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.

 

COLORADO SUPREME COURT CLARIFIES THE FIREFIGHTER CANCER STATUTE

BACKGROUND

In 2007 the Colorado Legislature enacted a firefighter cancer presumption statute at Section 8-41-209, C.R.S.  The statute created a presumption that certain cancers were caused by work as a firefighter if the individual diagnosed with the cancer worked in the capacity for at least five years. firefighter For the cancer to be deemed a compensable occupational disease, the firefighter would have had to undergo physical examination upon becoming a firefighter that failed to reveal the cancer at that time. The presumption could be rebutted if the firefighter’s employer or insurer could show by a preponderance of medical evidence that the condition did not occur on the job.

This statute is similar to other presumption statutes that sprung up across the country in the wake of firefighters’ and other first responders’ actions during the 9/11 terrorist attacks.  The general premise behind the presumption is that firefighters are exposed to known carcinogens to a greater extent than other occupations and that development of cancer is a known effect caused by exposures to these carcinogens.

A series of cases had been litigated before different ALJs involving varying cancers and exposures wherein employers tried to overcome the presumption of compensability.  The ALJs, the ICAO and the Colorado Court of Appeals in a series of decisions essentially interpreted the presumption statute as being an irrebuttable presumption, requiring the employer to show an alternative cause for claimant’s cancer. The practical effect of this interpretation was to make the presumption statute similar to a strict liability statute. This is due to the fact that it is impossible to demonstrate that an individual’s cancer was in fact caused by something other than work as a firefighter.

THE ZUKOWSKI CASE

Mr. Zukowski began working as a firefighter for the town of Castle Rock in 2000. He underwent a physical examination at the time with his personal physician where there were some concerns raised over moles on his skin. Mr. Zukowski also worked part-time doing construction outdoors and eventually started his own business building decks and furniture. Mr. Zukowski spent a lot of time outdoors running, hiking and cycling when he was not working.

In 2002 Mr. Zukowski had five moles removed and biopsied. In 2008 he developed a mole on his right calf and ultimately in 2011 Mr. Zukowski was diagnosed with melanoma on his right outer calf at the same site where a mole that developed several years earlier. He had several surgeries to remove the mole and returned to full duty work, but made a claim for medical and temporary disability benefits under the presumption statute.  At hearing the parties stipulated that Mr. Zukowski was entitled to the presumption so the only issue is whether the employer overcame the presumption. The employer presented evidence regarding Mr. Zukowski’s known risk factors for developing melanoma including exposure to the sun and a history of abnormal mole growth. The ALJ found that Castle Rock’s burden in trying to overcome the presumption was to prove by medical evidence that claimant’s cancer came from a specific cause not occurring on the job.

On appeal to the ICAO, the ICAO essentially agreed with the ALJ. Castle Rock appealed the ICAO’s decision to the Colorado Court of Appeals, arguing that the ALJ misapplied the presumption when the ALJ determined that risk factor evidence was insufficient to rebut the presumption. The Court of Appeals agreed with the town of Castle Rock, looking at cases from other jurisdictions with a similar presumption statute and concluding that employer may overcome the presumption with specific risk evidence demonstrating that the particular cancer was probably caused by a source outside of work.

The Colorado Supreme Court granted certiorari in Zukowski along with a companion case involving a similar issue.  The Colorado Supreme Court agreed that Castle Rock was not required to establish an alternate cause for the cancer to overcome the presumption. The Colorado Supreme Court further held that in presenting risk factor evidence, which demonstrates the cancer was more probably caused by something other than work, can rebut the presumption.

AFTERMATH OF ZUKOWSKI

The aftermath of the Zukowski decision is not known yet.  I have tried cancer cases similar to Zukowski, where multiple potential employers were liable for the cancer and ultimately won for my client, but only because the last employer in claimant’s employment history was found liable.  I authored an amicus brief for the Colorado Self-Insured Association in Zukowski, so I have a pretty good idea of where these cancer cases are going.

Before Zukowski, firefighter cancer cases were very simple for claimant to prove. Claimant would appear with a doctor who would testify that the firefighter’s particular cancer fell within the types enumerated in the statute. The doctor would offer their opinion that since claimant worked for five years as a firefighter, claimant’s cancer was presumed caused by that work.  There was no amount of alternate risk evidence that would overcome the presumption as interpreted before Zukowski.

After Zukowski, litigating a firefighter cancer case will be much more involved when there are other risk factors to explain the cancer. Further, every risk factor relative to a particular cancer will have to be explored. For instance, the case I tried involved prostate cancer. Claimant had a significant family history of prostate cancer and was clearly predisposed to developing prostate cancer. Further, expert testimony was presented that prostate cancer is not something one would expect to see from exposure to carcinogens as a firefighter. Is predisposition to developing cancer a risk factor after Zukowski? It is certainly not as clear a risk factor as is exposure to sun and developing melanoma, where the cause-effect relationship is clear. Therefore, I believe these cases will become cancer and fact specific.

