Colorado Overtime & Minimum Pay Standards Order

Colorado recently took steps to increase the salary threshold for employees falling under the “white collar” exemptions.  On January 22, 2020, the Colorado Department of Labor adopted the Colorado Overtime and  Minimum Pay Standards Order #36 (“COMPS Order”), with most of its provisions becoming effective on March 16, 2020.   The new minimum salary thresholds for exemption from overtime began on July 1, 2020.  The COMPS Order makes significant changes for both exempt and non-exempt employees, and further outlines critical Colorado wage rights and responsibilities.  The COMPS Order replaces the Minimum Wage Orders previously issued by the Division and supplements the thresholds  provided by federal law, under the Fair Labor Standards Act.  Under the Order, whenever employers are subject to it, as well as to federal and/or local labor laws, the law providing the greatest protection to employees shall apply.  Contrary to previous wage orders, under the COMPS Order virtually all private employers, in all industries, will be subject to Colorado’s minimum wage, overtime and working condition rules, unless they fall into one of the specifically enumerated exceptions.  The Order requires employers to track, record, and compensate all non-exempt employees for all “time worked”.  The Order redefines “time worked” as all the time for which the employer requires or permits an employee:

 

To be on the employer’s premises, on duty, or at a prescribed workplace (but not merely permitting an employee completely relieved from duty to arrive or remain on-premises) — including but not limited to, if such tasks take over one minute, putting on or removing required work clothes or gear (but not a uniform worn outside work as well), receiving or sharing work-related information, security or safety screening, remaining at the place of employment awaiting a decision on job assignment or when to begin work, performing clean-up or other duties “off the clock,” clocking or checking in or out, or waiting for any of the preceding. . . .

COMPS Order Rule 1.9.1.

 

Under the Order, beginning July 1, 2020, the annualized salary required for an employee to be considered “exempt” is $35,568.00, with some exceptions for nonprofits and small businesses.  After 2020, the salary threshold for exempt employees will rise every year on January 1st.   The COMPS Order also imposes a wide array of additional requirements relating to a variety of issues, including meal and rest periods, employer-provided uniforms, permissible wage deductions, calculation of non-hourly pay for overtime, and posting and distribution requirements for ease of employee access.  Employers have only one month to comply with all documentation and notices required by the Order, such as new posters, employee handbook inserts, acknowledgment forms, etc.  Interpretive Notice & Formal Opinion (INFO)#1: Colorado Overtime & Minimum Pay Standards Order (COMPS Order) #36, which can be found on the Colorado Division of Labor’s website, summarizes key parts, interpretations of, and exemptions to, COMPS Order #36.

 

If you have any questions about the requirements of COMPS Order #36, or any employment or workers’ compensation-related question please contact Lee & Brown, LLC.

NEW COLORADO RULE ADDRESSING “USE-IT-OR-LOSE-IT” VACATION POLICIES


As of December 15, 2019, the Colorado Department of LaborUse-It-Or_Lose_It and Employment (CDLE) has a new rule in place clarifying that companies may cap but not take away employees’ earned, unused vacation pay. The viability of “use-it-or-lose-it” vacation policies under the Colorado Wage Claim Act (the “Act”) has been in flux for years, with the latest conflict stemming from a 2019 Colorado Court of Appeals decision upholding a policy under which employees forfeited vacation pay in some circumstances (e.g., if they resigned without providing two weeks’ notice). The CDLE’s new rule (7 CCR 1103-7, Rule 2.15) rejects the Court of Appeals’ holding and clarifies that an employer may have a policy limiting how vacation pay accrues but may not diminish earned vacation days other than through an employee’s actual use of vacation time.

Colorado employers with conditional vacation payout policies should immediately address the application under the new rule.  If needed, consultation should be made with an employment law attorney to address a companies’ needs.  Companies should address the difference between having vacation policies and general “paid-time off” policies.  The new rule is not applicable to the latter type of policies.  Therefore, companies with vacation only policies should address the potential implications of wage exposure to employees under the new rule.  For example, upon termination, under the new rule, an employee with unused vacation time is now entitled to wages for that unused time.  Conversion over to general “paid-time off” policies may be better suited to avoid this type of liability.

