legaLKonnection Firm Newsletter – June 2017

2017_newsletter_LK-header-badge

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

LK-icon-512x512

Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Member Karen Gail Treece attended the CLM (Claims & Litigation Management) Annual Workers’ Compensation Conference in Chicago. Ms. Treece learned defense tactics from some of the best in the industry related to complicated claims involving prescriptions for extensive opioid abuse. Ms. Treece was fortunate to meet some wonderful folks and enjoy delicious Chicago pizza and Italian beef.

 


Victory Lap

 After a five-day jury trial in Denver District Court, Member Joshua D. Brown and Associate Kelsey Bowers successfully defeated multiple claims against the employer in Helton v. Environmental Demolition, Inc., Case Number 2015CV032832. The Plaintiff sought damages for an alleged breach of employment contract in the form of alleged promises of bonuses and benefits; an alleged breach of a written buy-sell agreement regarding the purchase of shares in the Company; an alleged breach of fiduciary duty; and civil conspiracy. The 7-person jury was persuaded by the testimony of several key witnesses and found that there was no breach of employment contract or breach of fiduciary duty. While the jury found that there was evidence of civil conspiracy, they found that no damages resulted from the conspiracy. According to the Trial Court Order, the only damages that were awarded to Plaintiff were the value of the shares that he owned in the Company. The fact that Plaintiff owned shares in the Company was undisputed.
 
Member Joshua D. Brown successfully defended a claim for TTD benefits in Janine Scafide v. SkyWest Airlines, Inc. and Indemnity Insurance Company of North America, W.C. No.4-840-879. Claimant filed a Petition to Reopen and an Application for Hearing alleging a worsening of condition. While litigation was pending, Claimant underwent a total hip arthroplasty. Claimant argued that she was entitled to TTD benefits following her surgery as a result of her worsened condition. The ALJ determined that Claimant’s condition had worsened; however, there was no evidence that established a link between Claimant’s surgery and a wage loss. Claimant had not been working for five years prior to her surgery and there was no evidence that her work restrictions had increased after MMI. Claimant’s request for TTD benefits was denied and dismissed. Also, despite the Petition to Reopen being granted, the ALJ ordered medical benefits to be provided as post-MMI maintenance care.
  
 Member Karen Gail Treece successfully proved Claimant’s ongoing chiropractic and acupuncture care was not reasonable, necessary, or related medical maintenance care in Kachigian v. Sigma Services, Inc., W.C. No. 4-929-024. Claimant sustained an industrial injury to his head and neck on April 17, 2013. Claimant did not request medical treatment and continued working. On April 26, 2013, Claimant presented to his personal physician and reported knee and toe pain due to training for a Spartan Race. Claimant did not report the work injury. Claimant first sought medical care for the work injury in August 2013. Claimant treated conservatively and was placed at MMI on February 4, 2014. Respondents filed an FAL and admitted for medical maintenance benefits. Claimant received over 80 chiropractic and acupuncture treatments. Respondents challenged the ongoing treatment. Respondents requested an IME with Dr. Lambden. He opined the chiropractic and acupuncture care was counterproductive and reinforcing Claimant’s pain syndrome. A radiologist, Dr. Seibert, reviewed x-rays and an MRI scan and opined that the Claimant had a preexisting C7 fracture. The ALJ denied the ongoing chiropractic and acupuncture treatments.

 

 In Bruxvoort v. Goodyear Tire and Rubber Company and Liberty Mutual Insurance, W.C. No. 4-990-459, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegations that he was no longer at MMI and that he sustained a compensable injury to his right trigger finger. Claimant contended that he injured his right trigger finger while participating in physical therapy to rehabilitate his shoulder. Claimant provided no medical evidence to support his position. Mr. Gren elicited testimony from Claimant that he was involved in a remodel of his home during the time of the trigger finger injury. The ALJ was persuaded that it was equally as likely he injured himself during the remodeling activities. Mr. Gren presented testimony from an expert medical physician who opined that the etiology of the trigger finger was idiopathic. The ALJ was persuaded by the testimony of Respondents medical expert that the trigger finger condition was not caused by Claimant’s physical therapy. The ALJ concluded that the right trigger finger condition was not compensable. Therefore, Claimant remained at MMI pursuant to the FAL filed by Respondents.
 
In Todd Blanchard v. Evraz Inc. NA, W.C. No. 5-011-914, Member Joseph W. Gren and Associate Devon D.A. Bell successfully defended against Claimant’s allegation that he sustained an occupational disease. Claimant contended that repetitive stamping of steel samples over time caused his lateral epicondylitis. Claimant underwent an IME that determined the Claimant’s work-related activities were not enough to cause his alleged repetitive-motion injuries. These findings were corroborated by a strong job demands analysis report. Additionally, Respondents were successful in arguing that Claimant failed to satisfy the criteria set forth in the Medical Treatment Guidelines (Guidelines). Respondents were successful in presenting the evidence described above, as well as successful in conveying Claimant’s failure to satisfy the Guidelines, which allowed the ALJ to conclude that Claimant’s occupational disease was not compensable.

  
Of Counsel Frank Cavanaugh successfully defended against a claim for an alleged back injury in Saucedo v. Custom Onsite, Inc., Viart Construction, C&E Construction and Pinnacol Assurance, W.C. Nos. 5-014-532; 5-006-362; and 4-999-130. Mr. Cavanaugh represented Pinnacol Assurance, exclusively, in this claim involving multiple parties. Claimant alleged that he hurt himself at a construction site lifting a framed wall with co-workers. The ALJ ultimately found that Claimant’s account of the alleged injury was not credible and was contrary to the testimony of other witnesses and medical records in evidence. The ALJ found that he did not actually lift a wall on the date in question, and had no compensable work injury. The ALJ denied and dismissed Claimant’s claim for compensation.

 
Of Counsel John Abraham successfully proved Claimant no longer required medical maintenance related to the industrial injury. In Crouse v. Navajo Express Incorporated and Lumbermen’s (in liquidation) c/o Colorado Insurance Guaranty Association, W.C. No. 4-437-384, Claimant injured his cervical and lumber spine on October 1, 1999. Claimant was placed at MMI and Respondents filed an FAL. Indemnity settled and medical maintenance care was left open. Respondents challenged Claimant’s need for ongoing medical maintenance care and requested an IME. In the IME, Claimant admitted to a post-MMI injury to his head and neck. Claimant reported using pain cream and taking tramadol and muscle relaxers. The IME physician opined that Claimant’s current symptoms and need for medical treatment, 17 years after his date of injury, were more likely related to age related degeneration of the spine, the preexisting cervical spine injury, and the intervening injury after MMI than the October 1, 1999 fall. The ALJ found the IME physician’s report and testimony persuasive and credible. The ALJ determined Respondents met their burden of proof that the continued maintenance treatment was not reasonable, necessary, or causally related to Claimant’s October 1, 1999 work injury.
 



  
  
  
  
 
To File or Not to File? That is the Question
An incident takes place within the course and scope of claimant’s employment. Claimant is confirmed to have sustained an injury but does not miss any time from work. No permanent impairment is anticipated. What the adjuster has is characterized as what most of us refer to as a “med-only claim.” Throughout the course of the claim, claimant receives conservative treatment without any recommendation for surgery. The claimant is eventually placed at MMI with no impairment. There is no reason to challenge the claim as you believe the injury is legitimate. You’re home free! All you have to do is file the Final Admission of Liability (FAL), wait the statutory 30-day period, and when claimant fails to object, you can close your claim and move on to the next one. Right? Not exactly. Click here to continue reading this article.

 


Cases You Should Know

When you retire, you do not get to claim lost wages from the employer: In Ecke v. City of Washington W.C. No. 5-002-020 (May 5, 2017), Claimant was injured at work the day before his planned retirement. Claimant sought TTD benefits between his date of injury and the date he reached MMI. Respondents asserted the wage loss was related to Claimant’s volitional act of his retirement and not the work injury pursuant to C.R.S. §§ 8-42-103(g) and 8-42-105(4)(a). The ALJ denied Claimant’s request for TTD benefits and Claimant appealed. The Panel cited several cases that precluded TTD benefits in cases of voluntary resignation as the retirement precluded the employer from the opportunity to offer modified duty.

Moral of the Story: Respondents have an affirmative defense to TTD benefits in instances of termination and retirement.
 
The curious case of the ATP: Claimant suffered a work-related injury in Portillo v. Shoco Oil-Samhill-Oil, Inc., W.C. No. 4-942-783 (May 1, 2017). Respondents denied a request for sympathetic nerve blocks. Respondents referred Claimant to Dr. Hattem. He continued treating Claimant after the initial evaluation and placed her at MMI. Respondents filed an FAL and Claimant requested a DIME. Claimant also filed an Application for Hearing regarding the sympathetic nerve blocks. Respondents moved to strike Claimant’s Application as not ripe, pending the DIME. Claimant asserted the FAL was not ripe because Respondents’ referral to Dr. Hattem was for an IME; therefore, he was not an ATP who could make an MMI determination for purposes of filing the FAL. The ALJ determined the nerve blocks were reasonable, necessary benefits to cure and relieve Claimant of the effects of the work injury. The ALJ did not address whether Dr. Hattem was an ATP. Respondents appealed. The Panel set aside the ALJ’s Order. They noted a physician can become an ATP if they treat the claimant and are not merely examining the claimant in anticipation of litigation. The Panel noted Dr. Hattem scheduled additional appointments and treatments for Claimant and therefore became an ATP.

Moral of the Story: A physician can become an ATP if they provide treatment that is intended to improve Claimant’s condition.
 
A full duty release is the ATP’s decision: In Tsirlin v. Ace American Insurance, W.C. No. 4-974-865 (April 17, 2017), Claimant was placed at MMI by her ATP with a full duty release. Claimant was then removed from MMI at the DIME. At hearing, the DIME physician’s opinion on MMI was upheld. Claimant then requested a hearing seeking TTD benefits after the original date of MMI. The ALJ found there was no ambiguity that Claimant was released to full duty when she was originally placed at MMI and denied TTD benefits. On appeal, Claimant argued that there was a judicial determination that there was no applicable return to work by the ATP. ICAO was not persuaded, and held that the ATP released Claimant to full duty, therefore she was not entitled to TTD benefits.

