To File or Not to File? That is the Question
An incident takes place within the course and scope of claimant’s employment. Claimant is confirmed to have sustained an injury but does not miss any time from work. No permanent impairment is anticipated. What the adjuster has is characterized as what most of us refer to as a “med-only claim.” Throughout the course of the claim, claimant receives conservative treatment without any recommendation for surgery. The claimant is eventually placed at MMI with no impairment. There is no reason to challenge the claim as you believe the injury is legitimate. You’re home free! All you have to do is file the Final Admission of Liability (FAL), wait the statutory 30-day period, and when claimant fails to object, you can close your claim and move on to the next one. Right? Not exactly.
Most workers’ compensation claims are med-only claims. In fact, more than two-thirds of claims in Colorado are med-only claims that are never reported to the Division. When most carriers file a FAL due to claimant reaching MMI on a med-only claim, they do so because they are seeking finality. Perhaps the employer wants to admit in good faith and make sure that it is noted with the Division that the claimant was taken care of and that there is no challenge to the claim. Perhaps the carrier requires that a FAL be filed on all admitted claims when a claimant reaches MMI. Oftentimes, a FAL is filed on a med-only claim to avoid confusion later should something happen. Whatever the reasoning may be, the adjuster may want to think twice about filing the Final Admission of Liability on a med-only claim due to a recent Industrial Claims Appeals Office opinion and a prior Court of Appeals decision.
In Kazazian v. Vail Resorts, W.C. No. 4-915-969 (April 24, 2017), the Industrial Claims Appeals Office reversed the findings of an ALJ that found a med-only claim was closed because the Claimant failed to object to the FAL. The facts of the claim were simple: Claimant sustained an injury when she slipped and fell at work and sustained a concussion, she didn’t miss any time from work while treatment took place, and she was eventually placed at MMI without impairment by the authorized treating physician. The Employer filed a FAL based on the authorized treating physicians’ findings and the Claimant didn’t object within the statutory 30-day requirement. A significant time later, Claimant began to experience hearing loss. She went to an audiologist for treatment. The Claimant suspected that her hearing loss was due to the work-related event from a couple of years prior. The Claimant contacted the adjuster and asked that certain medical apparatuses prescribed by the audiologist be covered under the workers’ compensation claim. The adjuster refused, citing the FAL and noting that the claimant did not timely object. The claim was presumed closed.
At the hearing, the ALJ agreed with Respondents that the Claimant failed to timely object to the Final Admission and request a DIME. However, on appeal, the Panel reversed the decision and noted that a FAL that does not admit for indemnity benefits cannot serve to “close” a claim since there was nothing triggering any statutory provisions in the Act for which reopening due to a worsening of condition or requesting a DIME can be sought. Simply put, a Final Admission of Liability on a med-only claim raises no implications of closure. You cannot close something that was not significant to begin with. Citing from a Court of Appeals prior decision, “the statutory consequences of a finding of “maximum medical improvement” can apply only to injuries as to which disability indemnity is payable.” Given this caveat in the law, the ultimate question is how does an employer or insurance carrier seek closure on a med-only claim? The answer may be simpler than first thought.
By its very nature, a med-only claim is usually not an impactful claim of such severity to require reporting. In fact, the Act carves out an exception to med-only claims making it easy for employers and carriers to deal with them without being bogged down in paperwork. Section 8-43-101(1) states, “Every employer shall keep a record of all injuries that result in fatality to, or permanent physical impairment of, or lost time from work for the injured employee in excess of three shifts or calendar days and the contraction by an employee of an occupational disease that has been listed by the director by rule. Within ten days after notice or knowledge that an employee has contracted such an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee, or immediately in the case of a fatality, the employer shall, upon forms prescribed by the division for that purpose, report said occupational disease, permanently physically impairing injury, lost-time injury, or fatality to the division. The report shall contain such information as shall be required by the director.”
The key portion of the statute deals with lost time and permanent impairment. If neither of the requirements is met, nothing has to be reported. If one of the criteria is met, the Act requires that the insurance carrier take a position on the claim within 20 days. You may even receive a letter from the Division with big bold letters emblazoned on it indicating the insurance carrier has 20 days to file either a Notice of Contest or a General Admission or else Respondents could be sanctioned in the form of monetary penalties. When the claimant reaches MMI in a med-only claim, most carriers file a FAL; however, it may be good practice to not file anything UNLESS you receive the letter in question from the Division. Most med-only claims are closed within a few weeks or months. When a claimant comes back months, or sometimes years later, to seek additional treatment, how does one know if the problem that is allegedly occurring is due to the original event? A significant amount of time may have passed. Claimant may be working for another Employer. Should the adjuster just voluntarily admit and pay benefits? Typically, the answer is no.
Given the caveat in the law that is becoming commonplace among the courts, it is recommended not to file anything in response to a treating physicians’ placement of a claimant at MMI. This is because the carrier can always challenge the claim on causation grounds later down the road should the claimant return and want to seek additional treatment or claim that indemnity is owed. Recall that payment of medical benefits is neither an admission nor a denial under the Act. Even if the Respondents pay for treatment and characterize a claim as a med-only claim for purposes of payment, if no pleadings are ever filed with the Division, Respondents retain the right to file a Notice of Contest should a claimant return in the future seeking additional benefits. At that time, Respondents can further investigate the causation of the claimant’s ongoing complaints either through a medical records review, IME, or other means such as surveillance. Oftentimes, the mere passage of time and questioning of the claimant will give rise to answers which would allow the adjuster to deny the claim outright, even though at first the claim was payable in good faith. The overall thought is that it is much easier to challenge causation and be cautious with a Notice of Contest for further investigation than it is to go back in time and withdraw a previously filed admission, regardless of the type of admission that it is.
If you have any questions regarding what next steps to take when dealing with med-only claims, please contact us. If you get a phone call from a claimant wanting more benefits from a claim you thought was closed, please contact any of the attorneys at our firm. We will be more than happy to chat about the facts of the particular case and devise the best strategy which will hopefully avoid the reopening of a “closed” claim.