Colorado Supreme Court Tackles Medical Marijuana

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The Colorado Supreme Court, one-week ago, issued a highly anticipated decision implicating employment law related decisions as they pertain to employees using lawful medical marijuana for activities outside the course and scope of employment. In the decision of Coats v. Dish Network, the Colorado Supreme Court, for the first time, provided its position on whether employers could make adverse employment actions against its employees who are lawfully using medicinal marijuana away from work. The Court held that even though medical marijuana is “lawful” activity in Colorado, such activity is not “lawful” under the federal law. As a result, employees may not assert protections under the Colorado Lawful Activities Statute.

In Coats, the Plaintiff filed a lawsuit against Dish Network for discharging him for his use of medical marijuana, green-cross-thmbR medical marijuana to treat painful muscle spasms caused by his quadriplegia.   Between 2007 and 2009, the Plaintiff worked for Dish Network as a telephone customer service representative. In May 2010, the Plaintiff tested positive for tetrahydrocannabinol (“THC”) during a random employee drug test. The Plaintiff informed Dish Network that he was a registered medical marijuana patient. Dish Network terminated the Plaintiff for testing positive for THC as a violation of the company’s drug policy.

The Plaintiff alleged a wrongful termination claim against Dish Network, pursuant to C.R.S. 24-34-402.5, which generally prohibits employers from discharging an employee based on his or her engagement in “lawful activities” off the premises of the employer, during nonworking hours. The case was dismissed by the trial court finding that, while medicinal marijuana was legal under state law, it was still illegal under federal law and thus, not a lawful activity. The Colorado Supreme Court has affirmed this decision and agrees with this conclusion.

Accordingly, the take away for Colorado employers is simple. Colorado employers may continue to enforce their drug policies against their employees who use medicinal marijuana and any adverse employment actions taken against them will not violate Colorado’s Lawful Activities Statute. It should be noted that this decision specifically did not address use of recreational marijuana, which Colorado has also made lawful. Nevertheless, it would be anticipated that the Court would treat recreational use no differently.  In other words, because both medical and recreational uses are still illegal under federal law, such activities still will not be “lawful” to support a claim under the Lawful Activities Statute.

For those interested in reading the opinion, please click the link below:

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC394.pdf

Researching Narcotic Prescription Information In Colorado

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A ubiquitous problem in workers’ compensation patient care, as well as in the general clinical healthcare setting, is an individual patient’s use, and potential abuse, of controlled prescription narcotics.  The Prescription Drug Monitoring Program (PDMP) is the State of Colorado’s secure, central electronic informational data base that records and tracks each pharmacist’s dispensement of controlled narcotics. In an effort to curb narcotic prescription abuse, as well as to improve overall clinical care, the state of Colorado recently revised its PDMP guidelines with the goal of promoting more accessibility to the PDMP’s recording and research functions.

Currently, medical professionals use the PDMP to track a particular patient’s use, prescription quantity, frequency of prescriptions, and procurement of controlled substances. The PDMP is frequently used in the workers compensation system to reference whether an injured worker is obtaining narcotics prescriptions from more than one physician, or whether an injured worker has a history of narcotic dependency. The PDMP is considered a medical record, and protections of HIPPA apply to PDMP information. This information can be used to evaluate a specific course of treatment unique to the injured workers’ clinical history; however, a long-standing issue has been the quality and quantity of the information available to physicians.

Prior to October, 2014, PDMP users were only permitted to upload data twice every month. As of October 15, 2014, the revised PDMP regulations, Rx_keyadministered by the Division of Professions and Occupations, require that all in-state and non-resident pharmacies registered by the state’s Pharmacy Board submit controlled substance dispensing data to the PDMP on a daily basis. Most of these changes are contained in House Bill 14-1283. Any pharmacist or physician possessing a Drug Enforcement Agency registered narcotics prescriber permit is required to register with PDMP and follow rules and regulations of the State Board Pharmacy. The new regulations also contain tools to help ease the burden of having to enter massive amounts of patient data in real time. As of January 2015, each prescriber and pharmacist registered as a user with the PDMP may delegate access to the PDMP to three agents by way of creating sub-accounts with the PDMP under the corresponding prescriber or pharmacist’s account.

