The Legal Buzz – Lee & Brown Newsletter and Case Law Update October 2019
Colorado, Arizona and Utah.
Lee & Brown was well-represented this year by Members Joshua D. Brown and John Abraham at the NAMWOLF Annual Meeting and Law Firm Expo held in Los Angeles September 22-25th. A member of the National Association of Minority and Women Owned Law Firms since 2013, Lee & Brown is proud to be a part of this outstanding organization and its efforts to promote diversity in the legal community by connecting companies who support this fundamental initiative with the minority and women-owned law firms and legal vendors who embody it and seek opportunities to succeed.
Josh and John’s very well received contribution to the conference was the screening of their video, “THIS is NAMWOLF”, shown at the conference awards banquet. The video was an entertaining sequence of NAMWOLF member interviews conducted by the dynamic duo during the conference exposition. In it, members themselves were able to express and share with all attendees their personal insights into what this national organization means to them and its profound impact in creating a more diverse culture throughout the legal community. Click here to watch the video.
Lee & Brown was a platinum sponsor at the Professionals in Workers’ Compensation Annual Golf Tournament, held this year at Raccoon Creek Golf Course on September 20th. Out representing the Firm in style were Members Katherine Lee and Josh Brown; Of Counsel, Frank Cavanaugh, Jessica Melson and Angela Lavery; as well as Associate Matt Boatwright. Lee & Brown regularly sponsors this event which promotes the camaraderie and fellowship amongst workers’ compensation professionals from both sides of the Bar and in related fields and businesses. This year, the PWC held a funniest hole contest, which Lee & Brown took very seriously and won! Our Caddyshack theme was a huge success and we want to thank everyone who visited us at the Bushwood Country Club, hole no. 17!
Noteworthy Cases – Colorado
Member Joshua D. Brown and Associate Kristi M. Robarge successfully defended a claim for TTD benefits and proved Claimant was terminated for cause in Hansen v. J-R Motors Company North, W.C. 5-101-017. Claimant sustained an admitted injury when she slipped and fell in the car sales lot while showing a vehicle to some customers. When Claimant sought treatment for her injury, she underwent a post-accident drug screen. Claimant tested positive for marijuana and was terminated by Respondent-employer for violation of the drug policy. Claimant sought TTD benefits. Respondents argued that Claimant was terminated for cause and was not entitled to TTD benefits. Claimant argued that her employer knew about her drug use because she took a pre-employment drug screen and was still hired; however, evidence showed that Respondent-employer did not test for marijuana in the pre-employment drug screens. Since Respondent-employer had a strict drug policy and Claimant admitted knowledge of the policy, the ALJ found that Claimant was terminated for cause and not entitled to TTD benefits.
Member Karen Gail Treece, successfully defended a full contest claim in Lopez-Pando v Martin Marietta Materials, W.C. No. 5-081-406. Claimant alleged depression as well injuries to his low back, bilateral shoulders and cervical spine, which he claimed resulted from moving a frozen mud/rock clod from a conveyor belt into a chute on April 9, 2018. Claimant’s testimony of the size of the clod was inconsistent with that described by the credible employer witnesses. Ms. Treece elicited testimony that Claimant was using short term disability and did not report this as a work injury claim until the day after the expiration of his short term disability. Claimant’s testimony attributing his injury to a specific event was inconsistent with what he had told his physicians. Medical records demonstrated Claimant had underlying pre-existing conditions affecting his left shoulder, low back and neck. The ALJ did not find the Claimant’s alleged multiple injuries from the described mechanism of injury credible, and found no persuasive evidence of an acute injury. The ALJ determined Claimant failed to prove he suffered a compensable injury or occupational disease.
Member Fran McCracken successfully defended against Claimant’s attempt to reopen his claim in Luszko v. Allied Universal, W.C. 5-034-956. Claimant originally filed a claim for compensation and an Application for Hearing in January 2017. The case was closed following Respondents’ Motion to Close for Failure to Prosecute in January 2018, pursuant to the Director’s Show Cause Order. In June 2019, Claimant filed a second Application for Hearing endorsing multiple issues, including compensability and a petition to reopen on the basis of a change in condition. Because there was no determination of compensability of the injury prior to claim closure, Respondents filed a Motion for Summary Judgement arguing the Claimant was precluded from reopening his case on the basis of a change in condition, having never established a compensable injury for the condition to have changed. The ALJ agreed with Respondents’ interpretation of the facts and law, granted Respondents’ Motion for Summary Judgment and struck Claimant’s June 2019 Application for Hearing with prejudice.
