his temporary benefits by 50% due to the imposition of the safety rule penalty pursuant to C.R.S. § 8-42-112(1)(b). The ALJ found that the employer did not prove Claimant willfully violated the safety rule, as the employer’s management did not consistently understand the rule itself. Additionally, the ALJ found that the employer did not enforce the safety rule. The ICAO found that there was substantial evidence to support the ALJ’s ruling. The ALJ’s Order was affirmed.
Moral of the story: If the safety rule is not regularly understood and enforced, you will not be successful in taking the 50% safety rule violation reduction.
In The News
It is with great pride that we announce the Attorneys of Lee & Brown, LLC, who have been selected by their peers for inclusion in The Best Lawyers in America 2020® in the field of Workers’ Compensation Law – Employers.
Noteworthy Cases – Colorado
In Metcalf v. Caterpillar Incorporated Co., Of Counsel Sheila Toborg and Of Counsel William Sterck successfully defended against Claimant’s claim of compensability. Claimant argued that she sustained a compensable injury and that she was entitled to medical care, temporary total disability benefits, and temporary partial disability benefits. During hearing, Ms. Toborg argued, and presented evidence, that the Claimant did not establish she sustained an injury in the course and scope of her employment and that the Claimant’s condition was not an occupational disease, but rather the result of trauma. Mr. Sterck further argued, in Respondents’ Position Statement, that Claimant had no basis for her claim in either law or in fact. Due to the combined efforts of Ms. Toborg and Mr. Sterck, the ALJ found that Claimant failed to meet her burden of proving her claim compensable and the claim was dismissed.
Noteworthy Cases – Arizona
Before The Industrial Commission of Arizona, Associate Daniel Mowrey successfully defended Claimant’s Appeal in Szach v. SW Ambulance, ICA No. 20160-260291. Claimant protested the closure of his claim and sought continuing medical benefits. Claimant also sought to link upper body injury and subsequent surgery to the admitted claim. The ALJ relied upon testimony from Respondents’ medical expert, who opined that the upper body injury and subsequent surgery was not related to the admitted knee injury. The ALJ denied and dismissed the claim. The Claimant appealed. Upon appeal, the Panel found the evidence supported the ALJ’s findings and affirmed.
Also before The Industrial Commission of Arizona, Associate Daniel Mowrey successfully defended against Claimant’s full contest claim in Selby v. Cornet Limited DBA Medstar, ICA No. 20180-70036. Claimant alleged a traumatic hernia as a result of transferring a patient at work. Mr. Mowrey elicited testimony from Claimant that he could not pinpoint the specific time or act which directly caused the hernia. Claimant further admitted that he did not feel pain until 4:00 a.m. the next morning. Mr. Mowrey argued that the testimony did not meet the requirements of a compensable hernia under A.R.S. Section 23-1043. The ALJ found the testimony and corresponding medical records did not meet the standard outlined in A.R.S. Section 23-1043 to establish an industrial hernia. The ALJ denied and dismissed the claim.
Don’t FAL to Take Notice: In Dickens v. Wagner Equipment, No. 18CA1806 (June 20, 2019), Claimant sought review of a final Order by ICAO affirming the decision of an ALJ denying his Petition to Reopen and dismissing his claim for additional benefits. Claimant had sustained an admitted, compensable injury to his right knee in 2006 while working for Respondents. He underwent extensive authorized medical treatment and reached MMI in 2010. Because Claimant continued to experience pain, the claim was voluntarily reopened by Respondents. Claimant reached MMI a second time in August 2013 and Respondents filed a FAL based on the ATP finding Claimant at MMI. It was undisputed that neither Claimant, nor his Counsel, were properly served the 2013 FAL. Claimant’s Counsel eventually obtained a copy of the FAL directly from the Division on April 28, 2014. On May 22, 2014, within 30 days of receiving the FAL from the DOWC, Claimant filed an Objection to the FAL, but did not file an Application for Hearing at that time, as required by Section 8-43-203(2)(b)(II)(A), C.R.S. 2018. Instead, more than 30 days later, on June 23, 2014, Claimant filed an Application for Hearing on the sole issue of, “whether Respondent’s FAL was properly served, and if so, when and based upon such whether Claimant’s Objection was timely.” The matter was heard before an ALJ, who held that the claim had not closed because Claimant did not receive proper notice. Claimant filed another Application for Hearing on August 22, 2017, endorsing new issues not previously endorsed. Respondents argued that Claimant’s claim was closed by operation of law because Claimant failed to file within 30 days of receiving the FAL. The ALJ agreed and held Claimant’s claim automatically closed per statutory rules. Claimant appealed and the Colorado Court of Appeals held that the claim closed in 2014 when Claimant’s Counsel received actual notice of the FAL by obtaining a copy from the Division. Because Claimant failed to file an Application for Hearing challenging the issues raised in the FAL within 30 days of receiving it, the claim closed.
Moral of the Story: The 30-day statutory time-frame for Claimant to file an Application for Hearing in connection with an objection to the FAL begins to run at the time of notice of the FAL. Even if initially improperly served, the time-frame begins when Claimant receives actual notice, or receipt of notice, of the FAL.
DIME flies when you are having fun: In Suomie v. Spectrum Retirement Communities, W.C. 5-050-347 (June 14, 2019), Claimant sought review of an Order that denied Claimant the statutory right to request a DIME. Respondents filed a medica-only FAL in July 2017. Because Claimant had lost no time as a result of the injury and received no impairment rating, no temporary benefits or PPD benefits were admitted on the FAL. Claimant objected to the FAL and sought a DIME. Respondents filed a Motion to Strike the DIME Application based on the finding of Loofburrow 320 P.3d 327 (Colo. 2014). The ALJ agreed with Respondents and struck the DIME Application, noting it was not ripe. Claimant appealed. The Panel disagreed with the ALJ’s finding that Claimant did not have a statutory right to a DIME. The Panel noted that the ALJ did not follow the proper legal standard for denial of a DIME as noted in Martinez v. Energy Savings Crew, LLC, W.C. No. 5-055-251 (May 31, 2019). The Panel did not follow the reasoning noted in Loofburrow because it involved a claim where no FAL was filed. The Panel held that a medical-only FAL has the same legal effectiveness as any other FAL and was sufficient to trigger the right to challenge an ATP’s decision through a DIME.
Moral of the Story: Filing any FAL triggers the statutory time requirements to request a DIME. Even when a medical-only FAL has been filed, the claimant has a statutory right to a DIME.
Moral of the story: It is imperative to timely comply with court orders. Failure to comply with an order subjects respondents to potential penalties which are at the judge’s discretion and proportional to the offense.
