legaLKonnection Firm Newsletter – April 2017

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

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In the News

Lee + Kinder Super Lawyers 2017

 

Lee + Kinder Associates


Victory Lap


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

 


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


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

 


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

 

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

 

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

 

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

 


Cases You Should Know

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


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


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


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


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


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


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


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


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


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


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

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.

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

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

legaLKonnection Firm Newsletter – December 2016

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

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In the News

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

 

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

 


Victory Lap

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

 

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

 


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Division Rule 16: Increasing the Complexity of Utilization Preauthorization Disputes

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

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

 

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

 

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

 

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

 

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

 

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

NEW OVERTIME RULES

The Department of Labor’s (“DOL”) new overtime rules take effect December 1, 2016,usdol_seal and employers should be reviewing and modifying their compensation and payroll practices in response. Here is a link to the new regulations adopted by the Department of Labor:

http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=28355

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

The new overtime rules increase the salary levels at which executive, administrative, and professional workers may be considered “exempt” under the Fair Labor Standard Act (“FLSA”) from overtime pay when a work week exceeds 40 hours. Initially, the standard salary level will increase from $455 to $913 per week and the total annual compensation requirement for highly compensated employee exemption will increase from $100,000 to $134,004 per year.  In addition to these initial compensation level bumps, additional upward adjustments are scheduled to occur every three years thereafter.

The immediate impact on this change is that currently classified “exempt” employees under the lower salary level, will no longer qualify for this status.  As a result, if an employee is no longer exempt under the FLSA, overtime must be paid for work performed beyond the 40-hour work week.

Employers need to respond to these changes in a number of ways.  Some are raising base salaries in order to classify additional employees as “exempt.”  Others are planning to simply pay overtime where necessary.  Others are planning to cap hours at 40 so that no overtime need be paid, or to meet their needs with part-time workers.

Regardless of the planned changes, effects on the employer’s benefit plans must be considered.  The DOL’s new overtime rules will require many employers to make sweeping and expensive changes to their compensation practices.  These changes may impact employee benefit plans in both intended and unintended ways.  Employers are urged to conduct a thorough benefit plan analysis before making any sweeping compensation changes.

If you have questions about the rule, or how it may affect your company, please contact us.

legaLKonnection Firm Newsletter – September 2016

Lee + Kinder LLC

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm, as well as in the insurance defense community.
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In the News
PWC_GolfLee + Kinder LLC had a great showing at the 2016 Professionals in Workers’ Compensation golf tournament with 4 lawyers in attendance. Member Katherine Lee and Of Counsel Frank Cavanaugh played with different foursomes. Member Joseph Gren and Associate Matt Boatwright manned the Lee + Kinder sponsored golf hole number 17 wherein a lucky hole-in-one would win $10,000.00. Unfortunately, no one aced the hole, but a great time was had by all.

 


Victory Lap

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

 

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


mccracken1

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

 


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

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

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

Click here to read the changes to Rules 1-9


Cases You Should Know

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

 

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

 

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

 

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

 

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

WORKERS’ COMPENSATION RULES OF PROCEDURE CHANGES Effective 9/14/16

Amendment 69 Colorado

Worker’s Compensation Rules of Procedure Changes

EFFECTIVE 9/14/16

 

 

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

 

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

 

  • Rule 1:

1-1 “Service” is now defined as delivery by US mail, hand delivery, facsimile or, with consent of the party being served, email.

Rule 1-2 contains language from Civil Rule of Procedure 6 over computation of time.  It outlines that you do not count the day of the act; however, you do count the last day in the time period unless it is a Saturday, Sunday or legal holiday.  If that is the case the timeframe moves to the next day.

Rule 1-4 now states that unless it is specifically allowed by the Division documents may not be filed with the division by email.

 

  • Rule 5

Rule 5-2 still requires a statement regarding liability for any claim assigned a WC number, or when the first report of injury should have been filed; however, the first report of injury has to be filed before a notice of contest will be accepted by the Division.

Rule 5-5 requires that the final admission of liability include the M164 form, the physician’s narrative report and the rating sheets.