BOTTOM LINE

Further clarification through litigated cases is required to flesh out the presumption statute. For instance, in my prostate cancer case, claimant had his prostate removed and returned to work as a firefighter. If claimant develops another type of cancer is that an entirely separate claim? If claimant’s prostate cancer spread to a different organ after the prostate was removed, is that a new claim or continuation of the same claim? Is there a medical basis to prove that the cancer has recurred in a different organ or that it is an entirely new instance of cancer?  These questions arising out of the firefighter cancer presumption statute are all still unanswered.

 

legaLKonnection Firm Newsletter – March 2016

newsletter_LK-header-badge2016

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.

In the News

Lee + Kinder, LLC is very proud to have three of its own recognized by Super Lawyers as outstanding in their field: Katherine M. Lee, 2012-2016 Super Lawyer, Joshua D. Brown, 2014-2016 Rising Star, and Joseph W. Gren, 2014-2016 Rising Star.

 

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The Rising Stars list is developed using the same patented multiphase selection process used for the Super Lawyers list; however, to be eligible for inclusion, a candidate must be either 40 years old or younger, or in practice for 10 years or less. Under this rigorous selection process, only the top 5% of lawyers in a state are named to the Super Lawyers list, and only the top 2.5% to the Rising Stars list.


Victory Lap

Of Counsel Sheila Toborg and associate Stephen Abbott successfully defended Respondents’ interests at a full-contest hearing in Brougham v. Spectrum Wireless Solutions and Liberty Mutual, W.C. 4-961-481-03 (February 29, 2016). Claimant suffered a seizure on the job and sustained injuries when he hit his head on the ground. ALJ Lamphere found that Claimant’s injury was idiopathic in nature and denied his claim for benefits.

 

 

Of Counsel Joseph Gren had a successful month with several big wins. Mr Gren, and associate Matt Boatwright, successfully defeated two compensability claims alleged by the same Claimant in Speed v. United Parcel Service and Liberty Mutual Insurance, W.C. Nos. 4-983-398 and 4-958-598. Claimant claimed a back injury as a result of a slip and fall at the employer’s facility. Claimant subsequently alleged a neck, arm, and brain injury as a result of a second slip and fall on ice in the company parking lot. Mr. Gren litigated both claims at the same hearing and introduced evidence, which ALJ Cannici found to be persuasive, that no work-related event had occurred in either claim.

Mr. Gren and associate Dan Mowrey, also received a Summary Order denying compensability for a carbon monoxide poisoning claim in Jennifer Barnes v. Rural Metro Corporation and ACE America Insurance, W.C. No. 4-983-123. Claimant claimed that she was exposed to carbon monoxide from the exhaust of her ambulance while in the course and scope of her employment. Mr. Gren introduced testimony from Claimant’s co-worker that discredited Claimant’s story. Mr. Gren also introduced expert medical testimony and a medical report proving that Claimant was not subjected to carbon monoxide poisoning. ALJ Jones found Dr. Bernton’s testimony and the medical report to be more credible than Claimant’s testimony and issued a Summary Order denying and dismissing the claim.


 


Legislative Update 2016

The 2016 legislative session is half over. The deadline for introduction of bills has come and gone; however, late bill introduction is very common. This is a brief summary of some of the introduced legislation of interest to clients:

Workers Compensation

Right now there are no pending bills regarding workers’ compensation. It is anticipated that there will be a bill introduced regarding first responders and compensability of posttraumatic stress disorder. A joint bill arising from discussions between Pinnacol Assurance, WCEA and CSIA is also a possibility, along with a bill from Pinnacol Assurance to allow it to establish a separate corporate entity that could write policies outside of Colorado.

Other Bills of Interest – Follow this link to read the entire article.

 


Cases You Should Know

Show Me the Money: In Brown v. Apollo Group, Inc. and Travelers Indemnity Company, (W.C. 4-905-547 (January 21, 2016 ICAO), ICAO held the ALJ erred when he prevented the Claimant from cross-examining Respondents’ medical expert on the amount of money earned for performing IMEs and testifying on behalf of Respondents. However, because the ALJ allowed Claimant to cross-examine the expert regarding the percentage of defense work he performed, ICAO held that there was no prejudicial error to justify a reversal of the ALJ’s Order. Moral of the story: Expert witness fees are fair game for cross-examination. Claimant attorneys often attack Respondents’ experts in an attempt to show prejudice and bias.

 

Good Writing is Clear Thinking Made Visible: In Garcia v. Swift Foods Company and Zurich American Insurance, Co. W.C. 4-679-322 (February 11, 2016 ICAO), the ALJ dismissed Respondents’ Motion for Summary Judgement (MSJ) because the language noted in a Stipulation was unclear. In this case, Claimant timely filed a Petition to Reopen. The parties subsequently filed a Stipulation indicating that Claimant’s Application for Hearing endorsing the issue of Petition to Reopen was withdrawn and all other issues were reserved. Several years later, Claimant refiled the Petition to Reopen based on an alleged worsening of condition. Respondents filed a MSJ arguing that Claimant withdrew the prior Petition to Reopen and the updated pleading was not timely filed within the six-year statute of limitations. ICAO denied the MSJ because there was a factual dispute regarding whether the Stipulation constituted a withdrawal of the issue of Petition to Reopen or preserved the right to file a Petition to Reopen based on a worsening of condition. Moral of the story: Stipulations are enforceable agreements, but can only be enforced to the extent of what they state. Be clear and be concise in written agreements with Claimants.

