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.

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 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.

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

 

JOSH BROWN DOES DEFENSE IN UTAH

Lee & Brown, LLC is happy to announce that Member Joshua Brown is now licensed in Utah and he is ready to show Utah how Lee & Brown does defense.

With a focus on representing insurance carriers and employers in Workers’ Compensation, Employment Law and General Liability Claims, Josh has been practicing in the state of Colorado since 2005 and has successfully defended matters arising under the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act (ADEA) and the Fair Labor Standard Act. Josh regularly counsels clients on the spectrum of employment issues, with the goal of avoiding litigation. He also advises and assists employers in developing and enforcing proper employment contracts and policies, employment handbooks and compensation agreements. If you have insurance defense claims in the state of Utah, Lee & Brown is who you want on your team.


 

Katherine Lee Named Super Lawyers’ Top 50 Women for Second Time

Every year, 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. The “Top Lists” take exclusivity one step further by featuring selected Super Lawyers attorneys with the most total points earned. We are proud to announce that Member Katherine Lee was recognized for the 2nd consecutive year as one of Super Lawyers Top 50 Women in Colorado.

 


Noteworthy Cases

Member John Abraham successfully withdrew an admission for medical maintenance in Jehle v. Walmart Associates, Inc. Claimant sustained a minor back injury in 2004 from picking up a one-pound box of cups. Claimant had been receiving Grover medical treatment under a January 30, 2006 FAL, admitting for post-MMI medical treatment, with good benefit. Respondents sought to withdraw the FAL and terminate treatment on the theory that treatment was no longer causally related to the injury. Dr. Cebrian and Dr. Reiss credibly testified that Claimant’s pathology and need for ongoing medical treatment was due to the natural progression of her preexisting degenerative condition. The ATP only opined that the current treatment was “in part” related with “some causality” to the 2004 injury, but could not assign any specific, or even approximate, percentage. Therefore, ALJ Spencer granted Respondents’ request to withdraw the admission of liability for medical treatment after MMI.

 

In Rogers v. Family Dollar Stores, Of Counsel M. Frances McCracken successfully defeated Claimant’s attempt to overcome the DIME. In May of 2015, Claimant moved a box of inventory while working and felt radiating pain in her left elbow. Claimant underwent carpal tunnel release surgery, but her condition worsened. Dr. Ghazi opined chronic regional pain syndrome (CRPS) and recommended treatment for same. Respondents’ IME Physician, Dr. Cebrian, opined that Claimant’s elbow was at MMI and that the carpal tunnel syndrome and neuropathic pain was non-claim related; he therefore opined that the recommended treatment was not reasonably necessary. He further opined the Claimant did not have CRPS, cautioned against the diagnosis of CRPS and suggested treatment as potentially harmful and not recommended in the medical treatment guidelines. The DIME Physician agreed with Dr. Cebrian that the only work-related injury sustained was an elbow strain, but felt Claimant was not at MMI for her work-related injury. He further opined that the carpal tunnel syndrome and complications following surgery for same were not causally related to the industrial injury. ALJ Jones ruled Claimant had not overcome the DIME physician’s opinion that the carpal tunnel syndrome was not related to the industrial injury and denied Claimant’s entitlement to ongoing medical benefits for treatment of same.

 

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 also body parts involved in the claim. Since the “regions” have caused some confusion, the fees have also needed clarification. Continue reading this article

 

Cases You Should Know

This Deal Stinks. Must be Fraud: In Matus v. ICAO (January 31, 2019)(nfsp), Claimant attempted to reopen his settled claim based upon fraud and mistake because it did not adequately fund the MSA. The Court found no fraud because the MSA was based upon Claimant’s medical records and had been approved by CMS. There was no mistake as both parties knew the amount of the MSA when they entered into the settlement. The Court upheld the ALJ.

 

Moral of the Story: To reopen for fraud, the petitioner must prove the party knew it was making false representation. To reopen for mistake, it must be proven both parties were mistaken at the time of the contract.

