legaLKonnection Firm Newsletter – November 2015


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

In the News



Lee + Kinder LLC was named by U.S. News & World Report and Woodward/White as a Metropolitan Tier 1 Best Law Firm 2016 in the field of Workers’ Compensation Law – Employers.




Victory Lap

Member Joshua BrownJosh_115x125 and Of Counsel Frank Cavanaugh successfully filed for Summary Judgment in favor of their client, Scottsdale Insurance Company, in a complicated bad faith and breach of contract case. Scottsdale was a third level excess insurer for a general contractor. After a year of litigation in the Federal District Court of Colorado, Scottsdale was added as a party. Plaintiff settled with numerous other defendant carriers, leaving Scottsdale as the remaining defendant to the litigation. The bad faith claim against Scottsdale was dismissed, leaving only a breach of contract claim. For procedural reasons, Scottsdale had only days to file both an Answer and a Motion for Summary Judgment in the weeks before a jury trial was scheduled to commence. Mr. Brown and Mr. Cavanaugh filed a Motion for Summary Judgment arguing Scottsdale’s excess policy had not been triggered as the underlying policies from the other carriers had not been exhausted; the other carriers had settled but failed to pay out their policy limits. The Judge agreed with Scottsdale’s position and granted Summary Judgment.


Karen-NEWSMember Karen Gail Treece and Associate Jessica Melson successfully defended Claimant’s appeal in Satchell v Coach America and American Home Assurance Company, W.C. No. 4-825-725 (ICAO May 28, 2015). In this claim, Claimant suffered an admitted knee injury. The DIME physician opined Claimant had reached MMI. Claimant sought to overcome the determination of MMI and alleged she also injured her low back in the original injury. ALJ Jones determined Claimant failed to overcome the DIME and that the low back was not causally related to the original claim. Claimant appealed. ICAO affirmed the ALJ’s Order.


CupoJoe Banner




Joe_115X150History of Workers’ Compensation Law: Part II: The Rise of Workers’ Compensation Coverage

This second segment, of the three part series on the history of workers’ compensation law, briefly summarizes how the industrial revolution fueled the workers’ compensation system. The first resemblances of workers’ compensation insurance coverage primarily arose because of increased revolutionized industrial practices and socialist schisms in European political ideals. Around the 1860s, the industrial revolution was beginning to take hold in Europe; the American Industrial Revolution area would steam forward in the later part of the 1800s. Industrial imperial countries, specifically Germany, wrestled with growing the economics of their respective country while continuing to expand their empires. To achieve these goals, political leaders were required to balance the progressive social worker-centered ideals and traditional conservative business goals. Click here to continue reading this article

Cases You Should Know

CRPS You Have; Compensable It Is Not.

In Amy Gordon v. Ross Stores, Inc., W.C. 4-878-759 (ICAO, August 20, 2015), Respondents initially admitted compensability and Claimant underwent authorized surgery for carpal tunnel syndrome (“CTS”). A DIME determined Claimant’s CTS was not work related, and the CTS surgery caused chronic regional pain syndrome (“CRPS”). ICAO held that Claimant’s CRPS was not compensable under the quasi-course of employment doctrine because it was not the “direct and natural” consequence of an original compensable condition. Moral of the Story: Employers often provide medical treatment then later contest compensability of an injury—mere admission that an injury occurred cannot be construed as a concession that all subsequent conditions and treatment were caused by the work injury.

DIME Got You At MMI? Don’t Delay, Endorse PTD Today!

In David Weibel v. The Kroger Company, W.C. 4-878-425 (ICAO, September 22, 2015), Respondents filed an Application for Hearing to overcome the DIME’s impairment rating, and Claimant responded endorsing multiple issues, but not Permanent Total Disability (“PTD”). Respondents subsequently filed a Final Admission of Liability and Claimant timely objected, applying for hearing on the issue of PTD. ICAO held the PTD claim was barred by the doctrine of claim preclusion because Claimant failed to endorse PTD when responding to Respondents’ application on the issue of permanent impairment. Moral of the Story: Claim preclusion bars re-litigation of matters that have already been decided as well as matters that could have been raised in a prior proceeding but were not.

Farmers Sure Work Hard But They Are Not Statutory Employers.

In Juan Galdamez v. Jose Enriquez, W.C. 4-897-023-03 (ICAO, August 17, 2015), Respondents’ Motion for Summary Judgment to deny Claimant’s claim against Schneider Farms as a statutory employer was upheld. Schneider Farms hired Jose Enriquez to clean irrigation ditches. Mr. Enriquez in turn hired Claimant. Claimant attempted to move some metal pipes in the field, when they came into contact with power lines and Claimant was injured by electrical current. Claimant filed suit against both Enriquez (direct employer) and Schneider (statutory employer). C.R.S. §8-41-401(1)(a) provides an agricultural exemption to statutory liability and therefore, Schneider Farms was not the statutory employer in this case. Moral of the Story: The agricultural exemption statute places an obligation on the party contracted by the farm or agricultural entity to obtain and maintain compensation insurance for farm or ranch labor. The farm is not required to demand or obtain a certificate of insurance from its hired contractor.

