Recent U.S. Supreme Court Decision – Is there Now a Duty to Accommodate Pregnant Employees?

In a pattern of ongoing protections for employees, the Equal Employment Opportunity Commission (EEOC) along with the United States Supreme Court has taken head-on the issue of pregnancy discrimination. For the first time in over 30 years, the EEOC in July 2014 issued Enforcement Guidance regarding pregnancy disability.  In general, the Guidance explains Title VII’s prohibition against pregnancy discrimination, describes individuals to whom the Pregnancy Discrimination Act (PDA) applies and discusses how the expanded definition of “disability” under the Americans with Disabilities Act (ADA) applies.
In sum, the Guidance advises employers to apply the same work place accommodation policies, leave of absence policies, medical benefits, and seniority/retirement benefits to all employees, regardless of whether a request for leave of absence, workplace accommodation, or medical benefit is due to a medical condition related to pregnancy or any other disability. The EEOC concedes that pregnancy is not a “disability” under the ADA, but points out those pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, even though these disabilities are temporary.

Most recently, the U.S. Supreme Court in Young v. United Parcel Service, articulated a high legal burden that employers would have to meet in order to justify policies that provide accommodations to some categories of employees, but not to pregnant women. The Court stated that it was not persuaded by, and noted a number of problems with, the EEOC’s July 2014 guidance, stating “[w]ithout further explanation, we cannot rely significantly on the EEOC’s determination.” The Court ultimately decided employers need to offer the same or similar accommodations to its pregnant employees as it does to its disabled employees.

The Court held that “a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” In other words, the Court determined that a Plaintiff can get to a jury trial and avoid summary judgment by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s “legitimate, nondiscriminatory reasons” are not sufficiently strong to justify the burden, but rather give rise to an inference of intentional discrimination.    ​

The ultimate take away from this recent decision is that while an employer is not automatically required to provide all pregnant workers the same accommodations it offers to others 100% of the time, employers should be prepared to justify any differences in their accommodation decisions, which may be difficult to do. Employers should also keep the ADA in mind, given that the Court specifically referenced the expanding definition of “disability” under the 2008 amendments to the ADA.

Practical Pointers for Guidance Compliance:

  • Review policies related to light duty and reasonable accommodation requests to ensure they are in line with legitimate business needs and not based on cost and convenience.
  • Examine accommodation requests granted and denied over the recent past, and on an ongoing basis, to determine if pregnant women are being treated disparately.
  • Train managers and HR professionals on the need for individualized inquires in granting or refusing requests for accommodation.

legaLKonnection Firm Newsletter – March 2015


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.


In the News


Lee + Kinder, LLC is very proud to have three of its own recognized by Super Lawyers as outstanding in their field: Katherine M. Lee, 2012-2015 Super Lawyer, Joshua D. Brown, 2014-2015 Rising Star, and Joseph W. Gren, 2014-2015 Rising Star.  Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.  The Rising Stars list is developed using the same patented multiphase selection process used for the Super Lawyers list except to be eligible for inclusion, a candidate must be either 40 years old or younger, or in practice for 10 years or less.  Under this rigorous selection process, only the top 5% of lawyers in a state are named to the Super Lawyers list, and only the top 2.5% to the Rising Stars list.

Victory Lap

Member Katherine Lee successfully defended Claimant’s attempt to reopen his claim on the basis of a worsening of condition and have his surgery covered by workers’ compensation benefits in Duane Boyd v. United Parcel Service.  Claimant suffered an injury to his knee in 2012 and his claim was closed after he was placed at MMI.  He later sought surgery and petitioned to reopen the claim on the grounds that his work-related condition had deteriorated.  The ALJ found that Claimant had a chronic, degenerative arthritic condition which caused the worsening of condition and need for surgery.  Accordingly, the ALJ denied both the petition to reopen and the requested surgery.

Of Counsel Joseph Gren defeated Claimant’s pursuit of workers’ compensation benefits in Sarah Kimmons-Bartha v. Pier 1 Imports.  Claimant alleged a slip and fall at work resulting in a low back injury.  At hearing, Mr. Gren dismantled Claimant’s credibility and successfully established the presence of pre-existing injuries and multiple reporting inconsistencies by Claimant.  Mr. Gren also elicited credible medical evidence that Claimant’s described mechanism of injury was not physically possible and her alleged work-related symptoms were the same as the documented symptoms Claimant previously experienced for years.  Ultimately, the ALJ denied and dismissed the claim, concluding that Claimant did not establish that she sustained a compensable work injury.

Of Counsel M. Frances McCracken successfully sought an offset of Claimant’s SSDI benefits in Johnson v Sam’s Wholesale, W.C. No. 4-851-843. In this case, Claimant sustained an admitted industrial injury to his low back. In March 2012, Claimant was awarded SSDI benefits. Respondents took the applicable offset from his TTD benefits. In February 2013, Claimant received a letter from Social Security that he was no longer entitled to SSDI benefits because he had reached retirement age and would instead receive retirement benefits, which may not be offset against TTD benefits. However, Ms. McCracken provided a printout of information from the Social Security website which revealed Claimant had continued receiving SSDI benefits through December 2013. The ALJ determined Respondents demonstrated they were entitled to offset the SSDI benefits Claimant had continued to receive through December 2013.

Of Counsel John Abraham successfully defended Claimant’s appeal challenging a previous Order denying and dismissing his claim for benefits. In Day v. ICAO, W.C. No. 4-897-997, (February 26, 2015) (nsfop), Claimant originally injured his right shoulder in 2011 while playing with his son. Claimant denied recommended surgery. He sustained a second injury to his right shoulder in May 2012, when he fell while fishing. Claimant underwent surgery. However, the surgeon noted the chances of recurrent tear were significantly high since Claimant did not repair the shoulder after the first injury. Claimant alleged he reinjured his right shoulder at work in August 2012. Respondents denied the claim. Respondents’ expert, Dr. Parks, persuasively testified he could not state within a reasonable degree of medical probability Claimant’s described mechanism of injury caused the additional pathology to his shoulder. He also testified that the injury was likely a natural progression of the preexisting tear because the shoulder was very susceptible to reinjury. The Court of Appeals affirmed the ALJ’s Order.

Associate Jessica Melson successfully pursued a Motion for Summary Judgment in Smith v. Wyndham Worldwide Corp. and Liberty Mutual Group, W.C. 4-960-029. Ms. Melson asserted this case involved the same mechanism of injury, injuries, and requested medical treatment as a prior claim filed by Claimant that was denied and dismissed. The ALJ granted Respondents’ Motion for Summary Judgment noting Claimant failed to assert any new facts or allegations that were not determined at the prior hearing, other than the listed date of injury of one day later.

Rule 8 Changes to Designated Provider List Go Into Effect April 1, 2015

Effective April 1, 2015, changes to WCRP 8 go into effect concerning the procedure employers must follow upon receiving notice of a work-related injury.  Under the new rule, the number of available providers within a 30-mile radius of an employer’s place of business determines the number of designated providers an employer must offer:

  • Where there are three or fewer available providers within 30 miles, an employer must provide one designated provider;
  • Where there are at least four but less than nine available providers within 30 miles, an employer must provide two designated providers; and
  • Where there are nine or more available providers within 30 miles, an employer must provide four designated providers.

The new version of the rule also provides requirements about designation of physicians, designation of corporate providers, and designation of providers without common ownership in distinct locations, again with the specific requirements based on the number of available providers within a 30-mile radius.  There is a rural area exception for situations where there are not at least two physicians or corporate medical providers with distinct locations and ownership within 30 miles.

Upon request by an interested party, a designated provider must provide a list of ownership interests and employment relationships within five days of the request.  In all cases, a written copy of the designated provider list must be given to an injured employee within seven business days of notice of injury to the employer.  The designated provider list must include:  contact information for the self-insured employer or insurer of record, including address, phone number and claims contact information of the persons responsible for adjusting the claim.

Reimbursement and Recovery – Medical Care Providers

Increasing costs of medical care have created reimbursement and recovery incentive for providers.  Often times, medical care secondary to an injury, whether work-related or otherwise, becomes the subject of recovery and reimbursement attempts by the providers, as the providers are not inclined to provide care that is not their liability.  This article explores and discusses the means by which healthcare providers can assert to reimburse for medical care, including intervening in workers’ compensation claims. Click here to read more in-depth on this topic.

Cases You Should Know 

The full and final settlement saga continues: Just say what you mean and don’t increase your lien: In Milazzo v. Industrial Claim Appeals Office, W.C. 4-852-795 (February 12, 2015), Claimant sought review of an ICAO Order affirming an ALJ’s decision which found Employer/Insurer entitled to reimbursement of an overpayment from Claimant.  Claimant was injured in an automobile accident resulting in a compensable workers’ compensation claim.  Claimant incidentally received a TTD overpayment in connection with the claim.  Claimant also pursued a civil action against the driver who hit her and settled the civil case. Employer/Insurer participated in the settlement negotiation for the civil claim in order to assert its subrogation right.  At the time of settlement, Employer/Insurer’s total lien amount was $44,739.39—an amount that Employer/Insurer’s counsel conceded included Claimant’s TTD overpayment.  The parties settled the civil claim with Employer/Insurer accepting $18,000.00 for full and final settlement of its subrogation lien.  The memorialized settlement agreement made no mention of the TTD overpayment.  Several months after distribution of the settlement funds, Employer/Insurer claimed reimbursement of the overpayment.  On appeal, Claimant argued that the ALJ and ICAO erred in finding that the overpayment was excluded from the settlement proceeds, and the Colorado Court of Appeals agreed.  The Court reasoned that because the settlement document used the language “full and final settlement of [Employer/Insurer’s] third party subrogation lien,” the settlement unambiguously encompassed all portions of the lien, including the TTD overpayment.  Because the total lien amount represented all payments made to Claimant, including the TTD overpayment, settlement of the lien “necessarily” and “mathematically” incorporated the overpayment.

Even if the employer doesn’t pay up front, they will still pay in the end. Health insurance premiums and AWW:  In Fortune v. Restaurant Technologies Inc. and Hartford Fire Insurance, W.C. No.  4-915-420 (ICAO January 30, 2015), Claimant sought to increase his AWW based on cost of continuing health insurance. The ALJ increased Claimant’s AWW pursuant to C.R.S. §8-40-201(19). Respondents appealed and argued Claimant’s AWW should not be increased because the employer would have paid a portion of the premium for continued health care coverage if the Claimant had elected to continue to pay his portion of the premium pursuant to the COBRA notice. However, Claimant did not elect a COBRA plan. Accordingly, Respondents did not continue to pay any health care premiums. The Court rejected Respondents’ argument, noting C.R.S. §8-40-201(19) which provides that wages shall include the cost of the employee’s cost in continuing the employer’s group health insurance plan. The statute does not require Claimant to actually purchase a continuing or converted health insurance plan. ICAO v. Ray, 145 P.3d 661 (Colo. 2006). Respondents provided no evidence that the employer continued to pay a portion of Claimant’s health insurance. Mere speculation that the employer would have paid if Claimant elected COBRA is not enough. The Court affirmed the ALJ’s Order.

ALJ trumps DIME physician: time for a “scheduled” hearing: In Jones-Roberts v. Frontier Airlines and Pinnacol Assurance, W.C. No. 4-819-127 (ICAO February 2, 2015), Claimant sustained an industrial injury to her right knee. She was diagnosed with knee sprain, but continued to report ongoing pain despite extensive conservative care. Claimant was examined for CRPS and RSD, both of which were negative. A DIME physician determined Claimant was at MMI with an 11% scheduled impairment rating. Claimant sought to convert her injury to whole person impairment. ICAO held the ALJ erred in determining Claimant failed to establish her rating should be converted to whole person due to diagnosis of CRPS as she failed to overcome the DIME opinion that she did not suffer from CRPS. (Emphasis added.)  ICAO noted that whether Claimant’s pathology is causally related to the work injury and whether her injury should convert to whole person impairment are two distinct issues. For a scheduled impairment, the DIME’s opinion regarding causation does not carry any presumptive weight. Egan v ICAO, 971 P.2d 644 (Colo. App. 1998). The question whether Claimant sustained a scheduled impairment or whole person impairment is one of fact for an ALJ to consider. Langston v Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996). This is because the determination of situs of the functional impairment is separate and distinct from medical impairment. Therefore, the ALJ has jurisdiction to resolve both these disputes and the DIME opinion does not carry any presumptive weight as to these issues.  The case was remanded for further findings.

