The Legal Buzz – Lee & Brown Newsletter and Case Law Update Nov 2020

Lee and Brown Partners
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In The News

Lee & Brown is happy to announce the opening of our Arizona office located at 4742 N. 24th St., Suite 300, in Phoenix.  Our University of Colorado Law School Graduate, Michael Salazar, who has been clerking on our Arizona cases over the past year has relocated back to his home state of Arizona and is our local presence in Phoenix.  Mr. Salazar will be working closely with our Colorado-based attorneys licensed in Arizona – Joseph Gren, Emily Miller, Timothy Murphy and Jens Omdal.  Together, we are ready to diligently represent you, our clients, in the state of Arizona, just as you have come to depend on us in the state of Colorado.  Through the years, our approach in the practice of law has been quite simple:  provide  aggressive representation and protection of clients’ interests, with a goal of bringing all cases to resolution in the most cost-effective and expeditious manner possible.  We are happy to be able to expand this same philosophy to our employers and insurers who need us in the state of Arizona.


A Day in the Life of the Partners during COVID

Quarantining during a pandemic can change things.  We thought we would check in with our Lee & Brown Partners to see how each of them are handling their new reality …

 
 

Katherine Lee – Life during a pandemic for anyone presents challenges.  Life during a pandemic as a business owner and parent of two graduating high school seniors in their transition to  college freshmen has provided our family with quite the roller coaster ride … complete with all the twists, turns and inverted corkscrews that may leave even the most resilient of us begging to get off the ride.  Who would’ve guessed 6 months ago the state of our world as it is today?  Not many … perhaps not any.  Yet, here we are.

 

Professionally, our Firm and personnel have successfully transitioned from a very social and personally interactive work environment to a remote office space through which we had to, willing or not, learn new work processes, navigate through a multitude of various video conferencing platforms and find new ways to stay connected.  We couldn’t be prouder of our attorneys and our staff for their commitment and fortitude in meeting the challenge so unexpectedly placed before them.  Our ability to provide the best quality legal representation to our clients has not been even marginally compromised at any time during this unprecedented time of uncertainty.  And most importantly, we have been able to maintain our standard of quality without compromising the physical and mental health and wellness of our employees and their families.

 

Our family story, like many others, has been radically different than was planned prior to this pandemic.  Our sons, Dane and Seth, both graduated from high school this spring, turned 18 this summer and are off to college this fall – all without any of the pomp and circumstance or celebratory traditions that are supposed to appropriately mark their hard-earned accomplishments and milestones.  There has been disappointment.  There has been heartache.  There has even been some anger, bitterness, frustration, and tears – and not just from the adolescents.  Alternatively, there has also been golfing, baking/cooking, hiking numerous fourteeners, golfing, making music, spending time with close friends and family, puzzles, remote learning, golfing, endless (and sometimes it feels endless) passing of the time just being together – without the chaos.  It is refreshing to actually have the time to feel and be present in the moments instead of passing and rushing through them to get on to the next thing.  Hopefully, when we have all moved on to the other side of life with COVID, the passing of time and a return to some form of the lifestyle to which we all knew as “normal”, we will find our memories of the present, although void of the grand celebrations, the travel, vacations and parties, are happy ones.  In the end, I’ve decided that enjoying the ride – no matter the challenges that come along with it – is the WAY better alternative.

 
 

Joshua BrownMy family’s quarantine can be summarized in four words:  “a collection of moments.”  Three boys create many moments that are hard to summarize.  Sure, there are holes in the wall, and a box of 1000 Gold “Phish” crackers showering the kitchen floor.  Let’s not forget the tantrums at the end of screen time.  Wow, cute kids no more!  And yes, broken toys and banisters, stains on the hardwood floors and challenges to our sanity.  But the best is that it brought our family together for new board games, puzzles, morning golf ball hunting adventures and food.  We’ve really got it Simple because we’ve got a band.  I love my band! 

 
 

Karen Gail Treece –  I am loving being at home with my husband, Reno, and our boys, James and Jon, who have been home from college since spring break.  Jon has had very limited leave from the US Naval Academy, so it has been a gift to have them both at home.  Jon has spent his summer at the dining room table studying Calculus III and Military Ethics online.  James has been carefree and built his own computer.  Reno makes lunch for everyone, so we have two meals a day together as a family.  I have been stuffed into a very small corner of Reno’s office, but the commute is stress-free.  It has been amazing to try cases on Google Meets, not so fun to try an 8-hour, 6 witness case on the phone, however.  I’ve come a long way since starting my practice using a typewriter and carbon paper.  I guess you can teach an old dog new tricks!

