The Legal Buzz – Lee & Brown Newsletter and Case Law Update February 2019

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
 
Lee & Brown LLC was a sponsor for the Professionals in Workers’ Compensation of Colorado annual bowling tournament. The PWC is a professional organization made up of third-party administrators, carriers, attorneys from both sides of the Bar, and professional vendors offering services in the industry. The PWC provides ongoing educational seminars pertaining to the workers’ compensation industry throughout the year. The PWC also funds two collegiate scholarships to high school students interested in studying an area connected to the industry. The PWC bowling tournament is one of the fundraising opportunities from which funding is provided for these scholarships. Lee & Brown fielded two teams this year including Members Joshua Brown and John Abraham; Of Counsel Frank Cavanaugh, M. Frances McCracken and Brad Hansen; and Associates Matt Boatwright, Jessica Melson, and Angela Lavery. A great time was had by all for a good cause while fostering professional development and connections in the Colorado Workers’ Compensation community.
 

Noteworthy Cases

Associate Daniel Mowrey successfully defended Claimant’s request to reopen his Arizona claim and add an additional body part in Szach v. SW Ambulance, ICA No. 20160-260291. Claimant sustained an admitted industrial injury on January 12, 2016. The Claimant was placed at stationary status and provided with no impairment rating or ongoing treatment on April 2, 2018. Claimant protested the closure of his claim and sought continuing medical benefits and/or an increased impairment rating. Claimant also sought to link an upper body injury and subsequent surgery to the admitted claim. The ALJ credited the testimony of Respondents’ medical expert, who opined that the upper body injury and subsequent surgery was not related to Claimant’s admitted injury. Respondents’ medical expert further credibly testified that Claimant required no additional medical care for his admitted injury. Respondents also presented medical evidence of a preexisting upper body injury. The ALJ concluded that, based on the objective medical evidence and the credible opinion of Respondents’ expert, Claimant failed to demonstrate by a preponderance of the evidence that he was entitled to an increase in permanent impairment or additional medical care. The ALJ further opined that the upper body injury was not related to the admitted injury. The ALJ ordered Claimant’s claim for additional benefits be denied and dismissed.

 

 


Workplace Bullying

Does workers’ compensation insurance cover mental and manifesting physical injuries resulting from workplace bullying? A recent Forbes online article cited a survey concluding that 75% of the U.S. workforce reported having experienced workplace bullying. Another study cited by the Workplace Bullying Institute suggested that absenteeism and lower production costs businesses $4 billion annually. Regardless of the accuracy of the statistics, with the increased use of social media, workplace bullying can start inside of the workplace, or start outside of the workplace and permeate into daily business operations. Continue reading the article

  


Cases You Should Know
 
Beat the Clock: Statute of Limitations Applies to Both Employers and Claimants: In Packard v. City and County of Denver, W.C. No. 4-925-466 (December 4, 2018), Claimant contracted cancer that he believed was work related. Claimant reported the cancer to his Employer, and the Employer filed a First Report of Injury accordingly. The Claimant did not file a Workers’ Claim for Compensation or an Application for Hearing for 4 years. Pursuant to C.R.S. § 8-43-103(2), an Employee’s right to workers’ compensation benefits is barred if the Employee does not file a Workers’ Claim for Compensation or Application for Hearing within 2 years of the date of injury. When Claimant filed an Application for Hearing 4 years later, Respondents argued that the Employee was not entitled to relief because he did not file a Workers’ Claim for Compensation or Application for Hearing within the two-year period required by statute. The ALJ ruled that Claimant did not violate the two-year statute of limitations because the Employer was aware of the Employee’s claim for compensation via the First Report of Injury and General Admission of Liability filed by the Employer. The Industrial Claim Appeals Office overturned the ALJ’s decision, ruling that that Claimant was not entitled to relief because he did not file a Workers’ Claim for Compensation or Application for Hearing within 2 years of the date of his injury, as required by C.R.S. § 8-43-103(2).
 

Moral of the story: The Employer’s First Report of Injury is not a substitute for, or the equivalent of, a claimant filing a Workers’ Claim for Compensation. A claimant must timely file a claim in order to comply with C.R.S § 8-43-103 (2), otherwise his or her workers’ compensation claim is barred by the statute of limitations.

 
 

Claimant’s Bitter Pill to Swallow: Medical Treatment After MMI Must be Authorized: In Gosselova v. Vail Resorts, W.C. No. 4-975-232 (December 24, 2018), pro se Claimant sought review of an Order denying unauthorized medical treatment Claimant obtained after maximum medical improvement (MMI). Claimant sustained an admitted injury to her knee and subsequently underwent three knee surgeries. Claimant’s ATP recommended that Claimant undergo a fourth surgery for hardware removal. Claimant refused the recommended surgical treatment and was placed at MMI with recommended maintenance care to include hardware removal. Without receiving prior authorization, Claimant obtained hardware removal surgery from another physician. The Industrial Claim Appeals Court upheld the ALJ’s determination that even though Claimant’s treatment was reasonable and necessary, because it was not authorized by Respondents, Respondents were not liable for payment of the treatment.

 
Moral of the story: Even if medical treatment may be contemplated in the future, once Claimant reaches MMI, prior authorization is required. There is no legal authority that requires Respondents to pay for unauthorized medical treatment pre or post-MMI.

 
 

Safety Rule Violations: In Heien v. DW Crossland LLC, W.C. No. 5-059-799 (November 29, 2018), Claimant sought to overcome an Order reducing the non-medical workers’ compensation benefits by 50% for his willful violation to obey a safety rule. In this case, the Employer had an established safety rule that employees were not to open washing machines while the spin cycle was ongoing. Claimant sustained a severe amputation injury to his right arm when he violated the Employer’s safety rule by opening a washing machine while it was still running. Claimant admitted to using heroin during his shift and stated he opened the machine to retrieve a Coca-Cola bottle as he was concerned the sheets being washed would be damaged. The Administrative Law Judge (ALJ) reduced Claimant’s non-medical workers’ compensation benefits by 50% to account for his willful failure to obey a safety rule. Claimant appealed this reduction in benefits by arguing that his violation of the safety rule was not willful because he had a plausible purpose in violating the safety rule. Additionally, he argued that the safety rule was not enforced by the Employer. ICAO affirmed the ALJ’s finding that the Employer’s safety rule was enforced because there were posted warning signs above the washing machine and there was a switch located directly beside the machine that could be pulled to immediately cut power to the machine. The Panel noted the obviousness of the risk in affirming the ALJ’s finding that Claimant’s effort to save sheets from being damaged was not a plausible purpose for violating the enforced safety rule.

 

Moral of the Story: The violation of a safety rule is not considered willful if the employee had a plausible purpose to explain the violation of the rule. However, if the inherent danger in violating the safety rule is obvious, Claimant’s actions in violating the safety rule will rarely, if ever, be found plausible.

Workplace Bullying

Does workers’ compensation insurance cover mental, and manifesting physical injuries Workplace Bullyingresulting from workplace bullying? A recent Forbes online article cited a survey concluding that 75% of the U.S. workforce reported having experienced workplace bullying.[1] Another study cited by the Workplace Bullying Institute suggested that absenteeism and lower production costs businesses $4 billion annually.[2] Regardless of the accuracy of the statistics, with the increased use of social media, workplace bullying can start inside of the workplace, or, start outside of the workplace and permeate into daily business operations.

