legaLKonnection Firm Newsletter – November 2016

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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.
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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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Victory Lap

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:
http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=28355

As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans.

Click here to continue reading this article.

 


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:

Joint employment occurs when a single employee, under contract with two employers, and under simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workmen’s compensation.

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.

NEW OVERTIME RULES

The Department of Labor’s (“DOL”) new overtime rules take effect December 1, 2016,usdol_seal 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:

http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=28355

As part of this preparation, employers must consider whether and how any changes to their compensation structures will affect their employee benefit plans.

The new overtime rules increase the salary levels at which executive, administrative, and professional workers may be considered “exempt” under the Fair Labor Standard Act (“FLSA”) from overtime pay when a work week exceeds 40 hours. Initially, the standard salary level will increase from $455 to $913 per week and the total annual compensation requirement for highly compensated employee exemption will increase from $100,000 to $134,004 per year.  In addition to these initial compensation level bumps, additional upward adjustments are scheduled to occur every three years thereafter.

The immediate impact on this change is that currently classified “exempt” employees under the lower salary level, will no longer qualify for this status.  As a result, if an employee is no longer exempt under the FLSA, overtime must be paid for work performed beyond the 40-hour work week.

Employers need to respond to these changes in a number of ways.  Some are raising base salaries in order to classify additional employees as “exempt.”  Others are planning to simply pay overtime where necessary.  Others are planning to cap hours at 40 so that no overtime need be paid, or to meet their needs with part-time workers.

Regardless of the planned changes, effects on the employer’s benefit plans must be considered.  The DOL’s new overtime rules will require many employers to make sweeping and expensive changes to their compensation practices.  These changes may impact employee benefit plans in both intended and unintended ways.  Employers are urged to conduct a thorough benefit plan analysis before making any sweeping compensation changes.

If you have questions about the rule, or how it may affect your company, please contact us.

legaLKonnection Firm Newsletter – October 2016

Lee + Kinder LLC

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.
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In the News

namwolf2016_web
Member Joshua Brown  and Of Counsel John Abraham recently attended the annual NAMWOLF Conference in Houston, TX on behalf of the Firm. This is NAMWOLF’s decorated and highly anticipated yearly event that brings together all NAMWOLF firms, along with numerous general counsel from companies across the country. On behalf of the Firm, Mr. Brown and Mr. Abraham met with general counsel from various countries, as well as networked with other NAMWOLF firms across the country. Additionally, the Firm was represented at the conference’s firm expo pictured left.

 

 


Victory Lap

tiffany-scully-kinder_lee-kinder-partner-attorney1Member Tiffany Scully Kinder successfully won dismissal of a full-contest claim in Carias v. Bimbo Bakeries USA, Inc. and Indemnity Insurance of North America in front of ALJ Laura Broniak. Claimant alleged she injured her abdomen area after being struck by a plastic basket. ALJ Broniak found a plastic basket striking Claimant’s abdominal area would not have enough force to cause trauma. Further, ALJ Broniak found Claimant’s change in job duties could not cause an injury, or otherwise aggravate or exacerbate Claimant’s pre-existing abdomen symptoms. The ALJ denied and dismissed the claim.

 

KGTnewsMember Karen G. Treece successfully defeated Claimant’s claim for conversion in Newton v. True Value and Zurich American Insurance Company. In this case, the claimant crushed his left hand and wrist between two forklifts. He was found at MMI but provided two different impairment ratings. Dr. Kawasaki first found claimant had a 25% scheduled impairment rating but Dr. Adams later determined Claimant had a 25% whole person impairment rating due to CRPS. Respondents admitted for the 25% scheduled rating. Claimant filed an application for hearing seeking conversion to the 25% whole person rating as found by Dr. Adams. Claimant argued Respondents were bound to admit to Dr. Adams’ higher impairment rating. Ms. Treece drew testimony from Dr. Adams that claimant’s impairment rating was the first one she had performed, only did so after she saw Dr. Kawasaki’s impairment rating, and thought it was inadequate. Dr. Striplin credibly testified that Dr. Kawasaki’s impairment was more appropriate as claimant sustained an injury to his hand and wrist, which is evaluated under the schedule. Claimant was properly evaluated and found negative for CRPS. If the claimant had had CRPS, the AMA Guides permit the evaluator discretion to provide a schedule or whole person rating. Claimant’s claim for conversion was denied.

 

ST_newsOf Counsel Sheila Toborg successfully defended two separate appeals brought by claimants, in Odell Walker v. Raytheon Co. and Liberty Mutual and again in Eduardo Garcia v. The Home Depot. In Walker, Claimant alleged a cervical disc herniation and possible shoulder injury while installing computer systems in Abu Dhabi. Respondents denied the claim on the basis that Claimant had an extensive history of similar symptoms predating the alleged injury and that the mechanism of injury would not result in any injury. Respondents presented Claimant’s prior medical records and Dr. Allison Fall’s testimony at hearing before ALJ Timothy Cain and won. Claimant appealed. ICAO affirmed ALJ Cain’s Order, concluding that Claimant failed to prove by substantial evidence that his symptoms were causally related to a work injury.

In Garcia, Claimant suffered admitted labral tear of the right hip, and his treating physicians opined that he could not undergo hip surgery until he lost sufficient weight. Claimant’s treating physicians recommended bariatric surgery, which Respondent denied as not reasonably necessary in light of less-invasive alternatives. Following a hearing before ALJ Michelle Jones in which both parties presented medical expert testimony, ALJ Jones found that the bariatric procedure would not result in a much faster rate of weight loss than dieting and nutrition programs, and that bariatric surgery was not reasonably necessary in light of the less-invasive alternatives. Claimant appealed the Order. ICAO affirmed ALJ Jones’ Order, concluding that her findings were supported by substantial evidence and that her legal conclusions were sound.

 

frank2In Ortiz-Avila v. Spacecon and AIG, Of Counsel Frank Cavanaugh was successful in arguing that penalties were not warranted for an alleged improper denial of medical benefits pursuant to a request for prior authorization under. W.C.R.P. 16, non-payment of medical bills, and an unreasonable delay or denial of benefits. ALJ Kimberly Turnbow found that the W.C.R.P. 16 prior authorization requests were handled properly and reviewed by a physician with the necessary qualifications to review the medical care at issue. Notably, exposure on the asserted penalties was over $1 million. The ALJ found and concluded that penalties were not factually supportable.

 

 

FranNews

Of Counsel Frances McCracken was successful in challenging Claimant’s request to reopen her claim on the basis of a worsening of condition in Hays v. Walmart and Illinois National Insurance Co. Respondents presented medical evidence that Claimant’s condition had remained stable since being placed at MMI. ALJ Keith Mottram found that there was no credible evidence of recommended treatment which would be considered anything more than maintenance care. Additionally, while the ALJ found that the scheduled injury at issue was appropriate for conversion to a whole person impairment rating, the converted rating was actually less than the full amount of the scheduled impairment due to Claimant’s AWW, resulting in less exposure for PPD than if the injury had remained under the schedule of injuries.

