The Legal Buzz – Lee & Brown Newsletter and Case Law Update April 2018

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable

 


Noteworthy Cases

In Lagasse v. Xtreme Drilling and Coil Service and New Hampshire Insurance Company, Court of Appeals No. 17CA1438, Of Counsel Bradley J. Hansen successfully defended against Claimant’s appeal to the Court of Appeals to set aside the ICAO decision affirming the denial and dismissal of her claim for death benefits. Claimant’s husband died while driving home after working his shift on an oil rig in northeast Colorado. At hearing, the ALJ found that as Decedent’s death occurred while driving home, it would fall under the “going to and from” rule, which does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. Claimant alleged an exception to the rule, relying on Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999), arguing that the travel conferred a benefit to the employer beyond the sole fact of the Decedent’s arrival at work since the oil rigs occasionally moved to new locations and therefore travel was implicitly contemplated by the employment agreement. Despite Claimant’s contention, the ALJ rejected the argument that special circumstances existed outside of Decedent’s arrival at work and denied Claimant’s claim for death benefits. ICAO affirmed the ALJ’s Order.

On appeal to the Court of Appeals, Claimant argued that ICAO erred in affirming the ALJ’s Order, contending that the ALJ made Findings of Fact that contradicted how he applied them to the law. The Court of Appeals rejected Claimant’s argument, finding substantial evidence supporting the Findings of Fact by the ALJ. The Court noted, “The mere fact that the ALJ made some findings that could have supported Claimant’s position does not alter the fact that, on balance, the ALJ determined the facts ultimately weighed in the employer’s favor. These findings confirmed the ALJ carefully weighed all the evidence presented to him.” All three judges on the Panel concurred in affirming ICAO’s Order.

 

Of Counsel M. Frances McCracken challenged a request for a spinal cord stimulator trial and ongoing prescriptions under maintenance medical benefits in Turner v. Sam’s Club, Inc., W.C. No. 4-799-129. Claimant sustained an admitted industrial injury to his right hip on May 25, 2009 and underwent various forms of conservative treatment and diagnostic procedures. On February 27, 2012, Respondents filed a FAL placing Claimant at MMI as of July 12, 2011, admitting for reasonably necessary and related post-MMI medical benefits. Claimant’s treating physician requested authorization for a spinal cord stimulator and ongoing prescription medications under maintenance care. The ALJ determined Claimant failed to prove the DRG spinal cord stimulator/IPG reprogramming was reasonable and necessary to cure and relieve the effects of the May 25, 2009 industrial injury. The ALJ credited the opinions of Respondents’ expert that Claimant did not meet the Medical Treatment Guidelines (MTGs) criteria for neurostimulation, as Claimant’s pain generator was unclear and there were strong psychological factors. The ALJ noted while Claimant’s treating physician had repeatedly recommended neurostimulation throughout Claimant’s claim, he had not provided any analysis of the criteria for implantation under the MTGs, or any reason to deviate from the MTGs. The ALJ further concluded that Claimant failed to establish, by a preponderance of the evidence, that the ongoing prescription for Celebrex was reasonable and necessary.

 
Associate Matt Boatwright successfully contested a request for a three-level cervical fusion surgery in Toombs v. Pepsi Beverages Company f/k/a Pepsi Bottling Group and ACE American Insurance. Respondents admitted for a shoulder injury suffered as a result of lifting. The surgeon’s initial request was denied pursuant to a Rule 16 review conducted by Respondents’ expert. The requesting surgeon issued a rebuttal opinion and Respondents took the matter to hearing. The ALJ found that Respondents’ expert testified credibly and persuasively that the cervical condition would not have been aggravated or accelerated by the admitted work injury, notwithstanding the presence of cervical complaints in records documenting the initial injury. The ALJ denied the requested procedure as not reasonable, necessary, or related to the work injury.

 


Injuries Resulting from Workplace Violence — When Are They Compensable?

Under the Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable. An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions. An injury arises “out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract. Continue reading the article.

 

 


Cases You Should Know

Too little, “Two” late? In Galagar v. E2 Optics, W.C. No. 5-016-677 (March 6, 2018), Claimant sought review of a corrected Order, dated October 19, 2017, that granted Respondents’ Motion for Summary Judgement and dismissed the claim for benefits. Respondents filed a Motion for Summary Judgement on October 12, 2017. The Motion asserted Claimant sustained an alleged workplace injury in August of 2015. Claimant subsequently filed a claim for workers compensation on April 29, 2016. An Application for Hearing was later filed on August 23, 2017. Respondents asserted the two-year statute of limitations specified in C.R.S. § 8-43-103(2). The ALJ issued an Order granting summary judgement and dismissing the claim. The ICAO reversed and set aside the Order. The ICAO stated that while C.R.S. § 8-43-103(2) provides a two-year period to file a claim for compensation, the section does not provide a restriction upon an Application for Hearing.

Moral of the Story: Injured workers have 2 years to file a claim for workers’ compensation following an injury under C.R.S. § 8-43-103(2). The two-year period under this statute may not apply to the filling of an Application for Hearing, although the law is unclear, as this is only ICAO authority.

 

Admission? What Admission? In Yeutter v CBW Automation, Inc., W.C. 4-895-940 (February 26, 2018), Claimant was struck by a machine on part of the face, ear, and shoulder. Claimant returned to work 2 weeks after the injury. He was later taken off work and diagnosed with work-related narcolepsy. Claimant was placed at MMI. The DIME physician agreed the narcolepsy was work related. Respondents filed a FAL. Claimant pursued PTD benefits alleging he was unable to work due to the narcolepsy. The ALJ determined the narcolepsy was not work related and denied medical benefits to treat narcolepsy. The ALJ also found, even if narcolepsy was related, Claimant could return to work and denied PTD benefits. Claimant appealed and argued the DIME findings regarding relatedness of the narcolepsy were binding because Respondents did not dispute the DIME. ICAO upheld the determination, denying PTD and medical maintenance benefits were supported by substantial evidence. ICAO disagreed Respondents were bound by the uncontested DIME opinion. The Panel noted the presumptive effect of a DIME opinion only applies to MMI and impairment. Because Respondents were challenging PTD benefits, the heightened burden of proof to overcome the DIME required by C.R.S. § 8-42-107(8) did not apply. Claimant failed to prove entitlement to PTD benefits and ICAO upheld the ALJ’s decision. However, the dissent found it was unfair to permit Respondents to accept Claimant’s narcolepsy for impairment, but challenge it for PTD and medical maintenance benefits.

Moral of the Story: Causation may be litigated in determining PTD and future medical benefits, even though a carrier had accepted a rating for that body part.

 

Watch where you are going: In Rinehart v. Employbridge Holding Company, W.C. 5-038-309 (February 27, 2018), Claimant sought review of an Order that determined the compensable injury was limited to a laceration on the top of her head and denied temporary indemnity benefits and penalties. Claimant sustained an open wound head injury after walking into a backhoe. Claimant initially treated for a laceration on her forehead. Her complaints later grew to include headaches, neck pain, and dizziness. The ALJ found Claimant’s compensable injury was limited to a laceration to her forehead. Crediting the opinions of Respondents’ expert, the ALJ was not persuaded Claimant sustained another injury due to the January 5, 2017 incident. Claimant’s primary argument was that the ALJ’s opinion was not supported by substantial evidence, as 8t different medical professionals opined Claimant sustained a concussion. The ICAO panel held that the ALJ’s opinion was supported by the opinions of Respondents’ expert. While there was conflicting evidence, the ALJ made reasonable inferences to resolve the conflicting evidence to which the Panel may not disturb. C.R.S. § 8-43-301(8). The ICAO upheld the ALJ’s opinion that Claimant’s compensable injury was limited to a laceration on the top of her head.

