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Lee & Brown
July 16, 2019 July 17, 2019 by Lee & Brown
"Wind" Will This Ever End?
As we recently celebrated the 4th of July with family and friends, we must not lose sight of the Foundi ng Fathers and formation of the Constitution. Interestingly, John Hancock was the only one to sign on July 4, 1776, while the others signed at a later date. We are fortunate that the Founding Fathers drafted the Constitution to incorporate a judicial system that allows people the opportunity to be heard as that luxury does not exist in many other places in the world. Often, the higher courts will have to decide issues from the lower courts to interpret a statute, applicability of the law, admissibility of evidence, etc. The workers' compensation laws are subject to the same scrutiny as any other law or statute.
The Workers' Compensation Act and system was created to provide a quick and efficient resolution to injured workers and the ability through the administrative courts to avoid the long delays that could ensue in the trial courts. Ironically, workers' compensation claims can be tied up in litigation much longer than the trial courts which was not the intent of the legislature. While the hope and intent are clear, due to the many nuances and different interpretation of the workers' compensation laws, there will continue to be disputes that arise.
While different in each state, workers' compensation medical benefits are subject to a fee schedule set by the legislature. By statute, a medical provider could not collect payment for medical expenses beyond those paid by the plaintiff's workers' compensation insurer. The intent (hopefully) is to have a level playing field and no disputes over what fee is to be charged to avoid any delay to the injured worker for medical care.
Plain and simple, the cost for a medical benefit under a workers' compensation claim is subject to a set fee by the legislature regardless of what the provider may charge outside of the system for the same service. This also, for policy reasons, provides some relief to the carriers given the volume of workers' compensation claims. They will not be burdened with extreme medical costs providing medical benefits to claimants as medical providers are limited to the amounts under the fee schedule.
With that said, in May of this year the Colorado Court of Appeals rendered an opinion that focused on the admissibility of past medical expenses when the claimant/plaintiff is injured on the job and sues the third-party tortfeasor. The Court considered whether "billed" medical expenses versus what was actually "paid" were to be considered by the court and jury in awarding damages to a claimant/plaintiff. Before trial, the defendant had extinguished the insurer's subrogation interest in the amounts paid by paying off the insurer's claim for those damages.
The case was brought before the Court based on claimant/plaintiff's appeal that the trial court erred in excluding evidence of the amounts "billed" by his medical providers and only admitted the amounts "paid" by the carrier for his medical care and treatment. The Court was to determine whether billed versus paid medical benefits were permitted in a third-party lawsuit.
The Court held:
The collateral source rule barred admissibility of the medical expenses paid by the workers' compensation carrier.
The plaintiff could present evidence at trial of the higher i.e. "billed" medical expenses by the providers.
Briefly, claimant worked for United Airlines ("United") and was struck by an employee of Delta Airlines ("Delta") at Denver International Airport – both were driving similar luggage tug vehicles. Claimant's injuries were in the course and scope of employment, therefore, admitted and his indemnity and medical benefits were paid by his employer pursuant to statute.
Claimant's employer sought reimbursement and sued Delta and its at-fault driver. Claimant sued the same defendants to recover for his personal injuries related to his work injury. United's claim against Delta was settled for $328,799.16 and the case was dismissed with prejudice leaving only claimant and Delta as parties. Delta admitted liability but disputed claimant's claimed damages so the case went to trial. At the first trial, claimant was awarded $1.5 million but a new trial was granted due to misconduct by claimant's attorney.
At the second trial (which interestingly was a bench trial), plaintiff was not allowed to provide evidence of the higher "billed" amounts from the providers for medical expenses but only the amounts actually "paid" by the employer. The plaintiff was awarded $259,176 in damages of which $194,426 was for economic damages. The court subsequently entered an order to set-off claimant's economic damages by the amount defendant had paid to settle the workers' compensation claim. Plaintiff argued this was not fair since his award for economic damages was reduced to zero.
The injured worker appealed. In its decision, the Court ruled that the collateral source rule applied to workers' compensation benefits. The collateral source rule, or collateral source doctrine, is an American case law evidentiary rule that prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant. In Colorado, the first component requires a trial court to set off tort verdicts by the amount of certain collateral source payments received by the plaintiff unless the payments were made because of a contract entered into and paid for on the plaintiff's behalf. § 13-21-111.6, C.R.S. 2018. The second component bars evidence of a plaintiff's receipt or entitlement to benefits received from a collateral source, most often an insurance company, "because such evidence could lead the fact-finder to improperly reduce the plaintiff's damages award on the grounds that the plaintiff already recovered his loss from the collateral source. Wal-Mart Stores, Inc. v. Crossgrove, 276 P.3d 562 (Colo. 2012).
The Court noted that "even though claimant did not personally pay premiums toward his workers' compensation insurance, he gave consideration for the same in the form of his employment services." Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo. 1992). The same holds true to the defendant, who did not contribute in any way to the premiums paid to him and, therefore, the benefits paid were wholly collateral to the defendant. Therefore, the collateral source rule applies, and the defendant may be responsible for plaintiff's damages regardless of what was paid by the workers' compensation carrier. "The Court rationalized this will prevent a wrongdoer from reaping the benefits of a contract to which he is not a party." The National Law Review, Colorado Court of Appeals Permits Evidence of Billed Workers' Compensation Benefits at Trial.
In further reasoning of its decision, the Court acknowledged the workers' compensation statute provides that amounts billed in excess of the statutory fee schedule are "unlawful, void, and unforceable." This statutory language effectively prevents the plaintiff, as a matter of law, from having any legal obligation to pay such billed amounts. The Court cited a decision from the Colorado Supreme Court that stated, "the fact a bill is uncollectable does not render it entirely irrelevant to the reasonable value of the medical services provided." Volunteers of America v. Gardenswartz, 242 P.3d 1080 (Colo. 2010).
There was a dissenting opinion issued by the Court which identifies the effect this ruling will have for claims in the future. "To allow injured workers to pursue expenses against the defendant in excess of what workers' compensation already paid for his/her injuries contravenes the intent and purpose of the Workers' Compensation Act. In part, this now affords the injured worker a windfall which the Act was not designed to do." The dissenting opinion also makes note that the court is in the position of enforcing unenforceable contracts since the billed amounts are void and unenforceable based on the fee schedule specific to workers' compensation claims.
The opinion of the Court has certainly created a stir as it now essentially creates a windfall in favor of the injured worker and settlement with workers' compensation carriers before trial essentially meaningless.
We will wait to see if the Court's decision is brought before the Colorado Supreme Court for further review and determination of this now complicated, and to be highly debated, topic.
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March 22, 2019 September 15, 2021 by Lee & Brown
The Legal Buzz – Lee & Brown Newsletter and Case Law Update March 2019
Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.
JOSH BROWN DOES DEFENSE IN UTAH
Lee & Brown, LLC is happy to announce that Member Joshua Brown is now licensed in Utah and he is ready to show Utah how Lee & Brown does defense.
With a focus on representing insurance carriers and employers in Workers' Compensation, Employment Law and General Liability Claims, Josh has been practicing in the state of Colorado since 2005 and has successfully defended matters arising under the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act (ADEA) and the Fair Labor Standard Act. Josh regularly counsels clients on the spectrum of employment issues, with the goal of avoiding litigation. He also advises and assists employers in developing and enforcing proper employment contracts and policies, employment handbooks and compensation agreements. If you have insurance defense claims in the state of Utah, Lee & Brown is who you want on your team.
Katherine Lee Named Super Lawyers' Top 50 Women for Second Time
Every year, Super Lawyers evaluates lawyers across the country for its annual list of top attorneys. Each candidate is measured against 12 indicators of peer recognition and professional achievement. The "Top Lists" take exclusivity one step further by featuring selected Super Lawyers attorneys with the most total points earned. We are proud to announce that Member Katherine Lee was recognized for the 2nd consecutive year as one of Super Lawyers Top 50 Women in Colorado.
Noteworthy Cases
Member John Abraham successfully withdrew an admission for medical maintenance in Jehle v. Walmart Associates, Inc. Claimant sustained a minor back injury in 2004 from picking up a one-pound box of cups. Claimant had been receiving Grover medical treatment under a January 30, 2006 FAL, admitting for post-MMI medical treatment, with good benefit. Respondents sought to withdraw the FAL and terminate treatment on the theory that treatment was no longer causally related to the injury. Dr. Cebrian and Dr. Reiss credibly testified that Claimant's pathology and need for ongoing medical treatment was due to the natural progression of her preexisting degenerative condition. The ATP only opined that the current treatment was "in part" related with "some causality" to the 2004 injury, but could not assign any specific, or even approximate, percentage. Therefore, ALJ Spencer granted Respondents' request to withdraw the admission of liability for medical treatment after MMI.
In Rogers v. Family Dollar Stores, Of Counsel M. Frances McCracken successfully defeated Claimant's attempt to overcome the DIME. In May of 2015, Claimant moved a box of inventory while working and felt radiating pain in her left elbow. Claimant underwent carpal tunnel release surgery, but her condition worsened. Dr. Ghazi opined chronic regional pain syndrome (CRPS) and recommended treatment for same. Respondents' IME Physician, Dr. Cebrian, opined that Claimant's elbow was at MMI and that the carpal tunnel syndrome and neuropathic pain was non-claim related; he therefore opined that the recommended treatment was not reasonably necessary. He further opined the Claimant did not have CRPS, cautioned against the diagnosis of CRPS and suggested treatment as potentially harmful and not recommended in the medical treatment guidelines. The DIME Physician agreed with Dr. Cebrian that the only work-related injury sustained was an elbow strain, but felt Claimant was not at MMI for her work-related injury. He further opined that the carpal tunnel syndrome and complications following surgery for same were not causally related to the industrial injury. ALJ Jones ruled Claimant had not overcome the DIME physician's opinion that the carpal tunnel syndrome was not related to the industrial injury and denied Claimant's entitlement to ongoing medical benefits for treatment of same.
New Rule 11 – How's It Going?
We're now going on almost three months since the new Rule 11 took effect with the updated DIME fees and procedures. Time flies, doesn't it? There has been some litigation that has ensued as a result of the recent changes, but overall the changes have been well received. This is likely because most people prepared adequately for the changes that were taking effect well before the start of the New Year.
The litigation that has ensued has been primarily regarding the "regions" listed in the checklist contained on the Application for DIME and also body parts involved in the claim. Since the "regions" have caused some confusion, the fees have also needed clarification. Continue reading this article
Cases You Should Know
This Deal Stinks. Must be Fraud: In Matus v. ICAO (January 31, 2019)(nfsp), Claimant attempted to reopen his settled claim based upon fraud and mistake because it did not adequately fund the MSA. The Court found no fraud because the MSA was based upon Claimant's medical records and had been approved by CMS. There was no mistake as both parties knew the amount of the MSA when they entered into the settlement. The Court upheld the ALJ.
Moral of the Story: To reopen for fraud, the petitioner must prove the party knew it was making false representation. To reopen for mistake, it must be proven both parties were mistaken at the time of the contract.