 

jmanewsOf Counsel John Abraham successfully won dismissal of a full-contest claim in Ineguez-Zamora v. Dave and Busters and Indemnity Insurance Company, in from of ALJ Michelle Jones. Claimant alleged a back injury in February of 2016. Mr. Abraham utilized expert medical opinions to point out inconsistencies in Claimant’s mechanism of injury. Mr. Abraham also introduced testimony from Claimant’s manager with his current employer. Claimant’s supervisor credibly testified that Claimant digs ditches and constantly moves pipes weighing 25-35 pounds. ALJ Jones found that there was no objective medical evidence that Claimant sustained a workplace injury. The ALJ further found Claimant not to be credible. The ALJ denied and dismissed the claim.

Of Counsel John Abraham also successfully defended against a Disfigurement claim in Costa v. Walmart and Claims Management, Inc. Claimant alleged in discovery that she had disfigurement from swelling due to her injury. Respondents contended there was no disfigurement. Counsel for Respondents appeared at hearing in person. Claimant was present without her attorney and admitted, under oath, that she had no disfigurement related to the work injury.

 


LetsBeFrankW

DEPARTMENT OF LABOR REPORT

In October 2015, National Public Radio (NPR) and ProPublica did a report over the differences between the states workers’ compensation laws. The report found significant differences in the amount of benefits and type of benefits in each states workers’ compensation system. The report focused heavily on recent attempts by states to allow employers to opt-out of workers’ compensation. As a result, on October 5, 2016, the Department of Labor issued a 43-page report over the state of the patchwork of workers’ compensation laws across the country.  Click here to continue reading this article


Cases You Should Know

Cases You Should Know
Where’s the Mistake: In Defrece v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), Claimant appealed an ICAO order which affirmed the ALJ’s order denying his request to reopen his claim. The claim was closed on an FAL, when Respondents filed an Application for Hearing regarding overpayments. Claimant filed a Response petitioning to reopen his claim on an alleged mistake in the employer’s AWW calculation. Requests to reopen based on mistake of law require a two-step analysis: first, the ALJ must determine whether a mistake was made; and second, if there was a mistake, the ALJ must assess whether that mistake justifies reopening a closed claim. Claimant’s argument was that the ALJ erred when he found that Respondent’s calculation of the AWW was not the kind of mistake for which the issue of AWW could be reopened. The Court upheld the ICAO’s ruling to uphold the ALJ’s order that no mistake had occurred in calculation of Claimant’s AWW. Moral of the Story: Since an ALJ has wide discretion regarding the method of AWW calculation, mere disagreement with the ALJ’s method does not constitute a mistake and is not a basis for reopening.

 

A heavy burden to bear: In Salgado v. The Home Depot, W.C. No. 4-975-288 (August 23, 2016), the ICAO overturned the ALJ’s denial of TTD benefits on the basis that Respondents had failed to carry their burden of proof that Claimant was responsible for his termination. ICAO held that Claimant was not required to establish work-related wage loss prior to termination in order to request temporary disability benefits after termination. Rather Respondents had the burden to prove that Claimant’s wage loss after termination was not related to the compensable injury, pursuant to C.R.S. § 8-42-105(4)(a). ICAO concurred with the ALJ’s findings that Claimant had work restrictions prior to termination which established work-related disability. This shifted the burden to Respondents to establish that Claimant’s responsibility for termination was the cause of his consequent wage loss. Moral of the Story: If Claimant has work restrictions at the time of termination, it is Respondents’ burden to show Claimant was at fault for termination in order to terminate TTD.

 

The Rules Were Meant to Be Broken: In Anthony Lucero v. Wyndham Hotel & Resorts and Zurich North America Insurance, W.C. 40705-926-02 (ICAO August 30, 2016), Claimant requested additional time to file a Petition to Review an Order Granting Respondents’ Motion for Summary Judgment. Claimant subsequently filed his Petition to Review outside of the time frame set forth in the Order he sought to appeal, but within the extension of time he requested, and his Petition to Review was denied as being untimely filed. The Court found that a rule and a statute conflicted as to whether the Claimant was permitted to request an extension of time to file a Petition to Review, and that the statute did not allow for an extension of time. Despite this, the Court invoked the “unique circumstances” exception to find that since Claimant had complied with the conflicting Court Rule allowing for an extension of time to file a Petition to Review, Claimant’s Petition to Review was timely filed and could be addressed by the court. Moral of the Story: There can be exceptions to rules that are invoked in the interests of fairness.

DEPARTMENT OF LABOR REPORT

BACKGROUND

In October 2015, National Public Radio (NPR) and ProPublica did a report over the differences between the states npr_propublicaworkers’ compensation laws.  The report found significant differences in the amount and type of benefits in each states workers’ compensation system.  The report focused heavily on recent attempts by states to allow employers to opt-out of workers’ compensation.  These plans generally allow an employer to set-up a benefit system for injured workers themselves.    In particular, it focused on Oklahoma’s opt-out law – a law that was recently struck down by the Oklahoma Supreme Court as unconstitutional.  The report was very damning of these differences and deficiencies between the states’ systems.

The NPR and ProPublica report led to a letter from 10 prominent national legislators to the Secretary of the Department of Labor.  The letter was itself very critical and condemning of the deficiencies reported by NPR and ProPublica.  As a result, on October 5, 2016 the Department of Labor issued a 43-page report over the state of the patchwork of workers’ compensation laws across the country.

THE REPORT

The Department of Labor report outlines the history of the ‘grand bargain’ that is the workers’ compensation system outlining the reasons behind workers’ compensation and how we ended-up with a patchwork system of laws.  In particular, the report focuses on a national commission report from 1972 that identified 5 basic objectives for workers’ compensation programs:

  1. broad coverage of employees and work-related injuries and diseases,
  2. substantial protection against interruption of income,
  3. provision of sufficient medical care and rehabilitation services,
  4. encouragement of safety and
  5. an effective system of delivery of the benefits and services.

This national commission agreed on 19 essential recommendations to accomplish these goals.  The 19 recommendations themselves focused on six specific areas:

  1. compulsory rather than elective coverage with no exemptions for various employers or types of labor,
  2. broadening employee choice for filing claims interstate, either where the injury occurred, or where the employment was originated,
  3. full coverage for work related diseases,
  4. adequate weekly wage replacement benefits and death benefits of no less than 100% of the states average weekly wage,
  5. no arbitrary limits on the duration of benefits and
  6. full medical and rehabilitation benefits without limit or duration.

The report considers the history since 1972, recognizing that employers’ costs and insurance rates grew from 1984 to 1990.  This cost increase created political pressure to change the benefit packages.  The report cites that per $100 of payroll, costs rose to as high as $1.65, but have since dropped to $.98 per $100 of payroll in 2013.  The report goes on and attributes the decreased cost to states passing legislation to reduce the benefit packages to injured workers. In particular, the report cites to various states that have created ‘proof barriers’ to certain types of claims, such as mental impairment claims, and cites to a reduction in benefits for workers with pre-existing injuries or conditions.  The report mentions mechanisms within each state for reduction of indemnity benefit eligibility through application of apportionment, or other fault-based benefit penalties.  There is also reference to disincentives to workers to report a claim, such as drug screening after an accident or injury.  The report is also critical of restricted medical care for injured workers, through either limited medical care provider choices, or reduced reimbursement keeping medical care providers from accepting work injuries.  Finally, the report is critical of the elimination of second injury funds and other ways in which liability for certain injuries or conditions are accepted.