As always, if you have any questions regarding employment or workers’ compensation insurance laws, please contact one of the attorneys at Lee & Brown, LLC.

Where’s my DIME?

One of the main strategies in workers’ compensation claims involves the selection of a particular venue for the DIME process. For numerous years, Rule 11 was silent on the selection of a location for the Division IME. The party requesting the DIME had the option of selecting any venue in Colorado for the appointment to take place. From there, the DIME unit would select 3 physicians in the geographic location that the selecting party indicated on its Application and the DIME process would move forward. Essentially, any part of Colorado was “fair game” as the location in which to have a DIME. From a strategy perspective, selecting a specific geographical location for the DIME to take place could prove advantageous for the requesting party depending on the pool of physicians within that location. For example, it was not uncommon for residents from Fort Collins to request a DIME in Colorado Springs. One of the most common requests involved residents of Grand Junction traveling to Denver for their DIME appointment.

Respondents in certain geographical regions also had the strategy of requesting a pre-emptive DIME on a claim in which the treating physician placed the claimant at MMI with no impairment. For example, if a claimant in Colorado Springs was placed at MMI without impairment and was almost certain to request a DIME in Colorado Springs, Respondents would have the option of going for the DIME themselves as a pre-emptive measure and to take away claimant’s right to select a particular, more liberal venue to have the DIME.

Rule 11 is still silent on the venue for a DIME to take place. However, the recent changes to the Application for a DIME have added a specific portion to the Application form regarding venue selection. On the Application for a DIME, it states as follows, “preferred geographical location of examination. (The location in which the claimant resides may take precedence over the preferred location).” Of note is the use of the word “preferred” and specifically noting that claimant’s residence may take precedence instead of the preferred location selected. This is a new change that the DIME unit is focusing on and it appears in the past several months that the DIME unit is using a reasonableness standard when selecting physicians in a particular geographic location. For example, Respondents may want to challenge a treating physicians’ rating from the western slope and request a DIME in Denver. Gone are the days in which a three-doctor Denver panel was guaranteed. Instead, the DIME unit may put a combination of Denver and western slope physicians on the panel for selection. The process involves many variables as to which physicians are on the panel, including but not limited to, available physicians, specialties, current physicians performing DIMEs, timing, etc.

This new approach by the DIME unit is a topic of discussion and poses many issues. One issue is whether the venue preference will be applied equally to both parties and if bias is removed from the panel selection process. If Respondents are getting physicians from a select geographical location but claimants are not, (and vice-versa), it doesn’t present fairness to the DIME process for both parties. Another issue is the amount of physicians present in one geographic location and whether the pool of DIME physicians throughout the state are performing examinations routinely. For example, if Colorado Springs is frequently selected as a venue, and physicians within that pool are performing DIMEs more frequently than other physicians, does it eliminate the concerns that the new changes to the Rule hoped to address in having a wider variety of physicians participate in the process? Yet another issue is either party wanting a specific venue due to a fact specific reason in the claim, and not particularly receiving it despite the request of one or both parties. The new Rule allows the parties to agree to a number of issues, including the physician to perform the DIME and the cost. However, can the parties agree to a venue when there is a disagreement to the physician and cost?

Major changes to any Rule are usually met with many questions about its implementation. Venue selection for the DIME process has always been a strategic focus for both parties and now poses even more questions based on the changes to the Application for DIME. Now that the DIME unit is exercising some control over the venue selection, it may change the focus of the strategy for the DIME in a different direction. Respondents may want to rely upon the fact that a DIME panel may not entirely be composed of physicians within one region, but instead, focus on the potential for obtaining a panel with more variety that could ultimately impact the case in different ways. Employers and carriers may want to focus the fight on a different aspect of the DIME such as cost. In light of the changes to Rule 11, it is important to discuss the DIME strategy with counsel and the client to ensure that all of the facts and potential options are being discussed to best forward the claim to resolution. Always remember that the Prehearing Unit retains jurisdiction to resolves issues pertaining to the DIME. Once a Motion is filed, the DIME is held in abeyance pursuant to Rule 11. If the parties are able to agree on the venue, it may be worthwhile to reduce the agreement to a stipulated Order and provide a copy of it to the DIME unit so that there is no question as to which physicians can be selected from a certain geographical region.