Granting broader access to the PDMP is an important step for purposes of controlling and containing medical costs in workers’ compensation. Based upon the new revisions to the PDMP guidelines, a workers’ compensation authorized provider may delegate authority to access the PDMP database to three designees acting for the provider. Large and small facilities treating patients will now be able to utilize nurses, or other health care professionals who did not previously have access to the PDMP, as delegated agents authorized to research an injured workers’ narcotic prescription history. The regulatory changes will give busy pharmacists the opportunity to input data on a daily basis. Physicians practicing in workers’ compensation can then obtain real time data about an injured worker’s prescription history by using their staff to obtain and process the clinical information.

Under the applicable rules, physicians performing independent medical examinations may not access the PDMP for information on an injured worker. However, it is recommended that, after obtaining a HIPPA compliant release, the authorized physician be asked to check the PDMP to evaluate an injured worker’s narcotic prescription and compliance history. It is also recommended that insurance representatives adjusting a workers’ compensation claim make repeated requests for PDMP information throughout any claim when narcotic prescription management is an issue. More information about Colorado’s PDMP can be found at

http://www.hidesigns.com/copdmp.

Recent U.S. Supreme Court Decision – Is there Now a Duty to Accommodate Pregnant Employees?

In a pattern of ongoing protections for employees, the Equal Employment Opportunity Commission (EEOC) along with the United States Supreme Court has taken head-on the issue of pregnancy discrimination. For the first time in over 30 years, the EEOC in July 2014 issued Enforcement Guidance regarding pregnancy disability.  In general, the Guidance explains Title VII’s prohibition against pregnancy discrimination, describes individuals to whom the Pregnancy Discrimination Act (PDA) applies and discusses how the expanded definition of “disability” under the Americans with Disabilities Act (ADA) applies.
In sum, the Guidance advises employers to apply the same work place accommodation policies, leave of absence policies, medical benefits, and seniority/retirement benefits to all employees, regardless of whether a request for leave of absence, workplace accommodation, or medical benefit is due to a medical condition related to pregnancy or any other disability. The EEOC concedes that pregnancy is not a “disability” under the ADA, but points out those pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, even though these disabilities are temporary.

Most recently, the U.S. Supreme Court in Young v. United Parcel Service, articulated a high legal burden that employers would have to meet in order to justify policies that provide accommodations to some categories of employees, but not to pregnant women. The Court stated that it was not persuaded by, and noted a number of problems with, the EEOC’s July 2014 guidance, stating “[w]ithout further explanation, we cannot rely significantly on the EEOC’s determination.” The Court ultimately decided employers need to offer the same or similar accommodations to its pregnant employees as it does to its disabled employees.

The Court held that “a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” In other words, the Court determined that a Plaintiff can get to a jury trial and avoid summary judgment by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s “legitimate, nondiscriminatory reasons” are not sufficiently strong to justify the burden, but rather give rise to an inference of intentional discrimination.    ​

The ultimate take away from this recent decision is that while an employer is not automatically required to provide all pregnant workers the same accommodations it offers to others 100% of the time, employers should be prepared to justify any differences in their accommodation decisions, which may be difficult to do. Employers should also keep the ADA in mind, given that the Court specifically referenced the expanding definition of “disability” under the 2008 amendments to the ADA.

Practical Pointers for Guidance Compliance:

  • Review policies related to light duty and reasonable accommodation requests to ensure they are in line with legitimate business needs and not based on cost and convenience.
  • Examine accommodation requests granted and denied over the recent past, and on an ongoing basis, to determine if pregnant women are being treated disparately.
  • Train managers and HR professionals on the need for individualized inquires in granting or refusing requests for accommodation.