Survey Says: “Compensable”: In Olvera v. Air Cleansheen LLC, W.C. 5-073689 (June 4, 2019), Claimant sought review of an Order by an ALJ that denied compensability of the claim. Claimant worked for the employer laundering sheets and towels through a commercial laundry. The employer’s business provided clean linens to bed and breakfast locations. Claimant was injured in an automobile accident on November 8, 2017, while transporting the employer’s laundry in her car. While driving in what was deemed to be the course and scope of her employment, she was involved in auto accident when another driver ran a stop sign. Claimant reported the accident to her supervisor and went to the ER complaining of injuries to her back. Claimant’s treatment was paid for by the other driver’s auto insurance, but when those funds reached their policy limit, Claimant filed a workers’ compensation claim in April 2018. On the issue of compensability, the ALJ found that Claimant was not credible because of irregularities in her submitted evidence and held that she disclaimed and excluded any work relationship to her accident because she was not being truthful or credible, dismissing the claim. The ICAO held that the Findings of Fact did not support the ALJ’s Order under C.R.S. § 8-41-293(1)(a). The Panel noted that the ALJ did not identify any statements that were not believed that would also support a denial of the claim’s compensability. They held that an employee who suffers a compensable injury at the hands of a third party can pursue remedies against the third person and also file a claim under the Workers’ Compensation Act. The ALJ’s Order was set aside and the matter remanded for additional findings to determine compensability.
Moral of the Story: A claimant may file a workers’ compensation claim even if they have already pursued, and received, benefits from a third party.
Congratulations are in Order!
L&B welcomes M. Frances McCracken to the Firm as Partner. Ms. McCracken has been with L&B for 4 years after the dissolution of her previous Firm. Her 30 years of experience in insurance defense is a great asset to our Firm, as is her commitment to her profession and her clients. Ms. McCracken’s practice over the years has involved all aspects of the litigation process, including success in trials and appeals, arbitration, mediation and case settlement. She has defended cases in the Colorado State District Courts, Court of Appeals, the Supreme Court, as well as U.S. District Court. Her expertise as a legal writer and litigator raises the bar for not only our Firm, but in the insurance defense and legal community as a whole. Please join us in congratulations to Fran, for a well-deserved lifetime achievement.
L&B announces the promotion of Associate Jessica Melson to Of Counsel. Ms. Melson joined L&B in February 2012 with previous insurance defense experience. Since that time, she has grown tremendously as an attorney in her dedication and her commitment to provide the best legal defense for her clients while developing into a strong example as a professional to the Firm’s Jr. Associates and in the legal community. Ms. Melson regularly shares her knowledge of insurance defense by providing educational counseling to clients. She has volunteered pro bono legal services for the Colorado Lawyers Committee and Metro Volunteer Lawyers. The Firm congratulates you, Jessica, on your achievements thus far in the legal profession.
L&B promotes Associate Angela M. Lavery to Of Counsel. Ms. Lavery came to L&B in 2011 as a Paralegal. It soon became apparent that Ms. Lavery, who earned her law degree from the University of Denver Sturm College of Law in 1995, was capable of much more. Since receiving her license from the State of Colorado in 2012, Ms. Lavery has been diligently working to provide excellent legal defense to her clients, to whom she also regularly counsels on the ever-changing and evolving analysis of legal issues and the law. Ms. Lavery has blossomed into a patient and knowledgeable mentor for the Jr. Associates and Law Clerks in the Firm, as well as in the legal community. Outside of the Firm, she still makes time to contribute pro bono as a Court-Appointed Special Advocate for Children with Denver CASA. Congratulations, Angela, on a job well done. The Firm is proud to have you join us as Of Counsel.
You have all made L&B a better place by your contributions and your dedication and we look forward to sharing in your future accomplishments.
In Tremain v. Caterpillar, Inc. and Liberty Mutual Insurance, W.C. No. 5-092-748, Of Counsel Sheila Toborg and Of Counsel William Sterck successfully defended against Claimant’s claim of compensability for an injury he believed to be in the course and scope of his employment. Claimant argued that he sustained a compensable injury and that he was entitled to medical care and disability benefits. During hearing, Ms. Toborg argued that, per Respondents’ expert report, Claimant’s exhibited symptoms were chronic and not work-related. Mr. Sterck argued in the Respondents’ Position Statement that Claimant had no claim in fact, or in law, for the relief he was seeking. Because of the combined efforts of Ms. Toborg and Mr. Sterck, the ALJ found that Claimant failed to prove by a preponderance of the evidence that he had a compensable claim. The claim was dismissed.
In Thompson v. The Home Depot and Liberty Mutual Insurance, W.C. No. 4-886-616, Of Counsel Sheila Toborg and Associate Jessie M. Tasselmyer successfully defended against Claimant’s attempt to overcome the Division Independent Medical Examination for injuries sustained as a result of a May 2012 admitted work injury. ICAO affirmed the ALJ’s ruling and found that they had no basis to overturn the prior ruling. The ALJ appropriately credited the opinion of Respondents’ expert and that there was no perceivable error of law.
You Get a Fine, I Get a Fine, Everybody Gets a Fine: In Colorado Department of Labor and Employment v. Dami Hospitality, 2019CO47M (June 3, 2019)(awaiting publication), the DOWC fined Dami $841,200 for failure to carry workers’ compensation insurance for 1,698 days. Dami appealed. ICAO affirmed; however, the Supreme Court reversed the decision deciding the fine violated the Excessive Fines Clause of the 8th Amendment because the DOWC failed to consider Dami’s ability to pay the fine. The Colorado Supreme Court found the Court of Appeals applied the incorrect test to determine whether the fine was excessive. It held that the correct test to determine whether a fine is excessive is whether the amount of the fine is grossly disproportional to the gravity of the offense. The Court ruled, “The court of appeals’ ruling is thus reversed and the case is remanded to that court for return to the Division of Workers’ Compensation to determine whether the per diem fines at issue are proportional to the harm or risk of harm caused by each day of the employer’s failure to comply with the statutory requirement to carry workers’ compensation insurance.”
Moral of the Story: It is imperative to have workers’ compensation insurance coverage. Failure to do so can result in substantial fines.
Is it a Cure? In Rajabi v. ICAO; Arvada Fire Protection District…, 2018CA1599 (May 16, 2019)(unpublished), Claimant sustained an admitted injury to the right hand in April 2017 and was diagnosed with complex regional pain syndrome. Claimant requested help with housekeeping and yard work. The ATP recommended in-home housekeeping and yard services. Nonetheless, the ATP did not assign Claimant restrictions pertaining to the right hand.