If you have any questions regarding the changes to the Rules or the updated statutes, feel free to contact any of the attorneys at Lee & Brown, LLC.

Working From Home and Workers’ Compensation

In 2019, Colorado earned the top spot for the highest percentage of employees Working From Homewho work from home, according to Flex.Jobs  https://www.flexjobs.com/blog/post/infographic-which-stateshave-most-full-time-telecommuters.  While telecommuting is not realistic for every company, many jobs have at least some component that employees can do flexibly even if a job requires an employee to be onsite for specific hours.  Perhaps the employee reconciles call logs or works on quarterly reports on a Sunday afternoon.  The question then arises, “What is an employer’s liability for injuries occurring at an employee’s home or when traveling between the home and work?”  A compensable injury is one which “arises out of” and “in the course of” the employment.   An injury “arises out of” of a work-related activity if it is “sufficiently interrelated to the conditions and the circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a strict benefit on the employer.” City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). For example, in Schwindt v. Red Roof Delivery Inc., W.C. No. 4-009-534 (September 14, 1992), the Claimant, a restaurant manager, was injured when she fell down a stairway in her home at approximately 4:30 a.m., sustaining significant injuries.  The Claimant had been working on schedules for the employer, and was authorized, but not required, to do so at home.  The Claimant was performing this work in her living room, but began to fall asleep, so she gathered her materials to go to an office adjoining her bedroom.  Just prior to approaching the stairway, the Claimant closed a door.  The resultant reduced lighting impeded the Claimant’s visibility. Claimant lost her step in the hallway and fell down the stairs.  The Claimant testified she “probably” would have taken a shower and returned to scheduling had the fall not occurred.  The ALJ concluded the injury was compensable.  He found the Claimant’s work demands permitted her to complete administrative work at home, and that, at the time of the fall, the Claimant “would have been asleep in bed” had she not been working on the schedules.  The Respondents made several arguments on appeal, including that the connection between the fall and the Claimant’s employment was too remote, and that the Claimant’s act of closing the door severed the causal connection.  The Panel rejected the Respondents’ arguments, holding there was a sufficient nexus between the conditions of employment and the injury.  The Panel reasoned, the claimant “need only have been acting in a manner consistent with, or incidental to, the employment” to establish compensability.

 

Similarly, in Bates v. Coors Brewing Co., W. C. No. 4-348-224, 1998 WL 872454, (Nov. 13, 1998), the Claimant worked as a plant manager for the employer. On May 14, 1997, the Claimant left the employer’s plant in her personal vehicle to travel home, where she was going review work-related material she was taking on a business trip the following day. On her way home, the Claimant was injured in a motor vehicle accident.  The ALJ found the claim compensable, holding the Claimant’s travel home on this occasion was in pursuit of the employer’s business and conferred a benefit to the employer beyond her own presence at work.  On appeal, Respondents contended that the facts of this case did not fall within the travel status exception because the Claimant was not required to work at home and was not required to bring her personal vehicle to work. The Panel rejected Respondents’ arguments, holding an injury does not have to be the result of a mandatory employment activity to be compensable. University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953);  Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment.  This includes discretionary or “optional” activities on the part of the employee which are devoid of any duty component.

