legaLKonnection Firm Newsletter – October 2017

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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 the News
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.

 


Victory Lap

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.

 


Cases You Should Know

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.

legaLKonnection Firm Newsletter – September 2017

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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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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

 

 

On behalf of our Texas and Florida clients, Lee + Kinder LLC made a donation to the Hurricane Relief Fund.

 

 

 

Lee + Kinder 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.


Victory Lap

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.

 


Cases You Should Know

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.

legaLKonnection Firm Newsletter – August 2017

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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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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Member Joshua Brown, Of Counsel Frank Cavanaugh, Associate Jessica Melson and Associate Kelsey Bowers 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.

 

 


Victory Lap

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.

 


Cases You Should Know

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.

legaLKonnection Firm Newsletter – July 2017

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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 the News

Members Tiffany Kinder and 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.

 


Victory Lap

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.


Cases You Should Know
 
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.

legaLKonnection Firm Newsletter – June 2017

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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 the News

Member Karen Gail Treece attended the CLM (Claims & Litigation Management) Annual Workers’ Compensation Conference in Chicago. Ms. Treece learned defense tactics from some of the best in the industry related to complicated claims involving prescriptions for extensive opioid abuse. Ms. Treece was fortunate to meet some wonderful folks and enjoy delicious Chicago pizza and Italian beef.

 


Victory Lap

 After a five-day jury trial in Denver District Court, Member Joshua D. Brown and Associate Kelsey Bowers successfully defeated multiple claims against the employer in Helton v. Environmental Demolition, Inc., Case Number 2015CV032832. The Plaintiff sought damages for an alleged breach of employment contract in the form of alleged promises of bonuses and benefits; an alleged breach of a written buy-sell agreement regarding the purchase of shares in the Company; an alleged breach of fiduciary duty; and civil conspiracy. The 7-person jury was persuaded by the testimony of several key witnesses and found that there was no breach of employment contract or breach of fiduciary duty. While the jury found that there was evidence of civil conspiracy, they found that no damages resulted from the conspiracy. According to the Trial Court Order, the only damages that were awarded to Plaintiff were the value of the shares that he owned in the Company. The fact that Plaintiff owned shares in the Company was undisputed.
 
Member Joshua D. Brown successfully defended a claim for TTD benefits in Janine Scafide v. SkyWest Airlines, Inc. and Indemnity Insurance Company of North America, W.C. No.4-840-879. Claimant filed a Petition to Reopen and an Application for Hearing alleging a worsening of condition. While litigation was pending, Claimant underwent a total hip arthroplasty. Claimant argued that she was entitled to TTD benefits following her surgery as a result of her worsened condition. The ALJ determined that Claimant’s condition had worsened; however, there was no evidence that established a link between Claimant’s surgery and a wage loss. Claimant had not been working for five years prior to her surgery and there was no evidence that her work restrictions had increased after MMI. Claimant’s request for TTD benefits was denied and dismissed. Also, despite the Petition to Reopen being granted, the ALJ ordered medical benefits to be provided as post-MMI maintenance care.
  
 Member Karen Gail Treece successfully proved Claimant’s ongoing chiropractic and acupuncture care was not reasonable, necessary, or related medical maintenance care in Kachigian v. Sigma Services, Inc., W.C. No. 4-929-024. Claimant sustained an industrial injury to his head and neck on April 17, 2013. Claimant did not request medical treatment and continued working. On April 26, 2013, Claimant presented to his personal physician and reported knee and toe pain due to training for a Spartan Race. Claimant did not report the work injury. Claimant first sought medical care for the work injury in August 2013. Claimant treated conservatively and was placed at MMI on February 4, 2014. Respondents filed an FAL and admitted for medical maintenance benefits. Claimant received over 80 chiropractic and acupuncture treatments. Respondents challenged the ongoing treatment. Respondents requested an IME with Dr. Lambden. He opined the chiropractic and acupuncture care was counterproductive and reinforcing Claimant’s pain syndrome. A radiologist, Dr. Seibert, reviewed x-rays and an MRI scan and opined that the Claimant had a preexisting C7 fracture. The ALJ denied the ongoing chiropractic and acupuncture treatments.

 

 In Bruxvoort v. Goodyear Tire and Rubber Company and Liberty Mutual Insurance, W.C. No. 4-990-459, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegations that he was no longer at MMI and that he sustained a compensable injury to his right trigger finger. Claimant contended that he injured his right trigger finger while participating in physical therapy to rehabilitate his shoulder. Claimant provided no medical evidence to support his position. Mr. Gren elicited testimony from Claimant that he was involved in a remodel of his home during the time of the trigger finger injury. The ALJ was persuaded that it was equally as likely he injured himself during the remodeling activities. Mr. Gren presented testimony from an expert medical physician who opined that the etiology of the trigger finger was idiopathic. The ALJ was persuaded by the testimony of Respondents medical expert that the trigger finger condition was not caused by Claimant’s physical therapy. The ALJ concluded that the right trigger finger condition was not compensable. Therefore, Claimant remained at MMI pursuant to the FAL filed by Respondents.
 
In Todd Blanchard v. Evraz Inc. NA, W.C. No. 5-011-914, Member Joseph W. Gren and Associate Devon D.A. Bell successfully defended against Claimant’s allegation that he sustained an occupational disease. Claimant contended that repetitive stamping of steel samples over time caused his lateral epicondylitis. Claimant underwent an IME that determined the Claimant’s work-related activities were not enough to cause his alleged repetitive-motion injuries. These findings were corroborated by a strong job demands analysis report. Additionally, Respondents were successful in arguing that Claimant failed to satisfy the criteria set forth in the Medical Treatment Guidelines (Guidelines). Respondents were successful in presenting the evidence described above, as well as successful in conveying Claimant’s failure to satisfy the Guidelines, which allowed the ALJ to conclude that Claimant’s occupational disease was not compensable.

  
Of Counsel Frank Cavanaugh successfully defended against a claim for an alleged back injury in Saucedo v. Custom Onsite, Inc., Viart Construction, C&E Construction and Pinnacol Assurance, W.C. Nos. 5-014-532; 5-006-362; and 4-999-130. Mr. Cavanaugh represented Pinnacol Assurance, exclusively, in this claim involving multiple parties. Claimant alleged that he hurt himself at a construction site lifting a framed wall with co-workers. The ALJ ultimately found that Claimant’s account of the alleged injury was not credible and was contrary to the testimony of other witnesses and medical records in evidence. The ALJ found that he did not actually lift a wall on the date in question, and had no compensable work injury. The ALJ denied and dismissed Claimant’s claim for compensation.

 
Of Counsel John Abraham successfully proved Claimant no longer required medical maintenance related to the industrial injury. In Crouse v. Navajo Express Incorporated and Lumbermen’s (in liquidation) c/o Colorado Insurance Guaranty Association, W.C. No. 4-437-384, Claimant injured his cervical and lumber spine on October 1, 1999. Claimant was placed at MMI and Respondents filed an FAL. Indemnity settled and medical maintenance care was left open. Respondents challenged Claimant’s need for ongoing medical maintenance care and requested an IME. In the IME, Claimant admitted to a post-MMI injury to his head and neck. Claimant reported using pain cream and taking tramadol and muscle relaxers. The IME physician opined that Claimant’s current symptoms and need for medical treatment, 17 years after his date of injury, were more likely related to age related degeneration of the spine, the preexisting cervical spine injury, and the intervening injury after MMI than the October 1, 1999 fall. The ALJ found the IME physician’s report and testimony persuasive and credible. The ALJ determined Respondents met their burden of proof that the continued maintenance treatment was not reasonable, necessary, or causally related to Claimant’s October 1, 1999 work injury.
 



  
  
  
  
 
To File or Not to File? That is the Question
An incident takes place within the course and scope of claimant’s employment. Claimant is confirmed to have sustained an injury but does not miss any time from work. No permanent impairment is anticipated. What the adjuster has is characterized as what most of us refer to as a “med-only claim.” Throughout the course of the claim, claimant receives conservative treatment without any recommendation for surgery. The claimant is eventually placed at MMI with no impairment. There is no reason to challenge the claim as you believe the injury is legitimate. You’re home free! All you have to do is file the Final Admission of Liability (FAL), wait the statutory 30-day period, and when claimant fails to object, you can close your claim and move on to the next one. Right? Not exactly. Click here to continue reading this article.

 


Cases You Should Know

When you retire, you do not get to claim lost wages from the employer: In Ecke v. City of Washington W.C. No. 5-002-020 (May 5, 2017), Claimant was injured at work the day before his planned retirement. Claimant sought TTD benefits between his date of injury and the date he reached MMI. Respondents asserted the wage loss was related to Claimant’s volitional act of his retirement and not the work injury pursuant to C.R.S. §§ 8-42-103(g) and 8-42-105(4)(a). The ALJ denied Claimant’s request for TTD benefits and Claimant appealed. The Panel cited several cases that precluded TTD benefits in cases of voluntary resignation as the retirement precluded the employer from the opportunity to offer modified duty.

Moral of the Story: Respondents have an affirmative defense to TTD benefits in instances of termination and retirement.
 
The curious case of the ATP: Claimant suffered a work-related injury in Portillo v. Shoco Oil-Samhill-Oil, Inc., W.C. No. 4-942-783 (May 1, 2017). Respondents denied a request for sympathetic nerve blocks. Respondents referred Claimant to Dr. Hattem. He continued treating Claimant after the initial evaluation and placed her at MMI. Respondents filed an FAL and Claimant requested a DIME. Claimant also filed an Application for Hearing regarding the sympathetic nerve blocks. Respondents moved to strike Claimant’s Application as not ripe, pending the DIME. Claimant asserted the FAL was not ripe because Respondents’ referral to Dr. Hattem was for an IME; therefore, he was not an ATP who could make an MMI determination for purposes of filing the FAL. The ALJ determined the nerve blocks were reasonable, necessary benefits to cure and relieve Claimant of the effects of the work injury. The ALJ did not address whether Dr. Hattem was an ATP. Respondents appealed. The Panel set aside the ALJ’s Order. They noted a physician can become an ATP if they treat the claimant and are not merely examining the claimant in anticipation of litigation. The Panel noted Dr. Hattem scheduled additional appointments and treatments for Claimant and therefore became an ATP.

Moral of the Story: A physician can become an ATP if they provide treatment that is intended to improve Claimant’s condition.
 