Overall, the Department of Labor report recognizes that some liability for benefits in the workers’ compensation system is being passed on to other programs, including Medicare, Medicaid and Social Security.  This cost shifting to other public aid programs is a primary concern for the Department of Labor.  The report provides a road-map for Federal action in the future in the form of oversight of state workers’ compensation systems, including mandatory minimums of benefits within each system to halt what the report describes as a ‘race to the bottom.’

Of interest, the report tracks each states progress in complying with the 19 core recommendations from the original national commission.  The report shows how each state was doing in 1972, 1980 and 2004.  In 1972 Colorado had complied with 10 of the 19 recommendations and had increased that to 16 of the 19 recommendations by 1980. By 2004, Colorado compliance had dropped, as is the case with most states, to 12.75.  In 2004 no state had met all 19 recommendations.

BOTTOM LINE

The report tacitly recognizes that the Obama administration is on its way out.  Regardless, the Department of Labor is clearly interested in the functioning of state workers’ compensation systems and it is doubtful that the upcoming election will change that dynamic.  Further, state interest in an opt-out structure only increases this negative attention.  Several states that have considered opt-out arrangements have dropped these proposals.  Under any circumstance, it is to be expected that there will be continued call for increased Federal oversight over workers’ compensation.

legaLKonnection Firm Newsletter – September 2016

Lee + Kinder LLC

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.
LinkedIn

In the News
PWC_GolfLee + Kinder LLC had a great showing at the 2016 Professionals in Workers’ Compensation golf tournament with 4 lawyers in attendance. Member Katherine Lee and Of Counsel Frank Cavanaugh played with different foursomes. Member Joseph Gren and Associate Matt Boatwright manned the Lee + Kinder sponsored golf hole number 17 wherein a lucky hole-in-one would win $10,000.00. Unfortunately, no one aced the hole, but a great time was had by all.

 


Victory Lap

FranNewsIn Manuel Ledoux v. Walmart, Of Counsel Fran McCracken, defeated Claimant’s assertion that he sustained a cumulative trauma injury to his right elbow and wrist through repetitive work activities. Ms. McCracken successfully persuaded the ALJ to place significant weight on the steps provided by the Medical Treatment Guidelines (MTG) to formulate causation for cumulative trauma conditions. The ALJ was not persuaded by Claimant’s expert, Dr. Rook, because he failed to explain how Claimant’s work activities fulfilled the criteria needed to develop a cumulative trauma disorder.

 

mbb-news_115x125Associate Matt Boatwright successfully won dismissal of a full contest claim in Henry Leal v. United Parcel Service and Liberty Mutual Insurance. Claimant alleged that he had suffered a low back injury from twisting while driving a work vehicle. Claimant later alleged a subsequent work-related aggravation and sought additional treatment. The ALJ found that the described mechanism of injury was not sufficiently work-related to find the claim compensable and, notwithstanding, that Claimant was not credible as a medical historian. The ALJ denied and dismissed the claim.


mccracken1

FranNewsOSHA Injury and Illness Reporting Requirements
The Occupational Safety and Health Administration (OSHA) requires many employers with ten or more employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted). OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data. Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically. Click here to continue reading this article

 


Workers’ Compensation Rules of Procedure Changes – Effective 9/14/16

extranews_red-webThe Division of Workers’ Compensation recently changed and revised several Rules. These changes became effective September 14, 2016. Employers and carriers participated in public comment, voicing concerns over this change since it will certainly create over-payments. Frank Cavanaugh of Lee + Kinder, LLC participated in these public comments on behalf of the Colorado Self-Insured Association.

Several changes are more substantive than others and track statutory amendments adopted by the legislature in the last session. For example, changes to Rule 5-5 regarding the filing of final admissions of liability will affect day-to-day claims handling. Rule 5-5 now requires the physician’s narrative report along with the M164 and measurement sheets be attached to the final admission of liability. In addition, this Rule now requires that the final admission of liability state a position on maintenance medical benefits, making specific reference to the medical report including the name of the physician and the date of the report. Failure to properly abide by these requirements may void a final admission of liability and potentially lead to imposition of penalties by the Director and/or audit issues. Rules 8-6 and 8-7 also track legislative changes over requests for a change of physician. An original treating physician’s role remains in place and does not terminate until there is an initial visit with the new physician . Further, a request for change of physician and a response to the request must now be on a specific form, WC197. Please also be aware that Rules 16 and 18 are undergoing changes and have not yet been finalized. We will apprise you of these additional changes once they occur. For a detailed review of all changes to the WCRP, please click on the link below.

Click here to read the changes to Rules 1-9


Cases You Should Know

Who said lawyers can’t do math? In Richard Hutchison v. Pine Country, Inc., W.C. No. 4-972-492 (July 29, 2016), ICAO upheld the ALJ’s Order that required Respondents to pay one third of the cost of medical and temporary disability benefits because Claimant’s knee arthritis and need for a total knee replacement was equally caused by three factors including genetics, age and weight, and work tasks. ICAO held that Section 8-42-104 (3), which states that medical and temporary disability benefits shall not be reduced based on a previous injury, did not apply because the occupational disease of osteoarthritis did not involve a “previous injury.” Instead, the disability was the aggravation of the arthritis, which was equally attributed to the three different factors.
Moral of the Story: In cases of occupational diseases, the employer’s liability for medical and indemnity benefits is limited to the extent the work activities acted on the occupational disease to create the disability.

 

A DIME called by any other name is still a DIME: In Sean F. Clark v. Mac-Make-Up Art Cosmetics, W.C. No. 4-858-859 (August 3, 2016), claimant sustained an industrial back injury on March 5, 2010. In a respondent IME, Dr. Pitizer opined the claimant was at MMI with a 10% whole person impairment rating. Afterwards, respondents sent the ATP a letter asking whether the claimant was at MMI. The ATP did not respond, and respondents filed an application for a 24-Month DIME. At the DIME, Dr. Hattem noted the ATP placed the claimant at MMI on January 28, 2014, with a 34% whole person rating. Dr. Hattem agreed with the ATP’s date of MMI, but provided claimant with a 15% impairment rating. Claimant requested a hearing to strike the DIME report as the ATP, unknown to either party, had placed claimant at MMI before the 24-Month DIME was requested. The parties stipulated that neither party received a copy of the ATP’s MMI report before the 24-Month DIME. The ALJ determined respondents complied with the 24-Month DIME requirements set forth section 8-42-107(8)(b)(II) of requesting the ATP’s opinion whether the claimant was at MMI, and another physician opining the claimant was at MMI. Therefore, the ATP’s failure to timely disclose their report that the claimant reached MMI did not serve to frustrate the DIME process. Claimant appealed. ICAO affirmed. Of importance, the Panel clarified that 14 days from the date of service of a letter to the ATP regarding MMI was a reasonable amount of time to wait before respondents could request a 24-Month DIME.
Moral of the Story: Before requesting a 24-Month DIME, respondents must request from the ATP whether the Claimant is at MMI, and have an opinion from another physician the claimant is at MMI.