Moral of the story: A full duty release by an ATP is valid even when Claimant is removed from MMI at a DIME.
 
AWW Windfall: In Phillips-Zalal v. King Soopers, Inc., W.C. No. 5-000-569 (April 26, 2017), the ALJ computed Claimant’s AWW by including wages from her concurrent employer. Respondents challenged the computation and argued that Claimant’s concurrent wages should not be included in her AWW calculation because she continued to work and she did not lose any wages at her concurrent employment. ICAO disagreed and stated that the ALJ did not abuse her discretion in computing Claimant’s AWW. ICAO held that the fact that Claimant suffered no lost time and no lost wages did not preclude an ALJ from calculating Claimant’s AWW using her concurrent employment wages.

Moral of the story: ALJs have wide-discretion to compute a Claimant’s AWW.
 

Compensable injury, but not a compensable surgery: In Gilbert v. Sears Outlet, W.C. No. 5-002-271 (April 24, 2017), Claimant challenged an Order denying compensability of her knee surgery. Claimant alleged that she injured her knee moving a washing machine. Claimant underwent a patellar surgery. The ALJ found the claim compensable for a right knee strain only and determined that Claimant’s right knee surgery was not reasonable, necessary, or related to her right knee strain. On appeal, ICAO agreed holding that there was sufficient evidence in the record that Claimant did not aggravate her preexisting chronic patellofemoral syndrome, and therefore, Claimant’s subsequent surgery was not reasonable or necessary.

Moral of the story: An injury can be found compensable, but not all medical treatment is necessary or related.
 

To File or Not to File? That is the Question

An incident takes place within the course and scope of claimant’s employment.  Claimant is confirmed to have sustained an injury but does not miss any time from work.  No permanent impairment is anticipated.  What the adjuster has is characterized as what most of us refer to as a “med-only claim.”   Throughout the course of the claim, claimant receives conservative treatment without any recommendation for surgery.  The claimant is eventually placed at MMI with no impairment.  There is no reason to challenge the claim as you believe the injury is legitimate.  You’re home free!   All you have to do is file the Final Admission of Liability (FAL), wait the statutory 30-day period, and when claimant fails to object, you can close your claim and move on to the next one.  Right?  Not exactly.

 

Most workers’ compensation claims are med-only claims.  In fact, more than two-thirds of claims in Colorado are med-only claims that are never reported to the Division.  When most carriers file a FAL due to claimant reaching MMI on a med-only claim, they do so because they are seeking finality.  Perhaps the employer wants to admit in good faith and make sure that it is noted with the Division that the claimant was taken care of and that there is no challenge to the claim.  Perhaps the carrier requires that a FAL be filed on all admitted claims when a claimant reaches MMI.  Oftentimes, a FAL is filed on a med-only claim to avoid confusion later should something happen.  Whatever the reasoning may be, the adjuster may want to think twice about filing the Final Admission of Liability on a med-only claim due to a recent Industrial Claims Appeals Office opinion and a prior Court of Appeals decision.

 

In Kazazian v. Vail Resorts, W.C. No. 4-915-969 (April 24, 2017), the Industrial Claims Appeals Office reversed the findings of an ALJ that found a med-only claim was closed because the Claimant failed to object to the FAL.  The facts of the claim were simple:  Claimant sustained an injury when she slipped and fell at work and sustained a concussion, she didn’t miss any time from work while treatment took place, and she was eventually placed at MMI without impairment by the authorized treating physician.  The Employer filed a FAL based on the authorized treating physicians’ findings and the Claimant didn’t object within the statutory 30-day requirement.  A significant time later, Claimant began to experience hearing loss. She went to an audiologist for treatment.  The Claimant suspected that her hearing loss was due to the work-related event from a couple of years prior.  The Claimant contacted the adjuster and asked that certain medical apparatuses prescribed by the audiologist be covered under the workers’ compensation claim.  The adjuster refused, citing the FAL and noting that the claimant did not timely object.  The claim was presumed closed.

 

At the hearing, the ALJ agreed with Respondents that the Claimant failed to timely object to the Final Admission and request a DIME.  However, on appeal, the Panel reversed the decision and noted that a FAL that does not admit for indemnity benefits cannot serve to “close” a claim since there was nothing triggering any statutory provisions in the Act for which reopening due to a worsening of condition or requesting a DIME can be sought.  Simply put, a Final Admission of Liability on a med-only claim raises no implications of closure.  You cannot close something that was not significant to begin with.  Citing from a Court of Appeals prior decision, “the statutory consequences of a finding of “maximum medical improvement” can apply only to injuries as to which disability indemnity is payable.”  Given this caveat in the law, the ultimate question is how does an employer or insurance carrier seek closure on a med-only claim?   The answer may be simpler than first thought.

 

By its very nature, a med-only claim is usually not an impactful claim of such severity to require reporting.  In fact, the Act carves out an exception to med-only claims making it easy for employers and carriers to deal with them without being bogged down in paperwork.  Section 8-43-101(1) states, “Every employer shall keep a record of all injuries that result in fatality to, or permanent physical impairment of, or lost time from work for the injured employee in excess of three shifts or calendar days and the contraction by an employee of an occupational disease that has been listed by the director by rule.  Within ten days after notice or knowledge that an employee has contracted such an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee, or immediately in the case of a fatality, the employer shall, upon forms prescribed by the division for that purpose, report said occupational disease, permanently physically impairing injury, lost-time injury, or fatality to the division. The report shall contain such information as shall be required by the director.”

 

The key portion of the statute deals with lost time and permanent impairment.  If neither of the requirements is met, nothing has to be reported.   If one of the criteria is met, the Act requires that the insurance carrier take a position on the claim within 20 days.  You may even receive a letter from the Division with big bold letters emblazoned on it indicating the insurance carrier has 20 days to file either a Notice of Contest or a General Admission or else Respondents could be sanctioned in the form of monetary penalties.   When the claimant reaches MMI in a med-only claim, most carriers file a FAL; however, it may be good practice to not file anything UNLESS you receive the letter in question from the Division.   Most med-only claims are closed within a few weeks or months.   When a claimant comes back months, or sometimes years later, to seek additional treatment, how does one know if the problem that is allegedly occurring is due to the original event?  A significant amount of time may have passed.  Claimant may be working for another Employer.  Should the adjuster just voluntarily admit and pay benefits?  Typically, the answer is no.

 

Given the caveat in the law that is becoming commonplace among the courts, it is recommended not to file anything in response to a treating physicians’ placement of a claimant at MMI.  This is because the carrier can always challenge the claim on causation grounds later down the road should the claimant return and want to seek additional treatment or claim that indemnity is owed.  Recall that payment of medical benefits is neither an admission nor a denial under the Act.  Even if the Respondents pay for treatment and characterize a claim as a med-only claim for purposes of payment, if no pleadings are ever filed with the Division, Respondents retain the right to file a Notice of Contest should a claimant return in the future seeking additional benefits.  At that time, Respondents can further investigate the causation of the claimant’s ongoing complaints either through a medical records review, IME, or other means such as surveillance.  Oftentimes, the mere passage of time and questioning of the claimant will give rise to answers which would allow the adjuster to deny the claim outright, even though at first the claim was payable in good faith.  The overall thought is that it is much easier to challenge causation and be cautious with a Notice of Contest for further investigation than it is to go back in time and withdraw a previously filed admission, regardless of the type of admission that it is.

 

If you have any questions regarding what next steps to take when dealing with med-only claims, please contact us.   If you get a phone call from a claimant wanting more benefits from a claim you thought was closed, please contact any of the attorneys at our firm.  We will be more than happy to chat about the facts of the particular case and devise the best strategy which will hopefully avoid the reopening of a “closed” claim.

legaLKonnection Firm Newsletter – May 2017

2017_newsletter_LK-header-badge

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

LK-icon-512x512

Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Broadmoor-daytime-300x130The Southern Association of Workers’ Compensation Administrators (SAWCA) held the 2017 Colorado Workers’ Compensation Educational Conference hosted by Director Paul Tauriello and the Colorado Division of Workers’ Compensation at the Broadmoor in Colorado Springs April 17 – 19th.Lee + Kinder LLC was proud to be a sponsor and one of 43 exhibitors at this educational experience, not held in Colorado since 2014. Five of our legal eagles – Tiffany Kinder, Joseph Gren, Sheila Toborg, Kelsey Bowers and Matt Boatwright – were among the over 300 attendees who contributed to the success of this event which included a silent auction for The Pinnacol Foundation, providing educational opportunities for children of injured workers.


 

Lee + Kinder, LLC was pleased to welcome The Honorable John Sandberg to our offices in April for an all-day settlement blitz on behalf of one of our clients. ALJ Sandberg was appointed as a Prehearing Administrative Law Judge in June of 2015 after practicing in Chicago for 14 years in the areas of employer’s liability, subrogation and workers’ compensation defense, then moving to Colorado in 1998 when he focused primarily on workers’ compensation law. Most recently, ALJ Sandberg was honored as Outstanding DOWC/OAC Representative by the Professionals in Workers’ Compensation, Colorado. We are very happy to have had the opportunity to host the very knowledgeable and respected Judge Sandberg in this highly successful endeavor in which he brought together opposing sides in multiple disputes to reach mutually acceptable terms and come to a settlement agreement. It was a win-win situation for all who participated.

 


 

PWC-logo
The Professionals in Workers’ Compensation, Colorado held their 14th Annual Awards Banquet on May 12th at the Doubletree, Stapleton North. Lee + Kinder, LLC was happy to be present as Hospitality Sponsor. In attendance for the evening’s events, which included recognition of outstanding contributions in the workers’ compensation industry to multiple recipients and scholarship presentations, was the Firm’s Managing Member Katherine Lee, Partner Tiffany Scully Kinder and Of Counsel representatives Frank Cavanaugh and John Abraham.