A full duty release is the ATP’s decision: In Tsirlin v. Ace American Insurance, W.C. No. 4-974-865 (April 17, 2017), Claimant was placed at MMI by her ATP with a full duty release. Claimant was then removed from MMI at the DIME. At hearing, the DIME physician’s opinion on MMI was upheld. Claimant then requested a hearing seeking TTD benefits after the original date of MMI. The ALJ found there was no ambiguity that Claimant was released to full duty when she was originally placed at MMI and denied TTD benefits. On appeal, Claimant argued that there was a judicial determination that there was no applicable return to work by the ATP. ICAO was not persuaded, and held that the ATP released Claimant to full duty, therefore she was not entitled to TTD benefits.

Moral of the story: A full duty release by an ATP is valid even when Claimant is removed from MMI at a DIME.
 
AWW Windfall: In Phillips-Zalal v. King Soopers, Inc., W.C. No. 5-000-569 (April 26, 2017), the ALJ computed Claimant’s AWW by including wages from her concurrent employer. Respondents challenged the computation and argued that Claimant’s concurrent wages should not be included in her AWW calculation because she continued to work and she did not lose any wages at her concurrent employment. ICAO disagreed and stated that the ALJ did not abuse her discretion in computing Claimant’s AWW. ICAO held that the fact that Claimant suffered no lost time and no lost wages did not preclude an ALJ from calculating Claimant’s AWW using her concurrent employment wages.

Moral of the story: ALJs have wide-discretion to compute a Claimant’s AWW.
 

Compensable injury, but not a compensable surgery: In Gilbert v. Sears Outlet, W.C. No. 5-002-271 (April 24, 2017), Claimant challenged an Order denying compensability of her knee surgery. Claimant alleged that she injured her knee moving a washing machine. Claimant underwent a patellar surgery. The ALJ found the claim compensable for a right knee strain only and determined that Claimant’s right knee surgery was not reasonable, necessary, or related to her right knee strain. On appeal, ICAO agreed holding that there was sufficient evidence in the record that Claimant did not aggravate her preexisting chronic patellofemoral syndrome, and therefore, Claimant’s subsequent surgery was not reasonable or necessary.

Moral of the story: An injury can be found compensable, but not all medical treatment is necessary or related.
 

legaLKonnection Firm Newsletter – May 2017

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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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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Broadmoor-daytime-300x130The Southern Association of Workers’ Compensation Administrators (SAWCA) held the 2017 Colorado Workers’ Compensation Educational Conference hosted by Director Paul Tauriello and the Colorado Division of Workers’ Compensation at the Broadmoor in Colorado Springs April 17 – 19th.Lee + Kinder LLC was proud to be a sponsor and one of 43 exhibitors at this educational experience, not held in Colorado since 2014. Five of our legal eagles – Tiffany Kinder, Joseph Gren, Sheila Toborg, Kelsey Bowers and Matt Boatwright – were among the over 300 attendees who contributed to the success of this event which included a silent auction for The Pinnacol Foundation, providing educational opportunities for children of injured workers.


 

Lee + Kinder, LLC was pleased to welcome The Honorable John Sandberg to our offices in April for an all-day settlement blitz on behalf of one of our clients. ALJ Sandberg was appointed as a Prehearing Administrative Law Judge in June of 2015 after practicing in Chicago for 14 years in the areas of employer’s liability, subrogation and workers’ compensation defense, then moving to Colorado in 1998 when he focused primarily on workers’ compensation law. Most recently, ALJ Sandberg was honored as Outstanding DOWC/OAC Representative by the Professionals in Workers’ Compensation, Colorado. We are very happy to have had the opportunity to host the very knowledgeable and respected Judge Sandberg in this highly successful endeavor in which he brought together opposing sides in multiple disputes to reach mutually acceptable terms and come to a settlement agreement. It was a win-win situation for all who participated.

 


 

PWC-logo
The Professionals in Workers’ Compensation, Colorado held their 14th Annual Awards Banquet on May 12th at the Doubletree, Stapleton North. Lee + Kinder, LLC was happy to be present as Hospitality Sponsor. In attendance for the evening’s events, which included recognition of outstanding contributions in the workers’ compensation industry to multiple recipients and scholarship presentations, was the Firm’s Managing Member Katherine Lee, Partner Tiffany Scully Kinder and Of Counsel representatives Frank Cavanaugh and John Abraham.

 


Victory Lap

Fran-newsOf Counsel M. Frances McCracken successfully contested additional requested medical treatment as maintenance care for an ongoing lumbar spine injury in Mascotti v. Walmart Stores, Inc. and American Home Insurance, W.C. 4-478-187. Claimant suffered a low back injury in 2000 and had been at MMI since 2004 with authorized, reasonable, necessary and related maintenance medical care. The authorized treating physician requested additional physical therapy, a repeat MRI study, dry needling, and repeat medial branch blocks. Respondents’ medical expert argued that the medical evidence not only showed that the requested treatment was unlikely to improve or maintain Claimant’s condition, but that the treatment was also unrelated to the work injury and instead attributable to a longstanding independent condition. The ALJ agreed and found Respondents’ expert credible. Claimant also contended that, aside from being reasonable, necessary and related, the therapy and dry needling should be authorized for an alleged failure by Respondents to comply with W.C.R.P. 16. The ALJ found instead that the authorized treating physician had not complied with W.C.R.P. 16 in submitting an incomplete request for prior authorization. All requests for the additional treatment at issue were denied and dismissed.

 

In a second win for Ms. McCracken, the ALJ denied a Petition to Reopen and a claim for compensability of an alleged new injury upon remand to the ALJ from a previous decision by ICAO, in Jaterka v. Johnson & Johnson, W.C. 4-984-216. The ICAO decision is addressed in case summaries below. Claimant failed to timely object to Respondents’ FAL and her subsequent Petition to Reopen the claim for an award of medical benefits, temporary disability benefits and permanent partial disability benefits was dismissed by the ALJ for lack of jurisdiction. ICAO set aside the Order, holding that the ALJ did have jurisdiction to hear the issues in dispute, and remanded to the ALJ for further determination. The ALJ addressed the issues in dispute on the merits and denied and dismissed all claims for additional workers’ compensation benefits.

 

mbb-news_115x125Associate Matt Boatwright successfully defeated claims for medical and temporary disability benefits in Ouellette v. United Parcel Service and Liberty Mutual Insurance, W.C. 5-006-922. Claimant slipped and fell on ice in the company parking lot after her shift and alleged a work-related injury. Claimant alluded a multitude of symptoms that caused ongoing disability and an inability to work. Claimant was also involved in two subsequent motor vehicle accidents. Respondents’ medical expert opined that the fall would have caused only a contusion, which would have resolved independently without treatment or significant disability, and that any ongoing symptoms would more likely than not be related to the car accidents. Claimant’s medical expert testified that her ongoing symptoms were consistent with the mechanism of injury and required additional diagnostics and treatment. The ALJ credited the opinion of Respondents’ expert over Claimant’s expert and found that, while there was a compensable injury, there was no resultant disability that required further treatment or wage loss benefits.

 

Mr. Boatwright also successfully secured an Order denying a claim for temporary total disability benefits on the bases of the affirmative defenses of late report of injury and termination for cause in Bennett v. Pepsi Beverages Company and ACE American Insurance, W.C. No. 4-992-112. Claimant sustained a compensable injury to his right elbow while at work. Claimant was off work after the injury and alleged temporary disability benefits were owed due to alleged work-related wage loss. The ALJ found that Respondents’ employer witnesses testified credibly that the Claimant did not properly or timely report a work-related injury to his supervisor per company policy and per requirement of the Act. The ALJ found that after Claimant did report a work-related injury to the insurer, he was terminated for cause for noncompliance with company policy and reasons unrelated to the work injury. The ALJ denied and dismissed Claimant’s claim for temporary disability benefits during the periods of non-compliance with the Act and for wage loss not related to the work injury.

 

In a third win for Mr. Boatwright, Respondents successfully defended against Claimant’s attempt to convert his scheduled impairment rating of the upper extremity to a whole person impairment rating in Penman-Keever v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 5-000-253. Claimant suffered a work-related injury from lifting and subsequently underwent labral repair. Claimant underwent a DIME, wherein the DIME physician found that the labral injuries were unlikely to be causally related, but did give a rating for loss of strength in the arm due to a cervical component. The Claimant’s expert testified that the labral injuries were related and resulted in functional impairment, whereas the Respondents’ expert agreed with the DIME physician that the mechanism of injury was insufficient to have caused the labral injuries. Respondents’ expert further testified that, despite the rating of the cervical component, there was no functional deficit in the neck itself. The ALJ found Respondents’ expert to be persuasive and denied the Claimant’s attempt to convert his admitted scheduled rating to a whole person rating.

 

DM-news_115x125In Rasmussen v. Manpower Group U.S., Inc., Associate Daniel Mowrey successfully dismissed Claimant’s claim for workers’ compensation. The claim was scheduled to proceed on a full contest hearing. Respondents filed a Motion to Dismiss due to Claimant’s failure to participate in discovery. Respondents persuasively argued that Claimant willfully refused to participate in discovery without any mitigating factors. The ALJ opined that dismissal should be imposed only in extreme circumstances. The ALJ credited Respondents’ arguments that the claim warranted dismissal. The ALJ Ordered that Claimant’s Request for Hearing filed on January 25, 2017 was dismissed. As a result of the dismissal, the ALJ further Ordered that the Notice of Claim Status, dated October 26, 2016, denying the claim was final.


CupOJoe_MEM

 
 
 

 

 

AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised: What Are You Doing Colorado?
One of the questions I hear frequently about the Colorado workers’ compensation system from risk managers, insurance adjusters, and even some medical professionals is: “Why does Colorado still use the AMA Guides Third Edition, Revised, when calculating impairment?” In other words, why do Division Level II accredited physicians providing impairment ratings to injured workers use the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (December 1990)? As of 2002, Colorado was, and still is, the only jurisdiction to use the Third Edition in the workers’ compensation system.
Click here to continue reading this article.