 

The perpetually open case of medical only claims: In Michael Thibault v. Ronnie’s Automotive Services, W.C. No. 4-970-099, (August 2, 2016), the claimant injured his right hand and index finger. Claimant received medical treatment and was placed at MMI with no impairment. Respondents filed an FAL denying indemnity and maintenance medical benefits. The claimant did not object to the FAL. Afterwards, the claimant sought to reopen the claim. The ALJ determined the claimant’s condition worsened after the FAL was filed and reopened the claim. Respondents appealed and argued claimant failed to establish his condition had worsened, and the claimant only sought to reopen the claim because he failed to timely object to the FAL. ICAO held the matter was not closed by the FAL because claims that do not admit for temporary or permanent benefits cannot be closed through an FAL. Therefore, the claimant did not need to meet the requirements to reopen the claim, and was only required to prove the medical treatment was reasonable, necessary, and related to the industrial injury, which he proved.
Moral of the Story: WCRP 5-5(A) recently changed effective 09/14/16 to allow for final admissions on medical-only claims. The FAL should be filed with a narrative report and appropriate worksheets.

 

Race you to the DIME in under 6 months: In Carol Lopez v. The Evangelical Lutheran Good Samaritan Society and Sentry Insurance, W.C. No 4-972-365 (ICAO August 16, 2016), ICAO reiterated the Colorado Supreme Court holding that a Claimant can qualify for a Table 53 specific spine disorder and impairment rating even if the Claimant reached MMI in less than 6 months of treatment. According to the AMA Guides, a Table 53 disorder is categorized by evidence of medically documented pain and rigidity for over six months. In this case, the DIME took place over a year after Claimant’s original back injury. The DIME physician opined that Claimant reached MMI one month after the injury and provided a 15% whole person impairment rating based on the Table 53 disorder and the loss of range of motion. Respondents argued that there could not be a Table 53 diagnosis because there was no evidence of pain for at least six months prior to the date of MMI. However, ICAO held that the impairment rating was appropriate based on the date the DIME took place. It reasoned that, at the time of the DIME, there was a rateable injury pursuant to Table 53 because there had been over a year of reported pain. ICAO held that the date of MMI does not affect the analysis of whether there is a Table 53 diagnosis.
Moral of the Story: If a Claimant reaches MMI for a back injury in less than 6 months, he or she could still receive a rating for a Table 53 disorder unless the DIME is completed in less than 6 months from the date of injury.

 

It’s not the claimant’s fault he got a DUI. In Brian Iten v. Meadow Mountain Plumbing and Pinnacol Insurance, W.C. No. 4-975-033 (ICAO August 15, 2016) the claimant was employed as a plumber and his job required him to drive a company van to job sites. Claimant injured his low back at work on February 11, 2015. Respondents admitted for ongoing temporary total disability benefits since the date of injury. On February 25, 2015, claimant was arrested for a DUI while driving his personal vehicle. Claimant contested the DUI charge and ultimately entered into a plea agreement. Claimant did not lose his driver’s license as a result of the DUI. Employer terminated the claimant as company policy required employees to have valid driver’s license and that if the insurance carrier refused to cover an employee, the employee could be terminated. Respondents filed a Petition to Suspend TTD benefits due to termination for cause pursuant to C.R.S. § 8-42-105(4)(a). The employer provided conflicting testimony that the claimant was either terminated because he lost his driver’s license as a result of the DUI or the insurance carrier indicated they would not insure the claimant due to the DUI charge. The ALJ did not find the testimony of the employer witnesses credible. The ALJ found that when the claimant was able to maintain his driver’s license, he reasonably believed he complied with the employer’s driving policy. Therefore, the claimant did not commit a volitional act making him responsible for his termination. ICAO affirmed.
Moral of the Story: To successfully assert termination for cause, respondents must prove the claimant violated a specific company policy and that his or her actions were volitional, which means the employee exercised a degree of control over the circumstances resulting in the termination.

WORKERS’ COMPENSATION RULES OF PROCEDURE CHANGES Effective 9/14/16

Amendment 69 Colorado

Worker’s Compensation Rules of Procedure Changes

EFFECTIVE 9/14/16

 

 

The Division of Workers’ Compensation recently changed and revised several Rules. These changes became effective September 14, 2016. Employers and carriers participated in public comment, voicing concerns over this change since it will certainly create overpayments.  Frank Cavanaugh of Lee + Kinder, LLC participated in these public comments on behalf of the Colorado Self-Insured Association.

 

Several changes are more substantive than others and track statutory amendments adopted by the legislature in the last session.  For example, changes to Rule 5-5 regarding the filing of final admissions of liability will affect day-to-day claims handling.  Rule 5-5 now requires the physician’s narrative report, along with the M164 and measurement sheets, be attached to the final admission of liability.  In addition, this Rule now requires that the final admission of liability state a position on maintenance medical benefits, making specific reference to the medical report including the name of the physician and the date of the report.  Failure to properly abide by these requirements may void a final admission of liability and potentially lead to imposition of penalties by the Director and/or audit issues. Rules 8-6 and 8-7 also track legislative changes over requests for a change of physician.   An original treating physician’s role remains in place and does not terminate until there is an initial visit with the new physician.  Further, a request for change of physician and a response to the request must now be on a specific form, WC197. Please also be aware that Rules 16 and 18 are undergoing changes and have not yet been finalized.  We will apprise you of these additional changes once they occur.

 

  • Rule 1:

1-1 “Service” is now defined as delivery by US mail, hand delivery, facsimile or, with consent of the party being served, email.

Rule 1-2 contains language from Civil Rule of Procedure 6 over computation of time.  It outlines that you do not count the day of the act; however, you do count the last day in the time period unless it is a Saturday, Sunday or legal holiday.  If that is the case the timeframe moves to the next day.

Rule 1-4 now states that unless it is specifically allowed by the Division documents may not be filed with the division by email.

 

  • Rule 5

Rule 5-2 still requires a statement regarding liability for any claim assigned a WC number, or when the first report of injury should have been filed; however, the first report of injury has to be filed before a notice of contest will be accepted by the Division.

Rule 5-5 requires that the final admission of liability include the M164 form, the physician’s narrative report and the rating sheets.

Rule 5-5 requires that an MMI report include a position on maintenance medical and that a final admission of liability state a position on maintenance medical benefits making specific reference to medical report, including the physician’s name and date of the report.

Rule 5-5 allows for medical only claims, that have been reported to the Division with no PPD, only require the attachment of a narrative report and worksheets if they were supplied by the physician.

Rule 5-5 now requires any safety rule reduction must include the specific facts supporting the reduction on a separate sheet of paper.

