Changes to Rule 16 Effective January 1, 2018

Everyone’s favorite Rule is getting a makeover effective January 1, 2018.  There are several minor changes to the Rule that will impact prior authorization requests and ensure that a second opinion is timely obtained by the payer.  The major change that will take effect is to Rule 16-11(E) and the elimination of the option for the payer to request a hearing within the time-frames set forth in Rule 16-11(A) or 16-11(B).  The Division hopes to streamline the payer’s ability to contest prior authorization requests and ensure that a second opinion is obtained in a timely manner.  Rule 16 was previously revised and hoped to reduce overall litigation; however, the changes to the Rule contained some ambiguities and loopholes further ensuring that clarification was needed in 2018.

 

The current form of Rule 16-11(E) indicates:

Failure of the payer to timely comply in full with the requirements of section 16-11(A) or (B), shall be deemed authorization for payment of the requested treatment unless:

 

(1) A hearing is requested within the time prescribed for responding as set forth in section 16-11(A) or (B) and the requesting provider is notified accordingly.  A request for hearing shall not relieve the payer from conducting a medical review of the requested treatment, as set forth in section 16-11(B); or

 

(2) The payer has scheduled an independent medical examination (IME) within the time prescribed for responding as set forth in section 16-11(B).

 

This portion of the Rule took effect January 1, 2017 and is effective through December 31, 2017.  The Rule allows the payer to request a hearing within 7 business days of the receipt of the request for prior authorization.  However, it does not specify “when” the payer should conduct a medical records review.  It only indicates that the obligation is there for the payer to conduct one.  The Rule in subsection (2) also allows for an IME to be scheduled within 7 business days but does not delineate when the IME should take place.  For the claimant, significant delay is possible in waiting for the second opinion from the IME physician.  Theoretically, a payer could “schedule” an IME within 7 business days but have the IME take place at a much later date due to the availability of the IME physician.

 

The major changes that will be effective on New Year’s Day specifically indicate what a payer can due to contest a request for prior authorization, (if a medical records review is not possible), while taking into consideration the timeliness of obtaining the opinion for the claimant.

 

The new version of Rule 16-11(E) indicates:

Failure of the payer to timely comply in full with section 16-11(A), (B), or (C) shall be deemed authorization for payment of the requested treatment unless the payer has scheduled an independent medical examination (IME) and notified the requesting provider of the IME within the time frame prescribed for responding set forth in section 16-11(B).

 

(1) The IME must occur within 30 days, or upon first available appointment, of the prior authorization request, not to exceed 60 days absent an order extending the deadline.

(2) The IME physician must serve all parties concurrently with his or her report within 20 days of the IME.

(3) The insurer shall respond to the prior authorization request within five business days of the receipt of the IME report.

(4) If the injured worker does not attend or reschedules the IME, the payer may deny the prior authorization request pending completion of the IME.

(5) The IME shall comply with Rules 8-8 to 8-13 as applicable.

 

 

One aspect of the Rule that must be remembered by the carrier is the “first available appointment” portion of scheduling the IME.  As is usually the case, an IME physician will have a busy schedule and may not have an appointment within 30 days.  While an IME can still be scheduled up to the 60-day deadline with a physician of the carrier’s choice, this portion of the Rule must be complied with strictly so as to prevent delay in obtaining the second opinion for the claimant.

 

Another portion of the Rule that may create certain “arguments” is the duty on the IME physician and the carrier to have the report concurrently served on the parties within 20 days of the IME.  Although the Rule is silent as to what happens if the report is not concurrently served, or is late, the Rule still contains the original provision that a failure to comply is deemed authorization of the particular procedure.  The Rule appears to create an obligation on the payer to ensure that the IME physician is timely with his/her report.

 

Lastly, an ALJ always has the ultimate jurisdiction to determine whether a procedure is reasonable, necessary, and/or related to a claim since it will always involve a finding of fact.  However, there is also established case law indicating that a failure to timely comply with Rule 16 and/or a failure to timely authorize a recommended procedure from an authorized treating physician could be a continuing penalty situation in which an ALJ could find that the carrier acted unreasonably and that penalties should be awarded from the date of the request through the date of authorization.

 

It is always best to understand the particular changes to the law well in advance of when they take effect.  For any questions regarding the upcoming changes to Rule 16 and their application to a particular set of facts, please contact any of the attorneys at Lee + Kinder, LLC.

 

LEGISLATIVE UPDATE — FIRST RESPONDERS’ COVERAGE FOR PTSD

2017 saw more legislative action related to workers’ compensation than Colorado has seen for the past few years.  Three bills were introduced in the Colorado Legislature and all three passed.  One of the newly enacted bills, HB 17-1229, was enacted on June 5, 2017, with an effective date of July 1, 2018 (subject to exception)[1].  It amends section 8-41-301, C.R.S., relating to the conditions of recovery for claims of mental impairment.  Under the current law, an employee can file a “mental only” (i.e., there is no associated physical injury) claim only as a result of employment-related situations consisting of a “psychologically traumatic event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances”.   The claimed mental impairment must be proven by the testimony of a licensed physician or psychologist.  Strict judicial interpretation of this statutory language resulted in the de facto disqualification of police officers, firefighters, EMTs and other first responders from the receipt of mental impairment benefits for PTSD claims because violent and bloody incidents, including the deaths of others, were deemed to be within their “usual” work experience.   While it is true some of these professionals do encounter repeat exposure to horrific events as part of their typical work experience without impact, others struggle to secure the coverage and psychiatric care they need to help them deal with gruesome work situations, which might be “expected” in their occupation, but are still somewhat atypical.  Section 8-41-301, C.R.S., as amended, allows workers to claim workers’ compensation coverage for PTSD in a limited set of circumstances, based on repeated exposure to violent incidents.  It also retains the statute’s existing requirement that, outside the few exceptions that apply primarily to peace officers and first responders, mental impairment coverage is implicated only when an incident is outside a worker’s usual experience.  As before, a mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. To qualify for mental impairment benefits under the amended statute, the worker must be diagnosed with PTSD by a licensed psychiatrist or psychologist following exposure to one or more of the following events:

 

  • The worker is the subject of an attempt by another person to cause the worker serious bodily injury or death through the use of deadly force, and the worker reasonably believes the worker is the subject of the attempt;
  • The worker visually witnesses a death, or the immediate aftermath of the death, of one or more people as a result of a violent event; or
  • The worker repeatedly visually witnesses the serious bodily injury, or the immediate aftermath of the serious bodily injury, of one or more people as the result of the intentional act of another person or an accident.

 

These changes to the mental impairment statute achieve a balance that is fair to first responders, while maintaining appropriate limitations on coverage for others in nonviolent occupations, and protecting the interests of employers and insurers.  The act applies to injuries sustained on or after its effective date, July 1, 2018.

If you have questions about the recently enacted workers’ compensation legislation, or any questions about workers’ compensation, please contact Lee + Kinder LLC.

 

[1] This act takes effect July 1, 2018; except that, if a referendum petition is filed pursuant to the applicable state constitutional provision, then the act will not take effect unless approved by the people at the November 2018 general election.

legaLKonnection Firm Newsletter – September 2017

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Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm, as well as in the insurance defense community.

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In the News

 

 

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

 

 

 

Lee + Kinder LLC sponsored the Hole-in-One competition at the PWC Annual Golf Tournament. The event was held at the Raccoon Creek Golf Course and was well attended. Members Katherine Lee and Joshua Brown played on teams as well as Of Counsel Frank Cavanaugh. Amy Braddy, on Katherine Lee’s team, nailed an Eagle on a par 4 from 130 yards out. They used Amy’s drive, and she hit her second shot – so the eagle was truly all Amy. Way to go team! We will certainly be securing Amy Braddy for our PWC golf team next year! Congratulations to all the players and to the PWC for putting on a great event.


