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 – April 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

extranews_red-webRT2COLORADO 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.

 

2015 ANNUAL SURVEY OF COLORADO LAW

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.


 

Victory Lap

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.

Click here to continue reading the article.

 


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.

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.

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.

EXTRA EXTRA! RULE 16 CHANGES COMING SOON!

 
One of Lee + Kinder LLC’s primary goals is to educate our clients and keep them apprised of changes in Colorado law.

 


 

There are changes coming to Workers’ Compensation Rule of Procedure 16 that will be effective January 1, 2016.
The changes to the rule are noted in RED below.

WCRP 16-9(B) requires a provider to submit a written request for prior authorization with supporting medical documentation when:

(1) The service exceeds recommended limitations under the medical treatment guidelines,
(2) The medical treatment guidelines require prior authorization,
(3) The services identified within the medical fee schedule is requiring prior authorization, or
(4) The prescribed service is not identified in the medical fee schedule.

WCRP 16-10(A) requires the payer notify the provider and the parties in writing of any contest to the prior authorization within seven business days from the date of receipt of the request, including a certificate of mailing.

If the prior authorization request is from an authorized treating provider and includes reasoning and relevant documentation that the treatment is related to the work injury, the payer cannot deny based on relatedness without a medical review of the request.

 

WCRP 16-10(B)(1) now requires the following for a seven-day medical records review:

  • The medical records review must be done by a physician or healthcare professional LICENSED IN COLORADO, and

  • The medical records review must be done by a provider in the SAME OR SIMILAR SPECIALTY, who would typically manage the medical condition, procedures or treatment being reviewed, and

  • The medical reviewer must be LEVEL I OR LEVEL II ACCREDITED by the State of Colorado.

 

WCRP 16(10)(E) provides that failure to timely comply with the denial requirements results in automatic authorization for payment unless:

  1. A hearing is requested within the seven business day time frame; and
  2. The provider is notified about that the request for prior authorization is being contested and the matter is going to hearing.

 

SHOW CAUSE ORDERS AND POTENTIAL PENALTIES ON RULE 16 MEDICAL RECORD REVIEWS:

WCRP 16-10(F) provides, “Unreasonable delay or denial of prior authorization, as determined by the Director or an administrative law judge, may subject the payer to penalties under the Workers’ Compensation Act.”

Recently, the Director has issued show cause orders to payers as a result of complaints by injured workers over disputes regarding medical care. The Director has issued orders requiring payers to show cause as to why a request for prior authorization was denied, when the procedure/treatment in question fell within the Colorado Medical Treatment Guidelines. The Director stated that a response that the matter is set for hearing will not suffice as “good cause” or provide a competent response to a show cause order. The Director expects a substantive response to any show cause order he issues.

Potential changes to Rule 16 that are still under consideration by the Director include: a medical review panel whose opinion regarding authorization would need to be overcome by clear and convincing evidence, and a requirement that payment be made subject to potential reimbursement in the event that a denial is upheld.

This article is intended to provide information only and not as a substitute for legal advice. If you have specific questions or cases that you would like to discuss, please contact the attorneys of Lee + Kinder, LLC for further guidance.

legaLKonnection Firm Newsletter – September 2015

newsletter_LK-header-badge

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

In the News
KML&KGT2015web250x254Congratulations to Members Katherine M. Lee and Karen Gail Treece. Both were again selected by their peers for inclusion in The Best Lawyers in America 2016 in the field of Workers’ Compensation Law – Employers.
Best-Lawyers-Logo

 

 

 

 

namwolf_2015NMember Joshua Brown last week attended the annual NAMWOLF Conference in Hollywood, CA on behalf of the Firm. This is NAMWOLF’s decorated and highly anticipated yearly event that brings together all NAMWOLF firms, along with numerous general counsel from companies across the county. On behalf of the Firm, Mr. Brown met with general counsel from various countries, as well as networked with other NAMWOLF firms across the county. Additionally, the Firm was represented at the conference’s firm expo pictured left.

 

PWC_GolfLee + Kinder LLC showed their support at the 22nd Annual Golf Tournament hosted by Professionals in Workers’ Compensation (PWC). Lee + Kinder LLC sponsored a hole at the event and challenged adjusters, attorneys, and vendors to try their hand at Cornhole while they waited their turn to tee off. Of Counsel Frank Cavanaugh participated in the golf tournament, but was unable to defend his first place finish from last year. There is always next year!

 


Victory Lap

tiffany-scully-kinder_lee-kinder-partner-attorney1Member Tiffany S Kinder Member Tiffany Scully Kinder successfully defended two claims this month. In Jovel v. Destination Resorts Management, Inc., et al., Ms. Kinder and Associate Jessica Melson defended Claimant’s claim for benefits. Claimant alleged an industrial injury to his left knee. Ms. Kinder presented evidence that Claimant had pre-existing medical conditions. ALJ Mottram found Respondents’ evidence, including an employer witness and expert medical witness, persuasive and credible that Claimant’s symptoms, and need for medical treatment, were due to his pre-existing osteoarthritis. ALJ Mottram denied and dismissed Claimant’s claim.