 


 

Cases You Should Know

I love rules and I love following them, unless that rule is stupid: In Cordova v. Walmart Stores, Inc., W.C. No. 4-926-520 (March 14, 2017), the ICAO addressed the application and weight of the Medical Treatment Guidelines (MTG) in consideration of determination of whether a request for prior authorization for treatment was reasonable, necessary and related. Claimant had a work-related lumbar injury for which he requested surgery. Claimant also had a diagnosis of cancer in the lumbar spine. Respondents denied the request for surgery for multiple reasons, including Claimant’s alleged inability to identify the work-related condition as the pain generator and on the assertion that Claimant could not justify surgery under the MTG because he could not demonstrate that this would improve function or relieve pain. The ALJ agreed with Claimant’s expert opinion that the surgery would both improve function and relieve pain. Upon appeal, ICAO upheld the ALJ’s Order, finding that W.C.R.P. 17 acknowledges that reasonable medical care may include deviations from the MTG in individual cases and that an ALJ is statutorily identified as the arbiter of such disputes over medical care. See Section 8-43-201(3), C.R.S.

Moral of the Story: In disputes over reasonable, necessary and related medical treatment outside of the MTG, an ALJ may consider the MTG, but is ultimately not bound by these criteria.

 

Speak now (in response to a FAL), or forever hold your peace: In Heib v. Devereuax Cleo Wallace and Zurich American Insurance, W.C. No. 4-626-898 (March 15, 2017), the ICAO upheld the ALJ’s Order holding that the issue of AWW was administratively closed pursuant to the Claimant’s failure to object to a FAL within the requisite time period. Respondents filed both a FAL and a subsequent Amended FAL after Claimant was placed at MMI. Claimant did not endorse AWW in response to her objection to either the initial FAL or the Amended FAL, instead endorsing the issue later in a Response to Respondents’ Application for Hearing on a separate matter. Citing Section 8-43-203(2)(b)(II), C.R.S., which requires that disputed issues be endorsed in an Application for Hearing within 30 days of the filing of a FAL, the ALJ found that AWW was closed by operation of statute and denied and dismissed the issue. Upon appeal, Claimant asserted the right to litigate AWW based upon case law that permitted hearing on the issue where there was also an issue of reopening. ICAO found the Claimant’s reliance on these cases was misplaced, as there was no reopening at issue in this claim and no mutual consent to litigate the issue.

Moral of the Story: Issues not endorsed by a Claimant in an Application for Hearing filed within the requisite 30 days from a FAL are closed administratively and can only be reopened on the basis of fraud, overpayment, error, mistake or a change of condition.

 

Reality is contradictory. And it’s paradoxical: The ICAO upheld an ALJ’s Order finding that Respondent failed to meet its burden to overcome the DIME where the ALJ declined to apply issue preclusion on an asserted conflict between the ALJ’s Order and a previous hearing Order in Holcombe v. Fedex Corp., W.C. No. 4-824-259 (March 24, 2017). The first ALJ found that Claimant failed to meet his burden in proving by a preponderance of the evidence that surgery requested for Claimant’s left elbow was reasonable and necessary. Claimant subsequently underwent a DIME, which determined that he was not at MMI because the surgery for the left elbow was reasonable and necessary. Respondent sought to overcome the DIME at a second hearing and the second ALJ found that Respondent had failed to meet its burden to overcome the DIME by clear and convincing evidence. On appeal, Respondent asserted that issue preclusion, which bars re-litigation of issues previously determined, should prevent the second ALJ from reaching a different outcome than the first. ICAO found that issue preclusion did not apply, as the issues were decided under differing burdens of proof. See Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006). ICAO found that because the burdens were different, issue preclusion did not apply. ICAO further found that, regardless, the issue was not identical because the Claimant’s condition had changed between the first and second hearings.

Moral of the story: An ALJ is not necessarily precluded from reconsidering medical benefits that were the subject of previous litigation where the burden of proof on the parties changes after a DIME or where the passage of time affects the Claimant’s condition.

 

Sometimes you don’t get closure. You just move on: In Jaterka v. Johnson & Johnson, W.C. No. 4-984-216 (March 22, 2017), ICAO set aside and remanded an Order of the ALJ, which concluded that he lacked jurisdiction, and therefore authority, to hear an issue of reopening brought by Claimant. Claimant did not object to Respondents’ FAL with either an Application for Hearing or DIME within the requisite 30 days. Claimant filed a Petition to Reopen her claim because she was not at MMI and because her claim for a shoulder injury was inappropriately denied. The ALJ found that, because Claimant had failed to timely object to the FAL, the claim was administratively closed and the ALJ lacked jurisdiction to address reopening. ICAO found that the ALJ misapplied the law in determining that he had no jurisdiction to address the issue of reopening. Pursuant to Section 8-43-303, C.R.S., any award may be reopened on the ground of error, mistake or change of condition, and the statutory authority of the court to reopen is broad. ICAO noted that it was bound by the Court of Appeals’ decision in Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005), and found that the ALJ erred by dismissing the issue rather than making findings pursuant to the issue of reopening. ICAO remanded for additional findings by the ALJ. Upon remand, however, the ALJ denied and dismissed Claimant’s request to reopen her claim and also denied her claim for a left shoulder rotator cuff injury.

Moral of the story: Even if a claimant does not timely object to a FAL, this does not prevent them from subsequently seeking to reopen a claim on the bases of fraud, error, mistake or change of condition, and an ALJ must make a determination whether the asserted grounds warrant reopening under the facts.

 

No free lunch for Claimants just because Respondents seek a DIME: In Mulgeta v. ISS Facility Services, Inc., W.C. No. 4-978-510-02 (March 8, 2017), a Claimant had an admitted low back injury. However, due to the Claimant’s diffuse and non-physiologic pain complaints, the ATP provided only a 5% impairment rating based on six months of medical documented pain at the time of MMI. The Respondents did not file a FAL, but instead sought a DIME. The Claimant sought penalties against the Respondents on the basis that the Respondents should have paid TTD or PPD while the DIME was pending, because the Claimant was no longer employed with the employer. The ALJ denied penalties partly on statute-of-limitations grounds, but noted that TTD need not be paid while the Respondents seek a DIME where the Claimant was not receiving TTD prior to being placed at MMI by the ATP. The ICAO agreed.

Moral of the story: When Respondents seek a DIME instead of filing a FAL, the Claimant is statutorily entitled to ongoing TTD if he was receiving TTD at the time of MMI.

 

Shopping for impairment ratings: In Newton v. True Value Co., W.C. No. 4-978-459-02 (April 4, 2017), one of the Claimant’s authorized treating physicians, Dr. Kawasaki, placed the Claimant at MMI on September 17, 2015 and provided a scheduled rating for the upper extremity. Shortly thereafter, another of the Claimant’s authorized treating physicians, Dr. Adams, placed the Claimant at MMI as of October 5, 2015, but provided a whole-person impairment based on a spinal cord injury. The Respondents filed a FAL admitting for the scheduled injury provided by Dr. Kawasaki but admitted for the MMI date based on Dr. Adams’ report. Both were attached to the FAL. The Claimant argued that the Respondents were obligated to admit Dr. Adams’ rating because they relied on her report for the admitted date of MMI. The ALJ and ICAO disagreed. ICAO held that the Respondents could choose among the MMI dates and impairment ratings provided by the several authorized treating physicians when filing their FAL.

Moral of the story: Where various ATPs have differing opinions regarding MMI and impairment rating, Respondents may pick and choose on which to admit.

 

Where the DIME physician is right, it does not matter how he got there: In Powell v. Aurora Public Schools, W.C. No. 4-974-718-03 (March 15, 2017), a Claimant suffered an admitted hip injury. The Claimant was placed at MMI by her ATP, and the DIME physician concurred, noting that the Claimant suffered only minor tenonosis and joint irritation. After the DIME, the Claimant underwent an MRI that showed a torn labrum of the hip. The Claimant sought to overcome the DIME with regard to MMI and sought additional treatment, arguing that the DIME physician’s opinion was in error because he did not know of the torn labrum that would later appear on the MRI. The ALJ relied on expert testimony to conclude that the Claimant failed to overcome the DIME regarding MMI because the DIME physician would have come to the same result anyway. Therefore, even though the DIME physician did not have all information available to him, the Claimant still failed to prove by clear and convincing evidence that the DIME physician came to the wrong result. ICAO affirmed.

Moral of the story: Even if the DIME physician did not have all information available, the DIME doctor’s opinion will not be overcome so long as the DIME doctor reached the correct result.

 

DIME’s opinion does not preclude maintenance disputes: In Walker v. Life Care Centers of America, W.C. No. 4-953-561-02 (March 30, 2017), a Claimant sought maintenance medical treatment for a surgical consultation for her neck. The Claimant had previously undergone a DIME that concluded that the Claimant had an impairment of the upper extremity but which did not provide an impairment for the neck. The Respondents filed a FAL admitting for the rating as well as maintenance medical benefits. When the Claimant sought a hearing on the reasonableness and relatedness of recommended surgical consultation for the neck, the Respondents argued claim preclusion on the basis that the relatedness of the neck was already decided by the quasi-judicial determination of the DIME physician. The ALJ rejected the argument and concluded that the DIME’s opinion did not have any preclusive effect, noting that a previous ALJ had, in fact, converted the Claimant’s scheduled rating to whole person. ICAO affirmed.

Moral of the story: The DIME physician’s opinion regarding relatedness of body parts does not preclude later litigation of whether specific maintenance medical benefits are related.

legaLKonnection Firm Newsletter – April 2017

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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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Please follow Lee + Kinder LLC on LinkedIn


In the News

Lee + Kinder Super Lawyers 2017

 

Lee + Kinder Associates


Victory Lap


JDB-news_115x125 In Dillingham v. SkyWest Airlines, Inc. and ACE American Insurance, Co., Member Joshua Brown and Associate Kelsey Bowers successfully defeated Claimant’s attempt to prove a compensable left knee injury. Claimant tried to use two theories of compensability and argued that (1) there was a specific work event that aggravated his preexisting left knee osteoarthritis and (2) he developed a cumulative trauma injury to his left knee working over a prolonged period-of-time. Dr. Paz provided convincing testimony that Claimant had preexisting, severe osteoarthritis as a result of a prior stroke. He explained that the condition was not aggravated by a specific work incident or accelerated by prolonged work activities. The ALJ found that although Claimant experienced knee pain at work, that was not enough to establish a compensable claim.

