In the News
Of Counsel Sheila Toborg and associate Stephen Abbott were successful on a recent full-contest hearing in Odell Walker v. Raytheon Co., et al. The claim involved an employee who alleged an injury to his cervical spine while working with his arms overhead. ALJ David Cain found that the claimant’s radicular symptoms began before his employment with Raytheon, and that his cervical condition was not aggravated by work. ALJ Cain denied and dismissed the claim.
Of Counsel Sheila Toborg and associate Stephen Abbott also succeeded on a recent hearing on medical benefits in Rocco Desantis v. Northwest Airlines, Inc., et al. The claimant sought a shoulder replacement surgery that respondents previously authorized several years earlier. The respondents argued that, despite the previous authorization, the surgery was not reasonable, necessary, or related to the admitted work injury. ALJ Timothy Nemechek agreed with the respondents and denied the request for surgery.
Of Counsel Joseph Gren and associate Dan Mowrey, received a favorable order denying psychological treatment and medications in Marcie Rhysling v. Pier 1 Imports and Liberty Mutual Insurance, W.C. No. 4-981-841. Claimant sought psychological treatment including prescription medications. Mr. Gren introduced testimony from Dr. Kleinman who maintained that Claimant was no worse now than she was before the injury and her need for current treatment and medication was attributed to stressors outside the scope of the occupational injury. Mr. Gren persuasively argued that there was no substantial reliable medical evidence in the record to support Claimant’s claim for additional medical benefits. ALJ Turnbow agreed noting that Dr. Kleinman, Dr. Gomer, and Dr. Boyd were all unable to link Claimant’s current depression and anxiety with the compensable injury. The ALJ found reports and testimony of Dr. Kleinman to be persuasive and more credible than Claimant’s testimony and issued an Order denying the request for medical benefits.
Of Counsel Frank Cavanaugh, filing as an amicus curiae (friend of the Court) on behalf of the Colorado Self-Insured Association, received a favorable opinion from the Colorado Supreme Court involving the firefighter cancer presumption under Section 8-41-209, C.R.S. Zukowski v. Town of Castle Rock, 13SC560, ___ P.3d ___ (May 2, 2016)
Mr. Zukowski began working for the Castle Rock fire department in 2000. In 2002 Mr. Zukowski had five moles removed and biopsied. In 2008 he developed a mole on his right calf and ultimately in 2011 Mr. Zukowski was diagnosed with melanoma on his right outer calf at the same site where a mole that developed several years earlier. He had several surgeries to remove the mole and returned to full duty work, but made a claim for medical and temporary disability benefits under the presumption statute. At hearing the parties stipulated that Mr. Zukowski was entitled to the presumption that the cancer was related to his occupational exposure as a firefighter; thus the only issue was whether the employer overcame the presumption. The employer presented evidence regarding Mr. Zukowski’s known risk factors for developing melanoma including exposure to the sun and history of abnormal mole growth. The ALJ found that Castle Rock’s burden in trying to overcome the presumption was to prove by medical evidence that claimant’s cancer came from a specific cause not occurring on the job.
On appeal to the ICAO, the ICAO essentially agreed with the ALJ. Castle Rock appealed the ICAO’s decision to the Colorado Court of Appeals, arguing that the ALJ misapplied the presumption when the ALJ determined that risk factor evidence was insufficient to rebut the presumption. The Court of Appeals agreed with the town of Castle Rock, looking at cases from other jurisdictions with a similar presumption statute and concluding that employer may overcome the presumption with specific risk evidence demonstrating that the particular cancer was probably caused by a source outside of work.
The Colorado Supreme Court granted certiorari in Zukowski, along with a companion case involving a similar issue. The Colorado Supreme Court held that Castle Rock was not required to establish an alternate cause for the cancer to overcome the presumption. The Court further held that presenting risk factor evidence which demonstrates the cancer was more probably caused by something other than work can rebut the presumption.