 
 

Joseph Gren – During this time of isolation, I have been taking advantage of running and competing in virtual marathon and half marathon races (the next one being the full San Francisco marathon which was cancelled earlier this year), mountain biking in the Colorado hills, frequently cycling nowhere on the Peloton, reinventing gourmet recipes way too late at night, and expanding my knowledge of old world wines; specifically, of the Rhone Valley in France and of eastern Spain.  I continue my quest to paddle board every lake in the Front Range and have avoided getting a sunburn so far even with my bad habit of not applying enough sunscreen, which I would be doing anyway despite the global pandemic.  Quarantine has also provided an opportunity for creative vacation planning.  In lieu of cancelled trips to Thailand, Costa Rica, and Ireland, we instead camped on remote beaches in the Southeast, which greatly improved my ukulele skills, as well as traveling to interesting wineries across the county in an effort to support their businesses.  In my free time, I listen to others’ opinions on the new Netflix and Amazon shows, as well as hearing from my secretary about the joys of reconciling less vigorous travel expense reports!

 
 

John AbrahamI’ve been working from home and spending time with my family.  Early on, remote learning was very challenging.  We are glad summer came quicker than expected.  There has been a lot of family time spent baking, playing board games and re-visiting old video games from the past.  There have also been many lemonade stands, water balloon fights and a new puppy, Gumbo, to keep everyone occupied during quarantine.  Gumbo keeps us very busy, but the time together and coming up with creative ways to have fun as been nothing short of memorable and special.  I have enjoyed spending lots of time bonding and trading war stories with many adjusters and employers through weekly Zoom conference calls and phone calls through this COVID experience. 

 
 

Fran McCracken – My COVID experience has actually been quite educational.  I’ve learned a lot about toilet paper, face masks and foster dogs.  You might be surprised to learn that when ordering toilet paper from China, it takes as long as twelve weeks to arrive.  When it does show up, it’s in party colors (think lime green, shocking orange and black).  There is also no cardboard place holder.  A case of toilet paper, twelve two-ply rolls, is compressed to the size of a 6-pack of Coke.  Who knew?  As far as face masks – while necessary, I am not a big fan.  However, from now on, I am always going to wear a face mask when going to the grocery store.  I want to be disguised when buying obscene amounts of junk food.  In “stay-at-home” mode, I also decided it would be a great time to foster a dog.  Thirteen dog beds, two comforters, several pillows, a leather couch and one cell phone later, I am pretty sure I know the reason this guy was surrendered to the shelter.  The happy ending is he was adopted to a wonderful family that adores him.  Despite his path of utter destruction, I miss the nut job.  Lesson learned that things are just things.  What matters most now, and always, is that we show kindness, love and support to each other.  We are all struggling to deal with this, in one way or another.  And while our experiences differ, we truly are all in this together.

 
 

 


Colorado recently took steps to increase the salary threshold for employees falling under the “white collar” exemptions.  On January 22, 2020, the Colorado Department of Labor adopted the Colorado Overtime and  Minimum Pay Standards Order #36 (“COMPS Order”), with most of its provisions becoming effective on March 16, 2020.   The new minimum salary thresholds for exemption from overtime began on July 1, 2020.  The COMPS Order makes significant changes for both exempt and non-exempt employees, and further outlines critical Colorado wage rights and responsibilities.  Continue reading the full article.

 
 

Cases You Should Know

Won’t You Be MMI Baby Tonight?: In Destination Maternity v. Burren, 463 P.3d 266 (Colo. 2020),  Claimant sought review of an ALJ’s determination of the date she reached MMI, despite there being no finding of MMI by her ATP or the DIME physician. The ICAO upheld the ALJ’s Order and Claimant petitioned for review. The Colorado Court of Appeals set aside the ALJ’s Order and remanded. The employer and its insurer petitioned for certiorari review to the Colorado Supreme Court, which was granted, and the Supreme Court held that once an ALJ concludes that an employer or an employer’s insurer has overcome a DIME doctor’s MMI opinion, the ALJ may determine the claimant’s MMI status and permanent impairment rating as questions of fact.

 

Moral of the story:  If the DIME is overcome, the ALJ may determine MMI and permanent impairment rating as a question of fact.

 
 

Risky Business – Neutral Risk or Special Hazard?: In Richardson v. Gronedyke Transport, W.C. No. 5-109-865 (May 8, 2020), Respondents sought review of the ALJ’s Order which determined, among other issues, that the claim was compensable. Respondents challenged the ALJ’s finding that Claimant’s injury (which occurred when Claimant reportedly mis-stepped off a curb) sufficiently established the causal connection required by the “arising out of” component of §8-41-301(1), C.R.S. Instead, Respondents argued the injury was idiopathic in nature due to a preexisting condition and that the “special hazard” doctrine therefore applied. Under this doctrine, employees must not only demonstrate that there were specific connections to employment in cases not involving “neutral risks,” but also that he or she was exposed to an additional “special hazard” of employment. The ICAO Panel held that the special hazard doctrine only applied to cases involving an idiopathic condition and that the existing disease of an employee does not disqualify a claim if the employment “aggravates, accelerates, or combines” with the disease to produce the injury. The Panel concluded the ALJ did not err in determining that Claimant’s injury was not idiopathic, and that the special hazard analysis was inapplicable.