Moral of the Story: The ALJ’s opinion regarding compensability will be upheld if supported by substantial evidence, regardless of whether there is conflicting evidence.

 

Checkmate. ALJ’s Opinion Inconsequential Without the DIME: Claimant sustained a work-related low back injury in Portillo v. ICAO, 17CA0895 (March 8, 2018)(nsfp). There was a dispute whether the doctor was an ATP. At Claimant’s initial visit with the doctor, Claimant signed an IME disclosure form. The doctor continued seeing Claimant and placed him at MMI. Respondents filed a FAL. Claimant filed an Application for Hearing to strike the FAL and continue medical treatment. Claimant also requested a DIME. The parties presented to hearing before the DIME took place. Respondents argued the ALJ lacked jurisdiction because the DIME had not yet taken place. Claimant argued the doctor was not an ATP; therefore, his MMI determination was ineffective, the FAL was invalid, and a DIME was not ripe. The ALJ granted Claimant’s request for medical treatment; however, the ALJ did not provide a factual analysis or opinion as to whether the doctor was an ATP. Therefore, ICAO held Respondents could file a FAL based on the doctor’s determination. A DIME was a prerequisite to any hearing concerning the validity of an ATP finding of MMI. Thus, the ALJ lacked jurisdiction without a DIME.

Moral of the Story: Once a DIME is requested, it must take place before a hearing can proceed regarding MMI or impairment.

 

ICAO Review of ALJ DIME and Grover Orders, “Exceedingly Narrow”: In Veronica Kehler v. Labor ETC., Inc., W.C. No. 5-000-017-01 (February 12, 2018), the pro se Claimant sought review of an Order determining the DIME physician’s opinions on permanent impairment and maintenance medical benefits were not overcome. Claimant sustained an admitted lumbar strain. After extensive conservative treatment, Claimant was placed at MMI and provided a 20% whole person impairment of the lumbar spine. A DIME physician found Claimant’s presentation consistent with the assessment of malingering and that the permanent impairment range of motion loss, restrictions, and additional maintenance care were not appropriate. A subsequent Respondent IME agreed with the DIME physician’s assessment that the impairment rating, activity restrictions, and maintenance care were not appropriate. The DIME physician’s opinion on permanent impairment is binding unless overcome by “clear and convincing evidence”. Section 8-42-107(8)(c), C.R.S. The ALJ determined that the Claimant failed to overcome the DIME physician’s impairment rating or prove entitlement to maintenance medical benefits. ICAO upheld the ALJ’s findings as supported by substantial evidence.

Moral of the Story: The ALJ’s findings regarding a DIME physician’s medical impairment rating and award of maintenance medical benefits will be upheld if supported by substantial evidence.

 

ALJ’s Fact-Finding Reigns Supreme: These next 2 summaries involve Maria De La Luz Saenz v. Tagawa Greenhouse Enterprises, LLC, W.C. Nos. 4-972-238-02 & 5-112-306-01 (August 29, 2017). In the first claim, Claimant sought review of an Order that denied and dismissed her claim and determined that Respondents overcame the DIME physician’s opinion. Claimant alleged a work injury to her left knee on August 18, 2014, when she misjudged the final rung on a ladder and fell onto both knees. Although Claimant notified her supervisor of the incident, she did not report an injury and declined medical treatment. Claimant initially sought medical treatment on December 26, 2014, stating that the knee pain began “three days ago” and failing to mention the August 18, 2014 work incident. Claimant told co-workers she “hurt her knee at home”. Claimant was referred to a knee surgeon who diagnosed Claimant with degenerative arthritis in her left knee and discussed the possibility of a total left knee arthroplasty. The ALJ determined that Claimant failed to prove she sustained a compensable knee injury.

The subject of W.C. No. 5-112-306-01 was the Claimant’s admitted left knee injury on April 8, 2016. Claimant was diagnosed with bilateral knee contusions and prescribed conservative treatment. A subsequent MRI showed a torn medial meniscus. A knee arthroscopy and debridement was recommended. Another doctor performed a Respondent IME that determined Claimant’s left knee complaints were caused by advanced chronic degenerative and pre-existing tri-compartmental osteoarthritis and there was no evidence of worsening or aggravation related to the April 8, 2016 knee injury. The surgical request was denied. The doctor placed Claimant at MMI on August 15, 2016 and provided Claimant no permanent impairment or maintenance medical benefits. In a DIME, the physician concluded that Claimant’s left knee problems were related to the work injury and that she required surgery. Respondents sought to overcome the DIME. The ALJ determined that Respondents produced clear and convincing evidence to overcome the DIME. ICAO affirmed the ALJ’s Order.

Moral of the Story: The ALJ’s assessments on credibility, weight, and inferences drawn from evidence regarding compensability and medical opinion testimony are paramount.

Injuries Resulting from Workplace Violence — When Are They Compensable?

We have all heard the grim news; a school in Parkland, a concert in Las Vegas, a nightclub in Orlando, a church in Charleston, a movie theater in Aurora.  The scenes have become far too common.  While we may think of the scenes of these places as serving a specific function, such as education, the location of each of these atrocities was also a workplace, making these acts a form of workplace violence.

 

While large-scale violent attacks grab the headlines, a Bureau of Justice Statistics Study found that 80 percent of workplace violence is non-life-threatening, verbal or physical assault.  http://www.bjs.gov/content/pub/press/wv09pr.cfm.   The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) defines “workplace violence” broadly, as “violence or the threat of violence against workers”.  It can occur at, or outside, the workplace and can range from verbal threats and abuse to physical assault and homicide. However it manifests, workplace violence is a growing concern for employers and employees alike.  OSHA estimates some 2 million American workers are victims of workplace violence each year.  https://www.osha.gov/OSHDoc/data_General_Facts-workplace-violence.pdf.  Co-worker altercations, domestic situations brought to the workplace, and customer retaliation are all situations falling under OSHA’s broad definition of workplace violence. All could lead to compensable workers’ compensation claims, significant injuries, including death, and the associated financial loss.   But not all incidents of workplace violence causing injury result in a compensable claim.

 

Under Colorado’s Workers’ Compensation Act, an injury must arise out of, and in the course and scope of, employment to be compensable.  An injury occurs “in the course of” employment when it takes place within the time and place limits of the employment relationship and during an activity connected to the employee’s job-related functions.  An injury “arises out of employment” when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be part of the employee’s employment contract.

 

The Colorado Supreme Court has determined injuries which result from workplace violence are divided into three categories of causation, some of which are compensable, some not. The first category is assaults that have an inherent connection to the employment because of “enforced contacts” which result from the duties of the job. This includes assaults originating in arguments over work performance, work equipment, delivery of a paycheck or termination from work.

