New OSHA Guidance for Implementing a COVID-19 Workplace Prevention Program

The Occupational Safety and Health Administration (“OSHA”) has finally published updated guidance on implementing safe workplaces during the COVID-19 pandemic.  On January 29, 2021, the guidance titled  “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was published. (U.S. Dept. of Labor – OSHA) “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

It is important to note that this remains only general guidance from OSHA.  The guidelines do not create a standard or regulations that legally obligate employers to comply.  The below guidelines have been issued to assist employers in either continuing to provide or transitioning into a safe COVID-19 workplace.  OSHA has indicated that these guidelines can be used to mitigate the spread of COVID-19 and implement proper protection procedures.  The Guidance provides that the following measures should be taken:

  1. Create a workplace coordinator responsible for COVID-19 issues on the employer’s behalf.
  2. Identify where and how workers might be exposed to COVID-19 at work, including a thorough hazard assessment identifying potential workplace hazards related to COVID-19.
  3. Identify a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principals of the hierarchy of controls: elimination/substitution, engineering controls, administrative controls and safe work practices.
  4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
  5. Establishment of a system for communicating effectively with employees in a language they understand.
  6. Educating and training workers on the employer’s COVID-19 policies and procedures, which includes having accessible formats and in a language they understand.
  7. Instructing workers who are infected or potentially infected to stay home and isolate or quarantine.
  8. Minimize the negative impact of quarantine and isolation on workers.
  9. Non-discriminatory isolation of workers who show symptoms at work.
  10. If not already, the indoctrination of enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
  11. Provision guidance on screening and testing.
  12. Recording and reporting COVID-19 infections and deaths to OSHA.
  13. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Not distinguishing between workers who are vaccinated and those who are not.

If you have any questions about employment or workers’ compensation issues, please contact one of the attorneys at Lee & Brown, LLC.

2020 Workers’ Compensation Rule Updates

The Division of Workers’ Compensation seems to be on a constant mission to tweak various workers’ compensation rules of procedure.  Some of these changes are directed at situations that clearly need attention, while others are less clear.  This year is no different.  There have been several rule changes from the Division of Workers’ Compensation that take effect at the first of the year or have already taken effect.  I will try to break down the rule changes as briefly and clearly as I can.

 

Rule 2: Workers’ Compensation Insurance Premium and Payroll Surcharge EFFECTIVE 7/1/20

As you may or may not be aware, an approved rate reduction in “loss costs” occurred this year.  Loss costs are the average cost of lost wages and medical payments paid to or on behalf of the injured worker.  This is a component of an employer’s premium calculation.  Rule 2 changes do not have anything to do with claim handling and, therefore, do not require coverage.

 

Rule 16: Utilization Standards EFFECTIVE 1/1/21

16-2 Standard Terminology for Rules 16, 17 and 18

Believe it or not some of the terminology throughout the rules did not match.  Here are some housecleaning efforts.

16-2(E): You may not have known this, but a “certified medical interpreter” had a specific definition.  They were individuals with certification from the Certification Commission for Healthcare Interpreters or the National Board of Certification for Medical interpreters.  16-2E struck the definition of a Certified Medical Interpreters.  If you recall, several years ago there were concerns raised that medical conditions referenced by the injured worker were not making it into reports based on language barriers.  This requirement had the unintended consequence of making it hard to find a certified medical interpreter, hence the change.

16-2G: There has been inconsistency throughout the rules in that some rules used “business days” for time measurement while others simply used “days.”   This particular change clarifies that “day” is a calendar day unless otherwise noted.  So now day means day unless the rules says business day, or some other type of day.  This really does clarify things.

16-2H:  If I used the term designated provider list in the workers’ compensation setting what you think it would mean?  If you struggled for an answer other than the doctor list the employer provides to an injured worker join the club.  Well never fear, this change clarifies that “designated provider list” means the physician list as required under Section 8-43-404(5)(A)(1), C.R.S.

16-2N & Q:  This rule change better defines a non-physician provider to include a surgical assistant.  It also defines a “Physician Provider” as someone who is board licensed in their area of practice.  For instance, a physician provider would need to be licensed by the Colorado Medical Board, a dental provider would have to be licensed by the Colorado Dental Board, etc.  It is recommended to simply review this rule if the question is encountered.

16-3A:  This requires that any provider not listed in 16-2 as a “Physician Provider” requires prior authorization to provide services for a work injury.

