The Legal Buzz – Lee & Brown Newsletter and Case Law Update June 2018

Lee and Brown LLC Partners and Certifications

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

Lee and Brown Denver AttorneysFollow us on LinkedIn

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In the News

Member Karen Gail Treece attended the 2018 CLM & Business Insurance Workers Compensation Conference in Chicago, May 22-24, 2018. The event offered unprecedented knowledge access to leaders in the Workers Compensation profession. The conference focused on national trends. Ms. Treece enjoyed seeing and speaking to industry leaders from across the country.

Noteworthy Cases

Joseph Gren Denver AttorneyIn Akerley v. Sherwin Williams Co. & Indemnity Insurance Company of North America W.C. No. 5-016-101-03, Claimant sought an increase to his average weekly wage (AWW) based on concurrent employment as a hide tanner. Through extensive factual investigation, it was determined that Claimant was terminated two weeks before the industrial injury. The same investigation revealed that Claimant did not disclose a business he owned and operated on the date of injury. Coincidentally, Claimant’s non-disclosed business specialized in the same services he alleged as the basis for concurrent employment. At hearing, Member Joseph Gren and Associate Matthew Fowls cross-examined the Claimant regarding his non-disclosed business. The ALJ discredited the testimony of the Claimant denying an increase to his AWW.

 Of Counsel Frank Cavanaugh and Associate Jessica Melson successfully defended Claimant’s appeal in Romero v. Winn Residential Partnership, W.C. No. 4-978-676. Claimant fell approximately three feet from a ladder while repairing a garage door. Claimant initially reported and treated for cervical spine and left shoulder symptoms. Claimant’s cervical spine symptoms resolved and treatment focused on the left shoulder. Claimant underwent a DIME with Dr. Tyler, who opined Claimant’s cervical spine was not causally related to the fall and placed him at MMI with an advisory 18% upper extremity impairment. Claimant sought to overcome the DIME regarding causation of the cervical spine. The ALJ determined that, while Dr. Tyler found Claimant injured his cervical spine in the fall, he opined Claimant’s current cervical spine complaints and pathology were not related to the industrial incident. The ALJ found Claimant failed to overcome the DIME. Claimant appealed. The Panel noted it was for the ALJ to resolve inconsistencies and conflicting opinions of the DIME physician. Claimant essentially requested ICAO to reweigh the evidence, but the ICAO affirmed the decision of the ALJ.

 


Joshua Brown Attorney Denver#MeToo and EPLI Policies

In response to the #MeToo movement, companies have begun taking an increased role to prevent and police sexual harassment in the workplace. Protecting employees from any form of sexual misconduct or harassment should undoubtedly be the primary goal of these efforts. However, any proactive measures cannot guarantee that no incidents will occur, and companies’ future interests will be at risk. Consequently, counsel and risk managers should look to employment practices liability insurance (EPLI) which can provide coverage and pay for the defense of such claims. EPLI policies provide coverage for many types of the claims employees make against their employers that are not covered by workers compensation policies, including sexual harassment. Continue reading the article.

 


Cases You Should Know

No fake news here: While working as a banker, a man approached Claimant and handed her a note demanding $10,000. The man was provided the money and left. He was arrested several weeks later. Claimant initiated psychological treatment. After the robbery, Claimant had a miscarriage and was in a motor vehicle accident. Claimant sought workers’ compensation benefits based on mental injury. Three of Claimant’s medical providers opined she suffered from PTSD as a result of the robbery. Respondents’ IME physician testified Claimant had an exaggerated response to the robbery and her preexisting history was more likely the result of the mental condition. The ALJ found Claimant embellished facts of the robbery. Nonetheless, the ALJ found the opinions of three of Claimant’s treating providers more persuasive than Respondents’ IME opinions and held she suffered a mental impairment as a result of the robbery. Respondents appealed. Respondents argued Claimant failed to meet the requirements of C.R.S. §8-41-301(2)(a) that the “incident would evoke significant symptoms of distress in a worker in similar circumstances.” Respondents asserted Claimant exaggerated the facts of the robbery and her symptoms were more likely related to an intervening motor vehicle accident and miscarriage. The Panel affirmed. The ALJ’s finding of facts must be upheld if supported by substantial evidence. The record showed the ALJ considered the testimony and facts of the case. The ALJ found Claimant’s evidence more credibly and persuasive than Respondents in determining Claimant sustained a compensable injury. Austin v Wells Fargo, W.C. N. 4-973-614 (ICAO April 20, 2018).

 
Moral of the Story: It is very difficult to overcome the factual determination of an ALJ. The best evidence must be presented for the ALJ to consider at hearing because the persuasiveness of evidence may not be reconsidered on Appeal.

 

Tomatoe, Tomato. You call it medical treatment. I call it maintenance care: In Hughes v MV Transportation, Inc., W.C. No. 5-015-855, (ICAO April 12, 2018), Claimant sustained a compensable injury to his neck. Claimant was placed at MMI with impairment. Respondents filed an FAL. Afterwards, Claimant was recommended cervical surgery. Respondents contested the surgery arguing it did not qualify as maintenance care and that Claimant instead had the burden to prove reopening. The ALJ found that the ATP continued to opine Claimant remained at MMI after the surgery was recommended. The ALJ found the surgery qualified as maintenance treatment. Respondents appealed. The Panel noted the maintenance care is medical treatment necessary to maintain MMI or prevent further deterioration. C.R.S. § 8-43-203(3)(b); Grover v. ICAO, 759 P.2d 609 (Colo. App. 1995). This excludes treatment that will “cure” or significantly improve the condition. C.R.S. 8-40-201(11.5). Respondents cited to one opinion of the surgeon that the surgery “would improve his radicular pain” as evidence the surgery was not maintenance care. The Panel affirmed the ALJ finding his opinions were supported by substantial evidence.
 
Moral of the story: Medical maintenance treatment is to maintain MMI and does not include treatment to cure or relieve a condition.

 
The ALJ can only change the future, not the past: In this case, Claimant suffered an industrial shoulder injury. He was recommended for surgery, but he failed to present to the scheduled surgery three times. Respondents requested termination of Claimant’s TTD benefits due to his injurious practice of refusing to submit to surgery pursuant to C.R.S. § 8-43-404(3). The ALJ ordered termination of Claimant’s TTD benefits as of the date of the Order until he underwent surgery. Respondents appealed seeking termination of TTD benefits as of the date the first surgery was scheduled. ICAO affirmed because when a claim is admitted, an Order may only grant prospective relief. Ferguson v. Lane Electric, Inc., W.C, No. 5-030-198 (ICAO May 4, 2018).
 
Moral of the Story: An Order terminating benefits will be from the date of the Order as it can only grant prospective relief.

 

Til death do us part: In Ortega v. Blue Star Holding Co. & Fidelity & Guaranty Insurance, the Respondents sought to terminate death benefits to the Claimant’s widow using the theory that she entered a common law marriage with another man. The Respondents looked to the unique facts of the widow’s relationship with the alleged common law husband to meet their burden to prove the existence of the common law marriage. These facts included that the two had a child together, lived in the same house, and shared in many functions of daily life. The ALJ disagreed with the Respondents, and the Respondents appealed. The ICAO affirmed the ALJ’s decision, underscoring the high burden that a party must meet to disturb the factual findings of an ALJ.
 
Moral of the Story: Terminating death benefits using a common law theory of remarriage is difficult, and very reliant on the unique facts of each case.

 

Metal matters: The Claimant in Ramirez-Chaves v. In-Out Oil Field Services & Farmington Casualty Company injured her low back while lifting a piece of metal during her work as a welder. The matter proceeded to a DIME, wherein Claimant was found at MMI with permanent impairment. Despite placement at MMI, the DIME physician opined that the Claimant required a EMG. Claimant filed an application for hearing to overcome the DIME’s findings with respect to MMI, and succeeded by arguing the EMG was needed before a determination of MMI could be appropriate. Respondents appealed, arguing that necessity of an EMG study is not inconsistent with a finding of MMI. ICAO affirmed the ALJ.
 

Moral of the story: Where an ATP or DIME physician opines that further medical services are indicated, any finding of MMI faces serious jeopardy.

#MeToo and EPLI Policies

In response to the #MeToo movement, companies have begun taking an increased role to prevent and police sexual harassment in the workplace. Protecting employees from any form of sexual misconduct or harassment should undoubtedly be the primary goal of these efforts. However, any proactive measures cannot guarantee that no incidents will occur, and companies’ future interests will be at risk.  Consequently, counsel and risk managers should look to employment practices liability insurance (EPLI) which can provide coverage and pay for the defense of such claims. EPLI policies provide coverage for many types of the claims employees make against their employers that are not covered by workers compensation policies, including sexual harassment.

 

What is an EPLI Policy?