 

The second category is assaults which result from a “neutral force”.  A “neutral force” is one that is neither particular to the claimant nor the employment. This type of assault has been analyzed under the “positional risk” or “but for” test and is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks.

 

The third category is assaults which are the result of a private dispute which the parties import to the work place. (E.g., Claimants shot by a co-worker who believed that the claimants had made obscene calls to the co-worker’s spouse). This category has been expanded to include assaults where the victim was specifically chosen or targeted.

 

Injuries from workplace violence resulting from “enforced contacts”, specifically resulting from the claimant’s job duties are compensable. However, the issue of whether the assault resulted from the “duties of the job” requires a factual determination you may want to present to an Administrative Law Judge.  Assault injuries from a “neutral force”, such as a completely unexplained shooting, are also compensable. In such situations, the Courts consider whether, “but for” the conditions and obligations of employment, the claimant would have been injured.

 

In contrast, injuries caused by a work place assault which results from a private or personal dispute imported to the workplace are not compensable. Thus, where the assault has no inherent connection to employment activities, compensability of the claimant’s injuries depends on whether the claimant was specifically targeted for the assault.

 

When evaluating the compensability of workplace violence claims, the employer should also be mindful of the exclusivity provisions of the Workers’ Compensation Act.  An employer that has complied with the Act is granted immunity from common-law actions for damages, such as pain and suffering, mental distress, loss of enjoyment of life, lost earning capacity, etc., and its employees are limited to the remedies specified in the Act.  If an employee’s injuries result from an assault that is inherently connected to the employment or is attributable to neutral sources that are not personal to the victim or perpetrator, those injuries arise out of the employment for the purposes of workers’ compensation and the employee is barred from bringing a tort claim against his or her employer. However, employee claims are not barred by the Workers’ Compensation exclusivity provisions if the assault originates in matters personal to one or both parties.

 

Have questions? Please contact any of the attorneys at Lee & Brown, LLC.

 

The Legal Buzz – Lee & Brown Newsletter and Case Law Update March 2018

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

Lee and Brown Denver AttorneysFollow us on LinkedIn

and Alignable

 


In the News

Member Katherine Lee was honored by her peers to be named one of the Top 50 Women Super Lawyers in Colorado for 2018.

 

 

 

John Abraham Denver Attorney

Joshua Brown Attorney DenverMembers Joshua Brown and John Abraham attended the Annual NAMWOLF Business Meeting held in San Diego, California, February 24th – 27th. This annual event, held every February, allows NAMWOLF Member Firms to provide greater insight into each Member Law Firm’s experience and capability to handle complex legal matters. The Business Meeting also provides the opportunity to network with NAMWOLF Leadership, such as the Advisory Council and NAMWOLF Board of Directors. Mr. Brown and Mr. Abraham represented the Firm and attended several meetings and social functions promoting the Firm’s diversity and practice areas.

 

 


Victory Lap

Joseph Gren Denver AttorneyIn Foster v. United Parcel Service, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegation that he sustained a compensable injury to his right upper extremity. Claimant contended that he injured his right upper extremity when his supervisor grabbed his right arm and pulled on his elbow. Claimant provided significant medical evidence to support his position. The ALJ was persuaded by the testimony of Respondents’ medical expert who testified that even if Claimant was grabbed by his coworker, such a mechanism would not have caused a tear of the supinator muscle or any of Claimant’s other symptoms. The ALJ was also persuaded by the testimony of Claimant’s supervisor who credibly testified that she did not pull Claimant’s arm. The ALJ concluded that, based on the objective medical evidence, the credible opinion of Respondents’ medical expert, and the credible testimony of the employer witness, Claimant failed to demonstrate that it was more likely than not he sustained a compensable industrial injury. The ALJ ordered that Claimant’s claim for benefits was denied and dismissed.

 


Frank Cavanaugh Denver Attorney

Frank Cavanaugh Denver AttorneyDIMEs ARE NOT WORTH A DIME and/or ICAO’S DESCENT (VIA DISSENT) INTO MADNESS

On February 26, 2018 Industrial Claim Appeals Office (ICAO) issued an opinion captioned Yeutter v. CBW Automation, Inc. and Pinnacol Assurance, W.C. No. 4-895-940. The decision sparked great interest in the workers’ compensation community and was a primary topic of discussion at the recent Spring Update CLE as well as the latest Case Law Update. The decision raises questions over how causation over different components of an injury can/should be litigated during the progression of a claim. Continue reading the article.

 

Cases You Should Know

Overpayments: Too late to Turn Back; This is the Payback: In Turner v. Chipotle Mexican Grill, W.C. 4-893-631-07 (February 8, 2018), Claimant appealed an Order requiring her to repay $250.00 monthly installments for an overpayment of temporary total disability (TTD) benefits. Respondents had previously obtained an ALJ’s Order noting that they were entitled to recover an overpayment of TTD benefits in the amount of $97,641.12, after a 24-month DIME and surveillance determined Claimant had reached MMI. A second ALJ had determined the terms of the repayment and that was the issue addressed by the Industrial Claim Appeals Office (ICAO). The ICAO Panel affirmed the ALJ’s Order and determined the ALJ had discretion to fashion the remedy for overpayment of TTD benefits. The Panel found the repayment installment plan ordered by the ALJ was fair and reasonable. In their decision, the Panel noted that cases from the Colorado Court of Appeals and the Panel previously held that Respondents may retroactively recover an overpayment of benefits. Furthermore, they noted ALJs are expressly granted authority in §8-43-207(q), C.R.S., to conduct hearings to require repayment of overpayments and that the ALJs schedule for recoupment of an overpayment will not be disturbed absent an abuse of discretion.

Moral of the Story: If an actual overpayment exists, ALJs have broad authority to fashion a remedy for the overpayment of benefits, including the retroactive recoupment of an overpayment.

 

Doughnut mistake the burden of proof! In Gagnon v. Westward Dough Operating Co., W.C. 4-971-646 (February 6, 2018), Claimant injured her shoulder while lifting heavy quantities of dough to make doughnuts. She eventually underwent a DIME, which yielded ambiguous findings on MMI and scheduled permanent impairment. The ALJ resolved the ambiguity favorably toward Respondents after considering new evidence. In resolving the ambiguity, the ALJ cited that Claimant failed to meet the heightened clear-and-convincing burden of proof applicable in DIME challenges. The Claimant appealed. Though the ALJ’s findings on MMI were left undisturbed, the ICAO Panel clarified that in DIME challenges to permanent impairment, the clear-and-convincing burden of proof applies only to whole-person permanent impairment; while scheduled ratings are subject to a preponderance of the evidence standard. The case was remanded for findings on scheduled permanent impairment under the preponderance standard.

Moral of the Story: There is a lower standard of proof needed to overcome a DIME’s opinions as to a scheduled impairment rating.