 

No Time for DIME Means No Time for MMI: In Mohammed v. Cargill Meat Solutions and American Insurance Group Plan, W.C. 4-951-860 (January 27, 2016 ICAO), ICAO reversed the ALJ’s order which granted additional medical benefits after MMI. Claimant was placed at MMI and ongoing medical treatment was denied. Instead of pursuing a DIME to challenge MMI, Claimant went to a new physician seeking additional medical treatment that he believed was necessary to reach MMI. The ALJ found that the additional treatment was causally related to the work injury and reasonably necessary to attain MMI. ICAO reversed this Order holding the ALJ lacked authority to resolve the issue of MMI without a DIME. Moral of the story: Parties are not permitted to indirectly attack determinations of MMI without first pursuing a DIME.

 

Parking Lots…Of Course It’s Compensable. In Rodriguez v. Pueblo County, W.C. No. 4-911-073 (ICAO January 21, 2016), Claimant clocked out to attend a union meeting. After the union meeting Claimant was walking through the employer’s parking lot to go home when she slipped and fell and was injured. The ALJ determined Claimant’s injury did not arise out of her employment duties as she was engaged in personal matters when she was injured. Claimant appealed. ICAO reversed the ALJ concluding that any alleged personal deviation ended when Claimant exited the building to return to her car in the employer’s parking lot. The Panel noted that Colorado appellate courts have held that injuries sustained while walking through the employer’s owned, maintained, or provided parking lots arise out of employment because the employer is required to furnish safe means to and from work. Thus, such injuries in parking lots are an incident of employment. Moral of story: Most injuries occurring in employer parking lots before or after work are compensable.

 

No Forwarding Address? No Problem. In Stoewer v. Douglas Colony Group, W.C. No. 4-937-085 (ICAO January 21, 2016), Respondents mailed the FAL to opposing counsel at his previous address. Claimant’s counsel untimely objected to the FAL. The ALJ determined the objection was untimely and the issue of PPD was closed pursuant to the FAL because Claimant received a copy of the FAL. Even though Respondents had notice of opposing counsel’s new address, he failed to update his address with the Division. ICAO reversed and held that due process is violated when the attorney of record, through no fault of his own, is denied notice of critical determinations in his client’s case. This applies to copies of admissions. Additionally, Respondents had notice of opposing counsel’s new address and there was no requirement that the new address be on record with the Division. Moral of the story: When in doubt, send pleadings to the attorney’s or claimant’s (if pro se) known address and address of record. This may be different from the address on file with DOWC, but if you have notice of the new address, use it.

 

And You Think Your Job Stinks…. In this bizarre and somewhat disturbing case, Claimant sought TTD benefits for a compensable claim. Respondents asserted the affirmative defense of termination for cause. The ALJ determined Respondents failed to prove Claimant had performed a volitional act leading to his termination. The ALJ listed a number of facts to support the Order. Of significance, Claimant’s direct supervisor testified that he often engaged in “pranks” with his employees which included: shooting golf balls at employees from a potato gun; building and detonating bombs in vehicles and irrigation ditches where employees were working; putting his feces in employees’ lunches; and defecating on employees’ heads as they worked in irrigation ditches. Claimant brought information regarding the direct supervisor’s conduct to managers. Claimant reported he was afraid for his and coworkers’ lives and that he had reported complaints regarding his direct supervisor to head supervisors for eight years but nothing was done. Claimant was ultimately terminated for “insubordination” for refusing to communicate with his direct supervisor. The ALJ determined Claimant did not precipitate the employment termination by a volitional act which he would reasonably expect to result in the loss of employment. Instead, it appeared that the alleged insubordination was pretext for firing him given that the actions of the direct supervisor were not grounds for termination. W.C. No. 4-976-398. Moral of Story: The court will consider the nature of the employer’s conduct using an objective standard when assessing whether a claimant’s termination resulted from a volitional act or some other reason. The reasons can be independent from the work injury if Claimant did not exercise control over the situation leading to the separation.

legaLKonnection Firm Newsletter – February 2016

newsletter_LK-header-badge2016

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.

In the News
Congratulations to Joseph Gren on his recent admittance to the Arizona State Bar for the practice of law.

 

Lee + Kinder LLC is proud to be a sponsor of the 7th Annual PWC Bowling Cup on February 19th. Good luck to all the teams!