EPLI policies are generally sold on a claims-made basis, which means claims made against your company during the policy period are covered. There are some wrinkles to consider, however, if one is buying such a policy for the first time, or perhaps changing carriers for better terms or coverage. Most claims-made EPLI policies have a retroactive date, which provides that claims made during the policy period based on acts that took place before the “retro date” are not covered. When buying coverage new, negotiate for the earliest retro date you can get, taking into consideration relevant statutes of limitation. When switching carriers, one option sometimes available is to purchase “tail coverage” under the expiring policy that extends it to cover claims in the future, as long as the underlying acts took place before the policy expired. This can allow the new policy to have a retro date simultaneous with the policy inception. Also, consider giving notice under the expiring policy for potential claims that have not yet been made. Some policies require this. Others permit it at the policyholder’s discretion. Be careful when answering any questions on a policy application regarding known or potential claims, as this can be a minefield.

 

Coverage Basics

EPLI policies usually cover claims for discrimination on the basis of race, national origin, religion, sex (including pregnancy), age, or disability, including related claims for harassment. Policies commonly exclude claims arising under workers’ compensation laws and policies, and claims under federal labor laws unrelated to discrimination or harassment, such as union-related laws, the Worker Adjustment and Retraining Notification Act, the Fair Labor and Standards Act, the Employment Retirement Income Security Act and COBRA. Policies are not uniform, so read them carefully. Moreover, even if a policy excludes one of the above types of claims, it might be possible to have it added by endorsement.

 

One issue is the extent to which many of the claims purportedly covered under EPLI policies are insurable. Based on public policy, states often place limits on the extent to which intentional acts may be insured, and claims of discrimination or harassment can often include allegations of knowing and intentional acts. Thus, a company should consider carefully when purchasing an EPLI policy which state’s law likely will apply and whether that state has spoken on the public policy.

 

Definition of a “Claim”

A policyholder usually will receive notice of an employment claim in one of four ways:

  • Oral complaint from an employee.
  • Written notice from a claimant.
  • Written notice from an agency such as the Equal Employment Opportunity Commission.
  • Receipt of a lawsuit.

Whether any or all of the above will trigger coverage under a particular policy will depend upon the policy’s “claim” definition. This definition can affect when notice is due, when defense costs are covered, and other secondary but important matters.

Ideally, the definition will include provisions that the demand can be for relief other than monetary damages, including “reinstatement, reemployment or re-engagement.” Such a change does more than effect a change in when coverage is triggered — it can create a much broader substantive coverage grant.

 

Defense Costs and Related Issues

EPLI policies commonly require the insurance company to pay the costs of defending claims. Disputes may arise over whether the insurance company is required to advance defense costs, or reimburse the policyholder after a claim is resolved. Another common issue concerns the allocation of defense costs among covered and uncovered claims. Whether the insurance company may pay only costs associated with covered claims may depend upon the wording of the policy as well as the applicable state law

 

Fraudulent or Malicious Acts Exclusions

Most EPLI policies contain an exclusion for deliberate and seriously wrongful acts. The following example states that the insurance company will not be liable for any claim:

arising out of, based upon, or attributable to the committing in fact of any criminal or deliberate fraudulent act.

This exclusion seeks to preclude coverage for fraudulent and criminal acts, and omits an important protection for policyholders. Because so many claims contain such allegations, it is now common for these exclusions to contain an exception that provides that the exclusion applies only “if a judgment or other final adjudication adverse to the Insured establishes such a deliberately fraudulent act or omission.” This clause ensures that a policyholder who faces allegations of fraud will have its defense costs paid, and will only lose coverage if the fraud is proved. Another important exception provides that the criminal or fraudulent act of one policyholder will not be imputed to other policyholders.

 

Conclusion

Although there are many hurdles and prerequisites to securing insurance coverage for sexual harassment, employment discrimination, and other employee claims, a company’s insurance policies are a critical source for financial support against such claims. Should your company be faced with a claim related to its employment practices, immediately notify, in writing, all insurance companies that may possibly provide coverage for that claim. Forward all relevant information regarding the claim to the insurance company. And if the insurance company denies the claim, do not take no for an answer.

 

Acts of Employees that Reduce Compensation

There are a few defenses often overlooked when investigating a workers’ compensation claim and deciding whether to admit liability.  Some of those defenses include safety rule violations, willful misleading of the Employer regarding the claimant’s physical abilities, and intoxication defenses.  These defenses should always be considered as part of a checklist when determining compensability and benefits owed to the claimant.  Each defense can reduce compensation to the claimant by up to 50% and can be taken immediately upon the filing of the initial filing the admission with the Division.  It is important to note the distinctions with each defense as they must be noted in the remarks section of the admission when filing with the Division.

 

Safety Rule Violations

 

Section 8-42-112(1), C.R.S. provides as follows; “The compensation provided for in articles 40 to 47 of this title shall be reduced fifty percent:

(a)  Where injury is caused by the willful failure of the employee to use safety devices provided by the employer;

(b)  Where injury results from the employee’s willful failure to obey any reasonable rule adopted by the employer   for the safety of the employee”

 

The key phrase to keep in mind with regard to safety rule violations and/or safety devices is the use of the word “willful.”  The word has been defined by the Supreme Court as “deliberate intent.”  The claimant must have known the rule communicated by the Employer and deliberately chose not to follow the Rule or use the safety device.  Negligence on the part of the claimant is not enough to allow safety rule violation.  However, intent can be inferred by the ALJ where the facts lead the trier of fact to consider that the claimant knew of the Rule and specifically chose not to follow it.  The burden of proof regarding safety rule violations is always on the Respondents to prove in court.  If successful, the safety rule violation is a 50% reduction that applies to all indemnity throughout the life of the claim.

 

Misleading the Employer regarding the claimant’s physical abilities

 

Section 8-42-112(1)(d), C.R.S. provides as follows; “Where the employee willfully misleads an employer concerning the employee’s physical ability to perform the job, and the employee is subsequently injured on the job as a result of the physical ability about which the employee willfully misled the employer. Notwithstanding any other provisions of articles 40 to 47 of this title, the provisions of this paragraph (d) shall apply in addition to any other penalty that may be imposed under section 8-43-402.”

 

Again, in order for the Employer to take a 50% reduction in benefits pursuant to this statute, the Employer must prove that the claimant willfully mislead the Employer regarding the claimant’s physical abilities to perform the job.  Should proof and documentation exist regarding the claimant’s intent to deceive the Employer, the ALJ can make the inference that the claimant’s actions were deliberate in order to obtain employment with the Employer or seek a position in which the claimant could not perform the job functions.

 

Intoxication defense

 

Given the current state of the law and the legalization of marijuana within Colorado, Respondents must always consider the intoxication defense when analyzing defenses in a claim.  Although marijuana is legal, the Employer still retains the right to prohibit the employee from using marijuana or other controlled substances in the workplace.  Section 8-42-112.5, C.R.S, indicates as follows,

(1) “Non-medical benefits otherwise payable to an injured worker are reduced fifty percent where the injury results from the presence in the worker’s system, during working hours, of controlled substances, as defined in section 18-18-102 (5), C.R.S., that are not medically prescribed or of a blood alcohol level at or above 0.10 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests. A duplicate sample from any test conducted must be preserved and made available to the worker for purposes of a second test to be conducted at the worker’s expense. If the test indicates the presence of such substances or of alcohol at such level, it is presumed that the employee was intoxicated and that the injury was due to the intoxication. This presumption may be overcome by clear and convincing evidence.

(2)  As used in this section, “non-medical benefits” means all benefits provided for in articles 40 to 47 of this title other than disbursements for medical, surgical, nursing, and hospital services, apparatus, and supplies”

 

The key aspects of the statute to remember are “during working hours” and “clear and convincing evidence.”  These two aspects of the statute may prove problematic for both the claimant and Respondents in court.  First, it is Respondents’ burden to demonstrate that the claimant was intoxicated during working hours.  Most commonly, drug testing aids the Employer in confirming this first aspect of the statute.  Whether it is alcohol, marijuana, or otherwise, the drug test administered shortly after the alleged injury can help aid the Employer in determining the level of intoxication that is present.  Next comes the shifting burden to the claimant to demonstrate by clear and convincing evidence that he/she was not intoxicated at the time of the incident.  This is the highest burden to prove in workers’ compensation claims and usually comes with little success on the claimant’s part at hearing.  Similar to the other acts reducing compensation, up to 50% can be taken against indemnity benefits for the life of the claim.

 

Keeping these defenses in mind will help reduce exposure for Respondents in an effective way.  Should the defenses be challenged, it is important to remember that each one involves specific findings of fact that must be made by an ALJ at hearing.  Should you have any questions regarding each of the defenses, please contact any of the attorneys at Lee & Brown for guidance prior to filing the initial admission on the claim.

