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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Please follow Lee + Kinder LLC on LinkedIn

 


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

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

 


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

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


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

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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 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.


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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

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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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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.

legaLKonnection Firm Newsletter – December 2016

Lee + Kinder LLCThank 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 Joshua Brown, Joseph Gren and Of Counsel John Abraham attended the National Workers’ Compensation and Disability Conference in New Orleans November 29 through December 2. The conference is held annually by various clients, vendors, and sponsors in an effort to stay abreast of industry trends and managing client needs. Mr. Brown, Mr. Gren and Mr. Abraham represented Lee + Kinder LLC and participated in the expo held at the convention center. They had the opportunity to network with both vendors and clients in addition to discussing upcoming needs for 2017 and changes to Colorado law.

 

Lee + Kinder LLC would like to wish everyone a very Happy New Year!

 


Victory Lap

Joe3Member Joseph W. Gren successfully won dismissal of a claim for penalties in Arnhold v. United Parcel Service and Liberty Mutual Insurance. Claimant was seeking penalties against Respondents for a late payment of TTD award pursuant to a prior Order. Mr. Gren, through testimony of the insurance adjuster, was able to argue that the adjuster acted objectionably reasonable in the actions taken pursuant to the Order. The ALJ found that the adjuster was credible and that the adjuster acted objectionably reasonable in her adjusting of the claim. The ALJ further found that the Claimant failed to meet her burden of proof, under the cure provision, that a penalty should be imposed in this matter. The claim for penalties was denied and dismissed.

 

FranNewsOf Counsel Frances McCracken successfully defeated the Pro Se Claimant’s requests for temporary disability benefits, permanent partial disability benefits, and medical benefits in Jaterka v. Johnson & Johnson and Indemnity Insurance Company of North America. Respondents previously filed a FAL that admitted for a 0% impairment rating for the work-related left cubital tunnel syndrome and lateral epicondylitis. At hearing, Claimant sought to reopen the claim on the basis that the left shoulder surgery that she underwent through her personal insurance was related to the work injury. Ms. McCracken successfully argued that Claimant was jurisdictionally barred from challenging MMI and the determination that the left shoulder complaints were not related to the work injury because Claimant did not timely file an objection to the FAL or pursue the DIME. ALJ Edie agreed that the relatedness of the shoulder injury was conclusively determined by the ATP at the time of MMI and could not be challenged in a reopening proceeding. ALJ Edie dismissed Claimant’s request to reopen the claim and denied the requests for medical and indemnity benefits related to the left shoulder injury.

 


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Division Rule 16: Increasing the Complexity of Utilization Preauthorization Disputes

On January 1, 2017, the Colorado Division of Workers’ Compensation’s revised Rule 16 will take effect. Rule 16 encompasses the medical, legal, and administrative standards for medical billing and for preauthorization of services requested by medical providers. The revised rule impacts the daily adjusting of workers’ compensation claims, specifically, responding to requests for preauthorization of medical services consistent with the Colorado Medical Treatment Guidelines (“MTG”). The critical alterations pertaining to the utilization review process impute additional legal obligations upon the insurance carrier or third party administrator (“TPA”) to take action after receiving a preauthorization request.
Click here to continue reading this article

 


Cases You Should Know

Don’t make promises you can’t keep. ICAO reaffirmed established Colorado law that ALJs have broad discretion when determining a claimant’s Average Weekly Wage (AWW) in Cruz v. Sacramento Drilling Inc. and Travelers Property Casualty Company of America. W.C. No. 4-999-129 (ICAO October 24, 2016). In this claim, Claimant sustained an injury two weeks after beginning a new job. At hearing, Claimant argued that the AWW should be based on a 60-hour workweek because that was the number of hours originally offered by the employer and he worked 59 hours the week prior to his injury. The employer argued that following the injury, Claimant never worked 60-hour weeks and neither did similarly-situated employees. The employer argued that employees are not guaranteed hours and the AWW should not be based on the original offer. Nonetheless, the ALJ used the 60-hour workweek because the offer of employment was for 60 hours per week and the brief work history was consistent with the offer. ICAO upheld the ALJ’s Order and stressed that the ALJ properly utilized his discretion to determine the AWW. Moral of the Story: Employers should not promise a specific amount of hours to be worked in a job offer unless there is absolute certainty with the guaranteed number of hours.

 

Oooohhh Burn! ICAO recently determined that the higher statutory cap for disfigurement benefits is applicable for any type of burn scar and not just for facial burns and extensive scarring. Lambert v. Sturgeon Electric Co. and Zurich American, W.C. No. 4-987-545 (ICAO October 28, 2016). The ALJ awarded Claimant $6,000 in Disfigurement benefits for two burn scars on his arms that were 3.5 inches by 2 inches. Respondents appealed and argued that the disfigurement award should have been capped at $4,673.47 because the higher cap is only available for “extensive” scarring. ICAO reviewed the statute, which indicates that the higher cap applies to “extensive body scars or burn scars” and determined that the cap applies to both extensive body scars and any burn scars and upheld the award. Moral of the Story: If an employee is burned, the respondents will pay.