Just Biding Time: In Garcia v. Swift Foods, W.C. No. 4-679-322 (January 8, 2019), Claimant suffered a back injury in 2005. He was placed at MMI and Respondents filed a FAL. Claimant requested a hearing for petition to reopen and post MMI medical benefits. The parties stipulated "Claimant timely filed a petition to reopen", and Respondents admitted for medical maintenance treatment. Four years later, Claimant filed another Petition to Reopen. Respondents asserted the Petition to Reopen was barred by the Statute of Limitations. The Panel affirmed the ALJ that found the Petition to Reopen was timely filed when it had initially been filed it four years prior and there was no indication in the Sstipulation that Claimant withdrew it.
Moral of the Story: Use precise language in stipulations to assure claims are closed.
A Little Extra TTD: Claimant was placed at MMI and started vocational rehabilitation. Respondents admitted for TTD benefits during rehabilitation. Claimant completed rehabilitation and Respondents filed a GAL terminating TTD benefits. The Panel upheld an Order from the Director that Respondents must give 14 days notice to Claimant before they can terminate TTD benefits following vocational rehabilitation. Thus, Claimant was entitled to 14 additional days of TTD. Kardisco v. Red Sky Construction, Inc., W.C. No. 4-931-411 (January 15, 2019).
Moral of the Story: Once TTD is admitted, it can only be terminated in the specific ways enumerated in C.R.S. §.8-42-105.
How Many Stops Does It Take to Get to Deviation?: In Satterfield v. RM Weiss Contract Sales, W.C. No. 5-069-072 (February 4, 2019), Claimant worked as a sales associate and required a set of binders for a presentation. He drove to Office Depot to obtain the binders. On the way to Office Depot, he stopped at the dry cleaner to retrieve several work shirts when he was involved in a motor vehicle accident. Respondents denied liability, contending the injury was a deviation because he was on a personal errand. ICAO affirmed the ALJ finding the claim compensable because the stop at the dry cleaner did not change the route the Claimant planned to take to arrive at Office Depot. The fact that Claimant intended to stop at the dry cleaner on the way to Office Depot did not sever chain of causation because, even if Claimant had no laundry at the dry cleaner, he had to take the same route to get to Office Depot.
Moral of Story: An injury may be compensable when Claimant makes a stop while proceeding to an activity within the course and scope of employment, if the stop does not change the route Claimant planned to take.
You Didn't Like that Order? How About a Penalty on Top of It?: In Lange v. Kern USA, W.C. No. 4-907-620-002 (January 18, 2019), Claimant sought review of an Order that assessed penalties for failing to abide by a prior Order directing him to repay an overpayment. At an initial hearing, the ALJ ordered Claimant to repay the overpayment at the rate of $50 per month. Claimant made no payments on the overpayment. Respondents sought hearing for penalties for failure to comply with the Order to repay the overpayment. The ALJ ordered a penalty of $2.00 per day. On appeal, Claimant contended the penalty was unreasonable. The panel noted that the ALJ had available to him a penalty range of 1 cent to $1,000 per day. Choosing to set the daily penalty at $2.00 was reasonable since the only alternative would be virtually no fine at all.
Moral of Story: Do not ignore orders because significant penalties can be assessed for failure to comply with any order from the Director or ALJ.
Substantial Evidence: In Henry v. Kaiser Foundation Health Plan, W.C. No. 4-978-452-06 (January 25, 2019), Claimant sought review of an Order that Claimant had not overcome the DIME. Claimant took issue with the ALJ's interpretation of the evidence and used her appellate brief to re-argue the merits of the claim. ICAO held it had no authority to reweigh the evidence as this was the exclusive prerogative of the ALJ as the fact-finder.
Moral of Story: The substantial evidence standard of review does not permit a reviewing forum to reweigh the evidence with a view toward determining whether, given the evidence as a whole, "a mistake has been committed" in the weighing of the evidence.
Inconsistent Findings of Fact: In Martinez v. LKQ Holding Corporation, W.C. No. 5-007-076-001 (February 4, 2019), Claimant sustained a lumbar strain at work. He was placed at MMI and requested a DIME. Claimant returned to work and alleged a new lumbar spine injury prior to attending the DIME. The ATP found the subsequent incident was a "flare-up" from the first injury. But, the DIME determined the subsequent injury was a new injury. Claimant filed for hearing regarding compensability of the second injury. In the Findings of Facts, the ALJ found in the subsequent injury Claimant was working when he felt a pop and he "reinjured his back." But, the ALJ also held the subsequent injury was a "flare-up" of the admitted claim. ICAO remanded the case because the ALJ's Findings of Facts were contradictory as to the cause of Claimant's subsequent condition and whether it was an exacerbation of the original injury or a new injury.
Moral of Story: Claimant is entitled to medical benefits if the employment aggravates, accelerates, or combines with preexisting condition to cause need for medical treatment.
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January 23, 2019 September 15, 2021 by Lee & Brown
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.
Professional football requires two types of insurance: general liability and workers' compensation since it is mandatory under state laws. Given the lucrative contracts these athletes sign, the Collective Bargaining Agreements often require wage continuation agreements so that these athletes continue to make the same salary if they are injured and off work. Can you imagine an athlete who makes $30 million a year being capped at the state workers' compensation rate while recovering from an injury? Hence why wage continuation agreements are standard across the league.
With that said, one of the biggest threats to the NFL is the evaporating insurance market. According to multiple sources from the NFL, there is only one carrier willing to provide workers' compensation coverage for NFL teams because of all the concussion litigation that began in 2011. At that time, at least a dozen carriers occupied the insurance market for pro football. Now, there is one. Dr. Julian Bales, Medical Director and member of the NFL's head, neck, and spine committee told ESPN "insurance coverage is arguably the biggest threat to the sport."[1]
A study done by the University of Pittsburgh Medical Center's sports concussion program found approximately 300,000 football-related concussions occur each year in youth, high school, college, and professional. And the biggest injury or disease that is making headlines in the NFL is traumatic brain injuries and chronic traumatic encephalopathy or "C.T.E." The problem with this disease is the unknown "trigger" on how and when the disease starts. The disease is diagnosed after death and the symptoms of depression and delusional behavior may lay dormant for years, or even decades, before they surface. It's concerning for carriers to know they could be on the hook years down the road given the unknown.
Similar to asbestos claims in workers' compensation, a carrier can be at risk for a claimant who works one day and is subsequently diagnosed with lung cancer, players in California could file claims, even if they played only one game, to allege their brain disorders were caused by the sport. This cost carriers and the leagues hundreds of millions of dollars which fortunately was curtailed by new legislation in 2013. Still, carriers are cautious to cover the NFL without an exclusion for head trauma.
For many years carriers insured the NFL without restrictions for traumatic brain injuries. Now many of these companies are in a six-year lawsuit with the NFL over who will pay legal fees and claims associated with the 2013 settlement of the $1 billion-dollar class action lawsuit. Hence, these carriers are at higher risk to insure the NFL.
California has one of the most liberal workers' compensation laws in the Union. Recently, former players who decades ago reached injury settlements with NFL teams and carriers have filed new claims alleging their settlements did not cover traumatic brain injuries. In 2015, a workers' compensation court found that a former player's 1989 settlement for cumulative industrial injury "does not extend to the then-unknown cumulative injury to the brain." Similar to a worker who claims their shoulder pain is due to years of lifting heavy equipment, a former football player can argue their continued migraine headaches are a result of them playing professional football. Chances are several brain disorders like dementia, Parkinson's and Alzheimer's could be blamed on football. Doctors may ask, "how long did you play football and how many head injuries did you have?" and cite that as the cause for a claimant's brain disorder when a claim against the NFL is filed. Fortunately, claimants must still meet their burden and prove that pro football alone, and not youth or college football, was the "cause" of their injury or diseases.
Workers' compensation attorneys in California are handling numerous settled cases in which former NFL players have filed new claims for head trauma. The new claims will only increase costs for litigation and further deter carriers on what they will and will not cover. Fortunately, monetary costs for workers' compensation claims are capped which will help put a cork in the damn but if the floodgate of old settled claims are allowed to be reopened, the market for coverage will continue to be washed away down the river…
As always, if you have any questions regarding workers' compensation insurance and laws, please contact us.
[1] http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn
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November 14, 2018 November 14, 2018 by Lee & Brown
BECAUSE IT GOES TO 11
It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. With the New Year, several changes and updates to the Workers' Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11, which pertains to the DIME process.
The DIME program has seen little change since its inception in 1991, yet it is an essential piece of the Colorado Workers' Compensation system. There have been attempts throughout the years to change the procedures from both respondent's and claimant's bars but to no avail. After three years of collaboration and tedious consideration, the Division of Workers' Compensation has finally adopted a new rule that will address key challenges of each stakeholder. This is due in part to weekly staff meetings with representatives from both sides of the bar commenting on the changes and individual meetings with each side of the bar. There were over 50 revisions to Rule 11 and a Public Rule Hearing held for additional comment.
Effective January 1, 2019, these revisions and changes to Rule 11 will take place. Several key changes to the Rule:
There will now be a three-tiered payment system based on the date of injury to the filing of the DIME application and the number of body regions indicated on the DIME application;
The DIME physician must receive the fee prior to the requesting party scheduling the DIME appointment;
The Notice and Proposal and DIME Application are now combined as one document;
The time-frame to schedule a DIME appointment is extended to no earlier than 45 days or later than 75 days after the requesting party receives the notice of the DIME Physician Confirmation; and
Parties will now be responsible for agreeing on a singular medical records packet to send to the DIME physician.
The Division Rule will go into place January 1st, but the Division has indicated there will be some leniency the first month to sort out compliance issues. By February the Division will be enforcing the new process. Any Notice and Proposal with a certificate of mailing dated on or after January 1, 2019 is subject to the new Rule 11 provisions.
One provision of the Rule that will be advantageous for respondents is the requirement that once a Notice and Proposal is filed, claimant must simultaneously file a DIME application. With the current Rule 11 provision, claimant could file a Notice and Proposal to perfect their jurisdictional requirement to object to the Final Admission of Liability but could wait on filing for a DIME. Sometimes it would be months, or even close to a year, before a DIME application was filed and physician selected. Hopefully, the new Rule 11 revisions will bring a speedier DIME process and claim resolution/closure.
One negative effect of the new Rule is that parties are now to agree on one set of medical records to be sent to the DIME physician. This could create more litigation as claimants may not want to provide certain records, but respondents may feel they should be included in the medical packet. A standoff could require pre-hearings to adjudicate the matter. This is likely why the Division extended the time requirement to 45 – 75 days so that parties have time to reach an agreement on the medical records submitted and additional time to set the DIME appointment.