 

The Legal Buzz – Lee & Brown Newsletter and Case Law Update May 2018

Lee and Brown LLC Partners and Certifications

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

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable


In the News

Lee & Brown was this year’s Hospitality Sponsor and well represented at the Annual Professionals in Workers’ Compensation Awards Banquet on April 27th. Members Joshua Brown and Joseph Gren were accompanied by Of Counsel Brad Hansen and Office Manager Denise Iannotti as the PWC of Colorado honored those who contribute outstanding efforts in the workers’ compensation community. The PWC is a diverse non-profit organization that provides educational programs, seminars and networking opportunities for professionals involved in the Colorado Workers’ Compensation system, bringing together medical, legal, insurance and human resources professionals, as well as service providers. Member Joshua Brown humbly and graciously accepted Lee & Brown’s award for Outstanding Sponsor. The PWC also granted scholarships to four very deserving high school seniors planning to major in a business, medical or legal emphasized degree in a college or university this fall.

 


Noteworthy Cases

John Abraham Denver AttorneyIn Krein v. Walmart Associates Incorporated d/b/a Sam’s Club, Member John Abraham, successfully defended a full contest claim. Claimant alleged she sustained an aggravation of her chronic and pre-existing thoracic spine condition while moving a soda “BIB” on July 12, 2017. Claimant testified on her own behalf and had an expert witness conduct an IME at her request. Claimant’s IME had indicated that there was an aggravation of the underlying condition based on the location of Claimant’s pain. Mr. Abraham successfully demonstrated through substantial prior medical records that Claimant had inconsistencies in both her hearing testimony and in the information she provided to her physicians, including her IME physician. Respondents’ medical expert noted that Claimant denied any prior thoracic spine pain complaints even though her medical records had numerous notations in which she was treated for chronic thoracic spine complaints and was on several narcotic medications for her ongoing pain. The ALJ found that Claimant failed to prove she sustained a compensable injury. Specifically, the ALJ credited Respondents’ medical expert and the opinion of Claimant’s treating physician over the opinion of Claimant’s expert in finding that Claimant’s pain complaints represented a natural progression of her underlying degenerative spine condition, rather than an aggravation. The claim was denied and dismissed.

 

Of Counsel M. Frances McCracken successfully challenged Claimant’s request for maintenance medical treatment in Dunfee v. Best Buy Corporate. Claimant suffered an admitted injury in October 2015 while installing a retail display and was subsequently diagnosed with a mild traumatic brain injury/concussion. Respondents filed a FAL on December 6, 2017. Claimant testified that after MMI, he continued to have severe headaches and issues with short-term memory. Ms. McCracken presented evidence from Claimant’s medical records along with the testimony of the DIME physician in support of Respondents’ position that maintenance medical treatment was not reasonable or necessary. The ALJ found that Claimant failed to demonstrate that it was more likely than not that the recommended post-MMI treatment, consisting of physical therapy and injections, would prevent further deterioration of his physical condition. In fact, the ALJ found that it was more likely that the recommended medical treatment would have an effect of worsening the Claimant’s reported conditions. Claimant’s claim for maintenance medical treatment was denied and dismissed.

In Cybert v. Town of Castle Rock, Of Counsel Bradley J. Hansen successfully defended a full contest claim for Claimant’s assertion that he sustained a new back injury in the course and scope of his employment. Mr. Hansen elicited testimony from Respondents’ medical expert and entered medical records into evidence to demonstrate that Claimant was treating for his lower back prior to the alleged incident of October 9, 2016. Mr. Hansen emphasized that there was evidence that Claimant’s complaints were a continuation of previous back claims due to Claimant’s chronic degenerative back condition and prior L4-L5 surgery. The ALJ found that Claimant’s reported mechanism of injury on October 9, 2016 did not aggravate the underlying back condition and that the alleged incident did not accelerate Claimant’s need for medical treatment. The ALJ found that Claimant was already treating for the same condition prior to the alleged incident and the evidence also established that Claimant was being considered for surgery on his lower back prior to the alleged work incident in October 2016. The ALJ therefore found that Claimant failed to meet his burden of proof that he suffered a new compensable injury.

In Suomie v. Spectrum Retirement Communities, Mr. Hansen was also successful in challenging Claimant’s request for a DIME, after the filing of the FAL and Claimant’s objection to it. There was no lost time or PPD paid in the claim, so Respondents’ took the position that Claimant did not have the statutory right to a DIME, based on recent case law. See; Harmon-Bergstedt v. Loofbourrow. A Prehearing Administrative Law Judge (PALJ) granted Respondents’ Motion to Strike the DIME Application and denied Claimant’s request for a DIME without prejudice. Claimant filed an Application for Hearing to appeal the PALJ’s Order. At hearing, Mr. Hansen successfully argued that since no indemnity had been paid on the claim, Claimant did not meet the statutory definition of MMI based on the holding in Harmon-Bergstedt v.Loofbourrow. He further argued that Claimant had no statutory right to a DIME under the Workers’ Compensation Act. The ALJ ruled in Respondents’ favor by affirming the PALJ’s Order denying Claimant’s request for a DIME. The claim is being appealed by Claimant, so we will keep providing updates on the evolution of this important claim where there is no lost time and no awarded PPD.

 

Associate Matt Boatwright successfully defended against Claimant’s appeal to the Industrial Claim Appeals Office (ICAO) of the denial of his claim in Eastman v. United Parcel Service. Claimant’s claim for compensation for an alleged shoulder injury was denied by the ALJ at hearing. Claimant pursued an appeal through ICAO, which affirmed the ALJ’s Order on the basis that it was supported by substantial evidence in the record.

 


Acts of Employees that Reduce Compensation

There are a few defenses often overlooked when investigating a workers’ compensation claim and deciding whether to admit liability. Some of those defenses include safety rule violations, willful misleading of the employer regarding the claimant’s physical abilities, and intoxication defenses. These defenses should always be considered as part of a checklist when determining compensability and benefits owed to the claimant. Each defense can reduce compensation to the claimant by up to 50% and can be taken immediately upon initial filing of the admission with the Division. It is important to note the distinctions with each defense as they must be noted in the remarks section of the admission when filing with the Division. Continue reading the article.

 


Cases You Should Know

 

Career Opportunities – Conditional Offers of Modified Employment: In Cruz v. ICAO, 17CA1469 (March 22, 2018)(nsfp), the Colorado Court of Appeals addressed the topic of offers of modified employment. Claimant was receiving TTD benefits when the employer sent a letter to Claimant advising of a proposed modified job offer within Claimant’s modified work restrictions. The offer letter indicated that the start date was tentative, dependent on Claimant’s completion of an application and background check. Claimant did not complete the background check or commence with employment. As such, Respondents terminated Claimant’s TTD benefits. Claimant alleged penalties for improper termination of TTD benefits. Claimant argued that the employer improperly terminated his TTD benefits after Claimant failed to appear for modified work that the employer offered to him. Claimant relied on contractual law arguing that the employer’s modified job offer was not a valid offer because it was conditional on Claimant’s background check. The ALJ found, and the Industrial Claim Appeals Office and the Court of Appeals agreed, that the employer’s modified employment offer fulfilled the necessary elements of an offer. The fact that the offer of employment was conditional upon Claimant successfully completing a background check and application did not invalidate the offer of modified employment.

 

Moral of the story: A valid modified job offer can be a conditional offer as long as it complies with Rule 6 and meets the statutory requirements of a valid offer of modified employment.

