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

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
and Alignable


In the News

Lee & Brown was proud to be a sponsor in the third annual charity ride and rally hosted by Sturgeon Electric, July 14, 2018. This great event was a benefit for Freedom Service Dogs of America, a non-profit organization that transforms shelter dogs into custom trained, life-changing assistance dogs for people in need. Thank you to everyone who supported, sponsored, and rode to raise over $30K for this important cause!Enjoy the video:

Noteworthy Cases

Joseph Gren Denver AttorneyMember Joseph Gren was successful in having a claim for an alleged shoulder and neck injury denied and dismissed in Washington v. United Parcel Service. Claimant alleged that he suffered an injury at his job lifting packages. Claimant claimed that his injury subsequently progressed to involvement of the neck, for which he sought surgery. Mr. Gren demonstrated to the Court that the Claimant’s account of how the alleged injury occurred was not consistent with the medical records. Respondents’ expert credibly testified that the Claimant’s job duties were not consistent with the mechanism of injury, and that the opinions of the treating providers made assumptions about the work duties that were not consistent with Claimant’s job function. Mr. Gren also elicited information at hearing that involved an undisclosed neck injury with ongoing treatment. The ALJ found that Claimant had failed to prove a compensable injury and denied the claim.


In Meza v. Bayou Well Services, Inc., Member Joseph Gren successfully defended against Claimant’s request to reopen his claim for a worsening of condition. Claimant sustained an admitted injury on September 6, 2013, when a large piece of equipment fell onto his back. Claimant underwent conservative care and was placed at MMI on March 27, 2014. Respondents filed a FAL on April 29, 2014. Claimant failed to object to the FAL and the claim was administratively closed. At hearing, Claimant alleged a change in his medical condition, relying on a report from his expert dated July 17, 2015. Mr. Gren presented evidence of diagnostic testing which revealed that there was no change in Claimant’s back since the MRI performed following the injury. Respondents’ expert credibly testified that Claimant lacked new objective findings on physical examination and that his condition had not changed since being placed at MMI in 2014. The ALJ credited the opinion of Respondents’ expert over that of the Claimant and Claimant’s expert. The ALJ found that Claimant did not meet his burden of proof for his Petition to Reopen. The Petition to Reopen was denied and dismissed.


Member Joseph Gren also successfully defended a full contest claim for an alleged foot injury in Wood v. United Parcel Service. Claimant alleged that he suffered an injury to his foot while entering his vehicle after making a delivery. Claimant reported the injury over a year later and was diagnosed with plantar fibromatosis. Mr. Gren demonstrated, through substantial medical records and expert testimony, that the condition was a naturally occurring condition. Respondents’ expert credibly testified that Claimant’s job duties did not aggravate Claimant’s naturally occurring condition. The ALJ found Respondents’ expert to be credible and that Claimant did not sustain an acute injury to his left foot on June 1, 2016. The ALJ agreed with Respondents’ expert that the current complaints were a natural and probable progression of his preexisting condition. The ALJ found that Claimant failed to prove a compensable injury and the claim was denied and dismissed.


Associate Matt Boatwright successfully challenged Claimant’s entitlement to ongoing temporary disability benefits in Voorhees v. United Parcel Service. Claimant had been collecting temporary disability benefits for the duration of the claim and was not at MMI. Respondents conducted surveillance, which reflected that Claimant was simultaneously engaged in non-related outdoor activities while collecting disability. Claimant sustained injuries while riding a dirt bike, after which Respondents asserted that he was not entitled to collect further temporary disability benefits due to an intervening cause. The ALJ found that Respondents had met their burden to prove that ongoing disability was not related to the original work injury and permitted termination of temporary disability benefits retroactive to the intervening injury.




We typically think of compensable injuries occurring when the employee is already at their place of employment. But what about the time employees spend on the road, coming from and going to work? Many industries require employees to drive as part of their daily duties, not to mention the time workers in various professions spend commuting to and from the job site. Continue reading the article.


Cases You Should Know

Horsin’ Around at Work: In Alvarez v. Rifle Tequilas Inc., W.C. NO. 5-050-687 (July 6, 2018), Respondents sought review of the ALJ’s Order finding that Claimant sustained a compensable work-related injury as a result of an assault from a co-employee. ICAO affirmed the ALJ’s decision. Employer provided each of his employees a beer each night at the end of their shift as a perk. One night, Claimant was physically assaulted after he hid his co-employee’s beer. The Claimant and co-employee had a long-standing history of horseplay, which the employer knew about. Using the four-part test pursuant to Lori’s Family Dining Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995), the presiding ALJ found that Claimant’s act of horseplay (hiding the beer) was not a deviation from his employment and not inherently private. The ALJ reasoned that the assault arose out of the employer’s perk and was related to the duties of the employment. As such, the claim was compensable.


Moral of the Story: Generally speaking, a claimant’s horseplay with another employee is inherently private. However, when the horseplay between employees is related to the circumstances of the employment (an employee perk), the injury is compensable.