To offset or not to offset (PPD), that is the question…: In Petschl v. City of Montrose and CIRSA, W.C. No. 4-735-853 (ICAO, January 15, 2015), Claimant sustained an admitted injury to his right foot. He was placed at MMI and Respondents admitted for a 21% whole person rating. Claimant reopened the claim and Respondents reinstated TTD benefits. Claimant was again placed at MMI and provided a 15% whole person impairment. Respondents requested a DIME and continued paying TTD benefits. Respondents requested a hearing to terminate TTD benefits for exceeding the lower statutory cap for indemnity benefits pursuant to C.R.S. §8-42-107.5 and for credit of PPD benefits already paid. The ALJ held because Claimant had already received a prior impairment rating of less than 25%, and Respondents paid indemnity benefits in excess of the $75,000 cap, Respondents were entitled to offset the amount of previously paid PPD benefits against the current obligation to pay TTD. Claimant appealed and argued the ALJ did not have jurisdiction to address MMI and impairment because of the pending DIME. ICAO noted, in accordance with Donald B. Murphy Contractors, Inc. v. ICAO, when further benefits are sought after the twenty-five percent or less limit has been applied, Respondents are entitled to offset any PPD benefits paid against TTD benefits. However, ICAO remanded the case to determine whether Claimant’s 15% impairment was the new impairment rating or was to be combined with the previous 21% rating.

No hearing? No problem. Dismiss away!: In Gonzalez v. Industrial Claim Appeals Office, W.C. Nos. 4-851-350 & 4-865-972 (February 12, 2015), Claimant sought review of a final Order denying and dismissing two claims with prejudice.  Claimant argued that the ALJ’s dismissal of the claims without conducting a hearing violated the Colorado Workers’ Compensation Act and Claimant’s due process rights.  The Court of Appeals disagreed, finding that dismissal of a claim without hearing is expressly permitted by applicable rules of procedure and the Colorado Workers’ Compensation Act.  The Court reasoned that the basis for dismissal was as an appropriate sanction rather than a dismissal based on substantive consideration of the merits.  The Court found that dismissal of the claims by written motion was a permissible discovery sanction under sections 8-43-207(g) and 8-43-207(p), C.R.S.

Reimbursement and Recovery


Reimbursement and Recovery – Medical Care Providers

Increasing costs of medical care have created reimbursement and recovery incentive for providers. Often times medical care secondary to an injury, whether work related or otherwise, becomes the subject of recovery and reimbursement attempts by the providers, as the providers are not inclined to provide care that is not their liability. This article explores and discusses the various means healthcare providers can assert and recover liens, including intervening in workers’ compensation claims.

Workers’ Compensation
Under the Colorado Workers’ Compensation Act, Sec. 8-42-101, C.R.S., an injured worker cannot be responsible for bills or reimbursement to a medical care provider, so long as the medical care was received for a work injury. The workers’ compensation carrier or self-insured employer also has an automatic assignment of any amounts paid in a workers’ compensation claim that allows it to recover amounts directly against any third party responsible for the injury.

A problem arises when treatment is received for a work injury, but the claim is denied, meaning the carrier or self-insured employer are contesting liability. Often in these cases, the carrier or self-insured employer may try to settle on a denied basis, meaning that they are not admitting liability for the claimed injury. If medical care has been provided for the injury, the provider may seek reimbursement against the injured worker, making such a settlement a risky proposition for the injured worker and his attorney. In addition, the medical care provider has an arguable ability to intervene in the underlying workers’ compensation case as an interested party. Recent statutory changes that make the injured worker not responsible for medical bills also make the workers’ compensation insurer liable for medical care for treatment to the injured worker in the event that the claim is ultimately deemed compensable. I have successfully intervened in workers’ compensation cases on behalf of a large hospital where it was undisputed that the injured worker was hurt working, but the employer was uninsured. This created statutory employer liability for a general contractor that was denying the claim and attempting to settle the case on a denied basis. Obviously, the carrier for the statutory employer was attempting to settle the case without regard for medical treatment the injured worker received. I managed to intervene in the matter and attend a settlement conference. In this way, I was able to get some reimbursement for medical care provided to the injured worker. Therefore, be cautious in settling a claim on a denied basis when you are aware that there are medical care providers that expect reimbursement.

Hospital Liens
Hospitals have a lien on any third party recovery, when the lien is properly perfected with the Secretary of State. It is simple to determine if a medical lien exists on a claim by simply accessing the Secretary of State’s website and checking for any UCC filings by known medical care providers to any plaintiff or claimant. If a case is settled without regard to the hospital lien, the hospital can collect reimbursement against the individual or entity that ignored its lien. Further, the hospital can receive attorney’s fees paid if the statutory lien is violated. Historically, hospitals have not been very efficient in filing a lien with the Secretary of State; however, I strongly recommend that the status of liens be determined prior to any settlement of a workers’ compensation case or liability suit.

Medical care providers often require a patient (or representative of the patient) to sign a document before receiving care. This document is in the form of a guarantee for payment; however, this document will also include an assignment from the patient to the medical care provider for any rights or proceeds asserted or collected against a third party responsible for the injury. Sometimes these assignments include assignments of any claim to workers’ compensation benefits. Such an assignment is ineffective as workers’ compensation benefits cannot be assigned to a third party. Regardless, if an injured worker settled the workers’ compensation case on a denied basis, or for amounts that were not yet realized as workers’ compensation benefits, payment of this amount to the injured worker rather than to a medical care provider may be a breach of an assignment. In fact, recent case law has recognized that there is an entirely new cause of action for breach of an assignment. This cause of action is similar to a breach of contract in that the assignment arises out of a contract. The individual or entity that breaches an assignment has to be made aware of the potential assignment before a breach can be claimed. Therefore, to the extent that any medical care provider has supplied a treatment document signed by the injured individual, that document should be examined for any assignment from the injured individual to the medical care provider. Keep in mind that this problem is not unique to workers’ compensation claims, but to any liability claims as well.

Other Methods of Recovery – Spousal Necessity Doctrine
Medical care providers have other potential avenues of recovery for treatment supplied to an injured individual. In particular, there is an old statute in Colorado, as well as in other States, that makes a spouse individually responsible for payment for necessities of the other spouse. Case law interpreting this statue has made a spouse responsible for legal fees, housing costs and other bills that have been incurred by the other spouse. Although there is no case directly on point, I have managed to obtain a judgment against a spouse for medical treatment as a necessity under this particular statute.

Other Methods of Recovery – Custodial Care
Custodial responsibility is a mechanism by which a medical care provider can obtain reimbursement. For instance, individuals in the custody of a law enforcement agency are not primarily responsible for medical care. Instead, the entity that has placed the individual in custody is responsible for medical care. There are instances when an individual may be in custody, but not under arrest. If medical treatment is needed while that individual is in custody, but not under arrest, the entity placing the individual in custody is responsible for the medical care. I have successfully obtained a judgment against a law enforcement agency for treatment a hospital provided to a criminal that was not yet arrested, but that I argued was in custody.

Bottom Line
Any carrier or employer has to be conscious of medical care providers that have provided treatment for any claimed injury. With medical care costs continuing to rise, medical care providers are much less likely to write-off, or ignore, avenues for reimbursement and they are growing more aware of any potential for reimbursement through possible insured losses.

legaLKonnection Firm Newsletter – February 2015

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.

In the News
Lee + Kinder is pleased to introduce the newest members of our team, Ms. M. Frances McCracken and Mr. John M. Abraham.  Fran and John both join us as Of Counsel, bringing with them a combined 33 years of experience in insurance litigation defense.  We welcome them to our growing Lee + Kinder family.  For a more in depth look at our newest members, please follow the links above to visit their biography pages on the Lee + Kinder website.

Victory Lap

Member Katherine Lee successfully challenged two claims for workers’ compensation benefits which were consolidated for a single hearing in Schum v. John Crane, Inc. and Liberty Mutual Insurance, W.C. Nos. 4-944-662 and 4-944-671.  Claimant claimed that he suffered from various physical ailments as the result of exposure to alleged radiation.  Claimant also claimed that he suffered repetitive motion injuries from his work cleaning equipment.  At hearing, Respondents focused on the absence of medical evidence of any injury, whatsoever, or the presence of any harmful radiation in Claimant’s workplace.  The ALJ found that Claimant presented no evidence that he had been exposed to any significant levels of radiation or that he had sustained any injury as the result of repetitive motion.  The ALJ also noted that medical testing suggested the possibility that malingering may be a significant factor in Claimant’s complaints of injury.  The ALJ found in favor of Respondents and denied and dismissed both claims.

Of Counsel Joe Gren enjoyed noteworthy success in obtaining a directed verdict denying compensability of a claim for mental impairment in Tharldson v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 4-961-204.  Claimant alleged that he suffered from mental impairment as the result of his new duties as a package car driver.   Under the Act, a claim for mental impairment is only compensable where supported by the testimony of a licensed physician or psychologist and where the employee can show that the impairment arose out of a psychologically traumatic event generally outside of a worker’s usual experience.  Respondents argued, and the ALJ agreed, that Claimant’s claim for mental impairment arose out of an experience common to all package delivery drivers.  With this factual finding, Claimant could not meet his burden.  Respondents therefore moved for a directed verdict at hearing, which the ALJ granted.  Claimant’s claim was denied and dismissed.


The Colorado Governmental Immunities Act: The 180 Day Ticking Time Bomb for Filing a Subrogation Personal Injury Lawsuit

When the “somebody” who caused an injury to an injured employee is a state governmental entity, a workers’ compensation insurance carrier must take specific measures at the onset of the injury in order to protect their respective subrogation rights. A party’s failure to follow the specific statutory time frames established by the Colorado Governmental Immunities Act (“CGIA”), section 24-10-101, C.R.S., will result in any personal injury claim being time barred:Maestas v. Lujan, 351 F.3d 1001 (10th Cir. 2003). The most important step an insurance carrier or employer can take at the onset of a subrogation claim is to file the appropriate notice of claim with a governmental entity.  The notice must be filed within 180 days after the injury.  Click here to learn how to properly file a notice of claim consistent with the CGIA.