 

There’s No Benefit – Nothing Special About “Going to and Coming From Work”: In LaGasse v. ICAO, 17CA1438 (March 29, 2018)(nsfp), a widow sought death benefits after her husband, a derrick hand for the oil-driller employer, died in a single-car automobile accident after leaving work. Claimant sought appeal for death benefits. On appeal, Respondents argued the longstanding “going to and coming from” rule applied, which negated entitlement to benefits. Claimant argued that the special circumstances exception rule applied in this matter to justify the granting of death benefits. The law is clear that injuries or death that occur when an employee is traveling to or from his / her job are not compensable. Exceptions to the “going to and coming from” rule have been set forth in case law. Specifically, Claimant argued that the exception applied in cases where travel is a substantial part of the service to the employer. Case law notes that examples of providing substantial service or benefit to the employer include: when a task is assigned to an employee; when the travel is by the employer’s implied or express request or confers a benefit on the employer beyond the sole fact of an employee’s arrival at work; and when travel is singled out for special treatment as an inducement into employment. The Colorado Court of Appeals applied the law as written. Under the facts and circumstances of this particular claim, the “going to and from” rule applied, there were no special exceptions, therefore this was not a work-related accident. The claim for death benefits was denied.
Moral of the story: Generally speaking, injuries arising when an employee is traveling to and from work are not compensable, unless there is an incidental benefit to the employer. This is a matter of fact for an ALJ to decide.
Time is Tight –Statute of Limitations Bars Claimant’s Claim: In Barbara McGlothlen v. Karman, Inc., W.C. No. 4-937-396-01 (April 2, 2018), pro se Claimant sought review of an ALJ’s Order which granted Respondents’ Motion for Summary Judgment and dismissed, with prejudice, Claimant’s claim for benefits. The employer filed a First Report of Injury on December 4, 2013. The insurer filed a Notice of Contest on December 24, 2013. DOWC notified Claimant December 26, 2013. Claimant filed an Application for Hearing on September 6, 2017, on compensability, among other issues. Respondents filed a Motion for Summary Judgment, contending that the Claimant had not filed a claim for compensation within the two-year statutory period. The ALJ granted the Motion, based on the Claimant’s failure to file a workers’ compensation claim within two years pursuant to §8-43-103(2), C.R.S, which states that the right to workers’ compensation is barred unless a formal claim is filed within two years of the injury, or three years if a reasonable excuse exists. Claimant argued on appeal that the employer fraudulently filed a First Report of Injury and provided argument supporting her claim for compensability. ICAO noted that the First Report of Injury was different than a Workers’ Claim for Compensation and noted that the statute of limitations begins when a Claimant knows, or should have known, the nature and seriousness of the injury. ICAO affirmed the ALJ’s Order.
Moral of the story: Although the employer is required by statute to timely file the First Report of Injury, Claimant must take some action and file a claim within two years of the injury to preserve their right to pursue benefits.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update April 2018

Lee and Brown LLC Partners and Certifications

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

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable

 


Noteworthy Cases

In Lagasse v. Xtreme Drilling and Coil Service and New Hampshire Insurance Company, Court of Appeals No. 17CA1438, Of Counsel Bradley J. Hansen successfully defended against Claimant’s appeal to the Court of Appeals to set aside the ICAO decision affirming the denial and dismissal of her claim for death benefits. Claimant’s husband died while driving home after working his shift on an oil rig in northeast Colorado. At hearing, the ALJ found that as Decedent’s death occurred while driving home, it would fall under the “going to and from” rule, which does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. Claimant alleged an exception to the rule, relying on Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999), arguing that the travel conferred a benefit to the employer beyond the sole fact of the Decedent’s arrival at work since the oil rigs occasionally moved to new locations and therefore travel was implicitly contemplated by the employment agreement. Despite Claimant’s contention, the ALJ rejected the argument that special circumstances existed outside of Decedent’s arrival at work and denied Claimant’s claim for death benefits. ICAO affirmed the ALJ’s Order.

On appeal to the Court of Appeals, Claimant argued that ICAO erred in affirming the ALJ’s Order, contending that the ALJ made Findings of Fact that contradicted how he applied them to the law. The Court of Appeals rejected Claimant’s argument, finding substantial evidence supporting the Findings of Fact by the ALJ. The Court noted, “The mere fact that the ALJ made some findings that could have supported Claimant’s position does not alter the fact that, on balance, the ALJ determined the facts ultimately weighed in the employer’s favor. These findings confirmed the ALJ carefully weighed all the evidence presented to him.” All three judges on the Panel concurred in affirming ICAO’s Order.

 

Of Counsel M. Frances McCracken challenged a request for a spinal cord stimulator trial and ongoing prescriptions under maintenance medical benefits in Turner v. Sam’s Club, Inc., W.C. No. 4-799-129. Claimant sustained an admitted industrial injury to his right hip on May 25, 2009 and underwent various forms of conservative treatment and diagnostic procedures. On February 27, 2012, Respondents filed a FAL placing Claimant at MMI as of July 12, 2011, admitting for reasonably necessary and related post-MMI medical benefits. Claimant’s treating physician requested authorization for a spinal cord stimulator and ongoing prescription medications under maintenance care. The ALJ determined Claimant failed to prove the DRG spinal cord stimulator/IPG reprogramming was reasonable and necessary to cure and relieve the effects of the May 25, 2009 industrial injury. The ALJ credited the opinions of Respondents’ expert that Claimant did not meet the Medical Treatment Guidelines (MTGs) criteria for neurostimulation, as Claimant’s pain generator was unclear and there were strong psychological factors. The ALJ noted while Claimant’s treating physician had repeatedly recommended neurostimulation throughout Claimant’s claim, he had not provided any analysis of the criteria for implantation under the MTGs, or any reason to deviate from the MTGs. The ALJ further concluded that Claimant failed to establish, by a preponderance of the evidence, that the ongoing prescription for Celebrex was reasonable and necessary.

Associate Matt Boatwright successfully contested a request for a three-level cervical fusion surgery in Toombs v. Pepsi Beverages Company f/k/a Pepsi Bottling Group and ACE American Insurance. Respondents admitted for a shoulder injury suffered as a result of lifting. The surgeon’s initial request was denied pursuant to a Rule 16 review conducted by Respondents’ expert. The requesting surgeon issued a rebuttal opinion and Respondents took the matter to hearing. The ALJ found that Respondents’ expert testified credibly and persuasively that the cervical condition would not have been aggravated or accelerated by the admitted work injury, notwithstanding the presence of cervical complaints in records documenting the initial injury. The ALJ denied the requested procedure as not reasonable, necessary, or related to the work injury.

 


Injuries Resulting from Workplace Violence — When Are They Compensable?

Under the Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable. An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions. An injury arises “out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract. Continue reading the article.

 

 


Cases You Should Know

Too little, “Two” late? In Galagar v. E2 Optics, W.C. No. 5-016-677 (March 6, 2018), Claimant sought review of a corrected Order, dated October 19, 2017, that granted Respondents’ Motion for Summary Judgement and dismissed the claim for benefits. Respondents filed a Motion for Summary Judgement on October 12, 2017. The Motion asserted Claimant sustained an alleged workplace injury in August of 2015. Claimant subsequently filed a claim for workers compensation on April 29, 2016. An Application for Hearing was later filed on August 23, 2017. Respondents asserted the two-year statute of limitations specified in C.R.S. § 8-43-103(2). The ALJ issued an Order granting summary judgement and dismissing the claim. The ICAO reversed and set aside the Order. The ICAO stated that while C.R.S. § 8-43-103(2) provides a two-year period to file a claim for compensation, the section does not provide a restriction upon an Application for Hearing.

Moral of the Story: Injured workers have 2 years to file a claim for workers’ compensation following an injury under C.R.S. § 8-43-103(2). The two-year period under this statute may not apply to the filling of an Application for Hearing, although the law is unclear, as this is only ICAO authority.

 

Admission? What Admission? In Yeutter v CBW Automation, Inc., W.C. 4-895-940 (February 26, 2018), Claimant was struck by a machine on part of the face, ear, and shoulder. Claimant returned to work 2 weeks after the injury. He was later taken off work and diagnosed with work-related narcolepsy. Claimant was placed at MMI. The DIME physician agreed the narcolepsy was work related. Respondents filed a FAL. Claimant pursued PTD benefits alleging he was unable to work due to the narcolepsy. The ALJ determined the narcolepsy was not work related and denied medical benefits to treat narcolepsy. The ALJ also found, even if narcolepsy was related, Claimant could return to work and denied PTD benefits. Claimant appealed and argued the DIME findings regarding relatedness of the narcolepsy were binding because Respondents did not dispute the DIME. ICAO upheld the determination, denying PTD and medical maintenance benefits were supported by substantial evidence. ICAO disagreed Respondents were bound by the uncontested DIME opinion. The Panel noted the presumptive effect of a DIME opinion only applies to MMI and impairment. Because Respondents were challenging PTD benefits, the heightened burden of proof to overcome the DIME required by C.R.S. § 8-42-107(8) did not apply. Claimant failed to prove entitlement to PTD benefits and ICAO upheld the ALJ’s decision. However, the dissent found it was unfair to permit Respondents to accept Claimant’s narcolepsy for impairment, but challenge it for PTD and medical maintenance benefits.

Moral of the Story: Causation may be litigated in determining PTD and future medical benefits, even though a carrier had accepted a rating for that body part.