Victory Lap

Of Counsel M. Frances McCracken successfully defended Claimant’s request for arthroscopic shoulder surgery in Johnson v. Family Dollar Stores of Colorado, Inc., W.C. 5-011-944-01. Claimant sustained admitted injuries to her right foot, right second toe, and left wrist. Three months after the initial injury, Claimant began complaining of left shoulder pain. Claimant was diagnosed with a labral tear and arthroscopic surgery was recommended. The ATP and Claimant’s expert opined that the Claimant’s worsening shoulder complaints were the result of “disuse” from the work-related left wrist surgeries. Claimant had a prior left upper extremity work-related injury from January 2007. Respondents’ expert opined that Claimant’s 2008 MRI scan and the 2017 MRI scan of the left shoulder were virtually identical. Medical records also showed that Claimant had chronic left shoulder problems that predated the current work-related incident. The ALJ concluded that Claimant failed to prove by a preponderance of the evidence that the left shoulder arthroscopy was reasonable, necessary and related to the admitted industrial injury. Claimant’s claim for left shoulder surgery was denied and dismissed.

 

In a second win, Of Counsel M. Frances McCracken , successfully appealed an ALJ’s Order requiring Respondents to pay for Claimant’s emergency medical treatment in Madonna v. Walmart, W.C. No. 4-997-641-02, ICAO August 21, 2017. Claimant was at work lifting a case of oil when a customer startled him. He turned sharply and felt a sharp pain in his chest with numbness into his left arm. Claimant’s supervisor called an ambulance fearing that Claimant was having a heart attack. Claimant had a long history of cervical spine pain with multiple surgeries in 1999. The ALJ determined that Claimant failed to prove he suffered a work-related injury, as his condition and need for surgery existed prior to the date of the alleged injury. However, the ALJ ordered that Respondents were liable for the emergency medical treatment the Claimant received on the day of the incident and his hospitalization the following two days. On appeal, Respondents argued that C.R.S. Sec. 8-42-101(1)(a) cannot be expanded to render them liable for “non-injury related emergency medical care.” ICAO held that the ALJ found that Claimant had a bona fide emergency while at work, but the emergency was not caused by the work incident and was solely caused by his pre-existing condition; thus, since there was no causal relationship between Claimant’s need for medical treatment and the work incident, Respondents were not liable. The ALJ’s Order requiring Respondents to pay for emergency medical treatment was reversed.

 

Associate Matt Boatwright successfully challenged Claimant’s attempt to relate an ankle injury and requested surgery to her admitted claim for a back injury in Gurrola v. United Parcel Service, W.C. No. 5-029-464. Claimant suffered an aggravation of a preexisting low back injury in May of 2016 and had subsequent complaints of radicular symptoms into the leg. Claimant rolled her ankle in January 2017 and suffered an injury for which surgery was requested. Claimant claimed that she injured her ankle because of leg weakness related to the admitted back injury. The ALJ found that there was insufficient evidence of a causal relationship between the ankle condition and the low back injury. The ALJ therefore denied and dismissed the request for authorization of surgery for the ankle.

 


OBAMA-ERA FAIR LABOR STANDARDS ACT OVERTIME RULE DEFEATED

Last year, the Department of Labor instituted a new overtime rule under the Fair Labor Standards Act (FLSA), which required employers to pay a little more than $47,000 annually to qualify under the white-collar exemptions. This rule had previously been in limbo given that a Texas Federal District Court judge prevented its enforcement last Thanksgiving. The same judge has now recently struck down the rule permanently. Click here to continue reading this article.

 


Cases You Should Know

Be Specific: In Guzman v. Q3 Contracting, Inc., the Respondents sought review of an Order that determined the Claimant had overcome the DIME’s finding that he was at MMI. (W.C. No. 4-955-901-02, ICAO July 18, 2017). ICAO dismissed the appeal for lack of a final Order. Hearing was held and the ALJ found that the Claimant had not reached MMI and ordered the Respondents to pay for authorized, reasonable, and necessary medical benefits. The ALJ reserved the issue of TTD benefits for future decision and determined that he did not have authority to require Respondents to pay for medical treatment that was not provided by an APT. Since the ALJ’s Order did not award or deny any specific benefit it was interlocutory and not reviewable. A general award of medical benefits does not qualify as an award of a specific benefit.

Moral of the Story: Always have an ALJ rule on specific benefits so that the order is appealable.

 

Asleep at the Wheel: In Lagasse v. Xtreme Drilling and Coil Service, the Claimant filed a request for death benefits when her husband died in a motor vehicle accident while driving home from work. (W.C. No. 4-993-361-02, ICAO July 24, 2017). The Claimant appealed the decision of the ALJ that determined there were no special circumstances to justify an exception to the general going to and coming from work rule. In general, injuries sustained while going to and coming from work are not compensable unless a special circumstance creates a causal relationship between the employment and travel. The Claimant argued that the employment contemplated use of a personal vehicle because employees would have to change locations without notice. The Claimant argued that if personal vehicles were not used, the employer would have to arrange and pay for the transportation to the new work-sites. The ALJ found that the decedent’s use of his personal vehicle did not confer a benefit to the employer. ICAO upheld the ALJ’s Order denying compensability.

Moral of the Story: “Special circumstances” as an exception to the “going to and coming from” rule occur when the employment contract contemplates the travel or the employer provides the transportation or pays the cost of the travel.

 

Let’s Get Ready to Rumble: In Ostberg v. Mr. Bult’s Inc., the Respondents sought review of the ALJ’s Order finding the claim compensable. (W.C. No. 5-012-857-01, ICAO July 14, 2017). The Claimant was a truck driver and returned to the loading facility to retrieve a trailer. The Claimant got into an altercation with a co-worker about the trailer that was selected and they exchanged a series of four letter words. The Claimant turned to walk away and the co-worker called him an offensive name. The Claimant turned back and the fight became physical resulting in injuries. The Respondents argued that since the Claimant walked away from the original fight, the physical altercation was a second fight due to the offensive name calling and was purely a personal dispute. The ALJ determined that the events were all part of the same dispute pertinent to the Claimant’s use of the trailer and the three second interval of the Claimant turning to leave did not represent a deviation from the original argument. The ALJ found the claim compensable and awarded TTD benefits. ICAO upheld the ALJ’s Order.

Moral of the Story: Physical altercations between employees resulting in injuries are compensable if the basis of the fight arises out of work. If employees import personal unrelated disputes into the work-site, then injuries resulting from a physical altercation are not compensable.

 

For Whom the Statute Tolls: In Becirovic v. Residence Inn, W.C. No. 5-002-866 (August 3, 2017), ICAO affirmed an Order of that dismissed a claim for death benefits upholding the ALJ’s finding that the claim was barred by the statute of limitations. The original injury occurred on August 31, 2011 and the decedent died on November 19, 2013. Claimant obtained an IME report relating the death to the injury on March 23, 2015. Claimant filed a claim for death benefits with the OAC on July 2, 2015 and again on November 5, 2015 but did not file the claim with DOWC until December 7, 2015. Section 8-43-103(2), C.R.S., requires that a claim for death benefits be filed with the DOWC within two years after the death, with an additional year permitted if there is a reasonable excuse. The statute of limitations begins to run when the Claimant should “recognize the nature, seriousness, and probable compensable character of the injury.” The ALJ found that there was no evidence that Claimant or OAC sent notice to the DOWC or Respondents within two years. ICAO dismissed Claimant’s argument that the statute began to run after the IME opinion that related the death to the injury, upholding the ALJ’s opinion that the Claimant should have been aware of the probable compensable nature at the time of the death due to medical records already in existence at that time. ICAO found that the statute of limitations was not tolled by the alleged failure of the employer to file the required notice upon learning of the death, as they did not have evidence that the death was related. ICAO also upheld the ALJ’s finding that the filing through OAC did not constitute a “reasonable excuse” not to file with DOWC within two years.

Moral of the Story: Claims for workers’ compensation, including death benefits, must be filed within two years from the injury or death with the Division of Workers’ Compensation, and claim filings through the Office of Administrative Courts do not constitute notice or a reasonable excuse to extend or toll the statute of limitations.