 

The phantom injury: ICAO recently found that in the case of an unexplained fall, Claimant still has the burden of proving that there was an actual injury. Magali-Tamayo v. Trioak Foods West and Travelers Insurance Company of Connecticut, W.C. No. 4-965-037 (ICAO October 28, 2016). Claimant was found lying on the floor at work with no recollection of how she got there. Claimant argued that her ongoing dizziness and cognitive issues were related to a head injury sustained during the fall. She argued that under the City of Brighton analysis, the event would be considered a neutral risk as an “unexplained fall” that would not have occurred but for the fact that she was at work. The ALJ concluded that Claimant failed to prove that she sustained any type of head injury that day that would be related to her symptoms. ICAO upheld the Order and found that if a claimant fails to prove that there is a nexus between the conditions of the employment and an actual injury, the claim will not be compensable regardless of the City of Brighton categories of risk analysis. Moral of the Story: If there is an unexplained fall, the claimant still has the burden to prove that there was an actual injury.

 

Buckle up. ICAO affirmed the ALJ’s determination holding Respondents did not meet their burden of proof in proving that failure to use a safety device should result in a 50% reduction in Claimant’s benefits. Shaikh v. Colorado Springs Transportation and Old Republic Ins. Co., W.C. No. 4-968-013 (ICAO April 15, 2016). Claimant was a taxi cab driver who was not wearing her safety belt when she was involved in a motor vehicle accident. Hearing was held over Respondents’ reduction of Claimant’s benefits by 50% due to her failure to use a safety device (the safety belt) provided by the employer. The ALJ determined that Respondents offered no persuasive evidence that Claimant would not have sustained the same injuries had she kept her safety belt on; thus, Respondents were not entitled to reduce Claimant’s compensation by 50%. ICAO upheld the ALJ’s determination and stressed that the mere occurrence of an injury and a claimed cause does not require the ALJ to draw the inference of causation. Moral of the Story: If an injured worker fails to use a safety device, Respondents must further prove that failure to use the safety device resulted in a worker’s injuries.

 

You choose, you lose. ICAO affirmed the ALJ’s decision that Claimant exercised his right to select a treating physician through his words and conduct. Williams v. Halliburton Energy Services and ACE American Ins. Co., W.C. No. 4-995-888 (ICAO April 18, 2016). Claimant was directed to Injury Care of Colorado for treatment of his work injury. Over thirty days after the injury, the employer provided Claimant with a designated provider list. Claimant hand wrote that he chose Injury Care of Colorado and he continued to receive conservative treatment. Once Claimant hired an attorney, he wished to change to his ATP, Dr. Miller. Respondents contested the change. The ALJ determined that Claimant signified through his words and conduct that he exercised his right of selection and chose Injury Care of Colorado as his ATP. ICAO upheld the ALJ’s Order and found there was substantial evidence to show that Claimant demonstrated by his actual conduct in undergoing treatment at Injury Care of Colorado that he had made his selection. Moral of the Story: A claimant’s conduct may demonstrate his choice in ATP after the right of medical selection passes to him.

 

DIMEs have a lot of weight, but the skinny is: DIMEs may not make up surgeries. In Serena v. ICAO, W.C. No. 4-922-344 (nsfp), Claimant sustained an industrial injury to both shoulders, and underwent bilateral shoulder surgery. The DIME physician provided Claimant with a 10% impairment rating for each shoulder for subacromial arthroplasty (joint replacement) surgery. Respondents sought to overcome the DIME. Respondents argued the DIME physician clearly erred in providing the 10% impairment rating for arthroplasty because the Claimant did not undergo this procedure. The ALJ determined Respondents failed to prove the DIME erred. The ALJ acknowledged Claimant did not undergo an arthoroplasty procedure. Nevertheless, the ALJ determined the DIME physician had discretion to provide additional impairment for “derangement” in accordance with the Division Impairment Rating Tips. Respondents appealed. The Court of Appeals acknowledged the DIME physician has discretion under the Impairment Rating Tips to provide impairment for derangement when an injured worker undergoes surgery. The Court of Appeals noted, however, that it was clear the DIME physician provided the 10% impairment under the mistaken belief the Claimant underwent arthroplasty. The Court of Appeals found the DIME physician erred. Moral of the Story: We recommend carefully reviewing DIME reports to ensure the physician is rating the correct body parts and properly following rating procedures.

legaLKonnection Firm Newsletter – November 2016

newsletter_lk-header-badge_5partners

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

Lee + Kinder LLC has been named a Denver Tier 1 firm in the field of Workers’ Compensation Law – Employers by U.S. News – Best Lawyers® “Best Law Firms” again for 2017.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Victory Lap

Member Tiffany Scully Kinder successfully defended Respondents’ challenge to a treating physician’s request for a Platelet Rich Plasma (PRP) injection. In Martinez v. Waste Management of Colorado, Inc. and Indemnity Insurance Company of North America, Claimant sustained an admitted injury to his right shoulder, requiring arthroscopic surgery to repair his rotator cuff. After extensive rehabilitation, Claimant continued to complain of pain and limitation in his right shoulder. His doctor requested prior authorization for a PRP injection as a final option. Respondents challenged the doctor’s request for prior authorization arguing that the Medical Treatment Guidelines do not generally recommend PRP injections for rotator cuff injuries. Respondents presented Claimant’s prior medical records, as well as medical expert deposition testimony at hearing before ALJ Jones. ALJ Jones found that Claimant failed to meet his burden of proof to establish that a PRP injection was a reasonably necessary or related medical benefit for his right shoulder injury.