The Colorado Court of Appeals affirmed ICAO’s Order finding that Claimant’s request for in-home housekeeping and yard services was not reasonable, necessary, and related to the claim. Specifically, the request for in-home housekeeping and yard services was not “medical in nature or incidental to obtaining such medical or nursing treatment.” The Court opined that Claimant’s request for in-home housekeeping and yard work did not relieve and or cure Claimant’s condition. As such, the request was not medically reasonable or necessary. The Colorado Court of Appeals affirmed the credibility determinations and legal standards utilized by the ALJ.
Moral of the Story: Treatment recommended by an ATP must cure and/or relieve a claimant of his/her symptoms resulting from a work-related injury.
Make it Count. In Humphrey v. FedEx Freight Inc., W.C. No. 4-911-782, the Claimant sought review of an Order denying his Motion to Strike the Respondents’ Final Admission of Liability (FAL). Respondents allegedly failed to attach the proper MMI medical report when filing the FAL. As such, the claim was never administratively closed and the Claimant was not required to pursue a reopening of his claim. ICAO set aside the ALJ’s Order and remanded the case to the ALJ for further findings. ICAO ruled that FALs are a jurisdictional requirement “and their inadequacy may be raised at any time…” The ALJ was instructed to address his findings of fact and conclusions of law as to why Claimant’s Motion was denied.
Moral of the Story: A FAL must be filed with the proper medical report to administratively close the claim.
Better to Be Assertive: In the Matter of the Claim of Quincy Bryant v. Transit Mix Concrete and Traveler’s Indemnity Company, W.C. no. 5-058-044-001 (ICAO June 5, 2019), ICAO affirmed in part, and remanded in part, an ALJ’s Order that Respondents overcame the DIME. First, the Panel held that the ALJ erred in reversing the DIME physician with respect to the Table 53 diagnosis. The ALJ incorrectly held that the law requires objective rigidity in order to assign a Table 53 diagnosis when rating the cervical spine. The law has no such requirement: the requisite rigidity may arise from the Claimant’s subjective complaints or objective evidence. Secondly, the Panel held that the ALJ properly found that Respondents did not waive their ability to assert a safety violation. Although Respondents did not assert a safety rule violation in the FAL, they did timely assert it in their Application for Hearing challenging the findings of the DIME. Ultimately, the Panel reversed the ALJ’s findings with respect to the Table 53 diagnosis and remanded for further findings on whether there was evidence, subjective or objective, of rigidity. The Panel affirmed the ALJ’s finding that Respondents did not waive the ability to assert a safety rule violation.
Moral of the Story: A Table 53 diagnosis requires objective evidence with respect to pathology, but not with respect to rigidity. Respondents must make sure to assert all implicated affirmative defenses on their pleadings in order to prevent waiver.
Smacking Some Sense into Loofbourrow: In this next case, Respondents filed a medical-only FAL. Seventy five days later, Claimant objected to the FAL and filed a Notice and Proposal to Select a DIME. Respondents moved to strike Claimant’s request for a DIME as untimely because it was filed outside of the 30-day time requirement. The ALJ agreed and struck Claimant’s request for DIME. Claimant appealed and argued, according to Loofbourrow, 320 P.3d 327 (Colo. 2014), a medical-only FAL does not close a claim, has no statutory significance, and does not trigger the statutory time requirements to request a DIME. The Panel disagreed. It distinguished Loofbourrow because it involved a claim where no FAL was filed. The Panel affirmed the ALJ and held that a medical-only FAL has the same legal effectiveness as any other FAL. Martinez v. Energy Savings Crew, LLC, W.C. No. 5-055-251 (May 31, 2019).
Moral of the Story: Filing a FAL triggers the statutory time requirements to request a DIME. Without a FAL, a claim may remain open indefinitely.
No Alter Ego Here: In McRobbie v. Estate of Mary E. Wales, W.C. No. 5-052-934 (May 24, 2019), Claimant worked as a caregiver to Mary Wales. She was seating Ms. Wales on a shower bench when she felt shooting pain going through her left arm into her fingers. Claimant was later diagnosed with a cervical disc herniation. Ms. Wales subsequently passed away. The ALJ found that Mary Wales and Carolyn Cargile (Mrs. Wale’s daughter who held Power of Attorney) were joint employers and that each were personally liable for Claimant’s injury. The ALJ found that Ms. Cargile was personally liable as Claimant’s employer based on the theory of an alter ego. The ICAO reversed, finding that when an individual is acting through a power of attorney as an agent and identifies as such, she cannot be named as an employer for a contract of employment or be personally liable. The ICAO further explained that the theory of an alter ego does not apply when an agent discloses that she is acting on behalf of an employer through a power of attorney. The ALJ’s Order was corrected to designate the sole employer to be the Mary E. Wales Revocable Trust.
Moral of the story: An individual acting as an agent to an identified principal cannot be held personally liable for a workers’ compensation claim.
Explanation is Key: In Gil De Prieto v. Spirit Hospitality II LLC, W.C. No. 5-019-619 (May 24, 2019), Claimant sustained a left shoulder injury while working as a housekeeper. As a procedural matter, Respondents were permitted to take a post-hearing deposition of a physician. Claimant then filed an Opposed Motion to Submit Rebuttal Evidence via a Deposition of another physician in order to rebut Respondents’ post-hearing deposition. The ALJ summarily denied Claimant’s Motion. The ICAO found that the denial of Claimant’s Motion was an abuse of discretion because the ALJ did not provide any basis or reasoning behind his Order. The ALJ’s Order was set aside and remanded for further findings.
Moral of the story: An ALJ’s findings of fact and conclusions of law are an abuse of discretion if they are not supported by the evidence or fail to provide an explanation behind the order.
Read Between the Lines: In Lopez v. Holsinger Drywall Inc., W.C. No. 5-066-416 (May 16, 2019), Claimant sustained several injuries, including fractures of his pelvis and vertebrae in his back, after falling 12 feet to the ground while working on an apartment construction project. Claimant’s claim for compensation was denied by Respondents on the basis that he was an independent contractor as defined by C.R.S. § 8-40-202(2)(b). At hearing, the ALJ found that Claimant was an independent contractor, not Respondents’ employee. ICAO reversed the ALJ’s Order, finding that the ALJ misapplied the legal standard when he placed undue reliance on two documents signed by Claimant wherein he declared himself an independent contractor. The Panel explained that “the nature of the working relationship” must be examined as a whole rather than relying exclusively on the requirements of the controlling statute. The Panel analyzed Claimant’s actual working relationship with the parties and found that the undisputed record showed that he was not engaged in operating an independent business and, therefore, was not an independent contractor. The ALJ’s Order was reversed and the claim was ordered to be compensable.