 

Just Biding Time: In Garcia v. Swift Foods, W.C. No. 4-679-322 (January 8, 2019), Claimant suffered a back injury in 2005. He was placed at MMI and Respondents filed a FAL. Claimant requested a hearing for petition to reopen and post MMI medical benefits. The parties stipulated “Claimant timely filed a petition to reopen”, and Respondents admitted for medical maintenance treatment. Four years later, Claimant filed another Petition to Reopen. Respondents asserted the Petition to Reopen was barred by the Statute of Limitations. The Panel affirmed the ALJ that found the Petition to Reopen was timely filed when it had initially been filed it four years prior and there was no indication in the Sstipulation that Claimant withdrew it.

 

Moral of the Story: Use precise language in stipulations to assure claims are closed.

 

A Little Extra TTD: Claimant was placed at MMI and started vocational rehabilitation. Respondents admitted for TTD benefits during rehabilitation. Claimant completed rehabilitation and Respondents filed a GAL terminating TTD benefits. The Panel upheld an Order from the Director that Respondents must give 14 days notice to Claimant before they can terminate TTD benefits following vocational rehabilitation. Thus, Claimant was entitled to 14 additional days of TTD. Kardisco v. Red Sky Construction, Inc., W.C. No. 4-931-411 (January 15, 2019).

 

Moral of the Story: Once TTD is admitted, it can only be terminated in the specific ways enumerated in C.R.S. §.8-42-105.

 

How Many Stops Does It Take to Get to Deviation?: In Satterfield v. RM Weiss Contract Sales, W.C. No. 5-069-072 (February 4, 2019), Claimant worked as a sales associate and required a set of binders for a presentation. He drove to Office Depot to obtain the binders. On the way to Office Depot, he stopped at the dry cleaner to retrieve several work shirts when he was involved in a motor vehicle accident. Respondents denied liability, contending the injury was a deviation because he was on a personal errand. ICAO affirmed the ALJ finding the claim compensable because the stop at the dry cleaner did not change the route the Claimant planned to take to arrive at Office Depot. The fact that Claimant intended to stop at the dry cleaner on the way to Office Depot did not sever chain of causation because, even if Claimant had no laundry at the dry cleaner, he had to take the same route to get to Office Depot.

 

Moral of Story: An injury may be compensable when Claimant makes a stop while proceeding to an activity within the course and scope of employment, if the stop does not change the route Claimant planned to take.

 

You Didn’t Like that Order? How About a Penalty on Top of It?: In Lange v. Kern USA, W.C. No. 4-907-620-002 (January 18, 2019), Claimant sought review of an Order that assessed penalties for failing to abide by a prior Order directing him to repay an overpayment. At an initial hearing, the ALJ ordered Claimant to repay the overpayment at the rate of $50 per month. Claimant made no payments on the overpayment. Respondents sought hearing for penalties for failure to comply with the Order to repay the overpayment. The ALJ ordered a penalty of $2.00 per day. On appeal, Claimant contended the penalty was unreasonable. The panel noted that the ALJ had available to him a penalty range of 1 cent to $1,000 per day. Choosing to set the daily penalty at $2.00 was reasonable since the only alternative would be virtually no fine at all.

 

Moral of Story: Do not ignore orders because significant penalties can be assessed for failure to comply with any order from the Director or ALJ.

 

Substantial Evidence: In Henry v. Kaiser Foundation Health Plan, W.C. No. 4-978-452-06 (January 25, 2019), Claimant sought review of an Order that Claimant had not overcome the DIME. Claimant took issue with the ALJ’s interpretation of the evidence and used her appellate brief to re-argue the merits of the claim. ICAO held it had no authority to reweigh the evidence as this was the exclusive prerogative of the ALJ as the fact-finder.