Location, Location, Location: ATP Shopping When An ATP Changes Facilities.

In William Benton v. Lowe Enterprises, Inc., W.C. 4-903-810-04 (ICAO, September 14, 2015),. Claimant initially treated at a Concentra in Thornton, Colorado with Dr. Nystrom. Dr. Nystrom eventually moved his practice to the Concentra in Greeley. Claimant continued treatment in the Thornton/Denver area for several months with an authorized physician. Upon reaching MMI, asserted to Dr. Nystrom in Greeley. C.R.S. §8-43-404(5)(a)(V) states that if the ATP moves from one facility to another, or from one corporate medical provider to another, the injured worker may continue care with “the” ATP. A Claimant may continue with the ATP who moves locations so long as the ATP is Claimant’s primary physician with whom it is most necessary for Claimant to continue his care. The progress or frequency of care from a particular ATP is a factor in determining whether the physician is “the” primary physician. In this case, the case was remanded for review to determine whether “the” ATP was Dr. Nystrom, as there was evidence that Claimant may not have sought treatment again with Dr. Nystrom until filing the Application for Hearing on the issue. Moral of the Story: A Claimant may continue medical care with the ATP who has moved locations, as long as the ATP is “the” primary authorized physician providing care and there is evidence to support this. Note that this is different than the statute that allows Claimant to simply request a change of physician.

The History of Workers’ Compensation Part II: The Rise of Workers’ Compensation Coverage

This second segment, of the three part series on the history of workers’ compensation law, briefly summarizes how the industrial revolution fueled the workers’ compensation system. The first resemblances of workers’ compensation insurance coverage primarily arose because of increased revolutionized industrial practices and socialist schisms in European political ideals. Around the 1860s, the industrial revolution was beginning to take hold in Europe; the American Industrial Revolution area would steam forward in the later part of the 1800s. Industrial imperial countries, specifically Germany, wrestled with growing the economics of their respective country while continuing to expand their empires. To achieve these goals, political leaders were required to balance the progressive social worker-centered ideals and traditional conservative business goals.


Observers credit Chancellor Otto von Bismarck of Germany as establishing Otto_von_Bismarckthe benchmark standards for workers’ rights in Germany in the early 1870s. Gregory Guyton explained that, although Bismarck was not a benevolent leader, the legislation passed under his tenure resulted from a compromise between traditional views on industry and the increasing pressures from the growing Marxist movement.  Bismarck spearheaded the Employer’s Liability Law of 1871 extending legal protection to workers in specific labor areas including mines and railroads. In 1884, Germany adopted the Workers’ Accident Insurance Act. It provided pensions to those unable to work because of non-occupational causes. The subsequent Public Aid Act provided disability benefits for workers unable to work as a result of an on-the-job injury.


By virtue of creating a monetary distribution system for injured workers, Otto von Bismarck’s movement also created immunity for employers from civil lawsuits. This was a divergent political and legal shift from the ideals of the popular socialist political camp. Hence, the early workers’ compensation laws contained the exclusivity of remedies similar to what can be found in today’s statutes. Alan Pierce, Workers’ Compensation in the United States: The First 100 Years (Lexis Nexis 2011).


As the industrial revolution grew in America in the 1880s, so did public awareness of the unsafe work conditions faced by the daily laborer. In 1906, a socialist political activist, Upton Sinclair, published the graphic novel expose’ The Jungle. The novel, which followed a family of immigrants working the Chicago slaughter houses and exposed the horrific working conditions, gained ubiquitous attention amongst progressives. In the wake of The Jungle, the U.S. Congress passed several federal laws aimed to protect the public working class and general consumers, including the Food and Drug Act of 1906.


Still, little was done in terms of workers’ compensation insurance coverage in America. Common law tort liability in civil courts was the only remedy available to a worker injured in the course of employment. The American legal system posed challenges to immigrant workers such as procedural and language barriers. An employer could still raise the defense of assumption of risk or contributory negligence as a bar to any momentary recovery an injured worker could be entitled to. In his article, Guyton points out that the federal Congress acted by passing laws such as the Employer’s Liability Act in 1906 and 1907. The Acts respectively mitigated the harsh contributory negligence laws.


Following this Congressional intervention into an otherwise laissez-faire American capitalism culture, several states including New York and Massachusetts attempted to pass state based workers’ compensation reform laws. These reformations ultimately failed. However, President, later Supreme Court Justice, Howard Taft acted upon entering office. Taft signed into law the Employer’s Liability Act of 1908. The purpose of the act was to protect railroad workers’ engaged in interstate commerce. Each state developed independent commissions on how to address the liability for an injury. Private agreements between employers and workers lead to contractual obligations for employers to pay medical expenses for on the job injuries while workers’ waived their right to sue in civil tort. It was in this climate that the workers’ compensation system based in state law arose in 1911, which will be the subject of the next article.

legaLKonnection Firm Newsletter – October 2015


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.