Moral of the story: Simply meeting the statutory requirements to establish an independent contractor status does not necessarily mean an individual is an independent contractor. Other circumstances surrounding a claimant’s employment relationship should also be considered when determining his/her employment status.
In Lasater v. Walmart Stores, Inc., W.C. No. 5-078-097, Member John M. Abraham successfully defended against Claimant’s entitlement to maintenance medical care. Claimant argued that she required ongoing treatment, after being placed at MMI, for her low back injury due to continued complaints of pain and physical restrictions. Claimant had a pre-existing history of low back pain prior to the industrial injury. Respondents’ expert credibly testified that the Claimant’s medical records documented a pre-existing history of low back pain that was supported by objective medical evidence. Respondents’ expert further testified that her condition remained unchanged and any ongoing complaints were the result of her pre-existing low back condition. The ALJ found that the Claimant’s need for ongoing maintenance medical care was the result of her pre-existing condition and not the industrial injury. As such, the ALJ denied and dismissed Claimant’s claim for maintenance medical care.
In Misenhimer v. Walmart Associates, W.C. nos. 5-038-861 & 5-089-956, Of Counsel M. Frances McCracken successfully defended against Claimant’s consolidated claims for additional medical benefits for her admitted right hip injury and compensability for her denied left hip injury. In 2017, Claimant injured her right hip falling from a six-foot ladder. Respondents admitted liability for this injury. In 2018, Claimant alleged she sustained injury to her left hip while lifting bags of cat and dog food. Respondents’ expert credibly and persuasively testified that right hip surgery would not lessen Claimant’s pain or improve her function and that a pre-existing condition caused Claimant’s left hip symptoms. The ALJ found that Claimant failed to prove she was entitled to ongoing medical benefits for her right hip and compensability for her left hip injury. Thus, the ALJ denied and dismissed Claimant’s request for prior authorization for right hip surgery and claim for the left hip injury.
In Benavidez, Sr. v. Xtreme Drilling Coil Service,, W.C. No. 4-952-617, Of Counsel Bradley Hansen successfully defended against Claimant’s attempt to overcome the DIME opinion regarding MMI and entitlement to additional TTD benefits. Claimant sustained a back injury while working on an oil rig for the Employer. Claimant had a previous work injury to his back but claimed all of his current complaints and symptoms were due to the injury on the oil rig. The ALJ found that Claimant’s testimony, and the testimony of his expert, did not prove by clear and convincing evidence that the DIME should be overcome.
In Bryan v. Steamboat Ski & Resort Corporation, W.C. No. 5-029-664, Of Counsel Bradley J. Hansen and Associate Kristi Robarge successfully defended a full contest claim. Claimant alleged that she sustained an injury to her low back and neck when she was bumped by a housekeeping cart. Claimant had a prior low back injury and was actively receiving treatment at the time of the new alleged injury. Claimant’s ATP and Respondents’ expert all opined that Claimant’s current symptoms were related to the prior injury and chronic pain syndrome. The ALJ found that the accident did not create a disability or need for medical treatment and any ongoing need for treatment was related to Claimant’s chronic pain and prior injury. Claimant’s claim was denied and dismissed.
In Comfort v. Community Education Centers, W.C. No. 5-037-333, Associate Jessica Melson successfully defended Claimant’s Application for Hearing to Overcome the DIME. In the DIME, Claimant was found to have sustained 6% permanent impairment to her jaw from a board falling on her. Claimant sought to overcome the DIME alleging she was not at MMI because she required additional treatment for her jaw. She also alleged the DIME erred because she sustained additional impairment to her cervical spine and shoulder. Ms. Melson presented persuasive evidence of the extensive medical treatment and evaluations Claimant had that found she had no additional injury. Dr. Striplin credibly testified the DIME was correctly performed and there were no errors. The ALJ found Claimant failed to overcome the DIME.
Dami Hospitality, LLC., is the owner of a hotel in Denver that employs between 4 and 10 people at any given time. Dami let its workers’ compensation policy lapse more than once. DOWC discovered the lapses and issued a notice requiring Dami to answer a compliance questionnaire and advised that Dami could request the prehearing conference over this issue. Dami did not respond to this notification so a second notification was sent on June 25, 2014, with a compliance questionnaire and an option to set a prehearing conference. On July 11, 2014 Dami sent in a certificate of insurance covering Dami from July 10, 2014 to July 10, 2015.
DOWC issued a specific findings of fact, conclusions of law and order dated October 30, 2014 fining Dami $841,200! Under Section 8-43-409(1),(b), C.R.S. Continue reading this article
Theories Are Not Scientific Evidence: In Lorenzen v. Pinnacol Assurance, 2019COA54 (April 18, 2019)(awaiting publication), the Colorado Court of Appeals upheld a district court’s judgment in favor of the defendant-insurer against a bad faith claim brought by the Claimant. Claimant alleged that the insurer’s denial of authorization resulted in a 13-day delay of Claimant’s spinal cord surgery causing permanent impairment to the spine due to prolonged nerve compression. Claimant presented multiple medical experts who were generally in agreement that, while “sooner is better” is a sound medical principle when providing treatment, there was no definitive medical evidence that the 13-day delay actually caused any impairment. The district court excluded the testimony based on Colorado Rule of Evidence 702, which requires that medical evidence be reliable, relevant and not based on unsupported speculation. The Court of Appeals agreed, finding that because Claimant could not prove the insurer’s conduct caused impairment, he could not prove bad faith.
Moral of the story: A party seeking to prove that an insurer’s conduct caused a medical condition must offer actual medical evidence of a relationship between the conduct and the condition, not just a theory that a causal relationship is possible.
The Clock is Ticking, Or Is It?: In McGlothlen v. ICAO, 18CA0763 (April 25, 2019)(nsfop), the Colorado Court of Appeals set aside an ALJ’s Order which dismissed a claim for a work injury on the basis that the statute of limitations had run. Claimant first reported symptoms in 2012, but did not file a claim. The employer filed a First Report of Injury and Notice of Contest in 2013. Instead of pursuing workers’ compensation benefits, Claimant filed a lawsuit in federal court against her employer. The suit was dismissed on the basis that Claimant’s only relief was through workers’ compensation. When Claimant filed a workers’ compensation claim in 2017, the ALJ dismissed on the grounds that the two-year statute of limitations had run without a reasonable excuse to extend an additional year. The Court of Appeals disagreed, noting that the Act acknowledged a First Report from an employer as notice of a claim unless specifically objected to by a Claimant. In the federal court lawsuit, the employer argued that the First Report was a claim for workers’ compensation, while later arguing to the ALJ that the Report was insufficient notice of a claim for purposes of the statute of limitations. The Court of Appeals remanded to the ALJ to reconsider whether there was a reasonable excuse allowing for extension of the statue of limitations under the facts.