 

The Penalty Box: In Cruz v. Sacramento Drilling, Inc., W.C. No. 4-999-129 (July 28, 2017), ICAO affirmed an Order by the ALJ denying Claimant’s request for penalties surrounding an offer of modified employment. Respondents sent Claimant an offer of modified employment on August 10, 2016 that directed Claimant to begin the job on August 16, but was contingent upon a background check. The offer described duties, hours, and wages and was approved by the ATP. Claimant did not begin working on August 16 or any time thereafter. Respondents subsequently reduced Claimant’s benefits in a GAL filed September 6, 2016 and maintained a reduction in a later GAL filed after litigation over AWW. Claimant asserted that because the offer of modified duty was contingent upon passage of a background check, it did not meet the definition of an “offer” and was therefore not in compliance with WCRP 6. The ALJ found that the offer met the basic requirements of the WCRP 6 and that Respondents were in compliance and not subject to penalties. On appeal, ICAO upheld the ALJ’s finding, noting that required participation in a background check is not a contingency that negates an offer of employment. See Underwood v. Skywest, W.C. No. 4-745-218 (ICAO, May 15, 2009). ICAO further found that the offer was still valid, even though the job was through a third party, as Claimant remained employed by Respondent-employer. ICAO further upheld the ALJ’s denial of penalties for Respondents’ alleged failure to file a GAL that accurately reflected when TPD began, as the Court noted that a GAL is not a record of payments actually made.

Moral of the Story: Offers of modified duty that require a background check or are through a third party, so long as there is no requirement to rehire through the third-party employer, are in compliance with WCRP 6.

 

Keep Paying Those Health Insurance Premiums: ICAO reversed an ALJ’s Order increasing AWW to include the employer’s cost of Claimant’s health insurance premiums in De Bell v. IKEA, W.C. No. 5-011-040 (July 14, 2017). Claimant continued employment with Respondent-employer and the employer never stopped paying its portion of the Claimant’s health insurance premiums. The ALJ nevertheless increased the AWW to include the employer’s cost of the insurance premiums, solely to increase the calculation of the PPD award. Respondents appealed, arguing this was an abuse of discretion. ICAO reversed, finding that the ALJ abused his discretion in several respects. Section 8-40-201(19)(b), C.R.S., requires an increase in AWW for the employee’s cost of continuing the employer’s health insurance plan. ICAO found that the ALJ did not have authority to increase AWW by the employer’s portion of the cost. ICAO also found that the ALJ did not have authority to increase AWW because the employer continued to pay the cost of the health premiums, and that the statute explicitly states that AWW shall not be increased in this circumstance. ICAO further found that the ALJ abused his discretion in recalculating AWW solely for purposes of PPD, as the AWW statute Section 8-42-102(1), C.R.S., makes no distinction between temporary and permanent benefits. The ALJ’s Order was reversed in its entirety.

Moral of the Story: An ALJ is without authority to recalculate AWW to include an employer’s cost of health insurance premiums, is prohibited from increasing AWW to include the employee’s cost of insurance premiums where the employer continues to pay their portion of the premiums, and is without authority to recalculate AWW with distinctions between temporary and permanent benefits.

 

Shoulder the Burden: In Vitwar v. City of Colorado Springs, Respondents sought review of an Order determining that Claimant’s melanoma was a compensable occupational disease under the firefighter cancer presumption statute. (W.C. No. 4-832-507-06, ICAO July 19, 2017). The ALJ determined Claimant met the requirements of the firefighter cancer presumption statute C.R.S. 8-41-209. Those requirements are the following: Claimant has been a firefighter for five or more years; he suffered an onset of a specific condition listed; and that there was no evidence showing he had melanoma when Respondents hired him. The ALJ explained that the compensability presumption can be overcome by the employer by proving, by a preponderance of the evidence, that the firefighter’s cancer did not occur on the job. An ALJ will weigh the risk factors related to employment to determine if they are more predominant than those risk factors not connected to employment. ICAO upheld the ALJ’s Order finding Claimant’s melanoma compensable.

Moral of the Story: When challenging compensability under the firefighter cancer presumption statute, C.R.S. 8-41-209. Employers have the burden of proof, by preponderance of the evidence, to prove that a firefighter’s cancer is not related to their employment after the Claimant has met the enumerated requirements of the statute.

 

Running for your Claim: In Kendrick v. ICAO, the Colorado Court of Appeals affirmed the ALJ’s decision denying compensability by finding that Claimant’s injury occurred during a voluntary recreational activity. Voluntary recreational activities are explicitly excluded from the definition of “employee” within the definition provided in C.R.S. 8-40-301(1). (August 3, 2017, Colo. Ct. App.). Claimant, a pilot, was injured while running during a scheduled layover between flights. The Court of Appeals rejected, as did the ALJ and ICAO, Claimant’s argument that his running fell within the “personal comfort doctrine” applicable to workers on “travel status”. The Personal Comfort Doctrine states that injuries suffered by employees while traveling as a requirement of work are held to be within the course and employment continuously during the trip, except when the employee makes a distinct departure on a personal errand. The Court opined that Claimant’s injury occurred during a “recreational activity” which is explicitly excluded from the definition of “employee” from C.R.S. 8-40-201(8) and C.R.S. 8-40-301(1). The Court drew attention to the undisputed facts that Claimant was not required to exercise and that many other pilots for employer did not exercise during layovers. The Court of Appeals affirmed the lower court’s ruling and found the claim was not compensable.

Moral of the Story: Just because an injury occurs while a Claimant is in “travel status” for their employment, does not inherently make it compensable under the personal comfort doctrine. Injuries from voluntary recreational activities may not be compensable.

OBAMA-ERA FAIR LABOR STANDARDS ACT OVERTIME RULE DEFEATED

Last year, the Department of Labor instituted a new overtime rule under the Fair Labor Standards Act (FLSA), which required employers to pay a little more than $47,000 annually to qualify under the white-collar exemptions.  This rule had previously been in limbo given that a Texas Federal District Court judge prevented its enforcement last Thanksgiving.  The same judge has now recently struck down the rule permanently.  Accordingly, short of a successful appeal, employers can now feel safe that the new rule will not be implemented.

 

The FLSA requires that employers pay non-exempt employees overtime for any hours worked beyond 40 hours in a week. An employee must satisfy three conditions to be considered exempt from overtime requirements:

 

  1. the employee must be paid a fixed salary;
  2. the salary must meet a minimum threshold; and
  3. the position must meet certain duties requirements applicable to executive, administrative, or professional positions.

 

Under the Obama administration, the DOL more than doubled the minimum salary requirement, taking it from $455 per week to $915 per week. Additionally, the threshold would have been scheduled to increase again in the year 2020 under an automatic 3-year increase the rule sought to implement.

 

Overview of the Recent Decision

The judge determined that the Department of Labor exceeded its authority in promulgating a new rule, with a salary requirement so high to essentially eliminate the requirement that exempt employees perform executive, administrative, or professional duties.  The judge was clear that the Department of Labor still retains the ability to issue a salary threshold test but the Department went too far.  There is no incite from the decision as to what would be a proper threshold.  The effect of this decision is that the Department’s authority to implement a salary test is now limited.

 

Takeaway for Employers

A sigh of relief can now be taken by all employers who did not want to see the exemption salary requirements increased.  Accordingly, employers do not have to raise salaries of exempt employees to meet the rule’s new threshold or change previously exempt employees to non-exempt status where salaries fell below the threshold.  If an employer has already adjusted its compensation scheme to comply with the new rule, it can consider whether reversing course will impact the workforce.

 

Please contact Lee + Kinder LLC with any questions!

legaLKonnection Firm Newsletter – August 2017

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Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm,
as well as in the insurance defense community.