 

Moral of Story: The substantial evidence standard of review does not permit a reviewing forum to reweigh the evidence with a view toward determining whether, given the evidence as a whole, “a mistake has been committed” in the weighing of the evidence.

 

Inconsistent Findings of Fact: In Martinez v. LKQ Holding Corporation, W.C. No. 5-007-076-001 (February 4, 2019), Claimant sustained a lumbar strain at work. He was placed at MMI and requested a DIME. Claimant returned to work and alleged a new lumbar spine injury prior to attending the DIME. The ATP found the subsequent incident was a “flare-up” from the first injury. But, the DIME determined the subsequent injury was a new injury. Claimant filed for hearing regarding compensability of the second injury. In the Findings of Facts, the ALJ found in the subsequent injury Claimant was working when he felt a pop and he “reinjured his back.” But, the ALJ also held the subsequent injury was a “flare-up” of the admitted claim. ICAO remanded the case because the ALJ’s Findings of Facts were contradictory as to the cause of Claimant’s subsequent condition and whether it was an exacerbation of the original injury or a new injury.

 

Moral of Story: Claimant is entitled to medical benefits if the employment aggravates, accelerates, or combines with preexisting condition to cause need for medical treatment.

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

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

Noteworthy Cases

Associate Daniel Mowrey successfully defended Claimant’s request to reopen his Arizona claim and add an additional body part in Szach v. SW Ambulance, ICA No. 20160-260291. Claimant sustained an admitted industrial injury on January 12, 2016. The Claimant was placed at stationary status and provided with no impairment rating or ongoing treatment on April 2, 2018. Claimant protested the closure of his claim and sought continuing medical benefits and/or an increased impairment rating. Claimant also sought to link an upper body injury and subsequent surgery to the admitted claim. The ALJ credited the testimony of Respondents’ medical expert, who opined that the upper body injury and subsequent surgery was not related to Claimant’s admitted injury. Respondents’ medical expert further credibly testified that Claimant required no additional medical care for his admitted injury. Respondents also presented medical evidence of a preexisting upper body injury. The ALJ concluded that, based on the objective medical evidence and the credible opinion of Respondents’ expert, Claimant failed to demonstrate by a preponderance of the evidence that he was entitled to an increase in permanent impairment or additional medical care. The ALJ further opined that the upper body injury was not related to the admitted injury. The ALJ ordered Claimant’s claim for additional benefits be denied and dismissed.

 

 


Workplace Bullying

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

  


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

Moral of the story: The Employer’s First Report of Injury is not a substitute for, or the equivalent of, a claimant filing a Workers’ Claim for Compensation. A claimant must timely file a claim in order to comply with C.R.S § 8-43-103 (2), otherwise his or her workers’ compensation claim is barred by the statute of limitations.

 
 

Claimant’s Bitter Pill to Swallow: Medical Treatment After MMI Must be Authorized: In Gosselova v. Vail Resorts, W.C. No. 4-975-232 (December 24, 2018), pro se Claimant sought review of an Order denying unauthorized medical treatment Claimant obtained after maximum medical improvement (MMI). Claimant sustained an admitted injury to her knee and subsequently underwent three knee surgeries. Claimant’s ATP recommended that Claimant undergo a fourth surgery for hardware removal. Claimant refused the recommended surgical treatment and was placed at MMI with recommended maintenance care to include hardware removal. Without receiving prior authorization, Claimant obtained hardware removal surgery from another physician. The Industrial Claim Appeals Court upheld the ALJ’s determination that even though Claimant’s treatment was reasonable and necessary, because it was not authorized by Respondents, Respondents were not liable for payment of the treatment.