 

The case Roe v. Alpine Plumbing & Heating, Inc., W.C. No. 3-766-435, 1987 WL59197, (July 20, 19987), had similar facts, but a contrary result.  In Roe, the Claimant who was employed by Respondent as a plumber, was injured in an automobile accident.  The Claimant testified that the accident occurred while he was “driving up to the job” near Boulder. As a result of a previous injury, the Claimant was performing light-duty work for the Respondent.   The Claimant’s duties included working on plans at his home. However, the ALJ found that the Claimant was “allowed to work at home for his own convenience” and that “the Claimant’s home was not an alternative job site.” Consequently, the ALJ concluded that the Claimant was not within the course and scope of his employment at the time of the accident.

 

Finally, in Sedgwick CMS v. Valcourt-Williams, in a 12-2 decision, the District Court of Appeals of Florida, reversed an ALJ’s decision awarding worker’s compensation  benefits to an at home worker.  During working hours on  April 27, 2016, Valcourt-Williams, a workers’ compensation claims adjuster, reached for a cup of coffee in her kitchen and tripped over one of her dogs, fell and sustained injuries to her knee, hip and shoulder.  She filed a worker’s compensation claim, which the employer denied, contending her injuries did not arise out of employment.  The ALJ held the Claimant’s injuries were compensable because the work from home arrangement meant the employer “imported the work environment into the claimant’s home”.  On appeal, the District Court held the Claimant’s non-employment life—her dog, her kitchen, reaching for her coffee cup—caused the accident, not her employment.  The court, however, said their decision would not “immunize” employers from workers’ compensation claims in work-at-home arrangements.  Two judges issued dissenting opinions.  One dissenter said it was “expected that employees who work from home will take periodic breaks and may suffer compensable injuries from falls from a variety of causes”.   The second dissenter argued that workplace injury from a neutral risk has been “undoubtedly compensable” and that the majority erred in their decision.  The judge found that tripping over the dog was “no different than if the claimant had slipped on a liquid substance on the floor” and was consistent with a decade of case law holding that a trip and fall in the workplace is compensable.

 

The trend to allow employees to work from home raises many wrinkles in the event of  injury, including applicability of the “dual purpose doctrine”, travel status, and obvious problems with proof.  In certain factual situations, the dual purpose doctrine has been applied to cover injuries sustained while the claimant is traveling between home and the job site. One such instance exists when the nature of the claimant’s employment is such that “it can genuinely and not fictitiously be said that the home has become part of the employment premises.” In those circumstances “travel between two parts of the employer’s premises is in the course of employment.” 1 Larson’s Workers’ Compensation Law, § 16.10[1]. Larson adds the following at § 16.10[2]:  When reliance is placed upon the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary, and not merely personally convenient, to work at home.

 

The reported cases  suggest compensability of injuries suffered by an employee permitted to work from home are highly fact specific.  If you have questions about the compensability of such an injury, or any injury, contact one of the attorneys at Lee & Brown.

 

Alligators, Burritos and Bears – Oh My!

Having litigated several “assault” cases, nothing ceases to amaze this author more than the vast number of unfortunate ways people find themselves in the most bizarre and unforeseeable situations. Courts across the United States adjudicating assault-based cases in the workers’ compensation context are faced with determining whether the events leading to the assault arose out of an injured workers’ employment or whether the event was purely personal in nature. Here are some of the more inexplicable events that could give rise to a claim — you decide whether these claims would be compensable.

 

In 2007, an individual was feeding a bear at the Great Bear Adventure in northern Montana. It was undisputed that the individual had smoked pot prior to entering the bear cage with food. The manager of the park had told the individual not to feed the bear as the food was being tapered due to hibernation. When the individual entered the enclosure, he was mauled by the bear.  Although the employer argued that the individual was outside the scope of the employment, the Montana appellate court found that the bear was “an equal opportunity mauler” who attacked regardless of the marijuana use. As noted by the decision, the use of drugs (which the court admonished at best) had no bearing on the actual animal attack.