Lee + Kinder LLC would like to wish everyone a Happy Halloween!





Victory Lap

MemberKML_115x125 Katherine Lee and Associate Jenna Zerylnick successfully defended against Claimant’s petition for review to the Industrial Claim Appeals Office in Elatabani v. Canterbury Gardens, et al. On appeal, Claimant argued she submitted sufficient evidence to the lower court to establish a compensable claim in the form of an aggravation of a low back condition while lifting a patient at work. Ms. Lee and Ms. Zerylnick persuasively argued that there was no legal basis to disturb the trial court’s Order and that the ALJ’s dismissal of the claim was supported by substantial evidence. ICAO agreed with the respondents and affirmed the ALJ’s Order dismissing the claim.

TSK_115x125Member Tiffany S Kinder and Associate Kelsey Bowers successfully defended a claim for medical benefits and Temporary Total Disability (TTD) benefits in Josue v. Anheuser-Busch, Inc., et al. Ms. Kinder presented testimony of a medical provider to prove that a platelet-rich plasma injection, that was performed without prior authorization, was not medically reasonable, or necessary, to treat Claimant’s knee injury. Ms. Kinder also successfully argued that Claimant’s wage loss was solely attributed to the unauthorized and unreasonable injection. ALJ Margot Jones found in favor of Respondents on all issues and permitted Respondents to terminate TTD benefits as of the date of the injection and found that Respondents were not liable for the injection costs.

ST_newsOf Counsel Sheila Toborg and Associate Angela Lavery successfully defended Respondents’ interests in Lozoya v. Dragon ESP, Ltd. et al. Claimant asserted that he was entitled to medical benefits consisting of an L3-S1 discogram, requested by one of his ATPs. At hearing, Ms. Toborg presented evidence in the form of medical records and expert witness testimony that, although the discogram may be causally related to Claimant’s work-related injury, it was not reasonable or necessary. The ALJ was persuaded by the credible testimony of Respondents’ medical expert, as well as by a Peer Review report submitted into evidence, that the perquisites for the discogram procedure as outlined in the MTG had not been met. The ALJ agreed that although the MTG are advisory, in this case, it was not appropriate to deviate from them. The ALJ agreed with Respondents’ position that the request for the discogram was not reasonable or necessary and therefore the request for medical treatment consisting of the L3-S1 discogram was denied and dismissed.

MBB_115x125Associate Matt Boatwright successfully defended a claim for increased Average Weekly Wage (AWW) in Steiner v. Intrawest/Steamboat Ski and Resort Corporation, et al. Claimant sought to have his AWW significantly increased for alleged concurrent employment through his personal business. Claimant contended that he had contracts through the business during the weeks prior to his injury and that his AWW should include calculations for these contracts for a limited number of weeks prior to the injury. Respondents presented evidence of Claimant’s tax records for the business from the year prior to the injury and argued that these indicated that the wage calculations by Claimant were grossly exaggerated. Claimant also sought a nominal increase in AWW for alleged “fringe” benefits which included meal discounts at his job with the employer. The ALJ disagreed that these constituted fringe benefits under the Act. The ALJ agreed with Respondents that the evidence presented by Claimant did not reflect higher wages for concurrent employment and denied the increase in AWW.

FMC_115x125Jenna_115x125Of Counsel Frank Cavanaugh and Associate Jenna Zerylnick, co-wrote an article that was recently published in The Colorado Lawyer. The article examines tort liability, workers’ compensation, and employment law issues that pose unique challenges and create exposure to K-12 school districts. The article also provides examples and practice tips for attorneys practicing in these areas.

Click here to read the entire article that was published in the October 2015 issue of The Colorado Lawyer.

Cases You Should Know

Age is Just a Number for Offsets: In Zwanziger v. King Soopers, W.C. No. 4-872-758-02 (May 14, 2015), Claimant appealed an Order that determined the Respondent was entitled to a offset against TTD benefits of Claimant’s receipt of social security survivor benefits received due to age. Claimant received social security survivor benefits based upon her age, and not her disability from the work place injury. Pursuant to section 8-42-103(c), C.R.S., of the Act, Respondent’s right to offset temporary indemnity benefits depends on whether Claimant receives social security benefits based upon disability. Since the social security disability benefits was for old-age/widow’s benefits rather than for disability, Respondent was not entitled to an offset for those benefits against TTD payments. Moral of the Story: It is important to understand exactly what benefit a claimant is receiving, and if you can assert an offset against the benefit.

