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.

Legal Connection Firm Newsletter – October 2017

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.

Please follow us on LinkedIn

 


In the News
NAMWOLF Law Firm - Lee & BrownMember Joshua D. Brown, Of Counsel John Abraham, and Office Manager Denise Iannotti attended the NAMWOLF Annual Meeting in New York City, which took place September 16 through September 20. This year’s meeting was the largest attended NAMWOLF meeting to date. NAMWOLF helps to promote diversity in the legal profession by fostering successful relationships among preeminent minority and women-owned law firms and private/public entities. The annual meeting is held every September to allow NAMWOLF member firms to provide greater insight into each Member Law Firm’s experience and capability to handle complex legal matters. The annual meeting also provides the opportunity to network with NAMWOLF Leadership, meet with prospective clients, and forward diversity among member law firms and vendors. Josh, John, and Denise represented the Firm and attended several meetings and social functions promoting the Firm’s diversity and practice areas.

Victory Lap

Fran McCracken Of Counsel AttorneyOf Counsel M. Frances McCracken successfully overcame the DIME physician’s opinion on permanent impairment by clear and convincing evidence in Smith v. Interactive Corp., W.C. No. 4-967-607-01. Claimant sustained an admitted injury to the left shoulder. Claimant was placed at MMI with a 5% scheduled impairment rating. Respondents filed a FAL. Claimant requested a DIME. The DIME physician agreed with the ATP’s date of MMI, but assigned Claimant a 25% scheduled impairment rating. Respondents sought to overcome the DIME. Respondents’ expert opined the DIME physician failed to review and / or account for Claimant’s pre-existing conditions/injuries to the left shoulder, did not account for the discrepancies in Claimant’s subjective complaints versus those documented in the records, and failed to provide an explanation of the 25% scheduled rating pursuant to the AMA Guidelines. The ALJ determined, by a preponderance of the evidence, that Claimant suffered a 5% scheduled impairment rating to the left shoulder. The ALJ concluded that Claimant failed to prove by a preponderance of the evidence that he was entitled to maintenance care other than as recommend by the ATP.

In a second win, Of Counsel McCracken successfully defeated Claimant’s request for appeal in Jaterka v. Johnson & Johnson, W.C. No. 4-978-459 (ICAO September 11, 2017). Claimant suffered an admitted injury to her left wrist and elbow. Claimant also complained of a left shoulder injury; however, Claimant’s ATP opined that the left shoulder injury was not work related. Claimant was placed at MMI. Respondents filed a FAL. Claimant did not object. Claimant later sought treatment with her personal physician for her left shoulder and underwent surgery. Almost one year later, Claimant filed an Application for Hearing endorsing the issues of compensability, medical benefits, petition to reopen claim, TTD, PPD, MMI and “medical reimbursement.” In the ALJ’s Order on remand, he credited the opinion of the ATP who found that Claimant’s shoulder injury was not work-related. The Claimant failed to meet her burden of proving that the treatment provided by her personal provider was authorized or related to the admitted work injury. Claimant’s Petition to Reopen was also denied as Claimant failed to present any evidence to show that the ATP erred in his diagnosis, treatment or placement of Claimant at MMI. ICAO affirmed.

Matthew Boatwright AttorneyAssociate Matt Boatwright successfully challenged compensability of an alleged low back injury in Anstey v. United Parcel Service and Liberty Mutual Insurance. Claimant asserted that she suffered a back injury while lifting packages during the busy Christmas season. Claimant initially denied to her supervisors that her back condition was related to her work activities, instead claiming that the condition was from a prior injury at work. However, after examination by a physician, Claimant was told that her condition was not related to the prior injury. Claimant then claimed that she had aggravated her back while lifting at work. The ALJ denied and dismissed the claim for compensation finding that there was no evidence of a work-related injury.

 


Fran McCracken Legal Analysis

Fran McCracken Of Counsel AttorneyLEGISLATIVE UPDATE—FIRST RESPONDERS’ COVERAGE FOR PTSD
2017 saw more legislative action related to workers’ compensation than Colorado has seen for the past few years. Three bills were introduced in the Colorado Legislature and all three passed. One of the newly enacted bills, HB 17-1229, was enacted on June 5, 2017, with an effective date of July 1, 2018 (subject to exception). It amends section 8-41-301, C.R.S., relating to the conditions of recovery for claims of mental impairment. Click here to continue reading this article.

 


Cases You Should Know

The ALJ Runs the Show: In Villegas v. Denver Water, W.C. 4-889-298-04 (August 22, 2017), Claimant lost on the issue of PTD benefits. Claimant appealed arguing that the ALJ erred in allowing Respondents’ expert witness to testify while denying Claimant’s request to sequester the Respondents’ expert witness, and denying Claimant’s request to call a rebuttal witness. Claimant also argued that the PTD standard was unconstitutionally vague, and that the ALJ did not have jurisdiction to hear the dispute because of the failure to set the hearing within the 180-day window. The ICAO determined it was within the ALJ’s discretion to determine which testimony to allow, and that witness preclusion is just one of several sanctions available to an ALJ for discovery violations. The ICAO refused to address the facial constitutionality of the PTD standard due to lack of authority. Finally, the ICAO upheld the ALJ’s finding that he had jurisdiction to hear the case, despite being outside 180 days from the Application for Hearing, noting that the 180-day window was “directory” rather than “jurisdictional.”

Moral of the story: Arguing every possible ground for appeal may be less persuasive than focusing on your strongest arguments.

No Back-Door Medical Treatment for Denied Claims: In Madonna v. Walmart, W.C. 4-997-641-02 (August 21, 2017), an employee suffered a heart attack at work. Claimant obtained emergency medical treatment and later sought unauthorized medical care. The matter went to hearing on the issue of compensability. The ALJ found that Claimant did not suffer a work-related injury. Nevertheless, the ALJ ordered the Respondents liable for the emergency medical treatment. The Respondents appealed. ICAO agreed that there can be no award for emergency medical treatment when the emergency treatment is not related to a work injury.

Moral of the story: The emergency medical care exception is not an exception to the rule that a claimant must prove medical care is related to a work injury.

An “Exceptional” Tale of a Compensable Injury: In Barnes v. City and County of Denver Police Department, W.C. 5-003-724-04 (August 25, 2017), a Denver Police Officer was injured when he crashed his work issued motorcycle. Respondents denied liability, claiming he was traveling from work to his home following the end of a work shift. Therefore, the injury was not compensable in accordance with the “going to and coming from” Rule. The matter went to hearing. The presiding ALJ found Claimant’s injury compensable because Claimant’s travel was “contemplated by the employment contract” and there was a substantial mutual benefit for Claimant’s use of the motorcycle after work. Respondents appealed. The Order was affirmed as to compensability.