In a second win, Ms. Kinder and Associate Kelsey Bowers successfully defeated Claimant’s request for right ankle surgery and ongoing TTD benefits in Mangan v. Davey Tree Expert Company, et al. ALJ Walsh found that Claimant was responsible for his termination because he failed to notify his employer about his multiple absences and missed shifts after he was offered a modified position with full wages. After reviewing the post-hearing depositions of Respondents’ expert Dr. Eric Ridings, and authorized treating surgeon Dr. Simpson, ALJ Walsh concluded that Claimant failed to prove that the diagnostic right ankle surgery was reasonable and necessary. Claimant’s requests for surgery and ongoing TTD benefits were denied and dismissed.

 

ST_newsOf Counsel Sheila Toborg and Associate Angela Lavery successfully defended Respondents’ interests in Benjamin Montoya v. ADP TotalSource Group, Inc. et al. Claimant asserted that he had sustained work-related injuries while moving ladders on and off his work vehicle. Claimant alleged injuries to his head, bilateral hernias, and a groin injury with subsequent infection. At hearing, Ms. Toborg presented evidence in the form of medical records and expert witness testimony, that Claimant did not sustain any head injury that required treatment and that Claimant’s alleged groin injury and bilateral hernias were not related to the work incident. ALJ Lamphere was persuaded by the credible expert witness testimony of Respondents’ medical expert who testified that Claimant’s injuries were not consistent with, or related to, the reported work incident. Claimant’s claim for compensation and benefits arising out of his reported incident was denied and dismissed.

 

Abraham-97p45HROf Counsel John Abraham successfully defended Claimant’s appeal to the Colorado Supreme Court in Day v. ICAO, W.C. No. 4-897-997, (February 26, 2015) (nsfop). Claimant sustained two non-work-related injuries to his right shoulder in 2011 and 2012. Claimant alleged he reinjured his right shoulder at work in August 2012. The ALJ denied and dismissed the claim. ALJ Cannici found Respondents’ expert testimony and opinions credible that he could not state, within a reasonable degree of medical probability, Claimant’s described mechanism of injury caused the additional pathology to his shoulder. Additionally, the injury was likely a natural progression of the preexisting tear because the shoulder was very susceptible to reinjury. The Court of Appeals affirmed the ALJ’s Order. Claimant appealed to the Colorado Supreme Court. The Supreme Court denied Claimant’s Petition for Writ of Certiorari.


 

joshua-d-brown_lee-kinder-denver-attorney3Down_With_Brown2Intermittent FMLA leave is a giant thorn in the side of human resource professionals across the country. The struggle is that not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them. The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members. The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call. It’s not always simple, however.  Click here to continue reading the article.

 


Cases You Should Know

To stipulate to a deadline, or not to stipulate, that is the question: In Godoy v. Custom Made Meals Corp., et al. W.C. No. 4-915-606 (March 30, 2015, ICAO), the parties entered into a Stipulation to hold the issue of PTD benefits in abeyance pending the conclusion of litigation. Respondents ultimately conceded the remaining hearing issues and filed the FAL. Claimant filed an Application for Hearing over PTD benefits 53 days later. Respondents filed a Motion for Summary Judgement indicating that the claim was administratively closed as Claimant did not file the Application for Hearing within the 30-day deadline. ICAO held that it was unclear how long the parties intended to hold the issue of PTD benefits in abeyance because there was no specified date noted in the Stipulation. ICAO denied the Motion for Summary Judgement and ordered the parties to go to an evidentiary hearing to determine the terms of the Stipulation and whether the claim was actually closed.

To be clear, we specifically deny that specific medical benefit: In Bruno v. Brede Exposition Services, et al., W.C. No. 4-947-316 (ICAO July 31, 2015) Claimant sustained an industrial injury to his left shoulder. However, several medical providers opined Claimant’s ongoing need for medical treatment was due to the natural progression of his pre-existing condition. At hearing, the ALJ denied generally all additional medical treatment as not related to the work injury. ICAO reversed the ALJ’s Order finding the ALJ’s denial of non-specific additional medical treatment was a de facto determination of MMI for which the ALJ lacked jurisdiction to determine without MMI determination or a DIME. However, the Panel noted Respondents could contest specific medical treatment.

Carry workers’ compensation insurance or be prepared to pay the Piper (aka Director): In DOWC v. DAMI Hospitality, et al. W.C. No. 84-1545878 (ICAO July 30, 2015), the employer was fined $841,200 for failure to carry workers’ compensation insurance from July 2005 to present. Employer appealed. ICAO upheld the Director’s Order holding there was no requirement within C.R.S. §8-43-409 that the Director prove by clear and convincing evidence the employer reasonably knew, or should have known, they were in violation of applicable law. ICAO noted C.R.S. §8-43-409 set forth a mandatory requirement that employers carry workers’ compensation insurance. Failure to comply with the statute allowed the Director to impose a penalty upon the employer of $250 – $500 per day of violation and did not require a finding of intent on the part of the employer.