16-3B, C & D:  This now requires that all providers have a referral from a physician provider managing the claim (or NP/PA working under that physician provider).  It used to be that only non-physician providers had to have a referral from a physician provider, but now it is everybody.

16-6:  This rule deals with a provider’s notification to treat an injured worker.  It basically sets forth the way in which a provider advises a payer of the treatment to get paid for that treatment.  This year’s change requires the payer’s response time to a notification to treat.  It goes from 5 business days to 7 calendar days.  Although this makes the rule more uniform, in certain circumstances, such as determining a holiday that would otherwise not be included as a business day, this could make it difficult to respond to such a request.

16-7:  Prior Authorization issues are always difficult.  This section of Rule 16 changes the payer’s response time from 7 business days to 10 calendar days.  Once again, while making the rule more uniform in certain circumstances, such as determining a holiday that would otherwise not be included as a business day, this could make it difficult to respond to such a request.

16-7-1:  Deals with prior authorization denials – when a denial is made based upon a medical report that predates the request. Under this change, an IME or report from an ATP used to deny a prior authorization request based solely on relatedness to the injury cannot be older than one year from the date of the prior authorization request.  Further, such a report can only be used if there is not an admission of liability filed admitting the relatedness of the requested treatment, or a final order has not been entered finding that the specific medical condition is related to the admitted injury.  Otherwise, the IME report or ATP opinion must be after the prior authorization request.  The thinking behind this rule change is that a stale report cannot be used to deny prior authorization request.  One wonders what happens when the request is for the same treatment over and over.  Can the requests get stale too?

16-7-2:  This section deals with appeals of a prior authorization denial.  Now the requesting party has 10 days from the date of the denial to appeal the denial.  By the same token the payer has 10 days from the date of the appeal to issue a final decision.

16-9A & B: This section deals with required medical record documentation to get paid.  This rule was modified so that a claimant’s functional response to treatment no longer needs to be documented.  There is also no longer a requirement that the documentation reference specifics for a treatment plan.

16-10A:  This section deals with payment requirements for medical bills.  There was a suggested change that would have no longer required bills be submitted by a provider but could be submitted by anybody.  Fortunately, over these suggested changes that would have allowed submission by the attorney or party, the rule remains that the submission must be made by the provider.

16-10-2A:  This section deals with denying payment of billed treatment for non-medical reasons.  This change to this section now allows for denial for non-medical reasons for improper use of a CPT code.

16-10-2C:  When denial for non-medical reasons the payer’s denial does not have to be made within 30 days of receipt of the bill.

16-10-4: this section deals with appealing billed treatment that has been denied.  The billing party has 60 days from the date of the written notice to request reconsideration to appeal.  The appeal now has to have the specific code being appealed.

 

Rule 18 Medical Fee Schedule EFFECTIVE 1/1/21

18-4(I): Telemedicine:  This provides guidelines and requirements for telemedicine.  Telemedicine must comply with requirements found under the Colorado Medical Practices Act and the Colorado Mental Medical Board and the Colorado Board of Psychologist Examiners.  A physician-patient relationship must be established for telemedicine to occur.  The same documentation required of an in-person evaluation is required of telemedicine.

18-9D: App-Based Interventions:  This new subsection allows the provider to write an order for an app-based intervention for the injured worker.  For instance, as part of biofeedback perhaps the apps Hello Mind or Mindspring could be prescribed.  For more physiologic app, perhaps some sort of activity tracker would be prescribed.  Such an order is to have a designated time frame for use and must be payable by invoice and billed directly to the payer the maximum allowable charges $25 a month and the maximum duration is three months per order. Anything over this amount requires prior authorization.

 

If you have any questions about the updated Rules, or any employment or workers’ compensation related question, please contact Lee & Brown, LLC.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update Nov 2020

Lee and Brown Partners
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 in
Colorado, Arizona and Utah.
Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In The News

Lee & Brown is happy to announce the opening of our Arizona office located at 4742 N. 24th St., Suite 300, in Phoenix.  Our University of Colorado Law School Graduate, Michael Salazar, who has been clerking on our Arizona cases over the past year has relocated back to his home state of Arizona and is our local presence in Phoenix.  Mr. Salazar will be working closely with our Colorado-based attorneys licensed in Arizona – Joseph Gren, Emily Miller, Timothy Murphy and Jens Omdal.  Together, we are ready to diligently represent you, our clients, in the state of Arizona, just as you have come to depend on us in the state of Colorado.  Through the years, our approach in the practice of law has been quite simple:  provide  aggressive representation and protection of clients’ interests, with a goal of bringing all cases to resolution in the most cost-effective and expeditious manner possible.  We are happy to be able to expand this same philosophy to our employers and insurers who need us in the state of Arizona.