 


Victory Lap

Fran-newsOf Counsel M. Frances McCracken successfully contested additional requested medical treatment as maintenance care for an ongoing lumbar spine injury in Mascotti v. Walmart Stores, Inc. and American Home Insurance, W.C. 4-478-187. Claimant suffered a low back injury in 2000 and had been at MMI since 2004 with authorized, reasonable, necessary and related maintenance medical care. The authorized treating physician requested additional physical therapy, a repeat MRI study, dry needling, and repeat medial branch blocks. Respondents’ medical expert argued that the medical evidence not only showed that the requested treatment was unlikely to improve or maintain Claimant’s condition, but that the treatment was also unrelated to the work injury and instead attributable to a longstanding independent condition. The ALJ agreed and found Respondents’ expert credible. Claimant also contended that, aside from being reasonable, necessary and related, the therapy and dry needling should be authorized for an alleged failure by Respondents to comply with W.C.R.P. 16. The ALJ found instead that the authorized treating physician had not complied with W.C.R.P. 16 in submitting an incomplete request for prior authorization. All requests for the additional treatment at issue were denied and dismissed.

 

In a second win for Ms. McCracken, the ALJ denied a Petition to Reopen and a claim for compensability of an alleged new injury upon remand to the ALJ from a previous decision by ICAO, in Jaterka v. Johnson & Johnson, W.C. 4-984-216. The ICAO decision is addressed in case summaries below. Claimant failed to timely object to Respondents’ FAL and her subsequent Petition to Reopen the claim for an award of medical benefits, temporary disability benefits and permanent partial disability benefits was dismissed by the ALJ for lack of jurisdiction. ICAO set aside the Order, holding that the ALJ did have jurisdiction to hear the issues in dispute, and remanded to the ALJ for further determination. The ALJ addressed the issues in dispute on the merits and denied and dismissed all claims for additional workers’ compensation benefits.

 

mbb-news_115x125Associate Matt Boatwright successfully defeated claims for medical and temporary disability benefits in Ouellette v. United Parcel Service and Liberty Mutual Insurance, W.C. 5-006-922. Claimant slipped and fell on ice in the company parking lot after her shift and alleged a work-related injury. Claimant alluded a multitude of symptoms that caused ongoing disability and an inability to work. Claimant was also involved in two subsequent motor vehicle accidents. Respondents’ medical expert opined that the fall would have caused only a contusion, which would have resolved independently without treatment or significant disability, and that any ongoing symptoms would more likely than not be related to the car accidents. Claimant’s medical expert testified that her ongoing symptoms were consistent with the mechanism of injury and required additional diagnostics and treatment. The ALJ credited the opinion of Respondents’ expert over Claimant’s expert and found that, while there was a compensable injury, there was no resultant disability that required further treatment or wage loss benefits.

 

Mr. Boatwright also successfully secured an Order denying a claim for temporary total disability benefits on the bases of the affirmative defenses of late report of injury and termination for cause in Bennett v. Pepsi Beverages Company and ACE American Insurance, W.C. No. 4-992-112. Claimant sustained a compensable injury to his right elbow while at work. Claimant was off work after the injury and alleged temporary disability benefits were owed due to alleged work-related wage loss. The ALJ found that Respondents’ employer witnesses testified credibly that the Claimant did not properly or timely report a work-related injury to his supervisor per company policy and per requirement of the Act. The ALJ found that after Claimant did report a work-related injury to the insurer, he was terminated for cause for noncompliance with company policy and reasons unrelated to the work injury. The ALJ denied and dismissed Claimant’s claim for temporary disability benefits during the periods of non-compliance with the Act and for wage loss not related to the work injury.

 

In a third win for Mr. Boatwright, Respondents successfully defended against Claimant’s attempt to convert his scheduled impairment rating of the upper extremity to a whole person impairment rating in Penman-Keever v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 5-000-253. Claimant suffered a work-related injury from lifting and subsequently underwent labral repair. Claimant underwent a DIME, wherein the DIME physician found that the labral injuries were unlikely to be causally related, but did give a rating for loss of strength in the arm due to a cervical component. The Claimant’s expert testified that the labral injuries were related and resulted in functional impairment, whereas the Respondents’ expert agreed with the DIME physician that the mechanism of injury was insufficient to have caused the labral injuries. Respondents’ expert further testified that, despite the rating of the cervical component, there was no functional deficit in the neck itself. The ALJ found Respondents’ expert to be persuasive and denied the Claimant’s attempt to convert his admitted scheduled rating to a whole person rating.

 

DM-news_115x125In Rasmussen v. Manpower Group U.S., Inc., Associate Daniel Mowrey successfully dismissed Claimant’s claim for workers’ compensation. The claim was scheduled to proceed on a full contest hearing. Respondents filed a Motion to Dismiss due to Claimant’s failure to participate in discovery. Respondents persuasively argued that Claimant willfully refused to participate in discovery without any mitigating factors. The ALJ opined that dismissal should be imposed only in extreme circumstances. The ALJ credited Respondents’ arguments that the claim warranted dismissal. The ALJ Ordered that Claimant’s Request for Hearing filed on January 25, 2017 was dismissed. As a result of the dismissal, the ALJ further Ordered that the Notice of Claim Status, dated October 26, 2016, denying the claim was final.


CupOJoe_MEM

 
 
 

 

 

AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised: What Are You Doing Colorado?
One of the questions I hear frequently about the Colorado workers’ compensation system from risk managers, insurance adjusters, and even some medical professionals is: “Why does Colorado still use the AMA Guides Third Edition, Revised, when calculating impairment?” In other words, why do Division Level II accredited physicians providing impairment ratings to injured workers use the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (December 1990)? As of 2002, Colorado was, and still is, the only jurisdiction to use the Third Edition in the workers’ compensation system.
Click here to continue reading this article.

 


 

Cases You Should Know

I love rules and I love following them, unless that rule is stupid: In Cordova v. Walmart Stores, Inc., W.C. No. 4-926-520 (March 14, 2017), the ICAO addressed the application and weight of the Medical Treatment Guidelines (MTG) in consideration of determination of whether a request for prior authorization for treatment was reasonable, necessary and related. Claimant had a work-related lumbar injury for which he requested surgery. Claimant also had a diagnosis of cancer in the lumbar spine. Respondents denied the request for surgery for multiple reasons, including Claimant’s alleged inability to identify the work-related condition as the pain generator and on the assertion that Claimant could not justify surgery under the MTG because he could not demonstrate that this would improve function or relieve pain. The ALJ agreed with Claimant’s expert opinion that the surgery would both improve function and relieve pain. Upon appeal, ICAO upheld the ALJ’s Order, finding that W.C.R.P. 17 acknowledges that reasonable medical care may include deviations from the MTG in individual cases and that an ALJ is statutorily identified as the arbiter of such disputes over medical care. See Section 8-43-201(3), C.R.S.

Moral of the Story: In disputes over reasonable, necessary and related medical treatment outside of the MTG, an ALJ may consider the MTG, but is ultimately not bound by these criteria.

 

Speak now (in response to a FAL), or forever hold your peace: In Heib v. Devereuax Cleo Wallace and Zurich American Insurance, W.C. No. 4-626-898 (March 15, 2017), the ICAO upheld the ALJ’s Order holding that the issue of AWW was administratively closed pursuant to the Claimant’s failure to object to a FAL within the requisite time period. Respondents filed both a FAL and a subsequent Amended FAL after Claimant was placed at MMI. Claimant did not endorse AWW in response to her objection to either the initial FAL or the Amended FAL, instead endorsing the issue later in a Response to Respondents’ Application for Hearing on a separate matter. Citing Section 8-43-203(2)(b)(II), C.R.S., which requires that disputed issues be endorsed in an Application for Hearing within 30 days of the filing of a FAL, the ALJ found that AWW was closed by operation of statute and denied and dismissed the issue. Upon appeal, Claimant asserted the right to litigate AWW based upon case law that permitted hearing on the issue where there was also an issue of reopening. ICAO found the Claimant’s reliance on these cases was misplaced, as there was no reopening at issue in this claim and no mutual consent to litigate the issue.

Moral of the Story: Issues not endorsed by a Claimant in an Application for Hearing filed within the requisite 30 days from a FAL are closed administratively and can only be reopened on the basis of fraud, overpayment, error, mistake or a change of condition.

 

Reality is contradictory. And it’s paradoxical: The ICAO upheld an ALJ’s Order finding that Respondent failed to meet its burden to overcome the DIME where the ALJ declined to apply issue preclusion on an asserted conflict between the ALJ’s Order and a previous hearing Order in Holcombe v. Fedex Corp., W.C. No. 4-824-259 (March 24, 2017). The first ALJ found that Claimant failed to meet his burden in proving by a preponderance of the evidence that surgery requested for Claimant’s left elbow was reasonable and necessary. Claimant subsequently underwent a DIME, which determined that he was not at MMI because the surgery for the left elbow was reasonable and necessary. Respondent sought to overcome the DIME at a second hearing and the second ALJ found that Respondent had failed to meet its burden to overcome the DIME by clear and convincing evidence. On appeal, Respondent asserted that issue preclusion, which bars re-litigation of issues previously determined, should prevent the second ALJ from reaching a different outcome than the first. ICAO found that issue preclusion did not apply, as the issues were decided under differing burdens of proof. See Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006). ICAO found that because the burdens were different, issue preclusion did not apply. ICAO further found that, regardless, the issue was not identical because the Claimant’s condition had changed between the first and second hearings.

Moral of the story: An ALJ is not necessarily precluded from reconsidering medical benefits that were the subject of previous litigation where the burden of proof on the parties changes after a DIME or where the passage of time affects the Claimant’s condition.

 

Sometimes you don’t get closure. You just move on: In Jaterka v. Johnson & Johnson, W.C. No. 4-984-216 (March 22, 2017), ICAO set aside and remanded an Order of the ALJ, which concluded that he lacked jurisdiction, and therefore authority, to hear an issue of reopening brought by Claimant. Claimant did not object to Respondents’ FAL with either an Application for Hearing or DIME within the requisite 30 days. Claimant filed a Petition to Reopen her claim because she was not at MMI and because her claim for a shoulder injury was inappropriately denied. The ALJ found that, because Claimant had failed to timely object to the FAL, the claim was administratively closed and the ALJ lacked jurisdiction to address reopening. ICAO found that the ALJ misapplied the law in determining that he had no jurisdiction to address the issue of reopening. Pursuant to Section 8-43-303, C.R.S., any award may be reopened on the ground of error, mistake or change of condition, and the statutory authority of the court to reopen is broad. ICAO noted that it was bound by the Court of Appeals’ decision in Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005), and found that the ALJ erred by dismissing the issue rather than making findings pursuant to the issue of reopening. ICAO remanded for additional findings by the ALJ. Upon remand, however, the ALJ denied and dismissed Claimant’s request to reopen her claim and also denied her claim for a left shoulder rotator cuff injury.

