The Legal Buzz – Lee & Brown Newsletter and Case Law Update January 2019

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Noteworthy Cases

Member Karen Gail Treece successfully defended two full contest claims. In Mommens v. Martin Marietta Materials, Inc., W.C. No. 5-070-386, Claimant alleged he was injured from hitting a bump on the road while driving a cement truck. Claimant testified he drove over a bump or transition in the road and flew up in his seat hitting the lumbar bar of the seat when he came down. Claimant was unable to identify the street location of the bump to his supervisors. Respondents’ accident reconstructionist expert credibly testified there was nothing wrong with the seat of the truck, the lumbar bar did not protrude, and the seat operated properly. The ALJ denied and dismissed the claim.

In Pickering v. Hercules Commercial, W.C. No. 5-049-650, Claimant alleged he was injured while tightening a bolt using an allen/hex wrench. Ms. Treece elicited credible witness testimony that Claimant complained of pain and was on light duty prior to the alleged date of injury. Respondents’ expert persuasively testified it was unlikely a person could exert sufficient force, using a ¼ inch hex wrench, to sustain a significant shoulder injury. The ALJ denied and dismissed Claimant’s request for benefits.


In Robinson v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that a specific medical center was an authorized provider. Claimant contended that he was referred to the emergency room to rule out a medical emergency. Claimant declared that Respondents were liable for payment for all services at said facility. Respondents’ argued that the initial referral was for emergent care only. Once the emergent care was concluded, Claimant returned to his ATP for ongoing treatment. Respondents produced medical evidence from the ATP that no additional referral was made to the other facility. The ALJ opined that Claimant returned to treat at the other facility of his own accord. The ALJ concluded that, based on the objective medical evidence, Claimant failed to establish that the other facility was authorized as treating physicians. The ALJ ordered that the care received from the other facility, after the ER visit, was unauthorized.


Of Counsel Frank Cavanaugh and Associate Kristi Robarge successfully defeated a full contest claim in Putnam v. Whole Foods Market, Inc., W.C. 5-079-453. Claimant alleged an injury occurred while at work; however, there were conflicting reports of the injury. At first, Claimant simply reported that she began hurting while at work. She later reported that she bent over to pick something up and felt a pop in her low back. In addition to the inconsistent reports of injury, Claimant had a pre-existing condition which caused pain in multiple places. The ALJ found that Claimant did not suffer a compensable injury during the course and scope of her employment. The ALJ noted that “the mere fact a claimant experiences symptoms while performing work does not require the inference that there has been an aggravation or acceleration of a preexisting condition.”


Associate Angela Lavery successfully defended Claimant’s claim for specific medical benefits in Hayes v. Patterson UTI Drilling Co., W.C. 5-062-811. Claimant worked as a “roughneck” on an oil rig and argued that he suffered an injury to his upper extremity when he sustained an admitted injury. Claimant argued that he required shoulder surgery recommended by an ATP surgeon, which would include several procedures. Although the ALJ agreed that Claimant suffered a work-related injury, the ALJ determined that Claimant failed to establish that the recommendation for surgery was medically reasonable and necessary. The ALJ credited the testimony of Respondents’ medical expert, who opined that surgery was not reasonable or necessary based on Claimant’s current presentation of symptoms and the Medical Treatment Guidelines. Respondents’ medical expert credibly testified that other more conservative treatment modalities could be utilized based on Claimant’s reported symptoms and objective findings on exam. The ALJ agreed and determined that there was insufficient evidence to support that the surgery should be performed over other treatment options. The ALJ denied Claimant’s request for authorization of the surgery.

In Moore v. Lifeline Orlando VAC, (DaVita), I.C.A. No. 20152-740314, Associate Daniel Mowrey successfully defended against Claimant’s attempt to increase the Loss of Earning Capacity (LEC) and Permanent Partial Disability (PPD) Award before the Industrial Commission of Arizona. Respondents admitted for a monthly PPD award of $646.10. Claimant contended that she was entitled to a monthly award of $1,094.13. Claimant provided expert testimony from two physicians and a labor market expert. The ALJ was persuaded by the testimony of Respondents’ labor market expert who testified that while Claimant could not return to her pre-injury employment, her considerable history in leadership roles provided her extensive administrative experience. The ALJ credited Respondents’ labor market expert’s opinion that her prior leadership roles would qualify her for the higher wage range for administrative positions. The ALJ was not persuaded by Claimant’s testimony that she could not sit for longer than 15 minutes at a time. The ALJ concluded that, based on the objective medical evidence and the credible opinion of Respondents’ expert, Claimant failed to demonstrate by a preponderance of the evidence that she was entitled to an increase in her LEC and PPD award. The ALJ ordered Claimant’s claim for an increase in benefits be denied and dismissed.