With these changes to Rule 11, there will be a lot of questions that need to be addressed. The attorneys at Lee & Brown, LLC are here to answer any questions you may have regarding the new changes to Rule 11 and will be conducting training seminars "on our DIME" early next year to go over all these changes. Below are some helpful links from the Division of Workers' Compensation which provides general DIME information and new timelines to consider.
https://www.colorado.gov/pacific/sites/default/files/DIME_Presentation_2019.pdf
https://www.colorado.gov/pacific/sites/default/files/Important_DIME_Timelines_2019.pdf
https://www.colorado.gov/pacific/sites/default/files/General_DIME_Fee_Information.pdf
February 22, 2018 September 15, 2021 by Lee & Brown
The Legal Buzz – Lee & Brown Newsletter and Case Law Update February 2018
Lee & Brown, LLC was a sponsor and attendee at the Professionals in Workers' Compensation (PWC) Annual Bowling Tournament on February 9th. The PWC is a professional non-profit organization made up of carriers, third-party administrators, professional vendors and counsel representing both claimants and respondents' Bars. The PWC provides ongoing educational seminars to its members on relevant and pertinent issues in the workers'compensation community. The organization funds annual scholarships to high school students interested in continuing their education in the business, medical or legal fields. The Annual Bowling Tournament is one of the events PWC organizes to raise funds for these scholarships. Lee & Brown fielded 3 teams this year, led by Members Joshua Brown and John Abraham, Of Counsel Frank Cavanaugh, Associates Jessica Melson, Kristi Robarge and Stephen Abbott and a new addition to the Firm, Of Counsel Brad Hansen. A great time was had by all in supporting a good cause with our fellow professionals in the workers' compensation community.
In Romero v. Winn Residential Limited Partnership, W.C. No. 4-978-676, Of Counsel Frank Cavanaugh successfully defended a challenge to a DIME opinion regarding relatedness of Claimant's cervical spine as a part of a work injury. Claimant was injured in a fall from a platform of a fairly significant height. Initial emergency treatment to Claimant's cervical spine was deemed to be primarily precautionary, such as the use of a cervical collar to immobilize his neck. Other cervical spine pain complaints were sporadic while Claimant was undergoing treatment for his shoulder condition, but became more pronounced after the shoulder treatment. Regardless, the DIME physician felt that if Claimant had any cervical spine injury, there was no ratable impairment and that Claimant remained at MMI. The ALJ found that Claimant failed to overcome the DIME opinion by clear and convincing evidence
Associate Matt Boatwright successfully defended a full contest claim in Eastman v. United Parcel Service, W.C. 5-044-321. Claimant asserted a shoulder injury from pulling a package, but did not report the injury to the employer until the following day. Claimant told Respondents' medical expert that he did not experience symptoms until he operated his personal vehicle. Claimant also failed to disclose several medical issues in the discovery process. Respondents' medical expert testified credibly that it was not medically probable that Claimant injured himself while pulling the package. The ALJ found that Claimant failed to meet his burden to show his shoulder injury was more likely than not related to the asserted work event.
Associate Matt Boatwright also defended against an attempt to reopen a prior admitted claim for a shoulder injury in Shaner v. United Parcel Service, W.C. 4-904-678-07. Claimant had a preexisting condition and treated through his personal doctor for maintenance. Claimant returned to the ATP with increased shoulder pain and saw an unauthorized surgeon for evaluation after the ATP had no additional recommendations for care. Claimant returned to the ATP after the surgeon recommended surgery. The ATP made a referral for care through the surgeon at the request of Claimant. The ALJ found that Claimant failed to show a work-related worsening of the condition or a valid referral for further care from the ATP and denied the Petition to Reopen.
The Workers' Compensation System as a Prescription for Addiction
The workers' compensation (WC) system provides the perfect prescription for opioid addiction. There are three types of injured workers that fall into this lair: active addicts, recovered addicts who relapse after taking medications following a work injury, and the neophyte who becomes addicted following their work injury. Thus, the system, although well-intentioned, creates and perpetuates dependency and addiction. Continue reading the article.
At MMI or not at MMI? That is the Question: In Arnhold v. United Parcel Service, W.C. No. 4-979-208 (November 17, 2017), Respondents sought review of an ALJ's Order finding that the ATP did not determine Claimant was at MMI and Respondents' FAL was premature and must be stricken. Claimant was placed at MMI by her ATP when Respondents denied authorization for a total knee replacement. In the ATP's MMI report, he stated that Claimant would not have a reasonable recovery until she completed the total knee replacement surgery. The Respondents filed a FAL and Claimant pursued the DIME. The DIME was held in abeyance pending the hearing on MMI. Respondents argued that the ALJ did not have jurisdiction to decide MMI since the DIME process was initiated. ICAO determined that the DIME was not a prerequisite to an ALJ's resolution of whether an ATP determined Claimant to be at MMI. ICAO held that the ALJ's determination of whether the ATP placed Claimant at MMI was a necessary prerequisite to the applicability of the DIME.
Moral of the Story: If an ATP's MMI determination is ambiguous, an ALJ is needed before the DIME.
Oh Rule 16, you complete me: In Murray v. Tristate Generation and Transmission Association, W.C. No. 4-997-086 (December 22, 2017), Self-Insured Respondent sought review of an ALJ's Order awarding penalties for failure to comply with WCRP 16-11 for prior authorization. A request for authorization for a total knee replacement was submitted on January 16, 2017 and a second request was submitted on January 20, 2017. On February 8, 2017, the adjuster provided verbal authorization for the recommended knee replacement surgery. On March 24, 2017, Respondent's Counsel revoked authorization after receipt of new medical records indicating a pre-existing condition. The ALJ determined that the surgery was authorized because the Respondent failed to contest the surgery within 7 business days of the request per Rule 16-11 and Respondent's actions were not objectively reasonable, so penalties were warranted. Respondent argued that the ALJ erred because Respondent did not receive a "completed request" for prior authorization and WCRP 16-11 was not triggered. ICAO determined that the ALJ's Order did not make findings on whether the requests for authorization contained an explanation of the reasonableness and medical necessity or contained the relevant supporting documentation required under the Rule. The matter was remanded to the ALJ for additional findings.
Moral of the Story: You only have to respond to completed requests for prior authorization under Rule 16.
What about the prior ATP? Breaking up is hard to do: In Berthold v. ICAO, 2017COA145 (November 16 ,2017)(nsfp), Claimant made a request for a 90-day one-time change of physician, which was granted. The prior ATP later placed Claimant at MMI and Respondents filed a FAL based on the MMI determination. Claimant challenged the FAL on the basis that the prior ATP no longer had authority to place Claimant at MMI due to a change in the law, which would sever the doctor-patient relationship with the prior physician. The Colorado Court of Appeals held that 90-day one-time changes of physician occurring prior to the 2016 amendments to the Colorado Workers' Compensation Act did not sever the doctor-patient relationship with the prior ATP; therefore, the prior ATP had authority to place Claimant at MMI.
Moral of the story: 90-day one-time changes of physician prior to 2016 do not sever the doctor-patient relationship with the prior ATP.
Safety First! How about we all just wear our seatbelts and get along? In Wright v. HSS, Inc., W.C. 5-030-925-01 (December 12, 2017), Claimant appealed a 50% reduction in indemnity benefits taken due to willful violation of an established employer safety rule. The safety rule stated, "Drivers shall always wear seat belts and require the same of passengers." Claimant maintained that the employer never enforced the safety rule. The employer countered by offering evidence that Claimant was trained and quizzed on the safety rule—thus demonstrating that Claimant knew of, and understood, the safety rule. The employer also pointed to bulletins posted in plain view around Claimant's workplace. Respondents won on appeal with the Panel noting the determination of whether an employer enforced a safety rule is a factual determination to be made by the ALJ. In this particular case, the ALJ found that the facts supported the employer cultivating a "culture of compliance" and that was enough to demonstrate enforcement.
Moral of the Story: Whether an employer "enforces" a safety rule is a question of fact for the ALJ based on the substantial evidence presented.
One expert opinion may be a cut above the rest, according to the ALJ: In Reyes v. JBS USA, LLC, W.C. 4-968-907-04 (December 4, 2017), Claimant sought to establish compensability of shoulder injuries sustained while performing his work duties consisting of butchering meat for the employer. Despite conflicting evidence, the ALJ found Claimant's shoulder injuries compensable. On appeal, Respondents argued that Claimant's treating physicians were unaware of Claimant's involvement in a motor vehicle accident that resulted in pathology to the work-injury site. Respondents were unsuccessful with this argument as the ICAO panel noted that the absence of such information merely speaks to the probative weight and credibility of physician determinations assigned to expert opinions by the ALJ as the fact-finder.
Moral of the Story: As long as there is substantial evidence on the record to support the findings, an ALJ has discretion in determining the persuasiveness of expert opinions when they conflict.
November 17, 2017 September 15, 2021 by Lee & Brown
Legal Connection Firm Newsletter – November 2017
Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm, as well as in the insurance defense community.
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In this season of gratitude, Lee + Kinder is deeply thankful for your confidence, loyalty and support throughout the year and want you to know that we strive to exceed your legal expectations. Our best wishes for a happy and healthy Thanksgiving Holiday.
M ember Karen Gail Treece defeated Claimant's request for workers' compensation benefits in Somers v. Costco Wholesale, W.C. No. 5-039-189-01. Claimant reported she was bending over to obtain items from the bottom of a shopping cart when she stood up and struck her head on the cart. Claimant alleged she injured her cervical spine and suffered a traumatic brain injury. Respondents denied the claim. Ms. Treece presented persuasive and credible evidence that Claimant treated for similar symptoms prior to the date of injury. Claimant also created a "Go Fund Me" page one month prior to the alleged work injury where she reported she was hospitalized for severe vertigo for a wheat allergy. Afterwards, she could not work for several months and requested money to help pay her bills. In an IME, Respondents' medical expert opined it was not medically probable that the described incident would produce an injury. The ALJ found Claimant had a significant history of similar symptoms and that many of the medical opinions finding Claimant sustained a work injury relied on her subjective complaints. The ALJ found that although Claimant may have bumped her head, there was no objective evidence that Claimant sustained an injury and denied and dismissed the claim.
Associate Matt Boatwright successfully defended against a full contest claim for an alleged low back injury in Phanekham v. Pepsi Beverages Company, W.C. No. 4-997-901. Claimant alleged that he injured his back while reaching above his head and stocking merchandise. The ALJ found that Claimant's testimony contradicted the testimony of Respondents' employer witness and certain medical records. Respondents also presented evidence of a prior automobile accident, pursuant to which the ALJ found that Claimant had complaints that were similar to those he asserted were the result of the work-related event. The ALJ found that Claimant was not credible and denied and dismissed his claim for compensation.
Associate Boatwright also successfully defended against Claimant's attempt to overcome a DIME opinion in Kumpf v. United Parcel Service, W.C. No. 5-007-544. Claimant sustained an admitted injury to his back from an automobile accident. Claimant was originally placed at MMI and discharged from care with no permanent impairment by the ATP. Respondents' IME physician disagreed with the ATP and opined that Claimant was not at MMI, should have surgery, and had an advisory impairment of 22% of the whole person. Claimant underwent a DIME and was found to be at MMI with a 13% whole person rating and no need for further care. The ALJ found that despite Respondents' expert's adverse opinion, the DIME opinion was conducted thoroughly and the diagnostic examinations did not support objective evidence of the conditions for which Respondents' expert felt Claimant needed interventional care. The ALJ therefore denied and dismissed Claimant's request to set aside the DIME.