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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Member Joshua Brown, Of Counsel Frank Cavanaugh, Associate Jessica Melson and Associate Kelsey Bowers attended this year’s Colorado Defense Lawyers’ Association (CDLA) annual conference. This year the conference was held in beautiful Santa Fe, NM, where the focus was on various nuisances in defending claims across Colorado. The conference was well attended by the CDLA members and offered a variety of presentations by various judges.

 

Of Counsel Frank Cavanaugh, as a Vice Chair of the workers’ compensation section of the CDLA, arranged for speakers for the 2017 conference. When one speaker could not attend, Frank became a speaker as well. He and Ron Nemirow, Esq. spoke on the complicated relationship a workers’ compensation attorney has in representing both the carrier and employer, given potentially conflicting positions of both entities.

 

 


Victory Lap

Of Counsel M. Frances McCracken was successful in defending Claimant’s attempt to impose penalties against Respondents for failure to timely pay PPD benefits in Valencour v. Best Buy, W.C. 4-936-414. Claimant sought penalties against Respondents for their failure to pay PPD benefits in full following a DIME which increased his permanent impairment rating. Respondents filed an Amended FAL admitting to the DIME rating, but erroneously believed that they had paid Claimant’s PPD benefits in full. However, through an accounting error, Respondents still owed Claimant a portion of his PPD benefits that were admitted for in the Amended FAL. Claimant filed for penalties against Respondents under C.R.S. § 8-43-304(1) and (2). At hearing, the ALJ found that while Respondents failed to properly pay Claimant his PPD benefits following the DIME, it was not willful. Further, the ALJ found that Claimant failed to plead his penalties with specificity. In turn, the ALJ dismissed and denied Claimant’s claim for penalties.

 

Of Counsel John M. Abraham successfully defended Claimant’s attempt to overcome the DIME and successfully terminated Claimant’s admitted maintenance medical benefits in Stotler v. Walmart Stores Incorporated, W.C. 4-974-840. The DIME physician assigned Claimant a 6% scheduled upper extremity impairment rating. At hearing, Claimant alleged she was not at MMI, alleged that her left shoulder was also injured due to overuse and overcompensation, and sought an additional 10% impairment in the right shoulder because she underwent a resection of the bone during shoulder surgery. The ALJ credited the testimony of Respondents’ medical expert who testified that: Claimant was at MMI for her injuries, the DIME physician did not err in his causation opinions regarding the left shoulder, and that Claimant was not entitled to an additional impairment for a distal clavicle resection because Claimant had undergone an acromioplasty. The expert explained that an acromioplasty is a minor shaving of the bone which is different from a resection of the bone. Further, the expert testified that it is not mandatory to assign a 10% impairment for a resection of the bone and that it is at the discretion of the physician assigning impairment. Additionally, the ALJ permitted Respondents to terminate Claimant’s maintenance medical benefits based on the ATP’s and Respondents’ experts’ opinions that maintenance medical benefits were not reasonable, necessary or related.

 

Of Counsel John M. Abraham also successfully withdrew a General Admission of Liability (GAL) and obtained a full dismissal of Claimant’s ongoing workers’ compensation benefits for a previously admitted cumulative trauma injury in Covarrubias v. Dave & Buster’s Incorporated, W.C. 5-025-695. Claimant alleged a cumulative trauma injury to her right upper extremity that she attributed to her work-related duties as cleaner, most notably scooping ice. Claimant’s ATP ordered a Physical Demands Analysis and Risk Factor Assessment. An IME was conducted at the request of Respondents which confirmed that the Claimant’s job duties did not meet the threshold requirements for any primary or secondary risk factors under the revised Cumulative Trauma Disorder Guidelines pursuant to Rule 17. The ALJ credited Respondents’ medical expert finding Claimant performed several different activities throughout the day and that many of the activities did not meet the minimal force or time duration requirements. As a result, Respondents were permitted to withdraw the GAL and Claimant’s claim for workers’ compensation benefits was denied and dismissed.

 


     

 

 

 

SETTLEMENTS POST ENGLAND

The Colorado Supreme Court issued an opinion on May 30, 2017 in England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017). This case involved settlement of workers’ compensation matters and may even affect settlement of liability matters in a personal injury case. The case has significant ramifications for employers and carriers moving forward. Click here to continue reading this article.

 


Cases You Should Know

No Immunity for You: In Am. Family Mut. Ins. Co. v. Ashour, the Court of Appeals held that a Claimant could recover underinsured motorist (UIM) benefits from his personal auto insurance policy in addition to WC benefits in cases where the incident was the result of a co-worker’s negligence. (May 18, 2017, Colo. Ct. App.). In this case, Claimant was severely injured in a truck accident caused by a co-worker. The employer paid benefits under the admitted WC claim, but Claimant could not recover from the at-fault co-worker for his remaining damages because the WC Act was his sole remedy. Thus, Claimant filed a claim with his personal auto insurance policy to recover the remainder of his damages from his UIM benefit coverage. The auto insurance carrier denied the claim and argued that Claimant could not recover UIM benefits because he was not “legally entitled to recover” damages from the at-fault co-worker because of the immunity. The Court disagreed and held that the immunity given to employers and co-workers under the WC Act does NOT bar an injured employee from recovering damages from his personal insurer. The Court reasoned that Claimant was entitled to recover from the co-worker under the terms of his personal auto policy. The fact that the co-worker was ultimately immune from suit under the WC Act did not impact the decision because the policies behind the WC Act and the UIM coverage were not in conflict and Claimant was not trying to recover additional damages from the immune co-worker.

Moral of the story: While employers and co-workers have immunity under the WC Act, the immunity will not protect automobile insurance carriers from having to pay UIM benefits to claimants who have UIM coverage policies and are injured as a result of the negligence of their employer or co-workers.

 

The No-Mans’ Land of Medical Only Claims: In Trujillo v. Elwood Staffing and Zurich Am. Ins. Co., ICAO dealt with the question of when a medical-only claim can close and what impact a DIME opinion has on this type of claim. (W.C. 4-957-118, ICAO June 22, 2017). Here, Respondents filed a FAL admitting for no lost time and no permanent impairment based on a follow-up DIME report. Claimant pursued a hearing where the ALJ found that he failed to overcome the DIME opinion. On appeal, ICAO reiterated their previous holding that the DIME’s determination of MMI has no statutory significance with injuries that do not result in the loss of more than 3 days of work or permanent disability. Because the DIME opinion on MMI had no impact, ICAO held that (1) Claimant’s claim was not closed, (2) the FAL was premature, and (3) the FAL did not preclude the Claimant from requesting further medical benefits. ICAO held that Claimant would need to prove the reasonableness, necessity and relatedness of any disputed medical benefit in the future, but would not have to prove a worsening of condition to formally reopen the claim in order to get the medical treatment.

Moral of the story: Do not file a GAL unless you are required to because of (1) a loss of more than three days of work, (2) anticipated permanent impairment, or (3) the Division is demanding a position because a claim for compensation was filed. We anticipate that the Colorado legislature will resolve some of these issues soon.

 

Medical v. Financial Services: In Nanez v. Mechanical & Piping, Inc. and Pinnacol Assurance, ICAO held that conservator and guardian services for a Claimant with a brain injury were not compensable under the WC Act because they were not medical in nature and did not enable access to medical services. (W.C. 4-922-618, ICAO June 16, 2017). Claimant sustained a traumatic brain injury, which impacted his short-term memory. The Colorado District Court appointed a conservator and guardian to monitor Claimant’s finances and protect his personal property. Both charged hourly fees to Claimant’s estate. Claimant filed an Application for Hearing requesting that Respondents pay for these services because the injury caused his need for the services. ICAO agreed with the ALJ that the conservator and guardian services were not medical in nature and not compensable expenses. ICAO also agreed with the ALJ that the ALJ did not have authority to authorize these services based solely on the appointment by the District Court. However, ICAO indicated that Claimant would be able to ask the ALJ to approve specified services that could be classified as medical treatment and have Respondents reimburse his estate for the cost of those specific compensable services.