Of Counsel Frances McCracken successfully terminated Respondents’ liability for post-MMI medical treatment in two claims: Ronda Conley v. Wal-Mart Stores, Inc., et al. and Lynzea Hetrick v. Wal-Mart Stores, Inc., et al. In both claims, Respondents previously voluntarily admitted for post-MMI medical treatment to maintain the claimant at MMI then later sought to withdraw the admissions through litigation. Ms. McCracken elicited persuasive medical testimony and utilized surveillance video to prove by a preponderance of the evidence that post-MMI medical treatment was no longer reasonable, necessary, and related, thus halting Respondents’ liability for ongoing treatment in two claims.
Of Counsel John Abraham successfully defended an appeal brought by Claimant to alter the rate of an over-payment recovery by Respondents in Toby Heffner v. Wal-Mart Stores, Inc., et al. ALJ Cannici found that Respondents were entitled to recover an over-payment of $13,721.35 in TTD benefits per C.R.S. §§8-40-201(15.5) and 8-42-113.5. Claimant was ordered to pay it back at a rate of $250 per month, based on his AWW of $1,822.88. The panel was persuaded and agreed with Respondents’ position that the rate was a reasonable rate proposed by Respondents because it was appropriately based on the AWW and the amount of time it would take to have the recovery paid back.
In 2007 the Colorado Legislature enacted a firefighter cancer presumption statute at Section 8-41-209, C.R.S. The statute created a presumption that certain cancers were caused by work as a firefighter if the individual diagnosed with the cancer worked in the capacity for at least five years. For the cancer to be deemed a compensable occupational disease, the firefighter would have had to undergo physical examination upon becoming a firefighter that failed to reveal the cancer at that time. The presumption could be rebutted if the firefighter’s employer or insurer could show by a preponderance of medical evidence that the condition did not occur on the job.
This statute is similar to other presumption statutes that sprung up across the country in the wake of firefighters’ and other first responders’ actions during the 9/11 terrorist attacks. The general premise behind the presumption is that firefighters are exposed to known carcinogens to a greater extent than other occupations and that development of cancer is a known effect caused by exposures to these carcinogens.
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Cases You Should Know
All or Nothing: a general award of benefits is not appealable. In Alex D. Miller v. United Insurance Group, W.C. 4-940-803 (February 25, 2016), Respondents sought review of an order determining Claimant was an employee rather than an independent contractor. ICAO dismissed the petition to review on the basis that ICAO did not have jurisdiction to address Respondents’ arguments. ICAO explained that the ALJ’s Order determined Claimant was an employee rather than an independent contractor and generally awarded workers’ compensation benefits to Claimant; however, it was not a final reviewable order because it did not require payment of a specified amount of benefits or penalties nor did it deny benefits. Moral of the Story: When litigating the issue of employee versus independent contractor status, ask the Court to order payment of a specific benefit to preserve the right to appeal.
A Physician Assistant’s MMI determination is of little consequence in the eyes of the law. In Howard MacDougall v. Bridgestone Retail Tire Operations, W.C. 4-908-701 (April 12, 2016), Claimant requested penalties against Respondents on multiple bases, including the fact that Respondents terminated TTD benefits based on a report by a physician’s assistant. ICAO denied the request for penalties, stating case law holds that penalties in such a situation are not a matter of strict liability, and negligence is measured by an objective standard based on whether a reasonable insurer would have taken a particular action under the circumstances. Moral of the Story: Per WCRP Rule 6-1(A)(1), an authorized treating physician must find MMI or release the claimant to full duty before Respondents may terminate TTD. Respondents may not rely on an opinion from a physician’s assistant or nurse practitioner to terminate TTD.