Changes to Rule 16 Effective January 1, 2018
Everyone's favorite Rule is getting a makeover effective January 1, 2018. There are several minor changes to the Rule that will impact prior authorization requests and ensure that a second opinion is timely obtained by the payer. The major change that will take effect is to Rule 16-11(E) and the elimination of the option for the payer to request a hearing within the time-frames set forth in Rule 16-11(A) or 16-11(B). Click here to continue reading this article.
Table 53 is a Real Pain for Impairment Ratings: In Rojahn v. Monaco Rehabilitation, W.C. No. 4-955-695-02 (October 5, 2017), a DIME physician assigned Claimant a scheduled impairment rating for the shoulder and a whole-person impairment for the cervical spine. The whole-person rating for the cervical spine was based only on range of motion deficits with no Table 53 diagnosis. The ALJ upheld the DIME's impairment rating and Respondents appealed. The ICAO overturned the ALJ's Order, concluding that the Order was not supported by the findings. The ICAO reasoned that the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) specifically prohibit a rating for the cervical spine without a Table 53 diagnosis of the spine. Although there exists an exception to this rule where "severe shoulder pathology" is established and a claimant receives treatment of the cervical musculature, the ICAO noted that the statutes prohibit an impairment rating based on chronic pain "without anatomic or physiologic correlation."
Moral of the Story: Impairment ratings for the cervical spine are not appropriate without a corresponding Table 53 diagnosis under the AMA Guides, 3rd Edition Revised.
The Road Not Taken: Unless the ALJ Determines it is Within the Commutable Labor Market: In Simms v. Shiloh Steakhouse, W.C. No. 4-892-836-01 (October 3, 2017), Claimant injured his low back after trying to pick up a full five-gallon bucket. After being placed at MMI, Claimant sought PTD benefits. The ATP and Respondents' medical expert concurred that Claimant should alternate between standing and sitting every 30 minutes as part of his permanent restrictions. The ALJ found that there were jobs within a 40 to 60-minute drive that Claimant would be able to successfully perform, and that Claimant could make the drive to those positions. On appeal, Claimant asserted that the ALJ's finding that he could drive 40 to 60 minutes each way was inconsistent with his restrictions requiring him to alternate between sitting and standing every 30 minutes. ICAO found that the ALJ's finding that Claimant was capable of a 40 to 60-minute drive each way under his permanent work restrictions was supported by substantial evidence.
Moral of the Story: In determining PTD benefits, whether the labor market is commutable is a question of fact to be determined by the ALJ.
Subcontractor Liability Falls Through the Cracks: In Noyola v. Davie Roofing and Eco Roof and Solar Inc., W.C. 4-969-386-08 (September 19, 2017), Claimant was injured when he partially fell through a roof while working as an employee of a subcontractor. Claimant attempted to demonstrate that Eco Roof and Solar were his statutory employers. Eco Roof and Solar cited a certificate of insurance representing workers' compensation coverage issued to the subcontractor as immunity to the claim. The ALJ found Claimant failed to demonstrate by a preponderance of the evidence that Eco Roof and Solar were statutory employers. Claimant appealed. Citing Buzard v. Super Wall Inc., 681 P.2d 520 (Colo. 1984) in the appeal, ICAO reasoned that in the absence of proof that the subcontractor was also an insured employer, the statutory employer remains solely liable for the work-related injuries of the subcontractor. ICAO determined Eco Roof and Solar were solely liable for Claimant's injuries unless they could show that there was a subcontractor with workers' compensation insurance to cover the Claimant at the time of injury, noting that the mere existence of a policy was deemed insufficient to meet this burden. ICAO remanded to the ALJ to determine whether the subcontractor had insurance to cover Claimant's injuries.
Moral of the Story: To establish immunity, the burden remains on the statutory employer to show that the subcontractor had workers' compensation insurance capable of covering a claimant.
Everyone is Entitled to an Opinion but…: In Oliphant v. Ward Electric, W.C. 5-006-696-03 (September 27, 2017), Claimant lost on the issue of compensability for a shoulder injury and appealed, arguing that the ALJ's Order was not supported by substantial evidence. Claimant argued that the ALJ should have given more weight to two expert opinions that opined Claimant's condition was an aggravation of a pre-existing condition. Citing Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) in the opinion, ICAO reasoned that to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. ICAO noted that the ALJ was more persuaded by a conflicting expert opinion that found Claimant did not sustain an acute injury. The ALJ found that the Claimant's need for medical treatment was caused by a "temporary aggravation" of his symptoms and not a subsequent aggravation or acceleration of the preexisting condition. ICAO agreed that the medical opinion relied upon by the ALJ fully supported this determination. ICAO affirmed the ALJ's Order.
Moral of the Story: The weight, credibility, and deference to be assigned expert testimony is a matter solely within the ALJ's discretion, absent reversible error.
Do you have a valid FAL? Yes, if the Maximum Medical Improvement/Impairment Rating Report is Co-signed by the ATP and Benefits are Actually "Payable": In Flake v. JE Dunn Construction, Claimant suffered work-related dehydration leading to a brief hospitalization. The physician's assistant (PA) placed Claimant at MMI with no impairment, and the supervising physician agreed with the determination and countersigned the form WC164, agreeing with the PA. Respondents filed a FAL. Claimant requested a DIME and sought a hearing on several issues, including penalties for the improper filing of a FAL because the MMI determination was made by the PA, not the ATP. The ALJ denied the penalties, noting that countersignature of the ATP was sufficient to satisfy Rule 5-5, W.C.R.P. The ICAO agreed with the ALJ. However, the two ICAO panel members split on whether the FAL had any legal effect in light of the controversial 2014 Loofbourrow decision by the Colorado Supreme Court, which held that a MMI determination has no legal effect if indemnity benefits are not "payable" because it has not yet become a compensable claim. The two ICAO panel members in Flake split on whether such benefits are "payable" under the Loofbourrow analysis, where entitlement to indemnity benefits remains in dispute.
Moral of the Story: (1) A PA's MMI and impairment determinations are adequate for a FAL as long as they are countersigned by the ATP; (2) The Workers' Compensation bar and courts in Colorado are still deciding on how to interpret and apply the Loofbourrow decision summarized above. The Flake case differs from Loofbourrow because benefits were actually payable prior to the MMI determination and were ultimately ordered to be paid.
October 20, 2017 September 15, 2021 by Lee & Brown
Legal Connection Firm Newsletter – October 2017
Member Joshua D. Brown, Of Counsel John Abraham, and Office Manager Denise Iannotti attended the NAMWOLF Annual Meeting in New York City, which took place September 16 through September 20. This year's meeting was the largest attended NAMWOLF meeting to date. NAMWOLF helps to promote diversity in the legal profession by fostering successful relationships among preeminent minority and women-owned law firms and private/public entities. The annual meeting is held every September to allow NAMWOLF member firms to provide greater insight into each Member Law Firm's experience and capability to handle complex legal matters. The annual meeting also provides the opportunity to network with NAMWOLF Leadership, meet with prospective clients, and forward diversity among member law firms and vendors. Josh, John, and Denise represented the Firm and attended several meetings and social functions promoting the Firm's diversity and practice areas.
Of Counsel M. Frances McCracken successfully overcame the DIME physician's opinion on permanent impairment by clear and convincing evidence in Smith v. Interactive Corp., W.C. No. 4-967-607-01. Claimant sustained an admitted injury to the left shoulder. Claimant was placed at MMI with a 5% scheduled impairment rating. Respondents filed a FAL. Claimant requested a DIME. The DIME physician agreed with the ATP's date of MMI, but assigned Claimant a 25% scheduled impairment rating. Respondents sought to overcome the DIME. Respondents' expert opined the DIME physician failed to review and / or account for Claimant's pre-existing conditions/injuries to the left shoulder, did not account for the discrepancies in Claimant's subjective complaints versus those documented in the records, and failed to provide an explanation of the 25% scheduled rating pursuant to the AMA Guidelines. The ALJ determined, by a preponderance of the evidence, that Claimant suffered a 5% scheduled impairment rating to the left shoulder. The ALJ concluded that Claimant failed to prove by a preponderance of the evidence that he was entitled to maintenance care other than as recommend by the ATP.
In a second win, Of Counsel McCracken successfully defeated Claimant's request for appeal in Jaterka v. Johnson & Johnson, W.C. No. 4-978-459 (ICAO September 11, 2017). Claimant suffered an admitted injury to her left wrist and elbow. Claimant also complained of a left shoulder injury; however, Claimant's ATP opined that the left shoulder injury was not work related. Claimant was placed at MMI. Respondents filed a FAL. Claimant did not object. Claimant later sought treatment with her personal physician for her left shoulder and underwent surgery. Almost one year later, Claimant filed an Application for Hearing endorsing the issues of compensability, medical benefits, petition to reopen claim, TTD, PPD, MMI and "medical reimbursement." In the ALJ's Order on remand, he credited the opinion of the ATP who found that Claimant's shoulder injury was not work-related. The Claimant failed to meet her burden of proving that the treatment provided by her personal provider was authorized or related to the admitted work injury. Claimant's Petition to Reopen was also denied as Claimant failed to present any evidence to show that the ATP erred in his diagnosis, treatment or placement of Claimant at MMI. ICAO affirmed.
Associate Matt Boatwright successfully challenged compensability of an alleged low back injury in Anstey v. United Parcel Service and Liberty Mutual Insurance. Claimant asserted that she suffered a back injury while lifting packages during the busy Christmas season. Claimant initially denied to her supervisors that her back condition was related to her work activities, instead claiming that the condition was from a prior injury at work. However, after examination by a physician, Claimant was told that her condition was not related to the prior injury. Claimant then claimed that she had aggravated her back while lifting at work. The ALJ denied and dismissed the claim for compensation finding that there was no evidence of a work-related injury.
LEGISLATIVE UPDATE—FIRST RESPONDERS' COVERAGE FOR PTSD
2017 saw more legislative action related to workers' compensation than Colorado has seen for the past few years. Three bills were introduced in the Colorado Legislature and all three passed. One of the newly enacted bills, HB 17-1229, was enacted on June 5, 2017, with an effective date of July 1, 2018 (subject to exception). It amends section 8-41-301, C.R.S., relating to the conditions of recovery for claims of mental impairment. Click here to continue reading this article.