It pays to be specific in penalties requests, or you don’t get paid: In Jordan v. Rio Blanco Water, et al. W.C. No. 4-937-000 (ICAO January 5, 2015), Claimant sought penalties for several grievances regarding her employer’s failure to notify the Division of a lost time injury. Claimant cited four statutory sections in her Application for Hearing, but did not cite C.R.S. §8-43-304. In a post-hearing position statement, for the first time Claimant raised the argument that penalties should be awarded in light of Respondents’ violation of C.R.S. §8-43-304(1). ICAO held that the ALJ properly dismissed the request for penalties because Claimant did not identify the statutory penalty section in her initial pleadings before hearing.

What the DIME says goes: In Archuletta v. Concrete Frame Associates, et al. W.C. No. 4-951-597 (ICAO March 9, 2015), Respondents failed to overcome a DIME’s opinion of not at MMI, but successfully defended against a claim for temporary disability benefits. Respondents argued that the DIME physician erred because he did not recommend specific medical treatment when Claimant was removed from MMI. Respondents also argued that Claimant was not entitled to temporary disability benefits because the DIME did not provide work restrictions and the prior release to full duty was still valid. ICAO held that the DIME physician only needs to determine whether further medical treatment is “reasonably expected” to improve the condition and does not have to make specific recommendations for treatment in order to find a Claimant is not at MMI. ICAO held that an ATP’s release to regular duty will terminate temporary disability benefits regardless of MMI status. As the DIME physician did not provide additional work restrictions, the ATP’s previous release to full duty was still in effect and barred temporary disability benefits.

The Ongoing Dilemma of Intermittent FMLA Leave

Intermittent FMLA leave is a giant thorn in the side of human resource professionals Familyacross the country. The struggle is that not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them. The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members. The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call. It’s not always simple, however. If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility Is Not Automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility. Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time. After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired. She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her lateness, she claimed, so each instance should have counted as a block of FMLA leave. Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition. The only time it affected her was when it was time to go to work.

The Court denied her claim for FMLA eligibility and indicated that intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating. That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.
Cite: Brown v. Eastern Maine Medical Center.

Designating Leave Retroactively
In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively. For example, an employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia. Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.” The key here is that the company acted quickly – within two days of being notified of the qualifying leave. The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation. It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using Employees’ Paid Time Off
Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO). Instead, companies can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The Transfer Position
Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation. The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same. And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

There is one large restriction – the move can’t be made if the transfer “adversely affects” the individual. An example would be if the new position would lengthen or increase the cost of the employee’s commute. This would adversely affect the employee. Instead, such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation
Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations. Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

The Firing Question
Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights. Obviously, workers can’t be fired for taking leave, but employers can layoff, discipline and terminate those employees who violate company policies or perform poorly. When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been laid off, disciplined or terminated regardless of the leave request or usage.

Reductions in Force
When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave. However, companies again should be prepared not only to prove the business necessity of the move, but to show an objective, nondiscriminatory plan for choosing which employees would be laid off.

Misconduct or Poor Performance
Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave. However, companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence. As such, courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave? This is not an easy answer to explain before a jury if liability is threatened at trial. The good news is that a number of courts have upheld employers’ rights to fire employees on FMLA leave, even when the employee’s problems were first discovered when the employee went off the job. Nevertheless, companies should move cautiously if they are to terminate an employee currently out on leave due to misconduct or poor performance existing prior to the leave, but discovered after the leave begins.

legaLKonnection Firm Newsletter – August 2015

newsletter_lee-kinder-header-badge

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

In the News

announcement_bestLawyers

BabyBrown

Lee + Kinder LLC would like to congratulate Member Joshua Brown and his wife Megan on the birth of their third son, Gavin Cinninger, on August 13th! Welcome to the world Gavin!

 

 

 

 


Victory Lap

joshua-d-brown_lee-kinder-denver-attorney2
Member Joshua Brown and Associate James Payonk successfully defended in Wilson v. SHC Servicer, et al., against Claimant’s assertion that she was an employee and entitled to TTD benefits. While leaving a pre-employment drug screen, Claimant fell in the parking lot. The ALJ found that because Claimant was still in the application process when she fell, she was not an “employee” for purposes of benefits under the Workers’ Compensation Act. Claimant’s claim was denied and dismissed.

 

In a second win, Member Joshua Brown successfully defended against a compensability claim in Sally Kleinhenz v. Sky West Airlines, Inc., et al. The ALJ found there was no question that Claimant fell onto her knee on May 17, 2013, but that Claimant failed to meet her burden of proof in establishing that the fall caused the development of pain in her knee ten to eleven months later.  Mr. Brown extinguished the claim by demonstrating there was no persuasive evidence, including medical evidence, linking the fall to the development of Claimant’s symptoms.
 