Moral of the story: Even if a claimant does not timely object to a FAL, this does not prevent them from subsequently seeking to reopen a claim on the bases of fraud, error, mistake or change of condition, and an ALJ must make a determination whether the asserted grounds warrant reopening under the facts.

 

No free lunch for Claimants just because Respondents seek a DIME: In Mulgeta v. ISS Facility Services, Inc., W.C. No. 4-978-510-02 (March 8, 2017), a Claimant had an admitted low back injury. However, due to the Claimant’s diffuse and non-physiologic pain complaints, the ATP provided only a 5% impairment rating based on six months of medical documented pain at the time of MMI. The Respondents did not file a FAL, but instead sought a DIME. The Claimant sought penalties against the Respondents on the basis that the Respondents should have paid TTD or PPD while the DIME was pending, because the Claimant was no longer employed with the employer. The ALJ denied penalties partly on statute-of-limitations grounds, but noted that TTD need not be paid while the Respondents seek a DIME where the Claimant was not receiving TTD prior to being placed at MMI by the ATP. The ICAO agreed.

Moral of the story: When Respondents seek a DIME instead of filing a FAL, the Claimant is statutorily entitled to ongoing TTD if he was receiving TTD at the time of MMI.

 

Shopping for impairment ratings: In Newton v. True Value Co., W.C. No. 4-978-459-02 (April 4, 2017), one of the Claimant’s authorized treating physicians, Dr. Kawasaki, placed the Claimant at MMI on September 17, 2015 and provided a scheduled rating for the upper extremity. Shortly thereafter, another of the Claimant’s authorized treating physicians, Dr. Adams, placed the Claimant at MMI as of October 5, 2015, but provided a whole-person impairment based on a spinal cord injury. The Respondents filed a FAL admitting for the scheduled injury provided by Dr. Kawasaki but admitted for the MMI date based on Dr. Adams’ report. Both were attached to the FAL. The Claimant argued that the Respondents were obligated to admit Dr. Adams’ rating because they relied on her report for the admitted date of MMI. The ALJ and ICAO disagreed. ICAO held that the Respondents could choose among the MMI dates and impairment ratings provided by the several authorized treating physicians when filing their FAL.

Moral of the story: Where various ATPs have differing opinions regarding MMI and impairment rating, Respondents may pick and choose on which to admit.

 

Where the DIME physician is right, it does not matter how he got there: In Powell v. Aurora Public Schools, W.C. No. 4-974-718-03 (March 15, 2017), a Claimant suffered an admitted hip injury. The Claimant was placed at MMI by her ATP, and the DIME physician concurred, noting that the Claimant suffered only minor tenonosis and joint irritation. After the DIME, the Claimant underwent an MRI that showed a torn labrum of the hip. The Claimant sought to overcome the DIME with regard to MMI and sought additional treatment, arguing that the DIME physician’s opinion was in error because he did not know of the torn labrum that would later appear on the MRI. The ALJ relied on expert testimony to conclude that the Claimant failed to overcome the DIME regarding MMI because the DIME physician would have come to the same result anyway. Therefore, even though the DIME physician did not have all information available to him, the Claimant still failed to prove by clear and convincing evidence that the DIME physician came to the wrong result. ICAO affirmed.

Moral of the story: Even if the DIME physician did not have all information available, the DIME doctor’s opinion will not be overcome so long as the DIME doctor reached the correct result.

 

DIME’s opinion does not preclude maintenance disputes: In Walker v. Life Care Centers of America, W.C. No. 4-953-561-02 (March 30, 2017), a Claimant sought maintenance medical treatment for a surgical consultation for her neck. The Claimant had previously undergone a DIME that concluded that the Claimant had an impairment of the upper extremity but which did not provide an impairment for the neck. The Respondents filed a FAL admitting for the rating as well as maintenance medical benefits. When the Claimant sought a hearing on the reasonableness and relatedness of recommended surgical consultation for the neck, the Respondents argued claim preclusion on the basis that the relatedness of the neck was already decided by the quasi-judicial determination of the DIME physician. The ALJ rejected the argument and concluded that the DIME’s opinion did not have any preclusive effect, noting that a previous ALJ had, in fact, converted the Claimant’s scheduled rating to whole person. ICAO affirmed.

Moral of the story: The DIME physician’s opinion regarding relatedness of body parts does not preclude later litigation of whether specific maintenance medical benefits are related.

AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised: What Are You Doing Colorado?

One of the questions I hear frequently about the Colorado workers’ compensation system from risk managers,AMAguides3rd insurance adjusters, and even some medical professionals is: “Why does Colorado still use the AMA Guides Third Edition, Revised, when calculating impairment?” In other words, why do Division Level II accredited physicians providing impairment ratings to injured workers use the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (December 1990)? As of 2002, Colorado was, and still is, the only jurisdiction to use the Third Edition in the workers’ compensation system.[1]

The Third Revised Edition’s history in the Colorado workers’ compensation system is simple. The Colorado Workers’ Compensation Act underwent an extensive remodel in 1991. In the 1991 Amendments to the Act, the legislature inserted in section 8-42-107(A)(c), C.R.S., the methods to calculate impairment. In order to establish the medical impairment value for purposes of a permanent partial disability award, the legislature adopted the Third Edition, Revised (December 1990), which, at the time, was state of the art.  Since 1991, the legislature has not altered the statutory language.

The State of Colorado has arguably been cognizant of the fact it is the only state in the nation to hold onto this antiquated edition. In fact, the Colorado Department of Labor and Employment commissioned a study in 2002, concluding that “spinal impairment evaluations are the most frequent type of evaluations performed.”[2] The study stated that, amongst the guides, there are significant differences in spinal impairment. The author pointed out “the impairment estimate for a spinal injury may be quite different depending on which edition is used to rate the condition.” The author concluded “Values were significantly less with both the Fourth and Fifth Editions, although more dramatically with the Fourth Edition.” The study pointed to different range of motion calculations between the guides to explain the discrepancy.

Per its own commissioned study that the use of the Third Edition Revised results in higher impairment ratings, and, therefore, higher permanent partial disability awards, Colorado has held strong to the Third Revised Edition.  In 2007 the AMA Guides Sixth Edition was published. The more recent studies show a decrease in impairment ratings with the Sixth Edition when compared to ratings under the Fifth Edition.[3] The State of Colorado utilizes the medical impairment rating system that on average provides the highest degree of impairment, including spinal impairments, to injured workers. It does not appear that there is any legislative progress to bring Colorado into alignment with any other state anytime soon.  Which begs the final question: Colorado, what are you doing?

________________________________________________________________________________

[1] Study of the Impact on Changing from the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Third Edition Revised to the Fourth or Fifth Editions in Determining Workers’ Compensation Impairment Ratings, Christopher Brigham, M.D. (June 30, 2002).

[2] Id. 58.

[3] Impact on Impairment Ratings from the American Medical Association’s Sixth Edition of the Guides to the Evaluation of Permanent Impairment, Robert Moss, et. al. (July 2012) at 25.

legaLKonnection Firm Newsletter – April 2017

2017_newsletter_LK-header-badge

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

LK-icon-512x512

Please follow Lee + Kinder LLC on LinkedIn


In the News

Lee + Kinder Super Lawyers 2017

 

Lee + Kinder Associates


Victory Lap


JDB-news_115x125 In Dillingham v. SkyWest Airlines, Inc. and ACE American Insurance, Co., Member Joshua Brown and Associate Kelsey Bowers successfully defeated Claimant’s attempt to prove a compensable left knee injury. Claimant tried to use two theories of compensability and argued that (1) there was a specific work event that aggravated his preexisting left knee osteoarthritis and (2) he developed a cumulative trauma injury to his left knee working over a prolonged period-of-time. Dr. Paz provided convincing testimony that Claimant had preexisting, severe osteoarthritis as a result of a prior stroke. He explained that the condition was not aggravated by a specific work incident or accelerated by prolonged work activities. The ALJ found that although Claimant experienced knee pain at work, that was not enough to establish a compensable claim.

 


Karen-NEWSMember Karen Gail Treece defeated Claimant’s request for appeal in Newton v. True Value, W.C. No. 4-978-459 (ICAO April 4, 2017). Claimant injured his left hand at work. When Claimant reached MMI, Dr. Kawasaki assessed him with a 25% scheduled impairment, but Dr. Adams determined he had a 25% whole person impairment due to Complex Regional Pain Syndrome (CRPS). Respondents admitted to Dr. Kawasaki’s impairment rating, but mistakenly attached Dr. Adams’ report to the FAL. Claimant sought hearing and argued Respondents were required to either admit to the 25% whole person rating or request a DIME. The ALJ held Respondents were not required to admit to the whole person rating because both Dr. Adams and Dr. Kawasaki were treating physicians. Therefore, Claimant had the burden to prove he had a whole person impairment rating, which he failed to prove. Claimant appealed and argued Respondents had to admit to Dr. Adams’ rating because she was “the” authorized treating provider. The Court held that “an” ATP could determine MMI and impairment. Dr. Kawasaki and Dr. Adams were both ATPs. When an ATP assigns an impairment listed in the schedule, Respondents may either file a FAL or dispute the rating at hearing. There is no requirement for a DIME for scheduled impairments. Whether Claimant’s impairment should be considered scheduled or whole person is a question of fact for an ALJ. Claimant’s appeal was denied.


ST_newsIn Fincham v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended on the issue of compensability. A Claimant alleged that he injured his right shoulder while unloading a refrigerator from a truck. However, the Claimant did not seek treatment until several months after the alleged incident. Furthermore, the Claimant exhibited numerous degenerative changes in his shoulder consistent with his active lifestyle of playing softball and golf. Respondent argued that these factors made it unlikely that Claimant’s shoulder condition was related to the alleged incident. The ALJ agreed and denied compensability.