 


Karen-NEWSMember Karen Gail Treece defeated Claimant’s request for appeal in Newton v. True Value, W.C. No. 4-978-459 (ICAO April 4, 2017). Claimant injured his left hand at work. When Claimant reached MMI, Dr. Kawasaki assessed him with a 25% scheduled impairment, but Dr. Adams determined he had a 25% whole person impairment due to Complex Regional Pain Syndrome (CRPS). Respondents admitted to Dr. Kawasaki’s impairment rating, but mistakenly attached Dr. Adams’ report to the FAL. Claimant sought hearing and argued Respondents were required to either admit to the 25% whole person rating or request a DIME. The ALJ held Respondents were not required to admit to the whole person rating because both Dr. Adams and Dr. Kawasaki were treating physicians. Therefore, Claimant had the burden to prove he had a whole person impairment rating, which he failed to prove. Claimant appealed and argued Respondents had to admit to Dr. Adams’ rating because she was “the” authorized treating provider. The Court held that “an” ATP could determine MMI and impairment. Dr. Kawasaki and Dr. Adams were both ATPs. When an ATP assigns an impairment listed in the schedule, Respondents may either file a FAL or dispute the rating at hearing. There is no requirement for a DIME for scheduled impairments. Whether Claimant’s impairment should be considered scheduled or whole person is a question of fact for an ALJ. Claimant’s appeal was denied.


ST_newsIn Fincham v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended on the issue of compensability. A Claimant alleged that he injured his right shoulder while unloading a refrigerator from a truck. However, the Claimant did not seek treatment until several months after the alleged incident. Furthermore, the Claimant exhibited numerous degenerative changes in his shoulder consistent with his active lifestyle of playing softball and golf. Respondent argued that these factors made it unlikely that Claimant’s shoulder condition was related to the alleged incident. The ALJ agreed and denied compensability.

 


FMCnews_115x125Of Counsel Frank Cavanaugh successfully argued that apportionment was appropriate and could be determined at hearing without first securing a DIME. Franklin v. Pueblo City Schools. W.C. No. 4-988-862. Claimant suffered a work injury to his low back and was placed at MMI with a 15% whole person impairment. Claimant had a prior low back injury from 1998 with a 5% whole person impairment rating; however, the medical records for this prior injury had been destroyed. At hearing, Claimant challenged the apportionment noted in the FAL and argued that apportionment cannot apply without medical documentation. The Administrative Law Judge agreed with Respondents that apportionment was appropriate and that the issue can be decided at hearing without first securing a DIME.

 

FranNewsOf Counsel M. Frances McCracken successfully defended against Claimant’s claim for a low back injury in Madonna v. Walmart Stores, Inc and New Hampshire Insurance Co., W.C. 4-997-641. Claimant had a lengthy history of intermittent neck pain, cervical surgeries, paralysis resulting from a surgery, and coronary artery disease. Claimant suffered an alleged injury while at work and underwent extensive medical treatment for neck pain. At no point did Claimant treat for back pain. At hearing, Claimant for the first time alleged that he injured his back, not his neck. Dr. Reiss provided convincing testimony that Claimant’s symptoms and need for treatment were likely more related to his preexisting conditions. The ALJ agreed with Respondents that Claimant failed to provide sufficient evidence to establish that he suffered an industrial injury.

 

jmanewsIn Tortorella v. Mariner Healthcare Inc., Of Counsel John Abraham successfully withdrew Respondents’ Final Admission of Liability that authorized reasonable, necessary and related medical maintenance benefits. Claimant sustained an admitted injury to her lumbar spine on April 18, 2005. Claimant underwent conservative medical care and reached MMI on March 7, 2007. Respondents filed a FAL on February 8, 2015, admitting for maintenance medical benefits. Claimant received maintenance care from her treating physicians since 2008. Mr. Abraham produced an IME report from Dr. Fall which persuasively maintained that there was no objective medical evidence that Claimant exhibited any functional gains as a result of her extensive maintenance care. Dr. Fall persuasively opined that Claimant no longer required medical maintenance care. Mr. Abraham also entered into evidence surveillance which documented Claimant functioning beyond her stated level of limitations. The ALJ found the surveillance video and Dr. Fall’s opinions credible and persuasive. The ALJ ordered that Respondents were permitted to withdraw their February 8, 2008 FAL and the admission of reasonable, necessary and related medical maintenance benefits.

 

SJA-news_115x125In McClelland v. The Home Depot, Associate Stephen Abbott successfully defended against a claim for disfigurement based on waiver. Claimant underwent surgery and reached MMI. The claim was closed on a FAL without a disfigurement award. Claimant subsequently reopened the claim for additional surgery and then sought a disfigurement award for his surgical scarring from the first surgery. Mr. Abbott persuasively argued that Claimant had waived his right to a disfigurement award for the first surgery by failing to object to the FAL. Further, reopening the claim did not reopen the issue of any disfigurement existing at the time of the FAL. The ALJ agreed and denied Claimant’s claim for disfigurement benefits as to the first surgery.

 


Cases You Should Know

If you think insurance is expensive, try being uninsured: In Dami Hospitality, LLC v. ICAO, the Colorado Court of Appeals held that imposing a fine of over $840,000 on a smaller employer for failure to maintain WC insurance was excessive and the Court should have considered other factors. (February 23, 2017, Colo. Ct. Appeals). While the employer failed to maintain insurance on two occasions, it argued that the high penalty was unreasonable because it was grossly disproportionate to its ability to pay and the harm caused by the lack of insurance. The Court of Appeals concluded that the 8th Amendment’s protection against excessive fines applies to natural persons as well as corporations. As such, it set aside the Director’s Order and instructed the lower court to consider additional facts that were relevant to the employer’s specific circumstances. These facts included 1) the employer’s ignorance that the required WC insurance had lapsed, 2) the failure of the Division to notify the employer of the lapse for almost five years, 3) the employer’s ability to pay the fine, and 4) the actual or potential harm to employees for the failure to maintain insurance.


Moral of the Story: Corporations are entitled to 8th Amendment protections against excessive fines, so the Director or ALJ must consider facts that are relevant to the employer’s specific circumstances, such as ability to pay, before issuing a penalty for failure to maintain WC insurance.


Finality is not the language of politics: In Evergreen Caissons, Inc. v. ICAO and Jennifer Munoz Botello, the Colorado Court of Appeals held the ALJ’s and ICAO’s separate Orders were not final for purposes of review. Decedent died as a result of his industrial injuries. The employer admitted death benefits for the Decedent’s minor children, but contested whether Claimant Jennifer Munoz Botello was a surviving spouse for purposes of entitlement to death benefits. The hearing ALJ held that Ms. Botello was a surviving spouse, and directed the parties to set a hearing to determine the remaining issues. The employer petitioned the Industrial Claim Appeals Office (ICAO) to review the ALJ’s Order. ICAO dismissed the petition without prejudice, finding that the hearing issues were limited to whether Ms. Botello was a dependent, as well as the allocation of benefits amongst the dependents. Thus, ICAO concluded that the ALJ’s Order did not award death benefits to Claimant Botello and was therefore not final and could not be appealed. The Court of Appeals agreed with ICAO, citing that for an order to be final and subject to appeal, it must grant or deny benefits or penalties. Furthermore, the Court held the ALJ must determine the amount before the ruling is “final” for purposes of review. As such, the Court of Appeals noted that the ALJ did not award death benefits, but merely determined whether or not Ms. Botello was a dependent. Therefore, the Court of Appeals denied the employer’s appeal.


Moral of the story: For an order to be final, it must grant or deny benefits or penalties. Furthermore, an order must determine the amount of benefits and/or penalties before it is final for purposes of review.


Keep Calm and Carry (Complete) Insurance: In City of Lakewood v. Safety National Casualty., the Colorado Court of Appeals affirmed the summary judgment in favor of the insurance company, denying indemnification for the City’s defense costs. A City police officer was killed by friendly fire, and his widow alleged that the City and its officers violated the Decedent’s Federal Constitutional rights under 42 U.S.C. § 1983. The City sought indemnification for its defense costs, as well as the costs incurred by the officers named in the lawsuit, but the insurance company denied coverage. The District Court concluded that a § 1983 claim does not arise under an employer liability law and granted the insurance company’s motion for summary judgment. On appeal, the Court of Appeals held that § 1983 is not a workers’ injury statute that displaces common law claims with a new cause of action. Nor can § 1983 be classified as a common law claim as it is a Federal Constitutional claim. Had the insurance company intended to cover claims arising out of federal law, it is likely that it would have cited to federal references, which was not the case in this matter. As such, the Court of Appeals held that the City’s defense costs, which were sustained because of liability imposed a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employer’s liability law and were, therefore, not covered by the insurance company’s policy.


Additionally, the police officers’ claims for indemnification were also dismissed after the Court of Appeals held that the City’s indemnification payments to the officers named in the lawsuit were not classified as “losses” – actual payments, less recoveries, legally made by the employer to the employees and their dependents. The Court of Appeals also held that the term “employee” refers to an injured employee, not to an employee potentially responsible for the injury, such as the named officers. Furthermore, the Court of Appeals was unwilling to contradict the clear intention of the insurance company’s policy to cover only workers’ injury claims. Therefore, the City was not entitled to reimbursement from the insurance company for the incurred costs of the named officers.


Moral of the story: Unless specifically addressed in a policy, the Federal Constitutional right under § 1983 does not mandate insurance companies to indemnify payments to named parties arising from the applicable insurance companies’ policies aimed at covering injured workers.


Want to scare the neighbors? Name your wifi “FBI Surveillance Van”: In Ross v. St. Thomas More Hospital, W.C. 4-985-129 (February 16, 2017), Claimant sought review of an ALJ’s Order denying and dismissing her claim for additional medical benefits. The ALJ reviewed a surveillance video and specifically found that Claimant’s testimony regarding her pain level and functional abilities were out of proportion to the objective findings on the surveillance. The ALJ also credited Respondents expert’s testimony over Claimant’s treating physician. On appeal, Claimant argued that the ALJ erred in admitting the surveillance tapes. Claimant argued that the surveillance was only provided to her 10 days prior to hearing in violation of W.C.R.P. Rule 9-1(E). ICAO explained that the ALJ did not abuse his discretion in allowing the surveillance tapes into evidence. ICAO determined that the proper relief under Rule 9-1(E) was for the Court to entertain a continuance, which Claimant specifically declined. ICAO determined that the ALJ’s decision was supported by substantial evidence and the ALJ’s Order was affirmed.


Moral of the story: An ALJ’s decisions on evidentiary rulings will not be disturbed without a showing of an abuse of discretion leading to a reversible error.