Volunteering for a Compensable Claim: In Payan v. Victor Payan d/b/a Payan Construction, et al., W.C. No. 4-920-556 (August 17, 2015), ICAO upheld an ALJ’s Order denying compensability of a claim on the basis that Claimant was a “volunteer” and not an “employee” at the time of the injury. The employer ran a construction business and employed Claimant (his nephew) sporadically with no expectation of future employment. Claimant, who lived in the employer’s home, was in his pajamas and walked outside to offer his assistance with hooking a ladder onto a truck. He suffered a laceration to his leg in the process. The ALJ found a contract of hire did not exist between Employer and Claimant and that claimant was acting as a volunteer when the injury occurred. In Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo. App. 1992), the Colorado Supreme Court held that if services are volunteered without any expectation of compensation in return, an employer providing some gratuitous benefits will not convert a volunteer into an employee. Moral of the story: An injured worker must fundamentally be an “employee,” even if he or she were doing a job related task at the time of the injury, to qualify for workers’ compensation benefits.

Convicting Yourself of Non-Compensability: In Sanchez v. Honnen Equipment Company, W.C. No. 4-952-153-01 (August 10, 2015), the ALJ determined that Claimant failed to establish that he sustained a compensable right knee injury during the course and scope of his employment. The ALJ found that there was no mechanism of injury described in the medical records that accounted for the Claimant’s injuries. After Claimant lost on compensability, Claimant appealed on the grounds that the ALJ erred in allowing the Respondents to question him regarding his prior felony convictions. Claimant also testified he had a felony from a conviction dating back five years. ICAO held that Claimant voluntarily offered testimony regarding his felony conviction. Additionally, ICAO held that substantial evidence supported the ALJ’s order. Moral of the story: A claimant’s credibility (or lack thereof) plays a major role in winning a full contest case.

Oh, Those Pesky Self-Imposed Deadlines: In Chavez de Meza v. St. Anthony Hospital, W.C. No. 4-885-762-02 (August 21, 2015), Claimant sustained admitted injuries to her bilateral knees. Respondents filed an Application for Hearing contesting the authorization of bilateral knee surgeries. The parties reached a stipulation to withdraw the Application for Hearing as the left knee surgery had already been authorized. The stipulation held the issue of authorization of the right knee surgery in abeyance until March 15, 2015. Respondents re-filed their Application for Hearing on April 1, 2015. Claimant moved for summary judgment arguing that Respondents waived their right to challenge the authorization of the right knee surgery. The ALJ concluded that the Respondents did not re-file their Application for Hearing on or before March 15, 2015 and granted Claimant’s Motion. ICAO held that the ALJ’s order was based upon substantial evidence and upheld the decision. Moral of the Story: Don’t miss deadlines, especially if the deadlines are set by court approved orders.

ALJ Gets First Bite of the Causation Apple: In Day v. ICAO, et al. (August 6, 2015)(nsfop), the Colorado Court of Appeals held that a DIME is not a necessary prerequisite to a hearing on causation of the need for treatment. An ALJ denied Claimant’s claim for medical benefits on the basis that further treatment was not related to the work injury. Claimant contended upon appeal that a DIME was first necessary to determine causation. The Court of Appeals affirmed the ICAO decision holding that causation was a question of fact for an ALJ and that a DIME determination was unnecessary. Moral of the story: Proceeding to hearing before an ALJ on causation can be a better choice as the burden of proof is by a “preponderance of the evidence.” If a DIME physician provides an opinion on causation, that opinion may only be overcome by “clear and convincing evidence.”

A Power Play in Jurisdiction between ALJs and PALJs: Jeckonias Muragara v. Sears Roebuck & Co. et al., W.C. Nos. 4-726 & 4-712-263 (September 8, 2015), involved the scope of an ALJ’s jurisdiction and authority in the instance of abuse of judicial process. Compensability of Claimant’s claim was denied at a hearing in 2007 and he lost all appeals. Claimant attempted to reassert a different injury under the same claim and a PALJ dismissed the claim and ordered that Claimant not be able to bring another claim without being represented by an attorney. Claimant thereafter sought penalties in connection with an Application for Hearing that also endorsed compensability. The Director struck the Application in its entirety on the basis of the PALJ’s Order. ICAO held that Claimant could still pursue penalties under C.R.S. § 8-43-304 even though his claim was denied at hearing. ICAO also held that the PALJ was without jurisdiction to issue an order barring Claimant from filing future claims without an attorney. Moral of the story: Recognize that PALJs have limited jurisdiction and cannot require a Pro Se Claimant to retain an attorney.

Maintaining a Worsening Condition: ICAO upheld an ALJ’s order denying Claimant’s petition to reopen her claim on the basis of a worsening of condition in Pavelko v. Southwest Heating and Cooling, LLC, et al., W.C. No. 4-897-489 (September 4, 2015). Claimant sustained a cervical injury and was placed at MMI and prescribed maintenance care by Dr. Sacha. Claimant shortly thereafter asserted she experienced “flare-ups” and was evaluated by Dr. Hughes. Dr. Hughes concluded that Claimant was not at MMI and needed additional diagnostics and treatment to cure and relieve the effects of her injuries. Dr. Sacha disagreed and indicated that further care could be performed as maintenance, regardless of “flare-ups.” The ALJ found Dr. Sacha’s opinion more persuasive and denied reopening. ICAO must defer to the factual determinations, absent an abuse of discretion, and found that the ALJ had weighed the totality of the medical evidence and that the Order was based upon substantial evidence. Moral of the story: Though an injured worker may experience increased pain after MMI, temporary increases of pain may not always be a sufficient basis to reopen a claim.