Moral of the Story: Additional written agreements conferring a substantial benefit between employer and claimant is an exception to the “going to and coming from” Rule as it is contemplated by the employment contract.

Who Knew? Sick Leave is not “Wages:” The second issue in Barnes v. City and County of Denver Police Department involved wage continuation pursuant to C.R.S. §8-42-124(2). Claimant used sick time for the work injury. Respondents asserted Claimant was paid his full wages during this time and therefore, they did not owe temporary benefits. The ALJ ruled the Employer was required to reinstate Claimant’s sick time, and convert the wages paid to “work injury leave.” On appeal, Respondents alleged the ALJ did not have jurisdiction to order the Employer to restore Claimant’s sick leave. ICAO modified the ALJ’s Order and ruled wage continuation may not charge sick time to offset temporary benefits. Once a claimant is charged earned sick leave, the employer cannot reduce its liability for temporary disability benefits. The employer must directly compensate claimant for temporary total disability benefits for time missed.

Moral of the Story: Employers cannot take an offset against sick leave for reducing TTD payments.

Liar, Liar, Pants on Fire: Jones v. Regis Corporation, W.C. 4-976-657 (August 18, 2017), involves a contested neck injury. At hearing, Claimant admitted a prior neck injury, but testified her symptoms “completely resolved” before the work injury. An ALJ found the claim compensable. A DIME found Claimant at MMI with an impairment. Respondents later discovered numerous medical records of Claimant for extensive prior treatment to the cervical spine. This included treatment that was just two days before the alleged work injury. Respondents sought to reopen the Order on the basis of fraud/mistake and withdraw the admission. At the second hearing, the ALJ found Respondents proved, by a preponderance of the evidence, the previous Order was issued by mistake, and set aside the prior Order. Claimant appealed and argued the ALJ erred because Respondents had the burden to overcome the DIME opinion that there was a work injury by clear and convincing evidence. ICAO disagreed. It held that the initial burden is to prove, by a preponderance of the evidence, an injury occurred in the course and scope of employment. C.R.S. §§8-41-301(1)(c) and 8-43-201. In this case, Respondents had the burden to prove the injury did not occur in the course and scope of employment since they sought to modify an admission and set aside the prior Order. C.R.S. §8-41-201(1). The burden of proof remained preponderance of the evidence because it is the threshold requirement to prove before compensation is awarded.

Moral of the Story: The burden of proof of whether there is a compensable injury is preponderance of the evidence. Once an injury is admitted, then the burden of proof as to the extent of a compensable injury, as found in a DIME, is clear and convincing evidence.

On the Road Again: In Turner v. Sunrise Transport, W.C. 4-981-338 (August 23, 2017), Claimant was an over the road truck driver hired in British Columbia. His employer’s company headquarters is in British Columbia, Canada. Claimant was injured while making a delivery in Colorado and sought Colorado workers’ compensation benefits. Respondents argued Colorado lacked jurisdiction. The ALJ found only 6.2% of Claimant’s work was performed in Colorado, which was insubstantial to create jurisdiction, and dismissed the claim. Claimant appealed. ICAO noted for jurisdiction, a substantial portion of the work must be done in the state and, in addition, it must be shown there was either an injury occurring in the state or a contract of hire in the state. United States Fidelity Co. v. Industrial Commission, 61 P.2d 1033 (1936). To determine whether there is substantial portion of work performed in the state, the ALJ may consider the Claimant’s “usual” and “regular” employment. Whether Claimant proved substantial employment was a factual determination for an ALJ. ICAO affirmed the ALJ’s Order.

Moral of Story: Though an injury may occur in Colorado, the state may not be the proper place to file the claim.

LEGISLATIVE UPDATE — FIRST RESPONDERS’ COVERAGE FOR PTSD

2017 saw more legislative action related to workers’ compensation than Colorado has seen for the past few years.  Three bills were introduced in the Colorado Legislature and all three passed.  One of the newly enacted bills, HB 17-1229, was enacted on June 5, 2017, with an effective date of July 1, 2018 (subject to exception)[1].  It amends section 8-41-301, C.R.S., relating to the conditions of recovery for claims of mental impairment.  Under the current law, an employee can file a “mental only” (i.e., there is no associated physical injury) claim only as a result of employment-related situations consisting of a “psychologically traumatic event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances”.   The claimed mental impairment must be proven by the testimony of a licensed physician or psychologist.  Strict judicial interpretation of this statutory language resulted in the de facto disqualification of police officers, firefighters, EMTs and other first responders from the receipt of mental impairment benefits for PTSD claims because violent and bloody incidents, including the deaths of others, were deemed to be within their “usual” work experience.   While it is true some of these professionals do encounter repeat exposure to horrific events as part of their typical work experience without impact, others struggle to secure the coverage and psychiatric care they need to help them deal with gruesome work situations, which might be “expected” in their occupation, but are still somewhat atypical.  Section 8-41-301, C.R.S., as amended, allows workers to claim workers’ compensation coverage for PTSD in a limited set of circumstances, based on repeated exposure to violent incidents.  It also retains the statute’s existing requirement that, outside the few exceptions that apply primarily to peace officers and first responders, mental impairment coverage is implicated only when an incident is outside a worker’s usual experience.  As before, a mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. To qualify for mental impairment benefits under the amended statute, the worker must be diagnosed with PTSD by a licensed psychiatrist or psychologist following exposure to one or more of the following events:

 

  • The worker is the subject of an attempt by another person to cause the worker serious bodily injury or death through the use of deadly force, and the worker reasonably believes the worker is the subject of the attempt;
  • The worker visually witnesses a death, or the immediate aftermath of the death, of one or more people as a result of a violent event; or
  • The worker repeatedly visually witnesses the serious bodily injury, or the immediate aftermath of the serious bodily injury, of one or more people as the result of the intentional act of another person or an accident.

 

These changes to the mental impairment statute achieve a balance that is fair to first responders, while maintaining appropriate limitations on coverage for others in nonviolent occupations, and protecting the interests of employers and insurers.  The act applies to injuries sustained on or after its effective date, July 1, 2018.

If you have questions about the recently enacted workers’ compensation legislation, or any questions about workers’ compensation, please contact Lee + Kinder LLC.

 

[1] This act takes effect July 1, 2018; except that, if a referendum petition is filed pursuant to the applicable state constitutional provision, then the act will not take effect unless approved by the people at the November 2018 general election.