One definition of workplace bullying advanced in Psychology Today was “workplace bullying refers to “situations where an employee repeatedly and over a prolonged time period is exposed to harassing behavior from one or more colleagues (including subordinates and leaders) and where the targeted person is unable to defend him-/herself against this systematic mistreatment.”[3] Researches have identified both internal and external causes of workplace bullying. As noted below, identifying the cause of workplace bullying is relevant to unwinding the legal liabilities associated with resulting injuries. Types of injuries associated with this behavior includes “physical and psychological symptoms, including headaches, chronic neck pain, fibromyalgia, type 2 diabetes, sleep problems, anxiety, depression, post-traumatic stress symptoms, suicidal ideation, and others.” [4]

The current statutory law in Colorado does not specifically address a company’s insurance liability for workplace bullying injuries. However, those injuries can be covered under the exclusive remedy of the Colorado’s Workers’ Compensation Act and the associated insurance policies. Bullying injuries may be treated as assaults for purposes of liability. Assaults that arise out of work are generally compensable injuries, while those that are purely personal are not.[5] Assaults caused by a natural force, or an event that any employee would be exposed to are also compensable assaults. Before addressing the nature of the injury, the business should investigate whether the bullying, for example verbal abuse or written harassments, arose out of a personal dispute between employees or whether the bullying occurred within the parameters of the employees’ business relations. Any investigation should be undertaken consistent with a business’ employment policies and procedures for interviewing witnesses, reviewing internal documents such as email, and confiscating company phones or computers as evidence.

When a business determines that a workplace bullying event has occurred, the business ought to determine whether an actual injury was caused by the perpetrator(s) conduct. The law is especially tricky when unpacking whether an injury occurred. While an employee may complain of stress or some other symptoms, especially to justify absenteeism, the claim may not always be a compensable injury. Section 8-43-301(2)(a), C.R.S., requires that an employee claiming a mental impairment provide a specific showing of a mental injury, including evidence supported by a licensed psychologist or psychiatrist. Additionally, whether the bullying itself was a crime of violence will also factor into the amount of benefits that could be owed to a victim-employee. Navigating through the patchwork of questions to determine liability hinges on the ability of a comprehensive investigation of the claim at the outset to determine its validity.

As always, if you have any questions regarding workers’ compensation insurance and laws, please contact one of the attorneys at Lee & Brown, LLC.

 

[1] https://www.forbes.com/sites/christinecomaford/2016/08/27/the-enormous-toll-workplace-bullying-takes-on-your-bottom-line/#5f464c0b5595

[2] https://www.workplacebullying.org/tag/workers-comp/

[3]https://www.psychologytoday.com/us/blog/finding-new-home/201809/workplace-bullying-causes-effects-and-prevention

[4] Id.

[5] Velasquez v. Industrial Commission, 41 Colo. App. 201,581 P.2d 748 (1978); In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988).

The Legal Buzz – Lee & Brown Newsletter and Case Law Update January 2019

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

 


Noteworthy Cases

Member Karen Gail Treece successfully defended two full contest claims. In Mommens v. Martin Marietta Materials, Inc., W.C. No. 5-070-386, Claimant alleged he was injured from hitting a bump on the road while driving a cement truck. Claimant testified he drove over a bump or transition in the road and flew up in his seat hitting the lumbar bar of the seat when he came down. Claimant was unable to identify the street location of the bump to his supervisors. Respondents’ accident reconstructionist expert credibly testified there was nothing wrong with the seat of the truck, the lumbar bar did not protrude, and the seat operated properly. The ALJ denied and dismissed the claim.
 

In Pickering v. Hercules Commercial, W.C. No. 5-049-650, Claimant alleged he was injured while tightening a bolt using an allen/hex wrench. Ms. Treece elicited credible witness testimony that Claimant complained of pain and was on light duty prior to the alleged date of injury. Respondents’ expert persuasively testified it was unlikely a person could exert sufficient force, using a ¼ inch hex wrench, to sustain a significant shoulder injury. The ALJ denied and dismissed Claimant’s request for benefits.

 

In Robinson v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that a specific medical center was an authorized provider. Claimant contended that he was referred to the emergency room to rule out a medical emergency. Claimant declared that Respondents were liable for payment for all services at said facility. Respondents’ argued that the initial referral was for emergent care only. Once the emergent care was concluded, Claimant returned to his ATP for ongoing treatment. Respondents produced medical evidence from the ATP that no additional referral was made to the other facility. The ALJ opined that Claimant returned to treat at the other facility of his own accord. The ALJ concluded that, based on the objective medical evidence, Claimant failed to establish that the other facility was authorized as treating physicians. The ALJ ordered that the care received from the other facility, after the ER visit, was unauthorized.

 

Of Counsel Frank Cavanaugh and Associate Kristi Robarge successfully defeated a full contest claim in Putnam v. Whole Foods Market, Inc., W.C. 5-079-453. Claimant alleged an injury occurred while at work; however, there were conflicting reports of the injury. At first, Claimant simply reported that she began hurting while at work. She later reported that she bent over to pick something up and felt a pop in her low back. In addition to the inconsistent reports of injury, Claimant had a pre-existing condition which caused pain in multiple places. The ALJ found that Claimant did not suffer a compensable injury during the course and scope of her employment. The ALJ noted that “the mere fact a claimant experiences symptoms while performing work does not require the inference that there has been an aggravation or acceleration of a preexisting condition.”

 

Associate Angela Lavery successfully defended Claimant’s claim for specific medical benefits in Hayes v. Patterson UTI Drilling Co., W.C. 5-062-811. Claimant worked as a “roughneck” on an oil rig and argued that he suffered an injury to his upper extremity when he sustained an admitted injury. Claimant argued that he required shoulder surgery recommended by an ATP surgeon, which would include several procedures. Although the ALJ agreed that Claimant suffered a work-related injury, the ALJ determined that Claimant failed to establish that the recommendation for surgery was medically reasonable and necessary. The ALJ credited the testimony of Respondents’ medical expert, who opined that surgery was not reasonable or necessary based on Claimant’s current presentation of symptoms and the Medical Treatment Guidelines. Respondents’ medical expert credibly testified that other more conservative treatment modalities could be utilized based on Claimant’s reported symptoms and objective findings on exam. The ALJ agreed and determined that there was insufficient evidence to support that the surgery should be performed over other treatment options. The ALJ denied Claimant’s request for authorization of the surgery.

 
In Moore v. Lifeline Orlando VAC, (DaVita), I.C.A. No. 20152-740314, Associate Daniel Mowrey successfully defended against Claimant’s attempt to increase the Loss of Earning Capacity (LEC) and Permanent Partial Disability (PPD) Award before the Industrial Commission of Arizona. Respondents admitted for a monthly PPD award of $646.10. Claimant contended that she was entitled to a monthly award of $1,094.13. Claimant provided expert testimony from two physicians and a labor market expert. The ALJ was persuaded by the testimony of Respondents’ labor market expert who testified that while Claimant could not return to her pre-injury employment, her considerable history in leadership roles provided her extensive administrative experience. The ALJ credited Respondents’ labor market expert’s opinion that her prior leadership roles would qualify her for the higher wage range for administrative positions. The ALJ was not persuaded by Claimant’s testimony that she could not sit for longer than 15 minutes at a time. The ALJ concluded that, based on the objective medical evidence and the credible opinion of Respondents’ expert, Claimant failed to demonstrate by a preponderance of the evidence that she was entitled to an increase in her LEC and PPD award. The ALJ ordered Claimant’s claim for an increase in benefits be denied and dismissed.
 