Moral of the story: If the requested services are not medical or enable the access to medical care, the services are not likely compensable under the WC Act and should be denied.

 

Volunteers truly work for “nothing”: In Lewis v.Wellbridge/Starmark Holding and XL Specialty Insurance Company, W.C. N0. 5-006-772 (June 12, 2017), Respondents appealed an Order from the ALJ that found Claimant’s injury compensable because he was an employee and not a volunteer. Claimant contracted with the Employer to run demonstration basketball clinics initially as a volunteer. The contract stated that after the demonstration clinics were completed, Claimant would be paid on a commission basis for any future clinics. Respondents argued that Claimant was a volunteer on the date of injury because he was not paid for the demonstration clinic on the date of injury and therefore, not entitled to workers’ compensation benefits. The ALJ disagreed and ICAO affirmed, finding that a volunteer was a person who gives his services without any express or implied promise of payment.

Moral of the story: If you promise to pay someone wages as an employee, you better have workers’ compensation insurance.

 

Define incidental . . . : In Schwartz v. Dillion Companies, W.C. No. 3-989-875 (June 5, 2017), Claimant sought review of an ALJ’s Order which denied Respondents’ liability to pay for household chores performed by Claimant’s son. Claimant contended performing household chores would increase her pain. ICAO explained that the law required an ALJ to find either that Claimant’s son’s assistance was ‘incidental’ insofar as it allowed Claimant to access medical care, or that his help not related to accessing medical care was only a small portion of his total assistance. ICAO stated a prior ICAO decision held housekeeping services allowing a claimant to avoid activity that would aggravate pain could be denominated ‘medical’ for that reason; however, the Court of Appeals reversed the decision. ICAO reviewed the type and amount of services provided in this claim and found no reason to disturb the ALJ’s decision.

Moral of the story: Performance of household chores must be incidental to medical treatment to be compensable. Courts have interpreted incidental to mean allowing a claimant to access medical care or as quantifying the amount of household chores as small in comparison to total assistance rendered.

 

Don’t dismiss the “Impairment Rating Tips” as a paper tiger: In Kromer v. State of Colorado, W.C. No. 4-965-485 (July 6, 2017), Claimant appealed an ALJ’s Order which credited a physician’s opinion on impairment rating for the knee which included a reduction in the rating for range of motion loss in the contralateral knee. Claimant argued there was no basis in statute or rule to allow reduction for ROM loss based on ROM loss in the contralateral knee. ICAO noted the Division of Workers’ Compensation “Impairment Rating Tips” provide that when deemed appropriate, a physician may subtract contralateral joint ROM impairment from the injured joint’s ROM impairment. ICAO affirmed the ALJ’s Order, citing case law which provides that the “Impairment Rating Tips” are not part of the AMA Guides but may be relevant to the impairment rating. Therefore, a physician’s application of the tips goes to the weight an ALJ gives to an impairment rating.

Moral of the story: While the “Impairment Rating Tips” do not hold the force of statute or rule, ICAO extends deference to DOWC’s interpretation of the AMA Guides as set forth in the “Impairment Rating Tips.”

 

Everybody hurts sometimes but it does not necessarily rise to the level of a compensable mental impairment claim: In Ashton v. City and County of Denver, W.C. No. 5-010-884 (June 8, 2017), Claimant appealed an ALJ’s Order denying and dismissing his claim for mental impairment benefits and raised numerous allegations of error. ICAO rejected all of Claimant’s allegations. In pertinent part, ICAO explained that a claim for mental impairment is governed by § 8-41-301(2), C.R.S, which provides that a claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. ICAO referenced case law which explained that the statute on mental impairment seeks to limit recovery to those permanent mental impairments that have a disabling effect on the sufferer.

Moral of the story: When an injury is the result of an emotional stimulus that results in mental impairment, a heightened standard of proof is required to prevent frivolous claims.

SETTLEMENTS POST ENGLAND

The Colorado Supreme Court issued an opinion on May 30, 2017 in England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017).  This case involved settlement of workers’ compensation matters and may even affect settlement of liability matters in a personal injury case.  The case has significant ramifications for employers and carriers moving forward.

 

BACKGROUND

Mr. England was a truck driver for the employer. He injured his shoulder at work in December 2012 and filed a workers’ compensation claim.  He had two surgeries in the first half of 2013 to address the shoulder injury.  Respondents conducted an IME in July 2013 and the physician offered an opinion that the claimant was approaching MMI and would likely reach MMI in about two months.  Claimant agreed to settle his workers’ compensation case in September 2013, despite still having some pain, for $35,000.  The current standard settlement form from the Division was used to settle the claim pursuant to W.C.R.P. 9-9(A). The form contains standard language that cannot be altered per the Rule. Paragraph 4 incorporates the statutory right to reopen for a mutual mistake of material fact under Section 8-43-204(1), C.R.S., and paragraph 6 contains claimant’s waiver of any “unknown injuries.”  Mr. England attempted to reopen his settlement, after it was approved in October 2013, when diagnostic testing revealed a scapular fracture.  It was undisputed that the parties did not know a fracture existed at the time of settlement and there was no evidence that the fracture definitively existed at the time of settlement.  Instead, there was testimony that the fracture could have existed at the time of settlement or could have developed later.  Mr. England’s basis for trying to reopen the settlement was that the scapular fracture was a mutual mistake of material fact and he would not have settled had he known it existed.

At hearing, the ALJ found that the scapular fracture existed at the time of settlement, but reopened the claim on the mutual mistake of fact that the parties believed claimant was approaching MMI when the case was settled.  She further found that, had claimant known that he had a scapular fracture, he would not have settled.  The ALJ’s Order was affirmed at the ICAO level and was appealed further to the Colorado Court of Appeals.  The Colorado Court of Appeals reversed the ICAO and the ALJ’s decisions, finding that the scapular fracture fell into the category of unknown injuries that claimant waived in paragraph 6 of the settlement agreement; ignoring that the mutual mistake relied upon by the ALJ to reopen was that claimant was approaching MMI.

The Colorado Supreme Court took the case and reversed the Colorado Court of Appeals.  The Supreme Court held that the paragraph 6 waiver does not apply to conditions unknown, but existing at the time of settlement.  In this instance, the Supreme Court held that the mutual mistake of fact between the parties was the existence of claimant’s scapular fracture.

 

ANALYSIS

The Colorado Supreme Court has effectively taken two categories of facts existing at the time of settlement, known and unknown, and carved-out a third type of fact that can serve as a basis to reopen settlement, “unknown, but existing facts.”   The logic of this is confusing.  For a fact to be mutually mistaken between the parties, it requires the fact to be known, rather than unknown.  Notwithstanding this logical conundrum, the question remains how to proceed with settlements moving forward.

 

AFTER ENGLAND

The Division settlement form allows for additions in paragraph 9.  9(A) can contain settlement language that is both specific to the settlement agreement and involves an issue that falls within the Workers’ Compensation Act.  Paragraph 9(B) can reference exhibits attached to the settlement agreement related to the workers’ compensation claim, such as Medicare set-aside arrangements.  Paragraph 9(C) can reference other attached written agreements that include matters outside of the Workers’ Compensation Act, such as employment releases, or bad-faith waivers.  Material referenced in paragraphs 9(B) and 9(C) are outside of the enforcement parameters of a Division or Office of Administrative Courts.

Recent attempts have been made to build-around the England decision by including language in paragraph 9(A), and having claimant expressly waive any ability to reopen a claim based on an unknown condition resulting from the work injury.  In some instances, this has been met with objection and a motion to strike this language under 9(A).  At least one pre-hearing conference order has been issued striking this type of language as contrary to the England holding that the paragraph 6 waiver cannot limit the right to reopen under paragraph 4.

Other recent attempts have been made to protect against the effects of the England decision by including terms requiring repayment by claimant of any settlement amounts if the claim is reopened based on a mutually mistaken existing, but unknown, condition.  This has also been met with resistance but Lee + Kinder LLC is unaware of any prehearing conference order striking this type of language.