 

 

Member Joshua D. Brown was the guest presenter at this month’s Colorado Self-Insured Association’s meeting. Mr. Brown presented on the topic of workplace bullying and the potential liabilities that may result, both in workers’ compensation and in general employment practices. As a hot topic issue, workplace bullying is gradually increasing social interest through proposed legislation by various lobbying groups across the county. Mr. Brown provided an overview of the proposed legislation that exists in other jurisdictions, along with recommendations on how employers both nationwide and in Colorado can adequately protect themselves against potential liability.


Victory Lap

Member Tiffany Kinder and Associate Kelsey Bowers were successful on a recent Motion for Summary Judgement in Josue v. Anheuser-Busch, Inc. and ACE American Insurance Company, WC 4-954-271 (January 26, 2016). The Court agreed with Respondents’ argument and dismissed Claimant’s Application for Hearing endorsing the issue of over-payment with prejudice. ALJ Jones upheld the over-payment asserted in the Final Admission of Liability and ordered Claimant to repay the over-payment of $16,222.32.

 

Of Counsel Joseph Gren and Associate Daniel Mowrey were also successful on a Motion for Summary Judgment in Meza v. Bayou Well Services, Inc., and Liberty Mutual Group, W.C. 4-929-946 (January 29, 2016). The issue was whether Claimant received the FAL. Opposing counsel claimed Liberty Mutual did not properly serve the FAL on them when it was originally filed with the Division but admitted to receiving it six months later. Respondents asserted that Claimant’s counsel received a copy of the FAL and failed to object within 30 days of receipt. ALJ Cannici granted Respondents’ Motion for Summary Judgment noting Claimant’s counsel received a copy of the FAL, though months after the date of the original FAL, and that Claimant did not object to FAL when served a second time. Thus, the claim is closed administratively, and Claimant cannot reopen on the grounds of fraud or mistake.

 


 

History of Workers’ Compensation Law: Part IlI: Emergence of the Modern-Day System

This is the final piece of the three-part series surveying the history of workers’ compensation. Prior to 1911, an individual residing in the United States, regardless of their state residency, who suffered a workplace injury could only recover damages by utilizing traditional tort based law. In other words, an injured worker would need to sue their employer and claim the employer’s negligence or intentional conduct caused the subsequent injury. The employer could raise defenses such as contributory negligence or assumption of risk to bar the receipt of monetary damages. This system was often cumbersome, time-consuming, unpredictable, and expensive for both the employer and employee. Click here to continue reading this article

 


Cases You Should Know

Attack of the carpeted floor – A personal risk we face daily: In Miles v. City and County of Denver, W.C. 4-961-742 (December 15, 2015), the ALJ found that a Claimant stepped forward with her leg on level, unremarkable carpet without twisting. The Claimant experienced a pop, and MRI imaging showed a torn meniscus. The ALJ found that the Claimant’s pre-existing degenerative knee condition contributed to the injury, was necessarily personal in nature, and that the knee condition did not combine with any special hazard of employment. ICAO agreed, noting that the Claimant’s injury did not constitute an “unexplained fall,” since the ALJ had found that the Claimant’s injury was caused at least in part by the Claimant’s idiopathic knee condition, and that the injury necessarily stemmed from a personal risk, not from her employment. Moral of the Story: Just because an employee was injured at work does not necessarily mean the injury is compensable.

AWW is a magic number: In Defrece v. 20/20 Theatrical, W.C. No. 4-920-455 (December 7, 2015), Claimant sought to reopen his claim on the basis that an ALJ erred in calculating AWW. ICAO stated the issue of AWW may be reopened pursuant to C.R.S. §8-43-303 in case of a mistake in fact or law. Because the authority to select an alternative method for computing AWW is discretionary, an AWW calculation by an ALJ may not be set aside unless it amounts to an abuse of discretion. Moral of the Story: Since an ALJ has wide discretion regarding the method of AWW calculation, mere disagreement with the ALJ’s method does not constitute a mistake and is not a basis for reopening.

Getting in the door is easy…getting benefits once you’re in is hard. In Mitchem v. Donut Haus #2, Inc., W.C. No. 4-785-078 (December 28, 2015), Claimant sought review of an ALJ’s order denying and dismissing her request for authorization of certain maintenance care benefits in a claim where Respondents had filed a Final Admission of Liability admitting for a general maintenance care award. ICAO clarified that there is a different evidentiary standard for determining whether a Claimant is initially entitled to a general maintenance award versus determining whether a Claimant has proven entitlement to a specific medical benefit when Respondents have already admitted to a general award. A Claimant seeking initial entitlement to a general award is subject to the substantial evidence standard while a Claimant seeking entitlement for a specific benefit under a general award is subject to the preponderance of evidence standard. Moral of the Story: A Claimant seeking entitlement to a general maintenance care award faces a lower evidentiary burden than a Claimant seeking entitlement to a specific maintenance medical benefit.