Moral of the story: By creating a First Report of Injury, an employer acknowledges that an employee may have reported a work injury and therefore, this may be considered a “notice claiming compensation.” Arguing that a First Report is notice in one court proceeding, while denying it in another, will not help your statute of limitations defense.
Tortfeasors Can’t Reap the Windfall: In Scholle v. Delta Air Lines, Inc., 2019COA81, 18CA0049 & 18CA0760 (May 23, 2019), a division of the Colorado Court of Appeals reversed the district court’s admission of evidence of the amount of workers’ compensation benefits paid by the insurer. The injury at issue arose from a collision between William Scholle, a United Air Lines employee, and Daniel Moody, a Delta employee, during the course and scope of the two men’s respective employment. United Air Lines, a self-insured employer, settled its subrogation interests with Delta. Mr. Scholle initiated a personal injury lawsuit against Delta in district court, and the case went to trial to determine the amount of damages Mr. Scholle incurred. The trial court judge allowed Delta to present evidence of the amount of workers’ compensation benefits paid because the trial court held that the collateral source rule did not apply. Under the collateral source rule, evidence of payment by a third-party or collateral source, typically an insurance company, cannot be admitted. The purpose of the rule is to prevent the tortfeasor from benefiting from the payment by the collateral source. The Court of Appeals held that workers’ compensation payments still constitute payments by a collateral source when the insurer has settled with the tortfeasor. Thus, the Court of Appeals held that the trial court erred in allowing evidence of the amount of workers’ compensation benefits paid. The Court of Appeals reversed and remanded to the trial court for a new trial.
Moral of the story: Parties in a subrogation action cannot sidestep the collateral source rule by settling the insurer’s subrogation interests before proceeding to trial in district court. At trial, only evidence of the amount of medical benefits billed will be admitted, not the amount actually paid per the workers’ compensation fee schedule.
Member Joe Grenand Associate Kristi Robarge successfully defended a full contest claim in Mahoney v. Evraz, W.C. No. 5-084-115. Claimant alleged an injury to his hip from operation of a cutoff machine while pulling large pieces of pipe down the table. Claimant made several inconsistent statements to his treating providers, his employer, and to the ALJ. Respondents’ expert credibly testified that the alleged mechanism of injury would not cause Claimant’s injury. Respondents’ expert also opined that the cause of Claimant’s symptoms was due to an unrelated condition known as meralgia paresthetica. The ALJ found Respondents’ expert credible and found Claimant not credible. Hence, the ALJ denied and dismissed Claimant’s claim for compensation.
Associate Matt Boatwrightsuccessfully defended a full contest claim in Rose v. Allied Universal, W.C. No. 5-070-620. Claimant claimed that she suffered a knee injury while running to board a train as part of her duties as a security guard. Claimant had a medical history involving treatment for the same knee prior to the work injury that was not disclosed to the treating provider. Claimant later disclosed the treatment but gave multiple different accounts of how the preexisting condition arose. Respondents’ expert opined that the alleged mechanism simply was not sufficient to have caused the injuries for which Claimant sought treatment. The ALJ ultimately found that, while Claimant did experience pain after the event in question, Claimant did not suffer an injury that arose out of and occurred within the course and scope of employment. The ALJ cited inconsistencies in the records that could not be reconciled with testimony. The claim was denied and dismissed.
Associate Matt Boatwrightalso successfully defended against a claim for conversion from an upper extremity impairment to a whole person rating in Tucker v. United Natural Foods Incorporated, W.C. No. 5-043-659. Claimant claimed that he suffered injuries to his neck as part of his work-related shoulder injury that warranted conversion to a whole person impairment. Claimant had ongoing treatment involving his cervical spine. While the ALJ did find that Claimant suffered functional loss in the shoulder, he found that the limitations were confined to that body part and did not extend to his neck. The ALJ found that Claimant had failed to prove that complaints of neck pain and dysfunction arose to the level of functional impairment to that body part. Accordingly, the ALJ denied Claimant’s request for conversion.
It’s All Fun and Games – Even if You Get Hurt: In Schniedwind v. Rite of Passage, W.C. No. 5-051-507-03 (March 12, 2019), Claimant worked as a licensed therapist for the employer. She alleged she sustained a work-related injury riding a bicycle while accompanying a team of students. The ALJ found the cycling excursion was a recreational activity. Additionally, the ALJ held that, although Claimant’s participation in the ride conferred a benefit to the employer, her injuries were not compensable because her participation in the activity was voluntary. The panel upheld the ALJ’s Order as the findings were supported by substantial evidence.
Moral of the story: When participation in a recreational activity is voluntary, injuries resulting from participation in this kind of activity are not compensable.
Seconds Anyone?: In Davoli v. University of Colorado, W.C. No. 5-068-419-001 (March 15, 2019), Claimant sustained an admitted head injury when she hit her head on a counter. While receiving treatment for the admitted claim, Claimant hit her head again on an x-ray machine at work. The second incident was treated under the first admitted claim and there was no lost time associated with the second incident. The ATP was aware of both events and opined that the diagnosis and treatment remained the same. Respondents never filed a second claim for the second incident. The parties went to hearing on the second claim for compensability and benefits. The ALJ found that since there was no lost time, no permanent impairment, and the claim was administered under the first injury, the claim was denied. On review, ICAO remanded the case for further findings indicating that the claimant suffered a compensable injury if the second incident of hitting her head on the X-ray machine caused the need for medical treatment or disability.
Moral of the story: If a new incident aggravates, accelerates, or combines with a pre-existing injury and causes the need for medical treatment, a second claim should be filed – even if there is no resulting disability.
FAL the Void: In Martin v. Jack in the Box d/b/a Qdoba Mexican Grill, W.C. No. 4-968-114-01 (March 15, 2019), Claimant sought review of an Order that denied and dismissed his claim and ordered that the FAL was void ab initio. To deem the FAL void ab initio would mean the document was never filed. Claimant was assaulted behind the restaurant and Respondents admitted liability on the claim. Claimant reported to his employer and police officers that the assault was random; however, further investigation, after the FAL was filed, showed that the assault was personal in nature. If an assault is personal in nature, resulting injuries are not compensable. In re Question by the U.S. Court of Appeals for the Tenth Cir., 759 P.2d 17 (Colo.). Claimant argued that there was no statutory authority to permit an admission to be retroactively withdrawn or revoked and argued that Respondents needed to reopen the claim to terminate future benefits. ICAO determined that case law allowed declaring admissions void ab initio and affirmed the ALJ’s Order.