 

More traumatically, in August 2018, police were called to a construction scene in Wisconsin. The police discovered that a co-worker allegedly attacked and killed another co-worker with a circular saw. The co-worker was arrested at the scene. A subsequent investigation documented that the co-worker assailant had told other crew members during the day of the attack that other crew members were teasing him about a one-night stand he had had the evening before.  The legal question, other than the criminal liability of the assailant, is whether the decedent’s estate/dependents would be entitled to workers’ compensation death benefits? Was the attack work related, or did it arise out of a direct personal dispute between the assailant and decedent? Based upon the facts of this case, you be the judge.

 

Although the case above could be on the border of compensability depending on the facts, a more clear-cut assault occurred in January 2018 in South Carolina. During that event, the manager of a fast food restaurant got into a heated verbal altercation with an employee over shift scheduling. When the manager told the employee to “stop being a crybaby,” the employee wrapped up the argument by throwing a hot, “loaded burrito” at the manager. According to the manager, melted cheese stuck onto the manager’s left side and leg. Apparently, the manager recovered from the hot cheese injuries, but could a mental impairment injury also be included in this type of event?

 

Finally, imagine yourself working as a fast food drive through employee. It’s a typical day of serving food and drinks, handing the items to customers through an open window. Now imagine serving a soft-drink, and, while the window is open, the customer throws a three-and-a-half-foot alligator through the window at you. In 2016, that is exactly what happened to a fast food employee in Florida. The customer was later apprehended and claimed that he threw the alligator into the restaurant as a funny prank. While it is unclear whether the employee sustained any physical injuries, the assault by semi-aquatic reptile exemplifies what a neutral force assault is in terms of workers’ compensation liability for injuries arising out of employment.

 

The above cases raise unique issues concerning assaults, whether by an animal, a co-employee, or a random person who just happened to pick up an alligator from the side of the road prior to getting lunch, that can be tricky and fact dependent.  When you need help untangling the facts and details surrounding a claim, please contact one of the attorneys at Lee & Brown.

“Wind” Will This Ever End?

As we recently celebrated the 4th of July with family and friends, we must not lose sight of the Founding Fathers and formation of the Constitution. Interestingly, John Hancock was the only one to sign on July 4, 1776, while the others signed at a later date. We are fortunate that the Founding Fathers drafted the Constitution to incorporate a judicial system that allows people the opportunity to be heard as that luxury does not exist in many other places in the world. Often, the higher courts will have to decide issues from the lower courts to interpret a statute, applicability of the law, admissibility of evidence, etc. The workers’ compensation laws are subject to the same scrutiny as any other law or statute.

 

The Workers’ Compensation Act and system was created to provide a quick and efficient resolution to injured workers and the ability through the administrative courts to avoid the long delays that could ensue in the trial courts. Ironically, workers’ compensation claims can be tied up in litigation much longer than the trial courts which was not the intent of the legislature. While the hope and intent are clear, due to the many nuances and different interpretation of the workers’ compensation laws, there will continue to be disputes that arise.

 

While different in each state, workers’ compensation medical benefits are subject to a fee schedule set by the legislature. By statute, a medical provider could not collect payment for medical expenses beyond those paid by the plaintiff’s workers’ compensation insurer. The intent (hopefully) is to have a level playing field and no disputes over what fee is to be charged to avoid any delay to the injured worker for medical care.

 

Plain and simple, the cost for a medical benefit under a workers’ compensation claim is subject to a set fee by the legislature regardless of what the provider may charge outside of the system for the same service. This also, for policy reasons, provides some relief to the carriers given the volume of workers’ compensation claims. They will not be burdened with extreme medical costs providing medical benefits to claimants as medical providers are limited to the amounts under the fee schedule.

 

With that said, 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.

 

The case was brought before the Court based on claimant/plaintiff’s appeal that the trial court erred in excluding evidence of the amounts “billed” by his medical providers and only admitted the amounts “paid” by the carrier for his medical care and treatment. The Court was to determine whether billed versus paid medical benefits were permitted in a third-party lawsuit.