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

 
 

Safety Rule Violations: In Heien v. DW Crossland LLC, W.C. No. 5-059-799 (November 29, 2018), Claimant sought to overcome an Order reducing the non-medical workers’ compensation benefits by 50% for his willful violation to obey a safety rule. In this case, the Employer had an established safety rule that employees were not to open washing machines while the spin cycle was ongoing. Claimant sustained a severe amputation injury to his right arm when he violated the Employer’s safety rule by opening a washing machine while it was still running. Claimant admitted to using heroin during his shift and stated he opened the machine to retrieve a Coca-Cola bottle as he was concerned the sheets being washed would be damaged. The Administrative Law Judge (ALJ) reduced Claimant’s non-medical workers’ compensation benefits by 50% to account for his willful failure to obey a safety rule. Claimant appealed this reduction in benefits by arguing that his violation of the safety rule was not willful because he had a plausible purpose in violating the safety rule. Additionally, he argued that the safety rule was not enforced by the Employer. ICAO affirmed the ALJ’s finding that the Employer’s safety rule was enforced because there were posted warning signs above the washing machine and there was a switch located directly beside the machine that could be pulled to immediately cut power to the machine. The Panel noted the obviousness of the risk in affirming the ALJ’s finding that Claimant’s effort to save sheets from being damaged was not a plausible purpose for violating the enforced safety rule.

 

Moral of the Story: The violation of a safety rule is not considered willful if the employee had a plausible purpose to explain the violation of the rule. However, if the inherent danger in violating the safety rule is obvious, Claimant’s actions in violating the safety rule will rarely, if ever, be found plausible.

Workplace Bullying

Does workers’ compensation insurance cover mental, and manifesting physical injuries Workplace Bullyingresulting from workplace bullying? A recent Forbes online article cited a survey concluding that 75% of the U.S. workforce reported having experienced workplace bullying.[1] Another study cited by the Workplace Bullying Institute suggested that absenteeism and lower production costs businesses $4 billion annually.[2] 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.

One definition of workplace bullying advanced in Psychology Today was “workplace bullying refers to “situations where an employee repeatedly and over a prolonged time period is exposed to harassing behavior from one or more colleagues (including subordinates and leaders) and where the targeted person is unable to defend him-/herself against this systematic mistreatment.”[3] Researches have identified both internal and external causes of workplace bullying. As noted below, identifying the cause of workplace bullying is relevant to unwinding the legal liabilities associated with resulting injuries. Types of injuries associated with this behavior includes “physical and psychological symptoms, including headaches, chronic neck pain, fibromyalgia, type 2 diabetes, sleep problems, anxiety, depression, post-traumatic stress symptoms, suicidal ideation, and others.” [4]

The current statutory law in Colorado does not specifically address a company’s insurance liability for workplace bullying injuries. However, those injuries can be covered under the exclusive remedy of the Colorado’s Workers’ Compensation Act and the associated insurance policies. Bullying injuries may be treated as assaults for purposes of liability. Assaults that arise out of work are generally compensable injuries, while those that are purely personal are not.[5] Assaults caused by a natural force, or an event that any employee would be exposed to are also compensable assaults. Before addressing the nature of the injury, the business should investigate whether the bullying, for example verbal abuse or written harassments, arose out of a personal dispute between employees or whether the bullying occurred within the parameters of the employees’ business relations. Any investigation should be undertaken consistent with a business’ employment policies and procedures for interviewing witnesses, reviewing internal documents such as email, and confiscating company phones or computers as evidence.

When a business determines that a workplace bullying event has occurred, the business ought to determine whether an actual injury was caused by the perpetrator(s) conduct. The law is especially tricky when unpacking whether an injury occurred. While an employee may complain of stress or some other symptoms, especially to justify absenteeism, the claim may not always be a compensable injury. Section 8-43-301(2)(a), C.R.S., requires that an employee claiming a mental impairment provide a specific showing of a mental injury, including evidence supported by a licensed psychologist or psychiatrist. Additionally, whether the bullying itself was a crime of violence will also factor into the amount of benefits that could be owed to a victim-employee. Navigating through the patchwork of questions to determine liability hinges on the ability of a comprehensive investigation of the claim at the outset to determine its validity.