Moral of the story: If additional investigation after a FAL is filed proves that the injury is not compensable, a judge can find the admission was void from the outset.
Member Joshua D. Brown and Of Counsel William M. Sterck successfully defended a death claim in Ordonez-Gamez v. SkyWest Airlines, Inc., W.C. No. 5-079-980. The Decedent was staying at a hotel in Denver for flight training and was in travel status during this period. One evening, after completing a difficult test, the Decedent went out drinking with a co-pilot. Before returning to his hotel, while heavily intoxicated, the Decedent ran into a busy road and was struck by a car. The Decedent’s Counsel argued that he intended to return to his hotel room but was heading in the wrong direction because he was confused. Respondents successfully argued that the Decedent was on a personal deviation from travel status when he went out drinking. Decedent had not returned to the course and scope of employment at the time of his death because he was heading away from his hotel. The ALJ found that the intention to eventually return to a hotel room was not sufficient to end a deviation and specific travel away from the hotel continued the personal deviation.
Member Karen Gail Treece successfully defended Claimant’s Appeal in Pickering v. Hercules Commercial, W.C. No. 5-049-650. Claimant alleged he injured his right shoulder while tightening a bolt using an allen/hex wrench. The ALJ denied and dismissed the claim. Claimant complained of pain and was on light duty prior to the alleged date of injury. The ALJ relied upon testimony from Respondents’ expert that it was unlikely a person could exert sufficient force, using a ¼ inch hex wrench, to sustain a significant shoulder injury. The Claimant appealed. Upon appeal, the Panel found the evidence supported the ALJ’s findings and affirmed.
Associate Jessica Melson was successful in defeating a full contest claim in Aragon v. Costco Wholesale, Inc. W.C. No. 5-073-284. Claimant alleged she injured her neck by lifting a box of bagels overhead while working in the cooler. Ms. Melson elicited inconsistent testimony from Claimant that she first reported the onset of symptoms occurring over several months before the alleged injury, but testified she heard a pop in her neck on the day of the incident. Respondents’ expert credibly testified that Claimant’s pathology, and need for medical treatment, were related to preexisting degenerative conditions. The onset of symptoms was due to the natural progression of the preexisting conditions. The described mechanism of injury would not cause an injury to the cervical spine. The ALJ denied and dismissed the claim.
Moral of the story: Respondents may unilaterally terminate TTD benefits when Claimant is released to modified duty but fails to appear for work.
Preexisting Condition is not a Conditional DQ: In Wojciuk v. Public Partnerships Colorado, W.C. No. 5-007-181 (March 4, 2019), Respondents’ sought review of an Order finding Claimant’s knee injury compensable. Claimant was working for the employer as an in-home caregiver. While lifting a patient, Claimant felt immediate pain in her right knee. Of note, Claimant had preexisting arthritis in her right knee. Claimant initially treated but did not initially report the injury. At the initial hearing, the ALJ found that Claimant’s pre-existing arthritis became symptomatic while she was doing a heavy lift and was a direct result of her job duties. The ALJ determined that there was a compensable aggravation of her knee condition. The Panel upheld the ALJ’s Order as the findings were supported by substantial evidence.
Moral of Story: A preexisting condition does not disqualify a Claimant from receiving workers’ compensation benefits.
Associate Daniel Mowrey successfully defended Claimant’s request to reopen his Arizona claim and add an additional body part in Szach v. SW Ambulance, ICA No. 20160-260291. Claimant sustained an admitted industrial injury on January 12, 2016. The Claimant was placed at stationary status and provided with no impairment rating or ongoing treatment on April 2, 2018. Claimant protested the closure of his claim and sought continuing medical benefits and/or an increased impairment rating. Claimant also sought to link an upper body injury and subsequent surgery to the admitted claim. The ALJ credited the testimony of Respondents’ medical expert, who opined that the upper body injury and subsequent surgery was not related to Claimant’s admitted injury. Respondents’ medical expert further credibly testified that Claimant required no additional medical care for his admitted injury. Respondents also presented medical evidence of a preexisting upper body injury. The ALJ concluded that, based on the objective medical evidence and the credible opinion of Respondents’ expert, Claimant failed to demonstrate by a preponderance of the evidence that he was entitled to an increase in permanent impairment or additional medical care. The ALJ further opined that the upper body injury was not related to the admitted injury. The ALJ ordered Claimant’s claim for additional benefits be denied and dismissed.
Moral of the story: The Employer’s First Report of Injury is not a substitute for, or the equivalent of, a claimant filing a Workers’ Claim for Compensation. A claimant must timely file a claim in order to comply with C.R.S § 8-43-103 (2), otherwise his or her workers’ compensation claim is barred by the statute of limitations.
Claimant’s Bitter Pill to Swallow: Medical Treatment After MMI Must be Authorized: In Gosselova v. Vail Resorts, W.C. No. 4-975-232 (December 24, 2018), pro se Claimant sought review of an Order denying unauthorized medical treatment Claimant obtained after maximum medical improvement (MMI). Claimant sustained an admitted injury to her knee and subsequently underwent three knee surgeries. Claimant’s ATP recommended that Claimant undergo a fourth surgery for hardware removal. Claimant refused the recommended surgical treatment and was placed at MMI with recommended maintenance care to include hardware removal. Without receiving prior authorization, Claimant obtained hardware removal surgery from another physician. The Industrial Claim Appeals Court upheld the ALJ’s determination that even though Claimant’s treatment was reasonable and necessary, because it was not authorized by Respondents, Respondents were not liable for payment of the treatment.
Safety Rule Violations: In Heien v. DW Crossland LLC, W.C. No. 5-059-799 (November 29, 2018), Claimant sought to overcome an Order reducing the non-medical workers’ compensation benefits by 50% for his willful violation to obey a safety rule. In this case, the Employer had an established safety rule that employees were not to open washing machines while the spin cycle was ongoing. Claimant sustained a severe amputation injury to his right arm when he violated the Employer’s safety rule by opening a washing machine while it was still running. Claimant admitted to using heroin during his shift and stated he opened the machine to retrieve a Coca-Cola bottle as he was concerned the sheets being washed would be damaged. The Administrative Law Judge (ALJ) reduced Claimant’s non-medical workers’ compensation benefits by 50% to account for his willful failure to obey a safety rule. Claimant appealed this reduction in benefits by arguing that his violation of the safety rule was not willful because he had a plausible purpose in violating the safety rule. Additionally, he argued that the safety rule was not enforced by the Employer. ICAO affirmed the ALJ’s finding that the Employer’s safety rule was enforced because there were posted warning signs above the washing machine and there was a switch located directly beside the machine that could be pulled to immediately cut power to the machine. The Panel noted the obviousness of the risk in affirming the ALJ’s finding that Claimant’s effort to save sheets from being damaged was not a plausible purpose for violating the enforced safety rule.