 

BOTTOM LINE

The England decision certainly disrupts settlements of workers’ compensation claims.  It calls into question the one reason to settle the case, which is finality.  While there is potential for a legislative fix to this problem, settlements need to be negotiated and properly documented until this type of fix can be accomplished.  The England decision can still be built-around.  Agreements under paragraph 9(A) waving the right to reopen based on an unknown, but existing, condition may not work in that location; however, as a separate agreement exhibited under 9(B) and/or 9(C), they should be independently enforceable outside of the workers’ compensation system.  Further, repayment of settlement money in the event of a reopening should be enforceable under 9(A) in the workers’ compensation system or independently under 9(B) and 9(C).  If repayment is not made, whether as a lump or in some other arrangement, there’s also the possibility for stipulated judgment to enter to allow collection of settlement proceeds through civil procedure rules.

Settlements are contracts and there is a freedom of contract issue raised by England.  The Division has limited enforcement capacity and is holding itself by the England decision; however, the parties can agree to terms that can be enforced as contracts, attached as exhibits under 9(B) and 9(C).  Lee + Kinder LLC is using specific language on all settlements that the Firm believes is an enforceable contractual agreement.  If you have questions regarding settlements, Lee + Kinder LLC is happy to answer those questions.

legaLKonnection Firm Newsletter – July 2017

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Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm, as well as in the insurance defense community.

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In the News

Members Tiffany Kinder and Joseph Gren attended the WBENC National Conference in Las Vegas last month. The WBENC conference was attended by hundreds of corporations who support diversity initiatives in hiring minority owned, women owned, and veteran owned businesses. Many of Lee + Kinder’s clients were among those corporations. Attending the WBENC conference was a powerful experience, affirming the commitment of so many corporations to support businesses like Lee + Kinder, LLC, and other minority and women owned enterprises.

 


Member Joseph Gren and Associate Jenna Zerlynick authored an article for the Colorado Lawyer, July 2017 edition. The article, Settlement Procedures in Workers’ Compensation, is an in-depth explanation of the unique procedural requirements governing settlement of Colorado Workers’ Compensation Claims. Click the link in the article name to read the full article.

 

 


 
Proposed Rule 16 and 18 Changes for 2018: Utilization Standards and Medical Fee Schedule

Changes are coming for the Workers’ Compensation Rules of Procedure, Rules 16 and 18. The changes to these very important rules will be implemented January 1, 2018. Rule 16 addresses Utilization Standards such as procedures and time frames for prior authorization. Rule 18 addresses the Medical Fee Schedule. The proposed rule changes are currently available on the Division of Workers’ Compensation website for review. A public hearing is scheduled for August 1, 2017 at 9:30 am at the Division of Workers’ Compensation to address the proposed changes. Lee + Kinder will provide updates regarding these important changes as the process moves forward.

Here are some of the key proposals:

  • Rule 16-11(A) – Contest of prior authorization & Rule 16-12 – Contesting payment for non-medical reasons: The medical review, IME report, or report from an ATP that addresses the relatedness of the requested treatment to the admitted claim may precede a prior authorization request.
  • Rule 16-11(E) – IMEs for contesting prior authorization: In order to contest prior authorization with an IME, the IME appointment must occur within 30 days or upon first available appointment of the prior authorization request, but not later than 60 days after the request. The IME report must be issued within 20 days of the IME, and the insurer must respond to the prior authorization request within 5 business days of the receipt of the IME report. If the injured worker does not attend or reschedules the IME, the payer may deny prior authorization requests pending completion of the IME.
  • Rule 16-9 – Notification submissions: These submissions must still be admitted or denied within 5 business days, but the payer may limit the initial approval to the number of treatments/duration listed in the relevant Medical Treatment Guidelines (MTGs). If subsequent medical records document functional progress, then the payer shall pay for the additional number of treatments/treatment duration listed in the relevant MTGs. If the payer proposes to discontinue treatment before the maximum number of treatments/treatment duration has been reached due to lack of functional progress, payer shall support that decision with a medical review compliant with section 16-11(B).
  • The use and definition of telemedicine is expanded.
  • The fee schedule reimbursement for out-of-state providers may be negotiated in excess of the fee scheduled when necessary to obtain reasonable and necessary care.

 


Victory Lap

Member Joshua D. Brown and Associate Kristi Robarge successfully defended an appeal to the Industrial Claim Appeals Office (ICAO) in Alan Dillingham v. SkyWest Airlines, Inc., W.C. No. 5-014-315-01. Claimant sought review of the ALJ’s Order denying compensability and dismissing Claimant’s request for medical benefits. The ALJ determined that Claimant suffered from a substantial pre-existing condition which caused severe degenerative arthritis that was not exacerbated or accelerated by his work activities. The ALJ also determined that Claimant’s need for a total knee arthroplasty was not related to his work activities. Claimant argued that the ALJ erred in finding that he did not suffer an aggravation of his pre-existing condition or, in the alternative, that he suffered a cumulative trauma injury because of the conflicting evidence supporting Claimant’s position. Respondents argued that the ALJ’s factual findings were supported by substantial evidence, given Claimant’s long history of a pre-existing condition, and Respondents’ medical expert’s testimony. ICAO affirmed the Order, finding that there was substantial evidence to support the ALJ’s determinations.
  

Of Counsel M. Frances McCracken successfully contested a claim that Claimant’s hearing loss was causally related to his work injury and required in-the-canal hearing aids in Martinez v. Walmart Stores, W.C. 5-019-127-01. Claimant did not report any hearing loss until five months post-accident and he initially reported the hearing loss as being chronic. Claimant’s ATP did not have any prior medical records relating to Claimant’s treatment for renal failure or biliary cancer and chemotherapy treatment, both of which are known causes of hearing loss. The ALJ credited Respondents’ medical expert and determined that Claimant’s hearing loss, dizziness, and disequilibrium were not related to the work injury. Claimant’s claim for in-the-canal hearing aids was denied and dismissed along with Claimant’s claim for narcotic pain medications and anti-nausea medications.

 

Of Counsel M. Frances McCracken was successful in a second win by overcoming the DIME’s opinion that Claimant sustained a 27% whole person impairment and defended against Claimant’s claim for additional medical benefits in Jaramillo v. Family Dollar Stores of Colorado, Inc., W.C. 5-000-936-02. Claimant initially suffered an abdominal strain which questionably transitioned to SI joint pain. When placed at MMI, Claimant had full range of motion of her lumbar spine. However, the DIME provided Claimant with a 5% Table 53 impairment rating and a 23% whole person impairment based on loss of range of motion of the lumbar spine. Respondents’ medical expert credibly opined that it was not medically probable that Claimant suffered a discrete injury to her SI joint without immediate pain in that region. Respondents’ medical expert also credibly testified that the DIME physician clearly erred in assigning Claimant’s impairment rating for loss of lumbar range of motion, given the discrepancies in her measurements. The ALJ concluded that Respondents had overcome the DIME opinion by clear and convincing evidence.
  
Associate Jessica Melson successfully defended Claimant’s attempt to overcome the DIME and request for home health care in Schaffer v. Patterson-UTI Drilling Company, LLC, W.C. No. 4-946-584. In this case, a DIME found Claimant at MMI with specific disorder impairments to his cervical and lumbar spine. However, the DIME physician excluded range of motion impairment because she determined there was no objective basis for his limited motion. Claimant sought to overcome the DIME. Claimant alleged he was not at MMI because he required psychological evaluation and treatment. He also alleged that the DIME erred in excluding the range of motion measurements because it was not within the DIME physician’s discretion to exclude valid range of motion measurements. Claimant also sought home health care as recommended by the ATP. The ALJ credited the testimony of Respondents’ medical expert that it was within the DIME physician’s discretion to not utilize the range of motion measurements if she did not find that it was Claimant’s true functional range of motion. The ALJ found that Claimant failed to overcome the DIME regarding MMI and impairment. The ALJ also found that Claimant failed to demonstrate the request for home health care was related to the claim, as he was already receiving home health care before the request and Respondents’ medical expert testified it was not reasonable, necessary, and/or related.