Legal Connection Firm Newsletter – August 2017

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.
Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Member Joshua Brown, Of Counsel Frank Cavanaugh, and Associate Jessica Melson attended this year’s Colorado Defense Lawyers’ Association (CDLA) annual conference. This year the conference was held in beautiful Santa Fe, NM, where the focus was on various nuisances in defending claims across Colorado. The conference was well attended by the CDLA members and offered a variety of presentations by various judges.

 

Frank Cavanaugh Of Counsel AttorneyOf Counsel Frank Cavanaugh, as a Vice Chair of the workers’ compensation section of the CDLA, arranged for speakers for the 2017 conference. When one speaker could not attend, Frank became a speaker as well. He and Ron Nemirow, Esq. spoke on the complicated relationship a workers’ compensation attorney has in representing both the carrier and employer, given potentially conflicting positions of both entities.

 

 


Victory Lap

Fran McCracken Of Counsel AttorneyOf Counsel M. Frances McCracken was successful in defending Claimant’s attempt to impose penalties against Respondents for failure to timely pay PPD benefits in Valencour v. Best Buy, W.C. 4-936-414. Claimant sought penalties against Respondents for their failure to pay PPD benefits in full following a DIME which increased his permanent impairment rating. Respondents filed an Amended FAL admitting to the DIME rating, but erroneously believed that they had paid Claimant’s PPD benefits in full. However, through an accounting error, Respondents still owed Claimant a portion of his PPD benefits that were admitted for in the Amended FAL. Claimant filed for penalties against Respondents under C.R.S. § 8-43-304(1) and (2). At hearing, the ALJ found that while Respondents failed to properly pay Claimant his PPD benefits following the DIME, it was not willful. Further, the ALJ found that Claimant failed to plead his penalties with specificity. In turn, the ALJ dismissed and denied Claimant’s claim for penalties.

 

John M. Abraham Denver AttorneyOf Counsel John M. Abraham successfully defended Claimant’s attempt to overcome the DIME and successfully terminated Claimant’s admitted maintenance medical benefits in Stotler v. Walmart Stores Incorporated, W.C. 4-974-840. The DIME physician assigned Claimant a 6% scheduled upper extremity impairment rating. At hearing, Claimant alleged she was not at MMI, alleged that her left shoulder was also injured due to overuse and overcompensation, and sought an additional 10% impairment in the right shoulder because she underwent a resection of the bone during shoulder surgery. The ALJ credited the testimony of Respondents’ medical expert who testified that: Claimant was at MMI for her injuries, the DIME physician did not err in his causation opinions regarding the left shoulder, and that Claimant was not entitled to an additional impairment for a distal clavicle resection because Claimant had undergone an acromioplasty. The expert explained that an acromioplasty is a minor shaving of the bone which is different from a resection of the bone. Further, the expert testified that it is not mandatory to assign a 10% impairment for a resection of the bone and that it is at the discretion of the physician assigning impairment. Additionally, the ALJ permitted Respondents to terminate Claimant’s maintenance medical benefits based on the ATP’s and Respondents’ experts’ opinions that maintenance medical benefits were not reasonable, necessary or related.

 

Of Counsel John M. Abraham also successfully withdrew a General Admission of Liability (GAL) and obtained a full dismissal of Claimant’s ongoing workers’ compensation benefits for a previously admitted cumulative trauma injury in Covarrubias v. Dave & Buster’s Incorporated, W.C. 5-025-695. Claimant alleged a cumulative trauma injury to her right upper extremity that she attributed to her work-related duties as cleaner, most notably scooping ice. Claimant’s ATP ordered a Physical Demands Analysis and Risk Factor Assessment. An IME was conducted at the request of Respondents which confirmed that the Claimant’s job duties did not meet the threshold requirements for any primary or secondary risk factors under the revised Cumulative Trauma Disorder Guidelines pursuant to Rule 17. The ALJ credited Respondents’ medical expert finding Claimant performed several different activities throughout the day and that many of the activities did not meet the minimal force or time duration requirements. As a result, Respondents were permitted to withdraw the GAL and Claimant’s claim for workers’ compensation benefits was denied and dismissed.

 


Frank Cavanaugh Of Counsel Attorney

     

 

 

 

SETTLEMENTS POST ENGLAND

The Colorado Supreme Court issued an opinion on May 30, 2017 in England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017). This case involved settlement of workers’ compensation matters and may even affect settlement of liability matters in a personal injury case. The case has significant ramifications for employers and carriers moving forward. Click here to continue reading this article.

 


Cases You Should Know

No Immunity for You: In Am. Family Mut. Ins. Co. v. Ashour, the Court of Appeals held that a Claimant could recover underinsured motorist (UIM) benefits from his personal auto insurance policy in addition to WC benefits in cases where the incident was the result of a co-worker’s negligence. (May 18, 2017, Colo. Ct. App.). In this case, Claimant was severely injured in a truck accident caused by a co-worker. The employer paid benefits under the admitted WC claim, but Claimant could not recover from the at-fault co-worker for his remaining damages because the WC Act was his sole remedy. Thus, Claimant filed a claim with his personal auto insurance policy to recover the remainder of his damages from his UIM benefit coverage. The auto insurance carrier denied the claim and argued that Claimant could not recover UIM benefits because he was not “legally entitled to recover” damages from the at-fault co-worker because of the immunity. The Court disagreed and held that the immunity given to employers and co-workers under the WC Act does NOT bar an injured employee from recovering damages from his personal insurer. The Court reasoned that Claimant was entitled to recover from the co-worker under the terms of his personal auto policy. The fact that the co-worker was ultimately immune from suit under the WC Act did not impact the decision because the policies behind the WC Act and the UIM coverage were not in conflict and Claimant was not trying to recover additional damages from the immune co-worker.

Moral of the story: While employers and co-workers have immunity under the WC Act, the immunity will not protect automobile insurance carriers from having to pay UIM benefits to claimants who have UIM coverage policies and are injured as a result of the negligence of their employer or co-workers.

 

The No-Mans’ Land of Medical Only Claims: In Trujillo v. Elwood Staffing and Zurich Am. Ins. Co., ICAO dealt with the question of when a medical-only claim can close and what impact a DIME opinion has on this type of claim. (W.C. 4-957-118, ICAO June 22, 2017). Here, Respondents filed a FAL admitting for no lost time and no permanent impairment based on a follow-up DIME report. Claimant pursued a hearing where the ALJ found that he failed to overcome the DIME opinion. On appeal, ICAO reiterated their previous holding that the DIME’s determination of MMI has no statutory significance with injuries that do not result in the loss of more than 3 days of work or permanent disability. Because the DIME opinion on MMI had no impact, ICAO held that (1) Claimant’s claim was not closed, (2) the FAL was premature, and (3) the FAL did not preclude the Claimant from requesting further medical benefits. ICAO held that Claimant would need to prove the reasonableness, necessity and relatedness of any disputed medical benefit in the future, but would not have to prove a worsening of condition to formally reopen the claim in order to get the medical treatment.