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees. Continue reading the article

 

Cases You Should Know

No Mulligans for Bad Faith: In Schultz v. GEICO Casualty Company (November 5, 2018) the Supreme Court of Colorado addressed a District Court Order that required the Plaintiff to undergo an IME in light of bad faith allegations brought by Plaintiff. Plaintiff was involved in a car accident in 2015 and subsequently had multiple knee surgeries. Without having Plaintiff undergo an IME, the insurer offered full policy limits but did not subsequently pay. When Plaintiff brought a bad faith allegation against the insurer for unreasonable delay/denial, the insurer then denied liability and secured an Order from the District Court requiring Plaintiff to undergo an IME to assess a causation dispute. Plaintiff alleged that the requirement that she undergo an IME was unreasonable because the insurer had previously agreed to pay out the policy without an examination, over a year prior. The Supreme Court reaffirmed the principle that an insurer’s decision to deny or delay benefits to the insured must be evaluated based on the information available to the insurer at the time the coverage decision is made, not post-coverage decision due to the discovery of later developments that may have impacted the insurer’s decision. Here, the insurer had initially decided to pay out the policy without an IME and presented no explanation as to how an IME performed one year later would have impacted the original decision. The Court found that the District Court had abused its discretion in compelling the examination.

 

Moral of the Story: Whether an insurer acted in bad faith or not, is decided when the unreasonable action is alleged to have occurred. It cannot be rectified by relying upon evidence subsequently obtained that did not exist, or was not available, at the time of the initial action.

 

Fines Dispensed, Dispensary Incensed: In MMJ 95, LLC (no board number issued)(October 15, 2018), ICAO upheld a Director’s Order imposing a $39,950.00 fine upon Respondent-employer for failing to maintain mandatory workers’ compensation insurance coverage. Section 8-44-101, C.R.S. of the Workers’ Compensaion Act requires that all employers secure workers’ compensation insurance coverage for all employees. Uninsured employers are subject to a fine of up to $250.00 per day under Section 8-43-409(1)(b), C.R.S. In this case, MMJ 95 did not maintain its own workers’ compensation coverage. The sole registered agent of MMJ 95 was also the registered agent of another company, AJC Industries, LLC, which did maintain workers’ compensation coverage. Both businesses operated under the same trade name. The Director found that, contrary to the testimony of the employer, MMJ 95 did have “employees” for purposes of the Act and therefore had to maintain its own insurance for those employees. The Director found that the registered agent of Repondent-employer did not file LLC member rejection of coverage for workers’ compensation insurance for MMJ 95 and was therefore himself considered an “employee” of the company. The Director further found that persons working at MMJ 95 were employees, despite testimony from the registered agent that these persons were employed by AJC and therefore covered by its insurance. The Director found that, even though AJC and MMJ 95 operated under the same tradename, they were separate business entities because they had been filed as such with the Secretary of State. Respondent-employer did not properly raise contentions of error in response to the Director’s Order and ICAO upheld the Director’s findings and ultimate fine.

 

Moral of the Story: Every employer registered with the Secretary of State must maintain its own workers’ compensation insurance coverage for all employees. Members of Limited Liability Companies may be considered employees of the company for purposes of workers’ compensation, even though they are not paid as employees of the company.

 

A Final Admission Isn’t Always the End: In The Matter of the Claim of Carold Peoples v. State of Colo. Dep’t of Trans., W.C. No. 4-819-262 (October 24, 2018), ICAO affirmed the ALJ’s Order requiring Claimant to repay an overpayment and allowing Respondent to recoup the overpayment by offsetting disfigurement benefits. Claimant had been awarded SSDI and Respondent did not take an offset against temporary disability, even though they had known of the award since 2012. Respondent instead noted an ongoing overpayment on the GAL. Respondent filed a FAL in 2013, within a year of the SSDI award, but did not apply for a hearing. Claimant argued that overpayment was barred by the statute of limitations on the premise that Respondent did not “attempt to recover” the overpayment within one year of when they became aware of the overpayment, under Section 8-42-113.5(1)(b.5)(I), C.R.S. ICAO agreed with the ALJ that asserting a right to recoup overpayment on the FAL was sufficient for Respondent to preserve their right and defeat the statute of limitations. Filing a FAL asserting an overpayment against future benefits is sufficient as an “attempt to recover” an overpayment for purposes of the statute. Claimant argued that Respondent was prohibited from offsetting the overpayment against future benefits owed. The Panel held that “the Respondent may offset their liability for the disfigurement award . . . against the existing overpayment.”

 

Moral of the story: Respondents must attempt to recover any overpayment within a year of becoming aware of its existence, and a FAL noting the overpayment is sufficient to preserve the right to pursue the overpayment in the future. Respondents may also recover overpayment from future benefits, including disfigurement owed.

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees.

Professional football requires two types of insurance: general liability and workers’ compensation since it is mandatory under state laws. Given the lucrative contracts these athletes sign, the Collective Bargaining Agreements often require wage continuation agreements so that these athletes continue to make the same salary if they are injured and off work. Can you imagine an athlete who makes $30 million a year being capped at the state workers’ compensation rate while recovering from an injury? Hence why wage continuation agreements are standard across the league.

With that said, one of the biggest threats to the NFL is the evaporating insurance market. According to multiple sources from the NFL, there is only one carrier willing to provide workers’ compensation coverage for NFL teams because of all the concussion litigation that began in 2011. At that time, at least a dozen carriers occupied the insurance market for pro football. Now, there is one.  Dr. Julian Bales, Medical Director and member of the NFL’s head, neck, and spine committee told ESPN “insurance coverage is arguably the biggest threat to the sport.”[1]

A study done by the University of Pittsburgh Medical Center’s sports concussion program found approximately 300,000 football-related concussions occur each year in youth, high school, college, and professional. And the biggest injury or disease that is making headlines in the NFL is traumatic brain injuries and chronic traumatic encephalopathy or “C.T.E.” The problem with this disease is the unknown “trigger” on how and when the disease starts. The disease is diagnosed after death and the symptoms of depression and delusional behavior may lay dormant for years, or even decades, before they surface. It’s concerning for carriers to know they could be on the hook years down the road given the unknown.

Similar to asbestos claims in workers’ compensation, a carrier can be at risk for a claimant who works one day and is subsequently diagnosed with lung cancer, players in California could file claims, even if they played only one game, to allege their brain disorders were caused by the sport. This cost carriers and the leagues hundreds of millions of dollars which fortunately was curtailed by new legislation in 2013. Still, carriers are cautious to cover the NFL without an exclusion for head trauma.

For many years carriers insured the NFL without restrictions for traumatic brain injuries. Now many of these companies are in a six-year lawsuit with the NFL over who will pay legal fees and claims associated with the 2013 settlement of the $1 billion-dollar class action lawsuit. Hence, these carriers are at higher risk to insure the NFL.

California has one of the most liberal workers’ compensation laws in the Union. Recently, former players who decades ago reached injury settlements with NFL teams and carriers have filed new claims alleging their settlements did not cover traumatic brain injuries. In 2015, a workers’ compensation court found that a former player’s 1989 settlement for cumulative industrial injury “does not extend to the then-unknown cumulative injury to the brain.” Similar to a worker who claims their shoulder pain is due to years of lifting heavy equipment, a former football player can argue their continued migraine headaches are a result of them playing professional football. Chances are several brain disorders like dementia, Parkinson’s and Alzheimer’s could be blamed on football. Doctors may ask, “how long did you play football and how many head injuries did you have?” and cite that as the cause for a claimant’s brain disorder when a claim against the NFL is filed. Fortunately, claimants must still meet their burden and prove that pro football alone, and not youth or college football, was the “cause” of their injury or diseases.

Workers’ compensation attorneys in California are handling numerous settled cases in which former NFL players have filed new claims for head trauma. The new claims will only increase costs for litigation and further deter carriers on what they will and will not cover. Fortunately, monetary costs for workers’ compensation claims are capped which will help put a cork in the damn but if the floodgate of old settled claims are allowed to be reopened, the market for coverage will continue to be washed away down the river…

As always, if you have any questions regarding workers’ compensation insurance and laws, please contact one of the attorneys at Lee & Brown, LLC.