Moral of the Story: The violation of a safety rule is not considered willful if the employee had a plausible purpose to explain the violation of the rule. However, if the inherent danger in violating the safety rule is obvious, Claimant’s actions in violating the safety rule will rarely, if ever, be found plausible.
In Pickering v. Hercules Commercial, W.C. No. 5-049-650, Claimant alleged he was injured while tightening a bolt using an allen/hex wrench. Ms. Treece elicited credible witness testimony that Claimant complained of pain and was on light duty prior to the alleged date of injury. Respondents’ expert persuasively testified it was unlikely a person could exert sufficient force, using a ¼ inch hex wrench, to sustain a significant shoulder injury. The ALJ denied and dismissed Claimant’s request for benefits.
In Robinson v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that a specific medical center was an authorized provider. Claimant contended that he was referred to the emergency room to rule out a medical emergency. Claimant declared that Respondents were liable for payment for all services at said facility. Respondents’ argued that the initial referral was for emergent care only. Once the emergent care was concluded, Claimant returned to his ATP for ongoing treatment. Respondents produced medical evidence from the ATP that no additional referral was made to the other facility. The ALJ opined that Claimant returned to treat at the other facility of his own accord. The ALJ concluded that, based on the objective medical evidence, Claimant failed to establish that the other facility was authorized as treating physicians. The ALJ ordered that the care received from the other facility, after the ER visit, was unauthorized.
Of Counsel Frank Cavanaugh and Associate Kristi Robarge successfully defeated a full contest claim in Putnam v. Whole Foods Market, Inc., W.C. 5-079-453. Claimant alleged an injury occurred while at work; however, there were conflicting reports of the injury. At first, Claimant simply reported that she began hurting while at work. She later reported that she bent over to pick something up and felt a pop in her low back. In addition to the inconsistent reports of injury, Claimant had a pre-existing condition which caused pain in multiple places. The ALJ found that Claimant did not suffer a compensable injury during the course and scope of her employment. The ALJ noted that “the mere fact a claimant experiences symptoms while performing work does not require the inference that there has been an aggravation or acceleration of a preexisting condition.”
Associate Angela Lavery successfully defended Claimant’s claim for specific medical benefits in Hayes v. Patterson UTI Drilling Co., W.C. 5-062-811. Claimant worked as a “roughneck” on an oil rig and argued that he suffered an injury to his upper extremity when he sustained an admitted injury. Claimant argued that he required shoulder surgery recommended by an ATP surgeon, which would include several procedures. Although the ALJ agreed that Claimant suffered a work-related injury, the ALJ determined that Claimant failed to establish that the recommendation for surgery was medically reasonable and necessary. The ALJ credited the testimony of Respondents’ medical expert, who opined that surgery was not reasonable or necessary based on Claimant’s current presentation of symptoms and the Medical Treatment Guidelines. Respondents’ medical expert credibly testified that other more conservative treatment modalities could be utilized based on Claimant’s reported symptoms and objective findings on exam. The ALJ agreed and determined that there was insufficient evidence to support that the surgery should be performed over other treatment options. The ALJ denied Claimant’s request for authorization of the surgery.
It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.
While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees. Continue reading the article
No Mulligans for Bad Faith: In Schultz v. GEICO Casualty Company (November 5, 2018) the Supreme Court of Colorado addressed a District Court Order that required the Plaintiff to undergo an IME in light of bad faith allegations brought by Plaintiff. Plaintiff was involved in a car accident in 2015 and subsequently had multiple knee surgeries. Without having Plaintiff undergo an IME, the insurer offered full policy limits but did not subsequently pay. When Plaintiff brought a bad faith allegation against the insurer for unreasonable delay/denial, the insurer then denied liability and secured an Order from the District Court requiring Plaintiff to undergo an IME to assess a causation dispute. Plaintiff alleged that the requirement that she undergo an IME was unreasonable because the insurer had previously agreed to pay out the policy without an examination, over a year prior. The Supreme Court reaffirmed the principle that an insurer’s decision to deny or delay benefits to the insured must be evaluated based on the information available to the insurer at the time the coverage decision is made, not post-coverage decision due to the discovery of later developments that may have impacted the insurer’s decision. Here, the insurer had initially decided to pay out the policy without an IME and presented no explanation as to how an IME performed one year later would have impacted the original decision. The Court found that the District Court had abused its discretion in compelling the examination.
Moral of the Story: Whether an insurer acted in bad faith or not, is decided when the unreasonable action is alleged to have occurred. It cannot be rectified by relying upon evidence subsequently obtained that did not exist, or was not available, at the time of the initial action.
Fines Dispensed, Dispensary Incensed: In MMJ 95, LLC (no board number issued)(October 15, 2018), ICAO upheld a Director’s Order imposing a $39,950.00 fine upon Respondent-employer for failing to maintain mandatory workers’ compensation insurance coverage. Section 8-44-101, C.R.S. of the Workers’ Compensaion Act requires that all employers secure workers’ compensation insurance coverage for all employees. Uninsured employers are subject to a fine of up to $250.00 per day under Section 8-43-409(1)(b), C.R.S. In this case, MMJ 95 did not maintain its own workers’ compensation coverage. The sole registered agent of MMJ 95 was also the registered agent of another company, AJC Industries, LLC, which did maintain workers’ compensation coverage. Both businesses operated under the same trade name. The Director found that, contrary to the testimony of the employer, MMJ 95 did have “employees” for purposes of the Act and therefore had to maintain its own insurance for those employees. The Director found that the registered agent of Repondent-employer did not file LLC member rejection of coverage for workers’ compensation insurance for MMJ 95 and was therefore himself considered an “employee” of the company. The Director further found that persons working at MMJ 95 were employees, despite testimony from the registered agent that these persons were employed by AJC and therefore covered by its insurance. The Director found that, even though AJC and MMJ 95 operated under the same tradename, they were separate business entities because they had been filed as such with the Secretary of State. Respondent-employer did not properly raise contentions of error in response to the Director’s Order and ICAO upheld the Director’s findings and ultimate fine.
Moral of the Story: Every employer registered with the Secretary of State must maintain its own workers’ compensation insurance coverage for all employees. Members of Limited Liability Companies may be considered employees of the company for purposes of workers’ compensation, even though they are not paid as employees of the company.
