The Legal Buzz – Lee & Brown Newsletter and Case Law Update July 2019

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


 

Congratulations are in Order!

 

Lee & Brown has recognized the daily commitment, dedication and professionalism of three of its own.  We are very happy to make the following announcements:

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.

 


Noteworthy Cases

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.

 


 

In May of this year the Colorado Court of Appeals rendered an opinion that focused on the admissibility of past medical expenses when the claimant/plaintiff is injured on the job and sues the third-party tortfeasor. The Court considered whether “billed” medical expenses versus what was actually “paid” were to be considered by the court and jury in awarding damages to a claimant/plaintiff. Before trial, the defendant had extinguished the insurer’s subrogation interest in the amounts paid by paying off the insurer’s claim for those damages.  Continue reading the article

 


Cases You Should Know

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.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update June 2019

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In the News
The Colorado Self-Insured Association (CSIA) held their annual membership luncheon on June 18, 2019. Lee and Brown, LLC, a professional member of CSIA, was proud to be a sponsor of this year’s luncheon. Attending on behalf of Lee and Brown, LLC were Of Counsel Bradley Hansen, Esq. and Associate Angela Lavery, Esq.   CSIA is an association of Colorado employers approved by the State of Colorado to insure their workers’ compensation benefits internally. Members include representatives of self-insured entities in both the public and private sectors, as well as other professionals involved in the workers’ compensation system. CSIA’s mission is to educate members, provide networking opportunities, and promote legislative action that maintains a cost-benefit balance. CSIA also promotes the goal of promoting timely and effective programs to return injured employees to work.

 


 

Noteworthy Cases

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.

 

Fran McCrackenIn 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.

 

Brad HansenIn 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 Krisit Robargesuccessfully 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.

 

Jessica MelsonIn 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.


 

Fine, Fine Everywhere a Fine – Excessive Fines by the DOWC

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
 


Cases You Should Know

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.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update May 2019

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In the News
L & B Members Katherine Lee and Joe Gren (pictured with Liberty Mutual adjuster Brittany Pintor) were honored to attend the premier of the movie “Two Hearts”  based upon the book “All My Tomorrows.”  The book was written by a Firm client after he suffered the tragic loss of his son.  Both the book and the movie detail the emotional story behind the donor family’s decision and the lives, forever changed, of the recipients and their families. The premier also included a tour of The Gabriel House of Care, built in large part from a donation by one of the organ recipients.  The Gabriel House of Care houses individuals waiting for or recovering from organ transplants, and is conveniently located steps from the Jacksonville, Florida Mayo Transplant Clinic.  Katherine and Joe were honored to be included as guests, and learned a great deal about the gift of organ donation, which inspired a Firm contribution to an amazing and transformative cause.

 


Noteworthy Cases

Joshua Brown Attorney Denver In McIntyre v. Global Medical Response, W.C. No. 5-078-097, Member Joshua D. Brown and Associate Susanna Thomas-LovricSusanna Thomas-Lovric successfully defended Claimant’s pursuit of specific medical benefits.  Claimant was employed by Global Medical Response as a paramedic for over 20 years, when he slipped and fell down icy stairs in April 2018.  Following the injury, Claimant underwent extensive cervical and lumbar spine surgeries.  Respondents defended against causation and relatedness based on pre-existing injuries and Claimant’s failure to timely report head and neck symptoms to his ATP.  Claimant argued that the fall had aggravated preexisting injuries that were work related, and that his ATP failed to document his cervical spine complaints.  The ALJ denied Claimant’s request for reimbursement for both surgeries.  He found that the cervical spine surgery was not causally related to the workplace injury, but that it was a prophylactic measure related to both Claimant’s degenerative conditions and a preexisting injury.  He also found that the lumbar spine surgery, although reasonable and necessary, was not causally related to the workplace injury because Claimant had a history of lumbar spine complaints and failed to prove that the workplace injury caused an aggravation of same.

Joseph Gren Denver AttorneyMember Joe Grenand Associate Kristi Robarge successfully defended a full contest claimKristi Robarge 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.

 

Matt Boatwright AttorneyAssociate 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.

 


 

Fran McCracken

 

 

 

Fran McCracken
NEW COLORADO LAW LIMITS OPIOID PRESCRIPTIONS

Colorado is addressing the ongoing opioid epidemic with an array of public and private initiatives.  Per the American Medical Association,  the state Medicaid agency (the Colorado Department of Health Care Policy and Financing [HCPF]) and the Division of Insurance (DOI) are spearheading the initiatives.  On March 16, 2018, the revised Guidelines for Prescribing and Dispensing Opioids were adopted by all six of Colards: the Colorado Dental Board, the Colorado Medical Board, the State Board of Nursing, the State Board of Optometry, the Colorado Podiatry Board and the State Board of Pharmacy.   Continue reading this article

 


Cases You Should Know

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.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update April 2019

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In the News

 

Lee & Brown LLC, is pleased to announce all 5 Members, Katherine M. Lee, Joshua D. Brown, Karen Gail Treece, Joseph Gren and John Abraham, have been selected by Super Lawyers for 2019. Mr. Abraham joins the team for the first year as a Rising Star.  Super Lawyers evaluates lawyers across the country for its annual list of top attorneys.  Each candidate is measured against 12 indicators of peer recognition and professional achievement. Lee & Brown is very proud of the recognition.

 


 

Noteworthy Cases

Member Joshua D. Brown and Of Counsel William M. Sterck successfully defended a Willam Sterck Attorneydeath 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.

 
 

Jessica Melson AttorneyAssociate 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.
 


 

 

The Ongoing Dilemma of Intermittent FMLA Leave

Intermittent FMLA leave is a giant thorn in the side of human resource professionals across the country. The struggle is that not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios and how to handle them. The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members. The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call. It’s not always simple, however; if the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.   Continue reading this article

 


Cases You Should Know
Even an ALJ has Limits: In Burren v. ICAO, 2019 COA 37, (March 7, 2019), Claimant sought review of an ALJ’s determination of the date she reached MMI despite there being no finding of MMI by an ATP or DIME physician. Respondents requested a 24-month DIME pursuant to C.R.S § 8-42-107(8)(b)(II), because no treating physician had placed Claimant at MMI in the two years that had elapsed since the date of the work-related injury. The DIME physician opined that Claimant was not at MMI.  Respondents applied for a hearing to overcome the DIME opinion.  The ALJ at the administrative hearing found the Claimant was at MMI.  Upon review, the Panel upheld the ALJ’s Order, concluding that substantial evidence supported the decision.  On appeal, the Colorado Court of Appeals concluded that an ALJ cannot determine MMI when neither a treating physician nor a DIME physician had placed the injured worker at MMI. The Order was set aside and the matter was remanded for the ALJ to enter an order consistent with the Court of Appeals opinion.
 