Plucking the Low Hanging Fruit: a Study in Ripeness: In McMeekin v. ICAO, et al. (June 18, 2015)(nsfop), the Colorado Court of Appeals upheld an ICAO decision which found the issue of authorized provider to be ripe for hearing and set aside an ALJ’s Order for attorney fees. Respondents endorsed both medical benefits and authorized provider in a hearing over post-MMI medical treatment and ICAO determined that only the issue of medical benefits was ripe upon appeal. An ALJ awarded attorney fees upon remand for the unripe issue of authorized provider. Upon second appeal, ICAO reversed its former opinion that the issue of authorized provider was not ripe at the time it was endorsed for hearing. The Court of Appeals found the issue of authorized provider may involve the scope of the referral for the authorized provider. Moral of the story: The issue of authorized provider, when endorsed as a hearing issue, can bring into dispute the scope of substantive medical treatment.

If the Issue is Moot, You’re Going to be Muted: The Colorado Court of Appeals upheld an ALJ’s Order declining to rule on a dispute over administration of an MSA agreement because the issue was moot. Savidge v. ICAO, et al. (June 11, 2015)(nsfop). Claimant settled her claim and agreed to a self-administered MSA. Claimant later requested a third party administrator for the MSA and sought a hearing. The ALJ declined to rule on the issue, indicating that he lacked jurisdiction over the MSA. Respondents agreed to a third party administrator prior to appeal and ICAO determined that the issue was moot due to lack of a dispute. Claimant persisted with the appeal, regardless, arguing that the issue was “of great public importance” and that mootness may be disregarded in such instances. The Court of Appeals disagreed, indicating that the dispute was simply over who would administer the MSA, not whether it would be administered, and held that the issue was moot. Moral of the story: Even if previously endorsed, if an issue is resolved prior to hearing it will likely become moot.

Overview of General Liability, Workers’ Compensation, and Employment Law ­Issues in K-12 Educational Institutions

This article, written by Of Counsel Frank Cavanaugh and Associate Jenna Zerylnick, examines tort liability, workers’ compensation, and employment law issues that pose unique challenges and create exposure to K-12 school districts. The article also provides examples and practice tips for attorneys practicing in these areas.

Public schools play an important role in our society as education providers and serve a parens patriae1 function. They also offer a valuable social opportunity for children and are a significant part of most communities as employers. According to the Colorado Department of Education, there are 178 independent K-12 school districts in Colorado. These districts vary in size and, as a whole, are among the largest employers in Colorado, employing a variety of employees in many jobs. K-12 schools are public entities and therefore are subject to various federal, state, and local regulations. K-12 school districts face tort, workers’ compensation, and employment liability unique to their role in our state.

This article discusses a great breadth of topics, providing a highlight of key issues that create liability exposure unique to K-12 school districts.

Click to read the entire article that was published in the October 2015 issue of The Colorado Lawyer: Education Law_Colorado Lawyer 10-15


legaLKonnection Firm Newsletter – September 2015


 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.





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.

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.

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.

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


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.

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.

The right of recovery is independent of the injured worker’s right against the third party, meaning that the payer can bring its own cause of action, but the action is still derivative of the underlying workers’ compensation claim. This situation creates tension between the payer and injured worker relative to potential liability of a third party.

This short article gives an overview of what can be recovered along with some data over recoveries. Future articles will flesh-out workers’ compensation recovery problems.

What Can Be Recovered?dollar

The statute outlines what can be recovered. It states that the right to recovery exists to “all compensation and all medical, hospital, dental, funeral, and other benefits and expenses to which the employee or, if the employee is deceased, the employee’s dependents are entitled … for which the employee’s employer or insurance carrier is liable or has assumed liability.” The payer gets a right to recover future benefits paid and the right of recovery “…extends to money collected from the third party causing the injury for all: economic damages, physical impairment and disfigurement damages.” There are certain specific limitations to these recovery categories, but the statute makes a special exemption from recovery for amounts collected for “…noneconomic damages awarded for pain and suffering, inconvenience, emotional stress, or impairment of quality of life.” These amorphous damage categories cannot be subject to recovery by the payer in a workers’ compensation case.

As you can imagine, the struggle in subrogation in workers’ compensation is determining a fair distribution of any third party settlement or judgment between the injured worker and the payer of benefits since there is rarely, if ever, enough in settlement or judgment to fully compensate the injured worker and the payer. One mechanism to determine some of the allocation issues is known as a Jorgensen hearing, named after the case where this method of allocation was set forth. These hearings will be covered in greater detail in newsletters to come.

How Much Recovery Can Be Expected?