 

Watch where you are going: In Rinehart v. Employbridge Holding Company, W.C. 5-038-309 (February 27, 2018), Claimant sought review of an Order that determined the compensable injury was limited to a laceration on the top of her head and denied temporary indemnity benefits and penalties. Claimant sustained an open wound head injury after walking into a backhoe. Claimant initially treated for a laceration on her forehead. Her complaints later grew to include headaches, neck pain, and dizziness. The ALJ found Claimant’s compensable injury was limited to a laceration to her forehead. Crediting the opinions of Respondents’ expert, the ALJ was not persuaded Claimant sustained another injury due to the January 5, 2017 incident. Claimant’s primary argument was that the ALJ’s opinion was not supported by substantial evidence, as 8t different medical professionals opined Claimant sustained a concussion. The ICAO panel held that the ALJ’s opinion was supported by the opinions of Respondents’ expert. While there was conflicting evidence, the ALJ made reasonable inferences to resolve the conflicting evidence to which the Panel may not disturb. C.R.S. § 8-43-301(8). The ICAO upheld the ALJ’s opinion that Claimant’s compensable injury was limited to a laceration on the top of her head.

Moral of the Story: The ALJ’s opinion regarding compensability will be upheld if supported by substantial evidence, regardless of whether there is conflicting evidence.

 

Checkmate. ALJ’s Opinion Inconsequential Without the DIME: Claimant sustained a work-related low back injury in Portillo v. ICAO, 17CA0895 (March 8, 2018)(nsfp). There was a dispute whether the doctor was an ATP. At Claimant’s initial visit with the doctor, Claimant signed an IME disclosure form. The doctor continued seeing Claimant and placed him at MMI. Respondents filed a FAL. Claimant filed an Application for Hearing to strike the FAL and continue medical treatment. Claimant also requested a DIME. The parties presented to hearing before the DIME took place. Respondents argued the ALJ lacked jurisdiction because the DIME had not yet taken place. Claimant argued the doctor was not an ATP; therefore, his MMI determination was ineffective, the FAL was invalid, and a DIME was not ripe. The ALJ granted Claimant’s request for medical treatment; however, the ALJ did not provide a factual analysis or opinion as to whether the doctor was an ATP. Therefore, ICAO held Respondents could file a FAL based on the doctor’s determination. A DIME was a prerequisite to any hearing concerning the validity of an ATP finding of MMI. Thus, the ALJ lacked jurisdiction without a DIME.

Moral of the Story: Once a DIME is requested, it must take place before a hearing can proceed regarding MMI or impairment.

 

ICAO Review of ALJ DIME and Grover Orders, “Exceedingly Narrow”: In Veronica Kehler v. Labor ETC., Inc., W.C. No. 5-000-017-01 (February 12, 2018), the pro se Claimant sought review of an Order determining the DIME physician’s opinions on permanent impairment and maintenance medical benefits were not overcome. Claimant sustained an admitted lumbar strain. After extensive conservative treatment, Claimant was placed at MMI and provided a 20% whole person impairment of the lumbar spine. A DIME physician found Claimant’s presentation consistent with the assessment of malingering and that the permanent impairment range of motion loss, restrictions, and additional maintenance care were not appropriate. A subsequent Respondent IME agreed with the DIME physician’s assessment that the impairment rating, activity restrictions, and maintenance care were not appropriate. The DIME physician’s opinion on permanent impairment is binding unless overcome by “clear and convincing evidence”. Section 8-42-107(8)(c), C.R.S. The ALJ determined that the Claimant failed to overcome the DIME physician’s impairment rating or prove entitlement to maintenance medical benefits. ICAO upheld the ALJ’s findings as supported by substantial evidence.

Moral of the Story: The ALJ’s findings regarding a DIME physician’s medical impairment rating and award of maintenance medical benefits will be upheld if supported by substantial evidence.

 

ALJ’s Fact-Finding Reigns Supreme: These next 2 summaries involve Maria De La Luz Saenz v. Tagawa Greenhouse Enterprises, LLC, W.C. Nos. 4-972-238-02 & 5-112-306-01 (August 29, 2017). In the first claim, Claimant sought review of an Order that denied and dismissed her claim and determined that Respondents overcame the DIME physician’s opinion. Claimant alleged a work injury to her left knee on August 18, 2014, when she misjudged the final rung on a ladder and fell onto both knees. Although Claimant notified her supervisor of the incident, she did not report an injury and declined medical treatment. Claimant initially sought medical treatment on December 26, 2014, stating that the knee pain began “three days ago” and failing to mention the August 18, 2014 work incident. Claimant told co-workers she “hurt her knee at home”. Claimant was referred to a knee surgeon who diagnosed Claimant with degenerative arthritis in her left knee and discussed the possibility of a total left knee arthroplasty. The ALJ determined that Claimant failed to prove she sustained a compensable knee injury.

The subject of W.C. No. 5-112-306-01 was the Claimant’s admitted left knee injury on April 8, 2016. Claimant was diagnosed with bilateral knee contusions and prescribed conservative treatment. A subsequent MRI showed a torn medial meniscus. A knee arthroscopy and debridement was recommended. Another doctor performed a Respondent IME that determined Claimant’s left knee complaints were caused by advanced chronic degenerative and pre-existing tri-compartmental osteoarthritis and there was no evidence of worsening or aggravation related to the April 8, 2016 knee injury. The surgical request was denied. The doctor placed Claimant at MMI on August 15, 2016 and provided Claimant no permanent impairment or maintenance medical benefits. In a DIME, the physician concluded that Claimant’s left knee problems were related to the work injury and that she required surgery. Respondents sought to overcome the DIME. The ALJ determined that Respondents produced clear and convincing evidence to overcome the DIME. ICAO affirmed the ALJ’s Order.

Moral of the Story: The ALJ’s assessments on credibility, weight, and inferences drawn from evidence regarding compensability and medical opinion testimony are paramount.

Injuries Resulting from Workplace Violence — When Are They Compensable?

We have all heard the grim news; a school in Parkland, a concert in Las Vegas, a nightclub in Orlando, a church in Charleston, a movie theater in Aurora.  The scenes have become far too common.  While we may think of the scenes of these places as serving a specific function, such as education, the location of each of these atrocities was also a workplace, making these acts a form of workplace violence.

 

While large-scale violent attacks grab the headlines, a Bureau of Justice Statistics Study found that 80 percent of workplace violence is non-life-threatening, verbal or physical assault.  http://www.bjs.gov/content/pub/press/wv09pr.cfm.   The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) defines “workplace violence” broadly, as “violence or the threat of violence against workers”.  It can occur at, or outside, the workplace and can range from verbal threats and abuse to physical assault and homicide. However it manifests, workplace violence is a growing concern for employers and employees alike.  OSHA estimates some 2 million American workers are victims of workplace violence each year.  https://www.osha.gov/OSHDoc/data_General_Facts-workplace-violence.pdf.  Co-worker altercations, domestic situations brought to the workplace, and customer retaliation are all situations falling under OSHA’s broad definition of workplace violence. All could lead to compensable workers’ compensation claims, significant injuries, including death, and the associated financial loss.   But not all incidents of workplace violence causing injury result in a compensable claim.

 

Under Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable.  An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions.  An injury “arises out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract.

 

The Colorado Supreme Court has determined injuries which result from workplace violence are divided into three categories of causation, some of which are compensable, some not. The first category is assaults that have an inherent connection to the employment because of “enforced contacts” which result from the duties of the job. This includes assaults originating in arguments over work performance, work equipment, delivery of a paycheck or termination from work.

 

The second category is assaults which result from a “neutral force”.  A “neutral force” is one that is neither particular to the claimant nor the employment. This type of assault has been analyzed under the “positional risk” or “but for” test and is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks.

 

The third category is assaults which are the result of a private dispute which the parties import to the work place. (E.g., Claimants shot by a co-worker who believed that the claimants had made obscene calls to the co-worker’s spouse). This category has been expanded to include assaults where the victim was specifically chosen or targeted.

 

Injuries from workplace violence resulting from “enforced contacts”, specifically resulting from the claimant’s job duties are compensable. However, the issue of whether the assault resulted from the “duties of the job” requires a factual determination you may want to present to an Administrative Law Judge.  Assault injuries from a “neutral force”, such as a completely unexplained shooting, are also compensable. In such situations, the Courts consider whether, “but for” the conditions and obligations of employment, the claimant would have been injured.

 

In contrast, injuries caused by a work place assault which results from a private or personal dispute imported to the workplace are not compensable. Thus, where the assault has no inherent connection to employment activities, compensability of the claimant’s injuries depends on whether the claimant was specifically targeted for the assault.

 

When evaluating the compensability of workplace violence claims, the employer should also be mindful of the exclusivity provisions of the Workers’ Compensation Act.  An employer that has complied with the Act is granted immunity from common-law actions for damages, such as pain and suffering, mental distress, loss of enjoyment of life, lost earning capacity, etc., and its employees are limited to the remedies specified in the Act.  If an employee’s injuries result from an assault that is inherently connected to the employment or is attributable to neutral sources that are not personal to the victim or perpetrator, those injuries arise out of the employment for the purposes of workers’ compensation and the employee is barred from bringing a tort claim against his or her employer. However, employee claims are not barred by the Workers’ Compensation exclusivity provisions if the assault originates in matters personal to one or both parties.