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

 

[1] https://www.forbes.com/sites/christinecomaford/2016/08/27/the-enormous-toll-workplace-bullying-takes-on-your-bottom-line/#5f464c0b5595

[2] https://www.workplacebullying.org/tag/workers-comp/

[3]https://www.psychologytoday.com/us/blog/finding-new-home/201809/workplace-bullying-causes-effects-and-prevention

[4] Id.

[5] Velasquez v. Industrial Commission, 41 Colo. App. 201,581 P.2d 748 (1978); In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988).

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

 


Noteworthy Cases

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

In Pickering v. Hercules Commercial, W.C. No. 5-049-650, Claimant alleged he was injured while tightening a bolt using an allen/hex wrench. Ms. Treece elicited credible witness testimony that Claimant complained of pain and was on light duty prior to the alleged date of injury. Respondents’ expert persuasively testified it was unlikely a person could exert sufficient force, using a ¼ inch hex wrench, to sustain a significant shoulder injury. The ALJ denied and dismissed Claimant’s request for benefits.

 

In Robinson v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that a specific medical center was an authorized provider. Claimant contended that he was referred to the emergency room to rule out a medical emergency. Claimant declared that Respondents were liable for payment for all services at said facility. Respondents’ argued that the initial referral was for emergent care only. Once the emergent care was concluded, Claimant returned to his ATP for ongoing treatment. Respondents produced medical evidence from the ATP that no additional referral was made to the other facility. The ALJ opined that Claimant returned to treat at the other facility of his own accord. The ALJ concluded that, based on the objective medical evidence, Claimant failed to establish that the other facility was authorized as treating physicians. The ALJ ordered that the care received from the other facility, after the ER visit, was unauthorized.

 

Of Counsel Frank Cavanaugh and Associate Kristi Robarge successfully defeated a full contest claim in Putnam v. Whole Foods Market, Inc., W.C. 5-079-453. Claimant alleged an injury occurred while at work; however, there were conflicting reports of the injury. At first, Claimant simply reported that she began hurting while at work. She later reported that she bent over to pick something up and felt a pop in her low back. In addition to the inconsistent reports of injury, Claimant had a pre-existing condition which caused pain in multiple places. The ALJ found that Claimant did not suffer a compensable injury during the course and scope of her employment. The ALJ noted that “the mere fact a claimant experiences symptoms while performing work does not require the inference that there has been an aggravation or acceleration of a preexisting condition.”

 

Associate Angela Lavery successfully defended Claimant’s claim for specific medical benefits in Hayes v. Patterson UTI Drilling Co., W.C. 5-062-811. Claimant worked as a “roughneck” on an oil rig and argued that he suffered an injury to his upper extremity when he sustained an admitted injury. Claimant argued that he required shoulder surgery recommended by an ATP surgeon, which would include several procedures. Although the ALJ agreed that Claimant suffered a work-related injury, the ALJ determined that Claimant failed to establish that the recommendation for surgery was medically reasonable and necessary. The ALJ credited the testimony of Respondents’ medical expert, who opined that surgery was not reasonable or necessary based on Claimant’s current presentation of symptoms and the Medical Treatment Guidelines. Respondents’ medical expert credibly testified that other more conservative treatment modalities could be utilized based on Claimant’s reported symptoms and objective findings on exam. The ALJ agreed and determined that there was insufficient evidence to support that the surgery should be performed over other treatment options. The ALJ denied Claimant’s request for authorization of the surgery.

