In the News
COLORADO BALLOT PROPOSED AMENDMENT #69 – POTENTIAL IMPACT ON WORKERS’ COMPENSATION MEDICAL BENEFITS
Section 1332 of the Affordable Care Act (“ACA” or colloquially known as “ObamaCare”) allows a State to obtain a waiver from the ACA, if the State sets up a system that provides the same level of coverage. Amendment 69 proposes creating a single-payer system for health care in Colorado known as ColoradoCare.
Initiative 20 got on the 2016 Ballot as Amendment 69. It was authored by Irene Aguilar, M.D. who is a Democratic member of the Colorado Senate and a primary care physician. A similar attempt to migrate a state to a single payer system was tried recently in Vermont. Vermont’s Bill went through the State House and Senate. It was signed by the Governor in May 2011. In December 2014, Vermont’s Governor retracted his backing of the single payer program due to a lack of clear funding and the negative effect of the taxes on businesses. Vermont’s single payer healthcare law, although passed and enacted, has essentially been abandoned. Similar to Amendment 69, Vermont’s Act 48 purported to integrate workers’ compensation medical benefits into a universal healthcare system.
ColoradoCare would be funded by a 6.67% payroll tax upon employers and a 3.33% tax on employee income. Other income sources would also be subject to the premium tax including rents, interest, dividends, capital gains, pensions and annuities.
To read more about the implications of Amendment #69, please click here for the full article.
On a brief note, Of Counsel Joseph Gren and Associates Matt Boatwright and Jessica Melson contributed the Workers’ Compensation Law section of the 2015 Annual Survey of Colorado Law. The Annual Survey contains an analysis and summary of the published appellate court decisions over the previous year and an evaluation of the impact that each decision may have upon the fields of law that each involves. This year’s survey dealt with notable cases involving expansion of the scope of the going to and coming from rule in assessing the compensability of a claim, the use of the “regular business test” in determining whether an employer is a statutory employer under the Act, and public disclosure of remuneration given to Administrative Law Judges in Workers’ Compensation. The survey is generally used by attorneys to provide an overview of recent developments in Colorado law.
Member Joshua Brown successfully argued at the Colorado Court of Appeals in favor of overturning an ALJ’s reopening of a full and final settlement agreement in Victor England v. AmeriGas Propane and Indemnity Insurance Company of North America. In 2012 the injured worker suffered an injury to his right shoulder after slipping on ice. After two shoulder surgeries but prior to placement at maximum medical improvement, the parties in 2013 entered into a Full and Final Settlement Agreement for $35,000. The agreement used was the mandated contract required by the Division of Workers’ Compensation. Several months after the entry into the settlement agreement, the injured worker’s physician discovered a previously unknown fracture in the scapula. As a result, the injured worker filed a Petition to Reopen his settlement arguing that (1) a mutual mistake of material fact existed at the time of settlement; and (2) contending that he would not have entered into the settlement agreement if he knew the fracture existed. The ALJ agreed with the injured worker’s arguments and reopened the claim awarding medical benefits, two years of back TTD benefits and ongoing TTD benefits. The Industrial Claim Appeals Office affirmed the ALJ’s decision. However, the Colorado Court of Appeals reversed the ALJ’s decision accepting Mr. Brown’s persuasive argument that the mandated settlement agreement must be enforced as written. Particularly, the Court of Appeals determined that in the agreement, injured workers specifically waive their rights to future benefits for both known and unknown injuries that may result from the work accident. Consequently, the Court of Appeals agreed with Mr. Brown that such a waiver precluded any injured worker from trying to reopen their settlement agreement based on unknown conditions existing at the time of settlement.
Member Joshua Brown and Associate James Payonk successfully defended against a claim for permanent total disability benefits in Janine Scafide v. SkyWest Airlines, Inc. and Indemnity Insurance Company of North America, W.C. No. 4-840-879-03. Claimant was seeking permanent total disability benefits, claiming she was unable to earn wages in any capacity following an injury she suffered to her hip in 2010 which resulted in her being unable to lift more than five pounds and incapable of performing activity of any kind for more than 20 minutes. Mr. Brown introduced video surveillance footage showing Claimant running errands for more than 2 hours, lifting a fifty-pound bag of ice melt, and shoveling snow. Mr. Brown also introduced testimony from Dr. Douglas Scott who opined that Claimant’s permanent work restrictions should be modified to allow for more activity, as well as testimony from vocational evaluator Katie Montoya that Claimant was capable of earning wages in a number of different positions. The ALJ found that Claimant and her vocational evaluator lacked credibility, and instead credited the testimony of Dr. Scott and Ms. Montoya in denying Claimant’s claim for permanent total disability benefit.