 


FMCnews_115x125Of Counsel Frank Cavanaugh successfully argued that apportionment was appropriate and could be determined at hearing without first securing a DIME. Franklin v. Pueblo City Schools. W.C. No. 4-988-862. Claimant suffered a work injury to his low back and was placed at MMI with a 15% whole person impairment. Claimant had a prior low back injury from 1998 with a 5% whole person impairment rating; however, the medical records for this prior injury had been destroyed. At hearing, Claimant challenged the apportionment noted in the FAL and argued that apportionment cannot apply without medical documentation. The Administrative Law Judge agreed with Respondents that apportionment was appropriate and that the issue can be decided at hearing without first securing a DIME.

 

FranNewsOf Counsel M. Frances McCracken successfully defended against Claimant’s claim for a low back injury in Madonna v. Walmart Stores, Inc and New Hampshire Insurance Co., W.C. 4-997-641. Claimant had a lengthy history of intermittent neck pain, cervical surgeries, paralysis resulting from a surgery, and coronary artery disease. Claimant suffered an alleged injury while at work and underwent extensive medical treatment for neck pain. At no point did Claimant treat for back pain. At hearing, Claimant for the first time alleged that he injured his back, not his neck. Dr. Reiss provided convincing testimony that Claimant’s symptoms and need for treatment were likely more related to his preexisting conditions. The ALJ agreed with Respondents that Claimant failed to provide sufficient evidence to establish that he suffered an industrial injury.

 

jmanewsIn Tortorella v. Mariner Healthcare Inc., Of Counsel John Abraham successfully withdrew Respondents’ Final Admission of Liability that authorized reasonable, necessary and related medical maintenance benefits. Claimant sustained an admitted injury to her lumbar spine on April 18, 2005. Claimant underwent conservative medical care and reached MMI on March 7, 2007. Respondents filed a FAL on February 8, 2015, admitting for maintenance medical benefits. Claimant received maintenance care from her treating physicians since 2008. Mr. Abraham produced an IME report from Dr. Fall which persuasively maintained that there was no objective medical evidence that Claimant exhibited any functional gains as a result of her extensive maintenance care. Dr. Fall persuasively opined that Claimant no longer required medical maintenance care. Mr. Abraham also entered into evidence surveillance which documented Claimant functioning beyond her stated level of limitations. The ALJ found the surveillance video and Dr. Fall’s opinions credible and persuasive. The ALJ ordered that Respondents were permitted to withdraw their February 8, 2008 FAL and the admission of reasonable, necessary and related medical maintenance benefits.

 

SJA-news_115x125In McClelland v. The Home Depot, Associate Stephen Abbott successfully defended against a claim for disfigurement based on waiver. Claimant underwent surgery and reached MMI. The claim was closed on a FAL without a disfigurement award. Claimant subsequently reopened the claim for additional surgery and then sought a disfigurement award for his surgical scarring from the first surgery. Mr. Abbott persuasively argued that Claimant had waived his right to a disfigurement award for the first surgery by failing to object to the FAL. Further, reopening the claim did not reopen the issue of any disfigurement existing at the time of the FAL. The ALJ agreed and denied Claimant’s claim for disfigurement benefits as to the first surgery.

 


Cases You Should Know

If you think insurance is expensive, try being uninsured: In Dami Hospitality, LLC v. ICAO, the Colorado Court of Appeals held that imposing a fine of over $840,000 on a smaller employer for failure to maintain WC insurance was excessive and the Court should have considered other factors. (February 23, 2017, Colo. Ct. Appeals). While the employer failed to maintain insurance on two occasions, it argued that the high penalty was unreasonable because it was grossly disproportionate to its ability to pay and the harm caused by the lack of insurance. The Court of Appeals concluded that the 8th Amendment’s protection against excessive fines applies to natural persons as well as corporations. As such, it set aside the Director’s Order and instructed the lower court to consider additional facts that were relevant to the employer’s specific circumstances. These facts included 1) the employer’s ignorance that the required WC insurance had lapsed, 2) the failure of the Division to notify the employer of the lapse for almost five years, 3) the employer’s ability to pay the fine, and 4) the actual or potential harm to employees for the failure to maintain insurance.


Moral of the Story: Corporations are entitled to 8th Amendment protections against excessive fines, so the Director or ALJ must consider facts that are relevant to the employer’s specific circumstances, such as ability to pay, before issuing a penalty for failure to maintain WC insurance.


Finality is not the language of politics: In Evergreen Caissons, Inc. v. ICAO and Jennifer Munoz Botello, the Colorado Court of Appeals held the ALJ’s and ICAO’s separate Orders were not final for purposes of review. Decedent died as a result of his industrial injuries. The employer admitted death benefits for the Decedent’s minor children, but contested whether Claimant Jennifer Munoz Botello was a surviving spouse for purposes of entitlement to death benefits. The hearing ALJ held that Ms. Botello was a surviving spouse, and directed the parties to set a hearing to determine the remaining issues. The employer petitioned the Industrial Claim Appeals Office (ICAO) to review the ALJ’s Order. ICAO dismissed the petition without prejudice, finding that the hearing issues were limited to whether Ms. Botello was a dependent, as well as the allocation of benefits amongst the dependents. Thus, ICAO concluded that the ALJ’s Order did not award death benefits to Claimant Botello and was therefore not final and could not be appealed. The Court of Appeals agreed with ICAO, citing that for an order to be final and subject to appeal, it must grant or deny benefits or penalties. Furthermore, the Court held the ALJ must determine the amount before the ruling is “final” for purposes of review. As such, the Court of Appeals noted that the ALJ did not award death benefits, but merely determined whether or not Ms. Botello was a dependent. Therefore, the Court of Appeals denied the employer’s appeal.


Moral of the story: For an order to be final, it must grant or deny benefits or penalties. Furthermore, an order must determine the amount of benefits and/or penalties before it is final for purposes of review.


Keep Calm and Carry (Complete) Insurance: In City of Lakewood v. Safety National Casualty., the Colorado Court of Appeals affirmed the summary judgment in favor of the insurance company, denying indemnification for the City’s defense costs. A City police officer was killed by friendly fire, and his widow alleged that the City and its officers violated the Decedent’s Federal Constitutional rights under 42 U.S.C. § 1983. The City sought indemnification for its defense costs, as well as the costs incurred by the officers named in the lawsuit, but the insurance company denied coverage. The District Court concluded that a § 1983 claim does not arise under an employer liability law and granted the insurance company’s motion for summary judgment. On appeal, the Court of Appeals held that § 1983 is not a workers’ injury statute that displaces common law claims with a new cause of action. Nor can § 1983 be classified as a common law claim as it is a Federal Constitutional claim. Had the insurance company intended to cover claims arising out of federal law, it is likely that it would have cited to federal references, which was not the case in this matter. As such, the Court of Appeals held that the City’s defense costs, which were sustained because of liability imposed a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employer’s liability law and were, therefore, not covered by the insurance company’s policy.


Additionally, the police officers’ claims for indemnification were also dismissed after the Court of Appeals held that the City’s indemnification payments to the officers named in the lawsuit were not classified as “losses” – actual payments, less recoveries, legally made by the employer to the employees and their dependents. The Court of Appeals also held that the term “employee” refers to an injured employee, not to an employee potentially responsible for the injury, such as the named officers. Furthermore, the Court of Appeals was unwilling to contradict the clear intention of the insurance company’s policy to cover only workers’ injury claims. Therefore, the City was not entitled to reimbursement from the insurance company for the incurred costs of the named officers.


Moral of the story: Unless specifically addressed in a policy, the Federal Constitutional right under § 1983 does not mandate insurance companies to indemnify payments to named parties arising from the applicable insurance companies’ policies aimed at covering injured workers.


Want to scare the neighbors? Name your wifi “FBI Surveillance Van”: In Ross v. St. Thomas More Hospital, W.C. 4-985-129 (February 16, 2017), Claimant sought review of an ALJ’s Order denying and dismissing her claim for additional medical benefits. The ALJ reviewed a surveillance video and specifically found that Claimant’s testimony regarding her pain level and functional abilities were out of proportion to the objective findings on the surveillance. The ALJ also credited Respondents expert’s testimony over Claimant’s treating physician. On appeal, Claimant argued that the ALJ erred in admitting the surveillance tapes. Claimant argued that the surveillance was only provided to her 10 days prior to hearing in violation of W.C.R.P. Rule 9-1(E). ICAO explained that the ALJ did not abuse his discretion in allowing the surveillance tapes into evidence. ICAO determined that the proper relief under Rule 9-1(E) was for the Court to entertain a continuance, which Claimant specifically declined. ICAO determined that the ALJ’s decision was supported by substantial evidence and the ALJ’s Order was affirmed.


Moral of the story: An ALJ’s decisions on evidentiary rulings will not be disturbed without a showing of an abuse of discretion leading to a reversible error.


De minimus non curat lex (“the law does not concern itself with trifles”): In Arnhold v. United Parcel Service, W.C. 4-979-208-02 (February 24, 2017), Claimant sought review of an Order denying the Claimant’s request for penalties to be assessed against the Respondent insurance carrier. At hearing, Claimant sought a 10-day penalty for late payment of TTD benefits. The adjuster testified that she was attempting to verify the amount owed before sending a check to Claimant two days after the due date. The ALJ determined that there was no credible or objective evidence that Respondents knew that they were in violation of the Order. On appeal, ICAO reversed and remanded. ICAO held that the testimony confirmed that the check was mailed two days after the deadline, thus supporting a penalties award. Nevertheless, ICAO took note of the lack of objective evidence put forward by Claimant and opined that more than a de minimis penalty was not justified. ICAO remanded the claim back to the ALJ to determine the amount to be awarded for a 2-day penalty.


Moral of the story: Ensure that all monies agreed to are issued in a timely fashion.

EMPLOYEE OR INDEPENDENT CONTRACTOR?