 

Moral of the story: If an employee’s injury/disability was not idiopathic, the “special hazard” doctrine cannot apply because a claimant may still seek benefits if his/her employment compounded or exacerbated a preexisting condition.

 
 

Health is Wealth: AWW and Health Insurance: In Varela v. Umbrella Roofing, W.C. No. 5-090-272 (May 8, 2020), Claimant sought review of an ALJ’s Order that denied his request to increase his AWW by the cost of health insurance premiums paid by Claimant and his employer. Claimant opted out of the health insurance coverage offered by the employer when he could no longer afford to pay his portion of the premiums while on TTD benefits. Claimant argued that his AWW should be increased by the cost of the contributions to his health insurance made by the employer and Claimant.

 

The ALJ relied upon Plute v. Home Depot, which held that that the cost of continuing health insurance benefits is not included in the AWW if a claimant has not been terminated. In this case, Claimant continued to be eligible for health insurance because he was not terminated by the employer. Additionally, §8-40-201(19)(b), C.R.S., excludes the cost of health insurance from the AWW calculation if the employer continues to pay its portion of the health insurance premium after the injury. The ICAO affirmed the ALJ’s Order, holding Claimant failed to prove an entitlement to an increase in AWW. This case stands to uphold many years of preceding cases, all of which conclude that health insurance costs are not factored into the AWW calculation so long as a claimant is still employed, and can continue to engage in the employer’s group health plan.

 

Moral of the story: The cost of continuing health insurance is not added to the AWW calculation if the claimant remains employed and the health insurance continues to be available through the employer.

 
 

To Be or Not To Be… The Story of an Independent Contractor: In Holsinger Drywall Inc. v. ICAO, 19CA1013 (Colo. App. 2020), the Court of Appeals remanded the decision of the ALJ to apply Pella Windows & Doors, Inc v. ICAO, 2020 COA9. Claimant was injured while installing drywall for employer and sought workers’ compensation benefits. The ALJ determined that because Claimant was an independent contractor, he was not entitled to benefits. Upon appeal, the ICAO set aside the ALJ’s  Order and decided that the claim was compensable.

 

The ICAO focused on three questions based on ICAO v. Softrock Geological Services, Inc., 2014 CO 30. First, did the employer use Claimant as a member of its work force similar to an individual employee? Second, did Claimant work the number of hours for the employer characteristic of a full-time job? Third, did Claimant ever look for work from another employer? The first two questions were answered in the affirmative, and the last question was answered in the negative. The ICAO found that the answers to these questions suggest that Claimant was not an independent contractor. In Pella Windows & Doors, the Panel held that the factors articulated in the Softrock case, apply to workers’ compensation cases. The Appellate Court concluded that the ICAO did not err in applying the Softrock factors and analysis to the issue of whether Claimant was an independent contractor. The case was remanded by the Panel to the ALJ for additional findings of fact consistent with Pella Windows. A worker status as an independent contractor is a factual determination for the ALJ.

 

Moral of the story: The decision in Pella Windows effectively applies Softrock to workers’ compensation cases expanding the analysis for determining whether a worker is an employee or an independent contractor beyond the factors enumerated in §8-70-115(1)(c), C.R.S.  The determination is a question of fact for the ALJ.

 
 

Weakened Condition and Subsequent Injury Cause and Effect: In City of Colorado Springs v. ICAO, (nsfp), the City of Colorado Springs sought review of an Order from the ICAO upholding an award of benefits to Claimant. An ALJ determined that Claimant’s spinal infection and resulting paralysis were related to his work injury and compensable. The appellate court affirmed, finding that substantial evidence existed to support the ALJ’s determination. Claimant initially sustained a muscle and tendon strain of the thorax while carrying equipment for work. Claimant required hospitalization for severe back pain and lower extremity swelling, which resulted in an infection of the disc in between the vertebrae and paraplegia in his lower extremities. The City argued that the infection and paraplegia were caused by an intervening event and were not compensable. The ALJ rejected this argument and awarded Claimant medical and TTD benefits. The Court of Appeals highlighted the chain of causation analysis, whereby symptoms that develop later may also be compensable. This analysis is reserved for cases in which the industrial injury leaves the body in a weakened condition, which plays a causative role in the subsequent injury. The Court relied upon Jarosinski v. ICAO, which supports that it is not necessary for the work conditions to have directly caused Claimant’s infection if Claimant’s weakened condition was a contributing cause of the infection.

 

Moral of the story: A subsequent injury or symptom may be compensable if a claimant’s initial injury leaves he/she in a weakened condition; thus, contributing to the subsequent symptom or condition.