Colorado is not a very favorable state for third-party recovery of workers’ compensation benefits. Other states allow the payer to get paid first from any third party recovery, before an injured worker gets paid. Colorado does not allow this, but there are other reasons for low third party recovery. For instance, it is rare that an injury results entirely from the fault of a third-party. There is usually some degree of fault that can be assigned to the injured worker and to other potential non-parties that reduce the overall recovery, and sometimes even to the employer. If a carrier is pursuing a third party claim either with or without the injured worker, the worker’s and employer’s actions can reduce recovery. Further, to the extent that benefits were potentially overpaid, those amounts may not be successfully claimed as damages against a third party. A payer’s failure to mitigate its loss in the workers’ compensation claim by overpaying can also reduce recovery. Finally, and most importantly, judges and/or juries are not receptive to a payer (usually an insurance company) that paid benefits under a limited benefit package, trying to seek those amounts back from a third party.

A survey of the Jury Verdict Reporter from 2002 through present day shows that when a payer went as far as a jury verdict to try and recover against a third party, the amount claimed in recovery vs. the amount actually recovered was only 21%. Please note this is a limited sampling of recovery cases. In these cases defendants obviously felt strongly enough about their position to take the case to trial. Further, the Jury Verdict Reporter is not comprehensive of all cases taken to trial and the facts of each case are different. Taking all of these issues into account, this still demonstrates a less than favorable environment for recovery. If you would like a breakdown of this data, case by case, please email and I will forward it to you.

Bottom Line

Workers’ compensation is complicated and recovery of benefits paid only compounds the complication. It requires someone who understands workers’ compensation and liability matters. We have handled all aspects of recovery cases, including defending against them. Watch for future recovery topics in future newsletters. In the meantime, if you have any questions about this topic, please do not hesitate to call or email us.

legaLKonnection Firm Newsletter – June 2015


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
CSIAOn June 5th, the Colorado Self Insurers Association (CSIA) held their summer luncheon before taking a couple of months’ hiatus necessary to begin preparing for the 2016 legislative session.  The summer luncheon, sponsored in part by Lee + Kinder, LLC, was held at the City Park Pavilion in Denver and was attended by Karen Gail Treece and Frank Cavanaugh. The Colorado Self Insurers Association (CSIA) is an association of entities approved by the State of Colorado to insure internally for workers’ compensation benefits.  This organization seeks to provide education opportunities for members regarding workers’ compensation issues, promote positive legislative action to ensure that their employees receive full benefits in a cost effective manner under the Colorado Workers’ Compensation Act, and to promote timely return to work programs to allow injured employees a chance to get back to their ordinary productive lives.  Lee + Kinder, LLC has been an active professional member of this organization for a number of years.  Frank Cavanaugh has served on this organization’s legislative committee for 5 years and has helped set the agenda for educational programs sponsored by the CSIA on a monthly basis.  Lee + Kinder, LLC will continue to partner with and support this organization so as to stay abreast of legislative activities, legal changes and any other matters related to the Colorado Workers’ Compensation Act.

Victory Lap

Karen Gail TreeceMember Karen Gail Treece submitted a persuasive Brief in Support of the Petition to Review successfully convincing ALJ Jones to reverse her previous decision and submit a Supplemental Order in favor of Respondents in Jacquese Satchell v. Coach America and American Home Assurance. After the hearing, ALJ Jones found that Claimant failed to overcome the DIME and determined that the back injury was not related to the compensable knee injury. However, ALJ Jones also found that Claimant proved she was not at maximum medical improvement (MMI) and required an S1 selective nerve root block to treat the ongoing knee pain. Ms. Treece filed a Petition to Review and Brief in Support, which argued that the S1 selective nerve root block was treatment for the unrelated back condition and not the knee injury. After reviewing the Briefs, ALJ Jones issued a Supplemental Order agreeing with Ms. Treece and finding that Claimant was at MMI.

Sheila ToborgOf Counsel Sheila Toborg successfully defeated Claimant’s pursuit of additional medical benefits in Cassandra Wessels v. The Home Depot before ALJ Felter. Claimant was seeking biofeedback sessions and a suprascapular nerve block, as recommended by her authorized treating physician, to treat the admitted left arm injury. At hearing, Ms. Toborg highlighted the fact that Claimant had not undergone psychological evaluation and the additional medical benefits were not reasonable until such an evaluation is completed. Dr. Allison Fall provided more persuasive testimony than Claimant’s expert witness. ALJ Felter denied Claimant’s request for the additional medical benefits.

Fran McCrackenOf Counsel M. Frances McCracken successfully argued that Claimant’s request for radiofrequency nerve ablation was not reasonable, necessary, or causally related to the industrial injury in David Turner v. Sam’s Club. Ms. McCracken highlighted the portion of the Medical Treatment Guidelines that indicated that patients who do not experience at least 80% relief with branch and facet blocks should not proceed with a more permanent nerve procedure such as radiofrequency ablation. She stressed that Claimant received only 50% relief from the medial branch blocks, which was a non-diagnostic response. ALJ Cannici credited the medical reports and post-hearing deposition testimony of Dr. Benton who concluded that the requested procedure would be highly unlikely to provide any significant relief. ALJ Cannici denied Claimant’s request for prior authorization of radiofrequency nerve ablation.