 

[1] http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn

Rules Are Meant to be Broken – or At Least Updated. 2019 Rule Updates

2019 brings changes to two Rules that affect Colorado Workers’ Compensation. Rule 11 and Rule 16 have both been revised and the changes go into effect January 1, 2019. The changes to Rule 11and the DIME process are extensive. Below is a brief summary of the changes.

 

Rule 16 is undergoing a few changes.  The rule has been reordered.  Most of the changes are not substantive.  It is strongly recommended that the new rule be referenced in dealing with any prior authorization or billing issue for specifics.  The more substantive changes are highlighted below; however, the specifics of the rule should be reviewed in each situation.

  • ‘Payer’ definition is the same, but the definition now states that use of third parties to pay bills does not relieve the carrier or self-insured employer of obligations under the rules.
  • Recognized healthcare providers previously under 16-5 is now under 16-3.
  • Required use of the medical treatment guidelines, previously under 16-3 is now under 16-4
  • Notification requirements previously under 16-9 is now under 16-5.
  • Prior authorization previously under 16-10 is now under 16-6
  • Contest of prior authorization previously under 16-11 is now under 16-7.

* In conjunction with 16-11 in the new rule governing payment of medical benefits, contest for payment of prior authorization for non-medical reasons now contains examples of non-medical reasons including: no claim has been filed, compensability is not been established, the provider is not authorized, insurance coverage is at issue, typographic, gender or date errors on the bill, failure to submit medical documentation and unrecognized CPT codes.

  • Required use of the medical fee schedule previously under 16-4 is now under 16-8 and specifically sets forth the payment for build services without an established value under the medical fee schedule require prior authorization.
  • Required billing forms and accompanying documentation previously under 16-7 is now under 16-9 and has been added to somewhat.
  • Required medical documentation previously under 16-8 is now under 16-10 and sets forth in greater detail specifically what Form 164 should look like from the doctor’s office.
  • Payment of medical benefits previously under 16-12 is now under16-11.
  • Dispute resolution process previously under 16-13 is now under 16-12.
  • On-site review of hospital or other medical charges previously under 16-14 is folded into 16-10 regarding required medical record documentation.

 

Rule 11 changes are more substantial. Of Counsel, Brad Hansen, wrote an article about the updates last month and you can read it as well: Because It Goes to 11 – Rule 11 changes for 2019. 

 

The following is a brief summary of the Rule 11 changes:

Why?

  • No real change for years.
  • Doctors’ reluctance to continue to do DIMEs due to reimbursement and increased complexity.

 

Effective Date

  • January 1, 2019
  • DOWC says there is some leeway for the first month.

 

Overview of changes

  • Cost
  • Forms
  • Time-frames
  • Logistics

 

Cost

  • 3 tiers based on DOI, and number of body parts
  • $1,000 = DOI < 2 years and < 3 regions marked on the application
  • $1,400 = DOI > 2 years but < 5 years and 3 – 4 body regions marked
  • $2,000 = DOI > 5 years and ≥ 5 or more body regions marked

 

Forms

  • FAL – includes objection to the FAL, notice proposal and application for DIME
  • Request for Appointment to the DIME
  • Notice and Proposal and Application for DIME
  • DIME Examiner Summary Sheet
  • Notice of DIME Negotiations
  • Follow-up DIME
  • DIME Physician Summary Disclosure Form
  • Notice of Reschedule or Termination of DIME
  • Notice of Agreement to Limit the Scope of the DIME
  • DIME Report Template

 

Time-frames – font color corresponds to responsible party. Key to color below list.

  • FAL = 30 Days After Receipt of MMI (calendar 30 days after report for safety)
  • Notice and Proposal and Application for DIME = 30 Days After Filing of FAL
  • Claimant Files for Indigency = 15 Days After Filing the Notice and Proposal and Application for DIME
  • Attempt to Negotiate DIME = 30 Days After Notice and Proposal and Application (Notice of Negotiation Form to be filed within 30 Days)
  • DOWC Issues Panel = 5 days
  • Summary Disclosure Request = 5 Business Days
  • Requesting Party Strike If No Disclosure Request = 5 Business Days
  • Non-Requesting Party Strike = 5 Business Days
  • DOWC Send DIME Confirmation = 5 Business Days
  • Pay For and Schedule DIME = 14 Days
  • Schedule DIME = Between 35 – 75 Days After DIME Confirmation
  • Complete Copy of Medical Records to Claimant = 14 Days from DIME Confirmation
  • Claimant submits additional Medical Records to Carrier = 10 Days After Medical Packet From Carrier
  • Completed Packet Provided to DIME = 14 Days Before Exam
  • Claimant Notifies Carrier of Need for Interpreter = 14 Days Before Examination
    • Carrier is Responsible for Paying for the Interpreter
  • After DIME = 20 Days After Examination a Report is Generated

Key = Respondent duty       = Claimant duty     = Either Party’s duty

 

Logistics

  • New Rule applies to any Notice and Proposal with a certificate of service after 1/1/19
  • Applies to any follow-up DIME after 1/1/19
  • Applies to 24-month DIMEs

 

Questions

  • Body Parts?
    • The checklist proports to control body parts considered
    • PALJs likely to address
    • DIMEs still not confined to specific body parts
  • DIME Cancellation
    • Very tight cancellation time-frames with fixed penalties

 

The above summaries of Rule 11 and 16 are not intended to be used as legal advice. They are an outline of the changes to those Rules effective January 1, 2019. Please contact an attorney at Lee & Brown for case specific legal recommendations.

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

 


Happy Thanksgiving from Lee & Brown


In the News

Member Karen Treece and Of Counsel Brad Hansen attended the annual
DRI Conference last month in San Francisco. DRI is the “Voice of The Defense Bar” and the leading organization of defense attorneys and in-house counsel. The goal of DRI is to enhance the skills, effectiveness, and professionalism of all lawyers in the defense of civil litigation. The conference brings hundreds of defense attorneys from across the country to meet and discuss current trends and issues affecting the insurance industry with ways to improve and defend the interests of businesses and individuals in civil litigation. Seminars and CLEs were held on various topics including issues affecting the workers’ compensation system and ways to improve representation of clients. There were several Keynote speakers including former Secretary of State Dr. Condoleezza Rice. Overall, the conference was a great opportunity to meet and network with fellow peers from across the country. Next year the conference will be held in New Orleans.


Noteworthy Cases

Of Counsel M. Frances McCracken successfully defeated Claimant’s claim for compensability in Dunning v. Walmart Associates, Inc. Claimant alleged that she suffered an occupational disease injury to her wrists, including carpal tunnel and de Quervain’s tenosynovitis. Claimant stocked product as part of her daily duties and claimed that the repetitive action in using a box cutter caused her conditions. The ALJ credited the testimony of Respondents’ medical expert, who opined that it was not medically probable that the symptoms presented were causally related to Claimant’s work activities, especially in light of Claimant’s multiple alternative risk factors (including age, weight, diabetes, and vitamin deficiency). The ALJ denied and dismissed Claimant’s claim for compensation.


Because It Goes to 11

It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. With the New Year, several changes and updates to the Workers’ Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11 which pertains to the DIME process. Effective January 1, 2019, many revisions and changes to Rule 11 will take place. Continue reading the article to learn about several key changes to the Rule.