 

Although not formally published, there were two interesting cases from the Colorado Court of Appeals that are worth noting:

Oh Doctor! Doctor! Can’t you see I’m Hurting, Hurting?Mulgeta v. ICAO, 17CA0568 (February 1, 2018)(nsfp). Claimant had reached MMI and received a 5% whole person impairment rating. Respondents pursued a DIME to challenge the impairment rating. The DIME physician opined that Claimant reached MMI but had no permanent impairment. Claimant objected to the FAL filed based on the DIME and filed an Application for Hearing to overcome the DIME. Claimant argued that the DIME physician failed to conduct a spinal examination in accordance with the AMA Guides, Third Edition (Revised). In the DIME report, the DIME physician recognized the need to perform a full spinal evaluation but noted Claimant would not allow further examination because of her extreme reaction to pain. The ALJ found (and the Court of Appeals agreed) that the DIME physician’s failure to perform range of motion tests was due to the Claimant’s own decision not to perform the tests; therefore, Claimant failed to overcome the DIME. The Court of Appeals also determined that Respondents had no duty to pay PPD benefits based on the prior rating because they were entitled to pursue a DIME and contest the ATP’s 5% rating.

Moral of the Story: A DIME physician complies with the AMA Guides, Third Edition (Revised), as long as he/she recognizes the need to perform a spinal examination despite an inability to complete the range of motion testing.

 

TPD or not TPD: The question is actually: Medical Incapacity OR Wage Loss? Montoya v. ICAO, 2018COA19 (February 8, 2018)(nsfp). Claimant was a sales person paid entirely by commission. Claimant suffered a wage loss from attending doctor and therapy appointments related to her work injury; however, she was never given any work restrictions. The ALJ determined Claimant’s wage loss was attributed to her work injury and awarded TPD benefits. The ICAO Panel set aside the ALJ’s decision and reasoned that disability benefits are only available if there are both medical incapacity and wage loss. The Court of Appeals disagreed, set aside the Panel’s decision, and remanded the case with instructions to reinstate the ALJ’s Order, concluding that Claimant was entitled to TPD benefits. The Court of Appeals concluded that a Claimant need not prove both a medical incapacity and wage loss to establish entitlement to disability benefits.

Moral of the Story: A Claimant may be entitled to temporary disability benefits even if released to full duty, if he or she is able to demonstrate wage loss.

DIMEs ARE NOT WORTH A DIME and/or ICAO’S DESCENT (VIA DISSENT) INTO MADNESS

BACKGROUND

On February 26, 2018 Industrial Claim Appeals Office (ICAO) issued an opinion captioned Yeutter v. CBW Automation, Inc. Dimes not worth a Dimeand Pinnacol Assurance, W.C. No. 4-895-940. The decision sparked great interest in the workers’ compensation community and was a primary topic of discussion at the recent Spring Update CLE as well as the latest Case Law Update. The decision raises questions over how causation over different components of an injury can/should be litigated during the progression of a claim.

 

FACTS

Claimant worked as an engineer performing robotic programming tasks. He was hurt on August 24, 2012 when he was struck in the face by a carbon fiber pole. His injuries included a skull fracture, nerve damage, a broken arm, broken orbital skull sockets and a torn rotator cuff. In November 2013 Claimant began complaining to his treaters that he was experiencing fatigue and sleep disturbance. Claimant underwent a sleep study showing that he had narcolepsy. Claimant was prescribed Adderall, which he began taking in larger and larger doses to stay employed. Claimant had to reduce his Adderall use, but was unable to perform his job and ultimately stopped working in February 2015.
Claimant was placed at MMI effective August 26, 2015. Claimant was diagnosed as suffering from a traumatic brain injury that induced narcolepsy. Claimant received 67% whole person rating. Respondents requested a DIME. The DIME deferred to the treating doctor over whether Claimant’s injuries included post-traumatic narcolepsy and gave Claimant a 39% whole person rating. Respondents filed a FAL on March 2, 2016 based on the DIME.

 

Claimant claimed permanent total disability (PTD). The employer’s long-term disability program generated expert reports that concluded Claimant was not so disabled from his injury as to be unable to work. Respondents also obtained evaluations from various experts that concluded Claimant’s condition should not keep him from work. These evaluations included a neuropsychological evaluation the concluded it was not possible to state that the traumatic brain injury caused narcolepsy. The ALJ ultimately determined that medical evidence was too speculative for a causal connection to be established between Claimant’s injury and the narcolepsy.

 

RULING

The ALJ found that, even assuming Claimant’s employability was limited by narcolepsy, he remained employable. The ALJ determined that Claimant failed to prove entitlement to maintenance medical benefits, citing to an IME doctor’s opinion the Claimant’s need for narcolepsy medication was not related to the injury.

 

HOLDING

Claimant appealed arguing, in part, that the DIME’s findings were binding on the parties. The ICAO affirmed the ALJ, basically citing to the ALJ’s ability to resolve evidence and upholding an ALJs factual findings, so long as they are supported by substantial evidence in the record. Addressing Claimant’s argument over the binding effect of the DIME opinion regarding causation of the narcolepsy, the ICAO cited to the clear and convincing evidence burden given to the DIME over MMI and impairment, but that the DIME’s opinions on other issues are just another medical opinion. About half of the majority ICAO’s opinion is directed at arguments raised in a dissent.

 

THE DISSENT

The dissent disagrees with the decision in that it allows the ALJ to conclude Claimant’s narcolepsy is not a part of the original injury. The dissent disagrees with this because it allows the Respondents to simultaneously stipulate that the narcolepsy was part of the work injury for permanent disability purposes while contending that it is not part of the work injury for maintenance medical benefits and PTD benefits. The dissent relies heavily on Leprino Foods, Co. v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005). In that case, Claimant had an elbow injury with a possible shoulder component. A DIME took place and found Claimant was not at MMI due to the shoulder. Respondents did not challenge the DIME and it was determined that Claimant’s entitlement to TTD received a clear and convincing evidence burden based on the DIME’s determination Claimant was not at MMI due to his shoulder. The dissent basically takes the position that it is unfair for Respondents to accept Claimant’s narcolepsy as a source of impairment producing an admission of liability in accordance with the DIME, but allow Respondents to challenge this condition as not work-related in a PTD and maintenance medical hearing.

 

IMPLICATIONS

Use of Yeutter: The Yeutter case is likely being appealed further. The case raises several issues. First, the case currently exists just as an ICAO decision, so it does not have precedential value in front of ALJs. In the event that the Court of Appeals thinks a decision it comes to in Yeutter clarifies how a DIME’s opinion can be applied, it may be selected for publication, which would provide for precedential value. A rare dissent at ICAO may lead to a published decision from the Colorado Court of Appeals.

DIMEs: DIMEs only receive a clear and convincing evidence burden over the numbers, meaning MMI and impairment. The issues of MMI and impairment are tied directly to Claimant’s physical condition, including whatever body parts may have been injured. In this case it appears undisputed that Claimant had narcolepsy and that the narcolepsy was disabling. Further, the DIME deferred to the treating physician over whether narcolepsy was related to the work injury. The treating physician’s opinion was that the narcolepsy was work injury related. A primary dispute at the PTD hearing was whether Claimant’s narcolepsy was related to the injury. It should be noted that the ALJ insulated his opinion, at least as to PTD, by finding that, even if narcolepsy was related to the work injury and disabling, Claimant was still able to earn wages. Regardless, the issue remains over how to untangle the DIME numbers from the physical condition of Claimant and what untangling these things means in a claim.

Incentives: Respondents may have different incentives to contest a body part as not related to the work injury through the progression of the claim. For instance, respondents may elect to pay medical benefits for conditions that may not be part of the work injury. It simply may not be worth challenging treatment for a condition when balancing that issue against the cost of care. In Yeutter, Respondents accepted an impairment rating in the context of a clear and convincing evidence burden over that number. The incentive to challenge the narcolepsy was significantly higher in the context of a PTD, thus the challenge to the narcolepsy.