 

Member Joseph Gren successfully won a dismissal of a full contest claim in Livingston v. United Parcel Service and Liberty Mutual Insurance. The claim involved an employee who alleged he suffered a right knee injury after an unloading roller fell on his knee at work. ALJ Patrick Spencer found that the Claimant could not establish that he sustained an injury or aggravation to his right knee. Furthermore, Mr. Gren utilized expert medical witness testimony, and employer witness testimony, to present evidence that Claimant’s torn ACL was preexisting and that the event at work did not cause or aggravate the knee injury. Mr. Gren was also able to elicit testimony from the surgeon, who recommended an ACL repair, that the injury was likely preexisting. ALJ Spencer credited the testimony of both physicians and the employer witnesses and determined that there was no persuasive evidence that Claimant required any medical treatment proximately caused by the work place incident. ALJ Spencer denied and dismissed the claim.

 

Of Counsel M. Frances McCracken prevailed on all issues endorsed for two claims consolidated for hearing before ALJ Turnbow in Hernandez v. Walmart Stores, Inc. In the first claim, Respondent sought to challenge the DIME’s impairment rating and the recommendation for maintenance medical benefits while Claimant sought to prove conversion. In the second claim, Respondent sought to prove Claimant was responsible for his termination, and Claimant sought to prove entitlement to TTD benefits. The ALJ found that Claimant failed to prove a permanent impairment beyond the shoulder joint, found that the DIME physician incorrectly included a non-work-related condition in the impairment rating, and found that no maintenance medical benefits were necessary. For the second claim, the ALJ found that Claimant was, in fact, responsible for termination, thus severing the causal connection between the injury and the wage loss.

Of Counsel M. Frances McCracken also successfully prevailed before ALJ Felter in Clark v. Walmart Stores, Inc. on the issue of the reasonableness of a Tramadol prescription as a maintenance medical benefit. After listening to the testimony of the parties’ witnesses, ALJ Felter found that indefinite prescriptions for Tramadol were not a reasonably necessary maintenance medical benefit. He ordered that Claimant’s treating physician enter into a Pain Contract, signed by Claimant, setting forth a reasonable schedule for weaning Claimant off of the Tramadol.

 

In Mitchell v. Walmart Stores Inc, Of Counsel John Abraham successfully challenged Claimant’s request for a general medical maintenance care award and a new Final Admission of Liability. The authorized treating physician found no maintenance care was reasonable, necessary and/or related, while the Division IME physician recommended a six-month gym membership as maintenance care. Respondent denied maintenance care pursuant to the ATP’s opinions on the FAL. Claimant argued that the gym membership was a maintenance medical benefit necessitating an admission for a general maintenance award. Respondent agreed to authorize a six-month gym membership though they maintained, contrary to Claimant’s request, that no additional maintenance care was reasonable, necessary and/or related. Mr. Abraham presented credible medical evidence demonstrating that the substantial evidence did not support a general medical maintenance award and further that there was no authority to support a general award of maintenance care simply because a gym membership had been agreed to by the parties.

 

Associate Matt Boatwright was successful in two recently litigated claims. In Schilling v. United Parcel Service and Liberty Mutual Insurance, Claimant sought conversion of a scheduled injury to his upper extremity to a whole person impairment rating for ongoing complaints of pain in the neck, upper back, and residual symptoms from a surgery. The ALJ found that Respondents’ medical expert testified credibly and persuasively that no symptoms at that time would have reasonably been considered related to the original injury. The ALJ found the injury appropriate under the schedule of ratings and denied the whole person conversion.

Mr. Boatwright also successfully defended a full contest claim for benefits arising from a foot injury alleged to the be result of an occupational disease. DeHerrera v. United Parcel Service and Liberty Mutual Insurance. Claimant claimed that he had sesamoiditis, a condition involving inflammation of the foot, as the result of his job duties over time. The condition ultimately required surgery. The ALJ found that Respondents’ medical expert testified credibly that the particular condition for which Claimant sought compensation would not have been caused by repetitive activities, but would more likely than not be the result of an acute injury. Based upon this medical opinion, the ALJ denied and dismissed the claim.

 



NEW OVERTIME RULES
The Department of Labor’s (“DOL”) new overtime rules take effect December 1, 2016, and employers should be reviewing and modifying their compensation and payroll practices in response. Here is a link to the new regulations adopted by the Department of Labor:
http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=28355

As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans.

Click here to continue reading this article.