De minimus non curat lex (“the law does not concern itself with trifles”): In Arnhold v. United Parcel Service, W.C. 4-979-208-02 (February 24, 2017), Claimant sought review of an Order denying the Claimant’s request for penalties to be assessed against the Respondent insurance carrier. At hearing, Claimant sought a 10-day penalty for late payment of TTD benefits. The adjuster testified that she was attempting to verify the amount owed before sending a check to Claimant two days after the due date. The ALJ determined that there was no credible or objective evidence that Respondents knew that they were in violation of the Order. On appeal, ICAO reversed and remanded. ICAO held that the testimony confirmed that the check was mailed two days after the deadline, thus supporting a penalties award. Nevertheless, ICAO took note of the lack of objective evidence put forward by Claimant and opined that more than a de minimis penalty was not justified. ICAO remanded the claim back to the ALJ to determine the amount to be awarded for a 2-day penalty.


Moral of the story: Ensure that all monies agreed to are issued in a timely fashion.

legaLKonnection Firm Newsletter – March 2017

2017_newsletter_LK-header-badge

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.

LK-icon-512x512

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In the News
Member Joshua Brown and Of Counsel John Abraham attended the annual NAMWOLF business meeting held in Ft. Lauderdale, Florida February 11th – 14th. The business meeting is held every February to allow NAMWOLF member firms to provide greater insight into each Member Law Firm’s experience and capability to handle complex legal matters. The business meeting also provides the opportunity to network with NAMWOLF Leadership, such as the Advisory Council and NAMWOLF Board of Directors. Mr. Brown and Mr. Abraham represented the Firm and attended several meetings and social functions promoting the Firm’s diversity and practice areas.

Victory Lap

TSK_115x125Member Tiffany Scully Kinder and Associate Kelsey Bowers successfully persuaded the Colorado Court of Appeals to uphold the Order from the Industrial Claims Appeals Office (ICAO) in Josue v. ICAO, Anheuser-Busch, Inc, et al. Ms. Kinder provided a convincing oral argument in front of the Court of Appeals to defeat Claimant’s attempt to overcome the Order that granted an overpayment of more than $16,000 to Respondents for Temporary Total Disability (TTD) benefits paid as the result of an unauthorized procedure. The Court of Appeals found that the Workers’ Compensation Act allows an employer to recoup benefits paid to a Claimant who was not entitled to receive the benefits. It indicated that TTD benefits paid to a Claimant resulting from an unauthorized procedure may be recouped by the employer even if the benefits were paid under a valid admission. The Court concluded that requiring the Claimant to repay these benefits did not violate public policy or the beneficent purpose of the Workers’ Compensation Act.

 

Joe_thmbMember Joseph Gren had several recent wins at hearing. In Gutierrez v. Evraz Inc., et al., Mr. Gren successfully defended against Claimant’s allegation that he sustained a ratable hearing loss as a proximate consequence of an industrial explosion. Claimant was placed at maximum medical improvement (MMI), and later underwent a Division Independent Medical Examination (DIME). Among other findings, the DIME determined that Claimant did not suffer a ratable hearing impairment. Claimant later retained another physician to perform a records review, who opined that the DIME had erred in not including a rating for Claimant’s alleged hearing loss. Mr. Gren presented testimony from Respondents’ IME physician, who concluded that Claimant’s hearing loss was not causally related to the industrial accident. Based on the evidence noted above, the ALJ concluded that Claimant failed to overcome the DIME opinion on no impairment.

In Simmons v. United Parcel Service, et al., Mr. Gren prevailed in a full contest win for two separate but consolidated claims for compensation brought by Claimant for alleged left shoulder and right knee injuries. The ALJ found that Claimant’s representations, regarding her report of the injuries to the Employer, were not credible. The ALJ further found that the reported claims and complaints were not consistent with the medical evidence. The ALJ found Respondents’ expert testified credibly that the Claimant had no acute injuries or aggravations. The ALJ denied and dismissed both claims.

In Bullock v. United Parcel Service, et al., Mr. Gren prevailed in overcoming the DIME physician’s opinion as to the Claimant’s permanent impairment. Claimant was placed at MMI and provided with no impairment. Claimant later underwent a DIME with Dr. Bloch, who opined Claimant had an 18% whole person impairment rating. Mr. Gren presented testimony from Respondents’ IME physician, who credibly testified that Claimant was never diagnosed with a disc or soft tissue lesion which is required for a Table 53 rating. Mr. Gren also pressed the DIME physician on his range of motion testing. The ALJ found DIME Dr. Bloch’s testimony was not credible. The ALJ concluded that Respondents presented evidence that it was highly probable and free from serious or substantial doubt that the DIME erred in calculating an impairment rating and that the Claimant did not qualify for an impairment rating under Table 53. With no Table 53 rating, the ALJ found that Claimant did not qualify for a range of motion impairment rating for the lumbar spine and concluded that the proper impairment rating was 0%.

 

FranNewsOf Counsel M. Frances McCracken successfully defeated Claimant’s request for benefits in Torres v. Walmart Stores, Inc., et al. Claimant alleged that he sustained a left knee injury when he stood up from a kneeling position and heard a “pop.” Claimant was diagnosed with a staph infection and prepatellar bursitis. Respondents’ expert, Dr. Bernton, opined that the staph infection was not directly related to Claimant’s work and Claimant suffered a minor knee strain that would have resolved on its own within a month without restrictions. The ALJ found Dr. Bernton’s opinions and testimony persuasive and determined that the Claimant failed to establish that his underlying infection was related to the minor knee strain. Claimant’s claim for benefits was denied and dismissed.


LetsBeFrankW

 

 

 

 

FMC_115x125COLORADO UNINSURED EMPLOYERS AND A POSSIBLE NEW FUND
There has been growing governmental concern in the State of Colorado over uninsured employers. Changes to the Worker’s Compensation Act in 2005 created stiffer fines for employers who fail to comply with mandated coverage for workers’ compensation benefits. Colo. Rev. Stat. § 8-43-409 governs the procedures for non-compliant employers Proposed House Bill 17-1119 attempts to address payment for injured workers who do not have coverage through their non-compliant employer. HB 17-1119 is currently a proposed Bill, but is likely to be approved later this year. Click here to continue reading this article.

 


Cases You Should Know

I’ll take “Credibility” for $200, Alex. In Hayes v. Pae Holding Corporation, W.C. No. 4-978-794-02 (January 25, 2017), the Claimant sought review of an ALJ’s Order denying and dismissing her claim for an alleged right shoulder injury. The ALJ determined Respondents’ expert’s testimony was persuasive. Dr. Klajnbart testified Claimant’s right shoulder injury was due to her preexisting rheumatoid arthritis and systemic lupus. On appeal, Claimant argued that the ALJ erred by ignoring substantial evidence that supported her claim for a compensable injury, specifically that the ALJ had ignored Claimant’s expert’s opinions. ICAO explained that an ALJ’s determination of causation must be upheld if it is supported by substantial evidence. ICAO must defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. ICAO determined that the ALJ’s decision was supported by substantial evidence and the ALJ’s Order was affirmed. Moral of the Story: ICAO will defer to the ALJ’s determination of credibility of expert witnesses.

 

Newsflash! The Medical Treatment Guidelines are just…guidelines. In Andregg v. Arch Coal, Inc., W.C. No. 4-629-269-07 (January 24, 2017), the Respondents sought review of an ALJ’s Order finding Respondents liable for maintenance medical benefits including an ongoing prescription for Tramadol. The ALJ found that though the Claimant admitted to prior opioid dependence, the Claimant was able to function with the use of Tramadol. Respondents argued that the Medical Treatment Guidelines do not recommend the use of Tramadol for patients with opioid addiction issues. ICAO noted that while the Guidelines are accepted professional standards under the Workers’ Compensation Act, they are not definitive and an ALJ is not required to utilize the Guidelines as the sole basis for determining whether medical treatment is reasonable and necessary. ICAO did not perceive any error and the ALJs Order was affirmed. Moral of the Story: The Medical Treatment Guidelines are only guidelines and are not definitive of treatment that should be authorized or denied.

 

“The trick is to stop thinking of it as ‘your’ money.” – quote from an IRS auditor. In Smith v. NPC International, W.C. No. 4-933-753 (January 24, 2017), both parties sought review of an Order of the Director that reduced Respondents’ subrogation lien. Claimant moved for summary judgment, requesting Respondents’ subrogation lien be reduced by 35% to account for his attorney fees and Respondents’ alleged violation of C.R.S. § 8-41-203(4)(e). The Director reduced Respondents’ subrogation lien by 20% as reasonable attorney fees and denied Claimant’s request for further reduction based on violation of C.R.S. § 8-41-203(4)(e). The Director found that Claimant did not provide evidence to support a 35% reduction in the subrogation lien for reasonable attorney fees; thus, the Director only reduced the subrogation lien by 20%. ICAO determined that summary judgment was not appropriate as there were still outstanding disputed issues of material fact because of the limited evidence provided by both parties. Thus, ICAO set aside the Director’s Order and remanded the case for hearing. Moral of the Story: Summary judgment is a drastic remedy and is not warranted unless there are no disputes of material fact.

 

TTD and TPD working together in harmony. In Montoya v. Ethan Allen Retail, W.C. N0. 4-974-821 (February 2, 2017), ICAO reversed an award of TPD benefits. Claimant was released to full-duty the day after her injury, but Respondents began paying TPD benefits. At hearing, the ALJ found Claimant was disabled and upheld the TPD award. On appeal ICAO reversed, holding that a claimant’s physical ability to perform regular employment was sufficient to terminate a claimant’s “disability” for the purposes of TTD and TPD benefits. Moral of the story: A release to full-duty by an ATP is sufficient to terminate a claimant’s “disability” with regards to both TTD and TPD benefits.

 

You burrito believe you should get the ATP’s opinion on MMI in writing. In Turner v. Chipotle, W.C. 4-983-631 (January 31, 2017), Claimant moved to strike the 24-Month DIME based on Respondents’ failure to request the ATP’s written opinion on MMI prior to initiating the 24-Month DIME process. ICAO held that the 24-Month DIME was valid, reasoning that Respondents’ 24-Month DIME Application satisfied their initial burden of proving compliance with the requirements of the 24-Month DIME. The Respondents’ 24-Month DIME Application shifted the burden to Claimant to prove noncompliance. Claimant failed to provide any evidence of noncompliance and ICAO allowed the DIME to stand. Moral of the story: Avoid unnecessary litigation and request the ATP’s opinion on MMI in writing prior to initiating the 24-Month DIME process.

