Please follow Lee + Kinder LLC on LinkedIn
Lee + Kinder LLC sponsored the PWC 8th Annual Bowling tournament on Friday, February 10, 2017. The Firm was well represented with 3 teams entered. Team “Spare Us” won the event behind the strong showing of Richard Lutterman who was the highest scoring player in the tournament! Rich was accompanied on the team by Cheryl Stevens, Harvey Flewelling and Frank Cavanaugh. A good time was had by all and money was raised for the PWC scholarship fund.
The 2017 Colorado Workers Compensation Educational Conference is being held April 17-19 at the Broadmoor in Colorado Springs. Lee + Kinder LLC is an event sponsor. We invite you to join us for this educational event.
In Wilks v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended against a request for right wrist surgery. Respondent presented the testimony of Dr. Fall to prove that Claimant’s alleged mechanism of injury could not have caused the arthritic condition for which Claimant was seeking treatment. The ALJ ultimately found that, although Claimant needed the recommended procedure, the need for the procedure was not related to Claimant’s admitted injury. The ALJ relied on Dr. Fall’s persuasive testimony giving little weight to Claimant’s expert who admittedly relied on some “guesswork” in reaching his conclusions.
Of Counsel M. Frances McCracken requested an order striking Claimant’s request for disfigurement benefits in Rodarte v. Sam’s Club. Claimant suffered an industrial injury to her right middle finger and underwent surgery. Afterwards, Claimant sought disfigurement benefits. Ms. McCracken presented undisputed evidence and testimony from the Claimant that she was scheduled to undergo a second surgery that could correct some of the visible disfigurement. The ALJ determined an award for disfigurement was not yet ripe and struck Claimant’s Application without prejudice.
EMPLOYEE OR INDEPENDENT CONTRACTOR?
Why is it important to know if the person working for you is an employee or an independent contractor? Because the answer determines if he or she must be covered by your workers’ compensation insurance policy. An incorrect guess exposes you to substantial penalties under Colorado’s Workers’ Compensation Act.
A worker’s status as an “employee” versus an “independent contractor” has been one of the most heavily litigated areas of workers’ compensation since the enactment of Colorado’s Workers’ Compensation Act in 1915. Fortunately, after decades of appellate decisions addressing the independent contractor versus employee issue, in 1993, the General Assembly enacted Section 8-40-202(2), C.R.S. Click here to continue reading this article.
Cases You Should Know
Employer mandate: not optional. In two opinions issued on the same day, In the matter of Angels of God Early Learning Center, Inc. (November 8, 2016) and In the Matter of AWF, LLC d/b/a Cherry on Top (November 8, 2016), ICAO upheld penalties issued by the Director following second violations of the Workers’ Compensation Act requirement that an employer maintain workers’ compensation insurance coverage. Both employers argued on appeal that they did not receive notice that their insurance coverage had lapsed. The employer in AWF further argued that it obtained new coverage upon notice from the Division and that no employees had been injured in the meantime. In both cases ICAO upheld the penalties issued by the Division, noting that an employer is not entitled to a hearing, when the employer did not avail itself of the opportunity for a prehearing conference. Moral of the Story: When the Division issues penalties on an uninsured employer, and the employer does not seek a prehearing to challenge the fines, the employer waives its right to a hearing.
“You don’t need more treatment, but I didn’t say you were at MMI.” In Dean v. Southwest Airlines, W.C. No. 4-988-024-01 (November 7, 2016), a flight attendant alleged injuries to multiple body parts, including the ankle, as a result of falling due to motion of the airplane on which he was working. The ALJ found that the ankle injury resolved within two days and required no additional medical treatment and that the other injuries were unrelated to the incident. The Claimant appealed, arguing that the ALJ improperly ruled on whether Claimant’s ankle injury was at MMI without having first undergone a DIME. Noting that MMI was not at issue, ICAO upheld the ALJ’s Order finding the decision merely denied additional medical and temporary disability benefits based on a determination of causation. Moral of the Story: An ALJ’s denial of further medical and temporary disability benefits does not equate to a finding of MMI.