 


Cases You Should Know

Tomayto, tomahto: In Dalton and Archer-Reid v. Pace Joint Interests-Denver, LLC and Chiropractic Healthcare Solutions, LLC, W.C. Nos. 4-977-664 & 4-977-800 (September 22, 2016), while addressing a unique factual scenario involving two alleged employers, ICAO clarified the concepts of joint employment, dual employment, and loaned employment. ICAO noted neither Colorado appellate courts nor ICAO previously have adopted or applied Larson’s distinct classifications of “joint employment” or “dual employment.” Rather, these courts have used the terms interchangeably. Larson’s Workers’ Compensation distinguishes joint employment from dual employment:

Joint employment occurs when a single employee, under contract with two employers, and under simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workmen’s compensation.

Dual employment occurs when a single employee, under contract with two employers, and under the separate control of each, performs services for the most part for each employer separately, and when the service for each employer is largely unrelated to that for the other. In such a case, the employers may be liable for workmen’s compensation separately or jointly, depending on the severability of the employee’s activity at the time of injury.

ICAO also noted that, under the Colorado Workers’ Compensation Act, a loaned employee and an employee are not the same. C.R.S. §8-41-303 provides: “Where an employer . . . loans the service of any of the employer’s employees . . . to any third person, the employer shall be liable for any compensation thereafter for any injuries or death of said employee . . . unless it appears from the evidence that said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom the employee was loaned.” Moral of the Story: Do not use the terms joint employment, dual employment, and loaned employment loosely—these terms embody distinct concepts.

 

An indirect green light on appeals from the General Assembly: In Huston v. Allcable, Inc., W.C. No. 4-997-535 (October 5, 2016), the ALJ ordered a change of authorized treating physician pursuant to § 8-43-404(5)(a)(VI), C.R.S. and Respondents appealed. ICAO considered whether §8-32-301(2) bars review of an order requiring a change of physician since such an order arguably does not require payment of a benefit. In prior cases, ICAO found orders granting a change of physician not reviewable because authorization itself is not a benefit. ICAO departed from its prior position, citing recent statutory changes which compel Respondents to pay for a minimum of one appointment with the new ATP after a change of physician pursuant to §8-43-404(5)(a)(VI). Since the change of physician statute now requires payment by Respondents, an order granting a change of physician is appealable. Moral of the Story: As a result of recent statutory changes, C.R.S. §8-43-301(2) no longer bars appeal of an order granting a change of physician.

 

Short and sweet: adjudication on the pleadings: In Adams v. Heart of the Rockies, W.C. No. 4-947-7301, a dispute arose as to the Respondents’ entitlement to recover an overpayment. The parties agreed to forego a hearing and request an Order on the pleadings. The ALJ issued a Summary Order in favor of the Respondents, which did not address the Claimant’s arguments. The Claimant appealed, and the ICAO concluded, based on the Summary Order, that the ALJ implicitly found the Claimant’s factual allegations unpersuasive. The ICAO noted, though not in dispute, that a request for a full findings of fact under §8-43-215, C.R.S. is not available where a summary order is issued on the pleadings without a hearing. Moral of the story: Where issues are adjudicated on the pleadings, you may not request full findings of fact.

 

If you’re fired, allege a worsening of condition: In Evans v. JC Penny, W.C. No. 4-904-748-04 (September 19, 2016), the ALJ found that the Claimant was responsible for her termination in April of 2014. However, the ALJ also found that the Claimant had a worsening of condition in October of 2014. The ALJ, in his Order, concluded that the Claimant’s entitlement to TTD benefits was severed by the for-cause termination in April 2014, and found that a causal relationship between wage loss and injury was reestablished as of Claimant’s worsening of condition in October of 2014. On appeal, ICAO concluded that the ALJ’s findings were supported by substantial evidence and his conclusions were supported by the seminal case of Anderson v. Longmont Toyota. Moral of the story: Entitlement to temporary disability benefits may be reestablished by a showing of a worsening of condition, despite the fact that the claimant was responsible for prior termination.

 

A final order is a final order… unless it’s not: In Ketiku v. Integrated Healthcare Staffing, W.C. No. 4-924-142-09, a Pro Se Claimant failed to file a timely Petition to Review. The Claimant filed multiple subsequent applications for hearing, one of which sought reopening based on mistake. Specifically, the Claimant alleged that she was given the “wrong documentation” for her appeal and that she was denied reasonable assistance to mitigate a hearing disability. The ALJ struck the Claimant’s Application For Hearing, noting that the prior Order denying compensability was final, as it had not been appealed. On review, ICAO remanded the case to the ALJ, concluding that the Claimant’s allegations could constitute a basis for mistake of law, warranting a collateral attack on the original Order. Moral of the Story: Even a claim closed on a final order, no longer subject to review, may be reopened where a pro se claimant alleges the prior ALJ made a mistake of law.