The Court held:

  • The collateral source rule barred admissibility of the medical expenses paid by the workers’ compensation carrier.
  • The plaintiff could present evidence at trial of the higher i.e. “billed” medical expenses by the providers.

 

Briefly, claimant worked for United Airlines (“United”) and was struck by an employee of Delta Airlines (“Delta”) at Denver International Airport – both were driving similar luggage tug vehicles. Claimant’s injuries were in the course and scope of employment, therefore, admitted and his indemnity and medical benefits were paid by his employer pursuant to statute.

 

Claimant’s employer sought reimbursement and sued Delta and its at-fault driver. Claimant sued the same defendants to recover for his personal injuries related to his work injury. United’s claim against Delta was settled for $328,799.16 and the case was dismissed with prejudice leaving only claimant and Delta as parties. Delta admitted liability but disputed claimant’s claimed damages so the case went to trial. At the first trial, claimant was awarded $1.5 million but a new trial was granted due to misconduct by claimant’s attorney.

 

At the second trial (which interestingly was a bench trial), plaintiff was not allowed to provide evidence of the higher “billed” amounts from the providers for medical expenses but only the amounts actually “paid” by the employer. The plaintiff was awarded $259,176 in damages of which $194,426 was for economic damages. The court subsequently entered an order to set-off claimant’s economic damages by the amount defendant had paid to settle the workers’ compensation claim. Plaintiff argued this was not fair since his award for economic damages was reduced to zero.

 

The injured worker appealed. In its decision, the Court ruled that the collateral source rule applied to workers’ compensation benefits. The collateral source rule, or collateral source doctrine, is an American case law evidentiary rule that prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant. In Colorado, the first component requires a trial court to set off tort verdicts by the amount of certain collateral source payments received by the plaintiff unless the payments were made because of a contract entered into and paid for on the plaintiff’s behalf. § 13-21-111.6, C.R.S. 2018. The second component bars evidence of a plaintiff’s receipt or entitlement to benefits received from a collateral source, most often an insurance company, “because such evidence could lead the fact-finder to improperly reduce the plaintiff’s damages award on the grounds that the plaintiff already recovered his loss from the collateral source. Wal-Mart Stores, Inc. v. Crossgrove, 276 P.3d 562 (Colo. 2012).

 

The Court noted that “even though claimant did not personally pay premiums toward his workers’ compensation insurance, he gave consideration for the same in the form of his employment services.” Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo. 1992). The same holds true to the defendant, who did not contribute in any way to the premiums paid to him and, therefore, the benefits paid were wholly collateral to the defendant. Therefore, the collateral source rule applies, and the defendant may be responsible for plaintiff’s damages regardless of what was paid by the workers’ compensation carrier. “The Court rationalized this will prevent a wrongdoer from reaping the benefits of a contract to which he is not a party.” The National Law Review, Colorado Court of Appeals Permits Evidence of Billed Workers’ Compensation Benefits at Trial.

 

In further reasoning of its decision, the Court acknowledged the workers’ compensation statute provides that amounts billed in excess of the statutory fee schedule are “unlawful, void, and unforceable.” This statutory language effectively prevents the plaintiff, as a matter of law, from having any legal obligation to pay such billed amounts. The Court cited a decision from the Colorado Supreme Court that stated, “the fact a bill is uncollectable does not render it entirely irrelevant to the reasonable value of the medical services provided.” Volunteers of America v. Gardenswartz, 242 P.3d 1080 (Colo. 2010).

 

There was a dissenting opinion issued by the Court which identifies the effect this ruling will have for claims in the future. “To allow injured workers to pursue expenses against the defendant in excess of what workers’ compensation already paid for his/her injuries contravenes the intent and purpose of the Workers’ Compensation Act. In part, this now affords the injured worker a windfall which the Act was not designed to do.” The dissenting opinion also makes note that the court is in the position of enforcing unenforceable contracts since the billed amounts are void and unenforceable based on the fee schedule specific to workers’ compensation claims.