Member Tiffany Kinder and Associate Daniel Mowrey successfully withdrew Respondents’ admission of liability in Jeanne Severson v. Waste Management of Colorado, Inc. and Indemnity Ins. Co. of NA., W.C. No. 4-966-806. This was an admitted claim for a right hip injury which was initially referred to challenge a request for authorization of a total hip replacement. Through investigation it was determined that the entire claim was questionable. Ms. Kinder proceeded to hearing on the arguments that the surgery was not reasonable and necessary, and that Respondents should be allowed to withdraw the General Admission of Liability. Ms. Kinder introduced three employer witnesses who contradicted Claimant’s version of the mechanism of injury. Relying largely on the credibility of employer lay witnesses, Judge Nemechek agreed with Respondents and granted their request to withdraw the General Admission of Liability.
Of Counsel Joseph Gren and Associate Daniel Mowrey received a favorable order denying maintenance medical treatment in Jennifer Barnes v. Rural Metro Corporation and ACE America Insurance, W.C. No. 4-936-966. Claimant was seeking SI joint injections with sciatic nerve blocks for maintenance medical treatment for her admitted right knee injury. Mr. Gren introduced testimony from Dr. Paz who maintained that there had not been a diagnosis of a right lower extremity peripheral nerve injury, a lumbar radiculopathy, a sympathetic mediated pain condition or CRPS. Therefore, Claimant’s right lower extremity symptoms were not causally related to her December 13, 2013 industrial injury. Mr. Gren also introduced a medical report from the DIME physician, Dr. Ginsburg, who summarized that Claimant only injured her right knee and no additional ratings were warranted. The ALJ found reports and testimony of Drs. Ginsburg and Paz to be persuasive and more credible than Claimant’s testimony and issued an Order denying the request for medical maintenance benefits.
Sexual Orientation Discrimination: EEOC Initiates its Next Title VII Challenge
A new era of discrimination lawsuits is upon employers nationwide. Last month, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed its first lawsuits alleging sexual orientation discrimination under Title VII against employers in Pennsylvania and Maryland. The lawsuits are the latest step by the Commission to confirm its view that “sex” discrimination under Title VII encompasses discrimination based on sexual orientation. As with most discrimination cases filed by the EEOC, it seeks compensatory and punitive damages, as well as injunctive relief in both lawsuits.
Cases You Should Know
Paying for Cars, Trucks, Buses: In Morrison v. Rock Electric, Inc. and Pinnacol Assurance, W.C. No. 4-939-901 (March 9, 2016), the ICAO affirmed the ALJ’s denial of compensability of a claim for injuries suffered pursuant to an auto accident. Claimant, an electrician, deviated from his typical job route to pick up his apprentice, who was not required to be at the jobsite by the employer. Claimant was involved in an accident along the way. The ALJ found that Claimant’s transportation of his apprentice to and from work was not contemplated by the employment contract and did not confer a benefit to the employer, and that Claimant therefore was not in the course and scope of his employment at the time of the accident. Upon appeal, ICAO found that the ALJ’s findings were supported by substantial evidence. Moral of the story: If a claimant deviates from the course of their typical employment duties, for a reason that doesn’t give any benefit to the employer and wasn’t part of the employment contract, they are not in the course and scope of their employment if they get injured.
There is a Line for Every Shot: In Oldani v. Hartford Financial Services and Hartford Fire Insurance Company, W. C. No. 4-614-319 (March 9, 2016), the ICAO upheld an Order by the ALJ denying Claimant’s request for Botox injection and simultaneously denied an appeal by Respondents concerning the ALJ’s failure to address the issue of denial of all further medical care. After Claimant was placed at MMI, the parties reached a full and final settlement whereby Respondents agreed to continue to pay for all reasonable and necessary care related to her carpal tunnel syndrome. Subsequent medical opinion indicated that Claimant had developed a new condition unrelated to the original work injury and the ALJ found that Botox injections were being administered for this new condition and were therefore unrelated. Based upon this opinion, Respondents sought to deny further maintenance care but the ALJ did not address this issue because it was not endorsed as an issue for hearing. ICAO agreed, but indicated that Respondents could still contest further benefits on an individual basis or in their entirety with a new hearing proceeding. Moral of the story: Respondents can always contest the need for treatment for each and every medical condition a claimant asserts is related to the claim, and the claimant has to prove that the requested treatment is reasonable, necessary, and causally related.