If the ATP isn’t under duress, odds are good the referral is legit. In Sackett v. ICAO, et al. (Colo. App. 2015) (nsfop), ICAO reversed an ALJ’s holding that an Authorized Treating Physician’s (“ATP”) referral of Claimant to her Primary Care Provider (“PCP”) was valid on the basis that the ATP did not employ independent medical judgment. Rather, the referral appeared to be the product of a nonmedical decision made in response to Claimant and her attorney’s request that she see her PCP in the event of a contested claim. The Colorado Court of Appeals reversed ICAO, recognizing a broad definition of the term independent medical judgment. The appellate court stated, “In our view, independent judgment may take many forms, so long as the physician determines, without undue outside influence, that a referral is in the injured worker’s best interest.” Moral of the Story: Independent medical judgment is an amorphous concept—if the ATP finds the referral in the Claimant’s best interest, the referral likely is valid.

All work and no TPD makes Johnny a dull boy: In Edgar v. Halliburton Energy Services, W.C. 9-971-336-01 (December 22, 2015), Claimant sustained a compensable injury and was placed on work restrictions that did not allow him to perform his pre-injury job duties requiring heavy lifting. He found subsequent employment within his work restrictions but at a lower wage. On appeal, Claimant was awarded TPD benefits because the panel determined his economic wage loss was caused by the by the work injury. The panel reasoned that once a Claimant establishes a disability in the sense that the injury impairs his or her ability to perform his regular job duties, the right to temporary disability benefits is measured by Claimant’s wage loss, because physical restrictions caused the injury to affect the Claimant’s prospects for finding alternative employment. Moral of the story: If there is a causal link between the industrial injury and the subsequent wage loss, TPD must be awarded.

Time waits for no one: In Muro-Rios v. Ashley Manor, LLC, W.C. 4-964-081 (December 22, 2015), Claimant was denied a claim for TTD benefits based on the termination statutes after suffering work-related injuries on September 17, 2014. The question posed by the termination statutes, C.R.S §§8-42-105(4) and 8-42-103(1)(g), is whether Claimant is responsible for the termination of employment. Claimant was hired in 2008 and at the time of hire, he represented that he was a lawful permanent resident and an alien authorized to work by submitting a driver’s license and a Social Security card. Shortly after Claimant’s injury, the employer discovered that Claimant’s Social Security number was invalid and asked Claimant to provide information to remedy the issue. Claimant failed to do so and was terminated. The ALJ and Appeal panel found that Claimant’s false submission of a Social Security card, and then later failure to correct the matter, constituted volitional acts and he was responsible for his termination on October 21, 2014, six years later after submitting the false information. Moral of the story: The remoteness of the volitional act does not necessarily affect the application of the termination statutes.

Double-dipping in the sweet spoils of Comp: In Keel v. ICAO et al. (Colo. App. 2015) (nsfop), the Colorado Court of Appeals addressed double-dipping in multiple states’ workers’ compensation systems. Section 8-42-114, C.R.S. sets forth that Colorado workers’ compensation benefits may be offset by 50% of out-of-state benefits paid for the same injury. Those benefits paid in another state for the same injury may not be credited toward the Colorado benefits. Moral of the story: As a result, since different states provide different offsets for other states’ workers compensation benefits, a Claimant may strategically file a claim in one state first so that he or she may benefit from the more generous offset provision of another state in a later claim for the same injury.

ICAO’s punting game: Appealing a decision requires an award denying or awarding benefits: In Taylor v. Alpine Management, W.C. 4-959-907, (December 22, 2016), a Claimant brought a claim against a respondent company alleging that the company was a statutory employer. The ALJ found that the respondent was not the Claimant’s employer at the time of injury, and dismissed the respondent from the claim, but no specific benefits were awarded or denied. The Claimant appealed the decision. ICAO declined to address the merits of the order on the basis that the order was interlocutory. Moral of the story: § 8-43-301(2), C.R.S., provides grounds for appeal only of those orders that award or deny benefits.

History of Workers’ Compensation, Part III, Emergence of the Modern-Day System

This is the final piece of a three-part series surveying the history of workers’ compensation. Prior to 1911, an individual residing in the United States, regardless of their state residency, who suffered a workplace injury could only recover damages by utilizing traditional tort based law. In other words, an injured worker would need to sue their employer and claim the employer’s negligence or intentional conduct caused the subsequent injury. The employer could raise defenses such as contributory negligence or assumption of risk to bar the receipt of monetary damages. This system was often cumbersome, time-consuming, unpredictable, and expensive for both the employer and employee.

In 1911, the State of Wisconsin passed the first statutory law specifically addressing workers’ compensation entitlement benefits. The goal ofWisconsinAct the act was to create an efficient system to adjudicate claims while reducing legal hurdles for the injured worker thus creating a predictable system where the employer could foresee limited monetary risks. The Wisconsin system created a “no-fault” legal system in which the injured worker would no longer need to prove that the employer engaged in some type of culpable negligent or intentional conduct. According to the Wisconsin Department of Workforce Development, “the intent of the law was to require an employer to promptly and accurately compensate a worker for any injury suffered on the job, regardless of the existence of any fault or whose it might be.” The legislation provided for wage loss benefits, cost of medical treatment, disability payments, and payment for vocational rehabilitation training.

