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

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Noteworthy Cases

In Lagasse v. Xtreme Drilling and Coil Service and New Hampshire Insurance Company, Court of Appeals No. 17CA1438, Of Counsel Bradley J. Hansen successfully defended against Claimant’s appeal to the Court of Appeals to set aside the ICAO decision affirming the denial and dismissal of her claim for death benefits. Claimant’s husband died while driving home after working his shift on an oil rig in northeast Colorado. At hearing, the ALJ found that as Decedent’s death occurred while driving home, it would fall under the “going to and from” rule, which does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. Claimant alleged an exception to the rule, relying on Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999), arguing that the travel conferred a benefit to the employer beyond the sole fact of the Decedent’s arrival at work since the oil rigs occasionally moved to new locations and therefore travel was implicitly contemplated by the employment agreement. Despite Claimant’s contention, the ALJ rejected the argument that special circumstances existed outside of Decedent’s arrival at work and denied Claimant’s claim for death benefits. ICAO affirmed the ALJ’s Order.

On appeal to the Court of Appeals, Claimant argued that ICAO erred in affirming the ALJ’s Order, contending that the ALJ made Findings of Fact that contradicted how he applied them to the law. The Court of Appeals rejected Claimant’s argument, finding substantial evidence supporting the Findings of Fact by the ALJ. The Court noted, “The mere fact that the ALJ made some findings that could have supported Claimant’s position does not alter the fact that, on balance, the ALJ determined the facts ultimately weighed in the employer’s favor. These findings confirmed the ALJ carefully weighed all the evidence presented to him.” All three judges on the Panel concurred in affirming ICAO’s Order.


Of Counsel M. Frances McCracken challenged a request for a spinal cord stimulator trial and ongoing prescriptions under maintenance medical benefits in Turner v. Sam’s Club, Inc., W.C. No. 4-799-129. Claimant sustained an admitted industrial injury to his right hip on May 25, 2009 and underwent various forms of conservative treatment and diagnostic procedures. On February 27, 2012, Respondents filed a FAL placing Claimant at MMI as of July 12, 2011, admitting for reasonably necessary and related post-MMI medical benefits. Claimant’s treating physician requested authorization for a spinal cord stimulator and ongoing prescription medications under maintenance care. The ALJ determined Claimant failed to prove the DRG spinal cord stimulator/IPG reprogramming was reasonable and necessary to cure and relieve the effects of the May 25, 2009 industrial injury. The ALJ credited the opinions of Respondents’ expert that Claimant did not meet the Medical Treatment Guidelines (MTGs) criteria for neurostimulation, as Claimant’s pain generator was unclear and there were strong psychological factors. The ALJ noted while Claimant’s treating physician had repeatedly recommended neurostimulation throughout Claimant’s claim, he had not provided any analysis of the criteria for implantation under the MTGs, or any reason to deviate from the MTGs. The ALJ further concluded that Claimant failed to establish, by a preponderance of the evidence, that the ongoing prescription for Celebrex was reasonable and necessary.

Associate Matt Boatwright successfully contested a request for a three-level cervical fusion surgery in Toombs v. Pepsi Beverages Company f/k/a Pepsi Bottling Group and ACE American Insurance. Respondents admitted for a shoulder injury suffered as a result of lifting. The surgeon’s initial request was denied pursuant to a Rule 16 review conducted by Respondents’ expert. The requesting surgeon issued a rebuttal opinion and Respondents took the matter to hearing. The ALJ found that Respondents’ expert testified credibly and persuasively that the cervical condition would not have been aggravated or accelerated by the admitted work injury, notwithstanding the presence of cervical complaints in records documenting the initial injury. The ALJ denied the requested procedure as not reasonable, necessary, or related to the work injury.


Injuries Resulting from Workplace Violence — When Are They Compensable?

Under the Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable. An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions. An injury arises “out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract. Continue reading the article.