 

BOTTOM LINE

If further appealed, the Yeutter case may flesh-out some logical inconsistencies. There is a fundamental fairness in not having Claimant go into every hearing prepared to litigate compensability of body parts that have previously been accepted as a part of the work injury in terms of treatment and even impairment. Further, Respondents should make a decision whether or not to challenge a body part as related to the work injury at some determinable point in a claim, knowing that determination will become a part of the claim moving forward. A DIME opinion over relatedness of a body part, whether a component of MMI or impairment, may be that determinable point for that decision. In the alternative, this could be the subject of a legislative fix.

The Legal Buzz – Lee & Brown Newsletter and Case Law Update February 2018

Lee and Brown LLC Partners and Certifications

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update
on recent developments within our Firm, as well as in the insurance defense community.

 

Lee and Brown Denver AttorneysFollow us on LinkedIn

 


In the News

John M. Abraham Attorney

 

Lee & Brown, LLC was a sponsor and attendee at the Professionals in Workers’ Compensation (PWC) Annual Bowling Tournament on February 9th. The PWC is a professional non-profit organization made up of carriers, third-party administrators, professional vendors and counsel representing both claimants and respondents’ Bars. The PWC provides ongoing educational seminars to its members on relevant and pertinent issues in the workers’compensation community. The organization funds annual scholarships to high school students interested in continuing their education in the business, medical or legal fields. The Annual Bowling Tournament is one of the events PWC organizes to raise funds for these scholarships. Lee & Brown fielded 3 teams this year, led by Members Joshua Brown and John Abraham, Of Counsel Frank Cavanaugh, Associates Jessica Melson, Kristi Robarge and Stephen Abbott and a new addition to the Firm, Of Counsel Brad Hansen. A great time was had by all in supporting a good cause with our fellow professionals in the workers’ compensation community.

 

Brad Hansen & Bill Sterck Attorneys

 


Victory Lap

In Romero v. Winn Residential Limited Partnership, W.C. No. 4-978-676, Of Counsel Frank Cavanaugh successfully defended a challenge to a DIME opinion regarding relatedness of Claimant’s cervical spine as a part of a work injury. Claimant was injured in a fall from a platform of a fairly significant height. Initial emergency treatment to Claimant’s cervical spine was deemed to be primarily precautionary, such as the use of a cervical collar to immobilize his neck. Other cervical spine pain complaints were sporadic while Claimant was undergoing treatment for his shoulder condition, but became more pronounced after the shoulder treatment. Regardless, the DIME physician felt that if Claimant had any cervical spine injury, there was no ratable impairment and that Claimant remained at MMI. The ALJ found that Claimant failed to overcome the DIME opinion by clear and convincing evidence

 

Associate Matt Boatwright successfully defended a full contest claim in Eastman v. United Parcel Service, W.C. 5-044-321. Claimant asserted a shoulder injury from pulling a package, but did not report the injury to the employer until the following day. Claimant told Respondents’ medical expert that he did not experience symptoms until he operated his personal vehicle. Claimant also failed to disclose several medical issues in the discovery process. Respondents’ medical expert testified credibly that it was not medically probable that Claimant injured himself while pulling the package. The ALJ found that Claimant failed to meet his burden to show his shoulder injury was more likely than not related to the asserted work event.

 

Associate Matt Boatwright also defended against an attempt to reopen a prior admitted claim for a shoulder injury in Shaner v. United Parcel Service, W.C. 4-904-678-07. Claimant had a preexisting condition and treated through his personal doctor for maintenance. Claimant returned to the ATP with increased shoulder pain and saw an unauthorized surgeon for evaluation after the ATP had no additional recommendations for care. Claimant returned to the ATP after the surgeon recommended surgery. The ATP made a referral for care through the surgeon at the request of Claimant. The ALJ found that Claimant failed to show a work-related worsening of the condition or a valid referral for further care from the ATP and denied the Petition to Reopen.

 


 

The Workers’ Compensation System as a Prescription for Addiction

The workers’ compensation (WC) system provides the perfect prescription for opioid addiction. There are three types of injured workers that fall into this lair: active addicts, recovered addicts who relapse after taking medications following a work injury, and the neophyte who becomes addicted following their work injury. Thus, the system, although well-intentioned, creates and perpetuates dependency and addiction. Continue reading the article. 
  


Cases You Should Know

At MMI or not at MMI? That is the Question: In Arnhold v. United Parcel Service, W.C. No. 4-979-208 (November 17, 2017), Respondents sought review of an ALJ’s Order finding that the ATP did not determine Claimant was at MMI and Respondents’ FAL was premature and must be stricken. Claimant was placed at MMI by her ATP when Respondents denied authorization for a total knee replacement. In the ATP’s MMI report, he stated that Claimant would not have a reasonable recovery until she completed the total knee replacement surgery. The Respondents filed a FAL and Claimant pursued the DIME. The DIME was held in abeyance pending the hearing on MMI. Respondents argued that the ALJ did not have jurisdiction to decide MMI since the DIME process was initiated. ICAO determined that the DIME was not a prerequisite to an ALJ’s resolution of whether an ATP determined Claimant to be at MMI. ICAO held that the ALJ’s determination of whether the ATP placed Claimant at MMI was a necessary prerequisite to the applicability of the DIME.

Moral of the Story: If an ATP’s MMI determination is ambiguous, an ALJ is needed before the DIME.

 

Oh Rule 16, you complete me: In Murray v. Tristate Generation and Transmission Association, W.C. No. 4-997-086 (December 22, 2017), Self-Insured Respondent sought review of an ALJ’s Order awarding penalties for failure to comply with WCRP 16-11 for prior authorization. A request for authorization for a total knee replacement was submitted on January 16, 2017 and a second request was submitted on January 20, 2017. On February 8, 2017, the adjuster provided verbal authorization for the recommended knee replacement surgery. On March 24, 2017, Respondent’s Counsel revoked authorization after receipt of new medical records indicating a pre-existing condition. The ALJ determined that the surgery was authorized because the Respondent failed to contest the surgery within 7 business days of the request per Rule 16-11 and Respondent’s actions were not objectively reasonable, so penalties were warranted. Respondent argued that the ALJ erred because Respondent did not receive a “completed request” for prior authorization and WCRP 16-11 was not triggered. ICAO determined that the ALJ’s Order did not make findings on whether the requests for authorization contained an explanation of the reasonableness and medical necessity or contained the relevant supporting documentation required under the Rule. The matter was remanded to the ALJ for additional findings.

Moral of the Story: You only have to respond to completed requests for prior authorization under Rule 16.

 

What about the prior ATP? Breaking up is hard to do: In Berthold v. ICAO, 2017COA145 (November 16 ,2017)(nsfp), Claimant made a request for a 90-day one-time change of physician, which was granted. The prior ATP later placed Claimant at MMI and Respondents filed a FAL based on the MMI determination. Claimant challenged the FAL on the basis that the prior ATP no longer had authority to place Claimant at MMI due to a change in the law, which would sever the doctor-patient relationship with the prior physician. The Colorado Court of Appeals held that 90-day one-time changes of physician occurring prior to the 2016 amendments to the Colorado Workers’ Compensation Act did not sever the doctor-patient relationship with the prior ATP; therefore, the prior ATP had authority to place Claimant at MMI.