Moral of the story: Do not file a GAL unless you are required to because of (1) a loss of more than three days of work, (2) anticipated permanent impairment, or (3) the Division is demanding a position because a claim for compensation was filed. We anticipate that the Colorado legislature will resolve some of these issues soon.

 

Medical v. Financial Services: In Nanez v. Mechanical & Piping, Inc. and Pinnacol Assurance, ICAO held that conservator and guardian services for a Claimant with a brain injury were not compensable under the WC Act because they were not medical in nature and did not enable access to medical services. (W.C. 4-922-618, ICAO June 16, 2017). Claimant sustained a traumatic brain injury, which impacted his short-term memory. The Colorado District Court appointed a conservator and guardian to monitor Claimant’s finances and protect his personal property. Both charged hourly fees to Claimant’s estate. Claimant filed an Application for Hearing requesting that Respondents pay for these services because the injury caused his need for the services. ICAO agreed with the ALJ that the conservator and guardian services were not medical in nature and not compensable expenses. ICAO also agreed with the ALJ that the ALJ did not have authority to authorize these services based solely on the appointment by the District Court. However, ICAO indicated that Claimant would be able to ask the ALJ to approve specified services that could be classified as medical treatment and have Respondents reimburse his estate for the cost of those specific compensable services.

Moral of the story: If the requested services are not medical or enable the access to medical care, the services are not likely compensable under the WC Act and should be denied.

 

Volunteers truly work for “nothing”: In Lewis v.Wellbridge/Starmark Holding and XL Specialty Insurance Company, W.C. N0. 5-006-772 (June 12, 2017), Respondents appealed an Order from the ALJ that found Claimant’s injury compensable because he was an employee and not a volunteer. Claimant contracted with the Employer to run demonstration basketball clinics initially as a volunteer. The contract stated that after the demonstration clinics were completed, Claimant would be paid on a commission basis for any future clinics. Respondents argued that Claimant was a volunteer on the date of injury because he was not paid for the demonstration clinic on the date of injury and therefore, not entitled to workers’ compensation benefits. The ALJ disagreed and ICAO affirmed, finding that a volunteer was a person who gives his services without any express or implied promise of payment.

Moral of the story: If you promise to pay someone wages as an employee, you better have workers’ compensation insurance.

 

Define incidental . . . : In Schwartz v. Dillion Companies, W.C. No. 3-989-875 (June 5, 2017), Claimant sought review of an ALJ’s Order which denied Respondents’ liability to pay for household chores performed by Claimant’s son. Claimant contended performing household chores would increase her pain. ICAO explained that the law required an ALJ to find either that Claimant’s son’s assistance was ‘incidental’ insofar as it allowed Claimant to access medical care, or that his help not related to accessing medical care was only a small portion of his total assistance. ICAO stated a prior ICAO decision held housekeeping services allowing a claimant to avoid activity that would aggravate pain could be denominated ‘medical’ for that reason; however, the Court of Appeals reversed the decision. ICAO reviewed the type and amount of services provided in this claim and found no reason to disturb the ALJ’s decision.

Moral of the story: Performance of household chores must be incidental to medical treatment to be compensable. Courts have interpreted incidental to mean allowing a claimant to access medical care or as quantifying the amount of household chores as small in comparison to total assistance rendered.

 

Don’t dismiss the “Impairment Rating Tips” as a paper tiger: In Kromer v. State of Colorado, W.C. No. 4-965-485 (July 6, 2017), Claimant appealed an ALJ’s Order which credited a physician’s opinion on impairment rating for the knee which included a reduction in the rating for range of motion loss in the contralateral knee. Claimant argued there was no basis in statute or rule to allow reduction for ROM loss based on ROM loss in the contralateral knee. ICAO noted the Division of Workers’ Compensation “Impairment Rating Tips” provide that when deemed appropriate, a physician may subtract contralateral joint ROM impairment from the injured joint’s ROM impairment. ICAO affirmed the ALJ’s Order, citing case law which provides that the “Impairment Rating Tips” are not part of the AMA Guides but may be relevant to the impairment rating. Therefore, a physician’s application of the tips goes to the weight an ALJ gives to an impairment rating.

Moral of the story: While the “Impairment Rating Tips” do not hold the force of statute or rule, ICAO extends deference to DOWC’s interpretation of the AMA Guides as set forth in the “Impairment Rating Tips.”

 

Everybody hurts sometimes but it does not necessarily rise to the level of a compensable mental impairment claim: In Ashton v. City and County of Denver, W.C. No. 5-010-884 (June 8, 2017), Claimant appealed an ALJ’s Order denying and dismissing his claim for mental impairment benefits and raised numerous allegations of error. ICAO rejected all of Claimant’s allegations. In pertinent part, ICAO explained that a claim for mental impairment is governed by § 8-41-301(2), C.R.S, which provides that a claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. ICAO referenced case law which explained that the statute on mental impairment seeks to limit recovery to those permanent mental impairments that have a disabling effect on the sufferer.

Moral of the story: When an injury is the result of an emotional stimulus that results in mental impairment, a heightened standard of proof is required to prevent frivolous claims.

SETTLEMENTS POST ENGLAND

The Colorado Supreme Court issued an opinion on May 30, 2017 in England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017).  This case involved settlement of workers’ compensation matters and may even affect settlement of liability matters in a personal injury case.  The case has significant ramifications for employers and carriers moving forward.

 

BACKGROUND

Mr. England was a truck driver for the employer. He injured his shoulder at work in December 2012 and filed a workers’ compensation claim.  He had two surgeries in the first half of 2013 to address the shoulder injury.  Respondents conducted an IME in July 2013 and the physician offered an opinion that the claimant was approaching MMI and would likely reach MMI in about two months.  Claimant agreed to settle his workers’ compensation case in September 2013, despite still having some pain, for $35,000.  The current standard settlement form from the Division was used to settle the claim pursuant to W.C.R.P. 9-9(A). The form contains standard language that cannot be altered per the Rule. Paragraph 4 incorporates the statutory right to reopen for a mutual mistake of material fact under Section 8-43-204(1), C.R.S., and paragraph 6 contains claimant’s waiver of any “unknown injuries.”  Mr. England attempted to reopen his settlement, after it was approved in October 2013, when diagnostic testing revealed a scapular fracture.  It was undisputed that the parties did not know a fracture existed at the time of settlement and there was no evidence that the fracture definitively existed at the time of settlement.  Instead, there was testimony that the fracture could have existed at the time of settlement or could have developed later.  Mr. England’s basis for trying to reopen the settlement was that the scapular fracture was a mutual mistake of material fact and he would not have settled had he known it existed.