Joseph GrenOf Counsel Joseph Gren successfully defended two claims this month. In John White, vs. Evraz Inc., N/A, Self-Insured by Sedgwick CMS, he defended a request for authorization for lumbar fusion surgery. This claim previously was heard on the issue of compensability of Claimant’s low back injury occurring on November 30, 2012. During that hearing, Claimant denied seeing a doctor after his full duty release for a prior work-related back injury. Claimant also denied any problems with his back between January 2002 and November 2012. Claimant reported to his medical providers his back pain was completely resolved within two years after a prior surgery in 2001. Following the first hearing, Dr. Davis recommended Claimant for lumbar surgery which was the issue for this hearing. In the course of discovery for this hearing, Mr. Gren discovered medical records indicating that Claimant was treated for low back pain in Las Vegas in 2008, 2009 and 2010. Respondents’ medical expert testified, based on medical records from Las Vegas and Claimant’s questionable symptomatology during examination in an IME, that Claimant did not suffer an acute injury on November 30, 2012 and that the request for surgery was not reasonably related to this claim. In light of the recently obtained medical evidence, Dr. Davis no longer recommended surgery. Therefore, the ALJ found Claimant failed to prove his need for lumbar surgery was causally related to the November 30, 2012 work injury.

In the next case, Niziolek v. United Parcel Service and Liberty Mutual Insurance, Mr. Gren successfully challenged the DIME physician’s opinion as to permanent impairment.  In the DIME, Dr. Hattem originally assigned a 16% impairment rating for the lumbar spine.  However, Mr. Gren successfully convinced Dr. Hattem, in a post-DIME deposition, that Claimant did not qualify for an impairment rating to the lumbar spine.  The matter proceeded to hearing and the ALJ found that Claimant was not entitled to a lumbar spine impairment.  As a side issue, Claimant contended at hearing that Dr. Hattem was precluded from eliminating a lumbar spine impairment given that compensability to the low back had previously been determined by a previous ALJ.  Mr. Gren successfully convinced the recent ALJ to conclude that a finding of compensability does not automatically lead to assignment of permanent impairment.

Joshua D Brown Down_With_Brown

The Colorado Supreme Court, one-week ago, issued a highly anticipated decision implicating employment law related decisions as they pertain to employees using lawful medical marijuana for activities outside the course and scope of employment. In the decision of Coats v. Dish Network, the Colorado Supreme Court, for the first time, provided its position on whether employers could make adverse employment actions against its employees who are lawfully using medicinal marijuana away from work. The Court held that even though medical marijuana is “lawful” activity in Colorado, such activity is not “lawful” under the federal law.  As a result, employees may not assert protections under the Colorado Lawful Activities Statute.

In Jordan v. Panorama Orthopedics and Spine Center, 346 P.3d 1035 (Colo. 2015) the Supreme Court considered whether a tenant in a leased building could be a landowner under the Premises Liability Act.  Plaintiff was a patient of Panorama.  She tripped and fell on a sidewalk in a common area.  She brought suit against the landlord, the management company, and Panorama.  The landlord and management company settled.  Panorama moved for judgment on a question of law under Rule 56(h), arguing that Panorama was not a landowner.  That Motion was denied.  Eventually Panorama asked for a directed verdict over the same issue.  That Motion was denied, the trial court noting that Panorama is the major tenant and exerted more control over the common areas than other tenants.  The jury gave plaintiff a $411,000 verdict.  The Court of Appeals agreed with Panorama on appeal.  The Court of Appeals found that Panorama had no control over the sidewalk, did not have possession of the sidewalk and did not create the condition producing Plaintiff’s injuries.  The Supreme Court concluded that Panorama was not in possession of the sidewalk where Plaintiff fell because, under the terms of the lease, it had only a right of non-exclusive use of the common areas and that the landlord retained responsibility for maintaining those areas.  Further, the Supreme Court concluded that Panorama was not legally responsible for the condition of the sidewalk where Jordan’s injuries occurred, or for activities conducted or circumstances existing there. Therefore Panorama was not a landowner within the meaning of the Premises Liability Act.

In Caylor v. State of Colorado, W.C. No. 4-880-213 (ICAO, May 13, 2015), Claimant tried to avoid the statutory procedural bar that required her to file an Application for Hearing within 30 days of receiving the Final Admission of Liability (FAL). The FAL was filed on May 16, 2014 in accordance with a DIME report.  Claimant filed an objection to the FAL and a Notice and Proposal to Select another Independent Medical Examiner. She later filed an Application for Hearing on June 25, 2014, endorsing the issues of overcoming the DIME and seeking additional medical treatment.  ICAO held that Claimant was only entitled to one DIME, which previously took place. ICAO found that Claimant missed the strict 30-day deadline to file the Application for Hearing to dispute the FAL. As such, ICAO struck the Application for Hearing seeking to overcome the DIME and requesting additional medical treatment.