 
Karen-NEWSMember Karen Gail Treece successfully defended against Claimant’s Petition for Writ of Certiorari to the Supreme Court in Pamela McTaggart-Kerns v. Industrial Claim Appeal Office of the State of Colorado, et al. Ms. Treece argued that the lower court did not err when it found that Respondents were not liable for emergency medical treatment following Claimant’s MVA, where Claimant failed to prove she sustained a compensable injury.  She argued that, in order for lost time to be compensable, it must be due to a work-related “injury” and not simply the “accident” itself, as those two terms are not synonymous.  Claimant’s lost time was not related to an industrial injury, and lost time alone does not compel a finding of compensability. The Supreme Court denied Claimant’s Petition for Writ of Certiorari.

 

 

McCracen-50p45HROf Counsel Fran McCracken defeated Claimant’s pursuit of workers’ compensation benefits in Monica Ledoux v. Wal-Mart Stores, Inc., et al. Claimant slipped and fell at work. The incident was captured on surveillance video and Claimant then reported and treated for an alleged right knee injury.  At hearing, Ms. McCracken established the presence of preexisting knee problems and elicited credible medical evidence that Claimant’s reported symptoms were not supported by objective findings.  Ultimately, the ALJ denied and dismissed the claim, concluding that Claimant did not establish a compensable work injury.

 

 

 

Abraham-97p45HROf Counsel John Abraham successfully defended against Claimant’s claim for specific maintenance medical benefits in David Rogacki, Sr., v. Accord Human Resources, Inc., et al. Claimant sought maintenance benefits of platelet-rich plasma injections (PRP) and a continued prescription for Horizant for his admitted shoulder injury. Mr. Abraham relied upon the Medical Treatment Guidelines and expert testimony to prove PRP injections were not reasonable or necessary. Additionally, with respect to the request for continued Horizant, Mr. Abraham elicited credible testimony from an expert that Claimant currently had no objective evidence of neuropathy and that it was therefore reasonable to taper Claimant from the Horizant over a period of 4-6 weeks.  The Court denied Claimant’s request for the PRP injections and ordered that Claimant should work with his physician to taper off Horizant within 4-6 weeks.


CupOJoe_ID

 

History of Workers’ Compensation Law:  Part 1, Ancient Beginnings

The modern day workers’ compensation system has a long, and often dark, history. The concept of an individual’s right to recover monetary compensation for sustaining an injury caused by another is one of the oldest legal concepts in recorded human history. One observer has pointed out that “the history of workers’ compensation begins shortly after the advent of written history itself.” Gregory Guyton, “A Brief History of Workers’ Compensation,” Iowa Orthop. J, 1999, 19: 106-110. Guyton argues that, regardless of how professionals involved in the system “lament the difficulty” of its administration, understanding the history of the workers’ compensation system lends valuable perspective to its critical importance in the work place. This three part series, Ancient Beginnings, Industrial Revolution, and Modern America, will deliver the basic historical framework underpinning the workers’ compensation profession. Click here to continue reading this article


Cases You Should Know 

Look out! It’s a metal table!: In Briggs v. Safeway, W.C. No. 4-950-808-01 (July 8, 2015), Claimant worked as a meat and fish clerk for Respondents, when she sustained a head injury after falling onto a work table. The ALJ found that Claimant had sustained a compensable injury when she fell on a metal table at work, even though it was later determined that she had suffered a non-work related seizure. The ALJ concluded that Claimant hit her head on the table and noted that the table was a large industrial metal table and its presence was not a universal condition. The presence of the metal table created a “special hazard” of employment. The special hazard rule allowed the claim to be compensable regardless of the cause of Claimant’s fall. Moral of the story: the preexisting condition (seizure condition) is not compensable itself; rather it is the injuries that result from the condition (the fall onto the table) that result in a compensable injury.It’s all relative; or, sure, we’ll pay for your unrelated medical treatment: Also in Briggs v. Safeway, the ALJ awarded Claimant medical benefits for all treatment she received at the emergency room for her immediate treatment after the fall because the head injury was found to be compensable. This was despite the fact that the seizure was determined by the physician to be a one-time and unprovoked episode that was not work-related. The ALJ noted that medical treatment provided as a strategy to perfect a diagnosis for symptoms that are partially related to work injuries has been deemed compensable despite the circumstance that the condition treated later turns out to be an injury distinct from the work injury. Moral of the story: treatment does not have to be 100% related to an injury in order for respondents to be liable for payment.A Full and Final Settlement is sometimes neither full nor final:  Although the parties settled a compensable shoulder claim on a full and final basis, Claimant petitioned and successfully reopened his settled claim by demonstrating that he had an injury that was unknown to either party at the time the settlement was approved. In England v. Amerigas Propane, W.C. No. 4-907-349-03 (June 25, 2015), the ALJ found that the claim should be reopened because Claimant had an undiagnosed scapula fracture due to hardware placement from shoulder surgery for the work-related claim.  Settlements may be reopened upon a showing of mutual mistake of material fact pursuant to C.R.S. §8-43-204(1).  The ALJ and panel noted that in this case, there was a mutual mistake because no party knew of the fracture at the time of settlement. and this was supported by substantial medical records at the time the parties entered settlement.  This Order is being appealed. Moral of the story: An unknown condition that requires further medical treatment may warrant reopening of a settled claim.