Cases You Should Know

A Claimant is Never Out of the Fight for TTD: In Frisch v. Berwick Electric Company, W.C. No. 5-033-012 (September 11, 2018), ICAO addressed whether a Claimant would still be entitled to TTD for a worsening of condition after having been denied TTD benefits by a prior Order finding termination for cause. Claimant was fired shortly after his injury and then “permanently barred” from collecting TTD after a hearing on termination for cause, under Sections 8-42-105(5) and 8-42-103(1)(g), C.R.S. The parties subsequently litigated TTD for a second time on the Claimant’s contention that he suffered additional disability due to a worsening of condition and was due TTD pursuant to Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004). In Longmont Toyota, the Colorado Supreme Court held that an injured worker who had been barred from collecting TTD due to termination could nevertheless still be entitled to TTD if he suffered a worsening of condition tied to the injury, despite having been terminated. Claimant proved that he suffered a worsening of his medical condition at the second hearing. The ALJ awarded TTD from the date of the worsening. ICAO upheld the ALJ’s Order, holding that termination did not permit a permanent bar on TTD if a claimant could show his/her condition improved after the injury then became worse resulting in further incapacity.

Moral of the Story: There is no permanent bar on TTD, even if you prove claimant was fired for reasons unrelated to the work injury. A claimant can always collect disability if he/she can show their condition became worse after a period of improvement.

Time’s Up, You Got Served: In Dickens v. Wagner Equipment et al., W.C. No. 4-681-113 (September 13, 2018), Claimant sustained an admitted knee injury and Respondents filed a FAL. Claimant filed an Objection to the FAL within 30 days, but didn’t file an Application for Hearing or Notice and Proposal for a DIME within this period. Respondents denied further benefits on the basis that the claim was closed by operation of law for failure to timely object. Claimant litigated service of the FAL and petitioned to reopen the claim for a worsening of condition. Respondents filed a Motion to Dismiss which was granted by the ALJ on the basis that Claimant had not properly objected to the FAL within 30 days. The ALJ also denied the Petition to Reopen on the basis that Claimant had not sustained his burden to prove a worsening of condition. Upon appeal, ICAO upheld the ALJ’s Order granting dismissal, finding that a claimant must object to a FAL within 30 days of actual service of the document with an Application for Hearing or Notice and Proposal for a DIME. Any other form of objection is insufficient to keep a claim open.

Moral of the Story: Claimant must either apply for a hearing or a DIME within 30 days of a FAL or their claim is closed. If this is the case, Claimant must prove a worsening of condition or that there was an error in order to reopen the claim.

A “Quasi-Course” Goes a Long Way: In Prescott v. Schlumberger Technology Corporation and Travelers Indemnity Company, W.C. NO. 4-849-166 (September 9, 2018), ICAO affirmed the ALJ’s ruling that the injuries Claimant sustained from a car accident were compensable under the quasi-course of employment doctrine. The doctrine states that an injury occurring during travel to or from an authorized medical appointment is compensable unless there was a substantial personal deviation. In Prescott, instead of heading home to Grand Junction after a medical appointment in Denver, Claimant drove to his daughter’s home in Fort Collins and stayed the night. The next day, on his way home, Claimant was involved in a motor vehicle accident. The ALJ found that since Claimant was on his way home to Grand Junction when the accident happened, his substantial personal deviation to Fort Collins had ended, and the accident was compensable. ICAO upheld the Order, finding that the law was correctly applied and that it would not disturb the ALJ’s factual findings.

Moral of the Story: A substantial personal deviation only cuts off liability under the quasi-course of employment doctrine if the employee is actively engaged in the substantial personal deviation at the time of injury.

 

BECAUSE IT GOES TO 11

It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. 2019 Rule 11 revisionsWith the New Year, several changes and updates to the Workers’ Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11, which pertains to the DIME process.

The DIME program has seen little change since its inception in 1991, yet it is an essential piece of the Colorado Workers’ Compensation system. There have been attempts throughout the years to change the procedures from both respondent’s and claimant’s bars but to no avail. After three years of collaboration and tedious consideration, the Division of Workers’ Compensation has finally adopted a new rule that will address key challenges of each stakeholder. This is due in part to weekly staff meetings with representatives from both sides of the bar commenting on the changes and individual meetings with each side of the bar. There were over 50 revisions to Rule 11 and a Public Rule Hearing held for additional comment.

 

Effective January 1, 2019, these revisions and changes to Rule 11 will take place. Several key changes to the Rule:

     

    • There will now be a three-tiered payment system based on the date of injury to the filing of the DIME application and the number of body regions indicated on the DIME application;
    •  
    • The DIME physician must receive the fee prior to the requesting party scheduling the DIME appointment;
    •  
    • The Notice and Proposal and DIME Application are now combined as one document;
    •  
    • The time-frame to schedule a DIME appointment is extended to no earlier than 45 days or later than 75 days after the requesting party receives the notice of the DIME Physician Confirmation; and
    •  
    • Parties will now be responsible for agreeing on a singular medical records packet to send to the DIME physician.

     

 

The Division Rule will go into place January 1st, but the Division has indicated there will be some leniency the first month to sort out compliance issues. By February the Division will be enforcing the new process. Any Notice and Proposal with a certificate of mailing dated on or after January 1, 2019 is subject to the new Rule 11 provisions.

 

One provision of the Rule that will be advantageous for respondents is the requirement that once a Notice and Proposal is filed, claimant must simultaneously file a DIME application. With the current Rule 11 provision, claimant could file a Notice and Proposal to perfect their jurisdictional requirement to object to the Final Admission of Liability but could wait on filing for a DIME. Sometimes it would be months, or even close to a year, before a DIME application was filed and physician selected. Hopefully, the new Rule 11 revisions will bring a speedier DIME process and claim resolution/closure.

 

One negative effect of the new Rule is that parties are now to agree on one set of medical records to be sent to the DIME physician. This could create more litigation as claimants may not want to provide certain records, but respondents may feel they should be included in the medical packet. A standoff could require pre-hearings to adjudicate the matter. This is likely why the Division extended the time requirement to 45 – 75 days so that parties have time to reach an agreement on the medical records submitted and additional time to set the DIME appointment.

 

With these changes to Rule 11, there will be a lot of questions that need to be addressed. The attorneys at Lee & Brown, LLC are here to answer any questions you may have regarding the new changes to Rule 11 and will be conducting training seminars “on our DIME” early next year to go over all these changes. Below are some helpful links from the Division of Workers’ Compensation which provides general DIME information and new timelines to consider.

 

https://www.colorado.gov/pacific/sites/default/files/DIME_Presentation_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/Important_DIME_Timelines_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/General_DIME_Fee_Information.pdf

 

 

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

Members Joshua Brown and John Abraham, along with Office Manager Denise Iannotti, represented Lee & Brown at the National Association of Minority and Women Owned Law Firms’ (NAMWOLF) Annual Conference held in Chicago September 25-29th. A member since 2013, Lee & Brown is proud to be a part of this outstanding organization and assist in its efforts to promote diversity through the creation of legal opportunity for minority and women owned law firms.

The Firm was very recognized throughout the conference thanks to their ability to “clone” Members Brown and Abraham as life-size cardboard cutouts, which were utilized in the implementation of their well-received game of “Finding Josh and John”. Fellow NAMWOLF Member Krishna Reddy, Esq. of Paul Garcia & Associates in San Antonio, Texas was the very happy winner of an Apple Watch as a result of his savvy game playing skills.

Everyone is now preparing for the next NAMWOLF event – the annual Business Meeting, to be held in New Orleans in February 2019.