To Err is Human, but Forgive the DIME: No auxiliary shoulder ratings without arthroplasty. In Freeman v. Platte Valley Medical Center, W.C. No. 4-942-096-01 (May 4, 2016), the Claimant sought review of an ALJ’s order finding that the respondents overcame the DIME opinion with regard to an impairment rating for a shoulder surgery. The Panel held that the AMA Guides and the Impairment Rating Tips prohibit the addition of an auxiliary rating for shoulder surgeries pursuant to Section 3.1j in the case of surgeries other than an arthroplasty procedure. The ALJ’s opinion was supported by substantial evidence insofar as it found that an acromion resection did not constitute an arthroplasty under the AMA Guides. As such, the DIME erred in assigning an auxiliary impairment rating for the acromion resection. Moral of the Story: There is no auxiliary rating for shoulder surgeries unless the surgery is specifically an arthroplasty procedure.
No duty, No standing: Respondents’ duty to provide a designated provider list extends only to Claimant. After a claim reached a full and final settlement, a physician sought a hearing on the question of whether he was the authorized treating physician. In Horiagon v. Codi Manufacturing, Inc., W.C. No. 4-985-020 (March 15, 2016), the Panel found that the physician did not have standing insofar as he did not suffer an injury in fact and the question of authorized treating physician was moot. The Panel noted there were no outstanding medical bills and the claim was resolved fully and finally. With regard to the physician’s request for penalties for the respondents’ failure to tender a designated provider list to the claimant, the Panel noted that the duty to provide a designated provider list is a duty owed to the claimant, and that the physician lacked standing to pursue such relief. Moral of the Story: Respondents have a duty to provide the designated provider list to the Claimant, but the duty extends to no one else.
Can’t Always Call It Like You See It: Independent Contractor or Employee? In Pierce v. Pella Windows and Doors, Inc., W.C. 4-950-181-01 (April 26, 2016), the Industrial Claim Appeals Office reviewed a claimant’s appeal of a decision by an ALJ that he was an independent contractor instead of an employee. The ICAO panel reversed and set aside the ALJ’s order. In this case, the employer had laid off all sixteen of their service technicians and immediately rehired eight of them as independent contractors to perform the same work. Upon review, although the panel cited the nine statutory factors constituting whether an individual is an employee or independent contractor under C.R.S. §8-40-102(2), it noted that additional factors could be considered. In this case, in addition to the statutory factors, ICAO noted that Respondents basically employed Claimant in the same job he held previously and also had knowledge and control over whether Claimant could engage in independent business because he was working his same prior full time hours. Moral of the Story: An employer calling someone an independent contractor does not necessarily make the individual an independent contractor without supporting statutory factors.
No soup for you! No impairment rating without a Table 53 Diagnosis. In Silva v. Corporate Services Group Holdings, Inc.,W. C. No. 4-44-337-03 (February 23, 2016), ICAO affirmed the ALJ’s finding that the permanent impairment rating from the DIME should be set aside and Claimant’s request for PPD benefits denied. The DIME noted on the rating sheet that a rating for a specific Table 53 disorder of the spine was not applicable. Respondents cited the AMA Guides and DOWC Guidelines noting that a physician is precluded from assigning a rating for range of motion deficit unless there is first a rating based on Table 53. An impairment rating cannot be based on a range of motion measurement alone. Moral of the Story: If there is no Table 53 Diagnosis for spinal conditions, then there cannot be an impairment rating based on loss of range of motion.
Snake Bit: COBRA costs may be included in AWW even if not elected by Claimant. When a Claimant is terminated and does not elect COBRA or other health insurance, the health insurance replacement cost is still calculated into average weekly wage. An unpublished Colorado Court of Appeals decision addressed this issue in Restaurant Technologies v. ICAO, WC 481-542-001 (nsfp). The ALJ and Panel ruled that Claimant was entitled to an increase in his AWW equivalent to the full cost of covering his health insurance premium under COBRA. The only circumstances under which health insurance costs are not included in the AWW is when the employer continues to pay its share of the premium. C.R.S. §8-40-201(19)(b) does not require that the Claimant actually demonstrate that he purchased coverage. The Court of Appeals noted that in the event that the policy chosen by Claimant costs more or less than the calculated cost under COBRA, either party may seek a readjustment of the AWW. Moral of the Story: Health insurance replacement costs are included in AWW unless the employer continues to pay for insurance coverage.