A Day in the Life of the Partners during COVID

Quarantining during a pandemic can change things.  We thought we would check in with our Lee & Brown Partners to see how each of them are handling their new reality …

 
 

Katherine Lee – Life during a pandemic for anyone presents challenges.  Life during a pandemic as a business owner and parent of two graduating high school seniors in their transition to  college freshmen has provided our family with quite the roller coaster ride … complete with all the twists, turns and inverted corkscrews that may leave even the most resilient of us begging to get off the ride.  Who would’ve guessed 6 months ago the state of our world as it is today?  Not many … perhaps not any.  Yet, here we are.

 

Professionally, our Firm and personnel have successfully transitioned from a very social and personally interactive work environment to a remote office space through which we had to, willing or not, learn new work processes, navigate through a multitude of various video conferencing platforms and find new ways to stay connected.  We couldn’t be prouder of our attorneys and our staff for their commitment and fortitude in meeting the challenge so unexpectedly placed before them.  Our ability to provide the best quality legal representation to our clients has not been even marginally compromised at any time during this unprecedented time of uncertainty.  And most importantly, we have been able to maintain our standard of quality without compromising the physical and mental health and wellness of our employees and their families.

 

Our family story, like many others, has been radically different than was planned prior to this pandemic.  Our sons, Dane and Seth, both graduated from high school this spring, turned 18 this summer and are off to college this fall – all without any of the pomp and circumstance or celebratory traditions that are supposed to appropriately mark their hard-earned accomplishments and milestones.  There has been disappointment.  There has been heartache.  There has even been some anger, bitterness, frustration, and tears – and not just from the adolescents.  Alternatively, there has also been golfing, baking/cooking, hiking numerous fourteeners, golfing, making music, spending time with close friends and family, puzzles, remote learning, golfing, endless (and sometimes it feels endless) passing of the time just being together – without the chaos.  It is refreshing to actually have the time to feel and be present in the moments instead of passing and rushing through them to get on to the next thing.  Hopefully, when we have all moved on to the other side of life with COVID, the passing of time and a return to some form of the lifestyle to which we all knew as “normal”, we will find our memories of the present, although void of the grand celebrations, the travel, vacations and parties, are happy ones.  In the end, I’ve decided that enjoying the ride – no matter the challenges that come along with it – is the WAY better alternative.

 
 

Joshua BrownMy family’s quarantine can be summarized in four words:  “a collection of moments.”  Three boys create many moments that are hard to summarize.  Sure, there are holes in the wall, and a box of 1000 Gold “Phish” crackers showering the kitchen floor.  Let’s not forget the tantrums at the end of screen time.  Wow, cute kids no more!  And yes, broken toys and banisters, stains on the hardwood floors and challenges to our sanity.  But the best is that it brought our family together for new board games, puzzles, morning golf ball hunting adventures and food.  We’ve really got it Simple because we’ve got a band.  I love my band! 

 
 

Karen Gail Treece –  I am loving being at home with my husband, Reno, and our boys, James and Jon, who have been home from college since spring break.  Jon has had very limited leave from the US Naval Academy, so it has been a gift to have them both at home.  Jon has spent his summer at the dining room table studying Calculus III and Military Ethics online.  James has been carefree and built his own computer.  Reno makes lunch for everyone, so we have two meals a day together as a family.  I have been stuffed into a very small corner of Reno’s office, but the commute is stress-free.  It has been amazing to try cases on Google Meets, not so fun to try an 8-hour, 6 witness case on the phone, however.  I’ve come a long way since starting my practice using a typewriter and carbon paper.  I guess you can teach an old dog new tricks!

 
 

Joseph Gren – During this time of isolation, I have been taking advantage of running and competing in virtual marathon and half marathon races (the next one being the full San Francisco marathon which was cancelled earlier this year), mountain biking in the Colorado hills, frequently cycling nowhere on the Peloton, reinventing gourmet recipes way too late at night, and expanding my knowledge of old world wines; specifically, of the Rhone Valley in France and of eastern Spain.  I continue my quest to paddle board every lake in the Front Range and have avoided getting a sunburn so far even with my bad habit of not applying enough sunscreen, which I would be doing anyway despite the global pandemic.  Quarantine has also provided an opportunity for creative vacation planning.  In lieu of cancelled trips to Thailand, Costa Rica, and Ireland, we instead camped on remote beaches in the Southeast, which greatly improved my ukulele skills, as well as traveling to interesting wineries across the county in an effort to support their businesses.  In my free time, I listen to others’ opinions on the new Netflix and Amazon shows, as well as hearing from my secretary about the joys of reconciling less vigorous travel expense reports!