Moral of the story: 90-day one-time changes of physician prior to 2016 do not sever the doctor-patient relationship with the prior ATP.

 

Safety First! How about we all just wear our seatbelts and get along? In Wright v. HSS, Inc., W.C. 5-030-925-01 (December 12, 2017), Claimant appealed a 50% reduction in indemnity benefits taken due to willful violation of an established employer safety rule. The safety rule stated, “Drivers shall always wear seat belts and require the same of passengers.” Claimant maintained that the employer never enforced the safety rule. The employer countered by offering evidence that Claimant was trained and quizzed on the safety rule—thus demonstrating that Claimant knew of, and understood, the safety rule. The employer also pointed to bulletins posted in plain view around Claimant’s workplace. Respondents won on appeal with the Panel noting the determination of whether an employer enforced a safety rule is a factual determination to be made by the ALJ. In this particular case, the ALJ found that the facts supported the employer cultivating a “culture of compliance” and that was enough to demonstrate enforcement.

Moral of the Story: Whether an employer “enforces” a safety rule is a question of fact for the ALJ based on the substantial evidence presented.

 

One expert opinion may be a cut above the rest, according to the ALJ: In Reyes v. JBS USA, LLC, W.C. 4-968-907-04 (December 4, 2017), Claimant sought to establish compensability of shoulder injuries sustained while performing his work duties consisting of butchering meat for the employer. Despite conflicting evidence, the ALJ found Claimant’s shoulder injuries compensable. On appeal, Respondents argued that Claimant’s treating physicians were unaware of Claimant’s involvement in a motor vehicle accident that resulted in pathology to the work-injury site. Respondents were unsuccessful with this argument as the ICAO panel noted that the absence of such information merely speaks to the probative weight and credibility of physician determinations assigned to expert opinions by the ALJ as the fact-finder.

Moral of the Story: As long as there is substantial evidence on the record to support the findings, an ALJ has discretion in determining the persuasiveness of expert opinions when they conflict.

The Workers’ Compensation System as a Prescription for Addiction

The workers’ compensation (WC) system provides the perfect prescription for opioid addiction. There are three types of injured workers that fall into this lair: active addicts, recovered addicts who relapse after taking medications following a work injury, and the neophyte who becomes addicted following their work injury. Thus, the system, although well-intentioned, creates and perpetuates dependency and addiction.

 

A WC claim can provide a lifetime funding source for medication and temporary and permanent disability benefits. One of the most frequent claims is a back claim. Pain cannot be objectively measured. The injured worker complains of pain that is aggravated by work. His physician prescribes opioids and restricts him from working. He is paid for his lost wages. The system for rating permanent impairment automatically qualifies him for an impairment rating after six months of medically documented pain, which then translates to an award of permanent disability benefits often worth as much as –one to two years’ of income.

It is well known that workers with opioid abuse have higher claim costs.

 

While estimates vary, it is believed that the top 5 percent of opioid users likely account for more than half of total opioid use.

When those individuals find their way into the WC system, insignificant injuries turn into nightmare claims. These often involve multiple medical procedures, permanent total disability, and sometimes drug overdose and death. These are difficult and expensive to settle due the thresholds established by Center for Medicare and Medicaid Services requiring that a Medicare Set-Aside fund be established as part of a settlement to ensure Medicare does not have to pay for any medical treatment that it deems to be the responsibility of WC. The lifetime projected cost of the opioid medication alone can often cost half a million dollars.

 

In the late 1990s, it was thought that doctors were undertreating pain and that opioid analgesics could safely ease the suffering. Following the increase in opioid prescriptions, deaths began to escalate. In response, the Center for Disease Control (CDC) released new guidelines concerning prescribing opioids for chronic pain in March 2016. According to the CDC, from 1999 through 2014, more than 165,000 people died from opioid-related deaths in the U.S.

 

In 2012, health care providers wrote 259 million prescriptions for opioid medications. That is one prescription for every adult in the U.S.

 

The guidelines have caused some backlash from physicians and patients who believe the government is interfering with the patient-physician relationship. However, there is a fundamental agreement that more oversight and education is needed at all levels.

 

Long-term opioid use can be counterproductive in workers’ compensation and can be a contributing factor in an injured worker not returning to the workplace. The use of opioids for acute pain and cancer pain is accepted, where symptom relief rather than functional outcome is the goal. However, the use of opioids for chronic pain is controversial; it could be contraindicated and may “do harm.” Opioids cause known side effects of hyperalgesia, constipation, hypogonadism, dizziness, drowsiness, overdose potential, etc. The CDC guidelines[1] note that opioid use disorder “is manifested by specific criteria such as an unsuccessful effort to cut down or control use resulting in social problems and a failure to fulfill major role obligations at work, school, or home.”

 

The Colorado Division of Workers’ Compensation (CDOW) issued amended medical treatment guidelines (MTG) for Chronic Pain Disorder and for Chronic Regional Pain effective November 30, 2017. CDOWC relies heavily on the CDC guidelines. The guidelines, though not binding on any physician, are peer-reviewed by both experts in the field and industry stakeholders.

 

The MTG suggest that chronic use of opioids is not recommended if the patient has an active or previous history of substance abuse or for workers in safety-sensitive positions. Opioids for chronic pain should not be prescribed unless there was a failure of pain management alternatives by a motivated patient including active and cognitive behavioral therapies. A full physical and psychological assessment must be performed. The physician must consider risk factors, including history of severe post-operative pain, opioid tolerance, chronic pain, sleep apnea, being off work for over six months, depression, anxiety, psychiatric disease or disorder, history of substance use disorder, complaint of all-over body pain, opioid sensitivities, and history of intrathecal pump use or spinal cord stimulator.

 

When opioids are prescribed, the physician should continue prescriptions only if “meaningful improvement” in pain and function outweighs the risk of continued use. The guidelines recommend that the patients demonstrate a 30 percent improvement in pain scores and function to justify continued opioid use. In other words, opioids must be used as a method to improve function rather than just sustain the status quo condition. The physician should actively review patient history of controlled substances, document improved function, consult the Prescription Drug Monitoring Program, and conduct random drug screenings.

———————————

[1] The CDC guidelines can be found at www.cdc.gov/mmwr/volumes/65/wr/mm655051e1.htm.


This article was originally published with Best Lawyers® “Legal Insights” on www.BestLawyers.com.”

 

Settlement Procedures in Workers’ Compensation

Member Joseph Gren co-authored an article for the Colorado Lawyer, July 2017 edition. The article, Settlement Procedures in Workers’ Compensation, is an in-depth explanation of the unique procedural requirements governing settlement of Colorado Workers’ Compensation Claims.

The Colorado Workers’ Compensation Act (the Act) has permitted settlement of workers’ compensation claims since at least 1919. As in civil cases, the Act and accompanying Division of Workers’ Compensation (DOWC or Division) rules permit both represented and pro se parties to settle workers’ compensation claims, though there are procedural safeguards unique to the workers’ compensation system. Similar to legal matters outside of the workers’ compensation context, settlement is often an attractive resolution for parties, as settlement can expedite finality and reduce overall risk and exposure. Legal authority for settlement of workers’ compensation claims lies in statute, case law, and the Workers’ Compensation Rules of Procedure (WCRP). DOWC recently amended and renumbered the procedural rules related to settlement effective April 15, 2016, and September 14, 2016.

