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

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In the News

Lee & Brown was this year’s Hospitality Sponsor and well represented at the Annual Professionals in Workers’ Compensation Awards Banquet on April 27th. Members Joshua Brown and Joseph Gren were accompanied by Of Counsel Brad Hansen and Office Manager Denise Iannotti as the PWC of Colorado honored those who contribute outstanding efforts in the workers’ compensation community. The PWC is a diverse non-profit organization that provides educational programs, seminars and networking opportunities for professionals involved in the Colorado Workers’ Compensation system, bringing together medical, legal, insurance and human resources professionals, as well as service providers. Member Joshua Brown humbly and graciously accepted Lee & Brown’s award for Outstanding Sponsor. The PWC also granted scholarships to four very deserving high school seniors planning to major in a business, medical or legal emphasized degree in a college or university this fall.


Noteworthy Cases

John Abraham Denver AttorneyIn Krein v. Walmart Associates Incorporated d/b/a Sam’s Club, Member John Abraham, successfully defended a full contest claim. Claimant alleged she sustained an aggravation of her chronic and pre-existing thoracic spine condition while moving a soda “BIB” on July 12, 2017. Claimant testified on her own behalf and had an expert witness conduct an IME at her request. Claimant’s IME had indicated that there was an aggravation of the underlying condition based on the location of Claimant’s pain. Mr. Abraham successfully demonstrated through substantial prior medical records that Claimant had inconsistencies in both her hearing testimony and in the information she provided to her physicians, including her IME physician. Respondents’ medical expert noted that Claimant denied any prior thoracic spine pain complaints even though her medical records had numerous notations in which she was treated for chronic thoracic spine complaints and was on several narcotic medications for her ongoing pain. The ALJ found that Claimant failed to prove she sustained a compensable injury. Specifically, the ALJ credited Respondents’ medical expert and the opinion of Claimant’s treating physician over the opinion of Claimant’s expert in finding that Claimant’s pain complaints represented a natural progression of her underlying degenerative spine condition, rather than an aggravation. The claim was denied and dismissed.


Of Counsel M. Frances McCracken successfully challenged Claimant’s request for maintenance medical treatment in Dunfee v. Best Buy Corporate. Claimant suffered an admitted injury in October 2015 while installing a retail display and was subsequently diagnosed with a mild traumatic brain injury/concussion. Respondents filed a FAL on December 6, 2017. Claimant testified that after MMI, he continued to have severe headaches and issues with short-term memory. Ms. McCracken presented evidence from Claimant’s medical records along with the testimony of the DIME physician in support of Respondents’ position that maintenance medical treatment was not reasonable or necessary. The ALJ found that Claimant failed to demonstrate that it was more likely than not that the recommended post-MMI treatment, consisting of physical therapy and injections, would prevent further deterioration of his physical condition. In fact, the ALJ found that it was more likely that the recommended medical treatment would have an effect of worsening the Claimant’s reported conditions. Claimant’s claim for maintenance medical treatment was denied and dismissed.

In Cybert v. Town of Castle Rock, Of Counsel Bradley J. Hansen successfully defended a full contest claim for Claimant’s assertion that he sustained a new back injury in the course and scope of his employment. Mr. Hansen elicited testimony from Respondents’ medical expert and entered medical records into evidence to demonstrate that Claimant was treating for his lower back prior to the alleged incident of October 9, 2016. Mr. Hansen emphasized that there was evidence that Claimant’s complaints were a continuation of previous back claims due to Claimant’s chronic degenerative back condition and prior L4-L5 surgery. The ALJ found that Claimant’s reported mechanism of injury on October 9, 2016 did not aggravate the underlying back condition and that the alleged incident did not accelerate Claimant’s need for medical treatment. The ALJ found that Claimant was already treating for the same condition prior to the alleged incident and the evidence also established that Claimant was being considered for surgery on his lower back prior to the alleged work incident in October 2016. The ALJ therefore found that Claimant failed to meet his burden of proof that he suffered a new compensable injury.

In Suomie v. Spectrum Retirement Communities, Mr. Hansen was also successful in challenging Claimant’s request for a DIME, after the filing of the FAL and Claimant’s objection to it. There was no lost time or PPD paid in the claim, so Respondents’ took the position that Claimant did not have the statutory right to a DIME, based on recent case law. See; Harmon-Bergstedt v. Loofbourrow. A Prehearing Administrative Law Judge (PALJ) granted Respondents’ Motion to Strike the DIME Application and denied Claimant’s request for a DIME without prejudice. Claimant filed an Application for Hearing to appeal the PALJ’s Order. At hearing, Mr. Hansen successfully argued that since no indemnity had been paid on the claim, Claimant did not meet the statutory definition of MMI based on the holding in Harmon-Bergstedt v.Loofbourrow. He further argued that Claimant had no statutory right to a DIME under the Workers’ Compensation Act. The ALJ ruled in Respondents’ favor by affirming the PALJ’s Order denying Claimant’s request for a DIME. The claim is being appealed by Claimant, so we will keep providing updates on the evolution of this important claim where there is no lost time and no awarded PPD.