 

Have questions? Please contact any of the attorneys at Lee & Brown, LLC.

 

The Legal Buzz – Lee & Brown Newsletter and Case Law Update March 2018

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

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable

 


In the News

Member Katherine Lee was honored by her peers to be named one of the Top 50 Women Super Lawyers in Colorado for 2018.

 

 

 

John Abraham Denver Attorney

Joshua Brown Attorney DenverMembers Joshua Brown and John Abraham attended the Annual NAMWOLF Business Meeting held in San Diego, California, February 24th – 27th. This annual event, held every February, allows NAMWOLF Member Firms to provide greater insight into each Member Law Firm’s experience and capability to handle complex legal matters. The Business Meeting also provides the opportunity to network with NAMWOLF Leadership, such as the Advisory Council and NAMWOLF Board of Directors. Mr. Brown and Mr. Abraham represented the Firm and attended several meetings and social functions promoting the Firm’s diversity and practice areas.

 

 


Victory Lap

Joseph Gren Denver AttorneyIn Foster v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that he sustained a compensable injury to his right upper extremity. Claimant contended that he injured his right upper extremity when his supervisor grabbed his right arm and pulled on his elbow. Claimant provided significant medical evidence to support his position. The ALJ was persuaded by the testimony of Respondents’ medical expert who testified that even if Claimant was grabbed by his coworker, such a mechanism would not have caused a tear of the supinator muscle or any of Claimant’s other symptoms. The ALJ was also persuaded by the testimony of Claimant’s supervisor who credibly testified that she did not pull Claimant’s arm. The ALJ concluded that, based on the objective medical evidence, the credible opinion of Respondents’ medical expert, and the credible testimony of the employer witness, Claimant failed to demonstrate that it was more likely than not he sustained a compensable industrial injury. The ALJ ordered that Claimant’s claim for benefits was denied and dismissed.

 


Frank Cavanaugh Denver Attorney

Frank Cavanaugh Denver AttorneyDIMEs ARE NOT WORTH A DIME and/or ICAO’S DESCENT (VIA DISSENT) INTO MADNESS

On February 26, 2018 Industrial Claim Appeals Office (ICAO) issued an opinion captioned Yeutter v. CBW Automation, Inc. and Pinnacol Assurance, W.C. No. 4-895-940. The decision sparked great interest in the workers’ compensation community and was a primary topic of discussion at the recent Spring Update CLE as well as the latest Case Law Update. The decision raises questions over how causation over different components of an injury can/should be litigated during the progression of a claim. Continue reading the article.

 

Cases You Should Know

Overpayments: Too late to Turn Back; This is the Payback: In Turner v. Chipotle Mexican Grill, W.C. 4-893-631-07 (February 8, 2018), Claimant appealed an Order requiring her to repay $250.00 monthly installments for an overpayment of temporary total disability (TTD) benefits. Respondents had previously obtained an ALJ’s Order noting that they were entitled to recover an overpayment of TTD benefits in the amount of $97,641.12, after a 24-month DIME and surveillance determined Claimant had reached MMI. A second ALJ had determined the terms of the repayment and that was the issue addressed by the Industrial Claim Appeals Office (ICAO). The ICAO Panel affirmed the ALJ’s Order and determined the ALJ had discretion to fashion the remedy for overpayment of TTD benefits. The Panel found the repayment installment plan ordered by the ALJ was fair and reasonable. In their decision, the Panel noted that cases from the Colorado Court of Appeals and the Panel previously held that Respondents may retroactively recover an overpayment of benefits. Furthermore, they noted ALJs are expressly granted authority in §8-43-207(q), C.R.S., to conduct hearings to require repayment of overpayments and that the ALJs schedule for recoupment of an overpayment will not be disturbed absent an abuse of discretion.

Moral of the Story: If an actual overpayment exists, ALJs have broad authority to fashion a remedy for the overpayment of benefits, including the retroactive recoupment of an overpayment.

 

Doughnut mistake the burden of proof! In Gagnon v. Westward Dough Operating Co., W.C. 4-971-646 (February 6, 2018), Claimant injured her shoulder while lifting heavy quantities of dough to make doughnuts. She eventually underwent a DIME, which yielded ambiguous findings on MMI and scheduled permanent impairment. The ALJ resolved the ambiguity favorably toward Respondents after considering new evidence. In resolving the ambiguity, the ALJ cited that Claimant failed to meet the heightened clear-and-convincing burden of proof applicable in DIME challenges. The Claimant appealed. Though the ALJ’s findings on MMI were left undisturbed, the ICAO Panel clarified that in DIME challenges to permanent impairment, the clear-and-convincing burden of proof applies only to whole-person permanent impairment; while scheduled ratings are subject to a preponderance of the evidence standard. The case was remanded for findings on scheduled permanent impairment under the preponderance standard.

Moral of the Story: There is a lower standard of proof needed to overcome a DIME’s opinions as to a scheduled impairment rating.

 

Although not formally published, there were two interesting cases from the Colorado Court of Appeals that are worth noting:

Oh Doctor! Doctor! Can’t you see I’m Hurting, Hurting?Mulgeta v. ICAO, 17CA0568 (February 1, 2018)(nsfp). Claimant had reached MMI and received a 5% whole person impairment rating. Respondents pursued a DIME to challenge the impairment rating. The DIME physician opined that Claimant reached MMI but had no permanent impairment. Claimant objected to the FAL filed based on the DIME and filed an Application for Hearing to overcome the DIME. Claimant argued that the DIME physician failed to conduct a spinal examination in accordance with the AMA Guides, Third Edition (Revised). In the DIME report, the DIME physician recognized the need to perform a full spinal evaluation but noted Claimant would not allow further examination because of her extreme reaction to pain. The ALJ found (and the Court of Appeals agreed) that the DIME physician’s failure to perform range of motion tests was due to the Claimant’s own decision not to perform the tests; therefore, Claimant failed to overcome the DIME. The Court of Appeals also determined that Respondents had no duty to pay PPD benefits based on the prior rating because they were entitled to pursue a DIME and contest the ATP’s 5% rating.

Moral of the Story: A DIME physician complies with the AMA Guides, Third Edition (Revised), as long as he/she recognizes the need to perform a spinal examination despite an inability to complete the range of motion testing.

 

TPD or not TPD: The question is actually: Medical Incapacity OR Wage Loss? Montoya v. ICAO, 2018COA19 (February 8, 2018)(nsfp). Claimant was a sales person paid entirely by commission. Claimant suffered a wage loss from attending doctor and therapy appointments related to her work injury; however, she was never given any work restrictions. The ALJ determined Claimant’s wage loss was attributed to her work injury and awarded TPD benefits. The ICAO Panel set aside the ALJ’s decision and reasoned that disability benefits are only available if there are both medical incapacity and wage loss. The Court of Appeals disagreed, set aside the Panel’s decision, and remanded the case with instructions to reinstate the ALJ’s Order, concluding that Claimant was entitled to TPD benefits. The Court of Appeals concluded that a Claimant need not prove both a medical incapacity and wage loss to establish entitlement to disability benefits.

Moral of the Story: A Claimant may be entitled to temporary disability benefits even if released to full duty, if he or she is able to demonstrate wage loss.

DIMEs ARE NOT WORTH A DIME and/or ICAO’S DESCENT (VIA DISSENT) INTO MADNESS

BACKGROUND

On February 26, 2018 Industrial Claim Appeals Office (ICAO) issued an opinion captioned Yeutter v. CBW Automation, Inc. Dimes not worth a Dimeand Pinnacol Assurance, W.C. No. 4-895-940. The decision sparked great interest in the workers’ compensation community and was a primary topic of discussion at the recent Spring Update CLE as well as the latest Case Law Update. The decision raises questions over how causation over different components of an injury can/should be litigated during the progression of a claim.

 

FACTS

Claimant worked as an engineer performing robotic programming tasks. He was hurt on August 24, 2012 when he was struck in the face by a carbon fiber pole. His injuries included a skull fracture, nerve damage, a broken arm, broken orbital skull sockets and a torn rotator cuff. In November 2013 Claimant began complaining to his treaters that he was experiencing fatigue and sleep disturbance. Claimant underwent a sleep study showing that he had narcolepsy. Claimant was prescribed Adderall, which he began taking in larger and larger doses to stay employed. Claimant had to reduce his Adderall use, but was unable to perform his job and ultimately stopped working in February 2015.
Claimant was placed at MMI effective August 26, 2015. Claimant was diagnosed as suffering from a traumatic brain injury that induced narcolepsy. Claimant received 67% whole person rating. Respondents requested a DIME. The DIME deferred to the treating doctor over whether Claimant’s injuries included post-traumatic narcolepsy and gave Claimant a 39% whole person rating. Respondents filed a FAL on March 2, 2016 based on the DIME.