Moral of the Story: If neither the ATP nor the DIME physician have found Claimant to be at MMI, an ALJ may not rule a Claimant is.

 
 
No Show No TTD: In Willhoit v. ICAO, 2018CA1523 (Feb 14, 2019)(nfsp), Claimant sought review of a Panel decision affirming an ALJ’s Order denying and dismissing his claim for TTD benefits. Claimant sustained an industrial injury that prevented him from performing his essential job functions on July 31, 2017. Claimant stopped working and the employer began paying TTD benefits.   On August 30, 2017, the Employer sent Claimant an offer of modified employment complying with Claimant’s work restrictions.  The offer of modified employment was signed by Claimant’s treating physician.  Claimant failed to show up for work as scheduled. Claimant failed to show up for the following three days.  The employer discontinued Claimant’s TTD benefits pursuant to C.R.S. § 8-42-105(3)(d)(I).  Claimant sought a hearing to reinstate his TTD benefits on the grounds that the modified job offer did not comply with his restrictions. The ALJ denied and dismissed Claimant’s claim for benefits.  On review, the Panel affirmed the ALJ’s opinion.  On appeal, the Court of Appeals stated that when a Claimant is released to modified duty but fails to appear for work, Respondents may unilaterally terminate temporary disability benefits pursuant to C.R.S. § 8-42-105(3)(d)(I).   Neither the statute nor W.C.R.P. 6-1(A)(4) requires that a written offer of modified employment detail every aspect of how a job will be modified.  The Court of Appeals affirmed the Orders of the ALJ and the Panel.
 

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.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update February 2019

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In the News
 
Lee & Brown LLC was a sponsor for the Professionals in Workers’ Compensation of Colorado annual bowling tournament. The PWC is a professional organization made up of third-party administrators, carriers, attorneys from both sides of the Bar, and professional vendors offering services in the industry. The PWC provides ongoing educational seminars pertaining to the workers’ compensation industry throughout the year. The PWC also funds two collegiate scholarships to high school students interested in studying an area connected to the industry. The PWC bowling tournament is one of the fundraising opportunities from which funding is provided for these scholarships. Lee & Brown fielded two teams this year including Members Joshua Brown and John Abraham; Of Counsel Frank Cavanaugh, M. Frances McCracken and Brad Hansen; and Associates Matt Boatwright, Jessica Melson, and Angela Lavery. A great time was had by all for a good cause while fostering professional development and connections in the Colorado Workers’ Compensation community.
 

Noteworthy Cases

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.

 

 


Workplace Bullying

Does workers’ compensation insurance cover mental and manifesting physical injuries resulting from workplace bullying? A recent Forbes online article cited a survey concluding that 75% of the U.S. workforce reported having experienced workplace bullying. Another study cited by the Workplace Bullying Institute suggested that absenteeism and lower production costs businesses $4 billion annually. Regardless of the accuracy of the statistics, with the increased use of social media, workplace bullying can start inside of the workplace, or start outside of the workplace and permeate into daily business operations. Continue reading the article

  


Cases You Should Know
 
Beat the Clock: Statute of Limitations Applies to Both Employers and Claimants: In Packard v. City and County of Denver, W.C. No. 4-925-466 (December 4, 2018), Claimant contracted cancer that he believed was work related. Claimant reported the cancer to his Employer, and the Employer filed a First Report of Injury accordingly. The Claimant did not file a Workers’ Claim for Compensation or an Application for Hearing for 4 years. Pursuant to C.R.S. § 8-43-103(2), an Employee’s right to workers’ compensation benefits is barred if the Employee does not file a Workers’ Claim for Compensation or Application for Hearing within 2 years of the date of injury. When Claimant filed an Application for Hearing 4 years later, Respondents argued that the Employee was not entitled to relief because he did not file a Workers’ Claim for Compensation or Application for Hearing within the two-year period required by statute. The ALJ ruled that Claimant did not violate the two-year statute of limitations because the Employer was aware of the Employee’s claim for compensation via the First Report of Injury and General Admission of Liability filed by the Employer. The Industrial Claim Appeals Office overturned the ALJ’s decision, ruling that that Claimant was not entitled to relief because he did not file a Workers’ Claim for Compensation or Application for Hearing within 2 years of the date of his injury, as required by C.R.S. § 8-43-103(2).
 

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.

 
Moral of the story: Even if medical treatment may be contemplated in the future, once Claimant reaches MMI, prior authorization is required. There is no legal authority that requires Respondents to pay for unauthorized medical treatment pre or post-MMI.

 
 

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.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update January 2019

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Noteworthy Cases

Member Karen Gail Treece successfully defended two full contest claims. In Mommens v. Martin Marietta Materials, Inc., W.C. No. 5-070-386, Claimant alleged he was injured from hitting a bump on the road while driving a cement truck. Claimant testified he drove over a bump or transition in the road and flew up in his seat hitting the lumbar bar of the seat when he came down. Claimant was unable to identify the street location of the bump to his supervisors. Respondents’ accident reconstructionist expert credibly testified there was nothing wrong with the seat of the truck, the lumbar bar did not protrude, and the seat operated properly. The ALJ denied and dismissed the claim.
 

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.

 
In Moore v. Lifeline Orlando VAC, (DaVita), I.C.A. No. 20152-740314, Associate Daniel Mowrey successfully defended against Claimant’s attempt to increase the Loss of Earning Capacity (LEC) and Permanent Partial Disability (PPD) Award before the Industrial Commission of Arizona. Respondents admitted for a monthly PPD award of $646.10. Claimant contended that she was entitled to a monthly award of $1,094.13. Claimant provided expert testimony from two physicians and a labor market expert. The ALJ was persuaded by the testimony of Respondents’ labor market expert who testified that while Claimant could not return to her pre-injury employment, her considerable history in leadership roles provided her extensive administrative experience. The ALJ credited Respondents’ labor market expert’s opinion that her prior leadership roles would qualify her for the higher wage range for administrative positions. The ALJ was not persuaded by Claimant’s testimony that she could not sit for longer than 15 minutes at a time. 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 she was entitled to an increase in her LEC and PPD award. The ALJ ordered Claimant’s claim for an increase in benefits be denied and dismissed.
 