 

  • Rule 6

Rule 6-1 organized the requirements for a modified duty offer.  It still requires a copy of the written inquiry to the physician over the modified duty be provided to claimant at the same time as it is provided to the physician and that the claimant be provided 3 business days from the date of the receipt of the offer to return to work or respond.

Rule 6-6 governing terminating temporary disability benefits due to confinement, no longer requires a certified copy establishing confinement.

 

  • Rule 7

Rule 7-1 governing closure of a claim through abandonment requires that a new general admission be filed in the event that there is an objection to the final admission of liability file to close the claim for abandonment.

Rule 7-1 does not allow closure of a claim for failure to prosecute to be submitted by email.

Rule 7-1 governing closure by voluntary abandonment no longer requires notification to the claimant of the reopening provisions.

 

  • Rule 8

Rule 8-6 governing when there is a transfer of medical care at claimant’s request, states that the treating relationship with the prior physician terminates upon the initial visit with the new physician.

Rule 8-7 requires a written request for change of physician, and denial of that request, be made under a specific form, WC197.

 

  • Rule 9

 

Rule 9-2 allows the addition of any prehearing issue by any party without permission within 2 business days of setting.

Rule 9-3 allows motions for consideration by the PALJ to be submitted by email.

Rule 9-9 does not allow settlement document amounts to include consideration for issues outside of the jurisdiction of the DOWC.

Rule 9-9 allows that only pro se claimants may withdraw a waiver of advisement hearing within 3 days of signing the settlement documents.

 

OSHA Injury and Illness Reporting Requirements

The Occupational Safety and Health Administration (OSHA) requires many employers with ten or oshalogomore employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted).  Employers must report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of any worker within 24 hours.  Minor injuries requiring only first aid do not need to be recorded.   This information helps employers, workers and OSHA evaluate the safety of a workplace, understand workplace hazards and prevent future workplace injuries and illnesses.

OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data.  Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically.  Some of the electronically submitted data will then be posted to OSHA’s website.  OSHA believes that this public disclosure of employer information will “nudge” employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.  The amount of data submitted and publically posted will vary depending on the size of the company and the type of the industry.

The expanded Rule prohibits employers from “discouraging” workers from reporting an injury or illness.  The final Rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.   Originally slated to take effect August 10, 2016, OSHA is delaying enforcement of the anti-retaliation provisions in its new Injury and Illness Record-keeping Rule to provide education and outreach to employers.  Enforcement of the anti-retaliation provisions of the Rule will now begin November 1, 2016 and the record-keeping rule takes effect on January 1, 2017.

You might feel confident that your workplace is already in compliance with the “anti-retaliation” provisions of OSHA’s Injury and Illness Recordkeeping Rule.  You may even be asking yourself, “How is this a change in the law?  Isn’t it already against the law to retaliate against an employee for reporting a workplace injury or illness?”  While section 11(c) of the Occupational Safety and Health Act prohibits any person from discharging or discriminating against an employee for reporting an injury, illness or fatality, OSHA may not act under that section unless the employee files a complaint within 30 days of the retaliation.  OSHA believes the new Rule is vital as it gives OSHA the “ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves”. Further, the issues under the expanded rule are more complicated than they first appear. You could be inadvertently violating provisions of the rule and unexpectedly land yourself in hot water with OSHA.

Here are some common workplace safety policies that could result in violations of OSHA’s new anti-retaliation provisions:

  1. Mandatory post-accident drug testing programs: The OSHA rule specifically recommends against “blanket post-injury” drug testing policies. However, OSHA also specifically indicates the rule does not prohibit post-injury drug testing of employees.  It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.  That being said, in connection with the rule, OSHA stated, “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.”  Therefore, OSHA’s position on blanket post-injury drug testing appears to be equivocal and leaves employers without clear direction.  OSHA’s recommendation against blanket post-injury drug testing may prove particularly problematic, given that Colorado’s Worker’s Compensation Act clearly contemplates post-accident drug and alcohol screening in light of C.R.S. sections 8-42-112, (“safety rule violation”), 8-42-112.5, (the “intoxication defense”), 8-42-103(1)(g) and 8-42-105(4)(a), (the “termination statutes”).  For employers with “zero tolerance” policies, a positive post-accident drug or alcohol test could result in the termination of an injured employee’s employment, reducing their temporary indemnity benefits to zero.  If the employer proves either an intoxication defense or safety rule violation, the injured employee’s indemnity benefits, temporary and permanent, would be reduced by 50 percent.  While these concerns may not directly impact the course of worker’s compensation litigation, they could give rise to employment litigation outside the workers’ compensation system, particularly in light of OSHA’s independent ability to raise the retaliation issue under the expanded rule, without the need for the worker to file a complaint.

 

  1. Providing incentives exclusively to employees that have not been involved in workplace incidents or accidents: While OSHA indicates the rule does not prohibit incentive programs, it does state employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. For example, if you are trying to minimize injury by providing cash bonuses, paid time-off, employer-sponsored parties, or other compensation, for a certain number of “injury-free” days, or “no lost time”, you could be in violation of the rule. Unfortunately, OSHA’s alternative direction is vague at best.    OSHA recommends incentive programs that “encourage safe work practices” and “promote safety-related activities”.

 

  1. If injured, off-work employees are excluded from workplace events, which could be considered a benefit of employment, such as luncheons, parties, football pools, birthday celebrations, or other work-related events or functions.

OSHA’s new Injury or Illness and Record-keeping Rule is complicated and could result in a quagmire of retaliation and perceived retaliation claims.  Your current safety policy and procedures should be reviewed for compliance with the expanded rule.  If you have questions about the rule, or whether your policies are in compliance, please contact us.

legaLKonnection Firm Newsletter – August 2016

Lee + Kinder LLCThank 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.

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In the News


Congratulations to Member Katherine Lee. Ms. Lee has been named a Lawyer of the Year by U.S. News and World Report in the field of Workers’ Compensation Employers for 2017.

 

 

Lee + Kinder LLC recently attended the CDLA Annual Conference in Snowmass, CO. Of Counsel Frank Cavanaugh, as Vice Chair for the CDLA workers’ compensation section, helped arrange the speakers for the conference. Mr. Cavanaugh presented, along with co-speakers Katherine Otto and Denise Canada, to a group of workers’ compensation professionals and general liability professionals regarding the interplay between workers’ compensation and general liability. Member Joshua Brown also presented to the employment law group regarding work place bullying and potential liabilities that may exist for employers.

 


Victory Lap

Member Karen Gail Treece successfully defended against Claimant’s appeal to the Colorado Court of Appeals in Satchell v. Coach America (Colo. App. Aug. 11, 2016) (nsfop). Claimant sought review of an ICAO order affirming the order of an ALJ, which denied Claimant’s low back claim. Claimant asked the appellate court to “give due consideration to” opinions from two doctors, and she sought authorization for an S1 selective nerve root block. Claimant argued the DIME physician missed the fact that she complained of back pain. The Court of Appeals interpreted Claimant’s contentions as challenges to the ALJ’s factual finding that the back condition was not work related and the ALJ’s conclusion that Claimant had not overcome the DIME’s opinion on causation of back pain. The Court of Appeals found substantial evidence supported the ALJ’s findings and affirmed ICAO’s order.