Keep an Eye on the Statute of Limitations: In Packard v. Industrial Claim Appeals Office of the State of Colorado and City and County of Denver, Colorado, 2019COA146 (Colo. App. 2019), Claimant appealed the Panel’s holding that his claim was barred by the statute of limitations. Claimant claimed a workplace injury arising from his job duties as a firefighter for the City and County of Denver. On August 5, 2013, the City filed a report of Injury. On August 6, 2013, the City filed a Notice of Contest. On October 6, 2017, Claimant applied for hearing seeking medical and TTD benefits. Section 8-43-103 provides a 2-year general statute of limitations. The Court of Appeals held that a Notice of Contest, a First Report of Injury, and assignment of a W.C. number do not constitute notification that a Claimant is claiming entitlement to indemnity benefits within the meaning of the statute of limitations. Thus, the Court of Appeals found that Claimant’s Application for Hearing, filed 4 years after the date of injury, was untimely and his claim for indemnity benefits was barred by the statute of limitations.
Moral of the story: In order to satisfy the statute of limitations, a Claimant seeking compensation must file an Application for Hearing or Claim for Workers’ Compensation within 2 years.
If Benefits are Granted, File the GAL: In Miller v. Industrial Claim Appeals Office of the State of Colorado and City and County of Denver, Colorado, 18CA1894 (Colo. App. 2019), Claimant appealed the Panel’s affirmation of the denial and dismissal of her claim for penalties. The parties had gone to hearing on Claimant’s claim for entitlement to medical and indemnity benefits. The ALJ ruled in Claimant’s favor. Under Rule 5-5(C)(1) of the Colorado Workers’ Compensation Rules of Procedure, an employer has thirty days to file a general admission of liability following an ALJ’s resumption or increase of benefits. The Employer filed the GAL more than thirty days after the ALJ’s Order. Claimant subsequently applied for hearing on penalties for the Employer’s alleged failure to comply with Rule 5-5(C)(1). The Court of Appeals held that the rule was not triggered because the ALJ’s Order did not cause a resumption or increase in benefits, as no benefits had been previously paid to Claimant. Thus, the Court of Appeals affirmed that Claimant was not entitled to penalties.
This opinion is an unpublished opinion of the Court of Appeals meaning it is not binding upon lower courts. Nevertheless, following its issuance, an amendment to the rule was proposed altering its language to state that a GAL must be filed “[f]ollowing any Order (except for Orders which only involved disfigurement) becoming final which alters OR AWARDS benefits.” A public hearing regarding the adoption of this rule has not been set as of the publication of this newsletter.
Moral of the story: To avoid exposure for penalties, file a GAL after an ALJ’s order instituting payment of benefits to claimant.
Can you earn it?: In Jose Cruz Verdeja v. Bakers Transmission Service, W.C. No. 5-047-467 (ICAO August 19, 2019), the Claimant sought review of the ALJ’s Order denying his entitlement to PTD benefits. The Claimant sustained a compression fracture to the low back on May 19, 2017. The Claimant underwent conservative care; however, surgery was not recommended. The Claimant was placed at MMI on March 29, 2018. The Claimant was assigned permanent work restrictions in the light duty category. The Claimant contended that he was permanently and totally disabled and unable to earn any wages. In preparation of hearing, Respondents retained an IME and vocational evaluation. Respondents’ vocational evaluator identified multiple positions within the Claimant’s permanent work restrictions. The positions considered the Claimant’s education, skills, and commutable labor market. The ALJ credited the opinions of Respondents’ experts. The Claimant argued that the positions identified by Respondents’ vocational evaluator were beyond his work restrictions. ICAO affirmed the ALJ’s ruling finding that the issue of PTD is primarily factual and that her ruling was supported by substantial evidence in the record.
Moral of the story: PTD is determined on a factual basis and an ALJ’s order will only be overruled if not supported by substantial evidence in the record.
