In the News
Lee + Kinder LLC has been named a Denver Tier 1 firm in the field of Workers’ Compensation Law – Employers by U.S. News – Best Lawyers® “Best Law Firms” again for 2017.
Member Tiffany Scully Kinder successfully defended Respondents’ challenge to a treating physician’s request for a Platelet Rich Plasma (PRP) injection. In Martinez v. Waste Management of Colorado, Inc. and Indemnity Insurance Company of North America, Claimant sustained an admitted injury to his right shoulder, requiring arthroscopic surgery to repair his rotator cuff. After extensive rehabilitation, Claimant continued to complain of pain and limitation in his right shoulder. His doctor requested prior authorization for a PRP injection as a final option. Respondents challenged the doctor’s request for prior authorization arguing that the Medical Treatment Guidelines do not generally recommend PRP injections for rotator cuff injuries. Respondents presented Claimant’s prior medical records, as well as medical expert deposition testimony at hearing before ALJ Jones. ALJ Jones found that Claimant failed to meet his burden of proof to establish that a PRP injection was a reasonably necessary or related medical benefit for his right shoulder injury.
Member Joseph Gren successfully won a dismissal of a full contest claim in Livingston v. United Parcel Service and Liberty Mutual Insurance. The claim involved an employee who alleged he suffered a right knee injury after an unloading roller fell on his knee at work. ALJ Patrick Spencer found that the Claimant could not establish that he sustained an injury or aggravation to his right knee. Furthermore, Mr. Gren utilized expert medical witness testimony, and employer witness testimony, to present evidence that Claimant’s torn ACL was preexisting and that the event at work did not cause or aggravate the knee injury. Mr. Gren was also able to elicit testimony from the surgeon, who recommended an ACL repair, that the injury was likely preexisting. ALJ Spencer credited the testimony of both physicians and the employer witnesses and determined that there was no persuasive evidence that Claimant required any medical treatment proximately caused by the work place incident. ALJ Spencer denied and dismissed the claim.
Of Counsel M. Frances McCracken prevailed on all issues endorsed for two claims consolidated for hearing before ALJ Turnbow in Hernandez v. Walmart Stores, Inc. In the first claim, Respondent sought to challenge the DIME’s impairment rating and the recommendation for maintenance medical benefits while Claimant sought to prove conversion. In the second claim, Respondent sought to prove Claimant was responsible for his termination, and Claimant sought to prove entitlement to TTD benefits. The ALJ found that Claimant failed to prove a permanent impairment beyond the shoulder joint, found that the DIME physician incorrectly included a non-work-related condition in the impairment rating, and found that no maintenance medical benefits were necessary. For the second claim, the ALJ found that Claimant was, in fact, responsible for termination, thus severing the causal connection between the injury and the wage loss.
Of Counsel M. Frances McCracken also successfully prevailed before ALJ Felter in Clark v. Walmart Stores, Inc. on the issue of the reasonableness of a Tramadol prescription as a maintenance medical benefit. After listening to the testimony of the parties’ witnesses, ALJ Felter found that indefinite prescriptions for Tramadol were not a reasonably necessary maintenance medical benefit. He ordered that Claimant’s treating physician enter into a Pain Contract, signed by Claimant, setting forth a reasonable schedule for weaning Claimant off of the Tramadol.
In Mitchell v. Walmart Stores Inc, Of Counsel John Abraham successfully challenged Claimant’s request for a general medical maintenance care award and a new Final Admission of Liability. The authorized treating physician found no maintenance care was reasonable, necessary and/or related, while the Division IME physician recommended a six-month gym membership as maintenance care. Respondent denied maintenance care pursuant to the ATP’s opinions on the FAL. Claimant argued that the gym membership was a maintenance medical benefit necessitating an admission for a general maintenance award. Respondent agreed to authorize a six-month gym membership though they maintained, contrary to Claimant’s request, that no additional maintenance care was reasonable, necessary and/or related. Mr. Abraham presented credible medical evidence demonstrating that the substantial evidence did not support a general medical maintenance award and further that there was no authority to support a general award of maintenance care simply because a gym membership had been agreed to by the parties.
Associate Matt Boatwright was successful in two recently litigated claims. In Schilling v. United Parcel Service and Liberty Mutual Insurance, Claimant sought conversion of a scheduled injury to his upper extremity to a whole person impairment rating for ongoing complaints of pain in the neck, upper back, and residual symptoms from a surgery. The ALJ found that Respondents’ medical expert testified credibly and persuasively that no symptoms at that time would have reasonably been considered related to the original injury. The ALJ found the injury appropriate under the schedule of ratings and denied the whole person conversion.
Mr. Boatwright also successfully defended a full contest claim for benefits arising from a foot injury alleged to the be result of an occupational disease. DeHerrera v. United Parcel Service and Liberty Mutual Insurance. Claimant claimed that he had sesamoiditis, a condition involving inflammation of the foot, as the result of his job duties over time. The condition ultimately required surgery. The ALJ found that Respondents’ medical expert testified credibly that the particular condition for which Claimant sought compensation would not have been caused by repetitive activities, but would more likely than not be the result of an acute injury. Based upon this medical opinion, the ALJ denied and dismissed the claim.
NEW OVERTIME RULES
The Department of Labor’s (“DOL”) new overtime rules take effect December 1, 2016, and employers should be reviewing and modifying their compensation and payroll practices in response. Here is a link to the new regulations adopted by the Department of Labor:
As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans.
