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.
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
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.