 

No impairment? No settlement award? No apportionment! In Kellebrew v. Rifle DSC, W.C. No. 4-964-409 (February 6, 2017), Claimant received an 18% apportioned whole person impairment from the ATP. Claimant challenged the rating, arguing apportionment should not apply because he did not receive a previous impairment award or settlement for his prior work-related injury. The ALJ agreed and awarded an unapportioned 26% impairment. On appeal, ICAO reversed and remanded. ICAO held that the apportionment statute did not apply, and that causation of the impairment was the issue for determination. Thus, Claimant needed to first proceed to the DIME before he could challenge the rating at hearing. Moral of the story: Causation, as it relates to impairments, must first be addressed by the ATP and then a DIME physician before an ALJ has jurisdiction over the matter.

 

International Shoe Lives! That Con Law class in law school finally came in handy. In Youngquist v. Miner, the Supreme Court held that Colorado did not have personal jurisdiction over an out-of-state employer who hired a Colorado resident. Claimant applied for an online job with Employer, and was interviewed and hired by telephone while residing in Colorado. Within two days of leaving Colorado for his new job, Claimant was injured. The ALJ held that because Claimant had been hired in Colorado and was injured within six months of leaving the State, Colorado had jurisdiction pursuant to statute. The ALJ also imposed a penalty against the Employer for failing to carry workers’ compensation insurance in Colorado. ICAO affirmed the ALJ’s Order, as did the Court of Appeals. The Supreme Court reversed. The Supreme Court noted that it was simply “random and fortuitous” that the Employer contacted Claimant while he was in Colorado. Moreover, the Employer did not specifically recruit Colorado residents, did not physically send a representative to Colorado, nor did the Employer have a physical business location in Colorado. As such, the Court concluded the Employer did not have sufficient minimum contacts with Colorado for the state to exercise personal jurisdiction over the Employer. Moral of the story: The mere fact that a Claimant was hired in the State of Colorado and is injured within 6 months of leaving is not a sufficient analysis to determine whether Colorado workers’ compensation law applies to an out of state injury.

 

Once more unto the breach, dear friends, once more. – Shakespeare. ICAO (again) reaffirmed the state of the law regarding maintenance medical benefits in Willis v. Qwest Corporation d/b/a CenturyLink, W.C. No. 4-141-210-04 (January 20, 2017). ICAO noted that in all cases where the Court orders a general award of maintenance medical benefits, Respondents are entitled to contest the reasonableness, necessity and relatedness of specific medical care. ICAO specifically noted that the ALJ’s Order, which stated, “including to but not limited to” in naming specific medications that were being contested by Respondents, was consistent with a prior general award of medical benefits. ICAO agreed that the ALJ was in her discretion to determine which individual medications the Claimant had proven were reasonable, necessary and related, based on the evidence presented. Moral of the Story: Claimant is entitled to a general award of maintenance medical benefits, but it remains the Claimant’s burden to prove reasonableness, necessity and relatedness of a specific medical benefit contested by Respondents.

 

The testimony of one eyewitness is worth more than the hearsay of a hundred. – Sicilian proverb. In an interesting case involving hearsay evidence, Respondents sought review of an Order denying the request for a 50% reduction in Claimant’s benefits for violation of a Safety Rule. In Goddard v. Qwest Corporation d/b/a CenturyLink, W.C. No. 4-919-196-02 (January 26, 2017), Claimant sustained injuries after falling out of an aerial lift. The ALJ found that Claimant’s failure to wear a safety harness and lanyard while operating an aerial lift in a bucket truck did not constitute a willful violation of a safety rule. In reaching this decision, the ALJ excluded testimony of a witness. The witness testified that after the fall, the Claimant informed him that he had to retrieve his harness from the truck and then return to the site of the accident. Generally, this type of testimony from the witness would be considered hearsay; however, Respondents argued the Claimant’s statement to the witness should have been admitted as an “excited utterance” exception to the hearsay rule. On review, ICAO held that it is within the ALJ’s discretion to determine whether a statement is admissible under an exception to the hearsay rule and that there was no error made when the judge sustained Claimant’s hearsay objection. Moral of the Story: The “willful” intent element of the Safety Rule Violation reduction is often difficult to prove and an ALJ has discretion in determining which evidence will be admissible in doing so, including determining applicable exceptions to the hearsay rule.

 

“Your Honor what I meant to state was…” In Wang v. August Moon Asian Grill, W.C. No. 4-885-554-07 (January 17, 2017), Claimant asserted respiratory problems due to exposure to smoke in the employer restaurant. A dispute arose over Claimant’s date of MMI because the DIME found that Claimant’s asserted injuries were not work related and provided no impairment rating. The ATP had previously placed Claimant at MMI and assigned an impairment rating. In his closing argument for hearing, Claimant stated he was not challenging the treating physician’s finding of MMI. The ALJ found that Claimant’s claim was compensable, denied Respondents’ request for a withdrawal of their admission of liability, and awarded medical benefits to cure and relieve the effects of Claimant’s injury as Claimant was not at MMI. Respondents solely appealed the determination that Claimant was not at MMI. ICAO noted that a dispute over the MMI date is distinct from whether Claimant is at MMI. Further, Claimant had made a judicial admission that Claimant was at MMI in his closing argument. Therefore, ICAO determined that the issue of MMI was not before them for review. In their findings, they noted that parties were permitted to exclude an issue, in this case MMI, from being heard by an ALJ. The panel affirmed the Order, but set aside the portion that Claimant was not at MMI, remanding to the ALJ to determine the date of MMI because MMI had already been determined based on judicial admission. Moral of the Story: Choose your words carefully, judicial admissions may exclude issues for determination.

legaLKonnection Firm Newsletter – February 2017

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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.

Linked-In Please follow Lee + Kinder LLC on LinkedIn

 


In the News

PWC-logoLee + Kinder LLC sponsored the PWC 8th Annual Bowling tournament on Friday, February 10, 2017. The Firm was well represented with 3 teams entered. Team “Spare Us” won the event behind the strong showing of Richard Lutterman who was the highest scoring player in the tournament! Rich was accompanied on the team by Cheryl Stevens, Harvey Flewelling and Frank Cavanaugh. A good time was had by all and money was raised for the PWC scholarship fund.

 

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The 2017 Colorado Workers Compensation Educational Conference is being held April 17-19 at the Broadmoor in Colorado Springs. Lee + Kinder LLC is an event sponsor. We invite you to join us for this educational event.

 


Victory Lap

 

ST_newsIn Wilks v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended against a request for right wrist surgery. Respondent presented the testimony of Dr. Fall to prove that Claimant’s alleged mechanism of injury could not have caused the arthritic condition for which Claimant was seeking treatment. The ALJ ultimately found that, although Claimant needed the recommended procedure, the need for the procedure was not related to Claimant’s admitted injury. The ALJ relied on Dr. Fall’s persuasive testimony giving little weight to Claimant’s expert who admittedly relied on some “guesswork” in reaching his conclusions.

 

FranNewsOf Counsel M. Frances McCracken requested an order striking Claimant’s request for disfigurement benefits in Rodarte v. Sam’s Club. Claimant suffered an industrial injury to her right middle finger and underwent surgery. Afterwards, Claimant sought disfigurement benefits. Ms. McCracken presented undisputed evidence and testimony from the Claimant that she was scheduled to undergo a second surgery that could correct some of the visible disfigurement. The ALJ determined an award for disfigurement was not yet ripe and struck Claimant’s Application without prejudice.

 


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 EMPLOYEE OR INDEPENDENT CONTRACTOR?
Why is it important to know if the person working for you is an employee or an independent contractor? Because the answer determines if he or she must be covered by your workers’ compensation insurance policy. An incorrect guess exposes you to substantial penalties under Colorado’s Workers’ Compensation Act.

A worker’s status as an “employee” versus an “independent contractor” has been one of the most heavily litigated areas of workers’ compensation since the enactment of Colorado’s Workers’ Compensation Act in 1915. Fortunately, after decades of appellate decisions addressing the independent contractor versus employee issue, in 1993, the General Assembly enacted Section 8-40-202(2), C.R.S. Click here to continue reading this article.

 


Cases You Should Know

Employer mandate: not optional. In two opinions issued on the same day, In the matter of Angels of God Early Learning Center, Inc. (November 8, 2016) and In the Matter of AWF, LLC d/b/a Cherry on Top (November 8, 2016), ICAO upheld penalties issued by the Director following second violations of the Workers’ Compensation Act requirement that an employer maintain workers’ compensation insurance coverage. Both employers argued on appeal that they did not receive notice that their insurance coverage had lapsed. The employer in AWF further argued that it obtained new coverage upon notice from the Division and that no employees had been injured in the meantime. In both cases ICAO upheld the penalties issued by the Division, noting that an employer is not entitled to a hearing, when the employer did not avail itself of the opportunity for a prehearing conference. Moral of the Story: When the Division issues penalties on an uninsured employer, and the employer does not seek a prehearing to challenge the fines, the employer waives its right to a hearing.

 

“You don’t need more treatment, but I didn’t say you were at MMI.” In Dean v. Southwest Airlines, W.C. No. 4-988-024-01 (November 7, 2016), a flight attendant alleged injuries to multiple body parts, including the ankle, as a result of falling due to motion of the airplane on which he was working. The ALJ found that the ankle injury resolved within two days and required no additional medical treatment and that the other injuries were unrelated to the incident. The Claimant appealed, arguing that the ALJ improperly ruled on whether Claimant’s ankle injury was at MMI without having first undergone a DIME. Noting that MMI was not at issue, ICAO upheld the ALJ’s Order finding the decision merely denied additional medical and temporary disability benefits based on a determination of causation. Moral of the Story: An ALJ’s denial of further medical and temporary disability benefits does not equate to a finding of MMI.

 

Collateral attack via DIME. In Jackson v. Select Comfort Corp., W.C. No. 4-914-418-03 (November 17, 2016), an ALJ found that a Claimant’s lumbar condition was not causally related to the admitted work injury. The Claimant later received an impairment rating from a DIME physician for the lumbar condition. The Respondents challenged the DIME’s impairment rating at hearing before a different ALJ. The ALJ found that the Respondents failed to overcome the DIME’s impairment rating by clear and convincing evidence. The Respondents appealed arguing that causation and relatedness could not be relitigated through a collateral attack on the first ALJ’s Order by means of a DIME. ICAO upheld the second ALJ’s finding noting that, although both hearings involved the question of causation, the burdens of proof were different. Therefore, they concluded that issue preclusion did not apply. Moral of the Story: Insofar as a DIME’s MMI or impairment rating determinations turn on relatedness, the DIME physician is not bound by a prior ALJ’s findings.