A Final Admission Isn’t Always the End: In The Matter of the Claim of Carold Peoples v. State of Colo. Dep’t of Trans., W.C. No. 4-819-262 (October 24, 2018), ICAO affirmed the ALJ’s Order requiring Claimant to repay an overpayment and allowing Respondent to recoup the overpayment by offsetting disfigurement benefits. Claimant had been awarded SSDI and Respondent did not take an offset against temporary disability, even though they had known of the award since 2012. Respondent instead noted an ongoing overpayment on the GAL. Respondent filed a FAL in 2013, within a year of the SSDI award, but did not apply for a hearing. Claimant argued that overpayment was barred by the statute of limitations on the premise that Respondent did not “attempt to recover” the overpayment within one year of when they became aware of the overpayment, under Section 8-42-113.5(1)(b.5)(I), C.R.S. ICAO agreed with the ALJ that asserting a right to recoup overpayment on the FAL was sufficient for Respondent to preserve their right and defeat the statute of limitations. Filing a FAL asserting an overpayment against future benefits is sufficient as an “attempt to recover” an overpayment for purposes of the statute. Claimant argued that Respondent was prohibited from offsetting the overpayment against future benefits owed. The Panel held that “the Respondent may offset their liability for the disfigurement award . . . against the existing overpayment.”
Moral of the story: Respondents must attempt to recover any overpayment within a year of becoming aware of its existence, and a FAL noting the overpayment is sufficient to preserve the right to pursue the overpayment in the future. Respondents may also recover overpayment from future benefits, including disfigurement owed.
Member Karen Treece and Of Counsel Brad Hansen attended the annual
DRI Conference last month in San Francisco. DRI is the “Voice of The Defense Bar” and the leading organization of defense attorneys and in-house counsel. The goal of DRI is to enhance the skills, effectiveness, and professionalism of all lawyers in the defense of civil litigation. The conference brings hundreds of defense attorneys from across the country to meet and discuss current trends and issues affecting the insurance industry with ways to improve and defend the interests of businesses and individuals in civil litigation. Seminars and CLEs were held on various topics including issues affecting the workers’ compensation system and ways to improve representation of clients. There were several Keynote speakers including former Secretary of State Dr. Condoleezza Rice. Overall, the conference was a great opportunity to meet and network with fellow peers from across the country. Next year the conference will be held in New Orleans.
Of Counsel M. Frances McCracken successfully defeated Claimant’s claim for compensability in Dunning v. Walmart Associates, Inc. Claimant alleged that she suffered an occupational disease injury to her wrists, including carpal tunnel and de Quervain’s tenosynovitis. Claimant stocked product as part of her daily duties and claimed that the repetitive action in using a box cutter caused her conditions. The ALJ credited the testimony of Respondents’ medical expert, who opined that it was not medically probable that the symptoms presented were causally related to Claimant’s work activities, especially in light of Claimant’s multiple alternative risk factors (including age, weight, diabetes, and vitamin deficiency). The ALJ denied and dismissed Claimant’s claim for compensation.
A Claimant is Never Out of the Fight for TTD: In Frisch v. Berwick Electric Company, W.C. No. 5-033-012 (September 11, 2018), ICAO addressed whether a Claimant would still be entitled to TTD for a worsening of condition after having been denied TTD benefits by a prior Order finding termination for cause. Claimant was fired shortly after his injury and then “permanently barred” from collecting TTD after a hearing on termination for cause, under Sections 8-42-105(5) and 8-42-103(1)(g), C.R.S. The parties subsequently litigated TTD for a second time on the Claimant’s contention that he suffered additional disability due to a worsening of condition and was due TTD pursuant to Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004). In Longmont Toyota, the Colorado Supreme Court held that an injured worker who had been barred from collecting TTD due to termination could nevertheless still be entitled to TTD if he suffered a worsening of condition tied to the injury, despite having been terminated. Claimant proved that he suffered a worsening of his medical condition at the second hearing. The ALJ awarded TTD from the date of the worsening. ICAO upheld the ALJ’s Order, holding that termination did not permit a permanent bar on TTD if a claimant could show his/her condition improved after the injury then became worse resulting in further incapacity.
Moral of the Story: There is no permanent bar on TTD, even if you prove claimant was fired for reasons unrelated to the work injury. A claimant can always collect disability if he/she can show their condition became worse after a period of improvement.
Time’s Up, You Got Served: In Dickens v. Wagner Equipment et al., W.C. No. 4-681-113 (September 13, 2018), Claimant sustained an admitted knee injury and Respondents filed a FAL. Claimant filed an Objection to the FAL within 30 days, but didn’t file an Application for Hearing or Notice and Proposal for a DIME within this period. Respondents denied further benefits on the basis that the claim was closed by operation of law for failure to timely object. Claimant litigated service of the FAL and petitioned to reopen the claim for a worsening of condition. Respondents filed a Motion to Dismiss which was granted by the ALJ on the basis that Claimant had not properly objected to the FAL within 30 days. The ALJ also denied the Petition to Reopen on the basis that Claimant had not sustained his burden to prove a worsening of condition. Upon appeal, ICAO upheld the ALJ’s Order granting dismissal, finding that a claimant must object to a FAL within 30 days of actual service of the document with an Application for Hearing or Notice and Proposal for a DIME. Any other form of objection is insufficient to keep a claim open.
Moral of the Story: Claimant must either apply for a hearing or a DIME within 30 days of a FAL or their claim is closed. If this is the case, Claimant must prove a worsening of condition or that there was an error in order to reopen the claim.
A “Quasi-Course” Goes a Long Way: In Prescott v. Schlumberger Technology Corporation and Travelers Indemnity Company, W.C. NO. 4-849-166 (September 9, 2018), ICAO affirmed the ALJ’s ruling that the injuries Claimant sustained from a car accident were compensable under the quasi-course of employment doctrine. The doctrine states that an injury occurring during travel to or from an authorized medical appointment is compensable unless there was a substantial personal deviation. In Prescott, instead of heading home to Grand Junction after a medical appointment in Denver, Claimant drove to his daughter’s home in Fort Collins and stayed the night. The next day, on his way home, Claimant was involved in a motor vehicle accident. The ALJ found that since Claimant was on his way home to Grand Junction when the accident happened, his substantial personal deviation to Fort Collins had ended, and the accident was compensable. ICAO upheld the Order, finding that the law was correctly applied and that it would not disturb the ALJ’s factual findings.
Moral of the Story: A substantial personal deviation only cuts off liability under the quasi-course of employment doctrine if the employee is actively engaged in the substantial personal deviation at the time of injury.