 

In Sandy Figueroa v. Walmart Stores, Of Counsel Fran McCracken succeeded in obtaining an order permitting Respondents to withdraw a Final Admission of Liability admitting for maintenance medical benefits. Claimant suffered an admitted neck injury and subsequently suffered from pain disorder due to psychological factors. Once at MMI, the parties reached a settlement and Respondents filed an FAL admitting in part for reasonably necessary maintenance medical benefits, including pain medications. Several days later, Claimant suffered an unrelated stroke. During her recovery from the stroke, Claimant ceased taking her pain medications, and reported that her work-related pain resolved. Respondents sought to withdraw the admission for future maintenance medical benefits, and ALJ Cannici granted Respondents’ request.

 

In Richard Rivera v. Fedex Freight Incorporated, Of Counsel John Abraham obtained an order allowing Respondents to withdraw a Final Admission of Liability admitting for reasonable, necessary, and related maintenance medical benefits. Claimant’s maintenance medical treatment consisted of narcotic medication. Mr. Abraham utilized expert medical opinions to demonstrate that these medications were not improving Claimant’s overall condition. Mr. Abraham successfully proved that the medication use contributed to Claimant’s lack of motivation to improve his condition and directly compromised his ability to function. Thus, there was no objective evidence supporting continued opiate use. The judge allowed Respondents to withdraw their admission of future maintenance medical benefits.


Investigation of Outstanding Medicaid Liens in Workers’ Compensation Claims
The Colorado Department of Health Care Policy and Financing, through its Medicaid program, is responsible for collection of outstanding liens for the state. This department is in charge of disbursement of state funds to indigent citizens in need of medical benefits. Oftentimes, a claimant will pursue medical benefits through the department if they qualify. This may be true even when a claimant has a current workers’ compensation claim on file with the Division of Labor. Qualification for a particular program, through the state funded Medicaid partnerships, involves several criteria. If a citizen qualifies, benefits may be paid regardless of the current status of a workers’ compensation claim. The Medicaid department will assert its lien, (referred to as a “recovery right”), against the claimant and the workers’ compensation claim. Click here to continue reading this article

 


Cases You Should Know

There’s a good chance dog grooming is not an essential service: In Terryl Robinson v. Chartis Claims Inc., W.C. No. 4-827-378 (July 15, 2016), respondents appealed a decision of the ALJ which held them liable for essential services of daily living for 28 hours per week. Respondents argued the order was fatally ambiguous and most of the potential services were not intended to cure or relieve the effects of the work injury. ICAO found the ALJ’s weighing of evidence and legal conclusions inadequate to justify authorization of the activities and remanded the case for additional findings. ICAO instructed the ALJ to make findings as to which activities were authorized and whether each activity either cures or relieves the effects of the injury or is incidental to obtaining medical treatment.
Moral of the Story: Seek specificity when dealing with orders for essential services.

 

Just because the ALJ doesn’t know what it is, doesn’t make it a neutral risk: In Sanchez v. ICAO, et al. (Colo. App. Mar. 17, 2016) (nsfop), claimant appealed an ICAO order which affirmed the ALJ’s order denying and dismissing his claim for benefits. Claimant argued that because the ALJ did not explicitly find his knee injury attributable to a preexisting condition, the injury fell into the “neutral risk” category of injuries and was compensable as a matter of law per City of Brighton. The Colorado Court of Appeals found claimant’s injury compensable but disagreed with claimant’s rationale. The Court explained it did not read City of Brighton as issuing a mandate that an ALJ must identify the precise cause of an alleged workers’ compensation injury or else that injury automatically falls into the neutral risk category.
Moral of the Story: Where an ALJ does not explicitly find a cause of injury, the injury may qualify as a neutral risk; however, an ALJ’s failure to identify the cause of injury does not automatically qualify the injury as a neutral risk. The court should still engage in a fact specific analysis as to whether a neutral risk is present.

 

Denial of all benefits is a denial of one benefit: In Trujillo v. Industrial Claim Appeals Office (Colo. App. June 23, 2016), claimant sought review of an ICAO order affirming denial and dismissal of his claim. On appeal, the parties agreed that the ALJ’s order was not final because it addressed only compensability and did not expressly deny a specific benefit. The Colorado Court of Appeals held the ALJ’s finding that the claim was not compensable had the practical effect of denying claimant all benefits. The Court cited prior case law which treated findings of no compensability as final and reviewable because such decisions necessarily deny a claimant’s request for benefits and noted that in the present claim, claimant requested TTD, TPD, and medical benefits.
Moral of the Story: When specific benefits are requested, denial of compensability counts as denial of a specific benefit for purposes of appeal.

 

You can’t appeal death: In Munoz Botello v. Evergreen Caissons, Inc., W.C. No. 4-692-974-01 (June 29, 2016), respondents appealed an ALJ’s order that found there was a compensable death. The ALJ did not specifically award death benefits, but instead instructed the parties to schedule another hearing to determine the allocation of death benefits. ICAO refused to review the decision on the merits, noting that the ALJ had not yet awarded or denied specific benefits.
Moral of the story: A finding of a compensable death, without a specific award or denial of death benefits, is not an appealable decision.

 

Claimant “signs” his way to the exit: In Zvolanek v. Blue Canyon Bar & Grill, W.C. No. 4-859-506-02 (July 13, 2016), pro se claimant failed to provide signed releases or respond to discovery. The ALJ issued an order compelling the claimant to produce discovery answers and signed releases, and prohibited the claimant from objecting. The claimant eventually responded to the discovery by objecting on the basis that the requests “created prejudice” and were unfair and meant to harass the claimant. The ALJ then granted respondents’ motion to deny and dismiss the claim, noting the claimant willfully violated the discovery order. Although the claimant argued he was unable to answer the discovery without an American Sign Language interpreter, the ALJ found claimant was in fact capable of answering the discovery, noting that the claimant filed his prior motions and pleadings without assistance from an interpreter.
Moral of the story: Refusal to sign releases and disregard for a discovery order can result in claim dismissal.

 

Bait and switch — subcontractor style: In Pinnacol Assurance v. Hoff, 2016 CO 53 (Colo. Aug. 1, 2016), an owner and contractor hired a subcontractor to perform roofing work. The subcontractor showed the contractor a copy of a certificate of workers’ compensation insurance. The subcontractor’s insurance policy lapsed before the claimant’s injury, but neither the subcontractor nor the insurer provided notice to the contractor of the lapse of coverage. The insurer denied coverage for the injury, and the owner and contractor were then liable as statutory employers. The contractor argued the insurer should be estopped from denying coverage, relying on the fact that the insurer did not provide notice to the contractor of the coverage lapse. The Colorado Supreme Court rejected the contractor’s argument, noting that the insurer had no obligation to notify the contractor of the lapse of coverage of the subcontractor’s policy.
Moral of the story: A subcontractor’s initial showing of a certificate of insurance does not guarantee immunity from statutory employer status.