 


 

A FIRST! FDA REQUESTS WITHDRAWAL OF OPANA® ER FROM THE MARKET;
MANUFACTURER ACQUIESCES
Amid the nation’s ongoing and “unprecedented opioid epidemic” (per the U.S. Department of Health and Human Services), on June 8, 2017, the U.S. Food and Drug Administration requested Endo Pharmaceuticals to voluntarily remove its opioid pain medication, reformulated Opana ER (oxymorphone hydrochloride), from the market. The request was based on concerns that the benefits of the drug no longer outweigh its risks related to abuse. This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication due to the public health consequence of abuse.
Click here to continue reading this article.


Cases You Should Know
 
How we can be sure this settlement is full AND final?: A recent Colorado Supreme Court ruling provided a significant opinion regarding workers’ compensation settlement agreements. In Victor England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017), the Court found that Claimant’s undiagnosed scapular fracture, at the time he entered into a settlement agreement, constituted a mutual mistake of material fact and allowed Claimant to reopen his claim despite the settlement. Specifically, the issue addressed whether those documents waive an injured worker’s statutorily protected right to reopen a settlement based on mutual mistake of material fact. Respondents were successful on appeal to the Colorado Court of Appeals, which found that the settlement agreements’ waiver provision prohibited reopening of the settlement agreement on grounds of mutual mistake after the injured worker discovered he had an unknown scapula fracture. The injured worker petitioned to have the Colorado Supreme Court review the decision.

The Colorado Supreme Court issued their Order on May 30, 2017. In their decision, the Supreme Court concluded that specifically paragraph six of the settlement agreement form cannot waive or limit an employee’s statutory right to reopen the claim on the grounds of mutual mistake of material fact. The Supreme Court stated that they interpreted paragraph six to be consistent with the settlement statutory provision, C.R.S.§8-43-204(1), and concluded that paragraph six applies only to those “unknown injuries” which develop after a settlement agreement is approved. They concluded that in this case, there was a mutual mistake of material fact and that therefore under paragraph four of the settlement agreement, the injured worker has the right to reopen the claim. Accordingly, the Supreme Court reversed the judgment of the Colorado Court of Appeals and remanded for further proceedings consistent with their opinion.
 
Moral of the story: This impact of this case on the DOWC form settlement documents and settlements overall is still uncertain. In light of this decision, our Firm has added further language in settlement documents to paragraph 9(a), which allows addendums, to attempt to limit Respondents’ exposure from a claim being reopened under facts similar to the England case. At this time, the language we have implemented to the settlement documents is being accepted and approved, but this issue will likely undergo further scrutiny by the DOWC.

  
Workers unite! But beware of the Mutual Benefit Doctrine: In Pueblo County v. ICAO, the Colorado Court of Appeals held that union activity cases in Colorado should be analyzed under the Mutual Benefit Doctrine to determine compensability. (May 18, 2017, Colo. Ct. App.). Claimant was injured as a result of a slip and fall following a union meeting after work. The slip and fall occurred in the employer’s parking lot. The Court of Appeals concluded that the union meeting was to facilitate ongoing negotiations concerning a new collective bargaining agreement, which was of mutual benefit to the employer and employee. As such, the Court opined that the Mutual Benefit Doctrine applied. The Mutual Benefit Doctrine states that an injury suffered by an employee while performing a function that is of mutual benefit to the employer and the employee is usually compensable when some advantage to the employer results from the employee’s conduct. The Court of Appeals affirmed the lower court’s ruling and found the claim compensable.
 
Moral of the Story: Injuries occurring while the employee is engaged in union activities in Colorado will be analyzed under the Mutual Benefit Doctrine to determine compensability. If there is a mutual benefit to employee and employer, the claim will likely be deemed compensable.

  
A spoonful of medical evidence helps apportionment go down: In Richard Hutchison v. ICAO, the Colorado Court of Appeals upheld the ALJ and ICAO’s Orders which determined that only one-third of Claimant’s injury was work related. (June 1, 2017, Colo. Ct. App.) Claimant was diagnosed with osteoarthritis in his bilateral knees. At the initial hearing, there were conflicting medical opinions as to whether the arthritis was caused by Claimant’s employment, but the ALJ found that Claimant’s bilateral knee pain was not directly and proximately caused by Claimant’s work. The ALJ adopted the apportionment recommendations of Respondents’ medical expert and attributed one-third of the cause of Claimant’s bilateral arthritis to work-related factors. The ICAO concluded that the ALJ’s Order properly apportioned the injury and was supported by substantial evidence. The Court of Appeals found that both physicians opined that Claimant had an underlying condition prior to the work injury. Furthermore, the Court held that the opinions of Respondents’ medical expert were concrete and not speculative. As such, the Court of Appeals concluded that substantial evidence supported the ALJ’s apportionment findings and held the Panel did not err when it declined to set aside the Order.
 
Moral of the story: An ALJ’s opinions are not disturbed if supported by medical evidence. In this case, the ALJ’s ruling on apportionment was upheld because it was supported by the medical evidence and expert testimony.

  
Credibility is in the eye of the beholder – abuse of discretion v. substantial evidence: In Work v. CBC Companies, Inc., W.C. No. 5-002-879-01 (May 15, 2017), Respondents sought review of the ALJ’s Order that determined Claimant’s cervical spine condition was causally related to the industrial incident and held Respondents liable for the costs of the recommended cervical spine surgery. Respondents argued that the ALJ erred in discrediting a medical expert because the expert was unwilling to characterize the recommendations for speculative surgery as medical malpractice. Respondents also argued that the ALJ erred in discrediting another medical expert for using the term “deny” in his report. Respondents contended that the ALJ’s credibility determinations were an abuse of discretion and were not supported by the record. ICAO explained that an appellate review of an ALJ’s credibility determinations was based upon a substantial evidence standard and not an abuse of discretion standard. ICAO noted that an ALJ is not required to articulate the basis for his credibility determinations but in this case he did so. ICAO also noted that it is “bound by the ALJs credibility determinations except in extreme circumstances where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that it would be error as a matter of law to believe such testimony.” ICAO was mindful of Respondents’ complaints but found that the credibility determinations were supported by substantial evidence, and the ALJ’s Order was affirmed.
 
Moral of the Story: An ALJ’s credibility determination will be upheld as long as there is substantial evidence in the record to support a determination.

A FIRST! FDA REQUESTS WITHDRAWAL OF OPANA® ER FROM THE MARKET; MANUFACTURER ACQUIESCES

Amid the nation’s ongoing and “unprecedented opioid epidemic”, (per the U.S. Department of Health and Human Services), on June 8, 2017, the U.S. Food and Drug Administration requested Endo Pharmaceuticals to voluntarily remove its opioid pain medication, reformulated Opana ER (oxymorphone hydrochloride), from the market. The request was based on concerns that the benefits of the drug no longer outweigh its risks related to abuse. This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication due to the public health consequence of abuse.

Opana ER is an opioid first approved in 2006 for the treatment of moderate to severe pain when a continuous, around-the-clock opioid analgesic is deemed necessary. In 2012, Opana ER was reformulated to deter snorting and injecting. While the new product met the FDA’s standards for approval, based on new information about the risks associated with the reformulated product, the agency is now taking steps to remove Opana ER from the market.

Janet Woodcock, M.D., Director of the FDA’s Center for Drug Evaluation and Research, indicated, “The abuse and manipulation of reformulated Opana ER by injection has resulted in serious disease outbreak. When we determined the product had dangerous unintended consequences, we made a decision to request its withdrawal from the market. This action will protect the public from further potential misuse and abuse of this product.”