At hearing, the ALJ found that the scapular fracture existed at the time of settlement, but reopened the claim on the mutual mistake of fact that the parties believed claimant was approaching MMI when the case was settled.  She further found that, had claimant known that he had a scapular fracture, he would not have settled.  The ALJ’s Order was affirmed at the ICAO level and was appealed further to the Colorado Court of Appeals.  The Colorado Court of Appeals reversed the ICAO and the ALJ’s decisions, finding that the scapular fracture fell into the category of unknown injuries that claimant waived in paragraph 6 of the settlement agreement; ignoring that the mutual mistake relied upon by the ALJ to reopen was that claimant was approaching MMI.

The Colorado Supreme Court took the case and reversed the Colorado Court of Appeals.  The Supreme Court held that the paragraph 6 waiver does not apply to conditions unknown, but existing at the time of settlement.  In this instance, the Supreme Court held that the mutual mistake of fact between the parties was the existence of claimant’s scapular fracture.

 

ANALYSIS

The Colorado Supreme Court has effectively taken two categories of facts existing at the time of settlement, known and unknown, and carved-out a third type of fact that can serve as a basis to reopen settlement, “unknown, but existing facts.”   The logic of this is confusing.  For a fact to be mutually mistaken between the parties, it requires the fact to be known, rather than unknown.  Notwithstanding this logical conundrum, the question remains how to proceed with settlements moving forward.

 

AFTER ENGLAND

The Division settlement form allows for additions in paragraph 9.  9(A) can contain settlement language that is both specific to the settlement agreement and involves an issue that falls within the Workers’ Compensation Act.  Paragraph 9(B) can reference exhibits attached to the settlement agreement related to the workers’ compensation claim, such as Medicare set-aside arrangements.  Paragraph 9(C) can reference other attached written agreements that include matters outside of the Workers’ Compensation Act, such as employment releases, or bad-faith waivers.  Material referenced in paragraphs 9(B) and 9(C) are outside of the enforcement parameters of a Division or Office of Administrative Courts.

Recent attempts have been made to build-around the England decision by including language in paragraph 9(A), and having claimant expressly waive any ability to reopen a claim based on an unknown condition resulting from the work injury.  In some instances, this has been met with objection and a motion to strike this language under 9(A).  At least one pre-hearing conference order has been issued striking this type of language as contrary to the England holding that the paragraph 6 waiver cannot limit the right to reopen under paragraph 4.

Other recent attempts have been made to protect against the effects of the England decision by including terms requiring repayment by claimant of any settlement amounts if the claim is reopened based on a mutually mistaken existing, but unknown, condition.  This has also been met with resistance but Lee + Kinder LLC is unaware of any prehearing conference order striking this type of language.

 

BOTTOM LINE

The England decision certainly disrupts settlements of workers’ compensation claims.  It calls into question the one reason to settle the case, which is finality.  While there is potential for a legislative fix to this problem, settlements need to be negotiated and properly documented until this type of fix can be accomplished.  The England decision can still be built-around.  Agreements under paragraph 9(A) waving the right to reopen based on an unknown, but existing, condition may not work in that location; however, as a separate agreement exhibited under 9(B) and/or 9(C), they should be independently enforceable outside of the workers’ compensation system.  Further, repayment of settlement money in the event of a reopening should be enforceable under 9(A) in the workers’ compensation system or independently under 9(B) and 9(C).  If repayment is not made, whether as a lump or in some other arrangement, there’s also the possibility for stipulated judgment to enter to allow collection of settlement proceeds through civil procedure rules.

Settlements are contracts and there is a freedom of contract issue raised by England.  The Division has limited enforcement capacity and is holding itself by the England decision; however, the parties can agree to terms that can be enforced as contracts, attached as exhibits under 9(B) and 9(C).  Lee + Kinder LLC is using specific language on all settlements that the Firm believes is an enforceable contractual agreement.  If you have questions regarding settlements, Lee + Kinder LLC is happy to answer those questions.

Legal Connection Firm Newsletter – July 2017

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.

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In the News

Member Joseph Gren attended the WBENC National Conference in Las Vegas last month. The WBENC conference was attended by hundreds of corporations who support diversity initiatives in hiring minority owned, women owned, and veteran owned businesses. Many of Lee + Kinder’s clients were among those corporations. Attending the WBENC conference was a powerful experience, affirming the commitment of so many corporations to support businesses like Lee + Kinder, LLC, and other minority and women owned enterprises.

 


Member Joseph Gren and Associate Jenna Zerlynick authored an article for the Colorado Lawyer, July 2017 edition. The article, Settlement Procedures in Workers’ Compensation, is an in-depth explanation of the unique procedural requirements governing settlement of Colorado Workers’ Compensation Claims. Click the link in the article name to read the full article.

 

 


Proposed Rule 16 and 18 Changes for 2018: Utilization Standards and Medical Fee Schedule

Changes are coming for the Workers’ Compensation Rules of Procedure, Rules 16 and 18. The changes to these very important rules will be implemented January 1, 2018. Rule 16 addresses Utilization Standards such as procedures and time frames for prior authorization. Rule 18 addresses the Medical Fee Schedule. The proposed rule changes are currently available on the Division of Workers’ Compensation website for review. A public hearing is scheduled for August 1, 2017 at 9:30 am at the Division of Workers’ Compensation to address the proposed changes. Lee + Kinder will provide updates regarding these important changes as the process moves forward.

Here are some of the key proposals:

  • Rule 16-11(A) – Contest of prior authorization & Rule 16-12 – Contesting payment for non-medical reasons: The medical review, IME report, or report from an ATP that addresses the relatedness of the requested treatment to the admitted claim may precede a prior authorization request.
  • Rule 16-11(E) – IMEs for contesting prior authorization: In order to contest prior authorization with an IME, the IME appointment must occur within 30 days or upon first available appointment of the prior authorization request, but not later than 60 days after the request. The IME report must be issued within 20 days of the IME, and the insurer must respond to the prior authorization request within 5 business days of the receipt of the IME report. If the injured worker does not attend or reschedules the IME, the payer may deny prior authorization requests pending completion of the IME.
  • Rule 16-9 – Notification submissions: These submissions must still be admitted or denied within 5 business days, but the payer may limit the initial approval to the number of treatments/duration listed in the relevant Medical Treatment Guidelines (MTGs). If subsequent medical records document functional progress, then the payer shall pay for the additional number of treatments/treatment duration listed in the relevant MTGs. If the payer proposes to discontinue treatment before the maximum number of treatments/treatment duration has been reached due to lack of functional progress, payer shall support that decision with a medical review compliant with section 16-11(B).
  • The use and definition of telemedicine is expanded.
  • The fee schedule reimbursement for out-of-state providers may be negotiated in excess of the fee scheduled when necessary to obtain reasonable and necessary care.