ICAO recently outlined the evidentiary standards used when a DIME physician finds that a condition is not related to the employment after the claim has been previously admitted. In Clickner v. Comfort Systems dba Design Mechanical, Inc., W.C. No. 4-798-331 (ICAO, April 30, 2015), Respondents admitted for a low back claim after the treating physicians opined that the work duties aggravated a preexisting condition. Subsequently, the DIME physician found that there was no permanent impairment because the incident did not cause, aggravate, or exacerbate the underlying condition. At hearing, Respondents were not permitted to withdraw their admission of liability because the ALJ found that there was a compensable injury. Claimant appealed the ALJ’s Order that found he failed to overcome the DIME. ICAO held that Claimant had the burden to overcome the DIME by clear and convincing evidence by showing the DIME opinions were highly probably incorrect or by showing that the evidence in support of his argument was unmistakable and free from substantial doubt. ICAO confirmed the ALJ’s determination that Claimant sustaining a compensable injury did not equate to a finding that the DIME physician’s opinions about MMI or impairment had been overcome.

In Easley v. Ruby Tuesday, W.C. No. 4-934-489 (ICAO, April 22, 2015), ICAO affirmed the Order finding that Claimant’s carpal tunnel syndrome was not compensable. At hearing, Respondents provided a Job Demand Analysis (JDA) report, which indicated that Claimant’s job duties as a salad bar attendant and dishwasher did not trigger risk factors associated with cumulative trauma disorders. On appeal, Claimant argued that the JDA should not have been relied upon by the ALJ because the report did not analyze Claimant actually performing the job duties, as required by the Medical Treatment Guidelines. ICAO found that the observation of actual job performance is not required under the Guidelines.  ICAO ruled that any differences or inaccuracies found in an expert report will go only to the weight the ALJ assigns to the evidence and will not affect the ALJ’s ability to rely upon it.

In Flores v. American Furniture Warehouse, W.C. No. 4-939-951 (ICAO, April 30, 2015), Claimant worked as a lift operator. Safety rules require lift operators to wear a harness and to tether the harness to the lift truck while operating the truck “if the employee perceived a risk of fall.” Claimant raised the lift 20 feet off the ground and was loading boxes from a mezzanine onto the lift. Claimant was not tethered to the truck because the tether was not long enough to allow him to reach the boxes on the mezzanine. Claimant fell through a narrow space between the lift and the mezzanine. Respondents pursued a 50% reduction in workers’ compensation benefits arguing Claimant had willfully violated a safety rule per C.R.S. § 8-42-112. Claimant testified he did not believe he was at risk of falling and therefore did not utilize the tether. The ALJ determined Claimant did not willfully violate the employer’s safety rule. Respondents appealed and asserted Claimant willfully violated the safety rule because he knew of the rule and deliberately performed the forbidden conduct. ICAO noted “willful” connotes deliberate intent, but mere carelessness, negligence, forgetfulness or oversight does not satisfy the statutory standard. Bennett Properties Co. v. ICAO, 437 P.2d 548 (1968). ICAO upheld the ALJ’s opinion because evidence supported Claimant was not operating the lift at the time of the injury and he did not “perceive a risk of fall” per the safety rule. Therefore, Claimant’s actions did not arise to the level of “willful.”

In Pierce v. Pella Windows and Doors and Pinnacol Assurance, W.C. No. 4-950-181 (ICAO May 11, 2015), Claimant was injured while installing windows. Respondents successfully argued Claimant was an independent contractor. Claimant appealed. ICAO remanded the case for further finding due to ALJ’s failure to adequately apply the rules for determining whether an employee is an independent contractor or employee. C.R.S. § 8-40-202(2)(b)(II) indicates an individual is not an independent contractor if they are paid an hourly rate or salary, instead of a fixed contract rate, and are paid individually rather than under a trade or business name. Conversely, independence may be shown if the individual is provided only minimum training and is not provided with any tools or benefits. The ALJ found Claimant was an independent contractor based upon a document signed by Claimant which set forth the above factors and provided he was an independent contractor. ICAO noted that while the signed contract may have created a rebuttable presumption of an independent contractor relationship, the factors set forth in the statute must still be applied and analyzed.

In the case of Sackett v. City Market, W.C. No. 4-944-222, (ICAO April 21, 2015), the ALJ determined Claimant sustained a compensable injury, and a referral to Dr. Scheffel was authorized. Respondents appealed the determination that the referral to Dr. Scheffel was authorized, arguing the referral was at Claimant’s request and not based upon the ATP’s “independent medical judgment.” ICAO determined Claimant was referred to treatment with her personal care physician (PCP) at her request. The PCP then referred Claimant to Dr. Scheffel. Subsequently, Claimant underwent knee surgery with Dr. Scheffel for her work-related injury.  ICAO held the referral to the PCP was at Claimant’s request and not based on “independent medical judgment” from the ATP. Therefore, the referral by the PCP to Dr. Scheffel was outside of the chain of referral and was unauthorized medical care.

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