Rule 5-5 requires that an MMI report include a position on maintenance medical and that a final admission of liability state a position on maintenance medical benefits making specific reference to medical report, including the physician’s name and date of the report.

Rule 5-5 allows for medical only claims, that have been reported to the Division with no PPD, only require the attachment of a narrative report and worksheets if they were supplied by the physician.

Rule 5-5 now requires any safety rule reduction must include the specific facts supporting the reduction on a separate sheet of paper.

 

  • Rule 6

Rule 6-1 organized the requirements for a modified duty offer.  It still requires a copy of the written inquiry to the physician over the modified duty be provided to claimant at the same time as it is provided to the physician and that the claimant be provided 3 business days from the date of the receipt of the offer to return to work or respond.

Rule 6-6 governing terminating temporary disability benefits due to confinement, no longer requires a certified copy establishing confinement.

 

  • Rule 7

Rule 7-1 governing closure of a claim through abandonment requires that a new general admission be filed in the event that there is an objection to the final admission of liability file to close the claim for abandonment.

Rule 7-1 does not allow closure of a claim for failure to prosecute to be submitted by email.

Rule 7-1 governing closure by voluntary abandonment no longer requires notification to the claimant of the reopening provisions.

 

  • Rule 8

Rule 8-6 governing when there is a transfer of medical care at claimant’s request, states that the treating relationship with the prior physician terminates upon the initial visit with the new physician.

Rule 8-7 requires a written request for change of physician, and denial of that request, be made under a specific form, WC197.

 

  • Rule 9

 

Rule 9-2 allows the addition of any prehearing issue by any party without permission within 2 business days of setting.

Rule 9-3 allows motions for consideration by the PALJ to be submitted by email.

Rule 9-9 does not allow settlement document amounts to include consideration for issues outside of the jurisdiction of the DOWC.

Rule 9-9 allows that only pro se claimants may withdraw a waiver of advisement hearing within 3 days of signing the settlement documents.

 

OSHA Injury and Illness Reporting Requirements

The Occupational Safety and Health Administration (OSHA) requires many employers with ten or oshalogomore employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted).  Employers must report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of any worker within 24 hours.  Minor injuries requiring only first aid do not need to be recorded.   This information helps employers, workers and OSHA evaluate the safety of a workplace, understand workplace hazards and prevent future workplace injuries and illnesses.

OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data.  Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically.  Some of the electronically submitted data will then be posted to OSHA’s website.  OSHA believes that this public disclosure of employer information will “nudge” employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.  The amount of data submitted and publically posted will vary depending on the size of the company and the type of the industry.

The expanded Rule prohibits employers from “discouraging” workers from reporting an injury or illness.  The final Rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.   Originally slated to take effect August 10, 2016, OSHA is delaying enforcement of the anti-retaliation provisions in its new Injury and Illness Record-keeping Rule to provide education and outreach to employers.  Enforcement of the anti-retaliation provisions of the Rule will now begin November 1, 2016 and the record-keeping rule takes effect on January 1, 2017.

You might feel confident that your workplace is already in compliance with the “anti-retaliation” provisions of OSHA’s Injury and Illness Recordkeeping Rule.  You may even be asking yourself, “How is this a change in the law?  Isn’t it already against the law to retaliate against an employee for reporting a workplace injury or illness?”  While section 11(c) of the Occupational Safety and Health Act prohibits any person from discharging or discriminating against an employee for reporting an injury, illness or fatality, OSHA may not act under that section unless the employee files a complaint within 30 days of the retaliation.  OSHA believes the new Rule is vital as it gives OSHA the “ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves”. Further, the issues under the expanded rule are more complicated than they first appear. You could be inadvertently violating provisions of the rule and unexpectedly land yourself in hot water with OSHA.