 

Risky Business: In Cross v. Genuine Parts Company, W.C. 4-961-489-02 (September 20, 2016), the Industrial Claim Appeals Office affirmed the decision of the Administrative Law Judge (ALJ) ordering Respondents liable for arm/wrist surgery for Claimant’s compensable injury. Respondents’ appeal argued that Claimant’s need for surgery arose due to an aggravation of her condition while working for a new employer. The panel affirmed the ALJ’s finding and reasoned, citing University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001), that the concept of assigning liability for medical benefits to an employer “on the risk” for insurance coverage would not apply in a case where the prior injury had an accidental cause and the subsequent injury was an occupational disease, as was the case here. Instead, the ordinary rules of causation and apportionment extend to medical benefits because there was no evidence in the record stating that the original work injury was an occupational disease. The panel affirmed the ALJ’s decision that the proposed surgery was caused by Claimant’s original work injury and not while working for a subsequent employer. Moral of the story: For the “last injurious exposure” doctrine to apply, the initial work injury and subsequent aggravation must be occupational injuries. Liability for medical expenses is on the employer who is on the risk for insurance coverage as of the date the charge for medical services was incurred.

legaLKonnection Firm Newsletter – October 2016

Lee + Kinder LLC

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

namwolf2016_web
Member Joshua Brown  and Of Counsel John Abraham recently attended the annual NAMWOLF Conference in Houston, TX on behalf of the Firm. This is NAMWOLF’s decorated and highly anticipated yearly event that brings together all NAMWOLF firms, along with numerous general counsel from companies across the country. On behalf of the Firm, Mr. Brown and Mr. Abraham met with general counsel from various countries, as well as networked with other NAMWOLF firms across the country. Additionally, the Firm was represented at the conference’s firm expo pictured left.

 

 


Victory Lap

tiffany-scully-kinder_lee-kinder-partner-attorney1Member Tiffany Scully Kinder successfully won dismissal of a full-contest claim in Carias v. Bimbo Bakeries USA, Inc. and Indemnity Insurance of North America in front of ALJ Laura Broniak. Claimant alleged she injured her abdomen area after being struck by a plastic basket. ALJ Broniak found a plastic basket striking Claimant’s abdominal area would not have enough force to cause trauma. Further, ALJ Broniak found Claimant’s change in job duties could not cause an injury, or otherwise aggravate or exacerbate Claimant’s pre-existing abdomen symptoms. The ALJ denied and dismissed the claim.

 

KGTnewsMember Karen G. Treece successfully defeated Claimant’s claim for conversion in Newton v. True Value and Zurich American Insurance Company. In this case, the claimant crushed his left hand and wrist between two forklifts. He was found at MMI but provided two different impairment ratings. Dr. Kawasaki first found claimant had a 25% scheduled impairment rating but Dr. Adams later determined Claimant had a 25% whole person impairment rating due to CRPS. Respondents admitted for the 25% scheduled rating. Claimant filed an application for hearing seeking conversion to the 25% whole person rating as found by Dr. Adams. Claimant argued Respondents were bound to admit to Dr. Adams’ higher impairment rating. Ms. Treece drew testimony from Dr. Adams that claimant’s impairment rating was the first one she had performed, only did so after she saw Dr. Kawasaki’s impairment rating, and thought it was inadequate. Dr. Striplin credibly testified that Dr. Kawasaki’s impairment was more appropriate as claimant sustained an injury to his hand and wrist, which is evaluated under the schedule. Claimant was properly evaluated and found negative for CRPS. If the claimant had had CRPS, the AMA Guides permit the evaluator discretion to provide a schedule or whole person rating. Claimant’s claim for conversion was denied.

 

ST_newsOf Counsel Sheila Toborg successfully defended two separate appeals brought by claimants, in Odell Walker v. Raytheon Co. and Liberty Mutual and again in Eduardo Garcia v. The Home Depot. In Walker, Claimant alleged a cervical disc herniation and possible shoulder injury while installing computer systems in Abu Dhabi. Respondents denied the claim on the basis that Claimant had an extensive history of similar symptoms predating the alleged injury and that the mechanism of injury would not result in any injury. Respondents presented Claimant’s prior medical records and Dr. Allison Fall’s testimony at hearing before ALJ Timothy Cain and won. Claimant appealed. ICAO affirmed ALJ Cain’s Order, concluding that Claimant failed to prove by substantial evidence that his symptoms were causally related to a work injury.

In Garcia, Claimant suffered admitted labral tear of the right hip, and his treating physicians opined that he could not undergo hip surgery until he lost sufficient weight. Claimant’s treating physicians recommended bariatric surgery, which Respondent denied as not reasonably necessary in light of less-invasive alternatives. Following a hearing before ALJ Michelle Jones in which both parties presented medical expert testimony, ALJ Jones found that the bariatric procedure would not result in a much faster rate of weight loss than dieting and nutrition programs, and that bariatric surgery was not reasonably necessary in light of the less-invasive alternatives. Claimant appealed the Order. ICAO affirmed ALJ Jones’ Order, concluding that her findings were supported by substantial evidence and that her legal conclusions were sound.