Collateral attack via DIME. In Jackson v. Select Comfort Corp., W.C. No. 4-914-418-03 (November 17, 2016), an ALJ found that a Claimant’s lumbar condition was not causally related to the admitted work injury. The Claimant later received an impairment rating from a DIME physician for the lumbar condition. The Respondents challenged the DIME’s impairment rating at hearing before a different ALJ. The ALJ found that the Respondents failed to overcome the DIME’s impairment rating by clear and convincing evidence. The Respondents appealed arguing that causation and relatedness could not be relitigated through a collateral attack on the first ALJ’s Order by means of a DIME. ICAO upheld the second ALJ’s finding noting that, although both hearings involved the question of causation, the burdens of proof were different. Therefore, they concluded that issue preclusion did not apply. Moral of the Story: Insofar as a DIME’s MMI or impairment rating determinations turn on relatedness, the DIME physician is not bound by a prior ALJ’s findings.
John Hancock, PA-C. In MacDougall v. ICAO, 2016CA705 (December 15, 2016)(nsfp), a Claimant was receiving TTD benefits on a GAL. The Respondents then filed a FAL admitting for no PPD benefits, relying on a medical report by the Claimant’s treating PA with the stamped signature of the Claimant’s ATP. The report stated that the Claimant was at MMI with no restrictions, but did not address an impairment rating. Upon receipt of a letter from the ATP stating that Claimant needed an impairment rating and review by a Level-II accredited physician, the Respondents filed an Amended GAL that terminated TTD as of the date of the PA’s report. The Claimant sought penalties on the basis that Respondents should not have terminated TTD based on a “fraudulent report.” However, the ALJ denied penalties noting that Respondents terminated TTD based on the PA’s full-duty release, which had not been rescinded by the ATP. ICAO and the Court of Appeals affirmed. Moral of the Story: Respondents may rely on a PA’s report if it bears the ATP’s stamped signature insofar as the ATP does not rescind the parts of the report on which the Respondents rely.
“Everyone has an Achilles’ heel.” In Kendrick v. United Airlines, W.C. No. 4-991-007-01 (Nov. 15, 2016), the Claimant sought review of an ALJ’s Order finding that Claimant’s injury did not occur within the course and scope of employment and subsequently denying Claimant’s temporary disability and medical benefits. Claimant was a co-pilot for the employer and was scheduled to spend the night in Seattle, Washington. After arriving at his hotel, Claimant went on a jog and ruptured his Achilles’ tendon ascending a flight of stairs. Claimant alleged that his jogging was within the course and scope of his employment. On appeal, the Claimant argued that the practice of running falls within the category of personal comfort activities found to be within the course and scope of employment. ICAO explained that participation in recreational activity is usually excluded from the context of employment and also excluded from being considered an element of the comfort doctrine. The Claimant’s jogging was considered a substantial deviation from the Claimant’s travel status. ICAO upheld the ALJ’s Order that Claimant’s injury did not occur within the course and scope of his employment. Moral of the Story: Unless the type of recreational activity is considered part of the employment, participation in recreational activities is usually outside the scope of most employment.
“Special employment hazard.” In Leal v. UPS, W.C. No. 4-977-019-02 (Aug. 15, 2016), the Claimant sought review of an ALJ’s Order denying medical and temporary disability benefits and dismissing the claim as not compensable. The Claimant alleged that he hurt his back while working for the employer. The Claimant had a history of back injuries including a 15-year history of sciatica symptoms. The Claimant underwent significant treatment until the DIME physician, Dr. Lesnak, placed him at MMI without impairment or restrictions. Another physician, Dr. Gellrick, later concluded that the Claimant was suffering from an aggravation of previous symptoms, concluding that the Claimant was not at MMI. At hearing, the Claimant testified that he had no history of back pain prior to the date of injury. Dr. Lesnak testified that the Claimant’s previous testimony regarding his prior episodes of back pain contradicted several medical records. Dr. Lesnak further testified that the Claimant’s symptoms, subsequent to the date of injury, were due to Claimant’s age, weight, and the degenerative condition of his spine. The ALJ ultimately did not find the Claimant’s testimony credible concluding that the Claimant failed to provide a causal link between his work duties and his industrial injury. On appeal, the Claimant alleged that the ALJ misapplied the special hazard of employment doctrine to deny compensability of the claim. ICAO noted that the ALJ’s Order showed that she applied the hazard of employment analysis to the extent she found no work activities were involved in the Claimant’s symptoms or need for treatment. Citing the City of Brighton v. Rodriguez, ICAO noted that in order to to render an injury compensable, a special employment hazard must have contributed to the injury even if the most direct cause of that injury is a preexisting idiopathic disease or condition. ICAO noted that the ALJ found no evidence that twisting at work contributed to the Claimant’s injuries. ICAO then concluded that the ALJ located the Claimant’s injury in the category of personal risk, which is not compensable, and the exception of the hazard of employment did not apply. Moral of the Story: Personal risk injuries are not compensable and the special hazard doctrine only applies when there is a preexisting idiopathic disease or condition and the special employment hazard contributes to that injury.
