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.

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,AMAguides3rd 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.[1]

The Third Revised Edition’s history in the Colorado workers’ compensation system is simple. The Colorado Workers’ Compensation Act underwent an extensive remodel in 1991. In the 1991 Amendments to the Act, the legislature inserted in section 8-42-107(A)(c), C.R.S., the methods to calculate impairment. In order to establish the medical impairment value for purposes of a permanent partial disability award, the legislature adopted the Third Edition, Revised (December 1990), which, at the time, was state of the art.  Since 1991, the legislature has not altered the statutory language.

The State of Colorado has arguably been cognizant of the fact it is the only state in the nation to hold onto this antiquated edition. In fact, the Colorado Department of Labor and Employment commissioned a study in 2002, concluding that “spinal impairment evaluations are the most frequent type of evaluations performed.”[2] The study stated that, amongst the guides, there are significant differences in spinal impairment. The author pointed out “the impairment estimate for a spinal injury may be quite different depending on which edition is used to rate the condition.” The author concluded “Values were significantly less with both the Fourth and Fifth Editions, although more dramatically with the Fourth Edition.” The study pointed to different range of motion calculations between the guides to explain the discrepancy.

Per its own commissioned study that the use of the Third Edition Revised results in higher impairment ratings, and, therefore, higher permanent partial disability awards, Colorado has held strong to the Third Revised Edition.  In 2007 the AMA Guides Sixth Edition was published. The more recent studies show a decrease in impairment ratings with the Sixth Edition when compared to ratings under the Fifth Edition.[3] The State of Colorado utilizes the medical impairment rating system that on average provides the highest degree of impairment, including spinal impairments, to injured workers. It does not appear that there is any legislative progress to bring Colorado into alignment with any other state anytime soon.  Which begs the final question: Colorado, what are you doing?

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[1] Study of the Impact on Changing from the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Third Edition Revised to the Fourth or Fifth Editions in Determining Workers’ Compensation Impairment Ratings, Christopher Brigham, M.D. (June 30, 2002).

[2] Id. 58.

[3] Impact on Impairment Ratings from the American Medical Association’s Sixth Edition of the Guides to the Evaluation of Permanent Impairment, Robert Moss, et. al. (July 2012) at 25.

COLORADO UNINSURED EMPLOYERS AND A POSSIBLE NEW FUND

BACKGROUND

There has been growing governmental concern in the State of Colorado over uninsured employers. Changes to the Workers’ Compensation Act in 2005 created stiffer fines for employers who fail to comply with mandated coverage for workers’ compensation benefits. The Division of Workers’ Compensation Director is required to impose a fine of $250 per day for an initial offense. The 2005 changes to Colo. Rev. Stat. § 8-43-409 included an increased fine range for companies that were non-compliant for a second time. Those companies now face up to a $500 per day fine. This statute specifically states that the ‘fine’ levied under the statute shall be the ‘penalty’ within the meaning of Colo. Rev. Stat. § 8-43-304, but is in addition to the increase in benefits owed under Colo. Rev. Stat. § 8-43-408.

Colo. Rev. Stat. § 8-43-409 governs the procedures for non-compliant employers. First, the Director is empowered to investigate and notify the non-compliant employer of their right to request a prehearing conference over the coverage issue. Second, if the Director determines that the employer is non-compliant, then the Director must take at least one of the following actions: (1) order the non-compliant employer to cease and desist its business operations while it is non-compliant; and/or (2) assess fines. After a cease and desist order is entered, the Attorney General immediately starts proceedings against the non-compliant employer to stop doing business. Further imposition of any fine under this statute, after appeal time frames have run, can be lodged with the District Court as a judgment. 25% of any fine collected would be directed to the workers’ compensation cash fund under Colo. Rev. Stat. § 8-44-112, with the balance going to the state general fund. Finally, any fine under the statute is in addition to the increased benefits owed by the non-compliant employer under the preceding statute, Colo. Rev. Stat. § 8-43-408. This statute increases ordinary benefit exposure by 50% for non-compliant employers and puts in place a bonding requirement for the non-compliant employer.