Falling into a Deep Well of Penalties: ICAO upheld a fine imposed upon the employer in the amount of $841,200.00 for failure to maintain workers’ compensation insurance in Division of Workers’ Compensation v. Demi Hospitality, LLC, FEIN 84-1545878 (ICAO January 20, 2016). The fine was imposed pursuant to statute and court Rule for the employer’s second instance of not maintaining workers’ compensation insurance, for periods from August 10, 2006, through June 8, 2007, and September 12, 2010, through July 9, 2014. The court found that three factors must be considered when determining a fine to be imposed under the circumstances, which were: (1) the degree of reprehensibility of the misconduct; (2) the disparity between the harm or potential harm suffered and the fine to be assessed; and (3) the difference between the fine imposed and the penalties authorized or imposed in comparable cases. While upholding the fine, the court reasoned that the risk of an uninsured loss occurring increased with the amount of time the employer was without insurance, that the motel operated by the employer employed individuals in more than a sedentary capacity, that the employer could not solely rely on their insurance broker to maintain coverage and that the Rules and statutes properly define criteria for imposing a fine. Moral of the story: Employers are always responsible for ensuring they have workers’ compensation insurance coverage in place.
The Lawn Boys and the Vacuum Cleaner Solo Worker: In Aaron Hopkins v. Northwest Distribution, Inc. and Travelers Indemnity Company of Connecticut, W.C. 4-980-185-01 (ICAO February 22, 2016), Respondents argued that Claimant’s injuries were not compensable as Claimant was an independent contractor and the injuries resulted from horseplay. Claimant, employed as a door-to-door vacuum salesperson, was injured when he tripped and fell in front of the moving work van after grabbing the hat of another salesperson. The court found that Claimant was not an independent contractor because the employer, “paid the claimant individually, provided significant training, specified the time the claimant was to arrive at work and the number of days and hours to be worked, the type of clothing the claimant was to wear, the location at which he was to perform the job and specified the sales had to be made exclusively through home demonstrations and by following the nine point sales instructions developed by the employer.” The court also found that Claimant was not engaged in a substantial deviation from his employment at the time he was injured because horseplay, such as routine joking and pranks among sales team members which included throwing snowballs, pushing others into bushes, performing pull ups on trees and push-ups in the middle of the street were regular activities engaged in by salespeople and team leads would also engage in these activities. Moral of the story: Proving independent contractor status is difficult and allowing horseplay on-the-job means that injuries as a result thereof will be found compensable.
This Has All Been Wonderful but Now I’m on the Way to my PCP: In Junior Loy v. Dillion Companies and Self-Insured, W.C. 4-972-625-03 (ICAO February 19, 2016), the court addressed when a medical provider becomes an authorized treating physician (ATP). Following his injury Claimant was provided with a designated provider list, and upon contacting one of the providers thereon was informed that the doctor was not currently accepting new workers’ compensation patients. Claimant then attended an appointment with the other provider on the list, but was subsequently informed by that doctor that his claim had been denied and no further treatment could be rendered, but that he should follow up with his personal physician. The court found that this constituted a referral to Claimant’s personal physician, therefore making Claimant’s personal physician an ATP and making Respondent liable for all care provided by Claimant’s personal physician and any treatment obtained via the referral chain from Claimant’s personal physician. Moral of the story: The primary ATP is vested with great power when it comes to their referrals for medical care.
No Man, in No Men’s Land: In Youngquist Brothers v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), the Colorado Court of Appeals addressed when Colorado has jurisdiction to award benefits for an out-of-state work-related injury. The Respondent was a North Dakota employer with no contacts in the state of Colorado aside from the hiring of Colorado residents. The employer hired a Colorado resident who was injured in North Dakota within days of being hired. Section 8-41-204, C.R.S. sets fourth that Colorado has jurisdiction to award benefits for an out-of-state work-related injury if an employee was (1) hired or regularly employed in Colorado and (2) injured within six months of leaving Colorado. The Court noted that this provision does not require an employer hiring a Colorado employee to have any other contacts with Colorado. Moral of the story: If an Employer regularly hires Colorado residents, the out of state employer who may not have requested workers’ compensation insurance will be liable for injuries under the Colorado Act.
Maybe I’m Entitled to TTD After Termination Taboot, Taboot: In Archuletta v. Industrial Claim Appeals Office and Concrete Frame Associates, (March 3, 2016)(nsfop), the Colorado Court of Appeals upheld an ALJ’s finding that Claimant was entitled to TTD benefits as his wage loss was directly attributable to his industrial injury. Claimant was placed on modified duty work restrictions and continued to work following the injury. Claimant was placed at MMI and released back to full duty by his physician. Claimant was laid off due to the fact that his employer could not accommodate Claimant’s restrictions. Claimant was later removed from MMI by a DIME and awarded TTD benefits by an ALJ. Respondents relied on Section 8-42-105(3)(c) in that TTD benefits must cease as Claimant had been released to full duty work by his attending physician. was found not to apply in this claim as the statute applies to the termination of benefits and Claimant’s benefits had never started. The Court of Appeals, held that Section 8-42-105(3)(c) did not apply to Claimant’s claim because the statute could only terminate benefits that had already commenced and consequently could only be applied prospectively. Moral of the story: The statute terminating TTD benefits applies only if the benefits have begun.