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees. Continue reading the article


Cases You Should Know

No Mulligans for Bad Faith: In Schultz v. GEICO Casualty Company (November 5, 2018) the Supreme Court of Colorado addressed a District Court Order that required the Plaintiff to undergo an IME in light of bad faith allegations brought by Plaintiff. Plaintiff was involved in a car accident in 2015 and subsequently had multiple knee surgeries. Without having Plaintiff undergo an IME, the insurer offered full policy limits but did not subsequently pay. When Plaintiff brought a bad faith allegation against the insurer for unreasonable delay/denial, the insurer then denied liability and secured an Order from the District Court requiring Plaintiff to undergo an IME to assess a causation dispute. Plaintiff alleged that the requirement that she undergo an IME was unreasonable because the insurer had previously agreed to pay out the policy without an examination, over a year prior. The Supreme Court reaffirmed the principle that an insurer’s decision to deny or delay benefits to the insured must be evaluated based on the information available to the insurer at the time the coverage decision is made, not post-coverage decision due to the discovery of later developments that may have impacted the insurer’s decision. Here, the insurer had initially decided to pay out the policy without an IME and presented no explanation as to how an IME performed one year later would have impacted the original decision. The Court found that the District Court had abused its discretion in compelling the examination.


Moral of the Story: Whether an insurer acted in bad faith or not, is decided when the unreasonable action is alleged to have occurred. It cannot be rectified by relying upon evidence subsequently obtained that did not exist, or was not available, at the time of the initial action.


Fines Dispensed, Dispensary Incensed: In MMJ 95, LLC (no board number issued)(October 15, 2018), ICAO upheld a Director’s Order imposing a $39,950.00 fine upon Respondent-employer for failing to maintain mandatory workers’ compensation insurance coverage. Section 8-44-101, C.R.S. of the Workers’ Compensaion Act requires that all employers secure workers’ compensation insurance coverage for all employees. Uninsured employers are subject to a fine of up to $250.00 per day under Section 8-43-409(1)(b), C.R.S. In this case, MMJ 95 did not maintain its own workers’ compensation coverage. The sole registered agent of MMJ 95 was also the registered agent of another company, AJC Industries, LLC, which did maintain workers’ compensation coverage. Both businesses operated under the same trade name. The Director found that, contrary to the testimony of the employer, MMJ 95 did have “employees” for purposes of the Act and therefore had to maintain its own insurance for those employees. The Director found that the registered agent of Repondent-employer did not file LLC member rejection of coverage for workers’ compensation insurance for MMJ 95 and was therefore himself considered an “employee” of the company. The Director further found that persons working at MMJ 95 were employees, despite testimony from the registered agent that these persons were employed by AJC and therefore covered by its insurance. The Director found that, even though AJC and MMJ 95 operated under the same tradename, they were separate business entities because they had been filed as such with the Secretary of State. Respondent-employer did not properly raise contentions of error in response to the Director’s Order and ICAO upheld the Director’s findings and ultimate fine.


Moral of the Story: Every employer registered with the Secretary of State must maintain its own workers’ compensation insurance coverage for all employees. Members of Limited Liability Companies may be considered employees of the company for purposes of workers’ compensation, even though they are not paid as employees of the company.


A Final Admission Isn’t Always the End: In The Matter of the Claim of Carold Peoples v. State of Colo. Dep’t of Trans., W.C. No. 4-819-262 (October 24, 2018), ICAO affirmed the ALJ’s Order requiring Claimant to repay an overpayment and allowing Respondent to recoup the overpayment by offsetting disfigurement benefits. Claimant had been awarded SSDI and Respondent did not take an offset against temporary disability, even though they had known of the award since 2012. Respondent instead noted an ongoing overpayment on the GAL. Respondent filed a FAL in 2013, within a year of the SSDI award, but did not apply for a hearing. Claimant argued that overpayment was barred by the statute of limitations on the premise that Respondent did not “attempt to recover” the overpayment within one year of when they became aware of the overpayment, under Section 8-42-113.5(1)(b.5)(I), C.R.S. ICAO agreed with the ALJ that asserting a right to recoup overpayment on the FAL was sufficient for Respondent to preserve their right and defeat the statute of limitations. Filing a FAL asserting an overpayment against future benefits is sufficient as an “attempt to recover” an overpayment for purposes of the statute. Claimant argued that Respondent was prohibited from offsetting the overpayment against future benefits owed. The Panel held that “the Respondent may offset their liability for the disfigurement award . . . against the existing overpayment.”


Moral of the story: Respondents must attempt to recover any overpayment within a year of becoming aware of its existence, and a FAL noting the overpayment is sufficient to preserve the right to pursue the overpayment in the future. Respondents may also recover overpayment from future benefits, including disfigurement owed.