Here are some common workplace safety policies that could result in violations of OSHA’s new anti-retaliation provisions:

  1. Mandatory post-accident drug testing programs: The OSHA rule specifically recommends against “blanket post-injury” drug testing policies. However, OSHA also specifically indicates the rule does not prohibit post-injury drug testing of employees.  It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.  That being said, in connection with the rule, OSHA stated, “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.”  Therefore, OSHA’s position on blanket post-injury drug testing appears to be equivocal and leaves employers without clear direction.  OSHA’s recommendation against blanket post-injury drug testing may prove particularly problematic, given that Colorado’s Worker’s Compensation Act clearly contemplates post-accident drug and alcohol screening in light of C.R.S. sections 8-42-112, (“safety rule violation”), 8-42-112.5, (the “intoxication defense”), 8-42-103(1)(g) and 8-42-105(4)(a), (the “termination statutes”).  For employers with “zero tolerance” policies, a positive post-accident drug or alcohol test could result in the termination of an injured employee’s employment, reducing their temporary indemnity benefits to zero.  If the employer proves either an intoxication defense or safety rule violation, the injured employee’s indemnity benefits, temporary and permanent, would be reduced by 50 percent.  While these concerns may not directly impact the course of worker’s compensation litigation, they could give rise to employment litigation outside the workers’ compensation system, particularly in light of OSHA’s independent ability to raise the retaliation issue under the expanded rule, without the need for the worker to file a complaint.

 

  1. Providing incentives exclusively to employees that have not been involved in workplace incidents or accidents: While OSHA indicates the rule does not prohibit incentive programs, it does state employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. For example, if you are trying to minimize injury by providing cash bonuses, paid time-off, employer-sponsored parties, or other compensation, for a certain number of “injury-free” days, or “no lost time”, you could be in violation of the rule. Unfortunately, OSHA’s alternative direction is vague at best.    OSHA recommends incentive programs that “encourage safe work practices” and “promote safety-related activities”.

 

  1. If injured, off-work employees are excluded from workplace events, which could be considered a benefit of employment, such as luncheons, parties, football pools, birthday celebrations, or other work-related events or functions.

OSHA’s new Injury or Illness and Record-keeping Rule is complicated and could result in a quagmire of retaliation and perceived retaliation claims.  Your current safety policy and procedures should be reviewed for compliance with the expanded rule.  If you have questions about the rule, or whether your policies are in compliance, please contact us.

Investigation of Outstanding Medicaid Liens in Workers’ Compensation Claims

The Colorado Department of Health Care Policy and Financing, through its Medicaid program, is responsible hcpffor collection of outstanding liens for the state.   This department is in charge of disbursement of state funds to indigent citizens in need of medical benefits.  Oftentimes, a claimant will pursue medical benefits through the department if they qualify.   This may be true even when a claimant has a current workers’ compensation claim on file with the Division of Labor.  Qualification for a particular program, through the state funded Medicaid partnerships, involves several criteria.  If a citizen qualifies, benefits may be paid regardless of the current status of a workers’ compensation claim.   The Medicaid department will assert its lien, (referred to as a “recovery right”), against the claimant and the workers’ compensation claim.

A lien usually arises at one of two points in the workers’ compensation litigation.  The first such instance occurs when a claim is denied by the carrier and the claimant chooses to pursue medical benefits through the applicable Medicaid programs.   These claims usually involve substantial forms of medical treatment, (i.e. surgeries), in which time is of the essence and a claimant cannot wait for resolution of compensability and causation issues in their workers’ compensation claims.  The claimant may choose to obtain the surgery through the authorized treating physicians or through their own personal care physician.  Should the claim be found compensable by an ALJ, it is important to distinguish between the benefits provided and through which physicians the claimant received treatment.   Regardless of the legal arguments to be made, Medicaid will assert its right of recovery against the benefits paid and will await resolution of the claim before doing so.

The second such instance occurs when a claimant has received medical benefits through the state funded Medicaid program and the treating physician finds a particular treatment to either be related to the claim, (or not related to the claim). The benefits are disputed through the workers’ compensation process, and the claimant obtains treatment without waiting for resolution of the workers’ compensation issues.   In this example, the opinions from the treating physicians will be important in determining liability for the outstanding lien.  If a treating physician deems the medical benefits to be related to the claim, and the claim is resolved through a settlement or other means, the carrier will be liable for payment of the lien.   Recovery of the lien cannot be shifted by the parties in the workers’ compensation claim.  However, if the treating physicians deemed the treatment to be non-work related, the carrier may be able to dismiss any causes of action by providing the opinions of the physicians to the proper investigative authorities within the department.