Helmet to Helmet

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

 

Cases You Should Know

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.

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

Lee and Brown LLC Partners and Certifications

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Happy Thanksgiving from Lee & Brown


In the News

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.


Noteworthy Cases

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.


Because It Goes to 11

It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. With the New Year, several changes and updates to the Workers’ Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11 which pertains to the DIME process. Effective January 1, 2019, many revisions and changes to Rule 11 will take place. Continue reading the article to learn about several key changes to the Rule.

Cases You Should Know

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.

 

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

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In The News

Members Joshua Brown and John Abraham, along with Office Manager Denise Iannotti, represented Lee & Brown at the National Association of Minority and Women Owned Law Firms’ (NAMWOLF) Annual Conference held in Chicago September 25-29th. A member since 2013, Lee & Brown is proud to be a part of this outstanding organization and assist in its efforts to promote diversity through the creation of legal opportunity for minority and women owned law firms.

The Firm was very recognized throughout the conference thanks to their ability to “clone” Members Brown and Abraham as life-size cardboard cutouts, which were utilized in the implementation of their well-received game of “Finding Josh and John”. Fellow NAMWOLF Member Krishna Reddy, Esq. of Paul Garcia & Associates in San Antonio, Texas was the very happy winner of an Apple Watch as a result of his savvy game playing skills.

Everyone is now preparing for the next NAMWOLF event – the annual Business Meeting, to be held in New Orleans in February 2019.

 


Noteworthy Cases

Joshua Brown Attorney DenverMember Joshua Brown and Associate Kristi Robarge  successfully defended a full contest claim in Kelson v. SkyWest Airlines, Inc., W.C. 5-061-588. Claimant, a flight attendant, was traveling to her hotel on a shuttle bus when the bus stopped suddenly to avoid a collision. Claimant alleged an injury to her left shoulder from bracing against the seat in front of her. However, Claimant did not report the alleged injury until one month later when she had an unrelated stroke and ended up in the hospital. From the date of the alleged injury until Claimant’s unrelated stroke, she continued to work full duty. Respondents’ expert testified that it was not medically probable that the left shoulder injury was causally related to the shuttle bus incident. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.

 

John Abraham Denver AttorneyMember John Abraham and Associate Jessie M. Tasselmyer successfully defended against Claimant’s request for ongoing maintenance medical care in Riccillo v. Parkview Medical Center. Claimant suffered a slip and fall accident in 1996. Claimant underwent extensive treatment and was ultimately placed at MMI. Thereafter, the indemnity portion of her case was settled, except for maintenance medical care. Claimant continued to treat and receive medications. Respondents retained an expert to opine on Claimant’s ongoing maintenance medical care. Respondents’ expert testified at hearing that Claimant suffered from a somatic pain disorder as well as pre-existing depression and anxiety. He further testified that even though Claimant’s ongoing depression and anxiety may have been related to the industrial injury in the past, it was no longer probable that her continued complaints of depression and anxiety were related to the industrial injury approximately 22 years later. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.

 

Of Counsel Sheila Toborg and Associate Jessie M. Tasselmyer successfully defended against Claimant’s attempt to overcome a DIME in Thompson v. The Home Depot. Claimant alleged that the DIME failed to address her psycho-social issues impacting her physical condition. Claimant also alleged that her physical abilities at the time of the DIME were inaccurate due to the performance of a steroid injection prior to the exam. Respondents’ expert credibly testified that the findings of the DIME were appropriate, and that Claimant’s ongoing complaints were unrelated to the work injury. The ALJ relied on testimony of Respondents’ IME physician and the DIME report, stating that the report addressed all of Claimant’s complaints and conditions and that there was no convincing evidence that the DIME’s determination of MMI was invalid.

 

Of Counsel M. Frances McCracken, successfully defended a full contest claim in Garza v. Walmart Associates. Inc. dba Sam’s Wholesale Club. Claimant alleged he injured his back when he slipped on water at work. Claimant denied falling but stated he “significantly wind-milled his arms in a Charlie Chaplin like manner” to maintain his balance and felt a twinge in his back. Security video did not show Claimant wind-milled or cartwheeled his arms. It showed he walked, slipped, bent slightly forward, and did not spill any liquid from the cup he was carrying. Ms. McCracken elicited credible witness testimony that Claimant stated he worked on a 40-acre ranch and lifted 80-pound hay bales after the incident. Respondents’ expert testified there was no mechanism of injury that would cause Claimant’s complaints. The claim was denied and dismissed.

 

    Associate Dan Mowrey defended a compensability claim in Nunez v. Custom AG Pak, LLC before the Industrial Commission of Arizona. The Applicant asserted he injured his back and neck at work on December 1, 2017. He testified reporting the injury to “a younger gentleman in human resources”, who told him to rest. The Applicant stated he rested the remainder of his shift and went home. He sought medical treatment the next day in Mexico. He did not return to work for the employer. At the hearing, the Applicant’s brother testified Claimant injured his right shoulder; however, Applicant did not present a medical professional to show a connection between the alleged workplace exposure and injury in advance of the hearing as required by the Rules of Procedure before the Industrial Commission, A.A.C. R20-5-141. Applicant further did not file any medical records or other documentation. Therefore, the ALJ found that Applicant did not provide sufficient evidence to support his claim and ordered it dismissed.

 

 


John Abraham Of Counsel

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years. Several claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid. As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible. Employers and carriers usually protect themselves and recoup overpayment from future benefits owed. Several cases have emerged (as well as arguments from claimants) that recovery of overpayments is impermissible, unconstitutional, and burdensome. Continue reading the article.
 