 


Noteworthy Cases

Joshua Brown Attorney DenverMember Joshua Brown and Associate Kristi Robarge  successfully defended a full contest claim in Kelson v. SkyWest Airlines, Inc., W.C. 5-061-588. Claimant, a flight attendant, was traveling to her hotel on a shuttle bus when the bus stopped suddenly to avoid a collision. Claimant alleged an injury to her left shoulder from bracing against the seat in front of her. However, Claimant did not report the alleged injury until one month later when she had an unrelated stroke and ended up in the hospital. From the date of the alleged injury until Claimant’s unrelated stroke, she continued to work full duty. Respondents’ expert testified that it was not medically probable that the left shoulder injury was causally related to the shuttle bus incident. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.

 

John Abraham Denver AttorneyMember John Abraham and Associate Jessie M. Tasselmyer successfully defended against Claimant’s request for ongoing maintenance medical care in Riccillo v. Parkview Medical Center. Claimant suffered a slip and fall accident in 1996. Claimant underwent extensive treatment and was ultimately placed at MMI. Thereafter, the indemnity portion of her case was settled, except for maintenance medical care. Claimant continued to treat and receive medications. Respondents retained an expert to opine on Claimant’s ongoing maintenance medical care. Respondents’ expert testified at hearing that Claimant suffered from a somatic pain disorder as well as pre-existing depression and anxiety. He further testified that even though Claimant’s ongoing depression and anxiety may have been related to the industrial injury in the past, it was no longer probable that her continued complaints of depression and anxiety were related to the industrial injury approximately 22 years later. The ALJ found Respondents’ expert more credible and persuasive than Claimant and denied and dismissed her claim for compensation.

 

Of Counsel Sheila Toborg and Associate Jessie M. Tasselmyer successfully defended against Claimant’s attempt to overcome a DIME in Thompson v. The Home Depot. Claimant alleged that the DIME failed to address her psycho-social issues impacting her physical condition. Claimant also alleged that her physical abilities at the time of the DIME were inaccurate due to the performance of a steroid injection prior to the exam. Respondents’ expert credibly testified that the findings of the DIME were appropriate, and that Claimant’s ongoing complaints were unrelated to the work injury. The ALJ relied on testimony of Respondents’ IME physician and the DIME report, stating that the report addressed all of Claimant’s complaints and conditions and that there was no convincing evidence that the DIME’s determination of MMI was invalid.

 

Of Counsel M. Frances McCracken, successfully defended a full contest claim in Garza v. Walmart Associates. Inc. dba Sam’s Wholesale Club. Claimant alleged he injured his back when he slipped on water at work. Claimant denied falling but stated he “significantly wind-milled his arms in a Charlie Chaplin like manner” to maintain his balance and felt a twinge in his back. Security video did not show Claimant wind-milled or cartwheeled his arms. It showed he walked, slipped, bent slightly forward, and did not spill any liquid from the cup he was carrying. Ms. McCracken elicited credible witness testimony that Claimant stated he worked on a 40-acre ranch and lifted 80-pound hay bales after the incident. Respondents’ expert testified there was no mechanism of injury that would cause Claimant’s complaints. The claim was denied and dismissed.

 

    Associate Dan Mowrey defended a compensability claim in Nunez v. Custom AG Pak, LLC before the Industrial Commission of Arizona. The Applicant asserted he injured his back and neck at work on December 1, 2017. He testified reporting the injury to “a younger gentleman in human resources”, who told him to rest. The Applicant stated he rested the remainder of his shift and went home. He sought medical treatment the next day in Mexico. He did not return to work for the employer. At the hearing, the Applicant’s brother testified Claimant injured his right shoulder; however, Applicant did not present a medical professional to show a connection between the alleged workplace exposure and injury in advance of the hearing as required by the Rules of Procedure before the Industrial Commission, A.A.C. R20-5-141. Applicant further did not file any medical records or other documentation. Therefore, the ALJ found that Applicant did not provide sufficient evidence to support his claim and ordered it dismissed.

 

 


John Abraham Of Counsel

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years. Several claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid. As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible. Employers and carriers usually protect themselves and recoup overpayment from future benefits owed. Several cases have emerged (as well as arguments from claimants) that recovery of overpayments is impermissible, unconstitutional, and burdensome. Continue reading the article.
 

Cases You Should Know

Death is Guaranteed but WC Benefits are Not: In Becirovic v. ICAO, 17CA1505 (August 16, 2018)(nfsp), Claimant passed away on November 19, 2013, before a hearing could be held on the issue of compensability in her workers’ compensation claim. On March 23, 2015, Dr. Hall sent Claimant’s attorney a letter opining Claimant’s work injury may have contributed to her death. Claimant filed a Dependent’s Notice of Claim on December 9, 2015. Respondents filed a Notice of Contest contending the claim was barred by the statute of limitations because it was filed more than two years after Claimant’s death pursuant to C.R.S. § 8-43-103(2). The ALJ dismissed the case as barred by the statute of limitations. Claimant appealed and asserted the statute of limitations should not have begun to run until he received Dr. Hall’s report at which time the nature and probable compensable nature of the injury was first recognized, City of Boulder v. Payne, 426 P.2d 194 (1967). However, the ALJ found Claimant had the medical records and information that were sent to Dr. Hall and provided no explanation as to why she waited more than a year after the death to obtain a medical opinion or to timely file a claim. The Court of Appeals affirmed the ALJ’s dismissal.

 

Moral of the Story: Comply with procedural and jurisdictional requirements because failure to do so may bar claims indefinitely.

 
 

ATP Trumps DIME Regarding Medical Treatment: Respondents sought to overcome a DIME finding that Claimant was not at MMI. The ALJ determined Respondents failed to overcome the DIME and ordered them to pay for the EMG and surgical consultation recommended by the DIME physician. Respondents appealed. The Panel found Respondents did not overcome the DIME, but it held the ALJ was without authority to order Respondents to pay for the surgical consultation. An ALJ may order payment for diagnostic testing because it serves an evidentiary purpose to determine MMI and impairment; however, surgical consultations constitute a medical benefit, which must be recommended by an ATP. Potter v. Grounds Service Company and Truck Insurance Exchange, W.C. No. 4-935-523 (August 2018).

 

Moral of the Story: A DIME is not an authorized provider and an ALJ does not have the authority to direct Respondents to pay for treatment recommended only by the DIME where there is no support from an authorized provider within the chain of referrals.

 
 

What a Relief: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant sought review of the ALJ’s Order denying Claimant’s request for “assistance with general home services and activities, including yard services…” The ALJ ruled that Claimant’s request for home and yard services “would not cure and relieve the symptoms and effects of the Claimant’s industrial injury” and that the “services were not incidental to medical treatment…” to relieve Claimant’s symptoms. The ALJ relied on the opinions of Respondents’ IME physician in rendering her decision. ICAO affirmed the credibility decisions of the ALJ and reasoned that the ALJ credited the testimony of Respondents’ IME physician more than the testimony of Claimant and her expert.

 

Moral of the Story: Medical treatment, including home health care, must be related to the industrial injury to cure and / or relieve symptoms of the industrial injury.

 
 

What a Relief, Part 2: In Rajabi v. Arvada Fire Protection District, W.C. No. 5-044-870-01 (February 22, 2018), Claimant appealed and argued that the ALJ erred in permitting the testimony of Respondents’ IME physician and the IME report due to failure to timely disclose the report. Respondents admitted that Respondents’ IME report was exchanged beyond the 20-day time period prescribed in Rule 9-1. ICAO ruled that the ALJ properly admitted the testimony and report of Respondents’ IME physician. ICAO reasoned that the IME report was properly admitted through the testimony of the IME physician. Furthermore, ICAO reasoned Claimant failed to exercise procedural safeguards prior to hearing. Specifically, Claimant did not request the report prior to hearing, had knowledge of the IME physicians’ testimony through Respondents’ interrogatories, and had an opportunity to cross-examine Respondents’ IME physician. The ALJ’s Order was affirmed.