Penalties: big money, no whammies!: Endorsing the correct penalty is imperative. In Jeanette Jordan v. Rio Blanco Water Conservancy District, W.C. No. 4-937-000 (June 23, 2015) the Court upheld the ALJ’s finding that ordered Respondents to pay penalties pursuant to C.R.S. §8-43-203(2)(a) but denied penalties pursuant to C.R.S.§8-43-304(1).  The Panel ruled that the ALJ did not err because the Claimant had specifically endorsed penalties she was pursuing per §8-43-203(2)(a) on the Application for Hearing, but Claimant did not specifically note the other statue under which she was seeking penalties, C.R.S. §8-43-304(1).  Moral of the story: Always plead penalties with specificity.

Even an ALJ may not implicate MMI:  In Davis v. Little Pub Holdings, LLC and Pinnacol Assurance, W.C. No. 4-947-977 (June 17, 2015), the ALJ found the Claimant sustained a temporary aggravation of a chronic preexisting condition. Since the temporary aggravation ended, the ALJ ordered TTD and medical benefits terminated.  Claimant appealed, arguing that the ALJ erred in terminating benefits in the absence of a MMI finding by an ATP. ICAO agreed with the Claimant, reiterating that an ALJ lacks authority to determine MMI until there has been a medical determination of MMI by an ATP or an IME on the issue.  Moral of the Story: An ATP must determine MMI, not an ALJ.

Oh yeah, I remember taking that contracts course in law school…: In Godoy v. Custom Made Meals Corp., et al. W.C. No. 4-915-606 (July 9, 2015), the parties entered an agreement to hold the issue of PTD in abeyance. Respondents filed a FAL and 53 days later, Claimant filed an Objection to the FAL and Application for Hearing. The ALJ granted Respondents’ Motion for Summary Judgment, finding that Claimant’s failure to file an Application for Hearing within 30 days of the FAL closed all issues by operation of law.  On appeal, the ICAO remanded the case for an evidentiary hearing, holding that whether the parties’ agreement to hold PTD in abeyance operated to preserve the issue of PTD, and if so, for how long, was a factual question for an ALJ.   Moral of the Story: Be specific when entering into agreements with claimants; include deadlines and language to protect the parties.

Just because it’s a bad idea doesn’t mean it’s not ripe: In McMeekin v. ICAO, et al. (Colo. App. 2015) (nsfop), the ALJ determined that Respondents’ endorsement of “authorized treating provider” for hearing was unripe, and assessed attorneys’ fees against Respondents. ICAO reversed the attorneys’ fee award, finding the issue was ripe when Respondents endorsed it.  The Colorado Court of Appeals agreed with ICAO, noting Respondents’ endorsement of maintenance medical benefits for hearing was linked to the ATP issue. The Court reasoned that the ATP issue can include not only whether a specific provider falls within the referral chain but also whether the scope of the referral covers a particular treatment. Moral of the story: “Ripeness” tests whether an issue is real, immediate, and fit for adjudication. Even if an issue lacks merit, it does not necessarily lack ripeness.

History of Workers’ Compensation Law: Part 1, Ancient Beginnings

CupOJoe_ID

The modern day workers’ compensation system has a long, and often dark, history. The concept of an individual’s right to recover monetary compensation for sustaining an injury caused by another is one of the oldest legal concepts in recorded human history. One observer has pointed out that “the history of workers’ compensation begins shortly after the advent of written history itself.” Gregory Guyton, “A Brief History of Workers’ Compensation,” Iowa Orthop. J, 1999, 19: 106-110. Guyton argues that, regardless of how professionals involved in the system “lament the difficulty” of its administration, understanding the history of the workers’ compensation system lends valuable perspective to its critical importance in the work place. This three part series, Ancient Beginnings, Industrial Revolution, and Modern America, will deliver the basic historical framework underpinning the workers’ compensation profession.

The first historical recording of law requiring payment of monetary compensation for bodily injury dates back to the Code of Ur-Nammu, which is the oldest surviving set of written laws. The Code of Ur-Nammu, which is written on stone tablets and currently on exhibit inHammurabi_Code Istanbul, originated in Mesopotamia sometime between 2100-2050 B.C, while under the reign of King Namma of Ur. The overarching goal of the code was to establish “equity in the land.” In doing so, King Ur dictated laws such as “if a man knocks out the eye of another man, he shall weigh out ½ of mina in silver” or 30 silver shekels. The code itself implies that the payment of compensatory awards applied to all aspects of daily life. The code also reflects the ubiquitous use of labor slaves, as it only provided for and only awarded monetary compensation awards to the slave owner, rather than the laborer, if the slave in the case sustained the injury.