Associate Matt Boatwright successfully defended against Claimant’s appeal to the Industrial Claim Appeals Office (ICAO) of the denial of his claim in Eastman v. United Parcel Service. Claimant’s claim for compensation for an alleged shoulder injury was denied by the ALJ at hearing. Claimant pursued an appeal through ICAO, which affirmed the ALJ’s Order on the basis that it was supported by substantial evidence in the record.


Acts of Employees that Reduce Compensation

There are a few defenses often overlooked when investigating a workers’ compensation claim and deciding whether to admit liability. Some of those defenses include safety rule violations, willful misleading of the employer regarding the claimant’s physical abilities, and intoxication defenses. These defenses should always be considered as part of a checklist when determining compensability and benefits owed to the claimant. Each defense can reduce compensation to the claimant by up to 50% and can be taken immediately upon initial filing of the admission with the Division. It is important to note the distinctions with each defense as they must be noted in the remarks section of the admission when filing with the Division. Continue reading the article.


Cases You Should Know


Career Opportunities – Conditional Offers of Modified Employment: In Cruz v. ICAO, 17CA1469 (March 22, 2018)(nsfp), the Colorado Court of Appeals addressed the topic of offers of modified employment. Claimant was receiving TTD benefits when the employer sent a letter to Claimant advising of a proposed modified job offer within Claimant’s modified work restrictions. The offer letter indicated that the start date was tentative, dependent on Claimant’s completion of an application and background check. Claimant did not complete the background check or commence with employment. As such, Respondents terminated Claimant’s TTD benefits. Claimant alleged penalties for improper termination of TTD benefits. Claimant argued that the employer improperly terminated his TTD benefits after Claimant failed to appear for modified work that the employer offered to him. Claimant relied on contractual law arguing that the employer’s modified job offer was not a valid offer because it was conditional on Claimant’s background check. The ALJ found, and the Industrial Claim Appeals Office and the Court of Appeals agreed, that the employer’s modified employment offer fulfilled the necessary elements of an offer. The fact that the offer of employment was conditional upon Claimant successfully completing a background check and application did not invalidate the offer of modified employment.


Moral of the story: A valid modified job offer can be a conditional offer as long as it complies with Rule 6 and meets the statutory requirements of a valid offer of modified employment.


There’s No Benefit – Nothing Special About “Going to and Coming From Work”: In LaGasse v. ICAO, 17CA1438 (March 29, 2018)(nsfp), a widow sought death benefits after her husband, a derrick hand for the oil-driller employer, died in a single-car automobile accident after leaving work. Claimant sought appeal for death benefits. On appeal, Respondents argued the longstanding “going to and coming from” rule applied, which negated entitlement to benefits. Claimant argued that the special circumstances exception rule applied in this matter to justify the granting of death benefits. The law is clear that injuries or death that occur when an employee is traveling to or from his / her job are not compensable. Exceptions to the “going to and coming from” rule have been set forth in case law. Specifically, Claimant argued that the exception applied in cases where travel is a substantial part of the service to the employer. Case law notes that examples of providing substantial service or benefit to the employer include: when a task is assigned to an employee; when the travel is by the employer’s implied or express request or confers a benefit on the employer beyond the sole fact of an employee’s arrival at work; and when travel is singled out for special treatment as an inducement into employment. The Colorado Court of Appeals applied the law as written. Under the facts and circumstances of this particular claim, the “going to and from” rule applied, there were no special exceptions, therefore this was not a work-related accident. The claim for death benefits was denied.
Moral of the story: Generally speaking, injuries arising when an employee is traveling to and from work are not compensable, unless there is an incidental benefit to the employer. This is a matter of fact for an ALJ to decide.
Time is Tight –Statute of Limitations Bars Claimant’s Claim: In Barbara McGlothlen v. Karman, Inc., W.C. No. 4-937-396-01 (April 2, 2018), pro se Claimant sought review of an ALJ’s Order which granted Respondents’ Motion for Summary Judgment and dismissed, with prejudice, Claimant’s claim for benefits. The employer filed a First Report of Injury on December 4, 2013. The insurer filed a Notice of Contest on December 24, 2013. DOWC notified Claimant December 26, 2013. Claimant filed an Application for Hearing on September 6, 2017, on compensability, among other issues. Respondents filed a Motion for Summary Judgment, contending that the Claimant had not filed a claim for compensation within the two-year statutory period. The ALJ granted the Motion, based on the Claimant’s failure to file a workers’ compensation claim within two years pursuant to §8-43-103(2), C.R.S, which states that the right to workers’ compensation is barred unless a formal claim is filed within two years of the injury, or three years if a reasonable excuse exists. Claimant argued on appeal that the employer fraudulently filed a First Report of Injury and provided argument supporting her claim for compensability. ICAO noted that the First Report of Injury was different than a Workers’ Claim for Compensation and noted that the statute of limitations begins when a Claimant knows, or should have known, the nature and seriousness of the injury. ICAO affirmed the ALJ’s Order.
Moral of the story: Although the employer is required by statute to timely file the First Report of Injury, Claimant must take some action and file a claim within two years of the injury to preserve their right to pursue benefits.