This article provides a practical overview of the settlement procedure for Colorado workers’ compensation claims and highlights recent changes to administrative rules.

Click this link, or the link in the article name, to read the full article. A new tab will open with the PDF.

Legal Connection Firm Newsletter – November 2017

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm, as well as in the insurance defense community.

Please follow us on LinkedIn

 


In the News

 

In this season of gratitude, Lee + Kinder is deeply thankful for your confidence, loyalty and support throughout the year and want you to know that we strive to exceed your legal expectations. Our best wishes for a happy and healthy Thanksgiving Holiday.

 

 

 

 


Victory Lap

Member Karen Gail Treece defeated Claimant’s request for workers’ compensation benefits in Somers v. Costco Wholesale, W.C. No. 5-039-189-01. Claimant reported she was bending over to obtain items from the bottom of a shopping cart when she stood up and struck her head on the cart. Claimant alleged she injured her cervical spine and suffered a traumatic brain injury. Respondents denied the claim. Ms. Treece presented persuasive and credible evidence that Claimant treated for similar symptoms prior to the date of injury. Claimant also created a “Go Fund Me” page one month prior to the alleged work injury where she reported she was hospitalized for severe vertigo for a wheat allergy. Afterwards, she could not work for several months and requested money to help pay her bills. In an IME, Respondents’ medical expert opined it was not medically probable that the described incident would produce an injury. The ALJ found Claimant had a significant history of similar symptoms and that many of the medical opinions finding Claimant sustained a work injury relied on her subjective complaints. The ALJ found that although Claimant may have bumped her head, there was no objective evidence that Claimant sustained an injury and denied and dismissed the claim.

 

Associate Matt Boatwright successfully defended against a full contest claim for an alleged low back injury in Phanekham v. Pepsi Beverages Company, W.C. No. 4-997-901. Claimant alleged that he injured his back while reaching above his head and stocking merchandise. The ALJ found that Claimant’s testimony contradicted the testimony of Respondents’ employer witness and certain medical records. Respondents also presented evidence of a prior automobile accident, pursuant to which the ALJ found that Claimant had complaints that were similar to those he asserted were the result of the work-related event. The ALJ found that Claimant was not credible and denied and dismissed his claim for compensation.

Associate Boatwright also successfully defended against Claimant’s attempt to overcome a DIME opinion in Kumpf v. United Parcel Service, W.C. No. 5-007-544. Claimant sustained an admitted injury to his back from an automobile accident. Claimant was originally placed at MMI and discharged from care with no permanent impairment by the ATP. Respondents’ IME physician disagreed with the ATP and opined that Claimant was not at MMI, should have surgery, and had an advisory impairment of 22% of the whole person. Claimant underwent a DIME and was found to be at MMI with a 13% whole person rating and no need for further care. The ALJ found that despite Respondents’ expert’s adverse opinion, the DIME opinion was conducted thoroughly and the diagnostic examinations did not support objective evidence of the conditions for which Respondents’ expert felt Claimant needed interventional care. The ALJ therefore denied and dismissed Claimant’s request to set aside the DIME.


 

 

Changes to Rule 16 Effective January 1, 2018
Everyone’s favorite Rule is getting a makeover effective January 1, 2018. There are several minor changes to the Rule that will impact prior authorization requests and ensure that a second opinion is timely obtained by the payer. The major change that will take effect is to Rule 16-11(E) and the elimination of the option for the payer to request a hearing within the time-frames set forth in Rule 16-11(A) or 16-11(B). Click here to continue reading this article.

 

 


Cases You Should Know

Table 53 is a Real Pain for Impairment Ratings: In Rojahn v. Monaco Rehabilitation, W.C. No. 4-955-695-02 (October 5, 2017), a DIME physician assigned Claimant a scheduled impairment rating for the shoulder and a whole-person impairment for the cervical spine. The whole-person rating for the cervical spine was based only on range of motion deficits with no Table 53 diagnosis. The ALJ upheld the DIME’s impairment rating and Respondents appealed. The ICAO overturned the ALJ’s Order, concluding that the Order was not supported by the findings. The ICAO reasoned that the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) specifically prohibit a rating for the cervical spine without a Table 53 diagnosis of the spine. Although there exists an exception to this rule where “severe shoulder pathology” is established and a claimant receives treatment of the cervical musculature, the ICAO noted that the statutes prohibit an impairment rating based on chronic pain “without anatomic or physiologic correlation.”

Moral of the Story: Impairment ratings for the cervical spine are not appropriate without a corresponding Table 53 diagnosis under the AMA Guides, 3rd Edition Revised.

 

The Road Not Taken: Unless the ALJ Determines it is Within the Commutable Labor Market: In Simms v. Shiloh Steakhouse, W.C. No. 4-892-836-01 (October 3, 2017), Claimant injured his low back after trying to pick up a full five-gallon bucket. After being placed at MMI, Claimant sought PTD benefits. The ATP and Respondents’ medical expert concurred that Claimant should alternate between standing and sitting every 30 minutes as part of his permanent restrictions. The ALJ found that there were jobs within a 40 to 60-minute drive that Claimant would be able to successfully perform, and that Claimant could make the drive to those positions. On appeal, Claimant asserted that the ALJ’s finding that he could drive 40 to 60 minutes each way was inconsistent with his restrictions requiring him to alternate between sitting and standing every 30 minutes. ICAO found that the ALJ’s finding that Claimant was capable of a 40 to 60-minute drive each way under his permanent work restrictions was supported by substantial evidence.

Moral of the Story: In determining PTD benefits, whether the labor market is commutable is a question of fact to be determined by the ALJ.

 

Subcontractor Liability Falls Through the Cracks: In Noyola v. Davie Roofing and Eco Roof and Solar Inc., W.C. 4-969-386-08 (September 19, 2017), Claimant was injured when he partially fell through a roof while working as an employee of a subcontractor. Claimant attempted to demonstrate that Eco Roof and Solar were his statutory employers. Eco Roof and Solar cited a certificate of insurance representing workers’ compensation coverage issued to the subcontractor as immunity to the claim. The ALJ found Claimant failed to demonstrate by a preponderance of the evidence that Eco Roof and Solar were statutory employers. Claimant appealed. Citing Buzard v. Super Wall Inc., 681 P.2d 520 (Colo. 1984) in the appeal, ICAO reasoned that in the absence of proof that the subcontractor was also an insured employer, the statutory employer remains solely liable for the work-related injuries of the subcontractor. ICAO determined Eco Roof and Solar were solely liable for Claimant’s injuries unless they could show that there was a subcontractor with workers’ compensation insurance to cover the Claimant at the time of injury, noting that the mere existence of a policy was deemed insufficient to meet this burden. ICAO remanded to the ALJ to determine whether the subcontractor had insurance to cover Claimant’s injuries.

Moral of the Story: To establish immunity, the burden remains on the statutory employer to show that the subcontractor had workers’ compensation insurance capable of covering a claimant.