 
 

John AbrahamI’ve been working from home and spending time with my family.  Early on, remote learning was very challenging.  We are glad summer came quicker than expected.  There has been a lot of family time spent baking, playing board games and re-visiting old video games from the past.  There have also been many lemonade stands, water balloon fights and a new puppy, Gumbo, to keep everyone occupied during quarantine.  Gumbo keeps us very busy, but the time together and coming up with creative ways to have fun as been nothing short of memorable and special.  I have enjoyed spending lots of time bonding and trading war stories with many adjusters and employers through weekly Zoom conference calls and phone calls through this COVID experience. 

 
 

Fran McCracken – My COVID experience has actually been quite educational.  I’ve learned a lot about toilet paper, face masks and foster dogs.  You might be surprised to learn that when ordering toilet paper from China, it takes as long as twelve weeks to arrive.  When it does show up, it’s in party colors (think lime green, shocking orange and black).  There is also no cardboard place holder.  A case of toilet paper, twelve two-ply rolls, is compressed to the size of a 6-pack of Coke.  Who knew?  As far as face masks – while necessary, I am not a big fan.  However, from now on, I am always going to wear a face mask when going to the grocery store.  I want to be disguised when buying obscene amounts of junk food.  In “stay-at-home” mode, I also decided it would be a great time to foster a dog.  Thirteen dog beds, two comforters, several pillows, a leather couch and one cell phone later, I am pretty sure I know the reason this guy was surrendered to the shelter.  The happy ending is he was adopted to a wonderful family that adores him.  Despite his path of utter destruction, I miss the nut job.  Lesson learned that things are just things.  What matters most now, and always, is that we show kindness, love and support to each other.  We are all struggling to deal with this, in one way or another.  And while our experiences differ, we truly are all in this together.

 
 

 


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.  Continue reading the full article.

 
 

Cases You Should Know

Won’t You Be MMI Baby Tonight?: In Destination Maternity v. Burren, 463 P.3d 266 (Colo. 2020),  Claimant sought review of an ALJ’s determination of the date she reached MMI, despite there being no finding of MMI by her ATP or the DIME physician. The ICAO upheld the ALJ’s Order and Claimant petitioned for review. The Colorado Court of Appeals set aside the ALJ’s Order and remanded. The employer and its insurer petitioned for certiorari review to the Colorado Supreme Court, which was granted, and the Supreme Court held that once an ALJ concludes that an employer or an employer’s insurer has overcome a DIME doctor’s MMI opinion, the ALJ may determine the claimant’s MMI status and permanent impairment rating as questions of fact.

 

Moral of the story:  If the DIME is overcome, the ALJ may determine MMI and permanent impairment rating as a question of fact.

 
 

Risky Business – Neutral Risk or Special Hazard?: In Richardson v. Gronedyke Transport, W.C. No. 5-109-865 (May 8, 2020), Respondents sought review of the ALJ’s Order which determined, among other issues, that the claim was compensable. Respondents challenged the ALJ’s finding that Claimant’s injury (which occurred when Claimant reportedly mis-stepped off a curb) sufficiently established the causal connection required by the “arising out of” component of §8-41-301(1), C.R.S. Instead, Respondents argued the injury was idiopathic in nature due to a preexisting condition and that the “special hazard” doctrine therefore applied. Under this doctrine, employees must not only demonstrate that there were specific connections to employment in cases not involving “neutral risks,” but also that he or she was exposed to an additional “special hazard” of employment. The ICAO Panel held that the special hazard doctrine only applied to cases involving an idiopathic condition and that the existing disease of an employee does not disqualify a claim if the employment “aggravates, accelerates, or combines” with the disease to produce the injury. The Panel concluded the ALJ did not err in determining that Claimant’s injury was not idiopathic, and that the special hazard analysis was inapplicable.

 

Moral of the story: If an employee’s injury/disability was not idiopathic, the “special hazard” doctrine cannot apply because a claimant may still seek benefits if his/her employment compounded or exacerbated a preexisting condition.