The legislation also eliminated an injured workers’ right to seek damages historically available through the tort system. As discussed in part two of the series, by 1911 the general public had become more concerned about the deplorable and often unsafe working conditions in factories across the nation. The Wisconsin Workers’ Compensation Act barred the injured worker from pursuing non-economic damages awarded by juries, including pain and suffering and loss and enjoyment of life. Similar to today’s ubiquitous state-based worker’s compensation acts, the Wisconsin Act enumerated the specific type of damages an injured worker could receive, thereby duly preventing the injured worker from requesting a jury to adjudicate damages. The judge adjudicating workers’ compensation claims, as a finder of fact, could not award benefits beyond the provided benefits in each respective act. The Wisconsin Act, while providing for specific benefits and shifting liability to the employer under the no-fault system, also provided employer’s with protection by limiting the scope of damages and removing the question of damages from unpredictable juries.

In the decade following the Wisconsin Act, nearly every state in the union promulgated some form of a workers’ compensation act. Mississippi was the last state to pass an act, but did so by 1948. Interestingly, as Gregory Guyton points out in his “Brief History of Workers’ Compensation,” the medical profession did not receive the worker’s compensation system with open arms. Medical professionals generally viewed worker’s compensation as a form of socialized medicine. According to Guyton, when the Social Security disability insurance act was created in the 1930s, disability based medicine expanded becoming lucrative for medical professionals. On the heels of the respective disability acts, the American Medical Association published the first guides to the evaluation of permanent impairment in order to develop a method to provide compensation evaluations. In Colorado, the legislature has decided to continue using the third edition of the AMA Guides to permanent impairment. The guide is currently available in six editions.

Given the volume of claims in any one state for benefits, each state may elect to create administrative agencies to adjudicate workers’ compensation claims. Colorado, for example created the Office of Administrative Courts in 1976 to hear an array of limited subject matter cases, including workers’ compensation. Prior to that time, the District Court handled worker’s compensation claims. Any individual working in workers’ compensation is familiar with the respective administrative system and ministering the claims. As the American workforce changes in age, and disability laws, including the ADA, become more pervasive in the work environment, there are open questions as to whether disability acts or managed health care administered by the federal government will substitute various aspects of workers’ compensation. For now, the workers’ compensation model most are familiar with will remain stable, subject to changes made by each respective legislation.

legaLKonnection Firm Newsletter – January 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.

In the News

With the Stock Show in town, many of the members of the Colorado Cattleman’s Association were also visiting for the midwinter meeting at the Renaissance Hotel. As a part of the midwinter meeting the Colorado Cattleman’s Association held a legal symposium. Of Counsel Frank Cavanaugh attended on behalf of Lee + Kinder, LLC to meet members and discuss the legal services Lee + Kinder, LLC provides.


Victory Lap

Of Counsel Joe Gren successfully defended two claims this month. In Hardy v. Wendy’s of Colorado Springs and Traveler’s Casualty Insurance Company of America, W.C. 4-974-734 (January 14, 2016), Mr. Gren defended Claimant’s worker’s compensation claim. Claimant alleged an industrial injury to his right shoulder following an electric shock. Mr. Gren successfully argued that Claimant’s need for right shoulder treatment was not caused by Claimant’s allegation that he was shocked by a live wire. The ALJ found Respondents’ expert opinions persuasive and credible that Claimant’s symptoms, and need for medical treatment, were due to his preexisting injuries. Mr. Gren also presented witness testimony from a fellow coworker who stated that Claimant was never shocked by the wire. The ALJ denied and dismissed Claimant’s claim.

Mr. Gren also received a favorable judgement from ALJ Lamphere in Good v. Evraz, INC., NA W.C. No. 4-929-785. The ALJ found that conversion of Claimant’s scheduled lower extremity impairment to impairment of the whole person was not warranted. Mr. Gren successfully argued that while Claimant may experience the occasional limp, his low back and hip pain was not related to the asserted limp. The ALJ was persuaded that Claimant’s low back and hip pain was a consequence of being substantially de-conditioned and having to return to full duty. Claimant’s request for conversion of his 16% scheduled right knee impairment to the corresponding 6% whole person rating was denied and dismissed.

Member Joshua Brown successfully argued in favor of striking penalties as an issue for hearing in two prehearing conferences. In Vasquez-Cabrera v. Olsons Greenhouses of Colorado and American Zurich Insurance, W.C. No. 4-972-192, Claimant sought penalties for “unreasonable denial of prior authorization” in response to Respondents’ denial of treatment for an injury the authorized provider felt was unrelated to the claim. Claimant acknowledged that there was no specific request for treatment that had been denied. The PALJ struck the issue of penalties on the basis that no particular penalty had been specified in the pleading, as required under the Act. The PALJ denied Respondents’ motion to pursue attorney’s fees for having to prepare for an unripe issue, ruling that simply because an issue was stricken on grounds of inadequacy does not necessarily mean that it is unripe. In Skoll v. Prime Sight Associates and Colorado Casualty C/O Liberty Mutual Insurance, W.C. No. 4-960-091, the PALJ struck penalties on the same basis, failure to plead the issue with specificity. However, the PALJ in Skoll granted Respondents’ motion to preserve the issue of attorney’s fees for later determination at hearing, ruling that whether the issue endorsed by Claimant was ripe or not was a factual matter that required determination by an ALJ and was not appropriate for determination at prehearing.