Cases You Should Know

Death is Guaranteed but WC Benefits are Not: In Becirovic v. ICAO, 17CA1505 (August 16, 2018)(nfsp), Claimant passed away on November 19, 2013, before a hearing could be held on the issue of compensability in her workers’ compensation claim. On March 23, 2015, Dr. Hall sent Claimant’s attorney a letter opining Claimant’s work injury may have contributed to her death. Claimant filed a Dependent’s Notice of Claim on December 9, 2015. Respondents filed a Notice of Contest contending the claim was barred by the statute of limitations because it was filed more than two years after Claimant’s death pursuant to C.R.S. § 8-43-103(2). The ALJ dismissed the case as barred by the statute of limitations. Claimant appealed and asserted the statute of limitations should not have begun to run until he received Dr. Hall’s report at which time the nature and probable compensable nature of the injury was first recognized, City of Boulder v. Payne, 426 P.2d 194 (1967). However, the ALJ found Claimant had the medical records and information that were sent to Dr. Hall and provided no explanation as to why she waited more than a year after the death to obtain a medical opinion or to timely file a claim. The Court of Appeals affirmed the ALJ’s dismissal.

 

Moral of the Story: Comply with procedural and jurisdictional requirements because failure to do so may bar claims indefinitely.

 
 

ATP Trumps DIME Regarding Medical Treatment: Respondents sought to overcome a DIME finding that Claimant was not at MMI. The ALJ determined Respondents failed to overcome the DIME and ordered them to pay for the EMG and surgical consultation recommended by the DIME physician. Respondents appealed. The Panel found Respondents did not overcome the DIME, but it held the ALJ was without authority to order Respondents to pay for the surgical consultation. An ALJ may order payment for diagnostic testing because it serves an evidentiary purpose to determine MMI and impairment; however, surgical consultations constitute a medical benefit, which must be recommended by an ATP. Potter v. Grounds Service Company and Truck Insurance Exchange, W.C. No. 4-935-523 (August 2018).

 

Moral of the Story: A DIME is not an authorized provider and an ALJ does not have the authority to direct Respondents to pay for treatment recommended only by the DIME where there is no support from an authorized provider within the chain of referrals.

 
 

What a Relief: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant sought review of the ALJ’s Order denying Claimant’s request for “assistance with general home services and activities, including yard services…” The ALJ ruled that Claimant’s request for home and yard services “would not cure and relieve the symptoms and effects of the Claimant’s industrial injury” and that the “services were not incidental to medical treatment…” to relieve Claimant’s symptoms. The ALJ relied on the opinions of Respondents’ IME physician in rendering her decision. ICAO affirmed the credibility decisions of the ALJ and reasoned that the ALJ credited the testimony of Respondents’ IME physician more than the testimony of Claimant and her expert.

 

Moral of the Story: Medical treatment, including home health care, must be related to the industrial injury to cure and / or relieve symptoms of the industrial injury.

 
 

What a Relief, Part 2: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant appealed and argued that the ALJ erred in permitting the testimony of Respondents’ IME physician and the IME report due to failure to timely disclose the report. Respondents admitted that Respondents’ IME report was exchanged beyond the 20-day time period prescribed in Rule 9-1. ICAO ruled that the ALJ properly admitted the testimony and report of Respondents’ IME physician. ICAO reasoned that the IME report was properly admitted through the testimony of the IME physician. Furthermore, ICAO reasoned Claimant failed to exercise procedural safeguards prior to hearing. Specifically, Claimant did not request the report prior to hearing, had knowledge of the IME physicians’ testimony through Respondents’ interrogatories, and had an opportunity to cross-examine Respondents’ IME physician. The ALJ’s Order was affirmed.

 

Moral of the Story: Evidence, including anticipated testimony disclosed 21 or more days after hearing, may be precluded if the opposing party is not provided an opportunity to contest the late disclosure of evidence.

 
 

Lost Time, No DIME?: In Gibson v. Atlantic Relocation Services, W.C. NO. 5-020-939-01, ICAO affirmed the ALJ’s denial of Respondents’ request to strike the DIME. ICAO reasoned that the decision in Harman-Bergstedt v. Loofbourrow, 320 P.3d 327 (Colo. 2014), did not preclude the Claimant from pursuing a DIME when he suffered no wage loss or no lost time. ICAO agreed with the determinations of the ALJ that the Claimant suffered a “disability,” which is evidenced by his physical restrictions which impaired his ability to perform his job. In this case, Claimant was assigned work restrictions by the ATP. However, his Employer continued to pay his full wages. ICAO reasoned that a Claimant must obtain a DIME to challenge “the ATP’s MMI determination, the impairment rating, or both…” even if the Employer continues the Claimant’s wages despite work restrictions.

 

Moral of the Story: Even if a Claimant suffered no wage loss or no lost time, they are still permitted to obtain a DIME.

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

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and Alignable

 


In the News

Lee & Brown was proud to be a sponsor in the third annual charity ride and rally hosted by Sturgeon Electric, July 14, 2018. This great event was a benefit for Freedom Service Dogs of America, a non-profit organization that transforms shelter dogs into custom trained, life-changing assistance dogs for people in need. Thank you to everyone who supported, sponsored, and rode to raise over $30K for this important cause!Enjoy the video: https://www.youtube.com/watch?v=yaVBBY3r_ZA
 
 
 

Noteworthy Cases

Joseph Gren Denver AttorneyMember Joseph Gren was successful in having a claim for an alleged shoulder and neck injury denied and dismissed in Washington v. United Parcel Service. Claimant alleged that he suffered an injury at his job lifting packages. Claimant claimed that his injury subsequently progressed to involvement of the neck, for which he sought surgery. Mr. Gren demonstrated to the Court that the Claimant’s account of how the alleged injury occurred was not consistent with the medical records. Respondents’ expert credibly testified that the Claimant’s job duties were not consistent with the mechanism of injury, and that the opinions of the treating providers made assumptions about the work duties that were not consistent with Claimant’s job function. Mr. Gren also elicited information at hearing that involved an undisclosed neck injury with ongoing treatment. The ALJ found that Claimant had failed to prove a compensable injury and denied the claim.

 

In Meza v. Bayou Well Services, Inc., Member Joseph Gren successfully defended against Claimant’s request to reopen his claim for a worsening of condition. Claimant sustained an admitted injury on September 6, 2013, when a large piece of equipment fell onto his back. Claimant underwent conservative care and was placed at MMI on March 27, 2014. Respondents filed a FAL on April 29, 2014. Claimant failed to object to the FAL and the claim was administratively closed. At hearing, Claimant alleged a change in his medical condition, relying on a report from his expert dated July 17, 2015. Mr. Gren presented evidence of diagnostic testing which revealed that there was no change in Claimant’s back since the MRI performed following the injury. Respondents’ expert credibly testified that Claimant lacked new objective findings on physical examination and that his condition had not changed since being placed at MMI in 2014. The ALJ credited the opinion of Respondents’ expert over that of the Claimant and Claimant’s expert. The ALJ found that Claimant did not meet his burden of proof for his Petition to Reopen. The Petition to Reopen was denied and dismissed.