 

Moral of the Story: Evidence, including anticipated testimony disclosed 21 or more days after hearing, may be precluded if the opposing party is not provided an opportunity to contest the late disclosure of evidence.

 
 

Lost Time, No DIME?: In Gibson v. Atlantic Relocation Services, W.C. NO. 5-020-939-01, ICAO affirmed the ALJ’s denial of Respondents’ request to strike the DIME. ICAO reasoned that the decision in Harman-Bergstedt v. Loofbourrow, 320 P.3d 327 (Colo. 2014), did not preclude the Claimant from pursuing a DIME when he suffered no wage loss or no lost time. ICAO agreed with the determinations of the ALJ that the Claimant suffered a “disability,” which is evidenced by his physical restrictions which impaired his ability to perform his job. In this case, Claimant was assigned work restrictions by the ATP. However, his Employer continued to pay his full wages. ICAO reasoned that a Claimant must obtain a DIME to challenge “the ATP’s MMI determination, the impairment rating, or both…” even if the Employer continues the Claimant’s wages despite work restrictions.

 

Moral of the Story: Even if a Claimant suffered no wage loss or no lost time, they are still permitted to obtain a DIME.

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years.   Several claimsOverpayment in WC Claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid.  As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible.  Employers and carriers usually protect themselves and recoup overpayment from future benefits owed.  Several cases have emerged, (as well as arguments from claimants), that recovery of over-payments is impermissible, unconstitutional, and burdensome.

 

The parties must always take into consideration that the workers’ compensation system is a gamble at every stage.   The parties often encounter substantial risk throughout the claim that could tip the scales in favor of one party or the other.  The Division IME is one such process.  Another example is a merits hearing and the ultimate determination of the ALJ.  Claimants risk that benefits paid earlier in the claim will suddenly become an overpayment based on the opinions of either a physician or a Judge, or both.

 

Pursuant to section 8-40-201(15.5), C.R.S., an overpayment is defined as: “money received by a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles. For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits under said articles.”

 

Recovery of overpayments is permitted within the Act.  Many examples exist in which a claimant may have been paid money that they were not owed.  Most of the time, Respondents recoup an overpayment from PPD or future indemnity.  However, in a situation in which there are no future benefits owed, the Act allows for garnishment of the claimant’s assets upon filing of a final order with the district court.  Section 8-43-306(1), C.R.S. states, “A certified copy of any final order of the director or an administrative law judge ordering the payment of  any penalty  or  repayment  of  overpayments  pursuant  to  articles 40 to 47 of this title may be filed with the clerk of the district  court  of  any  county  in  this  state  at  any  time  after  the  period  of  time  provided  by  articles  40  to  47  of  this  title  for  appeal  or  seeking  review  of  the  order  has  passed  without  appeal or review being sought or, if appeal or review is sought, after  the  order  has  been  finally  affirmed  and  all  appellate  remedies and all opportunities for review have been exhausted. The party filing the order shall at the same time file a certificate to  the  effect  that the  time  for  appeal  or  review  has  passed without appeal or review being undertaken or that the order has been  finally  affirmed  with  all  appellate  remedies  and  all  opportunities for review having been exhausted. The clerk of the  district  court  shall  record  the  order  and  the  filing  party’s  certificate in the judgment book of said court and entry thereof made in the judgment docket, and it shall thenceforth have all the effect of a judgment of the district court, and execution may issue thereon out of said court as in other cases. Any such order may be filed by and in the name of the director or by and in the name of the party in the worker’s compensation action who was injured by the violation of any provision of articles 40 to 47 of this title  or  who  was  found  to  be  entitled  to  repayment  of  overpayments under said articles.”

 

It is quite difficult for a claimant attorney to explain to their client that money that was previously received by a claimant, now had to be paid back to the carrier.  For example, when a Division IME physician backdates the date of MMI, and TTD that was paid during the prior MMI period, now becomes an overpayment; a claimant is often left with the burden of understanding how a physician can retroactively find that MMI happened earlier in time.  Another example is recovery of benefits against SSDI that is being collected.  Claimant sometimes believe that they are entitled to SSDI and TTD/TPD concurrently without an offset.

 

Many arguments have been made to the appellate courts unsuccessfully regarding collection of an overpayment.  One such argument involves “monies due and owed at the time of payment.”  Any money paid to the claimant at the time it was owed should not be an “overpayment” pursuant to the Act.  This argument was addressed by the Court of Appeals and they declined to follow it indicating that the Act allows for repayment of monies in situations in which the money was never due in the first place.  It wouldn’t be surprising for this line of thinking to be quickly eroded by a legislative change in which an overpayment is defied expressly in the statute by other means in which the facts of a case would not change the overall intentions of the way it was written.

 

For now, Respondents have one-year from the date the overpayment exists or accrued to claim it.  If it is not claimed, it is considered waived.  If an overpayment of indemnity exists on a file, it is best to claim it right away and strategize with counsel how best to recoup the overpayment.  Sometimes, remedies can be worked out with the claimant to make both parties happy and ensure that there is not prejudice to either side.  It can certainly prevent an Order being granted which puts the claimant is a difficult position of having to make a repayment of monies, when in all likelihood the money is either gone and/or has a very little chance of being seen again.

 

If you have any questions regarding an overpayment, recoupment, or strategy regarding benefits on a claim; please contact any of the attorneys at Lee & Brown, LLC.

 

 

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

Lee & Brown attended the 25th Annual PWC Golf Tournament held at Wellshire Golf Course on September 14th. Members Katherine Lee and Joshua Brown played on a team as well as Of Counsel Frank Cavanaugh and Bill Sterck. The Firm sponsored the Hole-in-One competition, which included a chance to win a $10,000 prize. While there was no hole-in-one, there was an Elway’s gift card giveaway, along with golf balls and tees. Everyone enjoyed the seasonably warm weather and refreshing beverages. Congratulations to all the players and to the PWC for putting on a great event.

 

Noteworthy Cases

Member Joshua Brown successfully defended against a National Labor Relations Board (NLRB) charge in Rood v. Colorado Professional Security Services, LLC. The charging party alleged that he and his spouse were retaliated against in violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”). The charging party alleged that he was named as a defendant in a lawsuit filed by the employer in retaliation for having initiated a wage and hour lawsuit against the employer. The employer filed the lawsuit against the charging party because of harassing conduct and a social media video. The NLRB found that there was no retaliatory motive.

Member Joshua Brown also successfully defended against a National Labor Relations Board (NLRB) charge in David v. Colorado Professional Security Services, LLC. The charging party alleged that he was disciplined and discharged in retaliation for joining a wage and hour lawsuit against the employer. Specifically, the charging party posted a video on social media criticizing the employer. The NLRB found that in the video, the charging party made several unprotected comments about his supervisor and employer’s owner. The NLRB found that the employer discharged the charging party for the unprotected conduct and disciplinary history, rather than in retaliation for any protected concerted activity.

 

In Rodarte v. Walmart Associates, Inc. (d/b/a Sam’s Wholesale Club), Of Counsel M. Frances McCracken, successfully defended against Claimant’s attempt to obtain both post-MMI medical maintenance care (in the form of additional physical therapy) and conversion of her scheduled rating of permanent impairment to whole person. The Claimant sustained a compensable injury after a baking tray fell off a shelf and crushed her right long finger. The matter eventually proceeded through the DIME process. The DIME physician opined that no post-MMI maintenance care was appropriate. At hearing, Ms. McCracken elicited evidence that the Claimant attained no meaningful benefit from approximately 80 physical therapy sessions, alongside other treatment modalities. With respect to conversion, Ms. McCracken highlighted evidence to the Court revealing that the Claimant could only show pain extending beyond her hand into the whole person. Ms. McCracken emphasized that mere pain is not enough to substantiate conversion; instead, the Claimant was required to show functional impairment or disability into the whole person. The Claimant’s requests for both the post-MMI medical care and conversion of the impairment rating were denied and dismissed.