 

Use it or lose it: In Smith v. NPC International, W.C. No. 4-933-753-02 (July 15, 2016), the ALJ’s Order Granting Respondents’ Motion for Summary Judgment to dismiss claimant’s request for penalties was affirmed by ICAO. Claimant sought penalties for respondents’ alleged failure to timely file General and Final Admissions of Liability. Respondents argued that the issue of penalties was closed because claimant failed to object and file an application on the issue of penalties within 30 days of filing the FAL. The ALJ granted respondents’ motion, finding the issues were closed pursuant to C.R.S. §8-43-203(2)(c). Pursuant to that statute, an uncontested FAL automatically closes the case as to issues admitted in the final admission. Upon review, the panel noted the following language in the FAL: “Any and all benefits and penalties not specifically admitted to are hereby denied.” ICAO held that this language effectively closed the issue of penalties.
Moral of the story: Respondents should draft FALs with specific language noting all benefits not specifically admitted are denied because a claimant’s failure to object to the FAL results in closure of the claim on the FAL as written.

Always put it in writing: In Turner v. Chipotle Mexican Grill, W.C. No. 4-893-631-06 (June 30, 2016), respondents sought review of the ALJ’s order which struck their 24-Month DIME and denied and dismissed their request for recovery of an overpayment. The ALJ struck the 24-Month DIME, stating that the plain language of the statute, C.R.S. §8-42-107(8)(b)(ii)(B), required the moving party to inquire in writing from an ATP as to whether a claimant reached MMI. The judge specifically found that asking an ATP to address MMI in writing is a condition precedent to obtaining a 24-month DIME. The case was remanded for review to ensure that the ALJ applied the correct standard when determining whether respondents complied with the requirement of a written request to the ATP.
Moral of the story: A party must request an ATP’s opinion regarding MMI in writing before requesting a 24-month DIME.

 

The prior DIME said 0% and he meant 0%: In Pederson v. ICAO, et al. (Colo. App. June 16, 2016) (nsfop), the Colorado Court of Appeals was asked to address, pursuant to C.R.S. §8-42-104, whether a 0% impairment rating issued in a prior injury for a DIME against one employer bears on the apportionment of a later claim against a second employer. The Colorado Court of Appeals set aside the finding of ICAO and remanded the case with directions for the ALJ to recalculate Claimant’s award without any apportionment. The Court of Appeals noted that Claimant had received a 0% impairment rating by a DIME for a prior injury to the same body part. However, the DIME physician in the second claim disagreed with that determination for the prior injury and applied apportionment based on his own findings of a different impairment rating for the prior injury. The Court reasoned that although the DIME physician for the second employer’s injury was entitled to provide his medical opinion on the prior injury, his opinion did not meet the legal criteria for modification of an award based on a prior permanent medical impairment to the same body part. His rating should have been based on the original physician’s finding in the prior claim, which was 0% impairment with no applicable apportionment.
Moral of the story: The impairment rating findings of a DIME physician on a prior injury cannot be overturned without clear and convincing evidence and a mere difference in medical opinion is not enough to do so.

Investigation of Outstanding Medicaid Liens in Workers’ Compensation Claims

The Colorado Department of Health Care Policy and Financing, through its Medicaid program, is responsible hcpffor collection of outstanding liens for the state.   This department is in charge of disbursement of state funds to indigent citizens in need of medical benefits.  Oftentimes, a claimant will pursue medical benefits through the department if they qualify.   This may be true even when a claimant has a current workers’ compensation claim on file with the Division of Labor.  Qualification for a particular program, through the state funded Medicaid partnerships, involves several criteria.  If a citizen qualifies, benefits may be paid regardless of the current status of a workers’ compensation claim.   The Medicaid department will assert its lien, (referred to as a “recovery right”), against the claimant and the workers’ compensation claim.

A lien usually arises at one of two points in the workers’ compensation litigation.  The first such instance occurs when a claim is denied by the carrier and the claimant chooses to pursue medical benefits through the applicable Medicaid programs.   These claims usually involve substantial forms of medical treatment, (i.e. surgeries), in which time is of the essence and a claimant cannot wait for resolution of compensability and causation issues in their workers’ compensation claims.  The claimant may choose to obtain the surgery through the authorized treating physicians or through their own personal care physician.  Should the claim be found compensable by an ALJ, it is important to distinguish between the benefits provided and through which physicians the claimant received treatment.   Regardless of the legal arguments to be made, Medicaid will assert its right of recovery against the benefits paid and will await resolution of the claim before doing so.

The second such instance occurs when a claimant has received medical benefits through the state funded Medicaid program and the treating physician finds a particular treatment to either be related to the claim, (or not related to the claim). The benefits are disputed through the workers’ compensation process, and the claimant obtains treatment without waiting for resolution of the workers’ compensation issues.   In this example, the opinions from the treating physicians will be important in determining liability for the outstanding lien.  If a treating physician deems the medical benefits to be related to the claim, and the claim is resolved through a settlement or other means, the carrier will be liable for payment of the lien.   Recovery of the lien cannot be shifted by the parties in the workers’ compensation claim.  However, if the treating physicians deemed the treatment to be non-work related, the carrier may be able to dismiss any causes of action by providing the opinions of the physicians to the proper investigative authorities within the department.

 

Legislative Authority

Colorado’s Medicaid programs derive their authority from one main portion of section 25.5 of the Department of Health Care Policy and Financing Act.  Section 25.5-4-301(5)(a), C.R.S. states, “When the state department has furnished medical assistance to or on behalf of a recipient pursuant to the provisions of this article, and articles 5 and 6 of this title, for which a third party is liable, the state department shall have an automatic statutory lien for all such medical assistance. The state department’s lien shall be against any judgment, award, or settlement in a suit or claim against such third party and shall be in an amount that shall be the fullest extent allowed by federal law as applicable in this state, but not to exceed the amount of the medical assistance provided.”

Additionally, section 25.5-4-301, C.R.S. states, “When the applicant or recipient, or his or her guardian, executor, administrator, or other appropriate representative, brings an action or asserts a claim against any third party, such person shall give to the state department written notice of the action or claim by personal service or certified mail within fifteen days after filing the action or asserting the claim. Failure to comply with this subsection (6) shall make the recipient, legal guardian, executor, administrator, attorney, or other representative liable for the entire amount of medical assistance furnished to or on behalf of the recipient for the injuries that gave rise to the action or claim. The state department may, after thirty days’ written notice to such person, enforce its rights under subsection (5) of this section and this subsection (6) in the district court of the city and county of Denver; except that liability of a person other than the recipient shall exist only if such person had knowledge that the recipient had received medical assistance or if excusable neglect is found by the court. The court shall award the state department its costs and attorney fees incurred in the prosecution of any such action.”   (Emphasis added)

Lastly, section 25.5-4-301(5)(b) states, “No judgment, award, or settlement in any action or claim by a recipient to recover damages for injuries, where the state department has a lien, shall be satisfied without first satisfying the state department’s lien. Failure by any party to the judgment, award, or settlement to comply with this section shall make each such party liable for the full amount of medical assistance furnished to or on behalf of the recipient for the injuries that are the subject of the judgment, award, or settlement.”