Cases You Should Know 

Just say what you mean: Settlement documents will be afforded their plain meaning. Heckler v. Wern Air, Inc., and Pinnacol Assurance, W.C. No. 4-877-223-04 (ICAO, December 16, 2014), involved a full and final settlement agreement entered into by the parties. Prior to the settlement, Claimant requested payment of outstanding TPD benefits. The parties then reached settlement. Following approval of the settlement, Claimant filed an Application for Hearing stating he believed Respondents would pay for the TPD benefits regardless of the status of settlement. The ALJ denied the claim for TPD benefits on multiple grounds: the claim was closed by the parties’ settlement; Claimant had reached the cap on combined benefits; and TPD could not be collected for lost wages after the date of MMI.  On appeal, Claimant argued that the settlement agreement was ambiguous as to whether the TPD claim was included among the issues being settled.  Claimant relied on a paragraph in the settlement documents as being ambiguous to the extent that a reasonable interpretation would hold that the Respondents agreed to pay the TPD claim.  The ICAO held that given the plain meaning of the settlement language in question, Claimant accepted $25,000 to settle all claims for money to which the Claimant “might” be entitled and for which Claimant has not already been paid.The Colorado Court of Appeals recently visited this issue in a separate decision. In Kathleen Bopp v. ICAO and Garden Square Assisted Living, W.C. No. 4-893-767 (Colo. App. 2015) (nsfop), the Court of Appeals affirmed that settlement agreements are enforced. The parties entered into a settlement agreement in July 2012 resolving Claimant’s April 2009 low back injury claim. Three weeks after finalizing the settlement agreement, Claimant filed a new claim for a back injury in April 2012, which allegedly was caused by chiropractic treatment for the 2009 claim. Respondents filed a Motion for Summary Judgment, arguing that Claimant’s spine claim was barred by the parties’ settlement agreement.   The ALJ granted summary judgment in Respondents’ favor and dismissed Claimant’s claim for her April 2012 back injury. ICAO affirmed the ALJ’s decision upon review.  Claimant appealed, primarily on the basis that the settlement was limited to a date of injury of April 12, 2009.  Claimant did not dispute that her alleged back injury occurred while being treated for her work-related injury, her argument instead was that the parties never intended the back injury to be included in their settlement.  The Court found that the parties’ settlement agreement expressly encompassed Claimant’s chiropractic injury.  When the language used in a settlement agreement is “plain clear and no absurdity is involved, a court must enforce the instrument as written.” Cary v. Chevron U.S.A., Inc., 867 P.2d 117, 119 (Colo. App. 1993).  The Court held that Claimant, in this instance, was barred by the terms of the settlement agreement from bringing a separate claim for her back injury.

Use it or lose it: All issues must be raised prior to the ALJ’s Order. Angel Montes v. MDT Personnel, LLC, and Guarantee Insurance Co. / Patriot Risk Services, W.C. No. 4-913-144-01 (ICAO, December 16, 2014).  Here, Claimant sought a review of an Order from ALJ Cain that denied and dismissed his claim for benefits.  After the hearing, the ALJ found that the Claimant failed to satisfy his burden of proving he sustained a compensable knee injury.  The ALJ further found that the Claimant failed to prove he sustained an occupational ankle disease by the conditions of his employment. On appeal, Claimant argued that the ALJ erred in failing to amend the pleadings to conform to the evidence, which supported an occupational disease of his right knee.  On appeal, ICAO affirmed the denial of compensability, and found that Claimant’s failure to raise the issue of an occupational disease to his right knee prior to the time of the ALJ’s order resulted in a waiver of that argument. See, Hanna v. Print Expediters, Inc., 77 P.3d 863, 865-66 (Colo. App. 2003).  Further, ICAO held that to the extent Claimant did preserve the issue, the ICAO was not persuaded to disturb the ALJ’s order.  The ICAO will not reweigh the evidence and substitute their judgment for that of an ALJ.

Take my wife…please!: Detailed medical records prevail over spousal testimony. In Gilbert Padilla v. Wal-Mart Stores, Inc., and New Hampshire Insurance Company, W.C. No. 4-905-664 (ICAO, December 22, 2014), Claimant initially underwent a hearing before ALJ Stuber on August 28, 2013.   During the first hearing, Claimant attempted to have his wife testify as a rebuttal witness regarding Claimant’s medical treatment. ALJ Stuber did not allow Claimant’s wife to testify and entered an Order denying and dismissing the Claimant’s claim for compensation benefits. On appeal, Claimant argued that ALJ Stuber abused his discretion in preventing him from presenting the proffered rebuttal testimony of his wife.  On February 12, 2014, ICAO entered an Order setting aside ALJ Stuber’s Order.  A second hearing was held on July 22, 2014 in front of ALJ Walsh.  ALJ Walsh entered a new Order, again finding that Claimant failed to prove by a preponderance of the evidence that he suffered an injury on November 9, 2012, arising out of the course and scope of his employment.  Ultimately, ALJ Walsh found the rebuttal testimony of Claimant’s wife to be less credible than the detailed notes in the medical records. On review, Claimant argued that ALJ Walsh abused his discretion by limiting rebuttal testimony from his wife to the initial offer of proof he made at the prior hearing.  ICAO held the Claimant failed to demonstrate that ALJ Walsh abused his discretion by limiting rebuttal evidence from his wife to that offer of proof he originally made at the hearing before ALJ Stuber.  Further, ICAO held that Claimant never made an offer of proof that his wife would offer rebuttal testimony to anything except the specific medical treatment in question.  Additionally, ICAO noted Claimant had adequate time prior to the second hearing to introduce additional rebuttal testimony from his wife.

Don’t know nothing ‘bout MSAs: An Administrative Law Judge has no jurisdiction over the enforcement of MSAs or employment agreements.  InSavidge v. Air Wisconsin, W.C. 4-620-669-01 (ICAO, December 29, 2014), Claimant sought review of her full and final settlement which contained a MSA. Claimant stated that her condition had changed since she agreed to the settlement and that she was unable to administer the MSA herself.  Claimant therefore requested that the settlement agreement be modified to include professional administration of the MSA. ICAO noted that an ALJ has no jurisdiction to order relief from enforcement of a Medicare Set-Aside Agreement (MSA) attached to a previously approved settlement agreement. W.C.R.P 7-2(A)(1) provides that parties are to use the settlement agreement drafted by the Director.  This Rule explains that paragraphs 9(A) and 9(B) may be modified by the parties: paragraph 9(A) may be used by the parties to include other terms that involve issues that fall within the Workers’ Compensation Act.  Paragraph 9(B) is also left blank and may be used for the parties to insert terms regarding MSA agreements, employment agreements, or waivers of bad faith claims. However, Rule 7-2(A)(1) excludes terms or agreements referenced in paragraph 9(B) from being part of the settlement agreements and therefore not subject to the jurisdiction of the ALJ.  In this case, the ALJ noted, and ICAO upheld, that approval of the settlement agreement does not constitute approval of the MSA agreement.  In this particular case, the MSA terms were referenced in paragraph 9(B) and therefore were not part of the settlement agreement and could not be reviewed by an ALJ.

Contrary to what you read online, Wikipedia is not persuasive evidence: A physician opinion is persuasive to support all PTD findings when determining permanent work restrictions. In Wallace v. Current USA, Inc. and Pacific Indemnity Company, W.C. 4-886-464 (ICAO, December 24, 2014), Claimant sought a review of a denial of PTD benefits.  The ALJ found the Functional Capacity Evaluation (FCE) to be less persuasive than other evidence.  The ALJ noted that no physician verified the accuracy of the proposed FCE work restrictions. Furthermore, the individual conducting the FCE was not a physician and was not trained pursuant to the workers’ compensation guidelines pertinent to causation, and based her findings on among other things, an article from Wikipedia.  An ALJ may consider a wide variety of factors in determining whether a claimant is permanently and totally disabled and this is ultimately an issue of material fact. The ALJ determined Respondents’ vocational expert provided credible and thorough market research and a reliance on the work restrictions recommended by two physicians in the claim. ICAO determined substantial evidence supported the ALJ’s findings an upheld the denial of PTD benefits.

If it doesn’t fit, you must not admit: Even when medical benefits have been awarded, Respondents can still contest specific treatment.  Even if there is a general award of medical benefits in a claim, respondents can contest any individual medical treatment.  This denial may be based on the benefits being unauthorized, unreasonable, unnecessary or not related to the claim. In Wilson v. H. S. Construction, W.C. 4-472-849-11 (ICAO, December 22, 2014), Claimant had been involved in a compensable motor vehicle accident (MVA) wherein he incurred an injury to his femur and pelvis. Claimant complained of headaches and requested that Respondents pay for medical care to treat his head and cervical spine. Two physicians determined that it was improbable that the headaches were caused by a cervical spine injury or head injury as a result of the MVA, but rather more likely the headaches were a result of pre-existing conditions. One other physician opined that the headaches were a product of the MVA because they were a product of the MVA aggravating a pre-existing condition.  The ALJ cited case law noting that the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatment that occur after the injury, were caused by the injury.  HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990).  Also, the fact that Respondents had previously paid for some headache treatment did not change the results.  It has been generally held that payment of medical services is not itself an admission of liability.  C.R.S. §8-43-210; Ashburn v. La Plata School District, W.C. 3-062-779 (May 4, 2007).

No representation without supplementation: Although Respondents are required to provide medical records for the DIME, if Respondents fail to adequately do so, Claimant may supplement DIME records.  Claimant sustained admitted injuries to her left upper extremity and low back in  Solis v. Industrial Claim Appeals Office, W. C. 4-795-922 & 4-800-423, (December 24, 2014) (nsfop). Claimant sought a review of the decision that Respondents overcame the findings of the DIME.  The ALJ credited the opinion of Respondents’ IME physician, and found by clear and convincing evidence that the DIME physician incorrectly provided an impairment rating for the spine.  Furthermore, the ALJ found that the IME physician’s findings were corroborated by Claimant’s authorized treating provider (ATP).  The ALJ found that the ATP and IME physician provided credible evidence. Claimant argued there was an incomplete record for review because Respondents did not provide all medical records to the DIME. The ALJ found that Claimant waived this argument because the Claimant herself could have provided supplemental records or cancelled the DIME if she felt there were not adequate records.  The Workers’ Compensation Rules of Procedure provide adequate measures for Claimant to address Respondents’ failure to provide all medical records to the DIME physician. Claimant failed to take any measures prior to the DIME, so she waived this argument. ICAO noted Claimant could have also deposed the DIME doctor but failed to do so.

The 180 Day Ticking Time Bomb

The Colorado Governmental Immunities Act: The 180 Day Ticking Time Bomb for Filing a Subrogation Personal Injury Lawsuit
– Joseph W. Gren, Esq.

Professor Alan Dershowitz, a hailed legal commenter and constitutional scholar, once remarked that “every lawsuit results from somebody doing something wrong. If everybody did right, we wouldn’t need laws.” In Colorado, the Workers’ Compensation Act provides an employer and insurance carrier the right to sue a “third party” when that respective third party causes injuries to an employee. Section 8-41-203, C.R.S. Though most insurance carriers and claims examiners are generally familiar with the “right of subrogation,” there are several areas of workers’ compensation subrogation that are often times thorny, especially when the government becomes involved.

When the “somebody” who caused an injury to an injured employee is a state governmental entity, a workers’ compensation insurance carrier must take specific measures at the onset of the injury in order to protect their respective subrogation rights. A party’s failure to follow the specific statutory timeframes established by the Colorado Governmental Immunities Act (“CGIA”), section 24-10-101, C.R.S., will result in any personal injury claim being time barred: Maestas v. Lujan, 351 F.3d 1001 (10th Cir. 2003). The most important step an insurance carrier or employer can take at the onset of a subrogation claim is to file the appropriate notice of claim with a governmental entity.

Generally, the CGIA permits the government to be sued for damages arising out of personal injury claims in limited circumstances. This concept is known as a waiver of governmental immunity. Though the jurisprudential theory underpinning why the government enjoys such a unique perk is significant, it is more important to understand how this law practically works. The first step in determining whether the CGIA applies to your case is to determine whether a governmental agency or employee caused, or was involved in causing, the injury to an insured’s employee.

Commonplace examples of personal injury claims involving a governmental entity include injuries caused by dangerous conditions, such as slip and falls on ice found on the grounds of governmental facilities – schools or parks maintained by a municipality, city or state. See, also Reynolds v. School District No. 1 Denver, 69 F.3d 1532 (10th Cir 1995). More subtle instances of entities who may claim protections under the CGIA include physicians whom are associated with state teaching intuitions, but work at medical facilities conducting surgeries. Rudnick v. Ferguson, et. al., 179 P.3d 26 (Colo. App. 2007). State hospitals and its employees also enjoy the protections of the CGIA. Injuries caused by a federal governmental entity or employee implicate the Federal Tort Claims Act. 28 U.S.C., Chapter 17. It is important to distinguish between state and federal entities at the onset of the claim to determine which notice provisions apply in your case.