Cases You Should Know

Too little, “Two” late? In Galagar v. E2 Optics, W.C. No. 5-016-677 (March 6, 2018), Claimant sought review of a corrected Order, dated October 19, 2017, that granted Respondents’ Motion for Summary Judgement and dismissed the claim for benefits. Respondents filed a Motion for Summary Judgement on October 12, 2017. The Motion asserted Claimant sustained an alleged workplace injury in August of 2015. Claimant subsequently filed a claim for workers compensation on April 29, 2016. An Application for Hearing was later filed on August 23, 2017. Respondents asserted the two-year statute of limitations specified in C.R.S. § 8-43-103(2). The ALJ issued an Order granting summary judgement and dismissing the claim. The ICAO reversed and set aside the Order. The ICAO stated that while C.R.S. § 8-43-103(2) provides a two-year period to file a claim for compensation, the section does not provide a restriction upon an Application for Hearing.

Moral of the Story: Injured workers have 2 years to file a claim for workers’ compensation following an injury under C.R.S. § 8-43-103(2). The two-year period under this statute may not apply to the filling of an Application for Hearing, although the law is unclear, as this is only ICAO authority.


Admission? What Admission? In Yeutter v CBW Automation, Inc., W.C. 4-895-940 (February 26, 2018), Claimant was struck by a machine on part of the face, ear, and shoulder. Claimant returned to work 2 weeks after the injury. He was later taken off work and diagnosed with work-related narcolepsy. Claimant was placed at MMI. The DIME physician agreed the narcolepsy was work related. Respondents filed a FAL. Claimant pursued PTD benefits alleging he was unable to work due to the narcolepsy. The ALJ determined the narcolepsy was not work related and denied medical benefits to treat narcolepsy. The ALJ also found, even if narcolepsy was related, Claimant could return to work and denied PTD benefits. Claimant appealed and argued the DIME findings regarding relatedness of the narcolepsy were binding because Respondents did not dispute the DIME. ICAO upheld the determination, denying PTD and medical maintenance benefits were supported by substantial evidence. ICAO disagreed Respondents were bound by the uncontested DIME opinion. The Panel noted the presumptive effect of a DIME opinion only applies to MMI and impairment. Because Respondents were challenging PTD benefits, the heightened burden of proof to overcome the DIME required by C.R.S. § 8-42-107(8) did not apply. Claimant failed to prove entitlement to PTD benefits and ICAO upheld the ALJ’s decision. However, the dissent found it was unfair to permit Respondents to accept Claimant’s narcolepsy for impairment, but challenge it for PTD and medical maintenance benefits.

Moral of the Story: Causation may be litigated in determining PTD and future medical benefits, even though a carrier had accepted a rating for that body part.


Watch where you are going: In Rinehart v. Employbridge Holding Company, W.C. 5-038-309 (February 27, 2018), Claimant sought review of an Order that determined the compensable injury was limited to a laceration on the top of her head and denied temporary indemnity benefits and penalties. Claimant sustained an open wound head injury after walking into a backhoe. Claimant initially treated for a laceration on her forehead. Her complaints later grew to include headaches, neck pain, and dizziness. The ALJ found Claimant’s compensable injury was limited to a laceration to her forehead. Crediting the opinions of Respondents’ expert, the ALJ was not persuaded Claimant sustained another injury due to the January 5, 2017 incident. Claimant’s primary argument was that the ALJ’s opinion was not supported by substantial evidence, as 8t different medical professionals opined Claimant sustained a concussion. The ICAO panel held that the ALJ’s opinion was supported by the opinions of Respondents’ expert. While there was conflicting evidence, the ALJ made reasonable inferences to resolve the conflicting evidence to which the Panel may not disturb. C.R.S. § 8-43-301(8). The ICAO upheld the ALJ’s opinion that Claimant’s compensable injury was limited to a laceration on the top of her head.

Moral of the Story: The ALJ’s opinion regarding compensability will be upheld if supported by substantial evidence, regardless of whether there is conflicting evidence.