 

BALANCING INTERESTS

Significant fines handed down to non-compliant employers have received press attention in the past. As reported in the Denver Post on August 29, 2016, a student run café at the University of Colorado was shut down after it was fined more than $224,000 for not having workers’ compensation coverage. The Complete Colorado, a blog run by local political commenter Todd Shepard, documented a $271,000 fine against a Longmont garden business for failing to comply with coverage requirements, as well as a $516,700 fine levied against fast food restaurant, El Trompito Taqueria. These fine amounts increased quickly as the result of the daily multiplier. The time frames of noncompliance were largely assumed by the Director because the employer could not prove coverage during these intervals. For a small employer to receive such a large fine can effectively put the employer out of business, leaving the injured worker with no practical recourse for benefits.

There are mitigating circumstances that may reduce fines levied against non-compliant employers. For instance, if the employer can show compliance once it has become aware of a lapse in coverage, this will mitigate the fine amount. A non-compliant employer paying benefits, essentially stepping into the shoes of a would-be insurer, also helps mitigate the fine.

The Director is obligated to try to ensure compliance while not effectively forcing employers out of business. This should be done with an eye toward trying to keep injured employees from having no benefit flow or treatment. When an injured worker has no coverage, it forces the injured worker to seek medical treatment through personal healthcare insurance or, or if no health care coverage exists, through self-pay methods, emergency room visits, treatment write-offs and/or charity. Many healthcare insurers reject coverage for treatment of a work injury since that liability should fall on a workers’ compensation carrier or employer. Further losses from unpaid and unreimbursed medical treatment through emergency rooms, write-offs or charity are ultimately passed on to employers and employees at large, who bear the burden of increasing insurance premiums as the result of uninsured employers and their injured employees.

 

LEGISLATIVE CHANGES

Proposed House Bill 17-1119 attempts to address payment for injured workers who do not have coverage through their non-compliant employer. HB 17-1119 is currently a proposed Bill, but is likely to be approved later this year. The Bill was introduced on January 20, 2017, and must still pass the State House and Senate, as well as be signed into law by the Governor.

Coverage:  The fund would cover claims occurring on or after January 1, 2019 that have been adjudicated compensable, where the employer has been determined uninsured and has failed to pay the full amount of benefits ordered. The fund does not cover a partner in a partnership or owner of a sole proprietorship, the director or officer of a corporation, a member of an LLC, the person who is responsible for obtaining workers’ compensation coverage and failed to do so, someone who is eligible for coverage but elected to opt out, or anyone who is not an “employee” under the terms of the Act.

Funding:  The fund is made up of the fines and other revenue collected by the Division that is specifically allocated to the fund, along with any gifts, grants, donations or appropriations. There is also a separate 25% paid to the fund based on benefit amounts owed by non-compliant employers.

Governance:  The fund is run by a board that includes the Director and four individuals representing each of the following: employers, labor organizations, insurers and a claimant attorney.  The board serves for a term of 3 years and may be reappointed with the exception of the initial board members. With regards to the initial board, one member shall serve for an initial term of three years, two members for a two-year term and one member for a one year term.  No one can serve more than three consecutive terms.  Benefits are to be paid at the ordinary rates. If the fund does not have enough money in the fund, the board can reduce the rates.  The board is unpaid.

Powers:  The fund has ordinary powers attendant to handling workers’ compensation claims.  Of interest, the fund has the power to intervene as a party in a case involving an uninsured employer, or other potentially responsible entity. Upon acceptance of the claim into the fund, a lien is created against any assets of the employer and its principles for the amount due as compensation. This lien has priority over all other liens except delinquent tax payment liens.  The lien can be perfected by filing in the appropriate court. Further, the fund becomes something akin to a secured creditor of any insolvent employer for amounts the fund determines may be needed to pay uninsured losses. Payment by the fund does not relieve the uninsured employer of payment obligations for benefits and the fund has the power to pursue any employer who defaults on those payments in District Court.