 
 

Health is Wealth: AWW and Health Insurance: In Varela v. Umbrella Roofing, W.C. No. 5-090-272 (May 8, 2020), Claimant sought review of an ALJ’s Order that denied his request to increase his AWW by the cost of health insurance premiums paid by Claimant and his employer. Claimant opted out of the health insurance coverage offered by the employer when he could no longer afford to pay his portion of the premiums while on TTD benefits. Claimant argued that his AWW should be increased by the cost of the contributions to his health insurance made by the employer and Claimant.

 

The ALJ relied upon Plute v. Home Depot, which held that that the cost of continuing health insurance benefits is not included in the AWW if a claimant has not been terminated. In this case, Claimant continued to be eligible for health insurance because he was not terminated by the employer. Additionally, §8-40-201(19)(b), C.R.S., excludes the cost of health insurance from the AWW calculation if the employer continues to pay its portion of the health insurance premium after the injury. The ICAO affirmed the ALJ’s Order, holding Claimant failed to prove an entitlement to an increase in AWW. This case stands to uphold many years of preceding cases, all of which conclude that health insurance costs are not factored into the AWW calculation so long as a claimant is still employed, and can continue to engage in the employer’s group health plan.

 

Moral of the story: The cost of continuing health insurance is not added to the AWW calculation if the claimant remains employed and the health insurance continues to be available through the employer.

 
 

To Be or Not To Be… The Story of an Independent Contractor: In Holsinger Drywall Inc. v. ICAO, 19CA1013 (Colo. App. 2020), the Court of Appeals remanded the decision of the ALJ to apply Pella Windows & Doors, Inc v. ICAO, 2020 COA9. Claimant was injured while installing drywall for employer and sought workers’ compensation benefits. The ALJ determined that because Claimant was an independent contractor, he was not entitled to benefits. Upon appeal, the ICAO set aside the ALJ’s  Order and decided that the claim was compensable.

 

The ICAO focused on three questions based on ICAO v. Softrock Geological Services, Inc., 2014 CO 30. First, did the employer use Claimant as a member of its work force similar to an individual employee? Second, did Claimant work the number of hours for the employer characteristic of a full-time job? Third, did Claimant ever look for work from another employer? The first two questions were answered in the affirmative, and the last question was answered in the negative. The ICAO found that the answers to these questions suggest that Claimant was not an independent contractor. In Pella Windows & Doors, the Panel held that the factors articulated in the Softrock case, apply to workers’ compensation cases. The Appellate Court concluded that the ICAO did not err in applying the Softrock factors and analysis to the issue of whether Claimant was an independent contractor. The case was remanded by the Panel to the ALJ for additional findings of fact consistent with Pella Windows. A worker status as an independent contractor is a factual determination for the ALJ.

 

Moral of the story: The decision in Pella Windows effectively applies Softrock to workers’ compensation cases expanding the analysis for determining whether a worker is an employee or an independent contractor beyond the factors enumerated in §8-70-115(1)(c), C.R.S.  The determination is a question of fact for the ALJ.

 
 

Weakened Condition and Subsequent Injury Cause and Effect: In City of Colorado Springs v. ICAO, (nsfp), the City of Colorado Springs sought review of an Order from the ICAO upholding an award of benefits to Claimant. An ALJ determined that Claimant’s spinal infection and resulting paralysis were related to his work injury and compensable. The appellate court affirmed, finding that substantial evidence existed to support the ALJ’s determination. Claimant initially sustained a muscle and tendon strain of the thorax while carrying equipment for work. Claimant required hospitalization for severe back pain and lower extremity swelling, which resulted in an infection of the disc in between the vertebrae and paraplegia in his lower extremities. The City argued that the infection and paraplegia were caused by an intervening event and were not compensable. The ALJ rejected this argument and awarded Claimant medical and TTD benefits. The Court of Appeals highlighted the chain of causation analysis, whereby symptoms that develop later may also be compensable. This analysis is reserved for cases in which the industrial injury leaves the body in a weakened condition, which plays a causative role in the subsequent injury. The Court relied upon Jarosinski v. ICAO, which supports that it is not necessary for the work conditions to have directly caused Claimant’s infection if Claimant’s weakened condition was a contributing cause of the infection.

 

Moral of the story: A subsequent injury or symptom may be compensable if a claimant’s initial injury leaves he/she in a weakened condition; thus, contributing to the subsequent symptom or condition.