 

The opinion of the Court has certainly created a stir as it now essentially creates a windfall in favor of the injured worker and settlement with workers’ compensation carriers before trial essentially meaningless.

 

We will wait to see if the Court’s decision is brought before the Colorado Supreme Court for further review and determination of this now complicated, and to be highly debated, topic.

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 Colorado’s prescribing and dispensing Boards: 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.  On May 21, 2018, then Governor, John Hickenlooper, signed Senate Bill 18-22, Clinical Practice for Opioid Prescribing.  The bill, which limits the number of opioid pills a healthcare provider can prescribe, went into effect immediately upon the Governor’s signature.  Under the new law, a prescriber must limit a patient’s initial prescription of an opioid to a seven-day supply, if the prescriber has not written an opioid prescription for the patient in the preceding twelve months.   All six dispensing Boards recommend a prescription of less than 50 MME per day and utilization of long-acting or extended relief formulations. These limits do not apply in certain discrete situations, including, if, in the judgment of the prescriber, the patient:

 

  • Has chronic pain that typically lasts longer than 90 days past the point of healing, as determined by the prescriber;
  • Has been diagnosed with cancer and is experiencing cancer-related pain;
  • Is experiencing post-surgical pain, expected to last longer than fourteen days due to the nature of the procedure; or
  • Is undergoing palliative care or hospice care designed to improve quality of life.

 

After the first prescription, the prescriber may exercise discretion in issuing a second-fill for a seven-day supply. In cases of a second-fill, the prescriber is required to check the Prescription Drug Monitoring Program (PDMP) database before prescribing additional opioids for the same  patient.  Failure to check the PDMP constitutes unprofessional conduct if the prescriber repeatedly fails to comply with this PDMP requirement.  The requirement to check the PDMP on a second-fill does not apply in situations exempting compliance with the seven-day first-fill, with two additional exemptions:

 

  • The patient is receiving the opioid in a hospital, skilled nursing, residential, or correctional facility; or
  • Is receiving treatment during a natural disaster or where mass casualties have taken place.

 

After the second opioid prescription, the law has no additional restrictions on the healthcare provider’s prescribing practices.

 

In keeping with SB 18-22, the Colorado Division of Workers’ Compensation recently released its amendments to Rule 18, W.C.R.P., the Medical Fee Schedule. The updated fee schedule took effect January 1, 2019.  While several important changes were made in the amended fee schedule rule for 2019, including inclusion of the most current CPT code terminology, HCPCS codes, Colorado Z-codes (state-specific billing codes) and Medicare’s most current National Physician Fee Schedule Relative Value file, with updated conversion factors, the amended rule also incorporates the revised physician prescription/dispensing restrictions on opioids.   The amended rule language provides:

 

Opioids classified as Schedule II or Schedule III controlled substances that are prescribed for treatment lasting longer than seven days shall be provided by a pharmacy.

 

The changes to Rule 18, W.C.R.P. suggest the Division of Workers’ Compensation intends to move forward and integrate any necessary modifications to drive full compliance with the new restrictions on physician dispensing of Schedule II and III opioids. Physicians prescribing chronic opioids through the Workers’ Compensation system are also expected to comply with Colorado’s Medical Treatment Guidelines, Rule 17, Exhibit 9, addressing chronic pain disorder.  While the Guidelines do not have the force of law, they are intended to assist practitioners in the safe prescribing and dispensing of opioids.

 

If  you have any questions about the Medical Treatment Guidelines, changes to the Medical Fee Schedule, or any other topics, please contact any of the attorneys at Lee & Brown.

 

The Ongoing Dilemma of Intermittent FMLA Leave

Intermittent FMLA leave is a giant thorn in the side of humanFMLA Leave 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.

 

Eligibility Is Not Automatic

Companies can successfully dispute employee claims to FMLA eligibility. Consider this real-life example: 

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time. After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired. She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her lateness, she claimed, so each instance should have counted as a block of FMLA leave. Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition. The only time it affected her was when it was time to go to work. 

