legaLKonnection Firm Newsletter – August 2017

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

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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

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

 

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

 

 


Victory Lap

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

 

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

 

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

 


     

 

 

 

SETTLEMENTS POST ENGLAND

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

 


Cases You Should Know

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

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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

SETTLEMENTS POST ENGLAND

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

 

BACKGROUND

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

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

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

 

ANALYSIS

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

 

AFTER ENGLAND

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

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

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

 

BOTTOM LINE

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

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

legaLKonnection Firm Newsletter – July 2017

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

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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

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

 


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

 

 


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

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

Here are some of the key proposals:

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

 


Victory Lap

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

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

 

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

 


 

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


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

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

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

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

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

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

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

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

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

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

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

 

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

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

 

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

 

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

To File or Not to File? That is the Question

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

legaLKonnection Firm Newsletter – May 2017

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

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Please follow Lee + Kinder LLC on LinkedIn

 


In the News

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


 

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

 


 

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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,
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In the News

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

 

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

 


Victory Lap

 

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

 

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

 


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

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

 


Cases You Should Know

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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.

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