The ALJ Runs the Show: In Villegas v. Denver Water, W.C. 4-889-298-04 (August 22, 2017), Claimant lost on the issue of PTD benefits. Claimant appealed arguing that the ALJ erred in allowing Respondents' expert witness to testify while denying Claimant's request to sequester the Respondents' expert witness, and denying Claimant's request to call a rebuttal witness. Claimant also argued that the PTD standard was unconstitutionally vague, and that the ALJ did not have jurisdiction to hear the dispute because of the failure to set the hearing within the 180-day window. The ICAO determined it was within the ALJ's discretion to determine which testimony to allow, and that witness preclusion is just one of several sanctions available to an ALJ for discovery violations. The ICAO refused to address the facial constitutionality of the PTD standard due to lack of authority. Finally, the ICAO upheld the ALJ's finding that he had jurisdiction to hear the case, despite being outside 180 days from the Application for Hearing, noting that the 180-day window was "directory" rather than "jurisdictional."
Moral of the story: Arguing every possible ground for appeal may be less persuasive than focusing on your strongest arguments.
No Back-Door Medical Treatment for Denied Claims: In Madonna v. Walmart, W.C. 4-997-641-02 (August 21, 2017), an employee suffered a heart attack at work. Claimant obtained emergency medical treatment and later sought unauthorized medical care. The matter went to hearing on the issue of compensability. The ALJ found that Claimant did not suffer a work-related injury. Nevertheless, the ALJ ordered the Respondents liable for the emergency medical treatment. The Respondents appealed. ICAO agreed that there can be no award for emergency medical treatment when the emergency treatment is not related to a work injury.
Moral of the story: The emergency medical care exception is not an exception to the rule that a claimant must prove medical care is related to a work injury.
An "Exceptional" Tale of a Compensable Injury: In Barnes v. City and County of Denver Police Department, W.C. 5-003-724-04 (August 25, 2017), a Denver Police Officer was injured when he crashed his work issued motorcycle. Respondents denied liability, claiming he was traveling from work to his home following the end of a work shift. Therefore, the injury was not compensable in accordance with the "going to and coming from" Rule. The matter went to hearing. The presiding ALJ found Claimant's injury compensable because Claimant's travel was "contemplated by the employment contract" and there was a substantial mutual benefit for Claimant's use of the motorcycle after work. Respondents appealed. The Order was affirmed as to compensability.
Moral of the Story: Additional written agreements conferring a substantial benefit between employer and claimant is an exception to the "going to and coming from" Rule as it is contemplated by the employment contract.
Who Knew? Sick Leave is not "Wages:" The second issue in Barnes v. City and County of Denver Police Department involved wage continuation pursuant to C.R.S. §8-42-124(2). Claimant used sick time for the work injury. Respondents asserted Claimant was paid his full wages during this time and therefore, they did not owe temporary benefits. The ALJ ruled the Employer was required to reinstate Claimant's sick time, and convert the wages paid to "work injury leave." On appeal, Respondents alleged the ALJ did not have jurisdiction to order the Employer to restore Claimant's sick leave. ICAO modified the ALJ's Order and ruled wage continuation may not charge sick time to offset temporary benefits. Once a claimant is charged earned sick leave, the employer cannot reduce its liability for temporary disability benefits. The employer must directly compensate claimant for temporary total disability benefits for time missed.
Moral of the Story: Employers cannot take an offset against sick leave for reducing TTD payments.
Liar, Liar, Pants on Fire: Jones v. Regis Corporation, W.C. 4-976-657 (August 18, 2017), involves a contested neck injury. At hearing, Claimant admitted a prior neck injury, but testified her symptoms "completely resolved" before the work injury. An ALJ found the claim compensable. A DIME found Claimant at MMI with an impairment. Respondents later discovered numerous medical records of Claimant for extensive prior treatment to the cervical spine. This included treatment that was just two days before the alleged work injury. Respondents sought to reopen the Order on the basis of fraud/mistake and withdraw the admission. At the second hearing, the ALJ found Respondents proved, by a preponderance of the evidence, the previous Order was issued by mistake, and set aside the prior Order. Claimant appealed and argued the ALJ erred because Respondents had the burden to overcome the DIME opinion that there was a work injury by clear and convincing evidence. ICAO disagreed. It held that the initial burden is to prove, by a preponderance of the evidence, an injury occurred in the course and scope of employment. C.R.S. §§8-41-301(1)(c) and 8-43-201. In this case, Respondents had the burden to prove the injury did not occur in the course and scope of employment since they sought to modify an admission and set aside the prior Order. C.R.S. §8-41-201(1). The burden of proof remained preponderance of the evidence because it is the threshold requirement to prove before compensation is awarded.
Moral of the Story: The burden of proof of whether there is a compensable injury is preponderance of the evidence. Once an injury is admitted, then the burden of proof as to the extent of a compensable injury, as found in a DIME, is clear and convincing evidence.
On the Road Again: In Turner v. Sunrise Transport, W.C. 4-981-338 (August 23, 2017), Claimant was an over the road truck driver hired in British Columbia. His employer's company headquarters is in British Columbia, Canada. Claimant was injured while making a delivery in Colorado and sought Colorado workers' compensation benefits. Respondents argued Colorado lacked jurisdiction. The ALJ found only 6.2% of Claimant's work was performed in Colorado, which was insubstantial to create jurisdiction, and dismissed the claim. Claimant appealed. ICAO noted for jurisdiction, a substantial portion of the work must be done in the state and, in addition, it must be shown there was either an injury occurring in the state or a contract of hire in the state. United States Fidelity Co. v. Industrial Commission, 61 P.2d 1033 (1936). To determine whether there is substantial portion of work performed in the state, the ALJ may consider the Claimant's "usual" and "regular" employment. Whether Claimant proved substantial employment was a factual determination for an ALJ. ICAO affirmed the ALJ's Order.
Moral of Story: Though an injury may occur in Colorado, the state may not be the proper place to file the claim.
September 29, 2017 September 15, 2021 by Lee & Brown
Legal Connection Firm Newsletter – September 2017
On behalf of our Texas and Florida clients, the Firm made a donation to the Hurricane Relief Fund.
The Firm LLC sponsored the Hole-in-One competition at the PWC Annual Golf Tournament. The event was held at the Raccoon Creek Golf Course and was well attended. Members Katherine Lee and Joshua Brown played on teams as well as Of Counsel Frank Cavanaugh. Amy Braddy, on Katherine Lee's team, nailed an Eagle on a par 4 from 130 yards out. They used Amy's drive, and she hit her second shot – so the eagle was truly all Amy. Way to go team! We will certainly be securing Amy Braddy for our PWC golf team next year! Congratulations to all the players and to the PWC for putting on a great event.
Of Counsel M. Frances McCracken successfully defended Claimant's request for arthroscopic shoulder surgery in Johnson v. Family Dollar Stores of Colorado, Inc., W.C. 5-011-944-01. Claimant sustained admitted injuries to her right foot, right second toe, and left wrist. Three months after the initial injury, Claimant began complaining of left shoulder pain. Claimant was diagnosed with a labral tear and arthroscopic surgery was recommended. The ATP and Claimant's expert opined that the Claimant's worsening shoulder complaints were the result of "disuse" from the work-related left wrist surgeries. Claimant had a prior left upper extremity work-related injury from January 2007. Respondents' expert opined that Claimant's 2008 MRI scan and the 2017 MRI scan of the left shoulder were virtually identical. Medical records also showed that Claimant had chronic left shoulder problems that predated the current work-related incident. The ALJ concluded that Claimant failed to prove by a preponderance of the evidence that the left shoulder arthroscopy was reasonable, necessary and related to the admitted industrial injury. Claimant's claim for left shoulder surgery was denied and dismissed.
In a second win, Of Counsel M. Frances McCracken , successfully appealed an ALJ's Order requiring Respondents to pay for Claimant's emergency medical treatment in Madonna v. Walmart, W.C. No. 4-997-641-02, ICAO August 21, 2017. Claimant was at work lifting a case of oil when a customer startled him. He turned sharply and felt a sharp pain in his chest with numbness into his left arm. Claimant's supervisor called an ambulance fearing that Claimant was having a heart attack. Claimant had a long history of cervical spine pain with multiple surgeries in 1999. The ALJ determined that Claimant failed to prove he suffered a work-related injury, as his condition and need for surgery existed prior to the date of the alleged injury. However, the ALJ ordered that Respondents were liable for the emergency medical treatment the Claimant received on the day of the incident and his hospitalization the following two days. On appeal, Respondents argued that C.R.S. Sec. 8-42-101(1)(a) cannot be expanded to render them liable for "non-injury related emergency medical care." ICAO held that the ALJ found that Claimant had a bona fide emergency while at work, but the emergency was not caused by the work incident and was solely caused by his pre-existing condition; thus, since there was no causal relationship between Claimant's need for medical treatment and the work incident, Respondents were not liable. The ALJ's Order requiring Respondents to pay for emergency medical treatment was reversed.
Associate Matt Boatwright successfully challenged Claimant's attempt to relate an ankle injury and requested surgery to her admitted claim for a back injury in Gurrola v. United Parcel Service, W.C. No. 5-029-464. Claimant suffered an aggravation of a preexisting low back injury in May of 2016 and had subsequent complaints of radicular symptoms into the leg. Claimant rolled her ankle in January 2017 and suffered an injury for which surgery was requested. Claimant claimed that she injured her ankle because of leg weakness related to the admitted back injury. The ALJ found that there was insufficient evidence of a causal relationship between the ankle condition and the low back injury. The ALJ therefore denied and dismissed the request for authorization of surgery for the ankle.
OBAMA-ERA FAIR LABOR STANDARDS ACT OVERTIME RULE DEFEATED
Last year, the Department of Labor instituted a new overtime rule under the Fair Labor Standards Act (FLSA), which required employers to pay a little more than $47,000 annually to qualify under the white-collar exemptions. This rule had previously been in limbo given that a Texas Federal District Court judge prevented its enforcement last Thanksgiving. The same judge has now recently struck down the rule permanently. Click here to continue reading this article.
Be Specific: In Guzman v. Q3 Contracting, Inc., the Respondents sought review of an Order that determined the Claimant had overcome the DIME's finding that he was at MMI. (W.C. No. 4-955-901-02, ICAO July 18, 2017). ICAO dismissed the appeal for lack of a final Order. Hearing was held and the ALJ found that the Claimant had not reached MMI and ordered the Respondents to pay for authorized, reasonable, and necessary medical benefits. The ALJ reserved the issue of TTD benefits for future decision and determined that he did not have authority to require Respondents to pay for medical treatment that was not provided by an APT. Since the ALJ's Order did not award or deny any specific benefit it was interlocutory and not reviewable. A general award of medical benefits does not qualify as an award of a specific benefit.
Moral of the Story: Always have an ALJ rule on specific benefits so that the order is appealable.
Asleep at the Wheel: In Lagasse v. Xtreme Drilling and Coil Service, the Claimant filed a request for death benefits when her husband died in a motor vehicle accident while driving home from work. (W.C. No. 4-993-361-02, ICAO July 24, 2017). The Claimant appealed the decision of the ALJ that determined there were no special circumstances to justify an exception to the general going to and coming from work rule. In general, injuries sustained while going to and coming from work are not compensable unless a special circumstance creates a causal relationship between the employment and travel. The Claimant argued that the employment contemplated use of a personal vehicle because employees would have to change locations without notice. The Claimant argued that if personal vehicles were not used, the employer would have to arrange and pay for the transportation to the new work-sites. The ALJ found that the decedent's use of his personal vehicle did not confer a benefit to the employer. ICAO upheld the ALJ's Order denying compensability.
