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

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In The News

Members Joshua Brown and John Abraham, along with Office Manager Denise Iannotti, represented Lee & Brown at the National Association of Minority and Women Owned Law Firms’ (NAMWOLF) Annual Conference held in Chicago September 25-29th. A member since 2013, Lee & Brown is proud to be a part of this outstanding organization and assist in its efforts to promote diversity through the creation of legal opportunity for minority and women owned law firms.

The Firm was very recognized throughout the conference thanks to their ability to “clone” Members Brown and Abraham as life-size cardboard cutouts, which were utilized in the implementation of their well-received game of “Finding Josh and John”. Fellow NAMWOLF Member Krishna Reddy, Esq. of Paul Garcia & Associates in San Antonio, Texas was the very happy winner of an Apple Watch as a result of his savvy game playing skills.

Everyone is now preparing for the next NAMWOLF event – the annual Business Meeting, to be held in New Orleans in February 2019.


Noteworthy Cases

Joshua Brown Attorney DenverMember Joshua Brown and Associate Kristi Robarge  successfully defended a full contest claim in Kelson v. SkyWest Airlines, Inc., W.C. 5-061-588. Claimant, a flight attendant, was traveling to her hotel on a shuttle bus when the bus stopped suddenly to avoid a collision. Claimant alleged an injury to her left shoulder from bracing against the seat in front of her. However, Claimant did not report the alleged injury until one month later when she had an unrelated stroke and ended up in the hospital. From the date of the alleged injury until Claimant’s unrelated stroke, she continued to work full duty. Respondents’ expert testified that it was not medically probable that the left shoulder injury was causally related to the shuttle bus incident. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.


John Abraham Denver AttorneyMember John Abraham and Associate Jessie M. Tasselmyer successfully defended against Claimant’s request for ongoing maintenance medical care in Riccillo v. Parkview Medical Center. Claimant suffered a slip and fall accident in 1996. Claimant underwent extensive treatment and was ultimately placed at MMI. Thereafter, the indemnity portion of her case was settled, except for maintenance medical care. Claimant continued to treat and receive medications. Respondents retained an expert to opine on Claimant’s ongoing maintenance medical care. Respondents’ expert testified at hearing that Claimant suffered from a somatic pain disorder as well as pre-existing depression and anxiety. He further testified that even though Claimant’s ongoing depression and anxiety may have been related to the industrial injury in the past, it was no longer probable that her continued complaints of depression and anxiety were related to the industrial injury approximately 22 years later. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.


Of Counsel Sheila Toborg and Associate Jessie M. Tasselmyer successfully defended against Claimant’s attempt to overcome a DIME in Thompson v. The Home Depot. Claimant alleged that the DIME failed to address her psycho-social issues impacting her physical condition. Claimant also alleged that her physical abilities at the time of the DIME were inaccurate due to the performance of a steroid injection prior to the exam. Respondents’ expert credibly testified that the findings of the DIME were appropriate, and that Claimant’s ongoing complaints were unrelated to the work injury. The ALJ relied on testimony of Respondents’ IME physician and the DIME report, stating that the report addressed all of Claimant’s complaints and conditions and that there was no convincing evidence that the DIME’s determination of MMI was invalid.


Of Counsel M. Frances McCracken, successfully defended a full contest claim in Garza v. Walmart Associates. Inc. dba Sam’s Wholesale Club. Claimant alleged he injured his back when he slipped on water at work. Claimant denied falling but stated he “significantly wind-milled his arms in a Charlie Chaplin like manner” to maintain his balance and felt a twinge in his back. Security video did not show Claimant wind-milled or cartwheeled his arms. It showed he walked, slipped, bent slightly forward, and did not spill any liquid from the cup he was carrying. Ms. McCracken elicited credible witness testimony that Claimant stated he worked on a 40-acre ranch and lifted 80-pound hay bales after the incident. Respondents’ expert testified there was no mechanism of injury that would cause Claimant’s complaints. The claim was denied and dismissed.


    Associate Dan Mowrey defended a compensability claim in Nunez v. Custom AG Pak, LLC before the Industrial Commission of Arizona. The Applicant asserted he injured his back and neck at work on December 1, 2017. He testified reporting the injury to “a younger gentleman in human resources”, who told him to rest. The Applicant stated he rested the remainder of his shift and went home. He sought medical treatment the next day in Mexico. He did not return to work for the employer. At the hearing, the Applicant’s brother testified Claimant injured his right shoulder; however, Applicant did not present a medical professional to show a connection between the alleged workplace exposure and injury in advance of the hearing as required by the Rules of Procedure before the Industrial Commission, A.A.C. R20-5-141. Applicant further did not file any medical records or other documentation. Therefore, the ALJ found that Applicant did not provide sufficient evidence to support his claim and ordered it dismissed.



John Abraham Of Counsel

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years. Several claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid. As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible. Employers and carriers usually protect themselves and recoup overpayment from future benefits owed. Several cases have emerged (as well as arguments from claimants) that recovery of overpayments is impermissible, unconstitutional, and burdensome. Continue reading the article.