 

Claimant claimed permanent total disability (PTD). The employer’s long-term disability program generated expert reports that concluded Claimant was not so disabled from his injury as to be unable to work. Respondents also obtained evaluations from various experts that concluded Claimant’s condition should not keep him from work. These evaluations included a neuropsychological evaluation the concluded it was not possible to state that the traumatic brain injury caused narcolepsy. The ALJ ultimately determined that medical evidence was too speculative for a causal connection to be established between Claimant’s injury and the narcolepsy.

 

RULING

The ALJ found that, even assuming Claimant’s employability was limited by narcolepsy, he remained employable. The ALJ determined that Claimant failed to prove entitlement to maintenance medical benefits, citing to an IME doctor’s opinion the Claimant’s need for narcolepsy medication was not related to the injury.

 

HOLDING

Claimant appealed arguing, in part, that the DIME’s findings were binding on the parties. The ICAO affirmed the ALJ, basically citing to the ALJ’s ability to resolve evidence and upholding an ALJs factual findings, so long as they are supported by substantial evidence in the record. Addressing Claimant’s argument over the binding effect of the DIME opinion regarding causation of the narcolepsy, the ICAO cited to the clear and convincing evidence burden given to the DIME over MMI and impairment, but that the DIME’s opinions on other issues are just another medical opinion. About half of the majority ICAO’s opinion is directed at arguments raised in a dissent.

 

THE DISSENT

The dissent disagrees with the decision in that it allows the ALJ to conclude Claimant’s narcolepsy is not a part of the original injury. The dissent disagrees with this because it allows the Respondents to simultaneously stipulate that the narcolepsy was part of the work injury for permanent disability purposes while contending that it is not part of the work injury for maintenance medical benefits and PTD benefits. The dissent relies heavily on Leprino Foods, Co. v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005). In that case, Claimant had an elbow injury with a possible shoulder component. A DIME took place and found Claimant was not at MMI due to the shoulder. Respondents did not challenge the DIME and it was determined that Claimant’s entitlement to TTD received a clear and convincing evidence burden based on the DIME’s determination Claimant was not at MMI due to his shoulder. The dissent basically takes the position that it is unfair for Respondents to accept Claimant’s narcolepsy as a source of impairment producing an admission of liability in accordance with the DIME, but allow Respondents to challenge this condition as not work-related in a PTD and maintenance medical hearing.

 

IMPLICATIONS

Use of Yeutter: The Yeutter case is likely being appealed further. The case raises several issues. First, the case currently exists just as an ICAO decision, so it does not have precedential value in front of ALJs. In the event that the Court of Appeals thinks a decision it comes to in Yeutter clarifies how a DIME’s opinion can be applied, it may be selected for publication, which would provide for precedential value. A rare dissent at ICAO may lead to a published decision from the Colorado Court of Appeals.

DIMEs: DIMEs only receive a clear and convincing evidence burden over the numbers, meaning MMI and impairment. The issues of MMI and impairment are tied directly to Claimant’s physical condition, including whatever body parts may have been injured. In this case it appears undisputed that Claimant had narcolepsy and that the narcolepsy was disabling. Further, the DIME deferred to the treating physician over whether narcolepsy was related to the work injury. The treating physician’s opinion was that the narcolepsy was work injury related. A primary dispute at the PTD hearing was whether Claimant’s narcolepsy was related to the injury. It should be noted that the ALJ insulated his opinion, at least as to PTD, by finding that, even if narcolepsy was related to the work injury and disabling, Claimant was still able to earn wages. Regardless, the issue remains over how to untangle the DIME numbers from the physical condition of Claimant and what untangling these things means in a claim.

Incentives: Respondents may have different incentives to contest a body part as not related to the work injury through the progression of the claim. For instance, respondents may elect to pay medical benefits for conditions that may not be part of the work injury. It simply may not be worth challenging treatment for a condition when balancing that issue against the cost of care. In Yeutter, Respondents accepted an impairment rating in the context of a clear and convincing evidence burden over that number. The incentive to challenge the narcolepsy was significantly higher in the context of a PTD, thus the challenge to the narcolepsy.

 

BOTTOM LINE

If further appealed, the Yeutter case may flesh-out some logical inconsistencies. There is a fundamental fairness in not having Claimant go into every hearing prepared to litigate compensability of body parts that have previously been accepted as a part of the work injury in terms of treatment and even impairment. Further, Respondents should make a decision whether or not to challenge a body part as related to the work injury at some determinable point in a claim, knowing that determination will become a part of the claim moving forward. A DIME opinion over relatedness of a body part, whether a component of MMI or impairment, may be that determinable point for that decision. In the alternative, this could be the subject of a legislative fix.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update February 2018

Lee and Brown LLC Partners and Certifications

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

 

Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In the News

John M. Abraham Attorney

 

Lee & Brown, LLC was a sponsor and attendee at the Professionals in Workers’ Compensation (PWC) Annual Bowling Tournament on February 9th. The PWC is a professional non-profit organization made up of carriers, third-party administrators, professional vendors and counsel representing both claimants and respondents’ Bars. The PWC provides ongoing educational seminars to its members on relevant and pertinent issues in the workers’compensation community. The organization funds annual scholarships to high school students interested in continuing their education in the business, medical or legal fields. The Annual Bowling Tournament is one of the events PWC organizes to raise funds for these scholarships. Lee & Brown fielded 3 teams this year, led by Members Joshua Brown and John Abraham, Of Counsel Frank Cavanaugh, Associates Jessica Melson, Kristi Robarge and Stephen Abbott and a new addition to the Firm, Of Counsel Brad Hansen. A great time was had by all in supporting a good cause with our fellow professionals in the workers’ compensation community.

 

Brad Hansen & Bill Sterck Attorneys

 


Victory Lap

In Romero v. Winn Residential Limited Partnership, W.C. No. 4-978-676, Of Counsel Frank Cavanaugh successfully defended a challenge to a DIME opinion regarding relatedness of Claimant’s cervical spine as a part of a work injury. Claimant was injured in a fall from a platform of a fairly significant height. Initial emergency treatment to Claimant’s cervical spine was deemed to be primarily precautionary, such as the use of a cervical collar to immobilize his neck. Other cervical spine pain complaints were sporadic while Claimant was undergoing treatment for his shoulder condition, but became more pronounced after the shoulder treatment. Regardless, the DIME physician felt that if Claimant had any cervical spine injury, there was no ratable impairment and that Claimant remained at MMI. The ALJ found that Claimant failed to overcome the DIME opinion by clear and convincing evidence

 

Associate Matt Boatwright successfully defended a full contest claim in Eastman v. United Parcel Service, W.C. 5-044-321. Claimant asserted a shoulder injury from pulling a package, but did not report the injury to the employer until the following day. Claimant told Respondents’ medical expert that he did not experience symptoms until he operated his personal vehicle. Claimant also failed to disclose several medical issues in the discovery process. Respondents’ medical expert testified credibly that it was not medically probable that Claimant injured himself while pulling the package. The ALJ found that Claimant failed to meet his burden to show his shoulder injury was more likely than not related to the asserted work event.

 

Associate Matt Boatwright also defended against an attempt to reopen a prior admitted claim for a shoulder injury in Shaner v. United Parcel Service, W.C. 4-904-678-07. Claimant had a preexisting condition and treated through his personal doctor for maintenance. Claimant returned to the ATP with increased shoulder pain and saw an unauthorized surgeon for evaluation after the ATP had no additional recommendations for care. Claimant returned to the ATP after the surgeon recommended surgery. The ATP made a referral for care through the surgeon at the request of Claimant. The ALJ found that Claimant failed to show a work-related worsening of the condition or a valid referral for further care from the ATP and denied the Petition to Reopen.

 


 

The Workers’ Compensation System as a Prescription for Addiction

The workers’ compensation (WC) system provides the perfect prescription for opioid addiction. There are three types of injured workers that fall into this lair: active addicts, recovered addicts who relapse after taking medications following a work injury, and the neophyte who becomes addicted following their work injury. Thus, the system, although well-intentioned, creates and perpetuates dependency and addiction. Continue reading the article. 
  


Cases You Should Know

At MMI or not at MMI? That is the Question: In Arnhold v. United Parcel Service, W.C. No. 4-979-208 (November 17, 2017), Respondents sought review of an ALJ’s Order finding that the ATP did not determine Claimant was at MMI and Respondents’ FAL was premature and must be stricken. Claimant was placed at MMI by her ATP when Respondents denied authorization for a total knee replacement. In the ATP’s MMI report, he stated that Claimant would not have a reasonable recovery until she completed the total knee replacement surgery. The Respondents filed a FAL and Claimant pursued the DIME. The DIME was held in abeyance pending the hearing on MMI. Respondents argued that the ALJ did not have jurisdiction to decide MMI since the DIME process was initiated. ICAO determined that the DIME was not a prerequisite to an ALJ’s resolution of whether an ATP determined Claimant to be at MMI. ICAO held that the ALJ’s determination of whether the ATP placed Claimant at MMI was a necessary prerequisite to the applicability of the DIME.