Cases You Should Know
Tomayto, tomahto: In Dalton and Archer-Reid v. Pace Joint Interests-Denver, LLC and Chiropractic Healthcare Solutions, LLC, W.C. Nos. 4-977-664 & 4-977-800 (September 22, 2016), while addressing a unique factual scenario involving two alleged employers, ICAO clarified the concepts of joint employment, dual employment, and loaned employment. ICAO noted neither Colorado appellate courts nor ICAO previously have adopted or applied Larson’s distinct classifications of “joint employment” or “dual employment.” Rather, these courts have used the terms interchangeably. Larson’s Workers’ Compensation distinguishes joint employment from dual employment:
Dual employment occurs when a single employee, under contract with two employers, and under the separate control of each, performs services for the most part for each employer separately, and when the service for each employer is largely unrelated to that for the other. In such a case, the employers may be liable for workmen’s compensation separately or jointly, depending on the severability of the employee’s activity at the time of injury.
ICAO also noted that, under the Colorado Workers’ Compensation Act, a loaned employee and an employee are not the same. C.R.S. §8-41-303 provides: “Where an employer . . . loans the service of any of the employer’s employees . . . to any third person, the employer shall be liable for any compensation thereafter for any injuries or death of said employee . . . unless it appears from the evidence that said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom the employee was loaned.” Moral of the Story: Do not use the terms joint employment, dual employment, and loaned employment loosely—these terms embody distinct concepts.
An indirect green light on appeals from the General Assembly: In Huston v. Allcable, Inc., W.C. No. 4-997-535 (October 5, 2016), the ALJ ordered a change of authorized treating physician pursuant to § 8-43-404(5)(a)(VI), C.R.S. and Respondents appealed. ICAO considered whether §8-32-301(2) bars review of an order requiring a change of physician since such an order arguably does not require payment of a benefit. In prior cases, ICAO found orders granting a change of physician not reviewable because authorization itself is not a benefit. ICAO departed from its prior position, citing recent statutory changes which compel Respondents to pay for a minimum of one appointment with the new ATP after a change of physician pursuant to §8-43-404(5)(a)(VI). Since the change of physician statute now requires payment by Respondents, an order granting a change of physician is appealable. Moral of the Story: As a result of recent statutory changes, C.R.S. §8-43-301(2) no longer bars appeal of an order granting a change of physician.
Short and sweet: adjudication on the pleadings: In Adams v. Heart of the Rockies, W.C. No. 4-947-7301, a dispute arose as to the Respondents’ entitlement to recover an overpayment. The parties agreed to forego a hearing and request an Order on the pleadings. The ALJ issued a Summary Order in favor of the Respondents, which did not address the Claimant’s arguments. The Claimant appealed, and the ICAO concluded, based on the Summary Order, that the ALJ implicitly found the Claimant’s factual allegations unpersuasive. The ICAO noted, though not in dispute, that a request for a full findings of fact under §8-43-215, C.R.S. is not available where a summary order is issued on the pleadings without a hearing. Moral of the story: Where issues are adjudicated on the pleadings, you may not request full findings of fact.
If you’re fired, allege a worsening of condition: In Evans v. JC Penny, W.C. No. 4-904-748-04 (September 19, 2016), the ALJ found that the Claimant was responsible for her termination in April of 2014. However, the ALJ also found that the Claimant had a worsening of condition in October of 2014. The ALJ, in his Order, concluded that the Claimant’s entitlement to TTD benefits was severed by the for-cause termination in April 2014, and found that a causal relationship between wage loss and injury was reestablished as of Claimant’s worsening of condition in October of 2014. On appeal, ICAO concluded that the ALJ’s findings were supported by substantial evidence and his conclusions were supported by the seminal case of Anderson v. Longmont Toyota. Moral of the story: Entitlement to temporary disability benefits may be reestablished by a showing of a worsening of condition, despite the fact that the claimant was responsible for prior termination.
A final order is a final order… unless it’s not: In Ketiku v. Integrated Healthcare Staffing, W.C. No. 4-924-142-09, a Pro Se Claimant failed to file a timely Petition to Review. The Claimant filed multiple subsequent applications for hearing, one of which sought reopening based on mistake. Specifically, the Claimant alleged that she was given the “wrong documentation” for her appeal and that she was denied reasonable assistance to mitigate a hearing disability. The ALJ struck the Claimant’s Application For Hearing, noting that the prior Order denying compensability was final, as it had not been appealed. On review, ICAO remanded the case to the ALJ, concluding that the Claimant’s allegations could constitute a basis for mistake of law, warranting a collateral attack on the original Order. Moral of the Story: Even a claim closed on a final order, no longer subject to review, may be reopened where a pro se claimant alleges the prior ALJ made a mistake of law.
Risky Business: In Cross v. Genuine Parts Company, W.C. 4-961-489-02 (September 20, 2016), the Industrial Claim Appeals Office affirmed the decision of the Administrative Law Judge (ALJ) ordering Respondents liable for arm/wrist surgery for Claimant’s compensable injury. Respondents’ appeal argued that Claimant’s need for surgery arose due to an aggravation of her condition while working for a new employer. The panel affirmed the ALJ’s finding and reasoned, citing University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001), that the concept of assigning liability for medical benefits to an employer “on the risk” for insurance coverage would not apply in a case where the prior injury had an accidental cause and the subsequent injury was an occupational disease, as was the case here. Instead, the ordinary rules of causation and apportionment extend to medical benefits because there was no evidence in the record stating that the original work injury was an occupational disease. The panel affirmed the ALJ’s decision that the proposed surgery was caused by Claimant’s original work injury and not while working for a subsequent employer. Moral of the story: For the “last injurious exposure” doctrine to apply, the initial work injury and subsequent aggravation must be occupational injuries. Liability for medical expenses is on the employer who is on the risk for insurance coverage as of the date the charge for medical services was incurred.