Reimbursement and Recovery

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Reimbursement and Recovery – Medical Care Providers

Increasing costs of medical care have created reimbursement and recovery incentive for providers. Often times medical care secondary to an injury, whether work related or otherwise, becomes the subject of recovery and reimbursement attempts by the providers, as the providers are not inclined to provide care that is not their liability. This article explores and discusses the various means healthcare providers can assert and recover liens, including intervening in workers’ compensation claims.

Workers’ Compensation
Under the Colorado Workers’ Compensation Act, Sec. 8-42-101, C.R.S., an injured worker cannot be responsible for bills or reimbursement to a medical care provider, so long as the medical care was received for a work injury. The workers’ compensation carrier or self-insured employer also has an automatic assignment of any amounts paid in a workers’ compensation claim that allows it to recover amounts directly against any third party responsible for the injury.

A problem arises when treatment is received for a work injury, but the claim is denied, meaning the carrier or self-insured employer are contesting liability. Often in these cases, the carrier or self-insured employer may try to settle on a denied basis, meaning that they are not admitting liability for the claimed injury. If medical care has been provided for the injury, the provider may seek reimbursement against the injured worker, making such a settlement a risky proposition for the injured worker and his attorney. In addition, the medical care provider has an arguable ability to intervene in the underlying workers’ compensation case as an interested party. Recent statutory changes that make the injured worker not responsible for medical bills also make the workers’ compensation insurer liable for medical care for treatment to the injured worker in the event that the claim is ultimately deemed compensable. I have successfully intervened in workers’ compensation cases on behalf of a large hospital where it was undisputed that the injured worker was hurt working, but the employer was uninsured. This created statutory employer liability for a general contractor that was denying the claim and attempting to settle the case on a denied basis. Obviously, the carrier for the statutory employer was attempting to settle the case without regard for medical treatment the injured worker received. I managed to intervene in the matter and attend a settlement conference. In this way, I was able to get some reimbursement for medical care provided to the injured worker. Therefore, be cautious in settling a claim on a denied basis when you are aware that there are medical care providers that expect reimbursement.

Hospital Liens
Hospitals have a lien on any third party recovery, when the lien is properly perfected with the Secretary of State. It is simple to determine if a medical lien exists on a claim by simply accessing the Secretary of State’s website and checking for any UCC filings by known medical care providers to any plaintiff or claimant. If a case is settled without regard to the hospital lien, the hospital can collect reimbursement against the individual or entity that ignored its lien. Further, the hospital can receive attorney’s fees paid if the statutory lien is violated. Historically, hospitals have not been very efficient in filing a lien with the Secretary of State; however, I strongly recommend that the status of liens be determined prior to any settlement of a workers’ compensation case or liability suit.

Assignments
Medical care providers often require a patient (or representative of the patient) to sign a document before receiving care. This document is in the form of a guarantee for payment; however, this document will also include an assignment from the patient to the medical care provider for any rights or proceeds asserted or collected against a third party responsible for the injury. Sometimes these assignments include assignments of any claim to workers’ compensation benefits. Such an assignment is ineffective as workers’ compensation benefits cannot be assigned to a third party. Regardless, if an injured worker settled the workers’ compensation case on a denied basis, or for amounts that were not yet realized as workers’ compensation benefits, payment of this amount to the injured worker rather than to a medical care provider may be a breach of an assignment. In fact, recent case law has recognized that there is an entirely new cause of action for breach of an assignment. This cause of action is similar to a breach of contract in that the assignment arises out of a contract. The individual or entity that breaches an assignment has to be made aware of the potential assignment before a breach can be claimed. Therefore, to the extent that any medical care provider has supplied a treatment document signed by the injured individual, that document should be examined for any assignment from the injured individual to the medical care provider. Keep in mind that this problem is not unique to workers’ compensation claims, but to any liability claims as well.