Once the governmental entity or employee is identified, any party seeking damages, including damages provided under the subrogation statute, must provide the entity notice consistent with the CGIA. Notice of a claim must be sent in writing within “one-hundred and eight-two days” after the “discovery of the injury, regardless of whether the person then knew of all elements of claim or of a cause of action for such injury.” Section 24-10-109(1). As a general rule, most familiar with the CGIA use 180 days as the notice deadline. It is critical to file the written notice within 180 days after the employer or carrier has reasonable or actual notice of a workers’ compensation injury. Failure to provide a claim notice within the 180 day window will result in the claim being barred by the CGIA, as has happened in a number of cases. Once a trial court dismisses a claim as a result of untimely notice, the appeals courts usually provide no sympathy to a CGIA claimant.

The case of The City and County of Denver v. Crandall, 161 P.3d 627 (Colo. 2007) is illustrative of the harsh realities of not meeting the 180-day notice deadline. In that case, customer service agents working for an airliner at DIA alleged an environmental exposure injury caused by the poor air quality in Concourse B. The employees manifested symptoms consistent with the exposure in 1999 through 2002. In 2002, one employee filed a workers’ compensation claim alleging a 1999 date of injury. Multiple injured employees then filed notice of a CGIA claim with the City of Denver. The city claimed that the notice should have been filed within 180 days from the 1999 date of injury as noted on the workers’ compensation claim form. Although the employees demonstrated recurring symptoms in 2002, the Colorado Supreme Court barred the claim against the city on the grounds that the notice should have been filed in 1999. The employees were unable to recover damages against the city. The case, however, does not address whether a workers’ compensation carrier would be able to file a timely CGIA claim if the carrier found out about the injury in 2002. However, it does imply that the 180-day requirement starts ticking when a party, perhaps even the employer, has reasonable evidence that an injury has occurred.

The CGIA also requires that the notice contain specific language. Section 24-10-109(2)(a)-(e), C.R.S. provides that the claim notice requires: (a) the name and address of the claimant and the name and address of his attorney, if any; (b) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (c) the name and address of any public employee involved, if known; (d) a concise statement of the nature and the extent of the injury claimed to have been suffered; (e) a statement of the amount of monetary damages that is being requested. As a workers’ compensation carrier, the carrier or employer who carries the loss can be considered the “claimant,” as described in section (a). Since the exposure for a workers’ compensation claim may be unknown until several years after the injury, the notice of damages should contain a statement of generalized monetary figures or allegations. The courts often times strictly enforce what is statutorily required to be in the notice. Hamon Contractors, Inc., Carter and Burgess, Inc., 229 P.3d 282, (Colo.App.2009). Though you may serve the written notice within 180 days, failure to include a statement of circumstances of the event, for example, can result in a bar to the claim.

Finally, the written notice must be served with the proper governmental entity. According to the CGIA, “[i]f the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered or certified mail, return receipt requested, or upon personal service.” Section 24-10-109(3)(a). Additionally, subsection (b) states that a “notice required under this section that is properly filed with a public entity’s agent listed in the inventory of local governmental entities pursuant to section 24-32-116, is deemed to satisfy the requirements of this section.” Each governmental agency may have a different division or department designated to receive CGIA claims notices, such as a city attorney or a county clerk. It is advisable to contact the agency several weeks before the notice due date to obtain the name, address and division for the department designated to accept claim notices.

This article only scratches the surface of the CGIA’s complexities. But the most critical aspect of the CGIA, and the greatest obstacle in governmental subrogation recovery, is filing a claim against a government with the 180-day timeframe. Claims against the government can be won and lost depending on whether the timely notice has been met. If the timeframe is not met, the governmental “somebody doing something wrong” entity or employee will be granted immunity under the law even if the government is 100% at fault.

legaLKonnection Firm Newsletter – January 2015

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.

In the News

Lee + Kinder is proud to sponsor the Professionals in Workers’ Compensation’s 6th Annual Bowling Cup on Friday, February 13, 2015 at Arapahoe Bowl.  We hope you can join us!  For additional information and to register individually or as a team, visit the PWC website..

Victory Lap

Member Josh Brown successfully prevented a claimant from pursuing further workers’ compensation benefits for a back injury under a new claim after settling an existing claim for a shoulder injury in Bopp v. ICAO, Garden Square Assisted Living and Liberty Mutual Insurance Group, W.C. No. 4-893-767 (Colo. App. 2015) (nsfop). Claimant suffered an admitted injury to her right shoulder in 2009 and consequently underwent treatment with a chiropractor, which she alleged caused an injury to her low back.  The parties agreed to full and final settlement of the claim in 2012, which included all other disabilities, impairments, or conditions related to the shoulder injury, including injuries unknown at that time.  After settlement was approved, Claimant sought additional benefits for complaints of back pain through a new workers’ compensation claim.  Respondents filed two motions for summary judgment, arguing that settlement barred further benefits for any injuries stemming from the 2009 claim, regardless of which body part was impacted, as Claimant had expressly agreed to waive further benefits under the settlement language.  Because Claimant’s new alleged injury was sustained while receiving treatment for the admitted shoulder injury, Respondents argued, Colorado law considers this to be related to that injury under the quasi-course and scope of employment doctrine.  The ALJ, ICAO, and the Colorado Court of Appeals agreed and denied Claimant’s claim for further benefits on this basis, dismissing the claim with prejudice.

Of Counsel Frank Cavanaugh successfully argued in James Allen v. US Engineering Co. and Liberty Mutual Fire Insurance, W.C. No. 4-945-671 (ICAO, December 8, 2014) that the employer must be apprised of the hearing by proper notice under the Workers’ Compensation Act, as it is a party of interest, and is entitled to a notice of hearing separate from that sent to the insurer.  This notice must affirmatively appear on the record, unless waived, or else the proceedings are void.  In this case, the Claimant failed to serve the employer the notice of the hearing.  The Court stated that due process requires the employer must be notified of pending proceedings affecting its rights, thus remanding the Order granting compensability.

Equal Employment Opportunity Commission Sues another Employer for Allegedly Violating the ADA for an Inflexible Leave Policy

The EEOC’s position is clear. The ADA requires employers to incorporate flexibility into their leave of absence policies or face the consequences. In late September, we were reminded of this yet again when the EEOC sued a Chicago-area manufacturer for capping the amount of leave provided to employees, without considering whether a reasonable accommodation may exist for each employee.

In this latest suit against Doumak, Inc., the EEOC alleged that an employer and its employees’ respective union had violated the ADA by placing a cap on the amount of leave available to employees (“a maximum of 12 weeks or 12 months of medical leave”). According to the EEOC, once employees reached this cap on leave, Doumak automatically terminated them instead of providing additional leave or other reasonable accommodations. In this case, the cap on leave was part of the collective bargaining agreements between Doumak and the employees’ local union. On November 4, 2014, Doumak and the local union settled the case by entering into a consent decree with the EEOC.  As part of the consent decree, the employer agreed to pay $85,000 and negotiate with the union to amend the relevant portions of the Collective Bargaining Agreements at issue. This case is part of a trend of lawsuits initiated by the EEOC over the past several years.

In 2012, the EEOC sued Interstate Distributor Company, alleging that the employer’s leave policy provided for automatic termination after 12 weeks of leave and required employees to return to work with no restrictions. That case settled for $4.85 million. In 2011, the EEOC sued Supervalu/Jewel Osco, making similar claims that the employer’s policy provided for automatic termination following a set amount of medical leave. That case settled for $3.2 million. The EEOC also settled a case against Denny’s Inc., for $1.3 million, where the agency claimed that the employer’s policy of providing a maximum of six months of leave violated the ADA.

These are but a few examples of instances where the EEOC has challenged employer leave policies that did not provide the type of flexibility required under the ADA. Remember, the ADA requires an individualized assessment to determine whether a reasonable accommodation may exist for an employee with a disability. When an employer has an inflexible leave policy (e.g., one that provides for automatic termination after a set period of time), the employer does not fulfill its obligation to engage in this individualized assessment under the ADA.  And, employers with large employee populations may be particularly vulnerable to litigation because of the large number of employees affected by such policies.

But, whether you’re big or small, the take away is the same – a one-size-fits-all leave of absence policy could land you in hot water. So, in this day and age, employers must continually ask themselves, does our leave policy provide for an individualized assessment under the ADA?

Cases You Should Know
It’s discretionary for an ALJ to speed read medical records:  Linda Artmann v. Reilly, Pozner & Connelly, LLP, and Sentinel Insurance Company, Ltd., W.C. No. 4-834-243 (ICAO, December 3, 2014), involved a Claimant with a low back injury who reached MMI, and was then removed from MMI by a DIME physician who recommended additional osteopathic manipulation and physical therapy.  Claimant then underwent a 24-month DIME two years later.  At the hearing to challenge the DIME physician’s MMI determination, the ALJ received 361 pages of medical documents from Respondents and another 112 pages, primarily medical, from Claimant.  Following a 15 minute recess and live testimony from Claimant, the ALJ submitted an oral decision in favor of the Claimant, determining that Claimant was not at MMI.  On appeal, ICAO held that the ALJ’s decision was supported by substantial evidence in the record.  The ICAO held that ALJs are experienced in the assessment of medical evidence and testimony, and are presumed to have special expertise in evaluating this evidence.  The Panel held that the ALJ was capable of weighing the doctors’ testimony and reports, and considering the bases of their opinions.

Respondents have no right to choose physician after proper showing by Claimant for physician change:  In Pedro Gutierrez Lopez v. Scott Contractors and Zurich American Insurance Co., W.C. No. 4-872-923 (ICAO, November 19, 2014), Claimant sustained injuries to both legs when attempting to get a truck out of snow on December 6, 2011.  The parties agreed to Claimant’s authorized treating physician.  Claimant continued to undergo treatment, but pain persisted.  Surgery was recommended, which the ATP recommended against, and Respondents did not authorize.  At a hearing on the authorization of surgery, which was granted, Claimant also asserted that he had lost confidence in the ATP and requested that another ATP be designated.  Claimant perceived some of the ATP’s statements to him as an assault on his religious faith.  The ALJ concluded that Claimant had made a proper showing that he had lost confidence in his ATP and that a change of physician would facilitate recovery.  On appeal, ICAO held that after a proper showing warranting a change of physician, the ALJ is under no obligation to acquiesce to a further physician referral from Respondents.  Further, ICAO held, there is no requirement that limits the ALJ’s authorization to a personal or prior treating physician.

Meritless claims still ripe for picking:  In Jane McMeekin v. Memorial Gardens and Reliance National Indemnity, W.C. No. 4-384-910 (ICAO, September 30, 2014), the Court overturned an award of attorney’s fees previously awarded to Claimant, holding that the issues endorsed on Respondents’ application for hearing were ripe for adjudication, and thus, did not warrant an award of fees to Claimant.  At hearing, the ALJ held that Respondents’ endorsement of apportionment and authorized treating physician were not ripe, and directed that Respondents’ pay attorney fees and costs to Claimant.  Claimant argued that Respondents did not possess evidence to support their claim in regard to the “authorized provider” issue endorsed for hearing.  As a consequence, Claimant argued that Respondents had requested a hearing on an issue that was not ripe for adjudication, and that Claimant was therefore entitled to attorney fees.  The Panel held that the likelihood of success of the merits of an issue is a distinct consideration from whether there is a legal barrier adjudicating the issue.  The Court distinguished between the merits of an issue and its ripeness, noting that the latter had nothing to do with the former, and that a frivolous or meritless claim may nonetheless be ripe for adjudication.  The Court noted that Workers’ Compensation Law often requires quick deadlines, requiring parties to take action before any significant evidence can be gathered.  The Court, therefore, opined that the parties would be forced to choose between their right to hearing or waiving that right to avoid an assessment of fess if they guessed wrong about the possible strength of their claim.  Thus, the Court held that Respondents’ endorsement of “authorized provider” did not have a legal barrier to adjudication, regardless of its merits.

