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.



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 – December 2015

Lee + Kinder LLC

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

In the News

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


Victory Lap

TSK_115x125Member Tiffany Scully Kinder and associate Jessica Melson were successful in proving claimant’s headaches and ongoing treatment by Dr. Machanic were not related to his industrial injury in Galindo v. Resource Real Estate Management and Federal Insurance Company, W.C. 4-972-112 (December 16, 2015). Claimant alleged ongoing headaches due to a dural puncture occurring during an epidural injection procedure. ALJ Broniak found that claimant’s testimony and statements to his doctors regarding his headaches were not credible. The ALJ credited the testimony of respondents’ expert, Dr. Ridings, in his explanation that dural headaches resolve fairly quickly after administration of a blood patch, which claimant had received. ALJ Broniak found claimant’s ongoing headaches months after the ESI and need for headache medications and treatment were not related to the industrial injury.


KGTnewsMember Karen Gail Treece successfully pursued a two-prong attack against claimant’s request for temporary disability benefits. In Tarman v. US Transport and Arch Insurance, W.C. 4-981-955 (December 15, 2015), claimant continued to work after the injury, but then asserted he was unable to drive to his job due to medication. Respondents made several written offers of modified employment to claimant, offering to change the location of the employment, and offering to provide transportation for him. Claimant failed to report for modified duty and was terminated for attendance issues and job abandonment. Claimant argued that as a practical matter he could not accept the offer of modified duty. Ms. Treece presented testimony from the employer noting the number of times they communicated with claimant and the efforts made to accommodate his restrictions. ALJ Michelle Jones found the employer representative’s testimony compelling and more credible than claimant’s testimony. ALJ Jones found the employer had properly made a written offer of modified employment, which claimant failed to begin. Thus, claimant was not entitled to TTD benefits. ALJ Jones further found that respondents had proven Claimant was responsible for his termination and thus, was also not entitled to TTD benefits after his termination.


FranNewsOf Counsel Frances McCracken successfully defended against a request for authorization of a total hip replacement in Andrade v. Wal-Mart Stores, Inc. and New Hampshire Ins. Co., W.C. 4-921-309 (December 8, 2015). Drs. White, O’Connell, and Ellman recommended a total hip replacement (THR) as they thought this would provide the best surgical outcome due to claimant’s age and weight. Drs. Davis, Henke, and Kindsfater instead recommended arthroscopic surgery. Dr. Davis testified that the Medical Treatment Guidelines did not support a THR given claimant’s pathology. He also testified he was unaware of any literature indicating that age and weight be considered in determining whether to perform THR. ALJ Cain denied request for THR.


John_NewsOf Counsel John Abraham had a successful month with two big wins. Mr. Abraham defeated Claimant’s request for ongoing lumbar spine steroid injections and convinced the ALJ to enforce a tapering program for Claimant’s ongoing opioid medications in Larry Moss v. Nana Regional Corp. and ACE American, W.C. 4-873-272 (November 18, 2015). ALJ Lamphere was persuaded by respondents’ expert witness, Dr. Bernton, who testified that the injections were not causally related to the industrial injury and explained why Claimant’s opioid medications should be tapered and terminated within four months.

Mr. Abraham also received a favorable judgment from ALJ Cannici in Toby Heffner v. Wal-Mart Stores, Inc. and Illinois National Insurance Company, W.C. 4-869-417 (November 13, 2015). Mr. Abraham successfully argued that respondents were entitled to an over-payment of $13,721.35 for TTD benefits paid after MMI based on the DIME physician’s retroactive MMI determination. ALJ Cannici ordered the Claimant to pay respondents $250 per month until the over-payment was recovered.


Jess_115x125Associate Jessica Melson defeated claimant’s request for temporary partial disability benefits, and successfully defended against claimant’s assertion that respondents failed to properly deny a request for prior authorization. In Evon v. Wyndham Worldwide Corporation and Liberty Mutual, W.C. 4-977-410 (December 2, 2015), claimant alleged she was owed TPD benefits. Claimant had multiple employers over a period of several months, resigning from one, and beginning work at a new job. Ms. Melson argued it was speculative that claimant would have continued serving for her prior employer when she was subsequently working a full-time position with the new employer and earning a higher wage. ALJ Mottram found claimant’s testimony that she was earning less after her work injury unpersuasive. Claimant also argued that respondents had failed to properly deny a request for prior authorization. Ms. Melson argued the initial request for authorization by Dr. Joseph did not comply with WCRP 16(F), and therefore respondents’ obligation to timely deny the request for authorization had not been triggered. ALJ Mottram agreed with respondents’ argument and found claimant had failed to meet her burden to prove Dr. Joseph had properly submitted a completed request for prior authorization.