 

BOTTOM LINE

The proposed legislation creates a small safety net for injured workers of uninsured employers.  Given the ever-increasing costs of medical care, there is a valid question as to whether funding would be adequate to cover workers’ compensation benefits claimed by the injured workers.  Further, it will be interesting to see if respondents may be required to give notice to the fund in cases where liability is being adjudicated on a statutory employer issue. The fund may have a recognizable interest in such litigation, as the burden of paying workers’ compensation benefits would fall on the fund should there be a determination of no coverage. It is not unusual for a carrier or employer to settle potential statutory employer liability on a “denied” basis as opposed to proceeding to litigation, where adjudication might make statutory employer liability clear. The fund intervening in this type of case may prevent pre-adjudication settlement from occurring without some consideration being paid to the fund in the “denied” settlement as well.

legaLKonnection Firm Newsletter – February 2017

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

Linked-In Please follow Lee + Kinder LLC on LinkedIn

 


In the News

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

 

broadmoor2
The 2017 Colorado Workers Compensation Educational Conference is being held April 17-19 at the Broadmoor in Colorado Springs. Lee + Kinder LLC is an event sponsor. We invite you to join us for this educational event.

 


Victory Lap

 

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

 

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

 


mccracken1

 

 

 

 

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

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

 


Cases You Should Know

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

EMPLOYEE OR INDEPENDENT CONTRACTOR?

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

 

A worker’s status as an “employee” versus an “independent contractor” has been one of the most heavily litigated areas of workers’ compensation since the enactment of Colorado’s Workers’ Compensation Act in 1915.  Fortunately, after decades of appellate decisions addressing the independent contractor versus employee issue, in 1993, the General Assembly enacted section 8-40-202(2), C.R.S.  According to section 8-40-202(2), C.R.S., anyone performing work for you is an employee, unless such individual is:

 

  • Free from control and direction in the performance of the service, and
  • Customarily engaged in an independent trade, occupation, profession, or business related to the service performed.

 

The statute sets forth nine factors which give rise to a presumption that a worker is an independent contractor as opposed to an employee.  The statute contains various factors the courts will consider in determining whether a worker is, based on the totality of the circumstances, “engaged in an independent trade, occupation, profession or business”.  For example, if the worker has a separate business name, carries his or her own business insurance, has business cards, carries workers’ compensation insurance on any employees, is paid at a contracted rate, submits invoices for the work being performed, with payments being made to the named business, is performing services for other companies at the same time he or she is working for you, the facts suggest the worker is independent and you may not be required to cover him or her under your workers’ compensation policy.

 

The statute also requires the worker to be “free from control and direction in the performance of their services”.  If the worker provides their own tools and necessary supplies, performs the services being contracted on their own schedule, exercises independent judgment in performing the services and how they choose to perform them, again these facts suggest the worker is free from control and independent.  Unfortunately, the courts have repeatedly held there is no single dispositive factor, or series of factors, resulting in proof of an employer-employee relationship or independent contractor status under section 8-40-202(2), C.R.S.

 

The statute does provide for the use of a document to satisfy its requirements by a preponderance of the evidence.  If the parties use a written document to establish an independent contractor relationship, it must be signed by both parties and contain a disclosure, in type which is larger than the other provisions in the document or in bold-faced or underlined type, that the independent contractor is not entitled to workers’ compensation benefits and is obligated to pay federal and state income tax on any moneys earned pursuant to the contract relationship.  All signatures on the document must be notarized.  Such a document creates only a rebuttable presumption of an independent contractor relationship between the parties.