The Controlling ATP: In Morris v. Olson Heating & Plumbing Co., W.C. NO. 4-980-171-02 (July 6, 2018), Claimant sought review of an ALJ’s Supplemental Order denying a request for post-MMI medical benefits. Claimant sustained an admitted injury to the lower extremity. Claimant underwent treatment and was placed at MMI. Claimant objected to the ATP’s determinations and sought a DIME. The DIME assigned a scheduled permanent impairment rating and indicated post-MMI medical benefits were required. Respondents filed an amended FAL and admitted to the DIME’s impairment rating but denied post-MMI medical benefits pursuant to the ATP’s recommendations. Claimant argued that the DIME’s determination controlled regarding post-MMI medical treatment. The ALJ indicated that it was Claimant’s burden of proof to establish the necessity of post-MMI medical treatment by a preponderance of the evidence as the DIME’s determinations were limited to permanent impairment and MMI. ICAO affirmed stating that a DIME opinion on post-MMI medical treatment is not entitled to the same presumptive effect as that attached to DIME determinations of MMI or whole person impairment ratings. (Citing City Market v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003).


Moral of the Story: A DIME’s determination is controlling as to MMI and whole person impairment ratings.


Keep it Current: In Tew v. Zachs Transmission & 4×4 LLC, W.C. NO. 5-053-962 (July 3, 2018), Respondents sought review of 2 Orders issued by the Director of the Division of Workers’ Compensation regarding an award of penalties against Respondents. ICAO affirmed the Orders. Claimant sustained an injury on July 26, 2017. On August 10, 2017, Employer filed an Employer’s First Report of Injury. On August 17, 2017, Respondents attempted to file a Notice of Contest via EDI. The Notice of Contest was rejected. On October 5, 2017, the Director issued an Order directing Respondents to file a position statement within 15 days. No response was received. On November 17, 2017, the Director assessed penalties against Respondents; however, the Order was returned to the Division due to the insurer’s invalid mailing address. The Division notified the insurer via email. At that time, the insurer took immediate action to fulfill the Division’s requests. Respondents filed a Petition to Review and requested a prehearing conference for reconsideration of the Order. On February 13, 2018, the Director issued a Supplemental Order denying Respondents’ request for reconsideration and Petition to Review. The Director found that pursuant to Rule 5-14, W.C.R.P., an insurer is required to provide a mailing address to the Division and that mailing to the provided address is “deemed good service.”

Moral of the Story: Failure to timely update a mailing address is not a defense against an award of penalties.


No Texting While Driving but Talking while Driving is Compensable: In this claim, Claimant was involved in a motor vehicle accident (MVA) on her way home from attending a work-related planning meeting. The claim proceeded to hearing for a determination on whether Claimant was in the course and scope of her employment while traveling home from a business meeting. Respondents cited the “going to and coming from” rule and argued the claim was not compensable because the MVA occurred while Claimant was going home. See Berry’s Coffee Shop, Inc. v. Palomba, 423 P.2d 212 (Colo 1967). Claimant asserted that travel was a part of her employment; therefore, the MVA was compensable. Even if found she was not in employment status, the MVA occurred while she was on a work-related cell phone call which brought her back into employment status. Respondents argued that if Claimant was on her phone, she violated the employers’ handbook policy and deviated from her employment. The ALJ found travel was a contemplated part of Claimant’s employment and that the injury was compensable. Respondents appealed. The Panel found that travel was clearly contemplated with employment and Claimant did not depart from her sphere of employment by being on her phone while driving. ICAO affirmed. Elorriga v. ADP Total Source, W.C. No. 5-047-389 (June 19, 2018).

Moral of the story: It is difficult to defend claims where employees are required to travel as a part of employment unless it can be shown the claimant substantially deviated from their employment duties.


The Fire is Not Out Yet: Further evaluation of the firefighter statute continues in City of Boulder Fire Department v. Dean Pacello, (Colo. App. 2018)(nfsp). Claimant was a firefighter for 35 years. After he retired, he developed tongue cancer. It was undisputed that pursuant to C.R.S. § 8-41-209, Respondents had the burden to prove the cancer was not work related. Respondents provided medical evidence that the cancer was more likely caused by HPV, a sexually transmitted disease, than exposure from firefighting. Claimant’s experts testified the cancer was caused by a combination of the virus and firefighting. The ALJ found the claim compensable. Respondents appealed and argued to overcome the presumption by showing the cancer was more likely caused by the virus and the ALJ erred in accepting the multifactorial argument because it created an irrebuttable presumption, as most cancers have multiple risk factors. The Court disagreed. It noted the presumption can be overcome by showing the cancer more likely arose from a “source outside the workplace.” But, the presumption is not automatically rebutted by identifying a non-occupational risk factor. It must be established that the non-occupational risk factor played a prominent role in the cancer’s development. The ALJ makes the determination of whether or not Respondents met the burden. The Court affirmed.

Moral of Story: The ALJ must be persuaded that exposures outside of work were more likely to have caused cancer than exposures while firefighting.