 

Associate Matt Boatwright successfully defended a fully contested claim in Foster v. United Parcel Service. The Claimant asserted that he suffered a knee injury while delivering packages, despite completing his route, without report of an injury or any incident. The ALJ found that the Respondents’ employer witness testified credibly that the Claimant did not report any work injury until being informed that he was terminated for insubordination. The employer witness also testified credibly that the Claimant did not appear to have a limp until after he was terminated. Respondents’ IME expert credibly opined that it was medically unlikely that the Claimant’s condition would have become worse while off work without an aggravating activity. The ALJ denied and dismissed the Claimant’s claim for compensation.

Associate Matt Boatwright also successfully defended against compensability in Floyd v. United Parcel Service. The Claimant claimed that he injured his shoulder while detaching a tractor trailer. While the Claimant admitted that he had previously injured the shoulder in a prior motor vehicle accident and had undergone some limited conservative treatment, he denied having any other prior issues with the shoulder. The medical evidence reflected that the Claimant had chronic shoulder issues, a preexisting motor vehicle accident injury, as well as more recent pain from his personal recreational activities. The Respondents’ medical expert testified credibly that the Claimant’s MRI findings reflected a degenerative rotator cuff tear, which was not likely the result of a single, acute incident. The ALJ favored the opinion of the Respondents’ medical expert over the Claimant’s testimony and denied and dismissed the claim.

 

The Cross Contamination between Workers’ Compensation and OSHA:
Considerations for Handling Blood-Borne Pathogen Claims in Colorado and Arizona.

Exposure to blood-borne pathogens presents unique risks in the work place. Workers in health care or in-resident home care are, on a daily basis, subject to the potential of disease transmitted by bodily fluids. Given the ubiquitous daily potential for exposure to workers across the board, from direct patient care workers to maintenance workers to transport personnel, risk managers and adjusters need to understand the overlap with workers compensation and the Occupational Safety and Health Administration’s (“OSHA”) rules. Understanding exposure and needlestick law is critical to containing risks as well as protecting employees from life-altering danger. Continue reading the article.
 

Cases You Should Know

Take this Job and Shove It: Modified job offers and initial entitlement to TTD benefits: In Valle v. Precision Drilling, W.C. No. 5-050-714-01 (January 8, 2018), Respondents sought review of the ALJ’s Order requiring them to pay TTD benefits. Claimant sustained an admitted injury in his position as a floor hand. Claimant was put on temporary work restrictions and offered a modified job duty prior to missing any work. He declined to accept the modified job duty offer and sought TTD benefits. Respondents declined to pay TTD benefits, relying on C.R.S. §8-42-105(3)(d)(1), which states that refusal to accept a modified job duty offer may serve as a basis for terminating TTD benefits. The ICAP ruled that Respondents incorrectly relied on C.R.S. §8-42-105(3)(d)(1) because Claimant was neither entitled to nor receiving TTD benefits when the modified job duty offer was made. ICAP did state that the refusal to accept the modified job duty offer would be a proper factor to consider in determining Claimant’s initial entitlement to temporary disability benefits but the applicable statute would be C.R.S. §8-42-103(1), which establishes a Claimant’s initial entitlement to temporary benefits and not the termination statute, C.R.S. §8-42-105(3)(d)(1).

Moral of the Story: Refusal to accept a modified job duty offer may be considered in determining initial entitlement to TTD benefits if refusal of the job offer is the cause of the Claimant’s wage loss pursuant to C.R.S. §8-42-103(1).

 

Take this Job and Shove It Part 2: More fun with modified job offers and TTD benefits: In Willhoit v. Maggie’s Farm, W.C. No. 5-054-125 (March 14, 2018), Claimant sought review of an ALJ’s Order denying TTD benefits. Claimant sustained a work-related injury in his position as a Cultivation Technician for a marijuana farm and was placed on temporary work restrictions. He then received a modified job duty offer, which was approved by his ATP, to trim buds in the cultivation room. Claimant refused the modified job offer on the basis that he believed it violated his work restrictions, due to treatment recommendations by his ATP to rest, apply ice, compress, stretch, and elevate his knee. Respondents denied Claimant’s request for TTD benefits due to his failure to accept the modified job duty offer. ICAP found that Claimant’s refusal of the modified job offer was not reasonable because his ATP was aware of his treatment recommendations and physical limitations when he approved the Claimant’s modified job offer.

Moral of the Story: An ATP’s treatment recommendations are not the same as work restrictions for purposes of a modified job duty offer.

 

He Said. She Said. Challenging an ALJ’s factual determinations with conflicting medical opinions: In a Colorado Court of Appeals decision, Old Dominion Freight Line, Inc. v. ICAO, 17CA1959 (July 19, 2018)(nsfp), Respondents sought review of a final ICAO Order upholding an award of PTD benefits. The ATP found Claimant sustained brain, central nervous system, and psychiatric injuries in his work-related motor vehicle accident and was permanently and totally disabled. The first DIME physician found Claimant had reached MMI for the cervical, shoulder, and spine injuries but required additional treatment for the brain injury. Respondents sought a second DIME after substantial treatment had been rendered. The second DIME physician disagreed that Claimant suffered any permanent impairment from a brain injury, an injury to the central nervous system, or psychiatric issues. Claimant sought to overcome the DIME’s findings and the ALJ agreed, finding that Claimant was permanently and totally disabled. ICAO held the ALJ relied on several opinions of treating physicians in reaching his determination that Claimant sustained a traumatic brain injury that caused profound psychological dysfunction. While ICAO acknowledged the difference in medical opinions, it held the ALJ’s factual determinations were binding – even when there was conflicting evidence. ICAO held substantial evidence supported the ALJ’s findings and thus the Panel’s decision affirming the award of benefits should be sustained.

Moral of the Story: An ALJ’s factual determinations regarding the DIME’s findings and PTD benefits are difficult to overcome in claims with conflicting evidentiary interpretations because it is the ALJ’s discretion to determine credibility of witnesses with differing opinions.

 

Quantity > Quality: Substantial Employment to determine proper jurisdiction: In Turner v. ICAO, 17CA1647 (July 19, 2018) (nsfp), Claimant sought review of the dismissal of his claim on jurisdictional grounds. Claimant was a resident of British Columbia and a Canadian citizen. Claimant was hired as a truck driver by a Canadian based company to haul goods throughout Canada and the western United States. While making a lumber delivery in Henderson, Colorado, Claimant slipped on ice and sustained injuries to his hips, shoulders, and neck. At hearing, the ALJ noted Claimant was only entitled to benefits under Colorado law if he established that a substantial portion of his employment was performed in Colorado. Because 90% to 95% of Claimant’s working hours were outside of Colorado, the ALJ determined he lacked jurisdiction to hear the claim. Claimant alleged that his nine trips to various locations throughout Colorado over an eight-month period evidenced routine and regular work in the state. Claimant advocated a qualitative over quantitative analysis should be used in determining whether Colorado was the proper jurisdiction. ICAO noted that a substantial portion of the employee’s work must be performed in Colorado and that the quantitative analysis used by the ALJ was the appropriate standard. ICAO affirmed the Panel’s Order that substantial evidence supported the ALJ’s determination that Claimant’s time in Colorado was insubstantial and did not meet the jurisdictional minimums.

Moral of the Story: Jurisdictional analysis for substantial employment is quantitative, not qualitative, in nature.

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