 

Member Joseph Gren also successfully defended a full contest claim for an alleged foot injury in Wood v. United Parcel Service. Claimant alleged that he suffered an injury to his foot while entering his vehicle after making a delivery. Claimant reported the injury over a year later and was diagnosed with plantar fibromatosis. Mr. Gren demonstrated, through substantial medical records and expert testimony, that the condition was a naturally occurring condition. Respondents’ expert credibly testified that Claimant’s job duties did not aggravate Claimant’s naturally occurring condition. The ALJ found Respondents’ expert to be credible and that Claimant did not sustain an acute injury to his left foot on June 1, 2016. The ALJ agreed with Respondents’ expert that the current complaints were a natural and probable progression of his preexisting condition. The ALJ found that Claimant failed to prove a compensable injury and the claim was denied and dismissed.

 

Associate Matt Boatwright successfully challenged Claimant’s entitlement to ongoing temporary disability benefits in Voorhees v. United Parcel Service. Claimant had been collecting temporary disability benefits for the duration of the claim and was not at MMI. Respondents conducted surveillance, which reflected that Claimant was simultaneously engaged in non-related outdoor activities while collecting disability. Claimant sustained injuries while riding a dirt bike, after which Respondents asserted that he was not entitled to collect further temporary disability benefits due to an intervening cause. The ALJ found that Respondents had met their burden to prove that ongoing disability was not related to the original work injury and permitted termination of temporary disability benefits retroactive to the intervening injury.

 
 

 

INJURIES SUSTAINED COMING AND GOING FROM WORK — WHEN ARE THEY COMPENSABLE?

We typically think of compensable injuries occurring when the employee is already at their place of employment. But what about the time employees spend on the road, coming from and going to work? Many industries require employees to drive as part of their daily duties, not to mention the time workers in various professions spend commuting to and from the job site. Continue reading the article.
 
 

 

Cases You Should Know

Horsin’ Around at Work: In Alvarez v. Rifle Tequilas Inc., W.C. NO. 5-050-687 (July 6, 2018), Respondents sought review of the ALJ’s Order finding that Claimant sustained a compensable work-related injury as a result of an assault from a co-employee. ICAO affirmed the ALJ’s decision. Employer provided each of his employees a beer each night at the end of their shift as a perk. One night, Claimant was physically assaulted after he hid his co-employee’s beer. The Claimant and co-employee had a long-standing history of horseplay, which the employer knew about. Using the four-part test pursuant to Lori’s Family Dining Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995), the presiding ALJ found that Claimant’s act of horseplay (hiding the beer) was not a deviation from his employment and not inherently private. The ALJ reasoned that the assault arose out of the employer’s perk and was related to the duties of the employment. As such, the claim was compensable.

 

Moral of the Story: Generally speaking, a claimant’s horseplay with another employee is inherently private. However, when the horseplay between employees is related to the circumstances of the employment (an employee perk), the injury is compensable.

 

The Controlling ATP: In Morris v. Olson Heating & Plumbing Co., W.C. NO. 4-980-171-02 (July 6, 2018), Claimant sought review of an ALJ’s Supplemental Order denying a request for post-MMI medical benefits. Claimant sustained an admitted injury to the lower extremity. Claimant underwent treatment and was placed at MMI. Claimant objected to the ATP’s determinations and sought a DIME. The DIME assigned a scheduled permanent impairment rating and indicated post-MMI medical benefits were required. Respondents filed an amended FAL and admitted to the DIME’s impairment rating but denied post-MMI medical benefits pursuant to the ATP’s recommendations. Claimant argued that the DIME’s determination controlled regarding post-MMI medical treatment. The ALJ indicated that it was Claimant’s burden of proof to establish the necessity of post-MMI medical treatment by a preponderance of the evidence as the DIME’s determinations were limited to permanent impairment and MMI. ICAO affirmed stating that a DIME opinion on post-MMI medical treatment is not entitled to the same presumptive effect as that attached to DIME determinations of MMI or whole person impairment ratings. (Citing City Market v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003).

 

Moral of the Story: A DIME’s determination is controlling as to MMI and whole person impairment ratings.

 

Keep it Current: In Tew v. Zachs Transmission & 4×4 LLC, W.C. NO. 5-053-962 (July 3, 2018), Respondents sought review of 2 Orders issued by the Director of the Division of Workers’ Compensation regarding an award of penalties against Respondents. ICAO affirmed the Orders. Claimant sustained an injury on July 26, 2017. On August 10, 2017, Employer filed an Employer’s First Report of Injury. On August 17, 2017, Respondents attempted to file a Notice of Contest via EDI. The Notice of Contest was rejected. On October 5, 2017, the Director issued an Order directing Respondents to file a position statement within 15 days. No response was received. On November 17, 2017, the Director assessed penalties against Respondents; however, the Order was returned to the Division due to the insurer’s invalid mailing address. The Division notified the insurer via email. At that time, the insurer took immediate action to fulfill the Division’s requests. Respondents filed a Petition to Review and requested a prehearing conference for reconsideration of the Order. On February 13, 2018, the Director issued a Supplemental Order denying Respondents’ request for reconsideration and Petition to Review. The Director found that pursuant to Rule 5-14, W.C.R.P., an insurer is required to provide a mailing address to the Division and that mailing to the provided address is “deemed good service.”

Moral of the Story: Failure to timely update a mailing address is not a defense against an award of penalties.

 

No Texting While Driving but Talking while Driving is Compensable: In this claim, Claimant was involved in a motor vehicle accident (MVA) on her way home from attending a work-related planning meeting. The claim proceeded to hearing for a determination on whether Claimant was in the course and scope of her employment while traveling home from a business meeting. Respondents cited the “going to and coming from” rule and argued the claim was not compensable because the MVA occurred while Claimant was going home. See Berry’s Coffee Shop, Inc. v. Palomba, 423 P.2d 212 (Colo 1967). Claimant asserted that travel was a part of her employment; therefore, the MVA was compensable. Even if found she was not in employment status, the MVA occurred while she was on a work-related cell phone call which brought her back into employment status. Respondents argued that if Claimant was on her phone, she violated the employers’ handbook policy and deviated from her employment. The ALJ found travel was a contemplated part of Claimant’s employment and that the injury was compensable. Respondents appealed. The Panel found that travel was clearly contemplated with employment and Claimant did not depart from her sphere of employment by being on her phone while driving. ICAO affirmed. Elorriga v. ADP Total Source, W.C. No. 5-047-389 (June 19, 2018).