Colorado’s workers’ compensation subrogation statute, located at Sec. 8-41-203, C.R.S., is poorly worded and has become more complex through legislative revisions over the years. At its heart, the statute allows payment of compensation under the Colorado Workers’ Compensation Act to operate as an assignment of a cause of action against another person or entity “not in the same employ” whose negligence or wrong produced injury or death for which benefits are paid. The right of subrogation applies to all compensation including medical, hospital, dental, funeral and other benefits. The assigned and subrogated case includes the right to recover future benefits. It extends to money collected from the third party that produced injury for all economic damages, physical impairment and disfigurement. The assigned and subrogated cause of action does not extend to money collected for non-economic damages awarded to the injured worker for pain and suffering, inconvenience, emotional stress or impairment of quality of life. Follow this link to read the entire article.

Cases You Should Know

Be Specific, Be-e Specific, B-E S-P-E-C-I-F-I-C! Once again, the Industrial Claim Appeals Office (ICAO) held that an Order that does not award or deny specific medical benefits will be deemed interlocutory and not reviewable. Robert Quina v. Employment Solutions Management, Inc. and American Casualty Co. of Reading, PA, W.C. 4-883-847 (ICAO, October 8, 2015). In this claim, respondents appealed an order from the ALJ that ordered respondents to pay for medical treatment to cure and relieve Claimant of the effects of the injury. While the parties discussed specific treatment in position statements, the ALJ did not make a determination as to the reasonableness, necessity, and relatedness of any specific treatment. ICAO remanded the issue to the ALJ for additional findings and clarification as to what specific medical benefits, if any, were awarded.

The Power to Reopen = The Power to Increase Reserves: ICAO found that a Claimant can seek to reopen a claim even in circumstances where the determination of a prior DIME physician is sought to be questioned. In David Valdez v. Alstom, Inc. and Zurich American Insurance Company, W.C. 4-784-196 (ICAO, November 3, 2015), the DIME physician previously found that Claimant was at MMI and that several body parts/conditions were not related to the injury. Claimant later filed a petition to reopen based on a worsening of condition involving the “unrelated” body parts as well as a mistake of fact by the DIME. The ALJ granted respondents’ Motion for Summary Judgment based on issue preclusion, reasoning the DIME physician previously determined relatedness and claimant had failed to challenge the DIME findings. However, ICAO overturned this decision and noted that either party has the opportunity to file a petition to reopen for genuine mistake of fact, which cannot be dismissed by a Motion for Summary Judgment.

You Have the Right to Attend a DIME, Anything the DIME Says May be Held Against You: ICAO affirmed that a DIME is a prerequisite to challenge an ATP’s opinions. In Baran v. Amgen and ACE American Insurance Company, W.C. 4-906-018 the ATP placed claimant at MMI. Respondents filed an Application for Hearing challenging the ATP’s rating. Claimant endorsed ongoing temporary benefits. The ALJ agreed with the ATP’s determinations of MMI and impairment. Both parties appealed. ICAO noted that the parties may request a DIME before hearing if they disagree with the ATP’s impairment rating. Additionally, since claimant had endorsed ongoing TTD, MMI was at issue which also required a DIME before hearing. The order was set aside and the case was remanded.

I Did Not Volitionally Visit That Adult Website: Claimant installed Google Chrome web browser on his work computer to access job applications submitted to the employer. He used his personal Gmail account login and password to access the browser at work. When claimant left work he did not log out of Google Chrome on the work computer. He then accessed a number of adult websites using his Gmail account, which then showed up on the employer’s computer. Claimant was terminated for violating the employer’s Electronic Communications System policy. The ALJ found claimant did not commit a volitional act that constituted a violation of established company policy, only that claimant had made a mistake. The ALJ awarded temporary disability benefits. ICAO affirmed noting evidence supported the ALJ’s determination that claimant’s acts did not rise to the level of “volitional.” Kasper v. U.S. Beef Corporation and XL Specialty Insurance Co., W.C. No. 4-951-444 (ICAO, October 30, 2015).



Colorado’s workers’ compensation subrogation statute, located at S 8–41–203, C.R.S., is poorly worded and has become more complex through legislative revisions over the years. At its heart, the statute allows payment of compensation under the Colorado Workers’ Compensation Act to operate as an assignment of a cause of action against another person or entity “not in the same employ” whose negligence or wrong produced injury or death for which benefits are paid. The right of subrogation applies to all compensation including medical, hospital, dental, funeral and other benefits. The assigned and subrogated case includes the right to recover future benefits. It extends to money collected from the third party that produced injury for all economic damages, physical impairment and disfigurement. The assigned and subrogated cause of action does not extend to money collected for non-economic damages awarded to the injured worker for pain and suffering, inconvenience, emotional stress or impairment of quality of life.