The Code of Hammurabi, famously known for the harsh eye-for-an-eye decree, adopted the compensation-for-disability concept when instituted sometime between 1795-1750 B.C. Neither the codes of Kings Ur or Hammurabi appear to give an employer special exempt privileges. According to the Code of Hammurabi, if a man committed an unintentional assault or bodily harm against another free man, he need only be charged the value of doctor’s fees as a penalty. Rev. Claude Johns, “Babylonian Law”, 11th Ed. of Encyclopedia Britannic, (1910-1911). There were harsh penalties for careless and neglectful behavior on the part of those providing public services. For example, if an unskilled surgeon caused loss of life or limb, the surgeon’s hands were cut off. Scholars point out that the code also contained instances when compensation could be awarded based upon a schedule if the underlining injury was a result of neglect conduct. One can use their own imagination to lament on how this code was applied to individuals who engaged in careless actions that caused harm to their employees. The monetary compensation and respective legal codes only applied to free citizens. One explanation for the lack of specific work-place laws certainly is that the workers’ in the high intensity jobs, such as construction, were not entitled to legal protections due to their social position as property slaves.

Contemporary observers are part to turn of the century Greek, Roman, Arabic, and Chinese legal codes as the next step in the evolution of workers’ compensation law. Gregory Guyton notes that the ancient legal systems provided for compensation schedules for the loss of a specific body part based upon the schedule on compensation for the injury itself. The compensation given to an individual for loss of a body part was only based upon the scheduled award. The value of an impairment disability did not exist in antiquity. See Geerts, Achille, et. al., Compensation for Bodily Harm: A Comparative Study, (1977). For example, in Ancient Rome, the civil liability for causing physical impairment to another citizen was contained in the civil law delict codes. Whether one was held liable for damages, based upon the schedule, depended on the degree of fault of the offending party. The Roman delict provided the early foundations for negligence based personal injury compensation systems. By all accounts, these legal systems did not include remuneration for physical impairments (disability affecting an individual’s ability to perform a task or job), but only provided compensation for an actual injury.

Payment for an actual impairment, equivalent to modern impairment benefits, subtly arose in the pre-Renaissance feudal system. The payment of quasi-impairment compensation occurred when landlords would provide impaired feudal serfs compensation for disabling physical conditions. See Gayton, Supra. One not need think too hard on whether a serf was providing services to a lord at the time of the injury. The arbitrary award to a loyal serf stemmed from the feudal lords’ culturally imposed sense of honor and benevolent obligation to care for his servants. There is no definitive evidence to suggest that the royal elites in the time of Kings Ur or Hammurabi engaged in similar practices.

The Middle Ages and pre-industrial Renaissance Europe gave way to the birth of the English common law system. The slow reduction of enslaved and indentured laborers correlated to an increased number of persons (protected under the laws) entering into more labor-intensive jobs. The law needed to respond in turn. Guyton notes that early English Common law established three principles known as the “unholy trinity of defenses” to determine whether work place injury was compensable. First, the contributory negligent principle held that if a worker was in “anyway” responsible for an injury, the employer was not liable. Second, the “fellow servant” rule exempted an employer from liability when the workers’ injury arose out of the negligent conduct of a co-worker. Third, the “assumption of risk” rule permitted employers to enter into contracts with workers whereby the worker would waive the right to sue the employer for damages. Since employers would often enter into these agreements with workers when a job required exceptionally dangerous work, the waiver agreements became known as “death contracts.”

Hundreds of years later, the modern American workers’ compensation system eviscerated the three early English compensability laws. The lessons gleaned from antiquity reflect the slow growth of the compensation for injury system, which was born out of necessity to address growing disputes amongst those protected under the respective legal system. The next edition of Cup O’ Joe will discuss Part II, how the industrial revolution shaped the modern workers’ compensation system.

legaLKonnection Firm Newsletter – July 2015

newsletter_lee-kinder-header-badge

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

In the News

On July 14th, Lee + Kinder, LLC celebrated its 7th anniversary, providing comprehensive and legal services to employers and insurers throughout Colorado. Since inception, our approach to the practice of law has been to provide aggressive representation and protection of clients’ interests with the goal of bringing all cases to resolution in the most cost-effective and expeditious manner possible.  We believe that this philosophy allows our Firm to stand – and grow – on its three founding principles of Integrity, Knowledge and Service.

We gratefully acknowledge that we would not be where we are now, 7 years later, without the support of our clients.  We send out a very heartfelt thank you for your trust in our legal integrity.  Our promise to you is to continue providing you with legal representation beyond your expectations.  Thank you for your business.