Moral of the story: It is difficult to defend claims where employees are required to travel as a part of employment unless it can be shown the claimant substantially deviated from their employment duties.

 

The Fire is Not Out Yet: Further evaluation of the firefighter statute continues in City of Boulder Fire Department v. Dean Pacello, (Colo. App. 2018)(nfsp). Claimant was a firefighter for 35 years. After he retired, he developed tongue cancer. It was undisputed that pursuant to C.R.S. § 8-41-209, Respondents had the burden to prove the cancer was not work related. Respondents provided medical evidence that the cancer was more likely caused by HPV, a sexually transmitted disease, than exposure from firefighting. Claimant’s experts testified the cancer was caused by a combination of the virus and firefighting. The ALJ found the claim compensable. Respondents appealed and argued to overcome the presumption by showing the cancer was more likely caused by the virus and the ALJ erred in accepting the multifactorial argument because it created an irrebuttable presumption, as most cancers have multiple risk factors. The Court disagreed. It noted the presumption can be overcome by showing the cancer more likely arose from a “source outside the workplace.” But, the presumption is not automatically rebutted by identifying a non-occupational risk factor. It must be established that the non-occupational risk factor played a prominent role in the cancer’s development. The ALJ makes the determination of whether or not Respondents met the burden. The Court affirmed.

Moral of Story: The ALJ must be persuaded that exposures outside of work were more likely to have caused cancer than exposures while firefighting.

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

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In the News
Emily Miller & Susanna Thomas-Lovric
The Colorado Self-Insured Association (CSIA) held their annual membership luncheon on June 19, 2018. The luncheon featured comedian Nancy Norton as entertainment and provided a chance for all members to wrap up a great year. Lee and Brown, LLC, a professional member of CSIA, was proud to be a sponsor of this year’s luncheon. Attending on behalf of Lee and Brown, LLC were Of Counsel Bradley Hansen and Associate Angela Lavery. CSIA is an association of Colorado employers approved by the State of Colorado to insure their workers’ compensation benefits internally. Members include representatives of self-insured entities in both the public and private sectors as well as other professionals involved in the workers’ compensation system. CSIA’s mission is to educate members, provide networking opportunities, and promote legislative action that maintains a cost-benefit balance. CSIA also promotes the goal of promoting timely and effective programs to return injured employees to work.

 

As a part of the CSIA Legislative Committee, Of Counsel Frank Cavanaugh attended the legislative planning retreat for the remaining 2018 and upcoming 2019 year. The Legislative Committee of the CSIA deals with potential upcoming legislation that may affect CSIA members. In addition, the committee plans the upcoming meetings, including topics of interest to members. The meetings start in September and go through June of the following year. Meeting topics cover a wide range of medical, legal, and claims related subjects. Business entities other than those technically self-insured for workers’ compensation purposes are encouraged to look into membership as those employers share an equal interest in proper functioning of the workers’ compensation system. The upcoming meeting schedule is being finalized and will be available shortly. With elections just around the corner, and the possibility of a change in legislative composition, it is even more important to participate in this organization as the next legislative session could bring change to the workers’ compensation system.

 


Victory Lap

Joseph Gren Denver Attorney In Heien v. DW Crossland, LLC, Member Joseph W. Gren successfully established that Claimant willfully failed to obey a reasonable safety rule adopted by the Employer, entitling Respondents to a reduction of non-medical benefits by 50%. On October 14, 2017, Claimant sustained an amputation injury to his right upper extremity after placing his arm inside a running commercial washing machine. Mr. Gren presented significant evidence that Claimant had been adequately trained in how to properly use the machine and was additionally aware of several safety warnings and the proper safety mechanisms available to stop the machine. Claimant testified that by placing his arm into the running washing machine, he was intentionally violating a safety rule. The ALJ found that Claimant’s activities demonstrated that he deliberately violated the Employer’s safety rule regarding proper operation of the washing machine. Therefore, the ALJ held Respondents were entitled to a 50% reduction in non-medical benefits.

 

John Abraham Denver AttorneyIn Corbishley v. Walmart Associates Incorporated, Member John Abraham, successfully overcame the DIME physician’s opinion that Claimant was not at MMI for her left wrist/thumb and left knee. Claimant sustained an admitted work-related injury to her left knee and bilateral hands when she slipped and fell on a grease spot in a parking lot on July 27, 2014. Claimant ultimately underwent a total knee replacement, a right thumb arthroplasty, a left thumb arthroplasty, and a left thumb revision arthroplasty. Mr. Abraham successfully demonstrated that Claimant’s left knee complaints and issues at the time of the DIME were not a result of the work-related injury but were due to non-claim related osteoarthritis of the left knee and the natural history and progression of the disease. The ALJ found that Claimant would have required a total left knee replacement regardless of whether she fell at work. Specifically, the ALJ credited Respondents’ medical experts over the opinions of Claimant’s expert and the DIME physician in finding that the July 2014 injury did not change, aggravate, or accelerate her significant pre-existing disease process. Regarding the left wrist/thumb injury, Mr. Abraham successfully demonstrated with objective evidence, along with the opinions of Respondents’ medical experts, that the need for further surgery was due to her underlying degenerative disease process, and was not aggravated or accelerated by her work injury. In addition, the ALJ denied maintenance medical benefits, as any need for continued treatment was due to Claimant’s underlying and pre-existing degenerative conditions.

