In the News
Member Joshua Brown, assisted by Associate Jessica Melson, successfully limited Claimant’s attempt to increase his Average Weekly Wage in Shawn Runnells v. Kum & Go and Zurich American Insurance. Claimant attempted to increase his AWW by $41.33 based upon his wages prior to his date of injury and to include a post-injury raise. Respondents argued Claimant failed to establish that the admitted AWW was not a “fair computation of his wage loss and diminished hearing capacity” Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). Ultimately, the Court found that 13 weeks was an appropriate period of time to establish Claimant’s AWW but declined to recognize Claimant’s post-injury raise in calculating AWW. The Court held that Claimant’s AWW should be increased by a mere sixty-nine cents.
Mr. Brown and Ms. Melson were also successful in defending against Claimant’s claims for a general award of Grover(maintenance) medical benefits and a PPD award in excess of the DIME impairment rating. In Keith Brockschmidt v. Skywest Airlines, Inc. and ACE American Insurance Company, Mr. Brown presented credible evidence based on the testimony of Claimant’s DIME physician, Dr. Hattem, that Claimant had over six years of treatment with less than a fifty percent improvement in complaints. Dr. Hattem testified that additional treatment for Claimant’s back was not reasonable or necessary and not indicated within the Medical Treatment Guidelines. Claimant’s request for a general award for reasonable and necessary Grover(maintenance) medical benefits was therefore denied and dismissed. Claimant’s request for an award of PPD benefits in excess of those calculated according to the DIME physician’s rating was also denied and dismissed, as Claimant did not present clear and convincing evidence to overcome the DIME physician’s opinion.
Cases You Should Know
When an ALJ determines a DIME physician’s true opinion, the party seeking to overcome the DIME bears the burden of proof. In April Samuels v. Deli Zone, W.C. 4-761-359-02 (June 18, 2014), Claimant sustained a left knee injury in 2007 and over the next few years underwent medical treatment for the left knee. By 2010, Claimant reported gradual onset of right knee pain, which she attributed to compensating for the left knee injury. The authorized treating physician (ATP) placed Claimant at MMI. Claimant requested a DIME. The DIME physician disagreed with the ATP’s MMI determination and found that Claimant needed additional conservative treatment for the left knee. Regarding the right knee, the DIME physician diagnosed Claimant with chondromalacia patella, stated that Claimant’s right knee symptoms were due to compensation patterns resulting from the work-related left knee injury, and that additional evaluation of the right knee was needed. The DIME physician re-evaluated Claimant two-and-a-half years later. He found Claimant at MMI, gave her a permanent impairment rating for the left knee, and stated “[m]y opinion is unchanged on the right knee from my previous report.” Respondents admitted to the left knee impairment rating and MMI date. The ALJ found that the DIME physician ultimately determined that Claimant’s right knee symptoms were not related to Claimant’s left knee injury. Claimant appealed, arguing that the ALJ’s interpretation of the DIME report was wrong and because Respondents did not contest the DIME physician’s findings about the right knee, the ALJ was jurisdictionally barred from considering the issue of compensability of the right knee injury. The ICAO affirmed the general rule that where a DIME physician offers ambiguous or conflicting opinions concerning MMI, it is for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a matter of fact. Then, finding for Respondents, the ICAO reasoned that because the ALJ made a factual determination that the DIME physician’s true opinion was that Claimant’s right knee symptoms were not compensable, the ALJ properly placed the burden of proof on Claimant, and therefore the ALJ’s consideration of the right knee compensability issue was not jurisdictionally barred.
An ALJ is not compelled to find a claimant not at MMI merely because the DIME physician recommended further evaluation of a certain condition. This case also held that if a DIME physician recommends additional testing to complete the DIME process, an ALJ may conclude that such testing is not inconsistent with MMI because it is not primarily performed for the purpose of treatment or diagnosis, but to assist the DIME physician in performing his evidentiary role.