Victory Lap

FranNewsOf Counsel M. Frances McCracken successfully overcame the DIME and had medical care beyond MMI denied in Fischer v. Family Dollar Stores of Colorado and ACE American Insurance.  Claimant suffered an admitted injury to her shoulder and underwent surgery. A DIME physician opined that, in addition to impairment due to a distal clavicle resection procedure, Claimant had impairment for both loss of range of motion and motor weakness of the upper extremity under Tables 14 and 11 of the AMA Guidelines, 3rd ed., rev.  Ms. McCracken successfully argued the DIME physician misapplied the Guidelines, as Claimant’s request for additional medical care was denied.

 
ST_newsOf Counsel Sheila Toborg successfully defeated Claimant’s pursuit of maintenance medical treatment in Carol P. Davis v. United Parcel Service. Claimant sought reimbursement for post-MMI physical therapy treatments. Ms. Toborg utilized expert medical opinions to persuasively argue Claimant’s left knee symptoms of pain and instability were related to the polyethylene component of Claimant’s prosthetic knee and therefore, physical therapy would be of no benefit for that condition.  The ALJ credited the testimony of Respondents’ expert, Dr. Lesnak, as well as the Peer Review opinion from Dr. Obermiller. ALJ Cain denied Claimant’s claim for payment of incurred physical therapy expenses.

 
Joe_115X150Of Counsel Joseph Gren successfully defended against Claimant’s request for a referral to a dietitian/nutritionist to manage weight gain, which she claimed was due to her work-related injury in Waneka v. United Parcel Service and Liberty Mutual Insurance.  Claimant gained 65 pounds since her work injury, and the authorized treating physician referred her to a weight management specialist.  The ALJ credited Respondents’ expert, and Mr. Gren’s argument, that weight gain would not be an expected consequence of a toe bone fracture.

 

Jess_115x125Associate Jessica Melson successfully defended against Claimant’s appeal of an Order Granting Respondents’ Motion for Summary Judgment in Smith v. Wyndham Worldwide Corp. and Liberty Mutual Group. The ALJ agreed with Ms. Melson’s argument that Claimant’s “new” claim was an attempt to relitigate Claimant’s prior claim, which had already been litigated, denied and dismissed. The ALJ granted Respondents’ Motion for Summary Judgment. ICAO upheld the ALJ’s Order Granting the Motion for Summary Judgment, finding Claimant did not present any new facts or issues that were not previously litigated.


 

THIRD-PARTY RECOVERY (2 – 4 – 6 – 8 Let’s Go Subrogate!)
As you are probably aware, the Colorado Workers’ Compensation Act has a statute giving a subrogation right to the payer of workers’ compensation benefits. This statute is § 8-41-203, C.R.S. Although referred to as a subrogation lien, it is actually a right of recovery that operates as an assignment. Once benefits are paid under the Act, that payment also assigns a right of recovery to the payer against a third party that may be responsible for the injury that generated a claim for which benefits are paid.

Click here to read more in-depth on this topic.

 


Cases You Should Know 

“But For” Your Work, You Wouldn’t Have Been Hurt
In Savage v. ICAO, et al. (Colo. App. 2015)(nsfop), the Court of Appeals affirmed the hearing ALJ’s decision that Claimant suffered a compensable industrial exposure to carbon monoxide poisoning.  Claimant, a trucker, was found in his truck cab with an acute illness later determined to be from high levels of exposure to carbon monoxide.  Tests run on the truck, however, did not show evidence of any exhaust leaks which would have caused the exposure.  The ALJ, nevertheless, found that Claimant suffered a compensable poisoning from carbon monoxide under the “but for” test in City of Brighton v. Rodriguez. ICAO held that this test did not apply in this case, as the evidence ruled out exposure from the truck.  The Court of Appeals agreed with the ALJ, holding that Claimant could not likely have otherwise contracted the illness but for exposure from the truck, and that the evidence did not definitively rule out malfunctions in the truck. Moral of the Story: Colorado Courts are trending towards finding any injury that occurs while in the workplace compensable – even if the actual cause of injury is not, or cannot be, fully established.

 

The Statute of Limitations can be a Killer
The Court of Appeals upheld an Order denying and dismissing widow’s claim for survivor benefits due to late filing of a claim in Ragan v. ICAO, et al. (Colo. App. 2015)(nsfop).  Decedent suffered (and survived) a heart attack in 1982 and was given lifetime medical benefits for the condition pursuant to a settlement agreement in 1990. In 2003, the insurance company became insolvent and the claim was transferred to the Colorado Insurance Guaranty Association (CIGA). The Order of Liquidation imposed a one-year deadline to file any claims under the Guaranty Act.  The decedent died of a heart attack in March 2013, and the widow filed a claim for survivor benefits. The widow argued that her claim should still be considered timely, despite being filed 9 years after the deadline, for reasons of statutory construction and due process.  The Court found the Order of Liquidation applied to the claim, although the death did not actually happen until after the Order of Liquidation expired, and denied the widow’s claim for benefit. Moral of the Story: This is a unique case as it only applies to claims administered by CIGA.