Why is it important to know if the person working for you is an employee or an independent contractor?  Because the answer determines if he or she must be covered by your workers’ compensation insurance policy. An incorrect guess exposes you to substantial penalties under Colorado’s Workers’ Compensation Act.employeeVSic

 

A worker’s status as an “employee” versus an “independent contractor” has been one of the most heavily litigated areas of workers’ compensation since the enactment of Colorado’s Workers’ Compensation Act in 1915.  Fortunately, after decades of appellate decisions addressing the independent contractor versus employee issue, in 1993, the General Assembly enacted section 8-40-202(2), C.R.S.  According to section 8-40-202(2), C.R.S., anyone performing work for you is an employee, unless such individual is:

 

  • Free from control and direction in the performance of the service, and
  • Customarily engaged in an independent trade, occupation, profession, or business related to the service performed.

 

The statute sets forth nine factors which give rise to a presumption that a worker is an independent contractor as opposed to an employee.  The statute contains various factors the courts will consider in determining whether a worker is, based on the totality of the circumstances, “engaged in an independent trade, occupation, profession or business”.  For example, if the worker has a separate business name, carries his or her own business insurance, has business cards, carries workers’ compensation insurance on any employees, is paid at a contracted rate, submits invoices for the work being performed, with payments being made to the named business, is performing services for other companies at the same time he or she is working for you, the facts suggest the worker is independent and you may not be required to cover him or her under your workers’ compensation policy.

 

The statute also requires the worker to be “free from control and direction in the performance of their services”.  If the worker provides their own tools and necessary supplies, performs the services being contracted on their own schedule, exercises independent judgment in performing the services and how they choose to perform them, again these facts suggest the worker is free from control and independent.  Unfortunately, the courts have repeatedly held there is no single dispositive factor, or series of factors, resulting in proof of an employer-employee relationship or independent contractor status under section 8-40-202(2), C.R.S.

 

The statute does provide for the use of a document to satisfy its requirements by a preponderance of the evidence.  If the parties use a written document to establish an independent contractor relationship, it must be signed by both parties and contain a disclosure, in type which is larger than the other provisions in the document or in bold-faced or underlined type, that the independent contractor is not entitled to workers’ compensation benefits and is obligated to pay federal and state income tax on any moneys earned pursuant to the contract relationship.  All signatures on the document must be notarized.  Such a document creates only a rebuttable presumption of an independent contractor relationship between the parties.

 

Still confused or unsure?  Please call Lee + Kinder LLC to discuss the facts of your situation.

Division Rule 16: Increasing the Complexity of Utilization Preauthorization Disputes

On January 1, 2017, the Colorado Division of Workers’ Compensation’s revised Rule 16 will CDLE-Logotake effect. Rule 16 encompasses the medical, legal, and administrative standards for medical billing and for preauthorization of services requested by medical providers. The revised rule impacts the daily adjusting of workers’ compensation claims, specifically, responding to requests for preauthorization of medical services consistent with the Colorado Medical Treatment Guidelines (“MTG”). The critical alterations pertaining to the utilization review process impute additional legal obligations upon the insurance carrier or third party administrator (“TPA”) to take action after receiving a preauthorization request.

 

The most significant addition to Rule 16 was the incorporation of the “Notification” provision found in Rule 16-9. The Notification process was the Division’s response to concerns about expediting medical services to injured workers while guaranteeing that the medical providers would receive payment without a prior promise of payment from the insurance carrier or TPA. Rule 16-9(A) states “[t]he Notification process is for treatment consistent with the Medical Treatment Guidelines that has an established value under the Medical Fee Schedule. Providers may, but are not required to, utilize the Notification process to ensure payment for medical treatment that falls within the purview of the Medical Treatment Guidelines. Therefore, lack of response from the payer within the time requirement set forth in section 16-9 (D) shall deem the proposed treatment/service authorized for payment.”

 

The language contained in Rule 16-9(B) emphasizes that a medical provider “may” obtain permission to provide a service within the Medical Treatment Guidelines verbally within normal business hours.  The providers can obtain verbal confirmation and may make a request for written confirmation regarding payment of those services. If the provider wishes, the provider can submit a written Notification to the claim examiner. The provider must use the boilerplate Division form WC195, which is available online at the Division’s website. The provider must include on the form a statement as to why the service is medically necessary and cite the applicable MTG.

 

After the carrier or TPA receives the Notification, the respective recipient has 5 business days from the receipt of the Notification to respond to the provider. The timing for the response to the provider differs from the current structure of Rule 16 whereby the carrier is permitted 7 business days from the date of the request to respond to the request for authorization. If the carrier or TPA does not respond to a verbal or written request in 5 business days, the requested service is deemed automatically authorized for payment.

 

The carrier or TPA may either accept or deny the request for services. Similar to the current Rule 16 structure, the carrier or TPA always reserves the right to agree to pay for the requested services without a formal review of the requested services. The carrier or TPA can alternatively contest the services on the following grounds: “(1) for claims which have been reported to the Division, no admission of liability or final order finding the injury compensable has been issued; (2) proposed treatment is not related to the admitted injury; (3) provider submitting Notification is not an Authorized Treating Provider (ATP), or is proposing for treatment to be performed by a provider who is not eligible to be an ATP; (4) injured worker is not entitled to proposed treatment pursuant to statute or settlement;  (5) medical records contain conflicting opinions among the ATPs regarding proposed treatment; and (6) proposed treatment falls outside the Medical Treatment Guidelines (see section 16-9(E).”

 

If the carrier or TPA contests the Notification on the grounds that the treatment is not related to the industrial injury, the medical records contain conflicting opinions, or that the treatment falls outside of the MTG, the carrier or TPA must notify the provider. The carrier or TPA must then allow the provider to submit supporting documentation to justify the relatedness of the service. If the provider submits the requested supporting documentation, then the carrier or TPA must review the request consistent with the Rule 16-10 and 16-11 preauthorization rules within 7 business days. A party contesting the denial of a Notification request may file an Application for Hearing.

 

The Division inserted a penalties provision in Rule 16-9(G). Under this new rule, if any medical provider or payer, the carrier or TPA, misapply the Medical Treatment Guidelines in the Notification process, the respective party may be subject to penalties. This provision continues the Colorado state government’s history of advocating punitive sanctions for violations of administrative rules.

 

In addition to the Notification provision, the Division altered the rules pertinent to traditional utilization review contests for medical services outside of the MTG.  The utilization standards contained in Rule 16-10 largely remained unchanged by the new rule. The modification to Rule 16-11, however, focused upon remodeling the carrier’s and TPA’s right to contest the request for authorization.  Prior to January 1, 2017, in order to contest the request for preauthorization for services, the carrier or TPA had 7 business days to obtain a medical review or file an Application for Hearing to challenge the request. After January 1, 2017, the carrier or TPA must follow a different procedure to contest preauthorization, presuming that medical providers perfect their request for authorization.

 

Under the new Rule 16-11(E): “[f]ailure of the payer to timely comply in full with the requirements of section 16-11(A) or (B), shall be deemed authorization for payment of the requested treatment unless: (1) a hearing is requested within the time prescribed for responding as set forth in section 16-11(A) or (B) and the requesting provider is notified accordingly. A request for hearing shall not relieve the payer from conducting a medical review of the requested treatment, as set forth in section 16-11(B); or (2) the payer has scheduled an independent medical examination (IME) within the time prescribed for responding as set forth in section 16-11(B).” In short, filing an Application for Hearing by itself is no longer sufficient to contest the preauthorization request. If the carrier or TPA requests a hearing, the carrier or TPA must complete the medical review process within seven business days or actually schedule the injured worker for an Independent Medical Evaluation (“IME”) within seven business days.

 

The new Notification process for medical services, consistent with the MTG and the limitations on contesting a requests for preauthorization for services outside of the guidelines, raises numerous questions on how the rules will practically operate. For instance, does a verbal Notification for a service within the MTG left on a claims examiner’s voicemail meet the criteria for Rule 16-9(B)? Does an injured worker have legal standing to request penalties under Rule 16-9 if a medical provider misapplies the MTG in a request thereby causing a delay in medical treatment? If a carrier or TPA files an Application for Hearing and schedules an IME, and the IME is later cancelled for various reasons, is the requested service automatically authorized? Given the historical litigation surrounding Rule 16 utilization reviews, carriers and TPAs should begin implementing safeguards and training to ensure strict compliance with the complex additions to the modified rule.

legaLKonnection Firm Newsletter – November 2016

newsletter_lk-header-badge_5partners

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.
LinkedIn

In the News

Lee + Kinder LLC has been named a Denver Tier 1 firm in the field of Workers’ Compensation Law – Employers by U.S. News – Best Lawyers® “Best Law Firms” again for 2017.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Victory Lap

Member Tiffany Scully Kinder successfully defended Respondents’ challenge to a treating physician’s request for a Platelet Rich Plasma (PRP) injection. In Martinez v. Waste Management of Colorado, Inc. and Indemnity Insurance Company of North America, Claimant sustained an admitted injury to his right shoulder, requiring arthroscopic surgery to repair his rotator cuff. After extensive rehabilitation, Claimant continued to complain of pain and limitation in his right shoulder. His doctor requested prior authorization for a PRP injection as a final option. Respondents challenged the doctor’s request for prior authorization arguing that the Medical Treatment Guidelines do not generally recommend PRP injections for rotator cuff injuries. Respondents presented Claimant’s prior medical records, as well as medical expert deposition testimony at hearing before ALJ Jones. ALJ Jones found that Claimant failed to meet his burden of proof to establish that a PRP injection was a reasonably necessary or related medical benefit for his right shoulder injury.

 

Member Joseph Gren successfully won a dismissal of a full contest claim in Livingston v. United Parcel Service and Liberty Mutual Insurance. The claim involved an employee who alleged he suffered a right knee injury after an unloading roller fell on his knee at work. ALJ Patrick Spencer found that the Claimant could not establish that he sustained an injury or aggravation to his right knee. Furthermore, Mr. Gren utilized expert medical witness testimony, and employer witness testimony, to present evidence that Claimant’s torn ACL was preexisting and that the event at work did not cause or aggravate the knee injury. Mr. Gren was also able to elicit testimony from the surgeon, who recommended an ACL repair, that the injury was likely preexisting. ALJ Spencer credited the testimony of both physicians and the employer witnesses and determined that there was no persuasive evidence that Claimant required any medical treatment proximately caused by the work place incident. ALJ Spencer denied and dismissed the claim.