 

Everyone is Entitled to an Opinion but…: In Oliphant v. Ward Electric, W.C. 5-006-696-03 (September 27, 2017), Claimant lost on the issue of compensability for a shoulder injury and appealed, arguing that the ALJ’s Order was not supported by substantial evidence. Claimant argued that the ALJ should have given more weight to two expert opinions that opined Claimant’s condition was an aggravation of a pre-existing condition. Citing Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) in the opinion, ICAO reasoned that to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. ICAO noted that the ALJ was more persuaded by a conflicting expert opinion that found Claimant did not sustain an acute injury. The ALJ found that the Claimant’s need for medical treatment was caused by a “temporary aggravation” of his symptoms and not a subsequent aggravation or acceleration of the preexisting condition. ICAO agreed that the medical opinion relied upon by the ALJ fully supported this determination. ICAO affirmed the ALJ’s Order.

Moral of the Story: The weight, credibility, and deference to be assigned expert testimony is a matter solely within the ALJ’s discretion, absent reversible error.

 

Do you have a valid FAL? Yes, if the Maximum Medical Improvement/Impairment Rating Report is Co-signed by the ATP and Benefits are Actually “Payable”: In Flake v. JE Dunn Construction, Claimant suffered work-related dehydration leading to a brief hospitalization. The physician’s assistant (PA) placed Claimant at MMI with no impairment, and the supervising physician agreed with the determination and countersigned the form WC164, agreeing with the PA. Respondents filed a FAL. Claimant requested a DIME and sought a hearing on several issues, including penalties for the improper filing of a FAL because the MMI determination was made by the PA, not the ATP. The ALJ denied the penalties, noting that countersignature of the ATP was sufficient to satisfy Rule 5-5, W.C.R.P. The ICAO agreed with the ALJ. However, the two ICAO panel members split on whether the FAL had any legal effect in light of the controversial 2014 Loofbourrow decision by the Colorado Supreme Court, which held that a MMI determination has no legal effect if indemnity benefits are not “payable” because it has not yet become a compensable claim. The two ICAO panel members in Flake split on whether such benefits are “payable” under the Loofbourrow analysis, where entitlement to indemnity benefits remains in dispute.

Moral of the Story: (1) A PA’s MMI and impairment determinations are adequate for a FAL as long as they are countersigned by the ATP; (2) The Workers’ Compensation bar and courts in Colorado are still deciding on how to interpret and apply the Loofbourrow decision summarized above. The Flake case differs from Loofbourrow because benefits were actually payable prior to the MMI determination and were ultimately ordered to be paid.

Changes to Rule 16 Effective January 1, 2018

Everyone’s favorite Rule is getting a makeover effective January 1, 2018.  There are several minor changes to the Rule that will impact prior authorization requests and ensure that a second opinion is timely obtained by the payer.  The major change that will take effect is to Rule 16-11(E) and the elimination of the option for the payer to request a hearing within the time-frames set forth in Rule 16-11(A) or 16-11(B).  The Division hopes to streamline the payer’s ability to contest prior authorization requests and ensure that a second opinion is obtained in a timely manner.  Rule 16 was previously revised and hoped to reduce overall litigation; however, the changes to the Rule contained some ambiguities and loopholes further ensuring that clarification was needed in 2018.

 

The current form of Rule 16-11(E) indicates:

Failure of the payer to timely comply in full with the requirements of section 16-11(A) or (B), shall be deemed authorization for payment of the requested treatment unless:

 

(1) A hearing is requested within the time prescribed for responding as set forth in section 16-11(A) or (B) and the requesting provider is notified accordingly.  A request for hearing shall not relieve the payer from conducting a medical review of the requested treatment, as set forth in section 16-11(B); or

 

(2) The payer has scheduled an independent medical examination (IME) within the time prescribed for responding as set forth in section 16-11(B).

 

This portion of the Rule took effect January 1, 2017 and is effective through December 31, 2017.  The Rule allows the payer to request a hearing within 7 business days of the receipt of the request for prior authorization.  However, it does not specify “when” the payer should conduct a medical records review.  It only indicates that the obligation is there for the payer to conduct one.  The Rule in subsection (2) also allows for an IME to be scheduled within 7 business days but does not delineate when the IME should take place.  For the claimant, significant delay is possible in waiting for the second opinion from the IME physician.  Theoretically, a payer could “schedule” an IME within 7 business days but have the IME take place at a much later date due to the availability of the IME physician.

 

The major changes that will be effective on New Year’s Day specifically indicate what a payer can due to contest a request for prior authorization, (if a medical records review is not possible), while taking into consideration the timeliness of obtaining the opinion for the claimant.

 

The new version of Rule 16-11(E) indicates:

Failure of the payer to timely comply in full with section 16-11(A), (B), or (C) shall be deemed authorization for payment of the requested treatment unless the payer has scheduled an independent medical examination (IME) and notified the requesting provider of the IME within the time frame prescribed for responding set forth in section 16-11(B).

 

(1) The IME must occur within 30 days, or upon first available appointment, of the prior authorization request, not to exceed 60 days absent an order extending the deadline.

(2) The IME physician must serve all parties concurrently with his or her report within 20 days of the IME.

(3) The insurer shall respond to the prior authorization request within five business days of the receipt of the IME report.

(4) If the injured worker does not attend or reschedules the IME, the payer may deny the prior authorization request pending completion of the IME.

(5) The IME shall comply with Rules 8-8 to 8-13 as applicable.

 

 

One aspect of the Rule that must be remembered by the carrier is the “first available appointment” portion of scheduling the IME.  As is usually the case, an IME physician will have a busy schedule and may not have an appointment within 30 days.  While an IME can still be scheduled up to the 60-day deadline with a physician of the carrier’s choice, this portion of the Rule must be complied with strictly so as to prevent delay in obtaining the second opinion for the claimant.

 

Another portion of the Rule that may create certain “arguments” is the duty on the IME physician and the carrier to have the report concurrently served on the parties within 20 days of the IME.  Although the Rule is silent as to what happens if the report is not concurrently served, or is late, the Rule still contains the original provision that a failure to comply is deemed authorization of the particular procedure.  The Rule appears to create an obligation on the payer to ensure that the IME physician is timely with his/her report.

 

Lastly, an ALJ always has the ultimate jurisdiction to determine whether a procedure is reasonable, necessary, and/or related to a claim since it will always involve a finding of fact.  However, there is also established case law indicating that a failure to timely comply with Rule 16 and/or a failure to timely authorize a recommended procedure from an authorized treating physician could be a continuing penalty situation in which an ALJ could find that the carrier acted unreasonably and that penalties should be awarded from the date of the request through the date of authorization.

 

It is always best to understand the particular changes to the law well in advance of when they take effect.  For any questions regarding the upcoming changes to Rule 16 and their application to a particular set of facts, please contact any of the attorneys at Lee + Kinder, LLC.

 

Legal Connection Firm Newsletter – October 2017

Thank you for taking the time to read our Firm newsletter. Our newsletter provides a monthly update on recent developments within our Firm, as well as in the insurance defense community.

Please follow us on LinkedIn

 


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

Victory Lap

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

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

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

 


Fran McCracken Legal Analysis

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

 


Cases You Should Know

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

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

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

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

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

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

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

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

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

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

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

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

Page 1 of 1212345...10...Last »