 

frank2In Ortiz-Avila v. Spacecon and AIG, Of Counsel Frank Cavanaugh was successful in arguing that penalties were not warranted for an alleged improper denial of medical benefits pursuant to a request for prior authorization under. W.C.R.P. 16, non-payment of medical bills, and an unreasonable delay or denial of benefits. ALJ Kimberly Turnbow found that the W.C.R.P. 16 prior authorization requests were handled properly and reviewed by a physician with the necessary qualifications to review the medical care at issue. Notably, exposure on the asserted penalties was over $1 million. The ALJ found and concluded that penalties were not factually supportable.

 

 

FranNews

Of Counsel Frances McCracken was successful in challenging Claimant’s request to reopen her claim on the basis of a worsening of condition in Hays v. Walmart and Illinois National Insurance Co. Respondents presented medical evidence that Claimant’s condition had remained stable since being placed at MMI. ALJ Keith Mottram found that there was no credible evidence of recommended treatment which would be considered anything more than maintenance care. Additionally, while the ALJ found that the scheduled injury at issue was appropriate for conversion to a whole person impairment rating, the converted rating was actually less than the full amount of the scheduled impairment due to Claimant’s AWW, resulting in less exposure for PPD than if the injury had remained under the schedule of injuries.

 

jmanewsOf Counsel John Abraham successfully won dismissal of a full-contest claim in Ineguez-Zamora v. Dave and Busters and Indemnity Insurance Company, in from of ALJ Michelle Jones. Claimant alleged a back injury in February of 2016. Mr. Abraham utilized expert medical opinions to point out inconsistencies in Claimant’s mechanism of injury. Mr. Abraham also introduced testimony from Claimant’s manager with his current employer. Claimant’s supervisor credibly testified that Claimant digs ditches and constantly moves pipes weighing 25-35 pounds. ALJ Jones found that there was no objective medical evidence that Claimant sustained a workplace injury. The ALJ further found Claimant not to be credible. The ALJ denied and dismissed the claim.

Of Counsel John Abraham also successfully defended against a Disfigurement claim in Costa v. Walmart and Claims Management, Inc. Claimant alleged in discovery that she had disfigurement from swelling due to her injury. Respondents contended there was no disfigurement. Counsel for Respondents appeared at hearing in person. Claimant was present without her attorney and admitted, under oath, that she had no disfigurement related to the work injury.

 


LetsBeFrankW

DEPARTMENT OF LABOR REPORT

In October 2015, National Public Radio (NPR) and ProPublica did a report over the differences between the states workers’ compensation laws. The report found significant differences in the amount of benefits and type of benefits in each states workers’ compensation system. The report focused heavily on recent attempts by states to allow employers to opt-out of workers’ compensation. As a result, on October 5, 2016, the Department of Labor issued a 43-page report over the state of the patchwork of workers’ compensation laws across the country.  Click here to continue reading this article


Cases You Should Know

Cases You Should Know
Where’s the Mistake: In Defrece v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), Claimant appealed an ICAO order which affirmed the ALJ’s order denying his request to reopen his claim. The claim was closed on an FAL, when Respondents filed an Application for Hearing regarding overpayments. Claimant filed a Response petitioning to reopen his claim on an alleged mistake in the employer’s AWW calculation. Requests to reopen based on mistake of law require a two-step analysis: first, the ALJ must determine whether a mistake was made; and second, if there was a mistake, the ALJ must assess whether that mistake justifies reopening a closed claim. Claimant’s argument was that the ALJ erred when he found that Respondent’s calculation of the AWW was not the kind of mistake for which the issue of AWW could be reopened. The Court upheld the ICAO’s ruling to uphold the ALJ’s order that no mistake had occurred in calculation of Claimant’s AWW. Moral of the Story: Since an ALJ has wide discretion regarding the method of AWW calculation, mere disagreement with the ALJ’s method does not constitute a mistake and is not a basis for reopening.

 

A heavy burden to bear: In Salgado v. The Home Depot, W.C. No. 4-975-288 (August 23, 2016), the ICAO overturned the ALJ’s denial of TTD benefits on the basis that Respondents had failed to carry their burden of proof that Claimant was responsible for his termination. ICAO held that Claimant was not required to establish work-related wage loss prior to termination in order to request temporary disability benefits after termination. Rather Respondents had the burden to prove that Claimant’s wage loss after termination was not related to the compensable injury, pursuant to C.R.S. § 8-42-105(4)(a). ICAO concurred with the ALJ’s findings that Claimant had work restrictions prior to termination which established work-related disability. This shifted the burden to Respondents to establish that Claimant’s responsibility for termination was the cause of his consequent wage loss. Moral of the Story: If Claimant has work restrictions at the time of termination, it is Respondents’ burden to show Claimant was at fault for termination in order to terminate TTD.