Checkmate. ALJ’s Opinion Inconsequential Without the DIME: Claimant sustained a work-related low back injury in Portillo v. ICAO, 17CA0895 (March 8, 2018)(nsfp). There was a dispute whether the doctor was an ATP. At Claimant’s initial visit with the doctor, Claimant signed an IME disclosure form. The doctor continued seeing Claimant and placed him at MMI. Respondents filed a FAL. Claimant filed an Application for Hearing to strike the FAL and continue medical treatment. Claimant also requested a DIME. The parties presented to hearing before the DIME took place. Respondents argued the ALJ lacked jurisdiction because the DIME had not yet taken place. Claimant argued the doctor was not an ATP; therefore, his MMI determination was ineffective, the FAL was invalid, and a DIME was not ripe. The ALJ granted Claimant’s request for medical treatment; however, the ALJ did not provide a factual analysis or opinion as to whether the doctor was an ATP. Therefore, ICAO held Respondents could file a FAL based on the doctor’s determination. A DIME was a prerequisite to any hearing concerning the validity of an ATP finding of MMI. Thus, the ALJ lacked jurisdiction without a DIME.

Moral of the Story: Once a DIME is requested, it must take place before a hearing can proceed regarding MMI or impairment.


ICAO Review of ALJ DIME and Grover Orders, “Exceedingly Narrow”: In Veronica Kehler v. Labor ETC., Inc., W.C. No. 5-000-017-01 (February 12, 2018), the pro se Claimant sought review of an Order determining the DIME physician’s opinions on permanent impairment and maintenance medical benefits were not overcome. Claimant sustained an admitted lumbar strain. After extensive conservative treatment, Claimant was placed at MMI and provided a 20% whole person impairment of the lumbar spine. A DIME physician found Claimant’s presentation consistent with the assessment of malingering and that the permanent impairment range of motion loss, restrictions, and additional maintenance care were not appropriate. A subsequent Respondent IME agreed with the DIME physician’s assessment that the impairment rating, activity restrictions, and maintenance care were not appropriate. The DIME physician’s opinion on permanent impairment is binding unless overcome by “clear and convincing evidence”. Section 8-42-107(8)(c), C.R.S. The ALJ determined that the Claimant failed to overcome the DIME physician’s impairment rating or prove entitlement to maintenance medical benefits. ICAO upheld the ALJ’s findings as supported by substantial evidence.

Moral of the Story: The ALJ’s findings regarding a DIME physician’s medical impairment rating and award of maintenance medical benefits will be upheld if supported by substantial evidence.


ALJ’s Fact-Finding Reigns Supreme: These next 2 summaries involve Maria De La Luz Saenz v. Tagawa Greenhouse Enterprises, LLC, W.C. Nos. 4-972-238-02 & 5-112-306-01 (August 29, 2017). In the first claim, Claimant sought review of an Order that denied and dismissed her claim and determined that Respondents overcame the DIME physician’s opinion. Claimant alleged a work injury to her left knee on August 18, 2014, when she misjudged the final rung on a ladder and fell onto both knees. Although Claimant notified her supervisor of the incident, she did not report an injury and declined medical treatment. Claimant initially sought medical treatment on December 26, 2014, stating that the knee pain began “three days ago” and failing to mention the August 18, 2014 work incident. Claimant told co-workers she “hurt her knee at home”. Claimant was referred to a knee surgeon who diagnosed Claimant with degenerative arthritis in her left knee and discussed the possibility of a total left knee arthroplasty. The ALJ determined that Claimant failed to prove she sustained a compensable knee injury.

The subject of W.C. No. 5-112-306-01 was the Claimant’s admitted left knee injury on April 8, 2016. Claimant was diagnosed with bilateral knee contusions and prescribed conservative treatment. A subsequent MRI showed a torn medial meniscus. A knee arthroscopy and debridement was recommended. Another doctor performed a Respondent IME that determined Claimant’s left knee complaints were caused by advanced chronic degenerative and pre-existing tri-compartmental osteoarthritis and there was no evidence of worsening or aggravation related to the April 8, 2016 knee injury. The surgical request was denied. The doctor placed Claimant at MMI on August 15, 2016 and provided Claimant no permanent impairment or maintenance medical benefits. In a DIME, the physician concluded that Claimant’s left knee problems were related to the work injury and that she required surgery. Respondents sought to overcome the DIME. The ALJ determined that Respondents produced clear and convincing evidence to overcome the DIME. ICAO affirmed the ALJ’s Order.

Moral of the Story: The ALJ’s assessments on credibility, weight, and inferences drawn from evidence regarding compensability and medical opinion testimony are paramount.