 


Victory Lap

Joshua Brown AttorneyMember Joshua D. Brown and Associate Kristi Robarge successfully defended an appeal to the Industrial Claim Appeals Office (ICAO) in Alan Dillingham v. SkyWest Airlines, Inc., W.C. No. 5-014-315-01. Claimant sought review of the ALJ’s Order denying compensability and dismissing Claimant’s request for medical benefits. The ALJ determined that Claimant suffered from a substantial pre-existing condition which caused severe degenerative arthritis that was not exacerbated or accelerated by his work activities. The ALJ also determined that Claimant’s need for a total knee arthroplasty was not related to his work activities. Claimant argued that the ALJ erred in finding that he did not suffer an aggravation of his pre-existing condition or, in the alternative, that he suffered a cumulative trauma injury because of the conflicting evidence supporting Claimant’s position. Respondents argued that the ALJ’s factual findings were supported by substantial evidence, given Claimant’s long history of a pre-existing condition, and Respondents’ medical expert’s testimony. ICAO affirmed the Order, finding that there was substantial evidence to support the ALJ’s determinations.
Fran McCracken AttorneyOf Counsel M. Frances McCracken successfully contested a claim that Claimant’s hearing loss was causally related to his work injury and required in-the-canal hearing aids in Martinez v. Walmart Stores, W.C. 5-019-127-01. Claimant did not report any hearing loss until five months post-accident and he initially reported the hearing loss as being chronic. Claimant’s ATP did not have any prior medical records relating to Claimant’s treatment for renal failure or biliary cancer and chemotherapy treatment, both of which are known causes of hearing loss. The ALJ credited Respondents’ medical expert and determined that Claimant’s hearing loss, dizziness, and disequilibrium were not related to the work injury. Claimant’s claim for in-the-canal hearing aids was denied and dismissed along with Claimant’s claim for narcotic pain medications and anti-nausea medications.

 

Of Counsel M. Frances McCracken was successful in a second win by overcoming the DIME’s opinion that Claimant sustained a 27% whole person impairment and defended against Claimant’s claim for additional medical benefits in Jaramillo v. Family Dollar Stores of Colorado, Inc., W.C. 5-000-936-02. Claimant initially suffered an abdominal strain which questionably transitioned to SI joint pain. When placed at MMI, Claimant had full range of motion of her lumbar spine. However, the DIME provided Claimant with a 5% Table 53 impairment rating and a 23% whole person impairment based on loss of range of motion of the lumbar spine. Respondents’ medical expert credibly opined that it was not medically probable that Claimant suffered a discrete injury to her SI joint without immediate pain in that region. Respondents’ medical expert also credibly testified that the DIME physician clearly erred in assigning Claimant’s impairment rating for loss of lumbar range of motion, given the discrepancies in her measurements. The ALJ concluded that Respondents had overcome the DIME opinion by clear and convincing evidence.

Jessica Melson Denver AttorneyAssociate Jessica Melson successfully defended Claimant’s attempt to overcome the DIME and request for home health care in Schaffer v. Patterson-UTI Drilling Company, LLC, W.C. No. 4-946-584. In this case, a DIME found Claimant at MMI with specific disorder impairments to his cervical and lumbar spine. However, the DIME physician excluded range of motion impairment because she determined there was no objective basis for his limited motion. Claimant sought to overcome the DIME. Claimant alleged he was not at MMI because he required psychological evaluation and treatment. He also alleged that the DIME erred in excluding the range of motion measurements because it was not within the DIME physician’s discretion to exclude valid range of motion measurements. Claimant also sought home health care as recommended by the ATP. The ALJ credited the testimony of Respondents’ medical expert that it was within the DIME physician’s discretion to not utilize the range of motion measurements if she did not find that it was Claimant’s true functional range of motion. The ALJ found that Claimant failed to overcome the DIME regarding MMI and impairment. The ALJ also found that Claimant failed to demonstrate the request for home health care was related to the claim, as he was already receiving home health care before the request and Respondents’ medical expert testified it was not reasonable, necessary, and/or related.

 


 

Fran McCracken Legal Analysis

Fran McCracken Attorney Of CounselA FIRST! FDA REQUESTS WITHDRAWAL OF OPANA® ER FROM THE MARKET;
MANUFACTURER ACQUIESCES
Amid the nation’s ongoing and “unprecedented opioid epidemic” (per the U.S. Department of Health and Human Services), on June 8, 2017, the U.S. Food and Drug Administration requested Endo Pharmaceuticals to voluntarily remove its opioid pain medication, reformulated Opana ER (oxymorphone hydrochloride), from the market. The request was based on concerns that the benefits of the drug no longer outweigh its risks related to abuse. This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication due to the public health consequence of abuse.
Click here to continue reading this article.


Cases You Should Know

How we can be sure this settlement is full AND final?: A recent Colorado Supreme Court ruling provided a significant opinion regarding workers’ compensation settlement agreements. In Victor England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017), the Court found that Claimant’s undiagnosed scapular fracture, at the time he entered into a settlement agreement, constituted a mutual mistake of material fact and allowed Claimant to reopen his claim despite the settlement. Specifically, the issue addressed whether those documents waive an injured worker’s statutorily protected right to reopen a settlement based on mutual mistake of material fact. Respondents were successful on appeal to the Colorado Court of Appeals, which found that the settlement agreements’ waiver provision prohibited reopening of the settlement agreement on grounds of mutual mistake after the injured worker discovered he had an unknown scapula fracture. The injured worker petitioned to have the Colorado Supreme Court review the decision.

The Colorado Supreme Court issued their Order on May 30, 2017. In their decision, the Supreme Court concluded that specifically paragraph six of the settlement agreement form cannot waive or limit an employee’s statutory right to reopen the claim on the grounds of mutual mistake of material fact. The Supreme Court stated that they interpreted paragraph six to be consistent with the settlement statutory provision, C.R.S.§8-43-204(1), and concluded that paragraph six applies only to those “unknown injuries” which develop after a settlement agreement is approved. They concluded that in this case, there was a mutual mistake of material fact and that therefore under paragraph four of the settlement agreement, the injured worker has the right to reopen the claim. Accordingly, the Supreme Court reversed the judgment of the Colorado Court of Appeals and remanded for further proceedings consistent with their opinion.