Other Methods of Recovery – Spousal Necessity Doctrine
Medical care providers have other potential avenues of recovery for treatment supplied to an injured individual. In particular, there is an old statute in Colorado, as well as in other States, that makes a spouse individually responsible for payment for necessities of the other spouse. Case law interpreting this statue has made a spouse responsible for legal fees, housing costs and other bills that have been incurred by the other spouse. Although there is no case directly on point, I have managed to obtain a judgment against a spouse for medical treatment as a necessity under this particular statute.

Other Methods of Recovery – Custodial Care
Custodial responsibility is a mechanism by which a medical care provider can obtain reimbursement. For instance, individuals in the custody of a law enforcement agency are not primarily responsible for medical care. Instead, the entity that has placed the individual in custody is responsible for medical care. There are instances when an individual may be in custody, but not under arrest. If medical treatment is needed while that individual is in custody, but not under arrest, the entity placing the individual in custody is responsible for the medical care. I have successfully obtained a judgment against a law enforcement agency for treatment a hospital provided to a criminal that was not yet arrested, but that I argued was in custody.

Bottom Line
Any carrier or employer has to be conscious of medical care providers that have provided treatment for any claimed injury. With medical care costs continuing to rise, medical care providers are much less likely to write-off, or ignore, avenues for reimbursement and they are growing more aware of any potential for reimbursement through possible insured losses.

The 180 Day Ticking Time Bomb

The Colorado Governmental Immunities Act: The 180 Day Ticking Time Bomb for Filing a Subrogation Personal Injury Lawsuit
– Joseph W. Gren, Esq.


Professor Alan Dershowitz, a hailed legal commenter and constitutional scholar, once remarked that “every lawsuit results from somebody doing something wrong. If everybody did right, we wouldn’t need laws.” In Colorado, the Workers’ Compensation Act provides an employer and insurance carrier the right to sue a “third party” when that respective third party causes injuries to an employee. Section 8-41-203, C.R.S. Though most insurance carriers and claims examiners are generally familiar with the “right of subrogation,” there are several areas of workers’ compensation subrogation that are often times thorny, especially when the government becomes involved.

When the “somebody” who caused an injury to an injured employee is a state governmental entity, a workers’ compensation insurance carrier must take specific measures at the onset of the injury in order to protect their respective subrogation rights. A party’s failure to follow the specific statutory timeframes established by the Colorado Governmental Immunities Act (“CGIA”), section 24-10-101, C.R.S., will result in any personal injury claim being time barred: Maestas v. Lujan, 351 F.3d 1001 (10th Cir. 2003). The most important step an insurance carrier or employer can take at the onset of a subrogation claim is to file the appropriate notice of claim with a governmental entity.

Generally, the CGIA permits the government to be sued for damages arising out of personal injury claims in limited circumstances. This concept is known as a waiver of governmental immunity. Though the jurisprudential theory underpinning why the government enjoys such a unique perk is significant, it is more important to understand how this law practically works. The first step in determining whether the CGIA applies to your case is to determine whether a governmental agency or employee caused, or was involved in causing, the injury to an insured’s employee.

Commonplace examples of personal injury claims involving a governmental entity include injuries caused by dangerous conditions, such as slip and falls on ice found on the grounds of governmental facilities – schools or parks maintained by a municipality, city or state. See, also Reynolds v. School District No. 1 Denver, 69 F.3d 1532 (10th Cir 1995). More subtle instances of entities who may claim protections under the CGIA include physicians whom are associated with state teaching intuitions, but work at medical facilities conducting surgeries. Rudnick v. Ferguson, et. al., 179 P.3d 26 (Colo. App. 2007). State hospitals and its employees also enjoy the protections of the CGIA. Injuries caused by a federal governmental entity or employee implicate the Federal Tort Claims Act. 28 U.S.C., Chapter 17. It is important to distinguish between state and federal entities at the onset of the claim to determine which notice provisions apply in your case.