 

In Carl Ross v. US Engineering, W.C. 5-044-829, Of Counsel Sheila Toborg and Associate Evan Thompson successfully defended against Claimant’s request for authorization of left shoulder surgery. Claimant suffered an admitted injury to his left shoulder in January 2017 and a Final Admission was filed in February 2018. Two surgeons opined that Claimant required surgical intervention to repair a torn rotator cuff. At hearing, Ms. Toborg elicited testimony from Respondents’ medical expert that Claimant suffered from end-stage rotator cuff pathology that resulted in massive tearing of the rotator cuff. Respondents’ medical expert also testified that the MRI scan performed 8 weeks after the incident did not demonstrate any evidence of an acute injury or acute acceleration. The ALJ found Respondents’ medical expert’s opinion credible that the work injury did not accelerate Claimant’s pre-existing left shoulder condition beyond its normal rate of progression and it was Claimant’s end-stage rotator cuff pathology which resulted in the need for further surgery, rather than the work-related injury. The ALJ found that Claimant failed to establish by a preponderance of the evidence that the recommended left shoulder surgery was causally related to the January 2017 injury and Claimant’s request for left shoulder superior capsular reconstruction was denied.

 

Of Counsel M. Frances McCracken successfully challenged Claimant’s request for maintenance medical treatment in Grant v. Walmart Associates, Inc. As a result of the work injury, Claimant underwent a left hip arthroplasty and began to experience pain. Claimant sought continuation of pain and sleep medications to address his left hip pain. Ms. McCracken presented evidence from the testimony of two medical experts that opined narcotic pain and sleep medication were neither a reasonable or necessary medical benefit to maintain Claimant’s MMI status. Ms. McCracken successfully demonstrated that the prescribing physician had not maintained a record of Claimant’s functional history nor set forth functional goals. The ALJ noted Claimant did not sign a pain contract. The ALJ cited the testimony of Respondents’ experts and ordered Claimant be weaned off the opiate and sleep medication.

 

Of Counsel M. Frances McCracken also successfully established that Claimant was responsible for his termination in Rollins v. Beco, Inc. Claimant was employed with Employer as a commercial truck driver. On March 14, 2017, Claimant was involved in a serious motor vehicle accident when the semi-tractor he was driving traveled off the right side of Interstate 70, collided with a fence, and subsequently collided with a mountain. Claimant was taken to a local hospital and administered a urinalysis. The results were positive for amphetamines and MDMA. A subsequent search of the tractor-trailer by Claimant’s coworkers uncovered drug paraphernalia. Ms. McCracken presented evidence of the Employer’s “Drug, Alcohol, and Controlled Substances Policy,” that provided for immediate termination upon a resultant positive test revealing the presence of a controlled substance in an employee operating a company vehicle. The ALJ found that the evidence established, more likely than not, that Claimant’s termination was due to the results of a drug urine screen that he completed and due to the drug related paraphernalia found in the tractor-trailer after it was towed back to the Employer’s facility. The ALJ found Claimant responsible for his termination as there was ample evidence that he violated the Employer’s drug policy. Any lost wages after Claimant’s termination were not the result of the industrial injury.

 

Of Counsel M. Frances McCracken also successfully defended a full contest claim in Epperson v. Allied Universal. Claimant alleged that he slipped and fell while walking on a flat top roof on December 8, 2016. Claimant reported both legs twisted inwards and he fell back onto his lower back. Claimant’s reported injuries would ultimately include strain of the cervical, thoracic, and lumbar spine, strain of the bilateral shoulders and bilateral knees, and a closed head injury and possible loss of consciousness. Ms. McCracken successfully demonstrated through substantial medical records that Claimant had inconsistencies in both his hearing testimony and the information he provided to his physicians, including during an IME. Respondents’ medical expert noted Claimant had an inconsistent and normal physical examination, an inconsistent mechanism of injury, and non-physiological findings, together with symptom magnification. The ALJ did not find the Claimant credible as to how he allegedly fell, the alleged symptoms caused by the fall, or the alleged injuries caused by the fall. The ALJ held that Claimant did not suffer an injury that required medical treatment or caused any disability or medical impairment. The claim was denied and dismissed.

 

In Campbell v. Wrangler Well Service, Inc. and New Hampshire Insurance Company & Travelers Indemnity Company, Of Counsel William Sterck successfully established that carrier liability belonged with Travelers and not New Hampshire Insurance Company. The parties stipulated, and the ALJ found, that Respondent New Hampshire’s coverage ended on April 13, 2017 and Respondent Travelers insurance coverage began on the same day. The last injurious exposure for bilateral carpal tunnel syndrome was June 15, 2017, when Travelers was on the risk. Mr. Sterck presented evidence that Claimant’s condition progressed to include additional symptoms,ultimately leading Claimant to seek medical treatment after the change of coverage. The ALJ found that there was a substantial and permanent aggravation of the bilateral carpal tunnel syndrome after the coverage change to Travelers. Specifically, the ALJ credited the opinion of Respondent New Hampshire’s medical expert that attributed the last injurious exposure to Claimant’s work after April 13, 2017. The ALJ held that Respondent Travelers was solely and fully liable for all workers’ compensation benefits, including medical benefits.

 


2018 LEGISLATIVE SUMMARY

The 2018 legislative session wrapped-up about a month ago. There are always bills that have some workers’ compensation implications, or are directly sponsored by workers’ compensation groups. This legislative session was marked by inactivity in the workers’ compensation area, rather than the usual active session. This article will review a few of the things that did not happen before discussing what did. Continue reading this article.

Cases You Should Know

“All In” on Maintenance? Prove It: In Schroeder v. Thorn Emi North America, W.C. No. 3-840-625 (May 7, 2018), Claimant sought review of an Order by the ALJ which denied and dismissed all claims for post-MMI medical maintenance treatment. Respondents filed an admission for maintenance medical care and later obtained an IME opinion that no further medical treatment was causally related to the original industrial injury. Claimant subsequently filed an Application for Hearing, endorsing (among other issues) medical benefits to challenge denial of specific medical treatments. The ALJ found that Claimant had not sustained her burden of proof to establish a right to medical treatment after July 26, 2015, and denied all further care on the basis that Claimant had not proven that the disputed treatment was causally related to the injury. Upon review, ICAO affirmed but modified the ALJ’s Order to reflect that only the specific maintenance medical benefits sought by Claimant, from July 26, 2015 through the date of the ALJ’s Order, were denied. ICAO found that, while Claimant had the burden to prove entitlement to specific medical benefits after MMI (see Snyder v. ICAO, 942 P.2d 1337 (Colo. App. 1997)) Respondents would have the burden to prove that Claimant should not be entitled to all further post-MMI maintenance care. Where Respondents seek to modify an entire award of maintenance care, they bear the burden of proof. § 8-43-201(1), C.R.S.