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.

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

Lee and Brown Partners
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

It is with great pride that we announce the Attorneys of Lee & Brown, LLC, who have been selected by their peers for inclusion in The Best Lawyers in America 2020® in the field of Workers’ Compensation Law – Employers.


 

   Noteworthy Cases – Colorado

In Metcalf v. Caterpillar Incorporated Co., Of Counsel Sheila Toborg and Of Counsel William Sterck successfully defended  against Claimant’s claim of compensability. Claimant argued that she sustained a compensable injury and that she was entitled to medical care, temporary total disability benefits, and temporary partial disability benefits. During hearing, Ms. Toborg argued, and presented evidence, that the Claimant did not establish she sustained an injury in the course and scope of her employment and that the Claimant’s condition was not an occupational disease, but rather the result of trauma. Mr. Sterck further argued, in Respondents’ Position Statement, that Claimant had no basis for her claim in either law or in fact.  Due to the combined efforts of Ms. Toborg and Mr. Sterck, the ALJ found that Claimant failed to meet her burden of proving her claim compensable and the claim was dismissed.

 
Noteworthy Cases – Arizona

Before The Industrial Commission of Arizona, Associate Daniel Mowrey successfully defended Claimant’s Appeal in Szach v. SW Ambulance, ICA No. 20160-260291.  Claimant protested the closure of his claim and sought continuing medical benefits. Claimant also sought to link upper body injury and subsequent surgery to the admitted claim.  The ALJ relied upon testimony from Respondents’ medical expert, who opined that the upper body injury and subsequent surgery was not related to the admitted knee injury.  The ALJ denied and dismissed the claim. The Claimant appealed. Upon appeal, the Panel found the evidence supported the ALJ’s findings and affirmed.

Also before The Industrial Commission of Arizona, Associate Daniel Mowrey successfully defended against Claimant’s full contest claim in Selby v. Cornet Limited DBA Medstar, ICA No. 20180-70036.  Claimant alleged a traumatic hernia as a result of transferring a patient at work.  Mr. Mowrey elicited testimony from Claimant that he could not pinpoint the specific time or act which directly caused the hernia.  Claimant further admitted that he did not feel pain until 4:00 a.m. the next morning.  Mr. Mowrey argued that the testimony did not meet the requirements of a compensable hernia under A.R.S. Section 23-1043. The ALJ found the testimony and corresponding medical records did not meet the standard outlined in A.R.S. Section 23-1043 to establish an industrial hernia.  The ALJ denied and dismissed the claim.

 


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. Continue reading the article

 


Cases You Should Know

Don’t FAL to Take Notice: In Dickens v. Wagner Equipment, No. 18CA1806 (June 20, 2019), Claimant sought review of a final Order by ICAO affirming the decision of an ALJ denying his Petition to Reopen and dismissing his claim for additional benefits. Claimant had sustained an admitted, compensable injury to his right knee in 2006 while working for Respondents. He underwent extensive authorized medical treatment and reached MMI in 2010. Because Claimant continued to experience pain, the claim was voluntarily reopened by Respondents. Claimant reached MMI a second time in August 2013 and Respondents filed a FAL based on the ATP finding Claimant at MMI. It was undisputed that neither Claimant, nor his Counsel, were properly served the 2013 FAL. Claimant’s Counsel eventually obtained a copy of the FAL directly from the Division on April 28, 2014. On May 22, 2014, within 30 days of receiving the FAL from the DOWC, Claimant filed an Objection to the FAL, but did not file an Application for Hearing at that time, as required by Section 8-43-203(2)(b)(II)(A), C.R.S. 2018. Instead, more than 30 days later, on June 23, 2014, Claimant filed an Application for Hearing on the sole issue of, “whether Respondent’s FAL was properly served, and if so, when and based upon such whether Claimant’s Objection was timely.” The matter was heard before an ALJ, who held that the claim had not closed because Claimant did not receive proper notice. Claimant filed another Application for Hearing on August 22, 2017, endorsing new issues not previously endorsed. Respondents argued that Claimant’s claim was closed by operation of law because Claimant failed to file within 30 days of receiving the FAL. The ALJ agreed and held Claimant’s claim automatically closed per statutory rules. Claimant appealed and the Colorado Court of Appeals held that the claim closed in 2014 when Claimant’s Counsel received actual notice of the FAL by obtaining a copy from the Division.  Because Claimant failed to file an Application for Hearing challenging the issues raised in the FAL within 30 days of receiving it, the claim closed.