Shifting Burdens and the DIME: In James Jones v. The Mitre Corporation, W.C. No. 5-034-047 (ICAO August 27, 2019), the Pro Se Claimant’s claim was found compensable for injury sustained to the neck and ears in the form of tinnitus, but not for his alleged hearing loss, as the result of being exposed to a loud noise. The Pro Se Claimant was placed at MMI on June 26, 2018 and assessed a 4% whole person permanent impairment rating of the cervical spine. Respondents requested a DIME. At the DIME, the Pro Se Claimant, without leave of court, presented the prior ALJ’s Order regarding compensability/causation for review by the DIME doctor. The doctor assessed a 14% whole person permanent impairment award for the cervical spine but did not address causation. Respondents filed an Application for Hearing to overcome the DIME and requested a Samms conference with the DIME doctor to clarify her opinion and to determine whether she used the prior Order to influence her assessment and opinions on causation pertaining to the cervical spine. The doctor changed her opinion after the Samms conference and assessed no permanent impairment rating for the cervical spine. At hearing, the ALJ ruled that the Pro Se Claimant improperly influenced the DIME doctor by presenting her with the prior ALJ’s Order. In addition, the ALJ ruled that the Pro Se Claimant reached MMI as of February 26, 2017, with no permanent impairment based on the DIME doctor’s subsequent testimony from the Samms conference. On appeal, the Pro Se Claimant argued that the ALJ misapplied the burden of proof as it was Respondents who appealed the opinions of the DIME. ICAO affirmed the ALJ’s Order and indicated that once an ALJ determines the DIME opinion concerning MMI and impairment, then the party seeking to overcome those opinions bears the burden of proof by clear and convincing evidence.
Moral of the story: When a DIME physician offers conflicting opinions on MMI, impairment or causation, the ALJ is to resolve the conflict and to determine the true opinion of the DIME physician. As such, the burden may shift to the party who disagrees with the ALJ, not necessarily the party who initially sought to overcome the DIME.
An Unjoyful, Joy Ride: In Rush v. Enterprise Leasing, W.C. No. 5-081-615 (ICAO September 6, 2019), the Claimant was injured as a passenger in a motor vehicle accident. The Claimant and a co-worker drovethe company vehicle to another location to pick up more vehicles. En route, the co-worker drove down a dirt road and took off traction control before accelerating rapidly, which caused the vehicle to flip over several times. Respondents argued that the Claimant’s activities in the vehicle constituted horseplay and was a personal deviation from his employment. The Claimant testified that he believed they were traveling to the second location to pick up vehicles and did not have any part in the joy ride down a dirt road. The ALJ credited the Claimant’s testimony and found the claim compensable. The Respondents appealed the decision, arguing that the ALJ cannot rely on the Claimant’s subjective beliefs about the joy ride and deviation in her decision. ICAO disagreed and found that there was substantial evidence to support the ALJs findings that the Claimant was not involved in a deviation from work.
Moral of the story: Non-participating victims of horseplay are entitled to workers’ compensation benefits because the employment placed them in the “zone of danger” created by the horseplay.
Covering your tracks: In Hansen v. Bavarian Inn Restaurant, Inc., W.C. No. 5-061-844 (ICAO September 4, 2019), the Claimant appealed a decision of the ALJ that he was terminated for cause and not entitled to TTD benefits. Claimant worked at a bar in downtown Denver where a fight occurred between employees of the bar and patrons entering the establishment. During the fight, Claimant was hit in the head several times and a co-worker was shot. While filling out an incident report, the Claimant was permitted to review the surveillance video of the incident. The following day, the employer was unable to access the surveillance video and noted that the Claimant’s Google drive was open on the computer. The Claimant admitted to uploading the surveillance videos to his Google drive account. Claimant was charged with tampering with evidence. The employer had a written policy prohibiting disclosure, distribution, transmission or copying of confidential information and the Claimant had signed a document affirming his knowledge of this policy. The ALJ found that the Claimant was provided permission to view the surveillance video but not upload any files to his personal Google drive account. The ALJ found that the Claimant’s actions violated the company’s written policy, which led to his termination. The ALJ denied and dismissed the Claimant’s claim for TTD benefits. ICAO upheld the ALJ’s Order.
Moral of the story: Having written policies that employees review, with receipt acknowledgment of same, helps prove termination for cause.