Didn’t provide a designated provider list after employee injury?  Expect penalties:  Dennis Meenan v. Boulder County and Self Insured, W.C. No. 4-898-245 (ICAO, September 9, 2014) involves a claim by Claimant for penalties for Respondents’ failure to provide a designated provider list pursuant to C.R.S. § 8-43-404(5)(a).  The ALJ assessed penalties against Respondents for failing to provide a designated provider list to Claimant when aware Claimant was actively receiving medical care for a workers’ compensation injury.

Attorney’s Fees for Unripe Issues for Injuries Occurring Before July 1, 1991: ICAO upheld the ALJ’s denial of attorney fees to claimant for respondents’ alleged endorsement of an unripe issue for hearing in Wilde v. Sears Roebuck & Company and Allstate Insurance Co, W.C. No. 4-018-793 (ICAO June 9, 2014), though for reasons different from the lower court.  Claimant suffered an admitted injury in March of 1991 and made a request for prior authorization for surgery in 2013, which was timely denied by Respondents within seven business days with an Application for Hearing.  Claimant sought attorney’s fees when Respondents later re-filed the Application, alleging that the issue was unripe because the Application was outside of the seven-business day window set forth by statute.   The ALJ denied attorney fees because Respondents had initially challenged surgery within the permitted time frame.  ICAO upheld the decision, though it instead held that Claimant could not seek attorney’s fees because his injury occurred before the July 1, 1991 introduction of the attorney fee statute, which applied to injuries occurring on or after that date.  ICAO did not address basis for the ALJ’s finding that the issue was unripe because the initial Application was filed on time.

Appeals upon Error in the Record: In Milroy v. ICAO and City of Colorado Springs, W.C. No. 4-884-077 (Colo. App. 2014) (nsfop), the Colorado Court of Appeals, which affirmed the ICAO Decision denying Claimant’s appeal of the ALJ’s Order denying and dismissing his claim for a back injury, the ALJ denied Claimant’s claim for benefits but mistakenly did not record the hearing proceedings.  Claimant appealed, primarily on the basis that the ALJ erred in not recording the hearing, arguing the matter was therefore unappealable and warranted a new evidentiary hearing.    While Section 8-43-213(1), C.R.S., upon which Claimant relied, does state that hearing shall be taken either verbatim by a court reporter or otherwise by electronic recording, the Court of Appeals found that the absence of a recorded hearing transcript does not necessarily bar appellate review.  For a new trial on the basis of error, an appellant must: 1) make a specific allegation such; 2) show that the defect in the record materially impacts the appellate court’s ability to review; and 3) show that a proceeding under C.A.R. 10(c) (an appellate court rule which sets forth the proper procedure in the event of an absent written record) failed to produce an adequate substitute for the evidence.  The Court found that Claimant, in this instance, had failed to meet any of the above three criteria.  Specifically, the Court found that, in addition to the appellate court’s having access to all exhibits, written medical records, and deposition testimony, the ALJ’s detailed hearing notes were an adequate substitute for a written record.  Accordingly, the Court of Appeals affirmed denial of Claimant’s appeal in its entirety.

Ambiguity in a DIME Report and ALJ’s Jurisdiction Regarding Causation: The Colorado Court of Appeals set aside an ICAO decision upholding an ALJ’s findings regarding an ambiguous DIME determination in Samuels v. ICAO, Deli Zone and Sentinel Insurance Company, W.C. No. 4-761-359 (Colo. App. 2014) (nsfop), and remanded to the DOWC for clarification of the ambiguous opinion.  The DIME physician issued two consecutive opinions regarding MMI and impairment for an admitted left knee injury and what Claimant alleged was a related right knee condition.  Respondents did not admit for any impairment of the right knee and Claimant sought to overcome the DIME’s opinion on causation of this condition.  While ICAO upheld the ALJ’s determination that the DIME opinion was ambiguous in regard to causation of the right knee symptoms, it set aside the ALJ’s opinion that the DIME considered the right knee unrelated and remanded the case to the DOWC for further clarification on the issue.  The ICAO held that, because there was not substantial evidence in the record to support a finding that the DIME physician did not believe the right knee condition was work-related, in light of the ambiguity, the ALJ could not have found against Claimant in overcoming the DIME on that issue.

legaLKonnection Firm Newsletter – December 2014

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.

Looking Ahead

The cornerstone of Lee + Kinder was built on providing exceptional quality legal service in the fast-paced and ever-changing environment of Workers’ Compensation Law.  We succeeded.  As a result, we have expanded our knowledgeable attorney base to 13 since inception in July of 2008.  Along with new talent also comes new areas of expertise.  Our group of legal professionals bring with them a broad repertoire of real world experience and practical knowledge in the areas of Medicare Set-Asides, Business Law, Environmental Law, Employment Law, Insurance Defense, General Liability, Health Insurance Provider Recovery and Subrogation.

In 2015, our monthly newsletter will continue to bring you updates and developments in the field of workers’ compensation.  In addition, look for our new sections, titles, and/or articles on what’s hot in other legal practice areas by some of our top legal contributors:  Josh Brown will bring you “Down with Brown” – a snapshot into the hot-button topics of employment law and their legal ramifications.  Joe Gren will expound on topics pertaining to Subrogation, General Liability and Environmental Law, including Wildlife and Endangered Species, Public Lands, and Natural Resources, in “Cup ‘O Joe.”  Lastly, Frank Cavanaugh will “Just Be Frank,” walking you through the interesting twists and turns of Health Insurance Provider Recovery, Business Law and Construction Law.

As we close out the year, everyone here at Lee + Kinder wants to thank you for your overwhelming support and continued business in 2014. We wish you a wonderful holiday season and look forward to serving you in 2015!

Victory Lap

Of Counsel Frank Cavanaugh appealed an Order which found a claim compensable without the employer present at the hearing.  Mr. Cavanaugh successfully argued that the employer did not receive notice of the hearing pursuant to C.R.S. §8-43-211. ICAO remanded the matter back to the Office of Administrative Courts.
Of Counsel Joseph Gren successfully convinced the ALJ to dismiss a pro se claimant’s claim for compensability, TTD and medical benefits claim with prejudice in the matter of Suttle v. United Parcel Service and Liberty Mutual. During hearing, the ALJ granted the pro se Claimant an extension of the merits hearing in order to retain an attorney. The Claimant failed to obtain new legal counsel and Mr. Gren argued that the claim should be dismissed with prejudice pursuant to section 8-43-2079(n). The Claimant did not take the action that had initially justified the extension of hearing and the employer and insurer were prejudiced by the Claimant’s unreasonable delay in prosecuting his case.
Cases You Should Know
No benefit awarded? No appeal. A penny for your thoughts revisited. In Sandra Weitzel v. Delta County, Self-Insured, W.C. 4-926-816 (ICAO, April 3, 2014), Respondents filed a Petition to Review an Order that found Claimant’s carpal tunnel syndrome to be a compensable work-related injury. ICAO held that the Order was interlocutory because it merely determined compensability and provided a “general” award of medical benefits without indicating a specific treatment. ICAO held that the Order did not award or deny any specific treatment or benefit and was not subject to review.

Disabled does not mean unpaid. In Oatfield Whitney v. West Metro Fire Protection District, Self-Insured, W.C. 4-920-012 (ICAO, April 4, 2014), ICAO held that in order to recover TTD benefits for the three-day waiting period, a claimant must show that he was “disabled” for longer than two weeks. ICAO noted that to be considered “disabled” a claimant must show that (1) he experienced a loss or restriction in bodily function and (2) he experienced a wage loss. The facts of the case indicated that Claimant was unable to work because of his injury, but received regular wages during this time.  ICAO held that Claimant was not disabled for purposes of recovering TTD benefits because he did not sustain a wage loss from his injury.

Your attorney’s malpractice is your reasonable excuse. According to C.R.S. §8-43-103(2), a claimant must file a notice claiming compensation within 2 years of the date of injury. However, the statute of limitations may be extended to 3 years if claimant had a “reasonable excuse.”  In Jesus Aceves v. Genesis Fixtures and Fidelity & Guaranty Insurance Company, W.C. 4-844-271 (ICAO, November 14, 2014), Claimant retained counsel two weeks before the expiration of the 2-year statute of limitations, but his attorney failed to timely submit a claim. ICAO affirmed the ALJ’s decision to extend the statute of limitations to three years on the grounds that Claimant had a reasonable excuse. ICAO found that while there is no excuse for a Claimant’s ignorance of the law, the negligence of a Claimant’s attorney can constitute a reasonable excuse for not filing a timely claim for compensation. ICAO noted that the period should be extended to three years because there was a reasonable excuse and Respondents failed to prove that they were prejudiced by the failure to timely file the claim.

When the legislature said “statutory cap” on benefits, they meant it. Here, Claimant sustained a work injury in September, 2008. Respondents filed a Final Admission of Liability on December 13, 2010, admitting for $148,626.06 in TTD benefits and paying $10,562.46 in PPD benefits. At hearing, Claimant was found not at MMI.  Respondents filed a General Admission of Liability and reinstated TTD benefits.  When Claimant again reached MMI, Respondents had paid $161,657.39 in TTD and PPD benefits, which exceeded the combined statutory cap of $150,000 by $11,657.39.  In the Final Admission of Liability, Respondents asserted an overpayment for benefits paid over the cap, which they used to offset against disfigurement benefits. The ALJ found there was no overpayment because the benefits were paid pursuant to statute and Claimant had a right to the benefits. However, ICAO disagreed and noted, pursuant to C.R.S. §8-40-201(15.5), an overpayment is money received by a claimant that exceeds the amount that should have been paid.  ICAO held an overpayment includes combined TTD and PPD benefits received by Claimant in excess of the statutory cap. Danks v. Rayburn Enterprises, Inc. and Pinnacol Assurance, W.C. 4-770-978 (ICAO April 3, 2014).

Respondents get a second bite at the apple on causation.  In this case, Respondents filed a Final Admission of Liability, admitting for 23% upper extremity and 11% lower extremity impairment ratings.  Claimant sought hearing to convert the 23% upper extremity impairment to whole person. At hearing, Respondents argued the Claimant’s upper extremity symptoms were not related to the work injury.  The ALJ found Claimant’s upper extremity was not injured at work and that no PPD was owed for the upper extremity rating. Claimant appealed.  ICAO previously held Respondents, despite admitting for the body part in an FA, could challenge the causation element of a PPD award absent a DIME. Respondents filed an Amended FAL and only admitted for the 11% lower extremity, asserting an overpayment of PPD benefits paid toward the upper extremity. Claimant appealed, arguing Respondents could not now allege an overpayment since they already admitted and paid for the impairment.  ICAO held the PPD award paid for Claimant’s upper extremity was an overpayment, as it was money received by Claimant that exceeded the amount that should have been paid or that he was not entitled to receive, C.R.S. §8-40-201(15.5).  Because the Claimant requested a hearing regarding his impairment, the impairment and award did not become final after Respondents filed the first FAL. Therefore, Respondents could challenge causation and amend the FAL after the Order finding the upper extremity unrelated to the work injury and assert the overpayment. Franco v. Denver Public Schools, W.C. 4-818-579 (ICAO May 12, 2014).