These three portions of the statute are important to remember prior to resolving any workers’ compensation claim.  Specifically, if the carrier or the insured has any knowledge that Medicaid paid for any potential treatment in connection with the workers’ compensation claim, the carrier must investigate and contact the Department of Health Care Policy and Financing to inquire about any potential liens.  The duty to investigate is not on Medicaid or the State of Colorado, but rather the duty rests with each party to the workers’ compensation claim.   Failure to notify Medicaid prior to resolution of the workers’ compensation claims will cause the outstanding balance to become due and owing in full unless a separate argument can be made regarding the medical benefits provided to the claimant recipient.  This is the case regardless of any language placed into any agreements, stipulations, settlements, or the like that are agreed upon between the parties.

 

Recommendations

The carrier and the Employer, (either through counsel or individually), should always investigate whether any Medicaid liens exist at the state level.   Outstanding Medicaid liens differ from other liens due to the duty imposed on the carrier through statute.  Failure to investigate any outstanding liens could lead to potential reopening of claims long after they have been resolved.  Investigation could happen in a number of ways.  The simplest way involves contacting the department in writing and providing the identifying information of the claimant to search for any liens.  The department will usually respond within a few days notifying the carrier of any issues.    However, this manner may be problematic for adjusters especially in light of the volume of claims at any given time.  If counsel is assigned, the inquiry can be made by email or through general discovery pending on a litigated claim.  Discovery responses from the claimant can reveal receipt of any benefits through Medicaid or otherwise.

For more information about specific Medicaid issues on any workers’ compensation claims and recovery of liens, please feel free to contact us.   References about the Colorado Medicaid programs can be found here.

legaLKonnection Firm Newsletter – July 2016

Lee + Kinder LLCThank 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.

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In the News
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Congratulations to Joseph W. Gren, the latest Member of Lee + Kinder LLC

 

Mr. Gren began working at Lee + Kinder LLC in 2009 and has since practiced in the areas of workers’ compensation, subrogation recovery, and premises and auto liability.

Mr. Gren is licensed to practice law in Colorado and Arizona.

 

 

 

 


Victory Lap

In Richard Ramirez v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended against a claim alleging aggravation of a pre-existing low back condition. While ALJ Nemecheck credited the claimant’s testimony, he noted that the claimant’s MRIs and X-rays from before and after the alleged accident showed no objective evidence of worsening. He further noted that the claimant was treated for his pre-existing condition until just before his alleged accident, and that the post-accident treatment represented a mere continuation of his pre-accident treatment regimen. ALJ Nemecheck denied and dismissed the claim.

 

Joseph Gren MemberMember Joseph W. Gren and Associate Daniel Mowrey were successful in a full-contest hearing in Rafael Rodriguez v. Evraz, Inc. NA. The claim involved an employee who alleged injuries to his head, shoulder, back, neck, and lungs as a result of an explosion at work. ALJ Lamphere found that the claimant could not establish that he sustained an injury to his head, neck, or shoulder. Furthermore, Mr. Gren utilized expert medical witness testimony and employer witness testimony to present evidence that Claimant’s mechanism of injury could not have occurred the way he claimed it to have occurred. ALJ Lamphere found the lung claim to be compensable as the explosion did occur causing exposure to dust. ALJ Lamphere denied all indemnity benefits and medical benefits with the exception of the emergency room visit to address Claimant’s lung issue. ALJ Lamphere denied and dismissed the remainder of the claim.

 

CupOJoe_MEM

 

 

 

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A Painful Step in Addressing the Opioid Epidemic: An Overview of the 2016 CDC Guidelines

The growing epidemic of chronic opioid use and addiction, and its consequences, permeates the American medical and legal landscape. Since the spike in the use of ubiquitous pain medications in the late 1990s, there has been little actual oversight in the health care industry to regulate the prescription of these highly addicting drugs. In March 2016, the Center for Disease Control (CDC) released new guidelines concerning opioid pain prescriptions.
Click here to continue reading this article

 

 


Cases You Should Know

Let It Be, Let It Be: As announced in a recent L + K LLC Victory Lap, the Colorado Court of Appeals recently released the decision in Victor England v. AmeriGas Propane and Indemnity Insurance Company of North America, W.C. No. 4-907-349 (Colo. App. 2016), awaiting publication. The Court of Appeals overturned an ALJ’s decision to reopen a settled claim on the basis of mutual mistake of fact. In short, Claimant asserted a mutual mistake of fact existed at the time of settlement because the parties were unaware of an existing fracture to the injured body part at the time of settlement, prior to MMI. Upon learning of the fracture, Claimant sought to reopen due to mutual error or mistake. Both the ALJ and ICAO permitted reopening on this basis. Upon appeal, the Court of Appeals overturned. The Court held that, upon entering into a full and final settlement, the parties were agreeing to resolve all issues, known or unknown at that time, and that a claimant knowingly waives his rights to future benefits in consideration of the agreement.

Moral of the Story: Full and final settlements are exactly what the title implies: Full and Final.

 

Don’t Spend What You Don’t Have: In another recently released L + K LLC victory, Toby Heffnerv. Wal-Mart Stores, Inc., et al. W.C. No. 4-869-417 (November 13, 2015), Claimant sought review of an order that found Respondents were entitled to recover an overpayment of $13,721.35 in TTD benefits per C.R.S. §§8-40-201(15.5) and 8-42-113.5. Claimant was ordered to pay it back at a rate of $250 per month, based on his AWW of $1,822.88. The only issue raised by Claimant was the rate of recovery of the overpayment (i.e. how much Claimant had to pay back per month). ICAO agreed with Respondents’ position that the ordered repayment rate was reasonable because it was appropriately based on the AWW and the amount of time it would take to have the recovery paid back, Claimant was still employed, and Claimant had offered no evidence of financial hardship due to the existing rate.

Moral of the Story: Over-payments do exist and can be collected directly from claimants at a rate proportionally reasonable to the admitted AWW at the time of injury.

 

Long Arm of the Law: In Youngquist Brothers v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), the Colorado Court of Appeals addressed when Colorado has jurisdiction to award benefits for an out-of-state work-related injury. The Respondent was a North Dakota employer with no contacts in the state of Colorado aside from the hiring of Colorado residents. The employer hired a Colorado resident who was injured in North Dakota within days of being hired. Section 8-41-204, C.R.S. sets fourth that Colorado has jurisdiction to award benefits for an out-of-state work-related injury if an employee was (1) hired or regularly employed in Colorado and (2) injured within six months of leaving Colorado. The Court noted that this provision does not require an employer hiring a Colorado employee to have any other contacts with Colorado.

Moral of the Story: If an employer hires Colorado residents, regardless of whether any work will be performed in Colorado, they should obtain workers’ compensation insurance in Colorado.

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