 

Of Counsel M. Frances McCracken prevailed on all issues endorsed for two claims consolidated for hearing before ALJ Turnbow in Hernandez v. Walmart Stores, Inc. In the first claim, Respondent sought to challenge the DIME’s impairment rating and the recommendation for maintenance medical benefits while Claimant sought to prove conversion. In the second claim, Respondent sought to prove Claimant was responsible for his termination, and Claimant sought to prove entitlement to TTD benefits. The ALJ found that Claimant failed to prove a permanent impairment beyond the shoulder joint, found that the DIME physician incorrectly included a non-work-related condition in the impairment rating, and found that no maintenance medical benefits were necessary. For the second claim, the ALJ found that Claimant was, in fact, responsible for termination, thus severing the causal connection between the injury and the wage loss.

Of Counsel M. Frances McCracken also successfully prevailed before ALJ Felter in Clark v. Walmart Stores, Inc. on the issue of the reasonableness of a Tramadol prescription as a maintenance medical benefit. After listening to the testimony of the parties’ witnesses, ALJ Felter found that indefinite prescriptions for Tramadol were not a reasonably necessary maintenance medical benefit. He ordered that Claimant’s treating physician enter into a Pain Contract, signed by Claimant, setting forth a reasonable schedule for weaning Claimant off of the Tramadol.

 

In Mitchell v. Walmart Stores Inc, Of Counsel John Abraham successfully challenged Claimant’s request for a general medical maintenance care award and a new Final Admission of Liability. The authorized treating physician found no maintenance care was reasonable, necessary and/or related, while the Division IME physician recommended a six-month gym membership as maintenance care. Respondent denied maintenance care pursuant to the ATP’s opinions on the FAL. Claimant argued that the gym membership was a maintenance medical benefit necessitating an admission for a general maintenance award. Respondent agreed to authorize a six-month gym membership though they maintained, contrary to Claimant’s request, that no additional maintenance care was reasonable, necessary and/or related. Mr. Abraham presented credible medical evidence demonstrating that the substantial evidence did not support a general medical maintenance award and further that there was no authority to support a general award of maintenance care simply because a gym membership had been agreed to by the parties.

 

Associate Matt Boatwright was successful in two recently litigated claims. In Schilling v. United Parcel Service and Liberty Mutual Insurance, Claimant sought conversion of a scheduled injury to his upper extremity to a whole person impairment rating for ongoing complaints of pain in the neck, upper back, and residual symptoms from a surgery. The ALJ found that Respondents’ medical expert testified credibly and persuasively that no symptoms at that time would have reasonably been considered related to the original injury. The ALJ found the injury appropriate under the schedule of ratings and denied the whole person conversion.

Mr. Boatwright also successfully defended a full contest claim for benefits arising from a foot injury alleged to the be result of an occupational disease. DeHerrera v. United Parcel Service and Liberty Mutual Insurance. Claimant claimed that he had sesamoiditis, a condition involving inflammation of the foot, as the result of his job duties over time. The condition ultimately required surgery. The ALJ found that Respondents’ medical expert testified credibly that the particular condition for which Claimant sought compensation would not have been caused by repetitive activities, but would more likely than not be the result of an acute injury. Based upon this medical opinion, the ALJ denied and dismissed the claim.

 



NEW OVERTIME RULES
The Department of Labor’s (“DOL”) new overtime rules take effect December 1, 2016, and employers should be reviewing and modifying their compensation and payroll practices in response. Here is a link to the new regulations adopted by the Department of Labor:
http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=28355

As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans.

Click here to continue reading this article.

 


Cases You Should Know

Tomayto, tomahto: In Dalton and Archer-Reid v. Pace Joint Interests-Denver, LLC and Chiropractic Healthcare Solutions, LLC, W.C. Nos. 4-977-664 & 4-977-800 (September 22, 2016), while addressing a unique factual scenario involving two alleged employers, ICAO clarified the concepts of joint employment, dual employment, and loaned employment. ICAO noted neither Colorado appellate courts nor ICAO previously have adopted or applied Larson’s distinct classifications of “joint employment” or “dual employment.” Rather, these courts have used the terms interchangeably. Larson’s Workers’ Compensation distinguishes joint employment from dual employment:

Joint employment occurs when a single employee, under contract with two employers, and under simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workmen’s compensation.

Dual employment occurs when a single employee, under contract with two employers, and under the separate control of each, performs services for the most part for each employer separately, and when the service for each employer is largely unrelated to that for the other. In such a case, the employers may be liable for workmen’s compensation separately or jointly, depending on the severability of the employee’s activity at the time of injury.

ICAO also noted that, under the Colorado Workers’ Compensation Act, a loaned employee and an employee are not the same. C.R.S. §8-41-303 provides: “Where an employer . . . loans the service of any of the employer’s employees . . . to any third person, the employer shall be liable for any compensation thereafter for any injuries or death of said employee . . . unless it appears from the evidence that said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom the employee was loaned.” Moral of the Story: Do not use the terms joint employment, dual employment, and loaned employment loosely—these terms embody distinct concepts.

 

An indirect green light on appeals from the General Assembly: In Huston v. Allcable, Inc., W.C. No. 4-997-535 (October 5, 2016), the ALJ ordered a change of authorized treating physician pursuant to § 8-43-404(5)(a)(VI), C.R.S. and Respondents appealed. ICAO considered whether §8-32-301(2) bars review of an order requiring a change of physician since such an order arguably does not require payment of a benefit. In prior cases, ICAO found orders granting a change of physician not reviewable because authorization itself is not a benefit. ICAO departed from its prior position, citing recent statutory changes which compel Respondents to pay for a minimum of one appointment with the new ATP after a change of physician pursuant to §8-43-404(5)(a)(VI). Since the change of physician statute now requires payment by Respondents, an order granting a change of physician is appealable. Moral of the Story: As a result of recent statutory changes, C.R.S. §8-43-301(2) no longer bars appeal of an order granting a change of physician.

 

Short and sweet: adjudication on the pleadings: In Adams v. Heart of the Rockies, W.C. No. 4-947-7301, a dispute arose as to the Respondents’ entitlement to recover an overpayment. The parties agreed to forego a hearing and request an Order on the pleadings. The ALJ issued a Summary Order in favor of the Respondents, which did not address the Claimant’s arguments. The Claimant appealed, and the ICAO concluded, based on the Summary Order, that the ALJ implicitly found the Claimant’s factual allegations unpersuasive. The ICAO noted, though not in dispute, that a request for a full findings of fact under §8-43-215, C.R.S. is not available where a summary order is issued on the pleadings without a hearing. Moral of the story: Where issues are adjudicated on the pleadings, you may not request full findings of fact.

 

If you’re fired, allege a worsening of condition: In Evans v. JC Penny, W.C. No. 4-904-748-04 (September 19, 2016), the ALJ found that the Claimant was responsible for her termination in April of 2014. However, the ALJ also found that the Claimant had a worsening of condition in October of 2014. The ALJ, in his Order, concluded that the Claimant’s entitlement to TTD benefits was severed by the for-cause termination in April 2014, and found that a causal relationship between wage loss and injury was reestablished as of Claimant’s worsening of condition in October of 2014. On appeal, ICAO concluded that the ALJ’s findings were supported by substantial evidence and his conclusions were supported by the seminal case of Anderson v. Longmont Toyota. Moral of the story: Entitlement to temporary disability benefits may be reestablished by a showing of a worsening of condition, despite the fact that the claimant was responsible for prior termination.

 

A final order is a final order… unless it’s not: In Ketiku v. Integrated Healthcare Staffing, W.C. No. 4-924-142-09, a Pro Se Claimant failed to file a timely Petition to Review. The Claimant filed multiple subsequent applications for hearing, one of which sought reopening based on mistake. Specifically, the Claimant alleged that she was given the “wrong documentation” for her appeal and that she was denied reasonable assistance to mitigate a hearing disability. The ALJ struck the Claimant’s Application For Hearing, noting that the prior Order denying compensability was final, as it had not been appealed. On review, ICAO remanded the case to the ALJ, concluding that the Claimant’s allegations could constitute a basis for mistake of law, warranting a collateral attack on the original Order. Moral of the Story: Even a claim closed on a final order, no longer subject to review, may be reopened where a pro se claimant alleges the prior ALJ made a mistake of law.

 

Risky Business: In Cross v. Genuine Parts Company, W.C. 4-961-489-02 (September 20, 2016), the Industrial Claim Appeals Office affirmed the decision of the Administrative Law Judge (ALJ) ordering Respondents liable for arm/wrist surgery for Claimant’s compensable injury. Respondents’ appeal argued that Claimant’s need for surgery arose due to an aggravation of her condition while working for a new employer. The panel affirmed the ALJ’s finding and reasoned, citing University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001), that the concept of assigning liability for medical benefits to an employer “on the risk” for insurance coverage would not apply in a case where the prior injury had an accidental cause and the subsequent injury was an occupational disease, as was the case here. Instead, the ordinary rules of causation and apportionment extend to medical benefits because there was no evidence in the record stating that the original work injury was an occupational disease. The panel affirmed the ALJ’s decision that the proposed surgery was caused by Claimant’s original work injury and not while working for a subsequent employer. Moral of the story: For the “last injurious exposure” doctrine to apply, the initial work injury and subsequent aggravation must be occupational injuries. Liability for medical expenses is on the employer who is on the risk for insurance coverage as of the date the charge for medical services was incurred.

NEW OVERTIME RULES

The Department of Labor’s (“DOL”) new overtime rules take effect December 1, 2016,usdol_seal and employers should be reviewing and modifying their compensation and payroll practices in response. Here is a link to the new regulations adopted by the Department of Labor:

http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=28355

As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans.

The new overtime rules increase the salary levels at which executive, administrative, and professional workers may be considered “exempt” under the Fair Labor Standard Act (“FLSA”) from overtime pay when a work week exceeds 40 hours. Initially, the standard salary level will increase from $455 to $913 per week and the total annual compensation requirement for highly compensated employee exemption will increase from $100,000 to $134,004 per year.  In addition to these initial compensation level bumps, additional upward adjustments are scheduled to occur every three years thereafter.