Moral of the Story: "Special circumstances" as an exception to the "going to and coming from" rule occur when the employment contract contemplates the travel or the employer provides the transportation or pays the cost of the travel.
Let's Get Ready to Rumble: In Ostberg v. Mr. Bult's Inc., the Respondents sought review of the ALJ's Order finding the claim compensable. (W.C. No. 5-012-857-01, ICAO July 14, 2017). The Claimant was a truck driver and returned to the loading facility to retrieve a trailer. The Claimant got into an altercation with a co-worker about the trailer that was selected and they exchanged a series of four letter words. The Claimant turned to walk away and the co-worker called him an offensive name. The Claimant turned back and the fight became physical resulting in injuries. The Respondents argued that since the Claimant walked away from the original fight, the physical altercation was a second fight due to the offensive name calling and was purely a personal dispute. The ALJ determined that the events were all part of the same dispute pertinent to the Claimant's use of the trailer and the three second interval of the Claimant turning to leave did not represent a deviation from the original argument. The ALJ found the claim compensable and awarded TTD benefits. ICAO upheld the ALJ's Order.
Moral of the Story: Physical altercations between employees resulting in injuries are compensable if the basis of the fight arises out of work. If employees import personal unrelated disputes into the work-site, then injuries resulting from a physical altercation are not compensable.
For Whom the Statute Tolls: In Becirovic v. Residence Inn, W.C. No. 5-002-866 (August 3, 2017), ICAO affirmed an Order of that dismissed a claim for death benefits upholding the ALJ's finding that the claim was barred by the statute of limitations. The original injury occurred on August 31, 2011 and the decedent died on November 19, 2013. Claimant obtained an IME report relating the death to the injury on March 23, 2015. Claimant filed a claim for death benefits with the OAC on July 2, 2015 and again on November 5, 2015 but did not file the claim with DOWC until December 7, 2015. Section 8-43-103(2), C.R.S., requires that a claim for death benefits be filed with the DOWC within two years after the death, with an additional year permitted if there is a reasonable excuse. The statute of limitations begins to run when the Claimant should "recognize the nature, seriousness, and probable compensable character of the injury." The ALJ found that there was no evidence that Claimant or OAC sent notice to the DOWC or Respondents within two years. ICAO dismissed Claimant's argument that the statute began to run after the IME opinion that related the death to the injury, upholding the ALJ's opinion that the Claimant should have been aware of the probable compensable nature at the time of the death due to medical records already in existence at that time. ICAO found that the statute of limitations was not tolled by the alleged failure of the employer to file the required notice upon learning of the death, as they did not have evidence that the death was related. ICAO also upheld the ALJ's finding that the filing through OAC did not constitute a "reasonable excuse" not to file with DOWC within two years.
Moral of the Story: Claims for workers' compensation, including death benefits, must be filed within two years from the injury or death with the Division of Workers' Compensation, and claim filings through the Office of Administrative Courts do not constitute notice or a reasonable excuse to extend or toll the statute of limitations.
The Penalty Box: In Cruz v. Sacramento Drilling, Inc., W.C. No. 4-999-129 (July 28, 2017), ICAO affirmed an Order by the ALJ denying Claimant's request for penalties surrounding an offer of modified employment. Respondents sent Claimant an offer of modified employment on August 10, 2016 that directed Claimant to begin the job on August 16, but was contingent upon a background check. The offer described duties, hours, and wages and was approved by the ATP. Claimant did not begin working on August 16 or any time thereafter. Respondents subsequently reduced Claimant's benefits in a GAL filed September 6, 2016 and maintained a reduction in a later GAL filed after litigation over AWW. Claimant asserted that because the offer of modified duty was contingent upon passage of a background check, it did not meet the definition of an "offer" and was therefore not in compliance with WCRP 6. The ALJ found that the offer met the basic requirements of the WCRP 6 and that Respondents were in compliance and not subject to penalties. On appeal, ICAO upheld the ALJ's finding, noting that required participation in a background check is not a contingency that negates an offer of employment. See Underwood v. Skywest, W.C. No. 4-745-218 (ICAO, May 15, 2009). ICAO further found that the offer was still valid, even though the job was through a third party, as Claimant remained employed by Respondent-employer. ICAO further upheld the ALJ's denial of penalties for Respondents' alleged failure to file a GAL that accurately reflected when TPD began, as the Court noted that a GAL is not a record of payments actually made.
Moral of the Story: Offers of modified duty that require a background check or are through a third party, so long as there is no requirement to rehire through the third-party employer, are in compliance with WCRP 6.
Keep Paying Those Health Insurance Premiums: ICAO reversed an ALJ's Order increasing AWW to include the employer's cost of Claimant's health insurance premiums in De Bell v. IKEA, W.C. No. 5-011-040 (July 14, 2017). Claimant continued employment with Respondent-employer and the employer never stopped paying its portion of the Claimant's health insurance premiums. The ALJ nevertheless increased the AWW to include the employer's cost of the insurance premiums, solely to increase the calculation of the PPD award. Respondents appealed, arguing this was an abuse of discretion. ICAO reversed, finding that the ALJ abused his discretion in several respects. Section 8-40-201(19)(b), C.R.S., requires an increase in AWW for the employee's cost of continuing the employer's health insurance plan. ICAO found that the ALJ did not have authority to increase AWW by the employer's portion of the cost. ICAO also found that the ALJ did not have authority to increase AWW because the employer continued to pay the cost of the health premiums, and that the statute explicitly states that AWW shall not be increased in this circumstance. ICAO further found that the ALJ abused his discretion in recalculating AWW solely for purposes of PPD, as the AWW statute Section 8-42-102(1), C.R.S., makes no distinction between temporary and permanent benefits. The ALJ's Order was reversed in its entirety.
Moral of the Story: An ALJ is without authority to recalculate AWW to include an employer's cost of health insurance premiums, is prohibited from increasing AWW to include the employee's cost of insurance premiums where the employer continues to pay their portion of the premiums, and is without authority to recalculate AWW with distinctions between temporary and permanent benefits.
Shoulder the Burden: In Vitwar v. City of Colorado Springs, Respondents sought review of an Order determining that Claimant's melanoma was a compensable occupational disease under the firefighter cancer presumption statute. (W.C. No. 4-832-507-06, ICAO July 19, 2017). The ALJ determined Claimant met the requirements of the firefighter cancer presumption statute C.R.S. 8-41-209. Those requirements are the following: Claimant has been a firefighter for five or more years; he suffered an onset of a specific condition listed; and that there was no evidence showing he had melanoma when Respondents hired him. The ALJ explained that the compensability presumption can be overcome by the employer by proving, by a preponderance of the evidence, that the firefighter's cancer did not occur on the job. An ALJ will weigh the risk factors related to employment to determine if they are more predominant than those risk factors not connected to employment. ICAO upheld the ALJ's Order finding Claimant's melanoma compensable.
Moral of the Story: When challenging compensability under the firefighter cancer presumption statute, C.R.S. 8-41-209. Employers have the burden of proof, by preponderance of the evidence, to prove that a firefighter's cancer is not related to their employment after the Claimant has met the enumerated requirements of the statute.
Running for your Claim: In Kendrick v. ICAO, the Colorado Court of Appeals affirmed the ALJ's decision denying compensability by finding that Claimant's injury occurred during a voluntary recreational activity. Voluntary recreational activities are explicitly excluded from the definition of "employee" within the definition provided in C.R.S. 8-40-301(1). (August 3, 2017, Colo. Ct. App.). Claimant, a pilot, was injured while running during a scheduled layover between flights. The Court of Appeals rejected, as did the ALJ and ICAO, Claimant's argument that his running fell within the "personal comfort doctrine" applicable to workers on "travel status". The Personal Comfort Doctrine states that injuries suffered by employees while traveling as a requirement of work are held to be within the course and employment continuously during the trip, except when the employee makes a distinct departure on a personal errand. The Court opined that Claimant's injury occurred during a "recreational activity" which is explicitly excluded from the definition of "employee" from C.R.S. 8-40-201(8) and C.R.S. 8-40-301(1). The Court drew attention to the undisputed facts that Claimant was not required to exercise and that many other pilots for employer did not exercise during layovers. The Court of Appeals affirmed the lower court's ruling and found the claim was not compensable.
Moral of the Story: Just because an injury occurs while a Claimant is in "travel status" for their employment, does not inherently make it compensable under the personal comfort doctrine. Injuries from voluntary recreational activities may not be compensable.
August 17, 2017 September 15, 2021 by Lee & Brown
Legal Connection Firm Newsletter – August 2017
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Member Joshua Brown, Of Counsel Frank Cavanaugh, and Associate Jessica Melson attended this year's Colorado Defense Lawyers' Association (CDLA) annual conference. This year the conference was held in beautiful Santa Fe, NM, where the focus was on various nuisances in defending claims across Colorado. The conference was well attended by the CDLA members and offered a variety of presentations by various judges.
Of Counsel Frank Cavanaugh, as a Vice Chair of the workers' compensation section of the CDLA, arranged for speakers for the 2017 conference. When one speaker could not attend, Frank became a speaker as well. He and Ron Nemirow, Esq. spoke on the complicated relationship a workers' compensation attorney has in representing both the carrier and employer, given potentially conflicting positions of both entities.
Of Counsel M. Frances McCracken was successful in defending Claimant's attempt to impose penalties against Respondents for failure to timely pay PPD benefits in Valencour v. Best Buy, W.C. 4-936-414. Claimant sought penalties against Respondents for their failure to pay PPD benefits in full following a DIME which increased his permanent impairment rating. Respondents filed an Amended FAL admitting to the DIME rating, but erroneously believed that they had paid Claimant's PPD benefits in full. However, through an accounting error, Respondents still owed Claimant a portion of his PPD benefits that were admitted for in the Amended FAL. Claimant filed for penalties against Respondents under C.R.S. § 8-43-304(1) and (2). At hearing, the ALJ found that while Respondents failed to properly pay Claimant his PPD benefits following the DIME, it was not willful. Further, the ALJ found that Claimant failed to plead his penalties with specificity. In turn, the ALJ dismissed and denied Claimant's claim for penalties.
Of Counsel John M. Abraham successfully defended Claimant's attempt to overcome the DIME and successfully terminated Claimant's admitted maintenance medical benefits in Stotler v. Walmart Stores Incorporated, W.C. 4-974-840. The DIME physician assigned Claimant a 6% scheduled upper extremity impairment rating. At hearing, Claimant alleged she was not at MMI, alleged that her left shoulder was also injured due to overuse and overcompensation, and sought an additional 10% impairment in the right shoulder because she underwent a resection of the bone during shoulder surgery. The ALJ credited the testimony of Respondents' medical expert who testified that: Claimant was at MMI for her injuries, the DIME physician did not err in his causation opinions regarding the left shoulder, and that Claimant was not entitled to an additional impairment for a distal clavicle resection because Claimant had undergone an acromioplasty. The expert explained that an acromioplasty is a minor shaving of the bone which is different from a resection of the bone. Further, the expert testified that it is not mandatory to assign a 10% impairment for a resection of the bone and that it is at the discretion of the physician assigning impairment. Additionally, the ALJ permitted Respondents to terminate Claimant's maintenance medical benefits based on the ATP's and Respondents' experts' opinions that maintenance medical benefits were not reasonable, necessary or related.