The big, fat liar defense – credibility and bias of a witness are in sole discretion of an ALJ.  In February 2012, Claimant sustained an admitted injury to his back from a slip and fall at work. However, Claimant previously injured his low back in December 2011 in a motor vehicle accident. Claimant was placed at MMI with no impairment but he was provided with limited lifting restrictions. Claimant was involved in another MVA in September 2012.  He underwent a DIME for the work injury in February 2013.  The DIME physician opined Claimant had 5% whole person impairment according to Table 53 of the AMA Guides.  Respondents pursued hearing to overcome the DIME. Crediting the opinions of Claimant’s ATP, the ALJ held Respondents successful. Claimant appealed, arguing the ATP was biased.  However, ICAO held that weighing the credibility of the evidence was within the sole discretion of the ALJ and that the evidence supported the findings in this matter.  Gebereyes v. Veolia Transportation and Old Republic Insurance Co., W.C. 4-880-828 (ICAO April 25, 2014).

If the subcontractor of the general contractor of the homeowner says he has insurance, does anyone hear the tree falling in the woods? General contractors and homeowners may argue promissory estoppel to avoid liability for a subcontractor’s injuries if they relied on a certificate of coverage from the subcontractor’s insurer.  In Hoff v. Indus. Claim Appeals Office, 2014 WL 5034507 (Colo. App. Oct. 9, 2014), the Court of Appeals held that a homeowner was not barred from arguing promissory estoppel against a subcontractor’s workers’ compensation insurer when the homeowner was liable for benefits as a statutory employer.  In this case, a subcontractor sustained severe injuries after he fell from a ladder while repairing a roof on the homeowner’s property. The ALJ imposed liability on the homeowner as a statutory employer because the subcontractor’s workers’ compensation insurance was cancelled prior to the incident. The homeowner argued that the subcontractor’s insurer was estopped from denying coverage for Claimant’s injuries because it initially provided a certificate of coverage to the contractor and failed to provide a notice to the parties after the policy was cancelled.  The Court of Appeals found that the roofing contractor and the homeowner were entitled to rely on a certificate of coverage provided by the subcontractor’s insurer.  The Court also found that the insurer’s policy required it to notify the contractor of the cancellation of the policy. The Court remanded the case to determine whether the homeowner actually relied on the certificate when she contracted out the repair work.

Just because you can’t legally work here, doesn’t necessarily mean you can’t work here. ALJs have discretion to consider an injured workers’ immigration status in determining whether to award PTD benefits.  Claimant sustained an industrial injury to his back in 2008.  After reaching MMI, he pursued PTD benefits alleging he was unable to return to work due to his work injury. Respondents argued Claimant’s immigration status, not his work injury, prevented him from being able to return to work.  The ALJ credited testimony of Claimant’s psychologist and occupational therapist in finding Claimant was unable to return to work due to the work injury.  Respondents appealed and argued the ALJ should have considered Claimant’s immigration status in determining whether he was entitled to PTD benefits.  ICAO found there was substantial evidence to support the ALJ’s finding that Claimant’s disability, not his immigration status, caused his loss of earning capacity.  Spacecon Specialty Contractors, LLC and Tristar Risk Management v. ICAO and Ordonez, W.C. 4-792-073 (August 21, 2014 Colo. App. 2014) (nsfop).

legaLKonnection Firm Newsletter – November 2014

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.

In the News

Our growing team of highly capable counsel are here to provide legal expertise in Workers’ Compensation Defense as well as:
* Employment Defense  * General Liability
* Health Insurance Provider Recovery * Insurance Defense
* Medicare Set Asides  * Subrogation

Victory Lap

Of Counsel Sheila Toborg and Associate Angela Lavery successfully defended against Claimant’s requests for massage therapy and a massage chair as maintenance benefits in Joseph Dickerson v. Evraz Inc. NA (formerly known as Oregon Steel Mills). Ms. Toborg presented credible testimony from the Respondent-IME physician that the requests for massage therapy and massage chair were not reasonable or necessary post-MMI treatment.  The IME physician noted that Claimant’s condition was a chronic condition and that passive therapy, such as massage, was not indicated. The IME physician also testified that Claimant had not demonstrated any functional limitations, other than subjective complaints, to support the basis for the request.  The Administrative Law Judge (ALJ) denied Claimant’s requests for massage therapy and a massage chair.Of Counsel Joseph Gren defeated Claimant’s Motion for Summary Judgment in Robert Niziolek v. United Parcel Service and Liberty Mutual Insurance. Claimant moved for Summary Judgment to strike the 24-month DIME opinion, due to the fact that Claimant’s ATP had placed Claimant at MMI two weeks before the DIME appointment.  Claimant’s ATP had placed Claimant at MMI prior to the occurrence of the 24-month DIME, but subsequent to the request of the 24-month DIME by Respondents. Claimant argued that the statute required Respondents to respond within 30 days to the ATP’s finding of MMI. Claimant further argued that Respondents had failed to timely request a new DIME within 30 days of the placement of Claimant at MMI by the ATP, and consequently the impairment rating provided by the ATP was binding per C.R.S. §§8-42-107.2(2)(b) and 8-43-107(8)(b)(I). The ALJ agreed with Mr. Gren that Respondents had timely, and appropriately, requested a 24-month DIME under C.R.S. §8-42-107(8)(b)(II), to contest the ATP’s failure to place Claimant at MMI.  The ALJ interpreted the Act consistent with Mr. Gren’s argument that the Act gives the DIME jurisdiction over MMI and impairment after the party properly requests a DIME. The ALJ found that Claimant was not entitled to strike the 24-month DIME opinion and the ATP opinion had no bearing on the DIME process.Associate Matt Boatwright successfully overcame the DIME opinion inShaner v. United Parcel Service and Liberty Mutual Insurance, WC Nos. 4-887-012 & 4-904-678.   The DIME significantly increased Claimant’s impairment rating, which the DIME physician later reduced due to an evident miscalculation under the appropriate provisions of the AMA Guidelines, 3rd ed., rev. Notwithstanding, the ALJ found that the DIME, which still significantly increased Claimant’s impairment rating, contained multiple errors and defects.  These defects included an insufficient review of the pertinent medical records, an apparent confusion as to the left and right extremities in various areas of the report, and some marked differences in range of motion measurements with those of the authorized physician and Respondent’s IME physician.  Mr. Boatwright argued that, given the multiple shortcomings in the report, the DIME physician’s range of motion measurements should not be accepted as valid.  The ALJ agreed and held that the impairment rating of the authorized treating physician was binding to the benefit of Respondents.

Cases You Should Know
You think you were disabled before?  Just wait until you work here… Part Two: Sorting out complex medical conditions for PTD claims based on persuasiveness of medical opinions.    In Karen Apprill v. Kroeger, Self-Insured, W. C. 4-850-029-03, (ICAO, October 24, 2014), Claimant maintained that she was permanently and totally disabled and unable to earn wages from her work-related lower back injury of February 2011. However, before and after her work-related injury, Claimant had three non-work-related leaves of absence due to physical ailments, including a total knee replacement and stroke in 2013. Respondents presented medical evidence supporting their position that although Claimant was unable to work, it was due to her myriad of medical conditions other than the work-related injury. Claimant’s ATP had placed Claimant at MMI and noted her physical limitations from a FCE report.  In the MMI report, the ATP failed to distinguish whether her physical limitations were related to her work-related injury or her other medical conditions.  However, an IME doctor had specifically noted in his report that Claimant’s physical limitations not allowing her to perform employment duties were related to her knee condition, and other non-work-related conditions, rather than the work-related back injury, which he opined had resolved. The Court found that since the ATP had failed to distinguish which of Claimant’s medical conditions created her inability to work, the IME report and opinion was more persuasive and therefore denied Claimant’s claim for PTD benefits.In Joseph Krendel v. Hulcher Services and American Home Assurance, W.C. No. 4-744-188-03, (ICAO, November 4, 2014), Claimant sustained a work-related low back injury in 2007 which required multiple surgeries.  Claimant’s medical condition continued to deteriorate and he sought PTD benefits and post-MMI medical benefits, including treatment for a pulmonary ailment. Claimant was awarded PTD benefits. Claimant’s medical records noted that Claimant had no prior pulmonary conditions until his second back surgery in 2010, but had developed a respiratory infection and pneumonia subsequent to and as a result of the surgery.  Claimant required supplemental oxygen and continued to use it, even after the postoperative infection resolved. Claimant underwent an 18-month DIME in 2011 which found him at MMI and opined that Claimant’s post-surgery infection had long resolved. However, an ATP later noted that Claimant’s pulmonary condition was multifactorial: related to obesity-related hypoventilation, use of chronic pain medication, and sleep apnea.  Based upon substantial medical evidence, the ALJ concluded that the pulmonary symptoms were secondary to the low back surgery.  As a result, the pulmonary treatment was found to be related to the workplace injury.Be your own boss (with the income to prove it): AWW Fair Calculation and Independent Contractors. In Osman v. Colorado Cab Company and Old Republic Insurance, W.C. 4-905-869-01, (ICAO, October 30, 2104), Claimant sought review of an AWW calculation and argued that the ALJ abused his discretion by deducting Claimant’s business expenses from his gross earnings in order to determine his AWW. The ALJ found that the Claimant, a taxi cab driver, executed a contract with Colorado Cab Company (Colorado Cab). Pursuant to this contract, the Claimant indefinitely agreed to lease a taxi cab from Colorado Cab for $700.00 per week. However, the Claimant also was responsible for additional costs, penalties, and fees assessed by Colorado Cab; including credit card and other processing fees, costs associated with accidents and repairs, fees and penalties associated with accidents, pass through of traffic and parking tickets, and other items. The ALJ found that the Claimant did not earn a salary from the Respondent employer because he was an independent contractor. Instead, the Claimant earned income by collecting fares from customers. Additionally, the parties had stipulated to Claimant’s gross income and business expenses, which left $162.56 remaining in gross income. The ALJ concluded that the Claimant worked as an independent contractor for Colorado Cab and he earned an AWW of $162.56. In making his AWW determination, the ALJ deducted the Claimant’s business expenses from his gross earnings, and determined that this was a fair approximation of his wage loss and diminished earning capacity.

The Tax Man Cometh: Attacking credibility by presenting evidence of a failure to file income tax returns. This case comes from the Court of Appeals and may have implications for use of evidence in workers’ compensation claims. In Leaf v. Beihoffer, 2014 WL 4472746 (Colo. App. 2014), the Colorado Court of Appeals held that failure to file income taxes for several years can be used as impeachment evidence to demonstrate that an individual claiming personal injury is not credible.

legaLKonnection Firm Newsletter – October 2014

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.

In the News

The Division of Workers’ Compensation recently proposed a number of significant changes to Rule 5 of the Division’s Rules of Procedure [linked to the current Rule 5] pertaining to claims handling. Mr. Joseph Gren testified on behalf of the Colorado Defense Lawyers Association during the October 15, 2014 rules hearing at the Division of Workers’ Compensation.  Mr. Gren testified that several of the proposed changes could adversely impact insurance carriers and employers, and may cause unnecessary confusion in daily claims handling practices. The proposed changes are currently under consideration with the Director of the Division. After the Division promulgates the rule changes, we will be available to advise you on how the modifications affect daily claims administration.Additionally, Mr. Frank Cavanaugh lectured on the legislative changes to the Workers’ Compensation Act during the Colorado Bar Associations’ Annual Fall Update. Mr. Cavanaugh’s lecture was well attended by attorneys and workers’ compensation professionals representing injured workers, employers, and insurance carriers. If you have questions, concerns, or curiosity about the administrative or legislative changes to the workers’ compensation system, please do not hesitate to contact Mr. Cavanaugh or any of the attorneys at Lee + Kinder.

Thank you to those who participated in the Professionals in Worker’s Compensation (PWC) Golf Tournament at Raccoon Creek Course this year. Lee + Kinder was proud to sponsor the event and were soundly represented by Joshua Brown, Frank Cavanaugh, Jessica Melson, and Kelsey Bowers.