 

Where There’s Smoke, There’s Fire…
In Teller County v. ICAO, et al. (Colo. App. 2015)(nsfop), Claimant, a volunteer for Teller County Search and Rescue, was involved in a motor vehicle accident on his way to a fire chiefs meeting.  Claimant asserted that as a volunteer he fell within the scope of the definition of employee set forth in C.R.S § 8-40-202(1)(a)(I)(A), which defines “employee” to include volunteer rescue teams or groups, … while said persons are actually performing duties as volunteer rescue teams and while engaged in organized drills, practice, or training necessary or proper for the performance of such duties. Respondents argued Claimant’s attendance at the meeting was volitional and not mandatory.  The ICAO found that Claimant had a custom and a practice under which Claimant regularly attended the fire chiefs meetings and Claimant notified Teller County that he was attending the conference prior to leaving by “marking in service.”  The Court of Appeals agreed with the ALJ and ICAO that Claimant was acting within the course and scope of his employment at the time of the motor vehicle accident. Moral of the Story: “Volunteers” may be “employees” acting within the course and scope of their employment.

 

Re/Max – Above the Crowd, and Above the Statutory Employer Requirement
The ICAO set aside an ALJ’s decision that held a real estate brokerage firm liable for workers’ compensation benefits as a statutory employer in Hopper v. Re/Max Properties, Inc. and Farmington Casualty Company, W.C. No. 4-932-057 (May 26, 2015).  Claimant was employed by a licensed real estate agent, who performed regular work for Re/Max.  The agent did not have workers’ compensation insurance. The ALJ found that Re/Max was Claimant’s statutory employer and therefore liable for benefits.  Upon appeal, ICAO set aside the ALJ’s holding and found Re/Max was exempt as a statutory employer, as § 8-41-401(5), C.R.S., states that the provisions of the Workers’ Compensation Act shall not apply to licensed real estate brokers. Moral of the Story: The Act treats real estate brokers differently than usual “employers.”

 

The Jurisdictional Bar is Set High
In Liggins v. McDonald Waterproofing, Inc., and Pinnacol Assurance, W.C. No. 4-924-286 (June 5, 2015), the ICAO affirmed an Order granting Respondents’ Motion for Summary Judgment, dismissing Claimant’s claim for Permanent Total Disability (PTD) benefits.  Section 8-43-203(2)(b)(II)(A), C.R.S., gives a claimant 30 days from the filing of an FAL in which to file an Application for Hearing on any disputed issues. Claimant filed an Application for Hearing on the issue of PTD benefits prior to Respondents’ filing of an FAL.  However, after the FAL was filed, Claimant failed to file a new Application for Hearing on the PTD issue within the requisite 30 days. The ALJ granted Respondents’ Motion for Summary Judgment striking the issue of PTD, and ICAO upheld the decision. Moral of the Story: It is critical to timely comply with deadlines set forth in the Act and Rules.

 

A Portion of a Previously Settled Claim Can Still be Apportioned
In Pederson v. Jonathan P. Bayne, DDS, et al. W.C. No. 4-894-819-02 (May 19, 2015), the ICAO affirmed an Order permitting a PPD benefits award based upon an apportionment applied by the DIME physician.  Claimant had a prior neck injury from 2009, which was settled before the rating was finalized. Claimant then suffered a new neck injury in 2012. The DIME physician in her 2012 claim provided a 9% whole person impairment rating after apportioning out the 2009 injury. Claimant challenged the DIME and argued since she failed to receive a rating for her prior claim, the DIME should not be allowed to apportion out her prior claim. Section 8-42-104(5)(a) provides for apportionment when the previous impairment rating is established either through an award or a settlement.  Here, the DIME concluded that Claimant’s prior medical impairment rating was work related and therefore calculated apportionment.  The ALJ agreed and ICAO upheld the decision. Moral of the Story: Look for documentation of pre-existing injuries and treatment to send to the treating doctors; apportionment is applicable when a previous impairment rating is established, even when the prior claim is settled.

 

The End of Discovery Road for Repeat Offenders
In Powderly v. City of Golden., et al. W.C. No. 4-936-681 (May 28, 2015), the ICAO affirmed an Order that dismissed Claimant’s claim for workers’ compensation benefits for repeated discovery violations. Claimant was ordered on three different occasions to comply with discovery requests.  After Claimant failed to comply with the third Order, the ALJ dismissed his claim pursuant to W.C.R.P. 9-1 and C.R.S. § 8-43-207(1)(e).  Rule 9-1(E) provides that if any party fails to comply with the provisions of this Rule, an ALJ may impose sanctions upon such party pursuant to Statute and Rule.  Further, § 8-43-207(1)(e) permits an ALJ to impose the sanctions provided in the Rules of Civil Procedure for the willful failure to comply with permitted discovery.  The ALJ found that Claimant had multiple opportunities to comply with the discovery Orders and that his failure to comply was willful.  The ALJ dismissed the claim and ICAO upheld the decision. Moral of the Story: Respondents can utilize discovery techniques and traps as powerful tools to minimize litigation and potentially secure dismissals of claims.
Page 2 of 612345...Last »