 

John Hancock, PA-C. In MacDougall v. ICAO, 2016CA705 (December 15, 2016)(nsfp), a Claimant was receiving TTD benefits on a GAL. The Respondents then filed a FAL admitting for no PPD benefits, relying on a medical report by the Claimant’s treating PA with the stamped signature of the Claimant’s ATP. The report stated that the Claimant was at MMI with no restrictions, but did not address an impairment rating. Upon receipt of a letter from the ATP stating that Claimant needed an impairment rating and review by a Level-II accredited physician, the Respondents filed an Amended GAL that terminated TTD as of the date of the PA’s report. The Claimant sought penalties on the basis that Respondents should not have terminated TTD based on a “fraudulent report.” However, the ALJ denied penalties noting that Respondents terminated TTD based on the PA’s full-duty release, which had not been rescinded by the ATP. ICAO and the Court of Appeals affirmed. Moral of the Story: Respondents may rely on a PA’s report if it bears the ATP’s stamped signature insofar as the ATP does not rescind the parts of the report on which the Respondents rely.

 

“Everyone has an Achilles’ heel.” In Kendrick v. United Airlines, W.C. No. 4-991-007-01 (Nov. 15, 2016), the Claimant sought review of an ALJ’s Order finding that Claimant’s injury did not occur within the course and scope of employment and subsequently denying Claimant’s temporary disability and medical benefits. Claimant was a co-pilot for the employer and was scheduled to spend the night in Seattle, Washington. After arriving at his hotel, Claimant went on a jog and ruptured his Achilles’ tendon ascending a flight of stairs. Claimant alleged that his jogging was within the course and scope of his employment. On appeal, the Claimant argued that the practice of running falls within the category of personal comfort activities found to be within the course and scope of employment. ICAO explained that participation in recreational activity is usually excluded from the context of employment and also excluded from being considered an element of the comfort doctrine. The Claimant’s jogging was considered a substantial deviation from the Claimant’s travel status. ICAO upheld the ALJ’s Order that Claimant’s injury did not occur within the course and scope of his employment. Moral of the Story: Unless the type of recreational activity is considered part of the employment, participation in recreational activities is usually outside the scope of most employment.

 

“Special employment hazard.” In Leal v. UPS, W.C. No. 4-977-019-02 (Aug. 15, 2016), the Claimant sought review of an ALJ’s Order denying medical and temporary disability benefits and dismissing the claim as not compensable. The Claimant alleged that he hurt his back while working for the employer. The Claimant had a history of back injuries including a 15-year history of sciatica symptoms. The Claimant underwent significant treatment until the DIME physician, Dr. Lesnak, placed him at MMI without impairment or restrictions. Another physician, Dr. Gellrick, later concluded that the Claimant was suffering from an aggravation of previous symptoms, concluding that the Claimant was not at MMI. At hearing, the Claimant testified that he had no history of back pain prior to the date of injury. Dr. Lesnak testified that the Claimant’s previous testimony regarding his prior episodes of back pain contradicted several medical records. Dr. Lesnak further testified that the Claimant’s symptoms, subsequent to the date of injury, were due to Claimant’s age, weight, and the degenerative condition of his spine. The ALJ ultimately did not find the Claimant’s testimony credible concluding that the Claimant failed to provide a causal link between his work duties and his industrial injury. On appeal, the Claimant alleged that the ALJ misapplied the special hazard of employment doctrine to deny compensability of the claim. ICAO noted that the ALJ’s Order showed that she applied the hazard of employment analysis to the extent she found no work activities were involved in the Claimant’s symptoms or need for treatment. Citing the City of Brighton v. Rodriguez, ICAO noted that in order to to render an injury compensable, a special employment hazard must have contributed to the injury even if the most direct cause of that injury is a preexisting idiopathic disease or condition. ICAO noted that the ALJ found no evidence that twisting at work contributed to the Claimant’s injuries. ICAO then concluded that the ALJ located the Claimant’s injury in the category of personal risk, which is not compensable, and the exception of the hazard of employment did not apply. Moral of the Story: Personal risk injuries are not compensable and the special hazard doctrine only applies when there is a preexisting idiopathic disease or condition and the special employment hazard contributes to that injury.

 

“Make sure your stories line up.” In Parrot v. Havana Auto Parts, W.C. No. 4-987-940-02 (Dec. 29, 2016), the Claimant sought review of an ALJ Order denying and dismissing the Claimant’s workers’ compensation claim. The Claimant contended that he injured his left knee while engaging the emergency brake in a work truck. He did not report his injury immediately to the employer. An employee for the employer credibly testified that there were no records documenting complaints about the truck’s emergency brake. Dr. Paz later performed an IME and concluded that the Claimant’s injuries were not causally related to the date of injury due to the Claimant’s inconsistent accounts of the mechanism of injury. At hearing, the ALJ credited the testimony of Dr. Paz and disregarded other medical opinions. On appeal, ICAO upheld the ALJ’s findings noting that an if ALJ determines that a Claimant has met their burden of proof to establish a compensable injury, then the appeals court must give deference to an ALJ’s resolution of conflicts of evidence and plausible inferences drawn from the record. Moral of the Story: An ALJ is given great deference in his/her determinations at hearing.

 

“Mager pain.” In United Parcel Service v. Industrial Appeals Office, Colorado Court of Appeals No. 15CA2142 (Nov. 10, 2016), the Court of Appeals affirmed an ICAO Order affirming an ALJ’s Order awarding the Claimant, Jennifer Magers medical benefits and temporary total disability benefits, and rejecting employer’s intervening cause and injurious practice arguments. While making a delivery, the Claimant developed pain in her left hamstring and lower left buttocks. She could not recall a specific event that precipitated the pain. It was later determined that Ms. Magers had a moderate sized posterior and left lateral disc protrusion and extrusion of her L4-5 and L5-S1 vertebrae. Dr. Jernigan opined that this was a result of her work performed on the date of injury. Ms. Magers took a road trip with her family, and reported a sudden increase in back pain after shifting her body weight in the car. An IME physician opined that Ms. Magers’ condition was not work-related because Ms. Magers had initially indicated to her primary care provider that the pain began four to five weeks before her visit, which would have put the injury outside the reported accident date. At hearing, the ALJ found that Ms. Magers had established she suffered a work-related injury, and rejected the Respondents’ injurious practice and intervening cause arguments. The Respondents challenged that (i) Ms. Magers sustained a compensable injury; (ii) Ms. Magers’s use of an inversion table was an intervening cause; and (iii) Ms. Magers engaged in an injurious practice by going on vacation. After applying the substantial evidence test in determining whether the evidence supports the ALJ’s findings, the Court of Appeals concluded: (i) Ms. Magers’ testimony and the medical opinions establish that Ms. Magers suffered a compensable injury, and Ms. Magers’ inability to pinpoint a specific event that caused her pain was not enough to indicate that the ALJ erred in crediting her testimony; and (ii) Ms. Magers’ one-time use of an inversion table and her family road trip were not a likely cause or contributed to her injury. After concluding that the ALJ resolved conflicting evidence, the Court of Appeals upheld the ALJ’s and ICAO’s findings. Moral of the Story: An ALJ is given great deference in weighing medical opinions and hearing testimony to determine whether a claimant suffered a compensable injury, whether a claimant participated in an injurious practice, and whether there was an intervening cause.

 

DIME opinions are great and all, but are not that impressive in evaluating PTD benefits: In this next case, the Claimant sustained multiple injuries when she tripped and fell over a box. The DIME physician opined Claimant had impairments to her left shoulder and left knee, but no impairments to her spine. Claimant sought PTD benefits. The ALJ credited Claimant’s IME physician that Claimant’s spine injuries were related to the fall and awarded PTD benefits. Respondents appealed and argued the ALJ did not properly apply the correct burden of proof in awarding PTD benefits. The Court held that this burden of proof did not apply in the context of PTD benefits. Rather, the PTD analysis focused on the Claimant’s ability to earn wages and Claimant was only required to show a causal link between her disability and work injury. Dish Network v. ICAO, W.C. No. 4-918-651 (nsfp). Moral of the story: The DIME physician’s opinion regarding causation of additional body parts does not carry presumptive weight in evaluating PTD benefits.

legaLKonnection Firm Newsletter – January 2017

2017_newsletter_LK-header-badge

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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Please follow Lee + Kinder LLC on LinkedIn

 


Victory Lap

tiffany-scully-kinder_lee-kinder-partner-attorney1Member Tiffany Scully Kinder and Associate Kristi Robarge succeeded in a Motion for Summary Judgement in Jones v. Comcast Corporation and Indemnity Insurance Company of North America. Due to Claimant’s extended leave of absence, her discounted cable and internet services through Comcast were discontinued. Claimant alleged that her average weekly wage should be increased to reflect the value of these fringe benefits. Respondents filed a Motion for Summary Judgement arguing that fringe benefits such as discounted cable services were not wages pursuant to C.R.S. § 8-40-201(19)(b). Respondents’ Motion for Summary Judgement was granted and Claimant’s Application for Hearing, endorsing the issues of average weekly wage and temporary total disability benefits, was dismissed with prejudice.

 

KGTnews In Dumas v. Sodexo and New Hampshire Insurance Company, Member Karen Treece defeated Claimant’s request for workers’ compensation benefits. Claimant alleged he slipped and fell while working in the kitchen and sustained multiple injuries. Ms. Treece presented credible evidence from the employer that established Claimant was disrespectful, insubordinate, and defiant to his employer, as well as disrespectful and intimidating toward his staff. ALJ Jones did not find the Claimant credible, as he provided an inconsistent medical history to the medical providers. ALJ Jones denied and dismissed the claim.

 

2015_Joe-borderMember Joseph Gren and Associate Daniel Mowrey defeated Claimant’s attempt to overcome the DIME physician’s opinions as to apportionment by clear and convincing evidence in Garciav. United Parcel Service and Liberty MutualInsurance. The DIME physician apportioned Claimant’s rating with the rating she received for her 2008 injury. Respondents admitted for the apportioned rating and filed a Final Admission of Liability (FAL). Claimant filed an Application for Hearing contesting the apportionment. Claimant alleged that the conditions from her current injury were not present in the prior injury and apportionment was therefore not appropriate. Claimant further argued she needed to overcome the DIME’s opinion by only a preponderance of the evidence burden. ALJ Jones found that Claimant provided no new medical evidence which had not been reviewed by the DIME physician in his determination of apportionment. Mr. Gren discredited Claimant by putting forth medical records that revealed her testimony was not consistent with the medical records. ALJ Jones credited Respondents’ case law met the clear and convincing standard and found that Claimant failed to overcome the DIME’s opinion as to apportionment.