The Court denied her claim for FMLA eligibility and indicated that intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.  That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

 

Designating Leave Retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively. For example, an employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia. Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.” The key here is that the company acted quickly – within two days of being notified of the qualifying leave. The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation. It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

 

Using Employees’ Paid Time Off

Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO). Instead, companies can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

 

The Transfer Position

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation. The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same. And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

There is one large restriction – the move can’t be made if the transfer “adversely affects” the individual. An example would be if if the new position would lengthen or increase the cost of the employee’s commute.  This would adversely affect the employee. Instead, such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

 

Cooperation

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations. Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

 

The Firing Question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights. Obviously, workers can’t be fired for taking leave. But employers can layoff, discipline and terminate those employees who violate company policies or perform poorly. When an employee on FMLA leave is terminated, the Department of Labor decrees that the burdens on the employer to prove the worker would have been laid off, disciplined or terminated regardless of the leave request or usage.

 

Reductions in Force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave. However, again companies should be prepared not only to prove the business necessity of the move, but to show an objective, nondiscriminatory plan for choosing which employees would be laid off.

 

Misconduct or Poor Performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave. However, companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence. As such, courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave? This is not an easy answer to explain before a jury if liability is threatened at trial.  The good news is that a number of courts have upheld employers’ rights to fire employees on FMLA leave, even when the employee’s problems were first discovered when the employee went off the job. Nevertheless, companies should move cautiously if they are to terminate an employee currently out on leave due to misconduct or poor performance existing prior to the leave, but discovered after the leave begins.

 

Every case is different and requires different strategies and decisions because of the intricacies of the FMLA.  Hence, we highly recommend consulting in-house counsel, or one of the attorneys at Lee & Brown, to assist in making the appropriate decisions.

New Rule 11 – How’s It Going?

We’re now going on almost three months since the new Rule 11 took effect with the updated DIME fees and procedures.  Time flies, doesn’t it?   There has been some litigation that has ensued as a result of the recent changes, but overall the changes have been well received.  This is likely because most people prepared adequately for the changes that were taking effect well before the start of the New Year.

 

The litigation that has ensued has been primarily regarding the “regions” listed in the checklist contained on the Application for DIME and the body parts involved in the claim.   Since the “regions” have caused some confusion, the fees have also needed clarification.   Some of the litigation revolved around the specific body parts to a claim and Rule 11’s breakdown of cost.   The checklist looks as follows:

 

2019 DIME Application

 

Above each set of body parts, the boxes are listed as regions.  Pursuant to Rule 11, “less than three regions” is a fee of $1,000.   “Three or more regions” is a fee of $1,400.   It is recommended to double-check the Applications for DIME that are received to see if compliance with the Rule is met.   Any discrepancies and/or arguments concerning interpretation of the Rule can be handled by the Prehearing Administrative Law Judges.   The Judges have done an outstanding job of interpreting the Rule and correcting many issues for the DIME unit.  Also note, that some of the disputes have resulted in body parts that either were or were not related to the claim.   Such disputes have involved related body parts that should be part of the DIME, however claimants have tried to keep them out to lower the overall costs of the DIME.   Other disputes have arisen between the terms “and/or” as used in the Rule.  The arguments pertaining to the semantics have been resolved mostly using the word “or” to imply that either one or the other conditions must be met to trigger a particular fee.

 

 

In general, the DIME process seems to be running smoothly and interpretation of the new Rules seems to be pretty straightforward.   Like any Rule change, it will take some time to get used to and iron out the wrinkles.  It is important to double-check the new Rule and make sure compliance is met to avoid missing any particular arguments that will pose any sort of leverage in a claim.   Recall, that the new Rule only applies to Notices and Proposals filed on or after January 1, 2019.   Any Notice and Proposal filed before that date adheres to the old Rule 11.

 

If you have any questions regarding the changes to the Rules or the updated statutes, feel free to contact any of the attorneys at Lee & Brown, LLC.

 

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.

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.