Moral of the Story: If an ATP’s MMI determination is ambiguous, an ALJ is needed before the DIME.

 

Oh Rule 16, you complete me: In Murray v. Tristate Generation and Transmission Association, W.C. No. 4-997-086 (December 22, 2017), Self-Insured Respondent sought review of an ALJ’s Order awarding penalties for failure to comply with WCRP 16-11 for prior authorization. A request for authorization for a total knee replacement was submitted on January 16, 2017 and a second request was submitted on January 20, 2017. On February 8, 2017, the adjuster provided verbal authorization for the recommended knee replacement surgery. On March 24, 2017, Respondent’s Counsel revoked authorization after receipt of new medical records indicating a pre-existing condition. The ALJ determined that the surgery was authorized because the Respondent failed to contest the surgery within 7 business days of the request per Rule 16-11 and Respondent’s actions were not objectively reasonable, so penalties were warranted. Respondent argued that the ALJ erred because Respondent did not receive a “completed request” for prior authorization and WCRP 16-11 was not triggered. ICAO determined that the ALJ’s Order did not make findings on whether the requests for authorization contained an explanation of the reasonableness and medical necessity or contained the relevant supporting documentation required under the Rule. The matter was remanded to the ALJ for additional findings.

Moral of the Story: You only have to respond to completed requests for prior authorization under Rule 16.

 

What about the prior ATP? Breaking up is hard to do: In Berthold v. ICAO, 2017COA145 (November 16 ,2017)(nsfp), Claimant made a request for a 90-day one-time change of physician, which was granted. The prior ATP later placed Claimant at MMI and Respondents filed a FAL based on the MMI determination. Claimant challenged the FAL on the basis that the prior ATP no longer had authority to place Claimant at MMI due to a change in the law, which would sever the doctor-patient relationship with the prior physician. The Colorado Court of Appeals held that 90-day one-time changes of physician occurring prior to the 2016 amendments to the Colorado Workers’ Compensation Act did not sever the doctor-patient relationship with the prior ATP; therefore, the prior ATP had authority to place Claimant at MMI.

Moral of the story: 90-day one-time changes of physician prior to 2016 do not sever the doctor-patient relationship with the prior ATP.

 

Safety First! How about we all just wear our seatbelts and get along? In Wright v. HSS, Inc., W.C. 5-030-925-01 (December 12, 2017), Claimant appealed a 50% reduction in indemnity benefits taken due to willful violation of an established employer safety rule. The safety rule stated, “Drivers shall always wear seat belts and require the same of passengers.” Claimant maintained that the employer never enforced the safety rule. The employer countered by offering evidence that Claimant was trained and quizzed on the safety rule—thus demonstrating that Claimant knew of, and understood, the safety rule. The employer also pointed to bulletins posted in plain view around Claimant’s workplace. Respondents won on appeal with the Panel noting the determination of whether an employer enforced a safety rule is a factual determination to be made by the ALJ. In this particular case, the ALJ found that the facts supported the employer cultivating a “culture of compliance” and that was enough to demonstrate enforcement.

Moral of the Story: Whether an employer “enforces” a safety rule is a question of fact for the ALJ based on the substantial evidence presented.

 

One expert opinion may be a cut above the rest, according to the ALJ: In Reyes v. JBS USA, LLC, W.C. 4-968-907-04 (December 4, 2017), Claimant sought to establish compensability of shoulder injuries sustained while performing his work duties consisting of butchering meat for the employer. Despite conflicting evidence, the ALJ found Claimant’s shoulder injuries compensable. On appeal, Respondents argued that Claimant’s treating physicians were unaware of Claimant’s involvement in a motor vehicle accident that resulted in pathology to the work-injury site. Respondents were unsuccessful with this argument as the ICAO panel noted that the absence of such information merely speaks to the probative weight and credibility of physician determinations assigned to expert opinions by the ALJ as the fact-finder.

Moral of the Story: As long as there is substantial evidence on the record to support the findings, an ALJ has discretion in determining the persuasiveness of expert opinions when they conflict.

The Workers’ Compensation System as a Prescription for Addiction

The workers’ compensation (WC) system provides the perfect prescription for opioid addiction. There are three types of injured workers that fall into this lair: active addicts, recovered addicts who relapse after taking medications following a work injury, and the neophyte who becomes addicted following their work injury. Thus, the system, although well-intentioned, creates and perpetuates dependency and addiction.

 

A WC claim can provide a lifetime funding source for medication and temporary and permanent disability benefits. One of the most frequent claims is a back claim. Pain cannot be objectively measured. The injured worker complains of pain that is aggravated by work. His physician prescribes opioids and restricts him from working. He is paid for his lost wages. The system for rating permanent impairment automatically qualifies him for an impairment rating after six months of medically documented pain, which then translates to an award of permanent disability benefits often worth as much as –one to two years’ of income.

It is well known that workers with opioid abuse have higher claim costs.

 

While estimates vary, it is believed that the top 5 percent of opioid users likely account for more than half of total opioid use.

When those individuals find their way into the WC system, insignificant injuries turn into nightmare claims. These often involve multiple medical procedures, permanent total disability, and sometimes drug overdose and death. These are difficult and expensive to settle due the thresholds established by Center for Medicare and Medicaid Services requiring that a Medicare Set-Aside fund be established as part of a settlement to ensure Medicare does not have to pay for any medical treatment that it deems to be the responsibility of WC. The lifetime projected cost of the opioid medication alone can often cost half a million dollars.

 

In the late 1990s, it was thought that doctors were undertreating pain and that opioid analgesics could safely ease the suffering. Following the increase in opioid prescriptions, deaths began to escalate. In response, the Center for Disease Control (CDC) released new guidelines concerning prescribing opioids for chronic pain in March 2016. According to the CDC, from 1999 through 2014, more than 165,000 people died from opioid-related deaths in the U.S.

 

In 2012, health care providers wrote 259 million prescriptions for opioid medications. That is one prescription for every adult in the U.S.

 

The guidelines have caused some backlash from physicians and patients who believe the government is interfering with the patient-physician relationship. However, there is a fundamental agreement that more oversight and education is needed at all levels.

 

Long-term opioid use can be counterproductive in workers’ compensation and can be a contributing factor in an injured worker not returning to the workplace. The use of opioids for acute pain and cancer pain is accepted, where symptom relief rather than functional outcome is the goal. However, the use of opioids for chronic pain is controversial; it could be contraindicated and may “do harm.” Opioids cause known side effects of hyperalgesia, constipation, hypogonadism, dizziness, drowsiness, overdose potential, etc. The CDC guidelines[1] note that opioid use disorder “is manifested by specific criteria such as an unsuccessful effort to cut down or control use resulting in social problems and a failure to fulfill major role obligations at work, school, or home.”

 

The Colorado Division of Workers’ Compensation (CDOW) issued amended medical treatment guidelines (MTG) for Chronic Pain Disorder and for Chronic Regional Pain effective November 30, 2017. CDOWC relies heavily on the CDC guidelines. The guidelines, though not binding on any physician, are peer-reviewed by both experts in the field and industry stakeholders.

 

The MTG suggest that chronic use of opioids is not recommended if the patient has an active or previous history of substance abuse or for workers in safety-sensitive positions. Opioids for chronic pain should not be prescribed unless there was a failure of pain management alternatives by a motivated patient including active and cognitive behavioral therapies. A full physical and psychological assessment must be performed. The physician must consider risk factors, including history of severe post-operative pain, opioid tolerance, chronic pain, sleep apnea, being off work for over six months, depression, anxiety, psychiatric disease or disorder, history of substance use disorder, complaint of all-over body pain, opioid sensitivities, and history of intrathecal pump use or spinal cord stimulator.

 

When opioids are prescribed, the physician should continue prescriptions only if “meaningful improvement” in pain and function outweighs the risk of continued use. The guidelines recommend that the patients demonstrate a 30 percent improvement in pain scores and function to justify continued opioid use. In other words, opioids must be used as a method to improve function rather than just sustain the status quo condition. The physician should actively review patient history of controlled substances, document improved function, consult the Prescription Drug Monitoring Program, and conduct random drug screenings.

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[1] The CDC guidelines can be found at www.cdc.gov/mmwr/volumes/65/wr/mm655051e1.htm.


This article was originally published with Best Lawyers® “Legal Insights” on www.BestLawyers.com.”

 

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