In the News
On 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.
Member 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.
Of 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.
Of 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.
Of 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.
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.
Cases You Should Know
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.