Moral of the Story: When there is an admission for maintenance care, Claimant has the burden to prove entitlement to a specific treatment if Respondents have denied this treatment. However, if Respondents want to terminate the entire award of maintenance care (i.e. all further care), they bear the burden of proof to show that no further care is reasonable, necessary, or related to the original injury.

 

Treatment Turns on an ATP, not a DIME: In Torres v. City and County of Denver, W.C. No. 4-937-329 (May 15, 2018), Respondents sought to overcome a DIME and review of an ALJ’s Order directing Respondents to authorize a cervical surgery recommended by a DIME physician. The DIME had found that Claimant was not at MMI and that cervical surgery was reasonable, necessary, and related. However, no ATP, within the chain of referrals, had recommended cervical surgery. An ALJ lacks jurisdiction to order an ATP to provide a particular treatment prescribed by an unauthorized provider. See Short v. Property Management of Telluride, W.C. No. 3-100-726 (May 4, 1996). Under W.C.R.P. 11-2(G), a DIME physician is not an authorized provider. ICAO therefore found that the ALJ could not order Respondents to pay for a surgery recommended by a DIME, where no authorized provider had recommended the surgery. ICAO affirmed the ALJ’s Order overcoming the DIME, but modified the Order to reflect that the ALJ only had authority to hold Respondents liable for treatment recommended by an authorized provider.

Moral of the Story: The DIME is not an authorized provider and an ALJ does not have authority to direct Respondents to pay for treatment recommended only by the DIME where there is no support from an ATP within the chain of referrals.

 

Access to DIME = Procedural, Not Medical, Analysis: In Tynnae Fisher v. University of Colorado Health, W.C. No. 5-041-216-01 (June 12, 2018), Respondents sought review of the supplemental Order of the ALJ that authorized the Claimant to request a DIME. Claimant sustained an admitted injury to her cervicothoracic and lumbar regions. After receiving conservative medical treatment, Claimant was placed at MMI by her ATP. Respondents filed a FAL acknowledging that no temporary benefits were owed and admitted for 0% permanent impairment. Claimant disputed the FAL and requested a DIME review. Claimant’s request was stricken at a prehearing conference as the DIME request was deemed premature. Claimant scheduled a hearing to contest the Order of the PALJ. The ALJ reversed the ruling of the PALJ and resolved the Claimant was presently entitled to commence with a DIME review. Respondents appealed the Order, contending it was subject to review as it required Respondents to pay medical benefits associated with the DIME. Upon review, ICAO noted the DIME procedure is not for the purpose of medical treatment. Rather, it “serves as an evidentiary function in the process of litigating disputes.” Ince v. Southwest Memorial Hospital, W.C. No. 4-535-488 (April 19, 2004). The DIME is a function of the litigation process by which each side gathers and presents evidence in support of or in opposition to the claim. Any costs incurred by the respondents in facilitating a DIME review may not be characterized as a requirement to pay a medical benefit. ICAO held that the ALJ’s Order was procedural in nature. As such, the Order was not final and subject to review. Therefore, ICAO affirmed that the issue could not be considered at this time.

Moral of the Story: Any costs respondents incur facilitating the DIME process are part of the procedural litigation process and not medical treatment. The availability of the DIME process is a procedural determination made by the ALJ.

 

Rules Can’t Bend a Statute: In Vazquez Cruz v Lancelot Inc., W.C. No. 5-040-419 (ICAO May 17, 2018), Respondents sought review of an Order awarding Claimant $5,000.00 in disfigurement benefits. Claimant sustained an admitted work place facial burn injury. Claimant was placed at MMI and Respondents filed a FAL on April 13, 2018. On July 10, 2018, Claimant filed an Application for Hearing for disfigurement benefits. Respondents moved to strike the Application for Hearing pursuant to C.R.S. § 8-43-203 contending the Application was barred, as it was filed more than 30 days subsequent to the FAL. C.R.S. § 8-43-203 states that a case will be automatically closed as to the issues admitted in the FAL if Claimant does not, within 30 days, contest the FAL in writing. The Claimant contended that Rule 10 of the Office of Administrative Courts Procedural Rules for Workers’ Compensation Hearings allows for an extended period within which a Claimant may pursue an award for disfigurement. Rule 10 states that an Application for Hearing regarding disfigurement must be filed within 6 months from the date of injury or date of surgery. The ALJ agreed with Claimant’s counsel and found Rule 10 allowed a scar to be evaluated for an award of disfigurement benefits “at any time” subsequent to 6 months of rehabilitation, regardless of the 30-day limit. Respondents appealed the decision and argued Rule 10 does not serve to amend C.R.S. § 8-43-203, allowing an award of disfigurement benefits following the 30-day closure of the claim. The Panel found Respondents admitted for disfigurement at $0 and Claimant failed to dispute the disfigurement amount within 30 days. The Panel set aside the Order, stating that an administrative rule may not expand, enlarge, or modify an underlying statute.

Moral of the story: Final Admissions of Liability must admit for all benefits in order to close the claim following the 30-day deadline, pursuant to C.R.S. § 8-43-203.

 

The ALJ Tips the Scales of Evidence: In Hernandez v ABC Pro Painting, LLC, W.C. No. 5-027-576 (ICAO May 23, 2018), Claimant was working as a painter for the employer when he fell off a ladder injuring his low back. The parties went to an initial hearing on the issues of compensability, whether Claimant was an independent contractor, medical benefits, and penalties for failure to carry workers’ compensation insurance. The ALJ found Claimant was not an independent contractor, that he sustained a compensable injury, and that he was entitled to medical and temporary indemnity benefits. The ALJ also assessed penalties for violating C.R.S. § 8-43-408(1). Respondents appealed on the sole argument that the substantial evidence in the record supported the conclusion that Claimant was an independent contractor and not an employee. The Panel noted there is no precise number or combination of factors which are decisive in determining whether a Claimant is an employee or independent contractor. The Panel found the ALJ applied a totality of the circumstances test and found Claimant to be an employee. The panel opined that they had no authority to substitute their judgement for that of the ALJ concerning sufficiency and the probative weight of the evidence that was presented. The Panel affirmed the ALJ, finding his opinions were supported by substantial evidence.

Moral of the Story: It is very difficult to overcome the factual determination of an ALJ. The Industrial Claim Appeals Office will not reweigh the evidence to reach a result contrary to that of the ALJ.

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