Cases You Should Know

Death is Guaranteed but WC Benefits are Not: In Becirovic v. ICAO, 17CA1505 (August 16, 2018)(nfsp), Claimant passed away on November 19, 2013, before a hearing could be held on the issue of compensability in her workers’ compensation claim. On March 23, 2015, Dr. Hall sent Claimant’s attorney a letter opining Claimant’s work injury may have contributed to her death. Claimant filed a Dependent’s Notice of Claim on December 9, 2015. Respondents filed a Notice of Contest contending the claim was barred by the statute of limitations because it was filed more than two years after Claimant’s death pursuant to C.R.S. § 8-43-103(2). The ALJ dismissed the case as barred by the statute of limitations. Claimant appealed and asserted the statute of limitations should not have begun to run until he received Dr. Hall’s report at which time the nature and probable compensable nature of the injury was first recognized, City of Boulder v. Payne, 426 P.2d 194 (1967). However, the ALJ found Claimant had the medical records and information that were sent to Dr. Hall and provided no explanation as to why she waited more than a year after the death to obtain a medical opinion or to timely file a claim. The Court of Appeals affirmed the ALJ’s dismissal.


Moral of the Story: Comply with procedural and jurisdictional requirements because failure to do so may bar claims indefinitely.


ATP Trumps DIME Regarding Medical Treatment: Respondents sought to overcome a DIME finding that Claimant was not at MMI. The ALJ determined Respondents failed to overcome the DIME and ordered them to pay for the EMG and surgical consultation recommended by the DIME physician. Respondents appealed. The Panel found Respondents did not overcome the DIME, but it held the ALJ was without authority to order Respondents to pay for the surgical consultation. An ALJ may order payment for diagnostic testing because it serves an evidentiary purpose to determine MMI and impairment; however, surgical consultations constitute a medical benefit, which must be recommended by an ATP. Potter v. Grounds Service Company and Truck Insurance Exchange, W.C. No. 4-935-523 (August 2018).


Moral of the Story: A DIME is not an authorized provider and an ALJ does not have the authority to direct Respondents to pay for treatment recommended only by the DIME where there is no support from an authorized provider within the chain of referrals.


What a Relief: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant sought review of the ALJ’s Order denying Claimant’s request for “assistance with general home services and activities, including yard services…” The ALJ ruled that Claimant’s request for home and yard services “would not cure and relieve the symptoms and effects of the Claimant’s industrial injury” and that the “services were not incidental to medical treatment…” to relieve Claimant’s symptoms. The ALJ relied on the opinions of Respondents’ IME physician in rendering her decision. ICAO affirmed the credibility decisions of the ALJ and reasoned that the ALJ credited the testimony of Respondents’ IME physician more than the testimony of Claimant and her expert.


Moral of the Story: Medical treatment, including home health care, must be related to the industrial injury to cure and / or relieve symptoms of the industrial injury.


What a Relief, Part 2: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant appealed and argued that the ALJ erred in permitting the testimony of Respondents’ IME physician and the IME report due to failure to timely disclose the report. Respondents admitted that Respondents’ IME report was exchanged beyond the 20-day time period prescribed in Rule 9-1. ICAO ruled that the ALJ properly admitted the testimony and report of Respondents’ IME physician. ICAO reasoned that the IME report was properly admitted through the testimony of the IME physician. Furthermore, ICAO reasoned Claimant failed to exercise procedural safeguards prior to hearing. Specifically, Claimant did not request the report prior to hearing, had knowledge of the IME physicians’ testimony through Respondents’ interrogatories, and had an opportunity to cross-examine Respondents’ IME physician. The ALJ’s Order was affirmed.


Moral of the Story: Evidence, including anticipated testimony disclosed 21 or more days after hearing, may be precluded if the opposing party is not provided an opportunity to contest the late disclosure of evidence.


Lost Time, No DIME?: In Gibson v. Atlantic Relocation Services, W.C. NO. 5-020-939-01, ICAO affirmed the ALJ’s denial of Respondents’ request to strike the DIME. ICAO reasoned that the decision in Harman-Bergstedt v. Loofbourrow, 320 P.3d 327 (Colo. 2014), did not preclude the Claimant from pursuing a DIME when he suffered no wage loss or no lost time. ICAO agreed with the determinations of the ALJ that the Claimant suffered a “disability,” which is evidenced by his physical restrictions which impaired his ability to perform his job. In this case, Claimant was assigned work restrictions by the ATP. However, his Employer continued to pay his full wages. ICAO reasoned that a Claimant must obtain a DIME to challenge “the ATP’s MMI determination, the impairment rating, or both…” even if the Employer continues the Claimant’s wages despite work restrictions.


Moral of the Story: Even if a Claimant suffered no wage loss or no lost time, they are still permitted to obtain a DIME.