In the News
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.
Member 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.
Member 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.
Of 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.
In 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.
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.
Of 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.
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.