 

Legislative Authority

Colorado’s Medicaid programs derive their authority from one main portion of section 25.5 of the Department of Health Care Policy and Financing Act.  Section 25.5-4-301(5)(a), C.R.S. states, “When the state department has furnished medical assistance to or on behalf of a recipient pursuant to the provisions of this article, and articles 5 and 6 of this title, for which a third party is liable, the state department shall have an automatic statutory lien for all such medical assistance. The state department’s lien shall be against any judgment, award, or settlement in a suit or claim against such third party and shall be in an amount that shall be the fullest extent allowed by federal law as applicable in this state, but not to exceed the amount of the medical assistance provided.”

Additionally, section 25.5-4-301, C.R.S. states, “When the applicant or recipient, or his or her guardian, executor, administrator, or other appropriate representative, brings an action or asserts a claim against any third party, such person shall give to the state department written notice of the action or claim by personal service or certified mail within fifteen days after filing the action or asserting the claim. Failure to comply with this subsection (6) shall make the recipient, legal guardian, executor, administrator, attorney, or other representative liable for the entire amount of medical assistance furnished to or on behalf of the recipient for the injuries that gave rise to the action or claim. The state department may, after thirty days’ written notice to such person, enforce its rights under subsection (5) of this section and this subsection (6) in the district court of the city and county of Denver; except that liability of a person other than the recipient shall exist only if such person had knowledge that the recipient had received medical assistance or if excusable neglect is found by the court. The court shall award the state department its costs and attorney fees incurred in the prosecution of any such action.”   (Emphasis added)

Lastly, section 25.5-4-301(5)(b) states, “No judgment, award, or settlement in any action or claim by a recipient to recover damages for injuries, where the state department has a lien, shall be satisfied without first satisfying the state department’s lien. Failure by any party to the judgment, award, or settlement to comply with this section shall make each such party liable for the full amount of medical assistance furnished to or on behalf of the recipient for the injuries that are the subject of the judgment, award, or settlement.”

These three portions of the statute are important to remember prior to resolving any workers’ compensation claim.  Specifically, if the carrier or the insured has any knowledge that Medicaid paid for any potential treatment in connection with the workers’ compensation claim, the carrier must investigate and contact the Department of Health Care Policy and Financing to inquire about any potential liens.  The duty to investigate is not on Medicaid or the State of Colorado, but rather the duty rests with each party to the workers’ compensation claim.   Failure to notify Medicaid prior to resolution of the workers’ compensation claims will cause the outstanding balance to become due and owing in full unless a separate argument can be made regarding the medical benefits provided to the claimant recipient.  This is the case regardless of any language placed into any agreements, stipulations, settlements, or the like that are agreed upon between the parties.

 

Recommendations

The carrier and the Employer, (either through counsel or individually), should always investigate whether any Medicaid liens exist at the state level.   Outstanding Medicaid liens differ from other liens due to the duty imposed on the carrier through statute.  Failure to investigate any outstanding liens could lead to potential reopening of claims long after they have been resolved.  Investigation could happen in a number of ways.  The simplest way involves contacting the department in writing and providing the identifying information of the claimant to search for any liens.  The department will usually respond within a few days notifying the carrier of any issues.    However, this manner may be problematic for adjusters especially in light of the volume of claims at any given time.  If counsel is assigned, the inquiry can be made by email or through general discovery pending on a litigated claim.  Discovery responses from the claimant can reveal receipt of any benefits through Medicaid or otherwise.

For more information about specific Medicaid issues on any workers’ compensation claims and recovery of liens, please feel free to contact us.   References about the Colorado Medicaid programs can be found here.

A Painful Step in Addressing the Opioid Epidemic: An Overview of the 2016 CDC Guidelines

The growing epidemic of chronic opioid use and addiction, and its consequences, permeates theopiod American medical and legal landscape.  Since the spike in the use of ubiquitous pain medications in the late 1990s, there has been little actual oversight in the health care industry to regulate the prescription of these highly addicting drugs.  In March 2016, the Center for Disease Control (CDC) released new guidelines concerning opioid pain prescriptions. The guidelines have caused some backlash from physicians, who believe the government is now overreaching into the patient-physician relationship, and shifting from its historical role of approving the use of opioids at the regulatory level. Aside from the finger pointing amongst stakeholders in the health care industry, from the government, to big pharma, to the physicians who continue to administer, to the legal system, the fact is there is plenty of blame to go around for the cause of the epidemic. The response to the guidelines reflects the fundamental agreement that more oversight and education is needed at all levels.  The CDC’s new guidelines are a broadened approach with the goal of addressing the epidemic from the top down.