 

The Rules Were Meant to Be Broken: In Anthony Lucero v. Wyndham Hotel & Resorts and Zurich North America Insurance, W.C. 40705-926-02 (ICAO August 30, 2016), Claimant requested additional time to file a Petition to Review an Order Granting Respondents’ Motion for Summary Judgment. Claimant subsequently filed his Petition to Review outside of the time frame set forth in the Order he sought to appeal, but within the extension of time he requested, and his Petition to Review was denied as being untimely filed. The Court found that a rule and a statute conflicted as to whether the Claimant was permitted to request an extension of time to file a Petition to Review, and that the statute did not allow for an extension of time. Despite this, the Court invoked the “unique circumstances” exception to find that since Claimant had complied with the conflicting Court Rule allowing for an extension of time to file a Petition to Review, Claimant’s Petition to Review was timely filed and could be addressed by the court. Moral of the Story: There can be exceptions to rules that are invoked in the interests of fairness.

legaLKonnection Firm Newsletter – September 2016

Lee + Kinder LLC

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.
LinkedIn

In the News
PWC_GolfLee + Kinder LLC had a great showing at the 2016 Professionals in Workers’ Compensation golf tournament with 4 lawyers in attendance. Member Katherine Lee and Of Counsel Frank Cavanaugh played with different foursomes. Member Joseph Gren and Associate Matt Boatwright manned the Lee + Kinder sponsored golf hole number 17 wherein a lucky hole-in-one would win $10,000.00. Unfortunately, no one aced the hole, but a great time was had by all.

 


Victory Lap

FranNewsIn Manuel Ledoux v. Walmart, Of Counsel Fran McCracken, defeated Claimant’s assertion that he sustained a cumulative trauma injury to his right elbow and wrist through repetitive work activities. Ms. McCracken successfully persuaded the ALJ to place significant weight on the steps provided by the Medical Treatment Guidelines (MTG) to formulate causation for cumulative trauma conditions. The ALJ was not persuaded by Claimant’s expert, Dr. Rook, because he failed to explain how Claimant’s work activities fulfilled the criteria needed to develop a cumulative trauma disorder.

 

mbb-news_115x125Associate Matt Boatwright successfully won dismissal of a full contest claim in Henry Leal v. United Parcel Service and Liberty Mutual Insurance. Claimant alleged that he had suffered a low back injury from twisting while driving a work vehicle. Claimant later alleged a subsequent work-related aggravation and sought additional treatment. The ALJ found that the described mechanism of injury was not sufficiently work-related to find the claim compensable and, notwithstanding, that Claimant was not credible as a medical historian. The ALJ denied and dismissed the claim.


mccracken1

FranNewsOSHA Injury and Illness Reporting Requirements
The Occupational Safety and Health Administration (OSHA) requires many employers with ten or more employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted). OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data. Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically. Click here to continue reading this article

 


Workers’ Compensation Rules of Procedure Changes – Effective 9/14/16

extranews_red-webThe Division of Workers’ Compensation recently changed and revised several Rules. These changes became effective September 14, 2016. Employers and carriers participated in public comment, voicing concerns over this change since it will certainly create over-payments. Frank Cavanaugh of Lee + Kinder, LLC participated in these public comments on behalf of the Colorado Self-Insured Association.

Several changes are more substantive than others and track statutory amendments adopted by the legislature in the last session. For example, changes to Rule 5-5 regarding the filing of final admissions of liability will affect day-to-day claims handling. Rule 5-5 now requires the physician’s narrative report along with the M164 and measurement sheets be attached to the final admission of liability. In addition, this Rule now requires that the final admission of liability state a position on maintenance medical benefits, making specific reference to the medical report including the name of the physician and the date of the report. Failure to properly abide by these requirements may void a final admission of liability and potentially lead to imposition of penalties by the Director and/or audit issues. Rules 8-6 and 8-7 also track legislative changes over requests for a change of physician. An original treating physician’s role remains in place and does not terminate until there is an initial visit with the new physician . Further, a request for change of physician and a response to the request must now be on a specific form, WC197. Please also be aware that Rules 16 and 18 are undergoing changes and have not yet been finalized. We will apprise you of these additional changes once they occur. For a detailed review of all changes to the WCRP, please click on the link below.

Click here to read the changes to Rules 1-9


Cases You Should Know

Who said lawyers can’t do math? In Richard Hutchison v. Pine Country, Inc., W.C. No. 4-972-492 (July 29, 2016), ICAO upheld the ALJ’s Order that required Respondents to pay one third of the cost of medical and temporary disability benefits because Claimant’s knee arthritis and need for a total knee replacement was equally caused by three factors including genetics, age and weight, and work tasks. ICAO held that Section 8-42-104 (3), which states that medical and temporary disability benefits shall not be reduced based on a previous injury, did not apply because the occupational disease of osteoarthritis did not involve a “previous injury.” Instead, the disability was the aggravation of the arthritis, which was equally attributed to the three different factors.
Moral of the Story: In cases of occupational diseases, the employer’s liability for medical and indemnity benefits is limited to the extent the work activities acted on the occupational disease to create the disability.