The immediate impact on this change is that currently classified “exempt” employees under the lower salary level, will no longer qualify for this status.  As a result, if an employee is no longer exempt under the FLSA, overtime must be paid for work performed beyond the 40-hour work week.

Employers need to respond to these changes in a number of ways.  Some are raising base salaries in order to classify additional employees as “exempt.”  Others are planning to simply pay overtime where necessary.  Others are planning to cap hours at 40 so that no overtime need be paid, or to meet their needs with part-time workers.

Regardless of the planned changes, effects on the employer’s benefit plans must be considered.  The DOL’s new overtime rules will require many employers to make sweeping and expensive changes to their compensation practices.  These changes may impact employee benefit plans in both intended and unintended ways.  Employers are urged to conduct a thorough benefit plan analysis before making any sweeping compensation changes.

If you have questions about the rule, or how it may affect your company, please contact us.

legaLKonnection Firm Newsletter – October 2016

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.
LinkedIn

In the News

namwolf2016_web
Member Joshua Brown  and Of Counsel John Abraham recently attended the annual NAMWOLF Conference in Houston, TX 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 country. On behalf of the Firm, Mr. Brown and Mr. Abraham met with general counsel from various countries, as well as networked with other NAMWOLF firms across the country. Additionally, the Firm was represented at the conference’s firm expo pictured left.

 

 


Victory Lap

tiffany-scully-kinder_lee-kinder-partner-attorney1Member Tiffany Scully Kinder successfully won dismissal of a full-contest claim in Carias v. Bimbo Bakeries USA, Inc. and Indemnity Insurance of North America in front of ALJ Laura Broniak. Claimant alleged she injured her abdomen area after being struck by a plastic basket. ALJ Broniak found a plastic basket striking Claimant’s abdominal area would not have enough force to cause trauma. Further, ALJ Broniak found Claimant’s change in job duties could not cause an injury, or otherwise aggravate or exacerbate Claimant’s pre-existing abdomen symptoms. The ALJ denied and dismissed the claim.

 

KGTnewsMember Karen G. Treece successfully defeated Claimant’s claim for conversion in Newton v. True Value and Zurich American Insurance Company. In this case, the claimant crushed his left hand and wrist between two forklifts. He was found at MMI but provided two different impairment ratings. Dr. Kawasaki first found claimant had a 25% scheduled impairment rating but Dr. Adams later determined Claimant had a 25% whole person impairment rating due to CRPS. Respondents admitted for the 25% scheduled rating. Claimant filed an application for hearing seeking conversion to the 25% whole person rating as found by Dr. Adams. Claimant argued Respondents were bound to admit to Dr. Adams’ higher impairment rating. Ms. Treece drew testimony from Dr. Adams that claimant’s impairment rating was the first one she had performed, only did so after she saw Dr. Kawasaki’s impairment rating, and thought it was inadequate. Dr. Striplin credibly testified that Dr. Kawasaki’s impairment was more appropriate as claimant sustained an injury to his hand and wrist, which is evaluated under the schedule. Claimant was properly evaluated and found negative for CRPS. If the claimant had had CRPS, the AMA Guides permit the evaluator discretion to provide a schedule or whole person rating. Claimant’s claim for conversion was denied.

 

ST_newsOf Counsel Sheila Toborg successfully defended two separate appeals brought by claimants, in Odell Walker v. Raytheon Co. and Liberty Mutual and again in Eduardo Garcia v. The Home Depot. In Walker, Claimant alleged a cervical disc herniation and possible shoulder injury while installing computer systems in Abu Dhabi. Respondents denied the claim on the basis that Claimant had an extensive history of similar symptoms predating the alleged injury and that the mechanism of injury would not result in any injury. Respondents presented Claimant’s prior medical records and Dr. Allison Fall’s testimony at hearing before ALJ Timothy Cain and won. Claimant appealed. ICAO affirmed ALJ Cain’s Order, concluding that Claimant failed to prove by substantial evidence that his symptoms were causally related to a work injury.

In Garcia, Claimant suffered admitted labral tear of the right hip, and his treating physicians opined that he could not undergo hip surgery until he lost sufficient weight. Claimant’s treating physicians recommended bariatric surgery, which Respondent denied as not reasonably necessary in light of less-invasive alternatives. Following a hearing before ALJ Michelle Jones in which both parties presented medical expert testimony, ALJ Jones found that the bariatric procedure would not result in a much faster rate of weight loss than dieting and nutrition programs, and that bariatric surgery was not reasonably necessary in light of the less-invasive alternatives. Claimant appealed the Order. ICAO affirmed ALJ Jones’ Order, concluding that her findings were supported by substantial evidence and that her legal conclusions were sound.

 

frank2In Ortiz-Avila v. Spacecon and AIG, Of Counsel Frank Cavanaugh was successful in arguing that penalties were not warranted for an alleged improper denial of medical benefits pursuant to a request for prior authorization under. W.C.R.P. 16, non-payment of medical bills, and an unreasonable delay or denial of benefits. ALJ Kimberly Turnbow found that the W.C.R.P. 16 prior authorization requests were handled properly and reviewed by a physician with the necessary qualifications to review the medical care at issue. Notably, exposure on the asserted penalties was over $1 million. The ALJ found and concluded that penalties were not factually supportable.

 

 

FranNews

Of Counsel Frances McCracken was successful in challenging Claimant’s request to reopen her claim on the basis of a worsening of condition in Hays v. Walmart and Illinois National Insurance Co. Respondents presented medical evidence that Claimant’s condition had remained stable since being placed at MMI. ALJ Keith Mottram found that there was no credible evidence of recommended treatment which would be considered anything more than maintenance care. Additionally, while the ALJ found that the scheduled injury at issue was appropriate for conversion to a whole person impairment rating, the converted rating was actually less than the full amount of the scheduled impairment due to Claimant’s AWW, resulting in less exposure for PPD than if the injury had remained under the schedule of injuries.

 

jmanewsOf Counsel John Abraham successfully won dismissal of a full-contest claim in Ineguez-Zamora v. Dave and Busters and Indemnity Insurance Company, in from of ALJ Michelle Jones. Claimant alleged a back injury in February of 2016. Mr. Abraham utilized expert medical opinions to point out inconsistencies in Claimant’s mechanism of injury. Mr. Abraham also introduced testimony from Claimant’s manager with his current employer. Claimant’s supervisor credibly testified that Claimant digs ditches and constantly moves pipes weighing 25-35 pounds. ALJ Jones found that there was no objective medical evidence that Claimant sustained a workplace injury. The ALJ further found Claimant not to be credible. The ALJ denied and dismissed the claim.

Of Counsel John Abraham also successfully defended against a Disfigurement claim in Costa v. Walmart and Claims Management, Inc. Claimant alleged in discovery that she had disfigurement from swelling due to her injury. Respondents contended there was no disfigurement. Counsel for Respondents appeared at hearing in person. Claimant was present without her attorney and admitted, under oath, that she had no disfigurement related to the work injury.

 


LetsBeFrankW

DEPARTMENT OF LABOR REPORT

In October 2015, National Public Radio (NPR) and ProPublica did a report over the differences between the states workers’ compensation laws. The report found significant differences in the amount of benefits and type of benefits in each states workers’ compensation system. The report focused heavily on recent attempts by states to allow employers to opt-out of workers’ compensation. As a result, on October 5, 2016, the Department of Labor issued a 43-page report over the state of the patchwork of workers’ compensation laws across the country.  Click here to continue reading this article


Cases You Should Know

Cases You Should Know
Where’s the Mistake: In Defrece v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), Claimant appealed an ICAO order which affirmed the ALJ’s order denying his request to reopen his claim. The claim was closed on an FAL, when Respondents filed an Application for Hearing regarding overpayments. Claimant filed a Response petitioning to reopen his claim on an alleged mistake in the employer’s AWW calculation. Requests to reopen based on mistake of law require a two-step analysis: first, the ALJ must determine whether a mistake was made; and second, if there was a mistake, the ALJ must assess whether that mistake justifies reopening a closed claim. Claimant’s argument was that the ALJ erred when he found that Respondent’s calculation of the AWW was not the kind of mistake for which the issue of AWW could be reopened. The Court upheld the ICAO’s ruling to uphold the ALJ’s order that no mistake had occurred in calculation of Claimant’s AWW. Moral of the Story: Since an ALJ has wide discretion regarding the method of AWW calculation, mere disagreement with the ALJ’s method does not constitute a mistake and is not a basis for reopening.

 

A heavy burden to bear: In Salgado v. The Home Depot, W.C. No. 4-975-288 (August 23, 2016), the ICAO overturned the ALJ’s denial of TTD benefits on the basis that Respondents had failed to carry their burden of proof that Claimant was responsible for his termination. ICAO held that Claimant was not required to establish work-related wage loss prior to termination in order to request temporary disability benefits after termination. Rather Respondents had the burden to prove that Claimant’s wage loss after termination was not related to the compensable injury, pursuant to C.R.S. § 8-42-105(4)(a). ICAO concurred with the ALJ’s findings that Claimant had work restrictions prior to termination which established work-related disability. This shifted the burden to Respondents to establish that Claimant’s responsibility for termination was the cause of his consequent wage loss. Moral of the Story: If Claimant has work restrictions at the time of termination, it is Respondents’ burden to show Claimant was at fault for termination in order to terminate TTD.

 

The Rules Were Meant to Be Broken: In Anthony Lucero v. Wyndham Hotel & Resorts and Zurich North America Insurance, W.C. 40705-926-02 (ICAO August 30, 2016), Claimant requested additional time to file a Petition to Review an Order Granting Respondents’ Motion for Summary Judgment. Claimant subsequently filed his Petition to Review outside of the time frame set forth in the Order he sought to appeal, but within the extension of time he requested, and his Petition to Review was denied as being untimely filed. The Court found that a rule and a statute conflicted as to whether the Claimant was permitted to request an extension of time to file a Petition to Review, and that the statute did not allow for an extension of time. Despite this, the Court invoked the “unique circumstances” exception to find that since Claimant had complied with the conflicting Court Rule allowing for an extension of time to file a Petition to Review, Claimant’s Petition to Review was timely filed and could be addressed by the court. Moral of the Story: There can be exceptions to rules that are invoked in the interests of fairness.

Page 1 of 41234