Once the governmental entity or employee is identified, any party seeking damages, including damages provided under the subrogation statute, must provide the entity notice consistent with the CGIA. Notice of a claim must be sent in writing within “one-hundred and eight-two days” after the “discovery of the injury, regardless of whether the person then knew of all elements of claim or of a cause of action for such injury.” Section 24-10-109(1). As a general rule, most familiar with the CGIA use 180 days as the notice deadline. It is critical to file the written notice within 180 days after the employer or carrier has reasonable or actual notice of a workers’ compensation injury. Failure to provide a claim notice within the 180 day window will result in the claim being barred by the CGIA, as has happened in a number of cases. Once a trial court dismisses a claim as a result of untimely notice, the appeals courts usually provide no sympathy to a CGIA claimant.

The case of The City and County of Denver v. Crandall, 161 P.3d 627 (Colo. 2007) is illustrative of the harsh realities of not meeting the 180-day notice deadline. In that case, customer service agents working for an airliner at DIA alleged an environmental exposure injury caused by the poor air quality in Concourse B. The employees manifested symptoms consistent with the exposure in 1999 through 2002. In 2002, one employee filed a workers’ compensation claim alleging a 1999 date of injury. Multiple injured employees then filed notice of a CGIA claim with the City of Denver. The city claimed that the notice should have been filed within 180 days from the 1999 date of injury as noted on the workers’ compensation claim form. Although the employees demonstrated recurring symptoms in 2002, the Colorado Supreme Court barred the claim against the city on the grounds that the notice should have been filed in 1999. The employees were unable to recover damages against the city. The case, however, does not address whether a workers’ compensation carrier would be able to file a timely CGIA claim if the carrier found out about the injury in 2002. However, it does imply that the 180-day requirement starts ticking when a party, perhaps even the employer, has reasonable evidence that an injury has occurred.

The CGIA also requires that the notice contain specific language. Section 24-10-109(2)(a)-(e), C.R.S. provides that the claim notice requires: (a) the name and address of the claimant and the name and address of his attorney, if any; (b) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (c) the name and address of any public employee involved, if known; (d) a concise statement of the nature and the extent of the injury claimed to have been suffered; (e) a statement of the amount of monetary damages that is being requested. As a workers’ compensation carrier, the carrier or employer who carries the loss can be considered the “claimant,” as described in section (a). Since the exposure for a workers’ compensation claim may be unknown until several years after the injury, the notice of damages should contain a statement of generalized monetary figures or allegations. The courts often times strictly enforce what is statutorily required to be in the notice. Hamon Contractors, Inc., Carter and Burgess, Inc., 229 P.3d 282, (Colo.App.2009). Though you may serve the written notice within 180 days, failure to include a statement of circumstances of the event, for example, can result in a bar to the claim.

Finally, the written notice must be served with the proper governmental entity. According to the CGIA, “[i]f the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered or certified mail, return receipt requested, or upon personal service.” Section 24-10-109(3)(a). Additionally, subsection (b) states that a “notice required under this section that is properly filed with a public entity’s agent listed in the inventory of local governmental entities pursuant to section 24-32-116, is deemed to satisfy the requirements of this section.” Each governmental agency may have a different division or department designated to receive CGIA claims notices, such as a city attorney or a county clerk. It is advisable to contact the agency several weeks before the notice due date to obtain the name, address and division for the department designated to accept claim notices.

This article only scratches the surface of the CGIA’s complexities. But the most critical aspect of the CGIA, and the greatest obstacle in governmental subrogation recovery, is filing a claim against a government with the 180-day timeframe. Claims against the government can be won and lost depending on whether the timely notice has been met. If the timeframe is not met, the governmental “somebody doing something wrong” entity or employee will be granted immunity under the law even if the government is 100% at fault.

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