 

A DIME called by any other name is still a DIME: In Sean F. Clark v. Mac-Make-Up Art Cosmetics, W.C. No. 4-858-859 (August 3, 2016), claimant sustained an industrial back injury on March 5, 2010. In a respondent IME, Dr. Pitizer opined the claimant was at MMI with a 10% whole person impairment rating. Afterwards, respondents sent the ATP a letter asking whether the claimant was at MMI. The ATP did not respond, and respondents filed an application for a 24-Month DIME. At the DIME, Dr. Hattem noted the ATP placed the claimant at MMI on January 28, 2014, with a 34% whole person rating. Dr. Hattem agreed with the ATP’s date of MMI, but provided claimant with a 15% impairment rating. Claimant requested a hearing to strike the DIME report as the ATP, unknown to either party, had placed claimant at MMI before the 24-Month DIME was requested. The parties stipulated that neither party received a copy of the ATP’s MMI report before the 24-Month DIME. The ALJ determined respondents complied with the 24-Month DIME requirements set forth section 8-42-107(8)(b)(II) of requesting the ATP’s opinion whether the claimant was at MMI, and another physician opining the claimant was at MMI. Therefore, the ATP’s failure to timely disclose their report that the claimant reached MMI did not serve to frustrate the DIME process. Claimant appealed. ICAO affirmed. Of importance, the Panel clarified that 14 days from the date of service of a letter to the ATP regarding MMI was a reasonable amount of time to wait before respondents could request a 24-Month DIME.
Moral of the Story: Before requesting a 24-Month DIME, respondents must request from the ATP whether the Claimant is at MMI, and have an opinion from another physician the claimant is at MMI.

 

The perpetually open case of medical only claims: In Michael Thibault v. Ronnie’s Automotive Services, W.C. No. 4-970-099, (August 2, 2016), the claimant injured his right hand and index finger. Claimant received medical treatment and was placed at MMI with no impairment. Respondents filed an FAL denying indemnity and maintenance medical benefits. The claimant did not object to the FAL. Afterwards, the claimant sought to reopen the claim. The ALJ determined the claimant’s condition worsened after the FAL was filed and reopened the claim. Respondents appealed and argued claimant failed to establish his condition had worsened, and the claimant only sought to reopen the claim because he failed to timely object to the FAL. ICAO held the matter was not closed by the FAL because claims that do not admit for temporary or permanent benefits cannot be closed through an FAL. Therefore, the claimant did not need to meet the requirements to reopen the claim, and was only required to prove the medical treatment was reasonable, necessary, and related to the industrial injury, which he proved.
Moral of the Story: WCRP 5-5(A) recently changed effective 09/14/16 to allow for final admissions on medical-only claims. The FAL should be filed with a narrative report and appropriate worksheets.

 

Race you to the DIME in under 6 months: In Carol Lopez v. The Evangelical Lutheran Good Samaritan Society and Sentry Insurance, W.C. No 4-972-365 (ICAO August 16, 2016), ICAO reiterated the Colorado Supreme Court holding that a Claimant can qualify for a Table 53 specific spine disorder and impairment rating even if the Claimant reached MMI in less than 6 months of treatment. According to the AMA Guides, a Table 53 disorder is categorized by evidence of medically documented pain and rigidity for over six months. In this case, the DIME took place over a year after Claimant’s original back injury. The DIME physician opined that Claimant reached MMI one month after the injury and provided a 15% whole person impairment rating based on the Table 53 disorder and the loss of range of motion. Respondents argued that there could not be a Table 53 diagnosis because there was no evidence of pain for at least six months prior to the date of MMI. However, ICAO held that the impairment rating was appropriate based on the date the DIME took place. It reasoned that, at the time of the DIME, there was a rateable injury pursuant to Table 53 because there had been over a year of reported pain. ICAO held that the date of MMI does not affect the analysis of whether there is a Table 53 diagnosis.
Moral of the Story: If a Claimant reaches MMI for a back injury in less than 6 months, he or she could still receive a rating for a Table 53 disorder unless the DIME is completed in less than 6 months from the date of injury.

 

It’s not the claimant’s fault he got a DUI. In Brian Iten v. Meadow Mountain Plumbing and Pinnacol Insurance, W.C. No. 4-975-033 (ICAO August 15, 2016) the claimant was employed as a plumber and his job required him to drive a company van to job sites. Claimant injured his low back at work on February 11, 2015. Respondents admitted for ongoing temporary total disability benefits since the date of injury. On February 25, 2015, claimant was arrested for a DUI while driving his personal vehicle. Claimant contested the DUI charge and ultimately entered into a plea agreement. Claimant did not lose his driver’s license as a result of the DUI. Employer terminated the claimant as company policy required employees to have valid driver’s license and that if the insurance carrier refused to cover an employee, the employee could be terminated. Respondents filed a Petition to Suspend TTD benefits due to termination for cause pursuant to C.R.S. § 8-42-105(4)(a). The employer provided conflicting testimony that the claimant was either terminated because he lost his driver’s license as a result of the DUI or the insurance carrier indicated they would not insure the claimant due to the DUI charge. The ALJ did not find the testimony of the employer witnesses credible. The ALJ found that when the claimant was able to maintain his driver’s license, he reasonably believed he complied with the employer’s driving policy. Therefore, the claimant did not commit a volitional act making him responsible for his termination. ICAO affirmed.
Moral of the Story: To successfully assert termination for cause, respondents must prove the claimant violated a specific company policy and that his or her actions were volitional, which means the employee exercised a degree of control over the circumstances resulting in the termination.

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