Moral of the story: This impact of this case on the DOWC form settlement documents and settlements overall is still uncertain. In light of this decision, our Firm has added further language in settlement documents to paragraph 9(a), which allows addendums, to attempt to limit Respondents’ exposure from a claim being reopened under facts similar to the England case. At this time, the language we have implemented to the settlement documents is being accepted and approved, but this issue will likely undergo further scrutiny by the DOWC.

Workers unite! But beware of the Mutual Benefit Doctrine: In Pueblo County v. ICAO, the Colorado Court of Appeals held that union activity cases in Colorado should be analyzed under the Mutual Benefit Doctrine to determine compensability. (May 18, 2017, Colo. Ct. App.). Claimant was injured as a result of a slip and fall following a union meeting after work. The slip and fall occurred in the employer’s parking lot. The Court of Appeals concluded that the union meeting was to facilitate ongoing negotiations concerning a new collective bargaining agreement, which was of mutual benefit to the employer and employee. As such, the Court opined that the Mutual Benefit Doctrine applied. The Mutual Benefit Doctrine states that an injury suffered by an employee while performing a function that is of mutual benefit to the employer and the employee is usually compensable when some advantage to the employer results from the employee’s conduct. The Court of Appeals affirmed the lower court’s ruling and found the claim compensable.

Moral of the Story: Injuries occurring while the employee is engaged in union activities in Colorado will be analyzed under the Mutual Benefit Doctrine to determine compensability. If there is a mutual benefit to employee and employer, the claim will likely be deemed compensable.

A spoonful of medical evidence helps apportionment go down: In Richard Hutchison v. ICAO, the Colorado Court of Appeals upheld the ALJ and ICAO’s Orders which determined that only one-third of Claimant’s injury was work related. (June 1, 2017, Colo. Ct. App.) Claimant was diagnosed with osteoarthritis in his bilateral knees. At the initial hearing, there were conflicting medical opinions as to whether the arthritis was caused by Claimant’s employment, but the ALJ found that Claimant’s bilateral knee pain was not directly and proximately caused by Claimant’s work. The ALJ adopted the apportionment recommendations of Respondents’ medical expert and attributed one-third of the cause of Claimant’s bilateral arthritis to work-related factors. The ICAO concluded that the ALJ’s Order properly apportioned the injury and was supported by substantial evidence. The Court of Appeals found that both physicians opined that Claimant had an underlying condition prior to the work injury. Furthermore, the Court held that the opinions of Respondents’ medical expert were concrete and not speculative. As such, the Court of Appeals concluded that substantial evidence supported the ALJ’s apportionment findings and held the Panel did not err when it declined to set aside the Order.

Moral of the story: An ALJ’s opinions are not disturbed if supported by medical evidence. In this case, the ALJ’s ruling on apportionment was upheld because it was supported by the medical evidence and expert testimony.

Credibility is in the eye of the beholder – abuse of discretion v. substantial evidence: In Work v. CBC Companies, Inc., W.C. No. 5-002-879-01 (May 15, 2017), Respondents sought review of the ALJ’s Order that determined Claimant’s cervical spine condition was causally related to the industrial incident and held Respondents liable for the costs of the recommended cervical spine surgery. Respondents argued that the ALJ erred in discrediting a medical expert because the expert was unwilling to characterize the recommendations for speculative surgery as medical malpractice. Respondents also argued that the ALJ erred in discrediting another medical expert for using the term “deny” in his report. Respondents contended that the ALJ’s credibility determinations were an abuse of discretion and were not supported by the record. ICAO explained that an appellate review of an ALJ’s credibility determinations was based upon a substantial evidence standard and not an abuse of discretion standard. ICAO noted that an ALJ is not required to articulate the basis for his credibility determinations but in this case he did so. ICAO also noted that it is “bound by the ALJs credibility determinations except in extreme circumstances where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that it would be error as a matter of law to believe such testimony.” ICAO was mindful of Respondents’ complaints but found that the credibility determinations were supported by substantial evidence, and the ALJ’s Order was affirmed.

Moral of the Story: An ALJ’s credibility determination will be upheld as long as there is substantial evidence in the record to support a determination.

A FIRST! FDA REQUESTS WITHDRAWAL OF OPANA® ER FROM THE MARKET; MANUFACTURER ACQUIESCES

Amid the nation’s ongoing and “unprecedented opioid epidemic”, (per the U.S. Department of Health and Human Services), on June 8, 2017, the U.S. Food and Drug Administration requested Endo Pharmaceuticals to voluntarily remove its opioid pain medication, reformulated Opana ER (oxymorphone hydrochloride), from the market. The request was based on concerns that the benefits of the drug no longer outweigh its risks related to abuse. This is the first time the FDA has taken steps to remove a currently marketed opioid pain medication due to the public health consequence of abuse.

Opana ER is an opioid first approved in 2006 for the treatment of moderate to severe pain when a continuous, around-the-clock opioid analgesic is deemed necessary. In 2012, Opana ER was reformulated to deter snorting and injecting. While the new product met the FDA’s standards for approval, based on new information about the risks associated with the reformulated product, the agency is now taking steps to remove Opana ER from the market.

Janet Woodcock, M.D., Director of the FDA’s Center for Drug Evaluation and Research, indicated, “The abuse and manipulation of reformulated Opana ER by injection has resulted in serious disease outbreak. When we determined the product had dangerous unintended consequences, we made a decision to request its withdrawal from the market. This action will protect the public from further potential misuse and abuse of this product.”

The FDA requested the manufacturer, Endo International, voluntarily remove reformulated Opana ER from the market. In another first, Endo has announced its plan to voluntarily comply with the FDA’s request. In a July 6, 2017 press release, Endo announced plans to work with the FDA to coordinate the orderly removal of the pain medication, “in a manner that looks to minimize treatment disruption and allows patients sufficient time to seek guidance from the health care professionals.”

The FDA has indicated it will continue to examine the risk-benefit profile of all approved opioid analgesic products and take further actions as appropriate as part of its response to the opioid public health crisis. For further information, read the FDA News Release.

 

What can you do to help manage the chronic prescription of opioids or narcotics on your claims?

• Obtain an independent medical evaluation if:
1. Opioids are prescribed for complaints of pain and there are inconsistencies in the diagnosis and objective findings;
2. There is no reported reduction in pain levels with ongoing prescription of opioids or narcotics;
3. There is no demonstrable improvement in function, including return to work, with ongoing prescription of opioids or narcotics;
4. Abuse, addiction, or deviation is suspected.