Associate Mathew Boatwright successfully defended against a contested claim for an alleged knee injury in Graffis v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 4-978-066 (December 31, 2015). Claimant alleged that he suffered an aggravation of a preexisting condition while walking to deliver a package. Respondents’ expert testified that, while there was a preexisting, non-related condition that could have been aggravated from Claimant’s work duties, there was no specific work-related mechanism to indicate that the onset of pain was more likely than not related to Claimant’s work duties. Respondents argued that merely walking, absent some special hazard of employment, is not a sufficiently work-related activity to result in a compensable injury. ALJ Peter Cannici agreed, and denied and dismissed the claim.

Associate Jessica Melson successfully defended a claim for conversion of the shoulder. Claimant testified that due to his industrial shoulder injury he has pain in his neck and pectoral area which disrupted his sleep. Therefore, since his symptoms extended beyond the shoulder injury, his scheduled impairment should convert to a whole person rating. Ms. Melson presented Claimant’s medical records where he specifically denied neck pain, pain beyond the shoulder, or difficulty sleeping. ALJ Turnbow found Claimant’s testimony not credible and denied his request for conversion. Dennis Craig v. Courtesy Motors, CO and Republic Indemnity, W.C. 4-966-802 (December 24, 2015).


Personnel Files in Colorado: Who owns the file and what privacy interests are involved?

This is a question that I repeatedly see throughout the year and it comes in a variety of contexts. Often times, employers who may have recently terminated an employee, are suddenly posed with a request from that former employee for his/her personnel file. Sometimes, within a workers’ compensation or other employment related claim, the worker is seeking copies of the personnel file in an effort to bolster his or her claims. Click here to continue reading the article.


Cases You Should Know

Sometimes You Can Break the Rules and Get Away With It: In American Furniture Warehouse v. Industrial Claim Appeals Office and Flores (December 3, 2015)(nsfop), the Colorado Court of Appeals upheld an ALJ’s finding that Claimant did not willfully violate a safety rule of the employer when he failed to tether himself while loading from a platform. Though the employer had a safety rule requiring its employees to tether themselves to an anchor when loading from an elevated position, Claimant neglected to tether himself because he felt he was too large to fall through the gap from the platform to the floor. Relying upon case precedent that “willful” means acting with deliberate intent or with knowledge that an injury is likely to result from disregard of a rule, the ALJ found that Claimant’s failure to use the tether did not amount to willful disregard of the safety rule. See City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App. 1990); see also Johnson v. Denver Tramway Corp., 171 P.2d 410 (Colo. 1946). The Court of Appeals affirmed, finding that the ALJ’s opinion was legitimately based upon inferences drawn from circumstantial evidence and substantially supported by the evidence in the record.

An Independent Contractor Might Be Your Employee: In Precision Home Buildings, LLC v. Industrial Claim Appeals Office and Venancia De La Paz Herrera (October 22, 2015)(nsfop), the Colorado Court of Appeals affirmed an ICAO decision which found, contrary to the ALJ, that Respondent Precision was a statutory employer. Precision operated as a general home building contractor and hired Conceptos, the painting company subcontractor for which Claimant was working when he was injured. Both entities were uninsured. Though Precision had no employees and did not engage directly in any home construction, the Court found that, under the “regular business” test, Precision regularly contracted out painting work. As contracting painting projects to complete homes was part of its regular business, Precision was found to be a statutory employer of the injured worker.

When You Really Do Need A Doctor’s Note: The ICAO found that a release to regular employment has to come from the attending physician and that an ALJ does not have discretion to challenge such a release to regular employment. Connie Andrews v. School District RE-1 Valley and Pinnacol Assurance, W.C. 4-887-035-02 (ICAO, December 4, 2015). In this claim, Respondents appealed an Order from the ALJ that found the claimant’s reasons for leaving her multiple jobs were not relevant to her entitlement to temporary disability benefits, and that a treating physician’s release of the claimant to regular employment was “not credible.” The ALJ had ordered Respondents to pay temporary disability benefits for the wage loss from her three jobs, finding her reasons for leaving each of them irrelevant. ICAO remanded the claim to the ALJ for additional findings, requiring the claimant to prove by a preponderance of the evidence that her inability to earn wages was related to her work injury. The ICAO ordered the ALJ to make factual findings as to which of the claimant’s physicians was the attending physician and adhere to the opinion of the attending physician regarding the claimant’s return to regular employment.