 

Still confused or unsure?  Please call Lee + Kinder LLC to discuss the facts of your situation.

legaLKonnection Firm Newsletter – January 2017

2017_newsletter_LK-header-badge

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

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Please follow Lee + Kinder LLC on LinkedIn

 


Victory Lap

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

 

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

 

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

 

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

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

 

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

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

 

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

 


 

 

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

 


Cases You Should Know

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

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

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

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

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

Division Proposed Changes to W.C.R.P. Rule 17 Exhibit 5 – Cumulative Trauma Disorders

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

 

The current version of the cumulative trauma Medical Treatment Guidelines were revised on September 16, 2010 and became effective on October 30, 2010. These Guidelines helped provide a framework to better address causation and clarified primary and secondary risk factors associated with some of the disorders. Physicians could now have a somewhat clear roadmap to address primary and secondary work factors in the workplace and narrow down whether an injured workers’ alleged condition was causally related to their job duties. Among the issues that were clarified were tasks such as keyboarding, mousing, the use of hand tools, and the repetitive task cycles and durations of each of activities in which an injured worker may be exposed to in the workplace.

 

When assessing causation, the Division’s Guidelines indicate the following:

Cumulative trauma related conditions (CTC) of the upper extremity comprise a heterogeneous group of diagnoses which include numerous specific clinical entities including disorders of the muscles, tendons and tendon sheaths, nerves, joints and neurovascular structures. The terms “cumulative trauma disorder”, “repetitive motion syndrome”, “repetitive strain injury”, “myofascial pain” and other similar nomenclatures are umbrella terms that are not acceptable, specific diagnoses. The health care provider must provide specific diagnoses in order to appropriately educate, evaluate, and treat the patient. Examples include: de Quervain’s disease, cubital tunnel syndrome, and lateral/medial epicondylitis (epicondylalgia).

Many patients present with more than one diagnosis, which requires a thorough upper extremity and cervical evaluation by the health care provider. Furthermore, there must be a causal relationship between work activities and the diagnosis (See, Section D.3 Initial Diagnostic Procedures, Medical Causation Assessment). The mere presence of a diagnosis that may be associated with cumulative trauma does not presume work-relatedness unless the appropriate work exposure is present. Mechanisms of injury for the development of cumulative trauma related conditions have been controversial. However, repetitive awkward posture, force, vibration, cold exposure, and combinations thereof are generally accepted as occupational risk factors for the development of cumulative trauma related conditions. Evaluation of cumulative trauma related conditions require an integrated approach that may include ergonomics assessment, clinical assessment, past medical history and psychosocial evaluation on a case-by-case basis.

The normal working age population may often have non-specific pain complaints that require minimum treatment and may be considered part of the normal aging process. When pain continues or a complete history indicates a potential for other diagnoses, a medical workup may be necessary to screen for other diseases. However, in cases where there is no specific diagnosis and corresponding work related etiology, the work-up should generally be performed outside of the workers’ compensation system.

When applying the algorithm in Exhibit 5, the first step requires the physician to establish the diagnosis for the patient. Once completed, the second step requires the assessing physician to obtain the injured workers’ job duties and clearly define the specific tasks involved. The physician may require a jobsite evaluation to determine each task. The third step focusses on each specific job duty and whether it classifies as a primary or secondary risk factor. Primary and secondary risk factors both involve measuring force and repetition over different periods of time.

 

Currently, if neither a primary or secondary risk factor are present in the job duties of the injured worker, the condition is presumed to not be work related. If there are one or more identifiable primary risk factors, and the risk factor is physiologically related to the diagnosis, then the condition may be work related. If the primary risk factor is not physiologically related with no secondary risk factors, then again the condition is likely not work related. Once a physician arrives at identifying secondary risk factors, the fourth step in the algorithm goes a bit further and requires the physician to identify diagnostic-based risk factor tables to narrow down causation. There are several non-work related factors in assessing causation, such as the patients’ age, gender, whether the patient uses tobacco products, etc., that help in determining a non-work related cause.