Of Counsel John M. Abraham also successfully withdrew a General Admission of Liability (GAL) and obtained a full dismissal of Claimant's ongoing workers' compensation benefits for a previously admitted cumulative trauma injury in Covarrubias v. Dave & Buster's Incorporated, W.C. 5-025-695. Claimant alleged a cumulative trauma injury to her right upper extremity that she attributed to her work-related duties as cleaner, most notably scooping ice. Claimant's ATP ordered a Physical Demands Analysis and Risk Factor Assessment. An IME was conducted at the request of Respondents which confirmed that the Claimant's job duties did not meet the threshold requirements for any primary or secondary risk factors under the revised Cumulative Trauma Disorder Guidelines pursuant to Rule 17. The ALJ credited Respondents' medical expert finding Claimant performed several different activities throughout the day and that many of the activities did not meet the minimal force or time duration requirements. As a result, Respondents were permitted to withdraw the GAL and Claimant's claim for workers' compensation benefits was denied and dismissed.
SETTLEMENTS POST ENGLAND
The Colorado Supreme Court issued an opinion on May 30, 2017 in England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017). This case involved settlement of workers' compensation matters and may even affect settlement of liability matters in a personal injury case. The case has significant ramifications for employers and carriers moving forward. Click here to continue reading this article.
No Immunity for You: In Am. Family Mut. Ins. Co. v. Ashour, the Court of Appeals held that a Claimant could recover underinsured motorist (UIM) benefits from his personal auto insurance policy in addition to WC benefits in cases where the incident was the result of a co-worker's negligence. (May 18, 2017, Colo. Ct. App.). In this case, Claimant was severely injured in a truck accident caused by a co-worker. The employer paid benefits under the admitted WC claim, but Claimant could not recover from the at-fault co-worker for his remaining damages because the WC Act was his sole remedy. Thus, Claimant filed a claim with his personal auto insurance policy to recover the remainder of his damages from his UIM benefit coverage. The auto insurance carrier denied the claim and argued that Claimant could not recover UIM benefits because he was not "legally entitled to recover" damages from the at-fault co-worker because of the immunity. The Court disagreed and held that the immunity given to employers and co-workers under the WC Act does NOT bar an injured employee from recovering damages from his personal insurer. The Court reasoned that Claimant was entitled to recover from the co-worker under the terms of his personal auto policy. The fact that the co-worker was ultimately immune from suit under the WC Act did not impact the decision because the policies behind the WC Act and the UIM coverage were not in conflict and Claimant was not trying to recover additional damages from the immune co-worker.
Moral of the story: While employers and co-workers have immunity under the WC Act, the immunity will not protect automobile insurance carriers from having to pay UIM benefits to claimants who have UIM coverage policies and are injured as a result of the negligence of their employer or co-workers.
The No-Mans' Land of Medical Only Claims: In Trujillo v. Elwood Staffing and Zurich Am. Ins. Co., ICAO dealt with the question of when a medical-only claim can close and what impact a DIME opinion has on this type of claim. (W.C. 4-957-118, ICAO June 22, 2017). Here, Respondents filed a FAL admitting for no lost time and no permanent impairment based on a follow-up DIME report. Claimant pursued a hearing where the ALJ found that he failed to overcome the DIME opinion. On appeal, ICAO reiterated their previous holding that the DIME's determination of MMI has no statutory significance with injuries that do not result in the loss of more than 3 days of work or permanent disability. Because the DIME opinion on MMI had no impact, ICAO held that (1) Claimant's claim was not closed, (2) the FAL was premature, and (3) the FAL did not preclude the Claimant from requesting further medical benefits. ICAO held that Claimant would need to prove the reasonableness, necessity and relatedness of any disputed medical benefit in the future, but would not have to prove a worsening of condition to formally reopen the claim in order to get the medical treatment.
Moral of the story: Do not file a GAL unless you are required to because of (1) a loss of more than three days of work, (2) anticipated permanent impairment, or (3) the Division is demanding a position because a claim for compensation was filed. We anticipate that the Colorado legislature will resolve some of these issues soon.
Medical v. Financial Services: In Nanez v. Mechanical & Piping, Inc. and Pinnacol Assurance, ICAO held that conservator and guardian services for a Claimant with a brain injury were not compensable under the WC Act because they were not medical in nature and did not enable access to medical services. (W.C. 4-922-618, ICAO June 16, 2017). Claimant sustained a traumatic brain injury, which impacted his short-term memory. The Colorado District Court appointed a conservator and guardian to monitor Claimant's finances and protect his personal property. Both charged hourly fees to Claimant's estate. Claimant filed an Application for Hearing requesting that Respondents pay for these services because the injury caused his need for the services. ICAO agreed with the ALJ that the conservator and guardian services were not medical in nature and not compensable expenses. ICAO also agreed with the ALJ that the ALJ did not have authority to authorize these services based solely on the appointment by the District Court. However, ICAO indicated that Claimant would be able to ask the ALJ to approve specified services that could be classified as medical treatment and have Respondents reimburse his estate for the cost of those specific compensable services.
Moral of the story: If the requested services are not medical or enable the access to medical care, the services are not likely compensable under the WC Act and should be denied.
Volunteers truly work for "nothing": In Lewis v.Wellbridge/Starmark Holding and XL Specialty Insurance Company, W.C. N0. 5-006-772 (June 12, 2017), Respondents appealed an Order from the ALJ that found Claimant's injury compensable because he was an employee and not a volunteer. Claimant contracted with the Employer to run demonstration basketball clinics initially as a volunteer. The contract stated that after the demonstration clinics were completed, Claimant would be paid on a commission basis for any future clinics. Respondents argued that Claimant was a volunteer on the date of injury because he was not paid for the demonstration clinic on the date of injury and therefore, not entitled to workers' compensation benefits. The ALJ disagreed and ICAO affirmed, finding that a volunteer was a person who gives his services without any express or implied promise of payment.
Moral of the story: If you promise to pay someone wages as an employee, you better have workers' compensation insurance.
Define incidental . . . : In Schwartz v. Dillion Companies, W.C. No. 3-989-875 (June 5, 2017), Claimant sought review of an ALJ's Order which denied Respondents' liability to pay for household chores performed by Claimant's son. Claimant contended performing household chores would increase her pain. ICAO explained that the law required an ALJ to find either that Claimant's son's assistance was 'incidental' insofar as it allowed Claimant to access medical care, or that his help not related to accessing medical care was only a small portion of his total assistance. ICAO stated a prior ICAO decision held housekeeping services allowing a claimant to avoid activity that would aggravate pain could be denominated 'medical' for that reason; however, the Court of Appeals reversed the decision. ICAO reviewed the type and amount of services provided in this claim and found no reason to disturb the ALJ's decision.
Moral of the story: Performance of household chores must be incidental to medical treatment to be compensable. Courts have interpreted incidental to mean allowing a claimant to access medical care or as quantifying the amount of household chores as small in comparison to total assistance rendered.
Don't dismiss the "Impairment Rating Tips" as a paper tiger: In Kromer v. State of Colorado, W.C. No. 4-965-485 (July 6, 2017), Claimant appealed an ALJ's Order which credited a physician's opinion on impairment rating for the knee which included a reduction in the rating for range of motion loss in the contralateral knee. Claimant argued there was no basis in statute or rule to allow reduction for ROM loss based on ROM loss in the contralateral knee. ICAO noted the Division of Workers' Compensation "Impairment Rating Tips" provide that when deemed appropriate, a physician may subtract contralateral joint ROM impairment from the injured joint's ROM impairment. ICAO affirmed the ALJ's Order, citing case law which provides that the "Impairment Rating Tips" are not part of the AMA Guides but may be relevant to the impairment rating. Therefore, a physician's application of the tips goes to the weight an ALJ gives to an impairment rating.
Moral of the story: While the "Impairment Rating Tips" do not hold the force of statute or rule, ICAO extends deference to DOWC's interpretation of the AMA Guides as set forth in the "Impairment Rating Tips."
Everybody hurts sometimes but it does not necessarily rise to the level of a compensable mental impairment claim: In Ashton v. City and County of Denver, W.C. No. 5-010-884 (June 8, 2017), Claimant appealed an ALJ's Order denying and dismissing his claim for mental impairment benefits and raised numerous allegations of error. ICAO rejected all of Claimant's allegations. In pertinent part, ICAO explained that a claim for mental impairment is governed by § 8-41-301(2), C.R.S, which provides that a claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. ICAO referenced case law which explained that the statute on mental impairment seeks to limit recovery to those permanent mental impairments that have a disabling effect on the sufferer.
Moral of the story: When an injury is the result of an emotional stimulus that results in mental impairment, a heightened standard of proof is required to prevent frivolous claims.
July 19, 2017 September 15, 2021 by Lee & Brown
Legal Connection Firm Newsletter – July 2017
Member Joseph Gren attended the WBENC National Conference in Las Vegas last month. The WBENC conference was attended by hundreds of corporations who support diversity initiatives in hiring minority owned, women owned, and veteran owned businesses. Many of Lee + Kinder's clients were among those corporations. Attending the WBENC conference was a powerful experience, affirming the commitment of so many corporations to support businesses like Lee + Kinder, LLC, and other minority and women owned enterprises.
Member Joseph Gren and Associate Jenna Zerlynick authored an article for the Colorado Lawyer, July 2017 edition. The article, Settlement Procedures in Workers' Compensation, is an in-depth explanation of the unique procedural requirements governing settlement of Colorado Workers' Compensation Claims. Click the link in the article name to read the full article.
Proposed Rule 16 and 18 Changes for 2018: Utilization Standards and Medical Fee Schedule
Changes are coming for the Workers' Compensation Rules of Procedure, Rules 16 and 18. The changes to these very important rules will be implemented January 1, 2018. Rule 16 addresses Utilization Standards such as procedures and time frames for prior authorization. Rule 18 addresses the Medical Fee Schedule. The proposed rule changes are currently available on the Division of Workers' Compensation website for review. A public hearing is scheduled for August 1, 2017 at 9:30 am at the Division of Workers' Compensation to address the proposed changes. Lee + Kinder will provide updates regarding these important changes as the process moves forward.
Here are some of the key proposals:
Rule 16-11(A) – Contest of prior authorization & Rule 16-12 – Contesting payment for non-medical reasons: The medical review, IME report, or report from an ATP that addresses the relatedness of the requested treatment to the admitted claim may precede a prior authorization request.