A claimant is presumed to know the statutory requirements of the statutory scheme under which he seeks benefits. C.R.S. 8-73-112 allows a claimant to receive the benefit of available wage credits for unemployment benefit purposes that would normally be lost during the claimant’s period of disability. C.R.S. 8-73-112 explicitly states that it applies “only if a claim . . . is filed within the four weeks immediately following the termination of the continuous period of total disability.” In Gregor M. Bryant v. Industrial Claim Appeals Office of the State of Colorado; and Division of Unemployment Insurance, 14CA0461 (Colo. Ct. App. 2014), Claimant filed his unemployment claim ten months after the termination of his TTD period. Because Claimant filed after the statutory four-week time limit, a hearing officer held that Claimant was not covered by the statute allowing use of the additional wage credits. The ICAO affirmed the hearing officer’s decision. Claimant again appealed, arguing that he would have timely filed his claim had he been aware of the statutory deadline. The Colorado Court of Appeals affirmed the lower courts’ orders denying Claimant the advantage of the statute. The Court of Appeals reasoned that even though Claimant may have been unaware of the statute’s time limitation, the Court may not ignore the statute’s plain language requiring a claim to be “filed within the four weeks immediately following the termination of the continuous period of total disability.” The Court stated that claimants are presumed to know the requirements of section 8-73-112. And, unlike certain other statutes in the unemployment scheme, section 8-73-112 does not permit untimely action based on a showing of good cause.
If the designated treating physician refuses to provide treatment for non-medical reasons, the insurer must designate a new treating physician or the right of selection passes to the claimant. To be considered an authorized treating physician (ATP), the physician must be in the chain of referrals. In Garcia v. McDonald’s Corporation and Zurich c/o Gallagher Bassett Services, W.C. 4-862-853 (June 19, 2014), Claimant sustained an admitted head injury and then sought cervical fusion surgery based on the work injury aggravating a cervical spine herniation. Claimant was seen by Dr. Caton for her work-related injury. Dr. Caton opined that although Claimant needed surgery to treat a disc herniation, she could not refer Claimant for surgery because she had only authority to treat the work-related injury and she did not opine that the disc herniation was work-related. Claimant sought treatment and surgical intervention from Dr. Coester based upon a referral from her personal physician. Respondents appealed a decision that they pay for Claimant’s cervical fusion surgery stating that the surgeon was not an authorized ATP because he was not in the chain of referral. In this case, Dr. Coester was not directly in the referral from Dr. Caton, but was a referral from Claimant’s personal physician. The ALJ determined that the referral was ambiguous and that Dr. Caton denied treatment for non-medical reasons. The denial of treatment was due to non-medical reasons as Dr. Caton opined that the pathology requiring the surgical intervention was not work-related. Per Workers’ Compensation Rule of Procedure Rule 16-9(B), “lack of prior authorization for payment does not warrant denial of liability for payment.” The ALJ considered the testimony of another physician, Dr. Rook, and Claimant to be credible and demonstrative that the work-related incident did aggravate a pre-existing cervical condition. The Order finding Respondents liable for the costs of cervical fusion surgery was upheld.
Death Benefits are independent from compensation benefits paid to an injured worker. In Ragan v. Metal Stud Forming and Colorado Insurance Guaranty Association, W.C. 9-920-457-02 (July 9, 2014), the Court denied and dismissed a dependent’s claim for compensation of death benefits. The “rule of independence” provides that disability benefits awarded to a worker and death benefits awarded to workers’ dependents, constitute separate and distinct claims involving distinct rights. Therefore, the rights and liabilities of the parties are determined by the statute in effect at the time of Claimant’s injury or the date of decedent’s death. In this case, Claimant suffered a heart attack while driving a truck for the employer in 1982. The parties entered into a settlement agreement under which the insurer continued to pay reasonable and necessary medical benefits. However, in 2003, the insurer at the time of Claimant’s injury became insolvent and an Order of Liquidation required that all claims with the insurer were to be filed within one year of the date of the Order. The Colorado Insurance Guaranty Association (CIGA) took over payment of claims while insurer was liquidated. Claimant passed away in 2013 and Claimant’s widow filed a claim for death benefits. The claim was denied by CIGA because it was not filed within the timeframe of the Order. The Court agreed with Respondents and upheld the decision denying benefits because the death claim was properly viewed as a “new claim” per the rule of independence and not merely derivative of the initial claim for benefits. Therefore, the filing of the claim for death benefits needed to be filed separately within the terms of the timeframe within the Order of Liquidation.