 

Most of the algorithm and causation criteria remain unchanged in the Division’s latest proposals. Only certain portions have been revised to take into consideration particular nuances in the primary and secondary risk factors. One of the proposed changes to the Guidelines indicates that in the case of an aggravation or exacerbation of a pre-existing condition, the physician will now need to make an individualized causation decision based on the presence of other accompanying conditions. The physician must take each patient on a case by case basis.

 

Another proposed change is the increased amount of force but reduced task cycles and durations as primary risk factors. Force and repetition, coupled with duration, now require six hours of the use of two pounds of pinch force or ten pounds hand force 3 times or more per minute. The secondary risk factors have been reduced from 4 hours to 3 with the same two pounds of pinch force or ten pounds of hand force 3 times or more per minute. The physicians will have to apply the same steps in the algorithm to reach their conclusions; however, the specific criteria for primary and secondary risk factors have been updated based on the latest studies and literature. These are not the only changes to the Guidelines. Certain other updates have been made depending on the specific primary or secondary risk factor being addressed, (i.e. awkward posture, computer work, the use of handheld vibratory power tools, and cold working environments).

 

When a claimant alleges a particular occupational disease in which Exhibit 5 of the Medical Treatment Guidelines will be applied to determine causation, it is best to seek an Independent Medical Examination with a physician knowledgeable in applying the causation matrix. As part of the investigation of the claim, the IME physician should also be provided with a specific job description or worksite evaluation to properly identify each of the job duties that the injured worker performs. Most treating physicians will only obtain direct knowledge of the injured workers’ job duties directly from the injured worker. This oftentimes provides a skewed perception of the specific job duties, which in turn skews the overall analysis by the physician. The treating physician may find a claim to be work related when it should not be if the algorithm was properly applied.

 

If the IME physician has the specific job description/ergonomics assessment, coupled with medical records to establish the proper diagnosis, the physician will be in a better position to properly apply the causation matrices and provide a solid framework for reaching a causation determination. The IME physicians’ report can then be sent to the treating physician to properly assess causation and provide treatment to the injured worker or, in some cases, prevent treatment from being provided to the injured worker when it is not work-related, thus saving on medical costs.

 

The proposed changes to Rule 17 are not yet in effect. These are proposed changes but no rule making hearing has been announced. We suggest checking the Division website periodically. Once the changes do go into effect, we will make an announcement and let you know what changes were approved.

 

For additional questions regarding updates to the Medical Treatment Guidelines or recommendations when confronted with a particular issue on causation, please contact the attorneys at Lee + Kinder LLC.

legaLKonnection Firm Newsletter – December 2016

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

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In the News

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

 

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

 


Victory Lap

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

 

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

 


CupOJoe_MEM

 

 

 

 

Division Rule 16: Increasing the Complexity of Utilization Preauthorization Disputes

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

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

 

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

 

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

 

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

 

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

 

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

Division Rule 16: Increasing the Complexity of Utilization Preauthorization Disputes

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

 

The most significant addition to Rule 16 was the incorporation of the “Notification” provision found in Rule 16-9. The Notification process was the Division’s response to concerns about expediting medical services to injured workers while guaranteeing that the medical providers would receive payment without a prior promise of payment from the insurance carrier or TPA. Rule 16-9(A) states “[t]he Notification process is for treatment consistent with the Medical Treatment Guidelines that has an established value under the Medical Fee Schedule. Providers may, but are not required to, utilize the Notification process to ensure payment for medical treatment that falls within the purview of the Medical Treatment Guidelines. Therefore, lack of response from the payer within the time requirement set forth in section 16-9 (D) shall deem the proposed treatment/service authorized for payment.”

 

The language contained in Rule 16-9(B) emphasizes that a medical provider “may” obtain permission to provide a service within the Medical Treatment Guidelines verbally within normal business hours.  The providers can obtain verbal confirmation and may make a request for written confirmation regarding payment of those services. If the provider wishes, the provider can submit a written Notification to the claim examiner. The provider must use the boilerplate Division form WC195, which is available online at the Division’s website. The provider must include on the form a statement as to why the service is medically necessary and cite the applicable MTG.