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

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees. Continue reading the article

 

Cases You Should Know

No Mulligans for Bad Faith: In Schultz v. GEICO Casualty Company (November 5, 2018) the Supreme Court of Colorado addressed a District Court Order that required the Plaintiff to undergo an IME in light of bad faith allegations brought by Plaintiff. Plaintiff was involved in a car accident in 2015 and subsequently had multiple knee surgeries. Without having Plaintiff undergo an IME, the insurer offered full policy limits but did not subsequently pay. When Plaintiff brought a bad faith allegation against the insurer for unreasonable delay/denial, the insurer then denied liability and secured an Order from the District Court requiring Plaintiff to undergo an IME to assess a causation dispute. Plaintiff alleged that the requirement that she undergo an IME was unreasonable because the insurer had previously agreed to pay out the policy without an examination, over a year prior. The Supreme Court reaffirmed the principle that an insurer’s decision to deny or delay benefits to the insured must be evaluated based on the information available to the insurer at the time the coverage decision is made, not post-coverage decision due to the discovery of later developments that may have impacted the insurer’s decision. Here, the insurer had initially decided to pay out the policy without an IME and presented no explanation as to how an IME performed one year later would have impacted the original decision. The Court found that the District Court had abused its discretion in compelling the examination.

 

Moral of the Story: Whether an insurer acted in bad faith or not, is decided when the unreasonable action is alleged to have occurred. It cannot be rectified by relying upon evidence subsequently obtained that did not exist, or was not available, at the time of the initial action.

 

Fines Dispensed, Dispensary Incensed: In MMJ 95, LLC (no board number issued)(October 15, 2018), ICAO upheld a Director’s Order imposing a $39,950.00 fine upon Respondent-employer for failing to maintain mandatory workers’ compensation insurance coverage. Section 8-44-101, C.R.S. of the Workers’ Compensaion Act requires that all employers secure workers’ compensation insurance coverage for all employees. Uninsured employers are subject to a fine of up to $250.00 per day under Section 8-43-409(1)(b), C.R.S. In this case, MMJ 95 did not maintain its own workers’ compensation coverage. The sole registered agent of MMJ 95 was also the registered agent of another company, AJC Industries, LLC, which did maintain workers’ compensation coverage. Both businesses operated under the same trade name. The Director found that, contrary to the testimony of the employer, MMJ 95 did have “employees” for purposes of the Act and therefore had to maintain its own insurance for those employees. The Director found that the registered agent of Repondent-employer did not file LLC member rejection of coverage for workers’ compensation insurance for MMJ 95 and was therefore himself considered an “employee” of the company. The Director further found that persons working at MMJ 95 were employees, despite testimony from the registered agent that these persons were employed by AJC and therefore covered by its insurance. The Director found that, even though AJC and MMJ 95 operated under the same tradename, they were separate business entities because they had been filed as such with the Secretary of State. Respondent-employer did not properly raise contentions of error in response to the Director’s Order and ICAO upheld the Director’s findings and ultimate fine.

 

Moral of the Story: Every employer registered with the Secretary of State must maintain its own workers’ compensation insurance coverage for all employees. Members of Limited Liability Companies may be considered employees of the company for purposes of workers’ compensation, even though they are not paid as employees of the company.

 

A Final Admission Isn’t Always the End: In The Matter of the Claim of Carold Peoples v. State of Colo. Dep’t of Trans., W.C. No. 4-819-262 (October 24, 2018), ICAO affirmed the ALJ’s Order requiring Claimant to repay an overpayment and allowing Respondent to recoup the overpayment by offsetting disfigurement benefits. Claimant had been awarded SSDI and Respondent did not take an offset against temporary disability, even though they had known of the award since 2012. Respondent instead noted an ongoing overpayment on the GAL. Respondent filed a FAL in 2013, within a year of the SSDI award, but did not apply for a hearing. Claimant argued that overpayment was barred by the statute of limitations on the premise that Respondent did not “attempt to recover” the overpayment within one year of when they became aware of the overpayment, under Section 8-42-113.5(1)(b.5)(I), C.R.S. ICAO agreed with the ALJ that asserting a right to recoup overpayment on the FAL was sufficient for Respondent to preserve their right and defeat the statute of limitations. Filing a FAL asserting an overpayment against future benefits is sufficient as an “attempt to recover” an overpayment for purposes of the statute. Claimant argued that Respondent was prohibited from offsetting the overpayment against future benefits owed. The Panel held that “the Respondent may offset their liability for the disfigurement award . . . against the existing overpayment.”