 

FranNewsOf Counsel M. Frances McCracken successfully defeated Claimant’s request for medical benefits and recovered an overpayment in the amount of $12,841.25 for Respondents. In Gomez v. The Brickman Group, LTD. and Indemnity Insurance Company of North America, Claimant sought maintenance medical benefits in the form of lumbosacral injections. Ms. McCracken presented expert medical testimony that additional lumbosacral injections recommended by Claimant’s ATP were not reasonable, necessary or related to the admitted injury. Ms. McCracken further argued that Respondents should be allowed to recover an overpayment of temporary total disability benefits paid after Claimant was placed at MMI. ALJ Cannici found that Respondents were entitled to recover the full overpayment of benefits after MMI placement. The ALJ further found Respondents’ expert medical testimony credible and persuasive, and therefore denied and dismissed Claimant’s request for lumbosacral injections.

In Chism v. Walmart Stores Inc, Of Counsel M. Frances McCracken successfully appealed ALJ Mottram’s Order wherein the ALJ ordered authorization for a left shoulder reverse total arthroplasty as maintenance medical care. The ALJ found the surgery reasonable and necessary to “cure and relieve” the effects of the work injury. On appeal, Ms. McCracken argued the ALJ committed reversible error because arthroplasty was not a benefit for which Respondents were liable, given that Claimant was at MMI and pursuing treatment under an admission for post-MMI medical benefits. ICAO reiterated that if the goal of treatment is curative, an ALJ must deny the request for post-MMI medical benefits. ICAO remanded the case to ALJ Mottram to determine whether the requested surgery is compensable post-MMI treatment or whether it is curative and must be denied.

 

mbb-news_115x125Associate Matt Boatwright successfully challenged Claimant’s appeal in Leal v. United Parcel Service and Liberty Mutual Insurance. Compensability of the claim was denied by the hearing ALJ on the basis that Claimant failed to show a direct causal link between his job duties and injury, referencing the “special hazard of employment doctrine” as part of her legal analysis. On appeal, Claimant argued that the ALJ misapplied the special hazard of employment doctrine in denying the claim, arguing that Claimant only needed to show that “but for” the circumstances of employment, Claimant would not have suffered an injury. ICAO found that the ALJ’s holding was based in part on Respondents’ expert testimony, and further the ALJ found that there was no causal relationship between the injury and employment, regardless of the application of the special hazard rule. ICAO found that the findings were supported by substantial evidence and that the ALJ’s Order should therefore be affirmed.

 Jess-news_115x125Associate Jessica Melson successfully defeated Claimant’s attempt to add her cervical spine and left shoulder to the claim in Schlecht v. Patterson UTI Drilling Energy, Inc. and Liberty Mutual. Claimant fell at work and sustained an admitted injury to her right shoulder. Claimant later attempted to include her left shoulder and cervical spine. Medical treatment for the additional body parts was denied and the claim proceeded to hearing. Claimant argued that she injured her left shoulder either in the work-related fall or from “overuse or overcompensation” due to the right shoulder injury. Claimant further alleged that she injured her cervical spine in the fall. ALJ Jones did not find the Claimant credible as she reported multiple different mechanisms of injury and failed to disclose an intervening motor vehicle accident to her medical providers. Ms. Melson discredited Claimant’s IME expert by showing he initially opined he was unsure how Claimant injured her left shoulder as the described fall would not have caused the injury. But the doctor later opined Claimant’s left shoulder injury was directly related to the fall. ALJ Jones denied Claimant’s request for medical treatment for the left shoulder and cervical spine.

 

KBB-news_115x125Associate Kelsey Bowers defeated the Claimant’s attempt to overcome the DIME with regard to MMI and request for temporary disability benefits in Garcia v. The Home Depot and Liberty Mutual. Claimant’s weight prevented him from being able to undergo surgery to repair the work-related hip injury. The DIME physician indicated that Claimant needed to lose weight in order to undergo the necessary hip surgery. Nonetheless, he placed Claimant at MMI. Claimant’s counsel argued that the DIME opinion on the issue of MMI was ambiguous because the DIME doctor recommended additional treatment. ALJ Jones was persuaded by Ms. Bowers’ argument and Dr. Fall’s testimony showing that the weight loss was completely in Claimant’s control and there was no way to tell whether Claimant would ever be able to lose the required weight. ALJ Jones concluded that Claimant failed to overcome the DIME and was properly placed at MMI while he tries to lose the weight necessary to undergo the hip surgery.

 


 

 

Division Proposed Changes to W.C.R.P. Rule 17 Exhibit 5 – Cumulative Trauma Disorders
W.C.R.P. Rule 17 contains the Medical Treatment Guidelines promulgated by the Division of Workers’ Compensation. Several corresponding exhibits discuss the applicable medical criteria regarding injuries to different body parts and recommended treatment. Exhibit 5 addresses cumulative trauma disorders and the causation matrices involved in guiding physicians to assess whether an occupational disease may be work related. The Division has proposed updates to the matrices to specifically address certain scenarios facing injured workers and the applicable statutes under the Workers’ Compensation Act. Also, there have been additional journals, studies, and treatises better addressing the anatomy behind some of the cumulative trauma disorders and causation. The following will help outline some of the updates to the Guidelines proposed by the Division. Click here to continue reading this article.

 


Cases You Should Know

The Guidelines are….well, just guidelines: In Robles v. Denver Processing, LLC, W.C. No. 4-997-535 (December 22, 2016), the Claimant sought review of an ALJ’s Order denying and dismissing his claim involving an alleged repetitive use injury. Claimant’s medical expert opined that Respondents’ expert did not follow the Workers’ Compensation Medical Treatment Guidelines in deciding whether the Claimant suffered a cumulative trauma injury. ICAO explained that the compensable nature of an injury is not controlled by the Guidelines. Rather, compensability of an alleged occupational injury remains controlled by the Workers’ Compensation Act and relevant case law. Moral of the Story: The Court may consider the Guidelines when evaluating diagnosis and causation; however, the Guidelines are not controlling as to the issue of compensability.

In order to appeal, first you must pay: In Rivas v. Cemex, Inc., W.C. No. 4-975-918 (December 22, 2016), Respondents filed a Petition to Review an ALJ’s Order granting Claimant’s request for a change of authorized treating physician. ICAO cited a recent case which held that an order for change of physician would be subject to review when recent amendments to the Act obligated Respondents to make additional payments implicated by the change of physician, such as fees for copying medical records or payment for at least an initial appointment. In the present matter, no costs were involved or made necessary by the ALJ’s Order. Accordingly, ICAO held that the ALJ’s Order did not grant any benefits and therefore was not subject to review under section 8-43-301(2), C.R.S.
Moral of the Story: Before seeking review of an order granting a change of physician, parties should analyze whether the change of physician resulted in respondents making medical benefits payments.

No enterprise is more likely to succeed than one concealed from the enemy until it is ripe for execution: In Heinz v. State Farm Mutual Automobile Insurance Company, W.C. No. 4-991-171 (December 9, 2016), Claimant filed for hearing on multiple penalty claims, primarily alleging that Respondents failed to timely take a position on the claim and had no good faith basis to pursue a DIME. Respondents had the former issues stricken by a PALJ at prehearing on the basis of ripeness and thereafter sought attorney fees from Claimant upon her continued pursuit of the stricken issues at hearing. ICAO confirmed the ALJ’s decision finding penalties inappropriate, and that there was no requirement that a party pursue a DIME in “good faith.” However, ICAO reversed the ALJ’s decision awarding attorney fees, finding that the issues were ripe at the time that Claimant filed her Application for Hearing, notwithstanding the PALJ’s Order, because there was no legal impediment to the ALJ’s ability to adjudicate these issues at the time that Claimant filed for a hearing.
Moral of the Story: Despite a PALJ striking a penalty claim for lack of ripeness, an ALJ is not precluded from ruling on the issue of penalties. Further, attorney fees are not appropriate if the issue is ripe at the time the party seeking penalties files an application for hearing.

Absence of evidence is not evidence of absence: In Sanchez v. Highlands Glass and Shower, Inc., W.C. No. 5-006-630 (December 6, 2016), Respondents appealed an Order finding that Claimant suffered a compensable injury, and Respondents were a statutory employer liable for medical and disability benefits. ICAO upheld the ALJ’s Order of compensability, holding the evidence satisfied the “totality of the circumstances test” concerning whether a claimant is an employee. ICAO further upheld the ALJ’s award of temporary disability benefits, despite Claimant’s release to work less than three days after the injury (Claimant was subsequently given restrictions), based upon the ALJ’s finding that Claimant credibly testified that he could not work due to the injury. ICAO noted that it is not necessary for the ALJ to predicate such a finding on medical evidence. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997).
Moral of the Story: It is well established in case law that a claimant does not have to present medical evidence of a disability to allow an ALJ to find that the claimant was disabled due to a work injury as testimony, alone, may be sufficient in the absence of evidence to the contrary.

The high and mighty DIME: In Spath v. Hobby Lobby Stores, Inc., W.C. No. 4-866-427-01 (January 5, 2017), ICAO upheld the Order of the ALJ which found that Claimant failed to overcome the DIME as to MMI and permanent impairment rating determinations. It was found that the DIME’s recommendation for additional medical treatment, while concurrently finding Claimant had reached MMI, did not conflict as the DIME noted the recommended medical treatment was likely to be “temporarily helpful.” The Claimant further argued that the DIME erred because there was no mention of Claimant’s lumbar spine in the DIME report, and Claimant was seeking an impairment rating for the lumbar spine. However, ICAO determined that this was not an error as it is presumed that a DIME physician evaluated all components of a claimant’s condition, as required by C.R.S. § 8-42-107(8)(b). Thus, ICAO found, it can be inferred that the DIME intended to not assign an impairment rating for Claimant’s lumbar spine.
Moral of the Story: Opinions of a DIME are afforded great weight, and overcoming the DIME by clear and convincing evidence is a high burden to meet.

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