Victory Lap

Of Counsel Joseph Gren successfully defeated Claimant’s claim for workers’ compensation benefits in the matter of George Tomley v. United Parcel Service. Claimant reported a low back injury the day in which he alleged the injury to have occurred.  Even in light of the immediate reporting, Mr. Gren presented credible testimonial evidence that the employer immediately investigated the Claimant’s claim, and based upon the testimony, the ALJ determined that the injury more likely than not did not occur. Mr. Gren presented further evidence that the Claimant’s testimony about his medical history and his capacity to work was not credible. The ALJ additionally credited Respondents’ IME physician that no injury occurred as reported by the Claimant.Of Counsel Frank Cavanaugh was recently successful in a Motion for Summary Judgment in Paddock v. Einstein Noah Restaurant Group, a claim involving attorney’s fees sought by Claimant against Respondents.  Respondents settled Claimant’s workers’ compensation case.  The Claimant subsequently filed a negligence law suit in District Court against the third party who caused the Claimant’s injuries.  Respondents did not intervene in the case.  Rather, Respondents sold the subrogation lien to the insurer of the defendant in the third party case.  The Claimant proceeded to a jury trial whereby the jury denied the Claimant an award of damages.  Claimant filed an Application for Hearing seeking reimbursement, on an allocated basis, for costs and attorney fees incurred in the failed third party case.  Respondents moved for summary judgment against the Claimant, citing that Claimant’s workers’ compensation case settled and that the ALJ had no jurisdiction over this issue.  In addition, Claimant had not paid any fees or costs, although he was liable to pay them under the fee agreement with the attorney.  The ALJ granted Respondents’ Motion.  Attorney fees requested by Respondents for Claimant’s setting of a hearing on an unripe hearing issue is still under consideration.

Of Counsel Sheila Toborg successfully defended Respondents’ interests in a full contest hearing in Harold Wilson v. ADP Totalsource and New Hampshire Insurance.  Ms. Toborg presented evidence in the form of hearing testimony and an IME report from Dr. Allison Fall demonstrating that there was no objective evidence that Claimant suffered from “hot tub lung disease” related to his employment as a maintenance technician.  Although the Claimant provided medical evidence contrary to Dr. Fall, the ALJ found Respondents’ witness testimony and evidence more persuasive that Claimant likely suffered from hypersensitivity pneumonitis, unrelated to his employment.  Claimant’s claim for compensation was denied and dismissed.Cases You Should Know

Penny for your thoughts: Orders that do not provide/deny benefits are not subject to review.  In Stephanie Bishop v. City of Thornton, W.C. No. 4-830-904-02 (ICAO, March 26, 2014), the ICAO reaffirmed established case law that orders which do not require the payments of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review.  See Ortiz v. Industrial Claim Appeals, 81 P.3d 1110 (Colo. App. 2003).  Claimant suffered a compensable injury in 2010, and petitioned to reopen her claim in 2013, arguing that her condition had worsened since the date of MMI.  A hearing was held on this issue, and the ALJ found that Claimant’s symptoms and disabilities were not related to her 2010 work injury, and denied the Petition to Reopen.  The ICAO held that the denial of the Petition to Reopen was not reviewable because it did not determine the Claimant’s entitlement to benefits.You think you were disabled before? Just wait until you work here…: Industrial injury need not be sole cause of permanent total disability. In Scott Chambless v. Hamlin Electric Company and Liberty Mutual Insurance, W.C. No. 4-865-310-01 (ICAO, April 3, 2014), the ICAO affirmed a finding by the ALJ that Claimant was permanently and totally disabled over Respondents’ arguments that Claimant’s medical disability and wage loss were due to a 1973 motor vehicle accident and recently diagnosed Parkinson’s Disease, and not the industrial injury.  The Court reasoned that the industrial injury need not be sole cause of the Claimant’s permanent and total disability in order to be compensable.  In rendering this decision, the Court relied upon the testimony of the Claimant’s vocational expert, who stated that it was unlikely that the 1973 accident created any of the Claimant’s current impairments.  Additionally, Claimant’s credible testimony that his Parkinson’s symptoms were well under control with medication was sufficient evidence to permit the Court to reasonably infer that the Claimant’s vocational limitations were related to his industrial injury and not his preexisting condition.

Sometimes it’s not so good to be the “King of the Hill:” Contractor liable as statutory employer even when subcontractor policy cancelled due to fraud. InAdan Gaytan Flores v. Needham Roofing , Inc., RPM X 1000, and Commerce & Industry Ins. Co., Twin City Fire Ins./The Hartford, W.C. No. 4-892-164-04 (ICAO, April 28, 2014), the ICAO found that a contractor’s workers’ compensation insurance carrier was liable for benefits of an injured subcontractor.  The subcontractor’s insurance policy was cancelled due to fraud, and the contractor then assumed liability based on its status as the statutory employer.  The Court found that the certificate of insurance indicating the subcontractor’s workers’ compensation insurance provided by the subcontractor’s insurer did not form a contract between the contractor’s insurer and subcontractor’s insurer that would bind the subcontractor’s insurer to liability for the benefits, despite its cancellation of the policy because of its procurement by fraud.

Even attorneys have to pay sometimes: Costs and fees assessable only against attorney, not claimant. In Lluvia Gutierrez v. Startek USA Inc., and Wausau Underwriters Insurance/Liberty Mutual, W.C. No. 4-842-550-05 (ICAO, March 5, 2014), the Court found that attorney fees were assessable against an attorney for filing an application for hearing on unripe issues, but not against Claimant individually.  Claimant, who sought penalties against employees of the Division of Workers’ Compensation, was denied relief.  Claimant then filed an additional Application for Hearing to review the prior decision.  Respondents requested the claim be closed, as Claimant had waived his right to the DIME process.  Claimant then filed another Application for Hearing, endorsing as issues to review the ALJ’s prior Orders.  Respondents sought penalties on the grounds that the Claimant filed another Application for Hearing after the ALJ struck previous hearing applications, as the issues endorsed for hearing were deemed unripe.  The Court again struck the Application for Hearing. The ALJ ordered Respondents to set a hearing on the matter of determining reasonable fees and costs.  The ALJ subsequently assessed attorney’s fees against Claimant.  Claimant appealed, arguing that the ALJ erred by assessing attorney’s fees and costs against the Claimant individually, rather than against her attorney.  ICAO remanded the case for further findings as to whether the costs and fees were assessed against Claimant or her former counsel.

Missed the mail man: Denial of authorization for change of physician request still timely if sent within time limit following a late receipt of request.  In Juan Rivera v. Conway Freight Inc., and Indemnity Insurance, W.C. No. 4-917-273-01 (ICAO, March 19, 2014), Claimant suffered a compensable injury in April 2013.  During September and October of that year, Claimant spoke with the adjuster and nurse administrator regarding his claim.  Claimant’s counsel entered his appearance on September 18, 2013.  Claimant continued, however, to communicate directly with the adjuster and nurse administrator regarding his concerns about returning to work and his treating physicians, without notifying them that he was represented.  The adjuster received the Entry of Appearance on October 21, 2013.  Also on that date, the adjuster received a request for a change of physician pursuant to C.R.S. § 8-43-404(5)(a)(VI) from Claimant’s counsel dated September 18, 2013.  The adjuster denied this request by correspondence dated October 30, 2013.  The ALJ found, and the ICAO affirmed, that the adjuster had timely informed Claimant that the change of physician request was denied.

Just because you have a theory as to how your work hurt you, doesn’t mean you are correct: Claimant must show substantial evidence to directly tie injury to work conditions.  In Cory Savage v. First Fleet Inc., and Travelers Indemnity Company, W.C. No. 4-929-714-01 (ICAO, March 26, 2014), Claimant alleged suffering carbon monoxide poisoning when he slept in the cab of his truck.  The court found that Claimant failed to establish that his injury arose out of the conditions of employment, as required by C.R.S. § 8-41-301(1)(c).  The Court held that the Claimant failed to prove that he was exposed to toxic levels of carbon monoxide linked to his truck. The ICAO noted that the individuals performing the testing of the truck did not recreate the weather conditions on the date of injury, that a trailer was not attached to the tractor, that the testing did not require the truck to be idled for eight hours, and that it was tested by individuals who were not qualified as experts on the effects of carbon monoxide exposure. The ICAO found that the mere fact that a Claimant develops an injury during the course of his employment does not relieve that Claimant of proving that the injury arose out of Claimant’s employment.  The Court held that because of the absence of evidence showing a direct tie to the work itself, or evidence to show that but for the requirement of work an employee in similar conditions would also suffer these symptoms, the Claimant’s injury fell into a category of personal risk, and was therefore not compensable.

It’s not just about the bottled water: Disaster relief program volunteers fall within statute for compensability: In Smith v. Teller County and Teller County WC Pool, W.C. No. 4-920-458 (ICAO, August 26, 2014), the ICAO upheld an ALJ’s decision finding an injury compensable where the Claimant was a volunteer for a search and rescue organization and was involved in a car accident while traveling to a fire chief’s meeting.  Claimant was the president of the volunteer organization and was driving to attend a meeting when he was struck by an oncoming car.  The ALJ found that under section 8-40-202(1)(a)(I)(A), C.R.S., which covers disaster relief volunteers (among others) who are injured while performing duties or while engaged in training activities, Claimant’s injury was compensable under the Act.  Respondents contended that this provision did not cover the injury because Claimant was merely attending a meeting, not training as described by the statute, and that the meeting was optional, not mandatory. Respondents also argued that the injury was not compensable because Claimant was traveling to the meeting and was exempted under the going-to and coming-from rule regarding travel status. The ALJ rejected both of these arguments, finding that the meeting was for purposes of organizing and preparing for disaster relief, which essentially satisfied the training portion of the statute.  The ALJ also found (citingColorado Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo. App. 1983)), because the attendance of the Claimant at the meeting furthered the county’s interest in the coordination of its disaster relief program, the travel to the meeting was implicitly part of the “employment” agreement.  The ICAO upheld the decision as supported by substantial evidence.

Don’t do that chest bump quite yet: Horseplay and Compensability.  The ICAO upheld an ALJ’s dismissal of a claim involving a fractured arm on the basis that Claimant was involved in horseplay in Trujillo v. Lowe’s, W.C. No. 4-932-395 (ICAO, July 29, 2014).  Claimant fell and broke his arm after engaging in a “chest bump” with a co-worker to celebrate completion of a work task.  The Court referenced Panera Bread, LLC v. ICAO, 141 P.3d 970 (Colo. App. 2006), in assessing whether this activity constituted horseplay sufficient to sever the causal connection with the employment.  The Court indicated that under these circumstances, the most important criteria to gauge horseplay activity include the extent and seriousness of the deviation from employment, and the completeness of the deviation.  The Court determined that Claimant had engaged in a chest bump at his own accord and at no benefit to the employer.  Accordingly, the Court agreed with the ALJ that Claimant was injured in the course and scope of a chest bump, not his employment.

Another penny for your thoughts: Appeals of Decision Solely on Compensability are Interlocutory.  In Weitzel v. Delta County, W.C. No. 4-926-816, (ICAO, August 20, 2014), the ICAO dismissed Respondents’ Petition to Review an Order by the ALJ finding a claim compensable and ordering payment only of general medical benefits.  The ICAO held that orders determining compensability and containing only a general award of medical benefits, and not specific treatment, are interlocutory and not appealable.  Appealable orders are those which involve an award or denial of particular medical benefits.

Three days is long enough, two days is not: Disability and Entitlement to Temporary Benefits.  The ICAO upheld an ALJ’s Order denying Claimant temporary disability benefits for two days because he was not “disabled” under the Act in Whitney v. West Metro Fire Protection District, W.C. No. 4-920-012 (ICAO, August 27, 2014).  Claimant, a firefighter, was diagnosed with cancer and was off work on sick leave for two days pursuant to his condition.  Claimant sought temporary disability benefits only for these two days. Under Section 8-42-103(1), C.R.S., an injured worker is not entitled to temporary disability if the period of disability does not last longer than three days from the day the employee leaves work due to the injury.  This same provision states that temporary benefits are owed where the period of disability exceeds two weeks.  The term “disability” under the Act includes two elements, medical incapacity, which is evidenced by loss of bodily function, and loss of wage earning capacity, which is evidenced by wage loss.  See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999).  The ICAO upheld the ALJ’s finding that under these criteria, Claimant was not disabled for purposes of temporary benefits because he was not off work for more than three days and his disability did not last for more than two weeks.