 

• Colorado’s Medical Treatment Guidelines address the appropriate use of Narcotics/Opioids in workers’ compensation claims including the following recommendations:
1. Screening for potential alcohol and drug abuse problems, as well as co-morbid psychiatric conditions, to identify those claimants who may be prone to dependence or abuse;
2. Long-term narcotics or opioids should only be offered after other therapies have failed to improve function;
3. Narcotics or opioids should result in demonstrable improvements in function, not just reported pain relief;
4. Random urine drug screens are required by the Guidelines for the chronic prescription of opioids or narcotics;
5. A narcotic pain contract, and compliance therewith, is required by the Guidelines for long term prescription of opioids or narcotics;
6. Periodic re-evaluation of function and side-effects is required for ongoing narcotic or opioid prescriptions;
7. Tapering and discontinuance of opioid or narcotic prescriptions are required when patient goals are not being met.

 

• Medical Utilization Review:
Provides a statutory, tiered, neutral medical review of the reasonableness and necessity of an authorized treating provider’s care, including the prescription of narcotic and opioid medications.
If you have any questions about challenging the ongoing prescription of narcotics or opioid pain medications, or any claim-related medical treatment, please contact any of the attorneys at LEE + KINDER, LLC. We are always glad to discuss the facts of your case and work towards the most efficient way to end unreasonable, unnecessary, and/or unrelated medical treatment.

Legal Connection Firm Newsletter – June 2017

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.

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In the News

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

 


Victory Lap

 After a five-day jury trial in Denver District Court, Member Joshua D. Brown and Associate Kelsey Bowers successfully defeated multiple claims against the employer in Helton v. Environmental Demolition, Inc., Case Number 2015CV032832. The Plaintiff sought damages for an alleged breach of employment contract in the form of alleged promises of bonuses and benefits; an alleged breach of a written buy-sell agreement regarding the purchase of shares in the Company; an alleged breach of fiduciary duty; and civil conspiracy. The 7-person jury was persuaded by the testimony of several key witnesses and found that there was no breach of employment contract or breach of fiduciary duty. While the jury found that there was evidence of civil conspiracy, they found that no damages resulted from the conspiracy. According to the Trial Court Order, the only damages that were awarded to Plaintiff were the value of the shares that he owned in the Company. The fact that Plaintiff owned shares in the Company was undisputed.

Member Joshua D. Brown successfully defended a claim for TTD benefits in Janine Scafide v. SkyWest Airlines, Inc. and Indemnity Insurance Company of North America, W.C. No.4-840-879. Claimant filed a Petition to Reopen and an Application for Hearing alleging a worsening of condition. While litigation was pending, Claimant underwent a total hip arthroplasty. Claimant argued that she was entitled to TTD benefits following her surgery as a result of her worsened condition. The ALJ determined that Claimant’s condition had worsened; however, there was no evidence that established a link between Claimant’s surgery and a wage loss. Claimant had not been working for five years prior to her surgery and there was no evidence that her work restrictions had increased after MMI. Claimant’s request for TTD benefits was denied and dismissed. Also, despite the Petition to Reopen being granted, the ALJ ordered medical benefits to be provided as post-MMI maintenance care.

Karen Gail Treece Denver Attorney Member Karen Gail Treece successfully proved Claimant’s ongoing chiropractic and acupuncture care was not reasonable, necessary, or related medical maintenance care in Kachigian v. Sigma Services, Inc., W.C. No. 4-929-024. Claimant sustained an industrial injury to his head and neck on April 17, 2013. Claimant did not request medical treatment and continued working. On April 26, 2013, Claimant presented to his personal physician and reported knee and toe pain due to training for a Spartan Race. Claimant did not report the work injury. Claimant first sought medical care for the work injury in August 2013. Claimant treated conservatively and was placed at MMI on February 4, 2014. Respondents filed an FAL and admitted for medical maintenance benefits. Claimant received over 80 chiropractic and acupuncture treatments. Respondents challenged the ongoing treatment. Respondents requested an IME with Dr. Lambden. He opined the chiropractic and acupuncture care was counterproductive and reinforcing Claimant’s pain syndrome. A radiologist, Dr. Seibert, reviewed x-rays and an MRI scan and opined that the Claimant had a preexisting C7 fracture. The ALJ denied the ongoing chiropractic and acupuncture treatments.

 

Joseph Gren Denner Attorney In Bruxvoort v. Goodyear Tire and Rubber Company and Liberty Mutual Insurance, W.C. No. 4-990-459, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegations that he was no longer at MMI and that he sustained a compensable injury to his right trigger finger. Claimant contended that he injured his right trigger finger while participating in physical therapy to rehabilitate his shoulder. Claimant provided no medical evidence to support his position. Mr. Gren elicited testimony from Claimant that he was involved in a remodel of his home during the time of the trigger finger injury. The ALJ was persuaded that it was equally as likely he injured himself during the remodeling activities. Mr. Gren presented testimony from an expert medical physician who opined that the etiology of the trigger finger was idiopathic. The ALJ was persuaded by the testimony of Respondents medical expert that the trigger finger condition was not caused by Claimant’s physical therapy. The ALJ concluded that the right trigger finger condition was not compensable. Therefore, Claimant remained at MMI pursuant to the FAL filed by Respondents.

In Todd Blanchard v. Evraz Inc. NA, W.C. No. 5-011-914, Member Joseph W. Gren and Associate Devon D.A. Bell successfully defended against Claimant’s allegation that he sustained an occupational disease. Claimant contended that repetitive stamping of steel samples over time caused his lateral epicondylitis. Claimant underwent an IME that determined the Claimant’s work-related activities were not enough to cause his alleged repetitive-motion injuries. These findings were corroborated by a strong job demands analysis report. Additionally, Respondents were successful in arguing that Claimant failed to satisfy the criteria set forth in the Medical Treatment Guidelines (Guidelines). Respondents were successful in presenting the evidence described above, as well as successful in conveying Claimant’s failure to satisfy the Guidelines, which allowed the ALJ to conclude that Claimant’s occupational disease was not compensable.

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

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


John Abraham Legal Analysis

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

 


Cases You Should Know

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

Moral of the Story: Respondents have an affirmative defense to TTD benefits in instances of termination and retirement.

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

Moral of the Story: A physician can become an ATP if they provide treatment that is intended to improve Claimant’s condition.

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

Moral of the story: A full duty release by an ATP is valid even when Claimant is removed from MMI at a DIME.

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

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

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

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