The FDA requested the manufacturer, Endo International, voluntarily remove reformulated Opana ER from the market. In another first, Endo has announced its plan to voluntarily comply with the FDA’s request. In a July 6, 2017 press release, Endo announced plans to work with the FDA to coordinate the orderly removal of the pain medication, “in a manner that looks to minimize treatment disruption and allows patients sufficient time to seek guidance from the health care professionals.”

The FDA has indicated it will continue to examine the risk-benefit profile of all approved opioid analgesic products and take further actions as appropriate as part of its response to the opioid public health crisis. For further information, read the FDA News Release.

 

What can you do to help manage the chronic prescription of opioids or narcotics on your claims?

• Obtain an independent medical evaluation if:
1. Opioids are prescribed for complaints of pain and there are inconsistencies in the diagnosis and objective findings;
2. There is no reported reduction in pain levels with ongoing prescription of opioids or narcotics;
3. There is no demonstrable improvement in function, including return to work, with ongoing prescription of opioids or narcotics;
4. Abuse, addiction, or deviation is suspected.

 

• Colorado’s Medical Treatment Guidelines address the appropriate use of Narcotics/Opioids in workers’ compensation claims including the following recommendations:
1. Screening for potential alcohol and drug abuse problems, as well as co-morbid psychiatric conditions, to identify those claimants who may be prone to dependence or abuse;
2. Long-term narcotics or opioids should only be offered after other therapies have failed to improve function;
3. Narcotics or opioids should result in demonstrable improvements in function, not just reported pain relief;
4. Random urine drug screens are required by the Guidelines for the chronic prescription of opioids or narcotics;
5. A narcotic pain contract, and compliance therewith, is required by the Guidelines for long term prescription of opioids or narcotics;
6. Periodic re-evaluation of function and side-effects is required for ongoing narcotic or opioid prescriptions;
7. Tapering and discontinuance of opioid or narcotic prescriptions are required when patient goals are not being met.

 

• Medical Utilization Review:
Provides a statutory, tiered, neutral medical review of the reasonableness and necessity of an authorized treating provider’s care, including the prescription of narcotic and opioid medications.
If you have any questions about challenging the ongoing prescription of narcotics or opioid pain medications, or any claim-related medical treatment, please contact any of the attorneys at LEE + KINDER, LLC. We are always glad to discuss the facts of your case and work towards the most efficient way to end unreasonable, unnecessary, and/or unrelated medical treatment.

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.

 

Most workers’ compensation claims are med-only claims.  In fact, more than two-thirds of claims in Colorado are med-only claims that are never reported to the Division.  When most carriers file a FAL due to claimant reaching MMI on a med-only claim, they do so because they are seeking finality.  Perhaps the employer wants to admit in good faith and make sure that it is noted with the Division that the claimant was taken care of and that there is no challenge to the claim.  Perhaps the carrier requires that a FAL be filed on all admitted claims when a claimant reaches MMI.  Oftentimes, a FAL is filed on a med-only claim to avoid confusion later should something happen.  Whatever the reasoning may be, the adjuster may want to think twice about filing the Final Admission of Liability on a med-only claim due to a recent Industrial Claims Appeals Office opinion and a prior Court of Appeals decision.

 

In Kazazian v. Vail Resorts, W.C. No. 4-915-969 (April 24, 2017), the Industrial Claims Appeals Office reversed the findings of an ALJ that found a med-only claim was closed because the Claimant failed to object to the FAL.  The facts of the claim were simple:  Claimant sustained an injury when she slipped and fell at work and sustained a concussion, she didn’t miss any time from work while treatment took place, and she was eventually placed at MMI without impairment by the authorized treating physician.  The Employer filed a FAL based on the authorized treating physicians’ findings and the Claimant didn’t object within the statutory 30-day requirement.  A significant time later, Claimant began to experience hearing loss. She went to an audiologist for treatment.  The Claimant suspected that her hearing loss was due to the work-related event from a couple of years prior.  The Claimant contacted the adjuster and asked that certain medical apparatuses prescribed by the audiologist be covered under the workers’ compensation claim.  The adjuster refused, citing the FAL and noting that the claimant did not timely object.  The claim was presumed closed.

 

At the hearing, the ALJ agreed with Respondents that the Claimant failed to timely object to the Final Admission and request a DIME.  However, on appeal, the Panel reversed the decision and noted that a FAL that does not admit for indemnity benefits cannot serve to “close” a claim since there was nothing triggering any statutory provisions in the Act for which reopening due to a worsening of condition or requesting a DIME can be sought.  Simply put, a Final Admission of Liability on a med-only claim raises no implications of closure.  You cannot close something that was not significant to begin with.  Citing from a Court of Appeals prior decision, “the statutory consequences of a finding of “maximum medical improvement” can apply only to injuries as to which disability indemnity is payable.”  Given this caveat in the law, the ultimate question is how does an employer or insurance carrier seek closure on a med-only claim?   The answer may be simpler than first thought.

 

By its very nature, a med-only claim is usually not an impactful claim of such severity to require reporting.  In fact, the Act carves out an exception to med-only claims making it easy for employers and carriers to deal with them without being bogged down in paperwork.  Section 8-43-101(1) states, “Every employer shall keep a record of all injuries that result in fatality to, or permanent physical impairment of, or lost time from work for the injured employee in excess of three shifts or calendar days and the contraction by an employee of an occupational disease that has been listed by the director by rule.  Within ten days after notice or knowledge that an employee has contracted such an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee, or immediately in the case of a fatality, the employer shall, upon forms prescribed by the division for that purpose, report said occupational disease, permanently physically impairing injury, lost-time injury, or fatality to the division. The report shall contain such information as shall be required by the director.”

 

The key portion of the statute deals with lost time and permanent impairment.  If neither of the requirements is met, nothing has to be reported.   If one of the criteria is met, the Act requires that the insurance carrier take a position on the claim within 20 days.  You may even receive a letter from the Division with big bold letters emblazoned on it indicating the insurance carrier has 20 days to file either a Notice of Contest or a General Admission or else Respondents could be sanctioned in the form of monetary penalties.   When the claimant reaches MMI in a med-only claim, most carriers file a FAL; however, it may be good practice to not file anything UNLESS you receive the letter in question from the Division.   Most med-only claims are closed within a few weeks or months.   When a claimant comes back months, or sometimes years later, to seek additional treatment, how does one know if the problem that is allegedly occurring is due to the original event?  A significant amount of time may have passed.  Claimant may be working for another Employer.  Should the adjuster just voluntarily admit and pay benefits?  Typically, the answer is no.

 

Given the caveat in the law that is becoming commonplace among the courts, it is recommended not to file anything in response to a treating physicians’ placement of a claimant at MMI.  This is because the carrier can always challenge the claim on causation grounds later down the road should the claimant return and want to seek additional treatment or claim that indemnity is owed.  Recall that payment of medical benefits is neither an admission nor a denial under the Act.  Even if the Respondents pay for treatment and characterize a claim as a med-only claim for purposes of payment, if no pleadings are ever filed with the Division, Respondents retain the right to file a Notice of Contest should a claimant return in the future seeking additional benefits.  At that time, Respondents can further investigate the causation of the claimant’s ongoing complaints either through a medical records review, IME, or other means such as surveillance.  Oftentimes, the mere passage of time and questioning of the claimant will give rise to answers which would allow the adjuster to deny the claim outright, even though at first the claim was payable in good faith.  The overall thought is that it is much easier to challenge causation and be cautious with a Notice of Contest for further investigation than it is to go back in time and withdraw a previously filed admission, regardless of the type of admission that it is.

 

If you have any questions regarding what next steps to take when dealing with med-only claims, please contact us.   If you get a phone call from a claimant wanting more benefits from a claim you thought was closed, please contact any of the attorneys at our firm.  We will be more than happy to chat about the facts of the particular case and devise the best strategy which will hopefully avoid the reopening of a “closed” claim.

legaLKonnection Firm Newsletter – May 2017

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Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm,
as well as in the insurance defense community.

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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.

 


 

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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.


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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.

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