 

Moral of the story: Respondents must attempt to recover any overpayment within a year of becoming aware of its existence, and a FAL noting the overpayment is sufficient to preserve the right to pursue the overpayment in the future. Respondents may also recover overpayment from future benefits, including disfigurement owed.

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees.

Professional football requires two types of insurance: general liability and workers’ compensation since it is mandatory under state laws. Given the lucrative contracts these athletes sign, the Collective Bargaining Agreements often require wage continuation agreements so that these athletes continue to make the same salary if they are injured and off work. Can you imagine an athlete who makes $30 million a year being capped at the state workers’ compensation rate while recovering from an injury? Hence why wage continuation agreements are standard across the league.

With that said, one of the biggest threats to the NFL is the evaporating insurance market. According to multiple sources from the NFL, there is only one carrier willing to provide workers’ compensation coverage for NFL teams because of all the concussion litigation that began in 2011. At that time, at least a dozen carriers occupied the insurance market for pro football. Now, there is one.  Dr. Julian Bales, Medical Director and member of the NFL’s head, neck, and spine committee told ESPN “insurance coverage is arguably the biggest threat to the sport.”[1]

A study done by the University of Pittsburgh Medical Center’s sports concussion program found approximately 300,000 football-related concussions occur each year in youth, high school, college, and professional. And the biggest injury or disease that is making headlines in the NFL is traumatic brain injuries and chronic traumatic encephalopathy or “C.T.E.” The problem with this disease is the unknown “trigger” on how and when the disease starts. The disease is diagnosed after death and the symptoms of depression and delusional behavior may lay dormant for years, or even decades, before they surface. It’s concerning for carriers to know they could be on the hook years down the road given the unknown.

Similar to asbestos claims in workers’ compensation, a carrier can be at risk for a claimant who works one day and is subsequently diagnosed with lung cancer, players in California could file claims, even if they played only one game, to allege their brain disorders were caused by the sport. This cost carriers and the leagues hundreds of millions of dollars which fortunately was curtailed by new legislation in 2013. Still, carriers are cautious to cover the NFL without an exclusion for head trauma.

For many years carriers insured the NFL without restrictions for traumatic brain injuries. Now many of these companies are in a six-year lawsuit with the NFL over who will pay legal fees and claims associated with the 2013 settlement of the $1 billion-dollar class action lawsuit. Hence, these carriers are at higher risk to insure the NFL.

California has one of the most liberal workers’ compensation laws in the Union. Recently, former players who decades ago reached injury settlements with NFL teams and carriers have filed new claims alleging their settlements did not cover traumatic brain injuries. In 2015, a workers’ compensation court found that a former player’s 1989 settlement for cumulative industrial injury “does not extend to the then-unknown cumulative injury to the brain.” Similar to a worker who claims their shoulder pain is due to years of lifting heavy equipment, a former football player can argue their continued migraine headaches are a result of them playing professional football. Chances are several brain disorders like dementia, Parkinson’s and Alzheimer’s could be blamed on football. Doctors may ask, “how long did you play football and how many head injuries did you have?” and cite that as the cause for a claimant’s brain disorder when a claim against the NFL is filed. Fortunately, claimants must still meet their burden and prove that pro football alone, and not youth or college football, was the “cause” of their injury or diseases.

Workers’ compensation attorneys in California are handling numerous settled cases in which former NFL players have filed new claims for head trauma. The new claims will only increase costs for litigation and further deter carriers on what they will and will not cover. Fortunately, monetary costs for workers’ compensation claims are capped which will help put a cork in the damn but if the floodgate of old settled claims are allowed to be reopened, the market for coverage will continue to be washed away down the river…

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

 

[1] http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn

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