Rule 16-11(E) – IMEs for contesting prior authorization: In order to contest prior authorization with an IME, the IME appointment must occur within 30 days or upon first available appointment of the prior authorization request, but not later than 60 days after the request. The IME report must be issued within 20 days of the IME, and the insurer must respond to the prior authorization request within 5 business days of the receipt of the IME report. If the injured worker does not attend or reschedules the IME, the payer may deny prior authorization requests pending completion of the IME.
Rule 16-9 – Notification submissions: These submissions must still be admitted or denied within 5 business days, but the payer may limit the initial approval to the number of treatments/duration listed in the relevant Medical Treatment Guidelines (MTGs). If subsequent medical records document functional progress, then the payer shall pay for the additional number of treatments/treatment duration listed in the relevant MTGs. If the payer proposes to discontinue treatment before the maximum number of treatments/treatment duration has been reached due to lack of functional progress, payer shall support that decision with a medical review compliant with section 16-11(B).
The use and definition of telemedicine is expanded.
The fee schedule reimbursement for out-of-state providers may be negotiated in excess of the fee scheduled when necessary to obtain reasonable and necessary care.
Member Joshua D. Brown and Associate Kristi Robarge successfully defended an appeal to the Industrial Claim Appeals Office (ICAO) in Alan Dillingham v. SkyWest Airlines, Inc., W.C. No. 5-014-315-01. Claimant sought review of the ALJ's Order denying compensability and dismissing Claimant's request for medical benefits. The ALJ determined that Claimant suffered from a substantial pre-existing condition which caused severe degenerative arthritis that was not exacerbated or accelerated by his work activities. The ALJ also determined that Claimant's need for a total knee arthroplasty was not related to his work activities. Claimant argued that the ALJ erred in finding that he did not suffer an aggravation of his pre-existing condition or, in the alternative, that he suffered a cumulative trauma injury because of the conflicting evidence supporting Claimant's position. Respondents argued that the ALJ's factual findings were supported by substantial evidence, given Claimant's long history of a pre-existing condition, and Respondents' medical expert's testimony. ICAO affirmed the Order, finding that there was substantial evidence to support the ALJ's determinations.
Of Counsel M. Frances McCracken successfully contested a claim that Claimant's hearing loss was causally related to his work injury and required in-the-canal hearing aids in Martinez v. Walmart Stores, W.C. 5-019-127-01. Claimant did not report any hearing loss until five months post-accident and he initially reported the hearing loss as being chronic. Claimant's ATP did not have any prior medical records relating to Claimant's treatment for renal failure or biliary cancer and chemotherapy treatment, both of which are known causes of hearing loss. The ALJ credited Respondents' medical expert and determined that Claimant's hearing loss, dizziness, and disequilibrium were not related to the work injury. Claimant's claim for in-the-canal hearing aids was denied and dismissed along with Claimant's claim for narcotic pain medications and anti-nausea medications.
Of Counsel M. Frances McCracken was successful in a second win by overcoming the DIME's opinion that Claimant sustained a 27% whole person impairment and defended against Claimant's claim for additional medical benefits in Jaramillo v. Family Dollar Stores of Colorado, Inc., W.C. 5-000-936-02. Claimant initially suffered an abdominal strain which questionably transitioned to SI joint pain. When placed at MMI, Claimant had full range of motion of her lumbar spine. However, the DIME provided Claimant with a 5% Table 53 impairment rating and a 23% whole person impairment based on loss of range of motion of the lumbar spine. Respondents' medical expert credibly opined that it was not medically probable that Claimant suffered a discrete injury to her SI joint without immediate pain in that region. Respondents' medical expert also credibly testified that the DIME physician clearly erred in assigning Claimant's impairment rating for loss of lumbar range of motion, given the discrepancies in her measurements. The ALJ concluded that Respondents had overcome the DIME opinion by clear and convincing evidence.
Associate Jessica Melson successfully defended Claimant's attempt to overcome the DIME and request for home health care in Schaffer v. Patterson-UTI Drilling Company, LLC, W.C. No. 4-946-584. In this case, a DIME found Claimant at MMI with specific disorder impairments to his cervical and lumbar spine. However, the DIME physician excluded range of motion impairment because she determined there was no objective basis for his limited motion. Claimant sought to overcome the DIME. Claimant alleged he was not at MMI because he required psychological evaluation and treatment. He also alleged that the DIME erred in excluding the range of motion measurements because it was not within the DIME physician's discretion to exclude valid range of motion measurements. Claimant also sought home health care as recommended by the ATP. The ALJ credited the testimony of Respondents' medical expert that it was within the DIME physician's discretion to not utilize the range of motion measurements if she did not find that it was Claimant's true functional range of motion. The ALJ found that Claimant failed to overcome the DIME regarding MMI and impairment. The ALJ also found that Claimant failed to demonstrate the request for home health care was related to the claim, as he was already receiving home health care before the request and Respondents' medical expert testified it was not reasonable, necessary, and/or related.
A FIRST! FDA REQUESTS WITHDRAWAL OF OPANA® ER FROM THE MARKET;
MANUFACTURER ACQUIESCES
Amid the nation's ongoing and "unprecedented opioid epidemic" (per the U.S. Department of Health and Human Services), on June 8, 2017, the U.S. Food and Drug Administration requested Endo Pharmaceuticals to voluntarily remove its opioid pain medication, reformulated Opana ER (oxymorphone hydrochloride), from the market. The request was based on concerns that the benefits of the drug no longer outweigh its risks related to abuse. This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication due to the public health consequence of abuse.
Click here to continue reading this article.
How we can be sure this settlement is full AND final?: A recent Colorado Supreme Court ruling provided a significant opinion regarding workers' compensation settlement agreements. In Victor England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017), the Court found that Claimant's undiagnosed scapular fracture, at the time he entered into a settlement agreement, constituted a mutual mistake of material fact and allowed Claimant to reopen his claim despite the settlement. Specifically, the issue addressed whether those documents waive an injured worker's statutorily protected right to reopen a settlement based on mutual mistake of material fact. Respondents were successful on appeal to the Colorado Court of Appeals, which found that the settlement agreements' waiver provision prohibited reopening of the settlement agreement on grounds of mutual mistake after the injured worker discovered he had an unknown scapula fracture. The injured worker petitioned to have the Colorado Supreme Court review the decision.
The Colorado Supreme Court issued their Order on May 30, 2017. In their decision, the Supreme Court concluded that specifically paragraph six of the settlement agreement form cannot waive or limit an employee's statutory right to reopen the claim on the grounds of mutual mistake of material fact. The Supreme Court stated that they interpreted paragraph six to be consistent with the settlement statutory provision, C.R.S.§8-43-204(1), and concluded that paragraph six applies only to those "unknown injuries" which develop after a settlement agreement is approved. They concluded that in this case, there was a mutual mistake of material fact and that therefore under paragraph four of the settlement agreement, the injured worker has the right to reopen the claim. Accordingly, the Supreme Court reversed the judgment of the Colorado Court of Appeals and remanded for further proceedings consistent with their opinion.
Moral of the story: This impact of this case on the DOWC form settlement documents and settlements overall is still uncertain. In light of this decision, our Firm has added further language in settlement documents to paragraph 9(a), which allows addendums, to attempt to limit Respondents' exposure from a claim being reopened under facts similar to the England case. At this time, the language we have implemented to the settlement documents is being accepted and approved, but this issue will likely undergo further scrutiny by the DOWC.
Workers unite! But beware of the Mutual Benefit Doctrine: In Pueblo County v. ICAO, the Colorado Court of Appeals held that union activity cases in Colorado should be analyzed under the Mutual Benefit Doctrine to determine compensability. (May 18, 2017, Colo. Ct. App.). Claimant was injured as a result of a slip and fall following a union meeting after work. The slip and fall occurred in the employer's parking lot. The Court of Appeals concluded that the union meeting was to facilitate ongoing negotiations concerning a new collective bargaining agreement, which was of mutual benefit to the employer and employee. As such, the Court opined that the Mutual Benefit Doctrine applied. The Mutual Benefit Doctrine states that an injury suffered by an employee while performing a function that is of mutual benefit to the employer and the employee is usually compensable when some advantage to the employer results from the employee's conduct. The Court of Appeals affirmed the lower court's ruling and found the claim compensable.
Moral of the Story: Injuries occurring while the employee is engaged in union activities in Colorado will be analyzed under the Mutual Benefit Doctrine to determine compensability. If there is a mutual benefit to employee and employer, the claim will likely be deemed compensable.
A spoonful of medical evidence helps apportionment go down: In Richard Hutchison v. ICAO, the Colorado Court of Appeals upheld the ALJ and ICAO's Orders which determined that only one-third of Claimant's injury was work related. (June 1, 2017, Colo. Ct. App.) Claimant was diagnosed with osteoarthritis in his bilateral knees. At the initial hearing, there were conflicting medical opinions as to whether the arthritis was caused by Claimant's employment, but the ALJ found that Claimant's bilateral knee pain was not directly and proximately caused by Claimant's work. The ALJ adopted the apportionment recommendations of Respondents' medical expert and attributed one-third of the cause of Claimant's bilateral arthritis to work-related factors. The ICAO concluded that the ALJ's Order properly apportioned the injury and was supported by substantial evidence. The Court of Appeals found that both physicians opined that Claimant had an underlying condition prior to the work injury. Furthermore, the Court held that the opinions of Respondents' medical expert were concrete and not speculative. As such, the Court of Appeals concluded that substantial evidence supported the ALJ's apportionment findings and held the Panel did not err when it declined to set aside the Order.
Moral of the story: An ALJ's opinions are not disturbed if supported by medical evidence. In this case, the ALJ's ruling on apportionment was upheld because it was supported by the medical evidence and expert testimony.
Credibility is in the eye of the beholder – abuse of discretion v. substantial evidence: In Work v. CBC Companies, Inc., W.C. No. 5-002-879-01 (May 15, 2017), Respondents sought review of the ALJ's Order that determined Claimant's cervical spine condition was causally related to the industrial incident and held Respondents liable for the costs of the recommended cervical spine surgery. Respondents argued that the ALJ erred in discrediting a medical expert because the expert was unwilling to characterize the recommendations for speculative surgery as medical malpractice. Respondents also argued that the ALJ erred in discrediting another medical expert for using the term "deny" in his report. Respondents contended that the ALJ's credibility determinations were an abuse of discretion and were not supported by the record. ICAO explained that an appellate review of an ALJ's credibility determinations was based upon a substantial evidence standard and not an abuse of discretion standard. ICAO noted that an ALJ is not required to articulate the basis for his credibility determinations but in this case he did so. ICAO also noted that it is "bound by the ALJs credibility determinations except in extreme circumstances where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that it would be error as a matter of law to believe such testimony." ICAO was mindful of Respondents' complaints but found that the credibility determinations were supported by substantial evidence, and the ALJ's Order was affirmed.
Moral of the Story: An ALJ's credibility determination will be upheld as long as there is substantial evidence in the record to support a determination.