“Make sure your stories line up.” In Parrot v. Havana Auto Parts, W.C. No. 4-987-940-02 (Dec. 29, 2016), the Claimant sought review of an ALJ Order denying and dismissing the Claimant’s workers’ compensation claim. The Claimant contended that he injured his left knee while engaging the emergency brake in a work truck. He did not report his injury immediately to the employer. An employee for the employer credibly testified that there were no records documenting complaints about the truck’s emergency brake. Dr. Paz later performed an IME and concluded that the Claimant’s injuries were not causally related to the date of injury due to the Claimant’s inconsistent accounts of the mechanism of injury. At hearing, the ALJ credited the testimony of Dr. Paz and disregarded other medical opinions. On appeal, ICAO upheld the ALJ’s findings noting that an if ALJ determines that a Claimant has met their burden of proof to establish a compensable injury, then the appeals court must give deference to an ALJ’s resolution of conflicts of evidence and plausible inferences drawn from the record. Moral of the Story: An ALJ is given great deference in his/her determinations at hearing.
“Mager pain.” In United Parcel Service v. Industrial Appeals Office, Colorado Court of Appeals No. 15CA2142 (Nov. 10, 2016), the Court of Appeals affirmed an ICAO Order affirming an ALJ’s Order awarding the Claimant, Jennifer Magers medical benefits and temporary total disability benefits, and rejecting employer’s intervening cause and injurious practice arguments. While making a delivery, the Claimant developed pain in her left hamstring and lower left buttocks. She could not recall a specific event that precipitated the pain. It was later determined that Ms. Magers had a moderate sized posterior and left lateral disc protrusion and extrusion of her L4-5 and L5-S1 vertebrae. Dr. Jernigan opined that this was a result of her work performed on the date of injury. Ms. Magers took a road trip with her family, and reported a sudden increase in back pain after shifting her body weight in the car. An IME physician opined that Ms. Magers’ condition was not work-related because Ms. Magers had initially indicated to her primary care provider that the pain began four to five weeks before her visit, which would have put the injury outside the reported accident date. At hearing, the ALJ found that Ms. Magers had established she suffered a work-related injury, and rejected the Respondents’ injurious practice and intervening cause arguments. The Respondents challenged that (i) Ms. Magers sustained a compensable injury; (ii) Ms. Magers’s use of an inversion table was an intervening cause; and (iii) Ms. Magers engaged in an injurious practice by going on vacation. After applying the substantial evidence test in determining whether the evidence supports the ALJ’s findings, the Court of Appeals concluded: (i) Ms. Magers’ testimony and the medical opinions establish that Ms. Magers suffered a compensable injury, and Ms. Magers’ inability to pinpoint a specific event that caused her pain was not enough to indicate that the ALJ erred in crediting her testimony; and (ii) Ms. Magers’ one-time use of an inversion table and her family road trip were not a likely cause or contributed to her injury. After concluding that the ALJ resolved conflicting evidence, the Court of Appeals upheld the ALJ’s and ICAO’s findings. Moral of the Story: An ALJ is given great deference in weighing medical opinions and hearing testimony to determine whether a claimant suffered a compensable injury, whether a claimant participated in an injurious practice, and whether there was an intervening cause.
DIME opinions are great and all, but are not that impressive in evaluating PTD benefits: In this next case, the Claimant sustained multiple injuries when she tripped and fell over a box. The DIME physician opined Claimant had impairments to her left shoulder and left knee, but no impairments to her spine. Claimant sought PTD benefits. The ALJ credited Claimant’s IME physician that Claimant’s spine injuries were related to the fall and awarded PTD benefits. Respondents appealed and argued the ALJ did not properly apply the correct burden of proof in awarding PTD benefits. The Court held that this burden of proof did not apply in the context of PTD benefits. Rather, the PTD analysis focused on the Claimant’s ability to earn wages and Claimant was only required to show a causal link between her disability and work injury. Dish Network v. ICAO, W.C. No. 4-918-651 (nsfp). Moral of the story: The DIME physician’s opinion regarding causation of additional body parts does not carry presumptive weight in evaluating PTD benefits.