Just because you wear a black robe: ALJ’s Authority to Determine Credibility of WitnessesIn Williams v. Colorado Cab d/b/a Denver Yellow Cab and Old Republic, W.C. No. 4-920-621 (ICAO, June 25, 2014), the ICAO upheld the ALJ’s denial of a claim for benefits and his finding that Claimant had not testified credibly at hearing on compensability.  Claimant was a taxi driver who was involved in a drunken car accident with two other passengers in his taxi, while driving through the mountains to the western part of the state.  Prior to the trip, Claimant had stopped at a restaurant and consumed alcohol with one of the passengers, thereafter picking up the second passenger on his way to what his employer alleged was a vacation destination.  Claimant was driving with his meter off during the entire journey, which the employer testified was against company policy for fares.  The employer also testified that cab drivers were not allowed to go beyond 16 miles outside of the city.  Claimant contended that while he was driving with his meter off during this trip, he was paid a cash sum by one of the passengers.  The ALJ found Claimant’s testimony not to be credible and found in favor of the employer.  The ICAO deferred to the ALJ’s determinations, noting that an ALJ’s credibility determinations are binding except in extreme circumstances (see Arenas v. ICAO, 8 P.3d 558 (Colo. App. 2000).

It’s Illegal to claim a claimant is illegal? : Immigration status is immaterial to determination of PTD benefits.  The Colorado Court of Appeals upheld a decision, inSpacecon Specialty Contractors, LLC and Tristar Risk Management v. ICAO and Erasmo Ordonez, (Colo. App. 2014)(nsfop), which found that Claimant was not barred from receiving workers’ compensation benefits due to his immigration status.  Claimant suffered a work-related injury in 2008 and was awarded PTD benefits by the ALJ at a subsequent hearing.  Respondents’ vocational evaluator indicated that Claimant had represented that he was ineligible for Social Security benefits because he did not have “papers.”  Claimant invoked the 5th Amendment of the U.S. Constitution when asked about his immigration status on the stand.  Respondents argued, at hearing and upon appeal, that Claimant was not permanently and totally disabled because of his work injury, but rather that he could not find employment because he was in the country illegally.  The ALJ found that Claimant was permanently and totally disabled because of the work injury and that his immigration status was irrelevant to that finding.  The Court of Appeals deferred to the ALJ’s determinations regarding the cause of the Claimant’s inability to work, in this respect, and upheld the decision.

legaLKonnection Firm Newsletter – September 2014

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.

In the News

Lee + Kinder is excited to welcome our newest Associate Attorney, Daniel Mowrey!  Mr. Mowrey is a graduate of Indiana University Law School. He served as a Law Clerk at Lee + Kinder through the summer of 2014 helping defend employers and insurance carriers in workers’ compensation claims.  The Firm is proud to announce that Mr. Mowrey was recently admitted to the Colorado Bar this September.  We are happy to have him on the team!

Victory Lap

Associate Matt Boatwright successfully limited Claimant’s permanent impairment to a 15% scheduled rating of the upper extremity in Claimant’s attempt to convert his rating to that of whole person in Downen v. United Parcel Service and Liberty Mutual Insurance, W.C. 4-823-249.  Claimant sustained an injury to his right shoulder in 2010. He received scheduled impairment ratings for loss of range of motion of the arm and for the distal clavicle.  Claimant argued that because he received a permanent impairment rating for structures which were above the humeral head of the arm, the permanent impairment should be considered a whole person rating under theAMA Guidelines, 3rd Ed. Rev.  Relying upon the “situs of functional impairment test” outlined in Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996), Respondents argued that, regardless of whether the impairment rating was above the arm, Claimant’s only functional impairment was in the arm itself, and not anywhere else in the body.  Respondents also argued that despite the distinction between the shoulder and the arm, the shoulder was nevertheless part of the upper extremity for purposes of providing a scheduled impairment rating.  ALJ Edwin Felter agreed with Respondents, finding that the situs of Claimant’s permanent functional impairment was to the upper extremity and that therefore the permanent impairment rating was appropriately limited under the schedule of impairments.

Member Attorney Joshua D. Brown and Associate  Jessica C. Melson successfully limited an increase in Claimant’s AWW in Alarcon v. Coca-Cola Refreshments USA, Inc. and ACE American Insurance Co., WC 4-910-466. The admitted AWW was based on Claimant’s wages approximately one year prior to his injury. Claimant sought to increase his AWW by $31.56 based on his wages six weeks prior to his injury. Respondents argued these weeks did not accurately reflect Claimant’s wage loss. The ALJ agreed with Respondents and ordered only a minimal increase in Claimant’s AWW. 

Of Counsel Attorney Sheila Toborg successfully defended against a compensability claim for an alleged occupational disease to the right shoulder in Kristin Penley v. CDI Corporation and Liberty Mutual Insurance, (W.C. No. 4-949-902, September 17, 2014). Ms. Toborg presented medical records and expert testimony to demonstrate that Claimant did not sustain an occupational disease or traumatic injury as a result of her work.  Ms. Toborg successfully convinced the ALJ that Claimant failed to meet her burden of proving that she sustained a compensable injury. The claim was denied and dismissed.

Cases You Should Know

Termination for Testing Positive for Marijuana is still an Affirmative Defense Despite Recent Changes in Colorado Law:  While Colorado has legalized marijuana, employers may still raise the defense of termination in workers’ compensation cases to defend post-termination TTD claims.  In a recent ICAO case, Claimant was terminated for violating the company’s drug policy, which prohibited employees from being on company property while in an impaired condition.  Bolerjack v. Water Edge Pond Service, LLC, (W.C. No. 4-905-434, July 29, 2014). Claimant came to work two weeks after the work injury and was given a drug test. The test revealed an extremely high level of THC.  An expert opined that the test result indicated that Claimant was a regular, heavy user of marijuana and was, more likely than not, intoxicated at the time the test was taken. The ALJ denied the Claimant’s request for post-termination TTD benefits as he found that Claimant’s wage loss was the result of his termination for cause.  Claimant argued that he used the marijuana to deal with the pain caused by the work injury; however, the ICAO affirmed the ALJ’s Order.

Quasi-Course of Employment Doctrine does not Extend Benefits to Injuries Sustained while Traveling to Unauthorized Treatment: According to the quasi-course of employment doctrine, workers’ compensation insurance coverage extends to injuries sustained while traveling to and from authorized treatment.  However, the ICAO recently re-affirmed that the quasi-course of employment doctrine does not extend benefits to injuries that are sustained while traveling to unauthorized treatment for situations that are not emergencies.  Catlow v. Dairy Farmers of America, (W.C. No. 4-886-133, August 4, 2014).  In this case, Claimant testified that he experienced a sudden onset of back pain and decided to drive to a physical therapist without an appointment and despite the fact that his physical therapy was recently discontinued by his treating physician.  Claimant was injured in a car accident while traveling to the physical therapist.  ICAO agreed with the ALJ and found that the injuries were not compensable because Claimant’s sudden need for physical therapy was not an emergency situation, nor was the treatment authorized by the employer.

Claimant Must Obtain a Follow-Up DIME in order to Seek Additional PPD Benefits: If a DIME is performed in a claim, the impairment rating provided may not be increased unless a follow-up DIME increases the rating. Gailey v. Silver Mine Subs, (W.C. No. 4-764-331, July 24, 2014). In this claim, a DIME physician provided Claimant with a 28% whole person impairment rating. Claimant later received a 32% impairment rating from a treating provider. Claimant filed a Petition to Reopen for worsening of condition and requested TTD and PPD benefits. The ALJ denied the Petition to Reopen because Claimant’s condition had not worsened since being placed at MMI and indicated that any increase in impairment rating must be done through a follow-up DIME.  ICAO held that the mere fact that Claimant received an increased impairment rating does not compel the conclusion that there was a worsening of condition. Additionally, ICAO concluded that the ALJ could not award additional PPD benefits unless the follow-up DIME increased the prior impairment rating.

The Issue of Maintenance Medical Treatment is not a Ripe Issue Until after a DIME When MMI is Disputed:  The ICAO held that an ALJ cannot issue an order regarding medical care after MMI if a DIME is requested and not yet performed.  In Hubbard v. University Park Care Center, (W.C. No. 4-907-314, July 17, 2014), Respondents originally denied the claim, but requested a DIME after the treating provider placed Claimant at MMI with a high impairment rating.  At a hearing held before the DIME was completed, the ALJ found that the claim was compensable and ordered Respondents to pay temporary disability benefits and maintenance medical care after MMI. While the ICAO upheld the Order regarding compensability and temporary disability benefits, it indicated that the Order regarding maintenance care was not ripe.  The ICAO opined that the DIME was necessary to confirm the MMI and permanent disability related to the matter. As such, the issue of maintenance care could not be considered by the ALJ until the DIME was completed and the MMI date confirmed.

DIME Determination of Causation: Claimant’s ATP opined she had a 12% whole person impairment to her cervical spine. Claimant requested a DIME. The DIME doctor opined Claimant’s impairment was not due to the industrial incident but was instead due to her preexisting condition and therefore provided a 0% impairment rating. Claimant sought to overcome the DIME. The ALJ held an apportionment analysis was not necessary where the rating physician determines there is no causal relationship between the industrial injury and the impairment. ICAO noted that the DIME physician’s findings of causal relationship between an injury and impairment must be overcome by clear and convincing evidence, which Claimant failed to do. ICAO upheld this decision. Marquez v. Amerigold Logistics and Hartford Insurance Company, WC 4-896-504 (ICAO April 14, 2014).

Exception to the Going to and Coming from Work Rule: Claimant was injured in a motor vehicle accident on the way to work. Claimant argued travel was a part of his employment contract because his job required him to use his personal vehicle to attend appointments with customers. ICAO noted Claimant was required to come to work in a personal automobile he would then use to attend appointments and meetings with customers, travel, and attend events.  ICAO further noted this as an ultimate benefit to the employer, and contemplated in the contract for hire. ICAO reversed the ALJ’s ruling and found the Claimant’s claim arising out of the auto accident was compensable. Rieks v. On Assignment Inc. and Sentry Ins., WC 4-921-644 (ICAO March 31, 2014). This is a significant broadening of workers’ compensation coverage when employers require employees to use personal vehicles for work purposes.

Sometimes it’s Good to be the Statutory Employer: This case has a lengthy factual and procedural history. In summary, Claimant was injured while working on a drilling rig in Colorado. Claimant sued Tesco, the operator of the drilling rig, for negligence. Tesco asserted it was Claimant’s statutory employer and therefor immune from a negligence claim. A few hours before the Claimant was injured, Tesco contracted its personnel services to Turnkey, which included the Claimant’s job functions. Claimant argued Tesco was no longer his employer and therefore could be sued for negligence. The Court applied the “regular business test” to determine whether Tesco, the contracting party, was a statutory employer.  The “regular business test” is satisfied where the work performed by the Claimant is so essential to the day-to-day business operations of the employer that it cannot continue to function without the task being performed. In this case, the Court noted, Tesco remained an active participant in drilling services, remained obligated to perform its duties under a contract with another party of the drilling operations, was responsible for rig safety, providing labor, designating drilling locations, and schedule. Therefore, the Court found Tesco was a statutory employer and immune from a personal injury suit. The four million dollar verdict was vacated. Phathong v. Tesco Corp., No. 12-1455 (Fed. Cir. 10, May 6, 2014) (nsfop).

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