Moral of the Story: The 30-day statutory time-frame for Claimant to file an Application for Hearing in connection with an objection to the FAL begins to run at the time of notice of the FAL. Even if initially improperly served, the time-frame begins when Claimant receives actual notice, or receipt of notice, of the FAL.
 

DIME flies when you are having fun: In Suomie v. Spectrum Retirement Communities, W.C. 5-050-347 (June 14, 2019), Claimant sought review of an Order that denied Claimant the statutory right to request a DIME.  Respondents filed a medica-only FAL in July 2017.  Because Claimant had lost no time as a result of the injury and received no impairment rating, no temporary benefits or PPD benefits were admitted on the FAL. Claimant objected to the FAL and sought a DIME. Respondents filed a Motion to Strike the DIME Application based on the finding of Loofburrow 320 P.3d 327 (Colo. 2014). The ALJ agreed with Respondents and struck the DIME Application, noting it was not ripe. Claimant appealed. The Panel disagreed with the ALJ’s finding that Claimant did not have a statutory right to a DIME. The Panel noted that the ALJ did not follow the proper legal standard for denial of a DIME as noted in Martinez v. Energy Savings Crew, LLC, W.C. No. 5-055-251 (May 31, 2019). The Panel did not follow the reasoning noted in Loofburrow because it involved a claim where no FAL was filed. The Panel held that a medical-only FAL has the same legal effectiveness as any other FAL and was sufficient to trigger the right to challenge an ATP’s decision through a DIME.

Moral of the Story: Filing any FAL triggers the statutory time requirements to request a DIME.  Even when a medical-only FAL has been filed, the claimant has a statutory right to a DIME.
 

The Penalty Box: In Conger v. Johnson Controls W.C. 4-981-806 (July 1, 2019), Respondents sought review of an ALJ’s Order requiring Respondents to pay penalties in the amount of $22,800. Respondents failed to timely authorize medical treatment, as Ordered by a prior ALJ, and thus were penalized for violation of said Order. The Panel, citing Supreme Court precedent holding that the correct test to determine whether a fine or penalty is excessive, is whether the amount of the fine is grossly disproportional to the gravity of the offense.  The Panel determined that the ALJ correctly determined, based upon the evidence, Respondents’ actions were objectively unreasonable in failing to provide the specific medical treatment noted in the Order. The Panel noted that the case highlighted the proportionality of penalties imposed for the gravity of the actions of the party. Here, the Panel applied the gross proportionality test in determining whether the penalties imposed by the ALJ on Respondents, were supported by substantial evidence of unreasonable conduct by Respondents in authorizing and paying for medical treatment. The Panel upheld the finding of the ALJ that the Respondents’ conduct in violation of the Order was objectively unreasonable, but remanded to the ALJ to review whether his finding of the amount of the penalty imposed was proportional to the harm, or risk of harm, by Respondents’ failure to comply with the Order.
 
Moral of the story: It is imperative to timely comply with court orders. Failure to comply with an order subjects respondents to potential penalties which are at the judge’s discretion and proportional to the offense.

 
Survey Says: “Compensable”:  In Olvera v. Air Cleansheen LLC, W.C. 5-073689 (June 4, 2019), Claimant sought review of an Order by an ALJ that denied compensability of the claim. Claimant worked for the employer laundering sheets and towels through a commercial laundry. The employer’s business provided clean linens to bed and breakfast locations. Claimant was injured in an automobile accident on November 8, 2017, while transporting the employer’s laundry in her car. While driving in what was deemed to be the course and scope of her employment, she was involved in auto accident when another driver ran a stop sign. Claimant reported the accident to her supervisor and went to the ER complaining of injuries to her back. Claimant’s treatment was paid for by the other driver’s auto insurance, but when those funds reached their policy limit, Claimant filed a workers’ compensation claim in April 2018. On the issue of compensability, the ALJ found that Claimant was not credible because of irregularities in her submitted evidence and held that she disclaimed and excluded any work relationship to her accident because she was not being truthful or credible, dismissing the claim. The ICAO held that the Findings of Fact did not support the ALJ’s Order under C.R.S. § 8-41-293(1)(a).  The Panel noted that the ALJ did not identify any statements that were not believed that would also support a denial of the claim’s compensability. They held that an employee who suffers a compensable injury at the hands of a third party can pursue remedies against the third person and also file a claim under the Workers’ Compensation Act.  The ALJ’s Order was set aside and the matter remanded for additional findings to determine compensability.
 