Shouldering the Load: In Velvet Serena v. SSC Pueblo Belmont Op Co. LLC., and ACE American Insurance, W.C. 4-922-344-01 (ICAO December 1, 2015), the ICAO was addressing an ALJ’s finding that the claimant was entitled to an additional 10% scheduled impairment rating for each of her shoulders as a result of the claimant undergoing bilateral shoulder decompression surgeries. ICAO agreed with respondents argument that the AMA Guides only provide for such an “extraordinary rating” when the surgery involved is an arthroplasty. ICAO similarly rejected the claimant’s argument that her decompression surgeries resulted in “derangement of a body part,” and therefore was entitled to an additional impairment rating based on the Director’s Impairment Rating Tips. The ICAO found that a decompression surgery is not an arthroplasty, and therefore the claimant was only entitled to an impairment rating based on range of motion loss.

Per Diem – Allowance or Wage?: In William Stonebraker v. American Merchandising Special and Liberty Mutual Insurance, W.C. 4-959-213 (ICAO, December 1, 2015), the ICAO found that Claimant’s Average Weekly Wage (AWW), for the purposes of calculating the payment of temporary benefits, is to be based on payments from the employer which exclude those made for per diem reimbursement purposes. Claimant worked as a field service representative and would travel to various locations using his personal vehicle. Claimant was paid on an hourly basis and was reimbursed for the approximate cost he incurred for using his personal vehicle. The ALJ applied the definition of wages set forth in C.R.S. § 8-40-201(19)(c). That paragraph specified that “no per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes. The ALJ excluded the reimbursement payments from the calculation of Claimant’s wages. ICAO affirmed noting that the fixed and variable reimbursement payments were not subject to withholding for income taxes pursuant to IRS guidelines.

Personnel Files in Colorado: Who owns the file and what privacy interests are involved?

This is a question that I repeatedly see throughout the year and it comes in a variety of contexts. Often times, personnel-file-28116_960_720employers who may have recently terminated an employee, are suddenly posed with a request from that former employee for his/her personnel file. Sometimes, within a workers’ compensation or other employment related claim, the worker is seeking copies of the personnel file in an effort to bolster his or her claims. Additionally, employers receive requests from plaintiffs or third-parties seeking copies of personnel files concerning witnesses or company representatives. Consequently, employers are often placed in a decision whether or not to disclose this information and if there are any privacy issues with disclosing the information.

While the Colorado Supreme Court and Court of Appeals have not definitively addressed this issue head on, there is support for the conclusion that personnel files are property belonging to the employers and not the employees. In Corbetta v. Albertson’s Inc., it was the first time the Colorado Supreme Court addressed the issues of personnel files and privacy interests. The case involved a suit by a customer of Albertson’s alleging a variety of claims arising out of the plaintiff cracking several teeth on a pebble in a spinach salad she purchased. As part of discovery, plaintiff requested the entire employment files of the store manager, all assistant managers and all deli employees. Albertsons objected to the disclosure of these files invoking a right to privacy argument of the employees. The trial court ordered production of the files and concluded that while the personnel files were the property of Albertsons, disclosure was appropriate under the circumstances.

The Supreme Court overturned the trial court’s decision noting primarily that it did not appropriately balance the privacy interests involved and make appropriate factual findings and conclusions in addressing those privacy interests. However, the Supreme Court, in this decision, did not overturn the conclusion of the trial court that the personnel files were the property of the company. Accordingly, employers can rely on this decision for the conclusion that personal files are company property and not the property of the specific employee. Furthermore, while the Supreme Court did provide a right to privacy balancing test for determination of whether a personal file can be disclosed, the Court later in In re District Court, Cty and County of Denver revised this test, which now is the current law.

The case of In re District Court, Cty and County of Denver involved a former client of a law firm suing for legal malpractice and breach of fiduciary duties. As part of discovery, the former client requested financial information of the law firm members. The Supreme Court determined that when discovery requests implicate right to privacy interests:

  • The requesting party must first prove that the information requested is relevant to the subject of the action;
  • If shown relevant, then the party opposing the request must show that it has a reasonable expectation that the requested information or materials is confidential and will not be disclosed;
  • If the trial court finds that there is a legitimate expectation of privacy in the materials, the burden then shifts back to the requesting party to prove either that disclosure serves a compelling state interest or that there is a compelling need for the information AND that the information is not available from other sources.

There are other issues that implicate personnel files. First, employers are not required to give employees access to their personnel records. Access to personnel files and the information they contain should be restricted. Only authorized employees, supervisors or managers should be permitted to access personnel records on a “need to know” basis. Second, records regarding confidential, sensitive information unrelated to job performance, such as regarding citizenship, garnishments and any medical condition that could cause someone else to conclude the employee has a communicable disease (e.g., HIV), should be maintained in separate, confidential files. For example, if an employee suffers a workers’ compensation claim, it is highly recommended that a separate file be created to avoid confidential and private information being contained within his or her personnel file, such as medical reports.

Take Away

Personnel files are the property of the employers and thus, it is recommended that outside the scope of litigation, any such request for disclosure be denied. When requests are made as part of litigation or insurance claims, it is imperative that the right to privacy issue be properly considered and that the litigants requesting the information properly meet their burdens before a trial court.

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