People familiar with workers’ compensation subrogation are aware of judicial apportionment between the injured worker and the carrier. Further, the carrier is responsible for any prorated share of fees and costs the injured worker incurred in obtaining a settlement or judgment from the third-party, should the carrier elect to not pursue the matter on its own. This can lead to significant uncertainty for the carrier in trying to determine whether to pursue the third-party on its own or come to an agreement with the injured worker for a percentage of gross or net recovery. In most circumstances the workers’ compensation case is open and moving forward while the third-party case is pending, whether filed or not. What to do with the third-party case is a complicated, multifaceted decision-making process; however, at least in some circumstances, the decision can be simplified by selling the recovery rights (although not technically a lien, I will refer to it as a lien in this article) to the defendant in the third-party case.


I recently had a case where sale of the lien made sense. The injured worker’s claim had been closed by settlement. Therefore, the total amount of potential recovery was known. The case involved a car accident where the injured worker was hurt in a rear-end collision. The total amount of insurance to cover the loss and liability of the negligent driver was also clear. The injured worker was pursuing the negligent driver in the third-party case and the workers’ compensation carrier elected to not bring its own cause of action. In settlement discussions in the third party case, it was clear that the negligent driver’s carrier would offer little or nothing to settle the case despite clear liability. The third-party carrier was willing to go to trial over causation of injuries that were largely compensated under the workers’ compensation system. Given these circumstances, I spoke directly to counsel for the injured worker to try to broker a deal on a percentage of potential recovery. We could not come to an agreeable percentage. I advised counsel for the injured worker that I was in discussions with the negligent driver’s carrier to have it buy my carrier’s lien. Since I could not come to an agreement with the injured worker’s attorney, I simply sold my client’s subrogation lien to the defendant in the third-party case. This guaranteed recovery for my client. The third-party case went to trial and the injured worker recovered no damages. The defendant in the third-party case submitted trial briefs asserting some set-off against potential damages based on the lien it purchased. The trial court held off any determination of a set-off. In the workers’ compensation case we had paid approximately $100,000, split evenly between medical and indemnity benefits. We sold the lien for $30,000. At issue before the trial court in the trial briefs was the value of the purchased lien. Was the purchased lien worth $100,000 set-off against billed medical, lost wages and permanent impairment claimed as damages in the third-party case? In the alternative, was the lien worth $30,000 as some undivided lump sum that can be set-off against all awarded damages? It is clear why the trial judge elected to not answer these questions, but let the jury come back with a decision on damages. The trial judge would have a difficult time figuring out what the defendant purchased from the workers’ compensation carrier and what it was worth. The jury saved the trial judge that headache since they found liability, but no damages. Regardless of the trial judge’s ultimate conclusion, my client’s had successfully recouped 30% of their lien and halted their exposure for on-going litigation expenses.


Counsel for the injured worker tried mightily to argue that respondents should reimburse the injured worker out of the $30,000 sale proceeds to account for its share of attorney fees and costs in the unsuccessful attempt to recover against third-party. Counsel for the injured worker was unsuccessful in all of his attempts. There was simply no legal basis to require the workers’ compensation carrier to pay for a share of unsuccessful litigation by the injured worker. That stated there is an appeal to the argument that it is unfair for the workers’ compensation carrier that did not actively participate in the negligent third-party case, to derive benefit from selling its lien without paying for the work done in the third-party case, even though it was unsuccessful.


Sale of the workers’ compensation lien is a viable option of recovery for respondents holding a subrogation lien; nevertheless, sale of the lien should only be done in certain circumstances. Sale of the lien when the workers’ compensation case is still open would not be recommended. Sale of the lien, for practical purposes, reduces any amount that could be used to settle the third-party case. This makes it more likely that that case will go to trial where the lien value will be used against the injured worker. This is not a good position for the workers’ compensation carrier. The workers’ compensation carrier still has obligations to claimant under the workers compensation system and in an open workers’ compensation case it should probably not sell its lien to the defendant in the third party case.

As a result of the lien sale in my specific case, there are rumblings in the claimant/plaintiff bar that they may try legislatively to prevent the sale of liens generated from workers’ compensation cases. As of now, no such legislation has been introduced.

We always recommend discussing this legal strategy with your counsel prior to embarking on this path. Whether the sale of a subrogation lien is viable depends largely on the specific facts of each case.

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.

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