Moral of the Story: A claimant may file a workers’ compensation claim even if they have already pursued, and received, benefits from a third party.

FINE, FINE EVERYWHERE A FINE – EXCESSIVE FINES BY DOWC

BACKGROUND

On June 3, 2019 the Colorado Supreme Court issued a published opinion captioned Colorado Department of Labor and Employment, Division of Workers’ Compensation v. Dami Hospitality, LLC, 2019SC47.  The decision involved a fine handed down by the DOWC against an uninsured employer.

FACTS

Dami Hospitality, LLC., (Dami) 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 on July 1, 2005.  When notified of the violation for failing to maintain coverage Dami conceded the violation and paid a settlement in June 2006.  Just 2 months later Dami’s coverage lapsed again and it went without coverage from August 10, 2006 to June 8, 2007.  Dami maintained coverage from June 9, 2007 to September 11, 2010, but it’s coverage lapsed on September 12, 2010 and Dami went without coverage until July 9, 2014.

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.

For every day the employer fails or has failed to ensure to keep the insurance required by articles 40 to 47 of this title in force, allows or has allowed insurance to lapse, or fails or has failed to affect the renewal of such coverage: impose a fine of: (I) not more than two hundred and fifty dollars for an initial violation; or (II) not less than two hundred and fifty dollars or more than five hundred dollars for a second and subsequent violation.

A separate schedule of funds was promulgated under Rule 3-6(D) in conjunction with the statutory section classifying second and subsequent violations as follows:

Class VII 1-20 Days $250/Day

Class VIII 21-25 Days $260/Day

Class IX 26-30 Days $280/Day

Class X 31-35 Days $300/Day

Class XI 36-40 Days $400/Day

Class XII 41 Days $500/Day

The DOWC fine was based on this classification process.  Dami explained that its lapse in coverage was based on its reliance that others maintain coverage and that given its $50,000 a year payroll, it was unable to pay the fine.  DOWC treated Dami’s response as a petition to review and, in an effort to settle the fine dispute, offered to decrease the fine amount to $425,000.  Dami claimed, among other things, that the fine was in violation of the Eighth Amendment prohibiting excessive fines.  DOWC declined DAMI’s leniency request citing that the reasons for coverage lapse were within Dami’s control, that discretion on fine amount was not within its power and that it could not address the constitutional arguments.  Dami appealed and at the Industrial Claim Appeals Office (ICAO) level the issue was sent back to DOWC to consider various mitigating and non-mitigating factors.  The DOWC issued a subsequent Order declining the issue on remand, essentially stating that the graduated fines under the Rule take into account these mitigating and non-mitigating factors.  Dami again appealed to the ICAO which then simply affirmed the DOWC.

The case was ultimately appealed to the Colorado Court of Appeals which found that the DOWC abused its discretion by not considering various mitigating and non-mitigating factors as required by applicable case law.  The DOWC then petitioned for certiorari to the Colorado Supreme Court.

RULING

The Colorado Supreme Court considered whether the Eighth Amendment excessive fines clause applies to companies.  It concluded that this clause does apply to companies, finding that companies are subject to similar protections against excessive fines just as individuals.  The Colorado Supreme Court further found that fines are subject to proportionality test to determine if they are excessive.  The Court held that when a fine is imposed on a per diem basis, with each day being a separate violation, evaluation of whether the fine is excessive must be done with each daily fine.  Therefore, the whole matter was sent back to DOWC so the parties could have a potential evidentiary hearing over proportionality considerations.

IMPLICATIONS

The DOWC has been in the habit of issuing compliance/show cause orders and subsequent fines against noncomplying employers.  Many of these orders have appeared excessive and were the subject of newspaper articles.  In addition, the DOWC maintains a recently created uninsured fund designed to provide coverage for injured workers hurt on the job working for noncomplying employers.  This fund is, in part, funded by DOWC fines levied against noncomplying employers.  These orders are issued without any mechanism for an evidentiary hearing over the mitigating factors identified by the court in this Dami decision.  Given this decision, it appears evidentiary hearings may now need to be held in conjunction with the compliance/show cause orders issued by DOWC.  Other possible implications include finding or creating new funding mechanisms to help build-up the uninsured employers fund outside of fines and penalties.

If you have any questions about fines, or any other topics, please contact any of the attorneys at Lee & Brown.

 

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 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.