 

The authors of the guidelines, which were an amalgam of health care professionals, cited a jaw dropping statistic. In 2012, health care providers wrote 259 million prescriptions for opioid medications. That is one prescription for every adult in the U.S. The increase in prescriptions were found in the areas of family practice, general practice, and internal medicine. From 1999 through 2014, more than 165,000 people died from opioid related deaths in the U.S. The authors pointed out that contemporary studies evidenced that opioids have adverse long term affects including significant physical impairment and distress. The authors stated that, “this disorder is manifested by specific criteria such as an unsuccessful effort to cut down or control use resulting in social problems and a failure to fulfill major role obligations at work, school, or home.” In other words, continued prescription of opioid medications can be a contributing factor in an injured worker not returning to the work place.

 

The substance of the CDC guidelines can be broken into three general categories:

(1) when to start or continue administration of opioids for chronic pain symptoms;

(2) how practitioners should select a particular drug, the dosage, and when to discontinue that specific dosage; and

(3) how to mitigate the potential for addiction from start to finish.

The guidelines are not intended to apply for cancer and end-of-life palliative care. Rather, the guidelines are intended to apply to primary providers, including those who work in out-patient clinical settings.

 

The guidelines emphasize the benefits of non-opioid treatments. For lower back pain, exercise therapy and non-steroid anti-inflammatories are recommended. As an alternative to opioids, cognitive behavioral therapy is recommended to mitigate disability and catastrophic thinking. If, and when, opioids are utilized in a treatment program, the physician should continue prescriptions if “meaningful improvement” in pain and function outweighs the risk of continued use. The guidelines recommend that the patients demonstrate a 30% improvement in pain scores and function to justify continued opioid use. In other words, opioids must be used as a method to improve function rather than as a “band-aid” approach to sustain the status-quo condition.

 

During the continuation process, the physician should actively manage the patient’s case by reviewing any history of controlled substances and utilize their state’s prescription drug monitoring program periodically, while performing, at a minimum, annual urine tests. In Colorado, for example, the Workers’ Compensation Medical Treatment Guidelines (MTG), Rule 17 Exhibit 9, have independent criteria for treating chronic pain in workers’ compensation case. The MTG emphasizes similar recommendations for active case management, including urine screens.  Additionally, the Department of Regulatory Agencies, in connection with several state medical boards, released an “Open Letter to the General Public on the Quad-Regulator Joint Policy for Prescribing and Dispensing Opioids” on October 15, 2014. While the policy does not draw a bright line rule of managing opioid cases in Colorado, the letter does outline the boards’ recognition that “decreasing opioid misuse and abuse in Colorado should be addressed by collaborative and constructive policies aimed at improving the prescriber education and practice, decreasing diversion, and establishing the same guidelines for all opioid prescribers and dispensers.”  The board also emphasized documenting improved functions, the use of the PDMP (Prescription Drug Monitoring Program), and random drug screening based upon the provider’s clinical judgment.

 

The CDC guidelines are important to workers’ compensation treatment and claims. The guidelines suggest that long term opioid use can be counterproductive in workers’ compensation. How these guidelines will be used by workers’ compensation physicians, in order to return injured workers’ back to work, has yet to be known. But the guidelines can be used in an effort to mitigate risk for future exposure in the litigation process. From a legal perspective, the guidelines, though not binding on any physician, are a peer reviewed document by both experts in the field and industry stakeholders. In this author’s opinion, the guidelines itself meet the threshold evidentiary requirement in Colorado as an admissible, reliable medical document. For more information, please feel contact us with specific case-related questions. As a resource, the CDC guidelines can be found here. A copy of the Colorado joint letter on prescribing and dispensing opioids can be found by following the link located here.

 

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