 

After the carrier or TPA receives the Notification, the respective recipient has 5 business days from the receipt of the Notification to respond to the provider. The timing for the response to the provider differs from the current structure of Rule 16 whereby the carrier is permitted 7 business days from the date of the request to respond to the request for authorization. If the carrier or TPA does not respond to a verbal or written request in 5 business days, the requested service is deemed automatically authorized for payment.

 

The carrier or TPA may either accept or deny the request for services. Similar to the current Rule 16 structure, the carrier or TPA always reserves the right to agree to pay for the requested services without a formal review of the requested services. The carrier or TPA can alternatively contest the services on the following grounds: “(1) for claims which have been reported to the Division, no admission of liability or final order finding the injury compensable has been issued; (2) proposed treatment is not related to the admitted injury; (3) provider submitting Notification is not an Authorized Treating Provider (ATP), or is proposing for treatment to be performed by a provider who is not eligible to be an ATP; (4) injured worker is not entitled to proposed treatment pursuant to statute or settlement;  (5) medical records contain conflicting opinions among the ATPs regarding proposed treatment; and (6) proposed treatment falls outside the Medical Treatment Guidelines (see section 16-9(E).”

 

If the carrier or TPA contests the Notification on the grounds that the treatment is not related to the industrial injury, the medical records contain conflicting opinions, or that the treatment falls outside of the MTG, the carrier or TPA must notify the provider. The carrier or TPA must then allow the provider to submit supporting documentation to justify the relatedness of the service. If the provider submits the requested supporting documentation, then the carrier or TPA must review the request consistent with the Rule 16-10 and 16-11 preauthorization rules within 7 business days. A party contesting the denial of a Notification request may file an Application for Hearing.

 

The Division inserted a penalties provision in Rule 16-9(G). Under this new rule, if any medical provider or payer, the carrier or TPA, misapply the Medical Treatment Guidelines in the Notification process, the respective party may be subject to penalties. This provision continues the Colorado state government’s history of advocating punitive sanctions for violations of administrative rules.

 

In addition to the Notification provision, the Division altered the rules pertinent to traditional utilization review contests for medical services outside of the MTG.  The utilization standards contained in Rule 16-10 largely remained unchanged by the new rule. The modification to Rule 16-11, however, focused upon remodeling the carrier’s and TPA’s right to contest the request for authorization.  Prior to January 1, 2017, in order to contest the request for preauthorization for services, the carrier or TPA had 7 business days to obtain a medical review or file an Application for Hearing to challenge the request. After January 1, 2017, the carrier or TPA must follow a different procedure to contest preauthorization, presuming that medical providers perfect their request for authorization.

 

Under the new Rule 16-11(E): “[f]ailure 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).” In short, filing an Application for Hearing by itself is no longer sufficient to contest the preauthorization request. If the carrier or TPA requests a hearing, the carrier or TPA must complete the medical review process within seven business days or actually schedule the injured worker for an Independent Medical Evaluation (“IME”) within seven business days.

 

The new Notification process for medical services, consistent with the MTG and the limitations on contesting a requests for preauthorization for services outside of the guidelines, raises numerous questions on how the rules will practically operate. For instance, does a verbal Notification for a service within the MTG left on a claims examiner’s voicemail meet the criteria for Rule 16-9(B)? Does an injured worker have legal standing to request penalties under Rule 16-9 if a medical provider misapplies the MTG in a request thereby causing a delay in medical treatment? If a carrier or TPA files an Application for Hearing and schedules an IME, and the IME is later cancelled for various reasons, is the requested service automatically authorized? Given the historical litigation surrounding Rule 16 utilization reviews, carriers and TPAs should begin implementing safeguards and training to ensure strict compliance with the complex additions to the modified rule.

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