legaLKonnection Firm Newsletter – November 2014

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.

In the News

Our growing team of highly capable counsel are here to provide legal expertise in Workers’ Compensation Defense as well as:
* Employment Defense  * General Liability
* Health Insurance Provider Recovery * Insurance Defense
* Medicare Set Asides  * Subrogation

Victory Lap

Of Counsel Sheila Toborg and Associate Angela Lavery successfully defended against Claimant’s requests for massage therapy and a massage chair as maintenance benefits in Joseph Dickerson v. Evraz Inc. NA (formerly known as Oregon Steel Mills). Ms. Toborg presented credible testimony from the Respondent-IME physician that the requests for massage therapy and massage chair were not reasonable or necessary post-MMI treatment.  The IME physician noted that Claimant’s condition was a chronic condition and that passive therapy, such as massage, was not indicated. The IME physician also testified that Claimant had not demonstrated any functional limitations, other than subjective complaints, to support the basis for the request.  The Administrative Law Judge (ALJ) denied Claimant’s requests for massage therapy and a massage chair.Of Counsel Joseph Gren defeated Claimant’s Motion for Summary Judgment in Robert Niziolek v. United Parcel Service and Liberty Mutual Insurance. Claimant moved for Summary Judgment to strike the 24-month DIME opinion, due to the fact that Claimant’s ATP had placed Claimant at MMI two weeks before the DIME appointment.  Claimant’s ATP had placed Claimant at MMI prior to the occurrence of the 24-month DIME, but subsequent to the request of the 24-month DIME by Respondents. Claimant argued that the statute required Respondents to respond within 30 days to the ATP’s finding of MMI. Claimant further argued that Respondents had failed to timely request a new DIME within 30 days of the placement of Claimant at MMI by the ATP, and consequently the impairment rating provided by the ATP was binding per C.R.S. §§8-42-107.2(2)(b) and 8-43-107(8)(b)(I). The ALJ agreed with Mr. Gren that Respondents had timely, and appropriately, requested a 24-month DIME under C.R.S. §8-42-107(8)(b)(II), to contest the ATP’s failure to place Claimant at MMI.  The ALJ interpreted the Act consistent with Mr. Gren’s argument that the Act gives the DIME jurisdiction over MMI and impairment after the party properly requests a DIME. The ALJ found that Claimant was not entitled to strike the 24-month DIME opinion and the ATP opinion had no bearing on the DIME process.Associate Matt Boatwright successfully overcame the DIME opinion inShaner v. United Parcel Service and Liberty Mutual Insurance, WC Nos. 4-887-012 & 4-904-678.   The DIME significantly increased Claimant’s impairment rating, which the DIME physician later reduced due to an evident miscalculation under the appropriate provisions of the AMA Guidelines, 3rd ed., rev. Notwithstanding, the ALJ found that the DIME, which still significantly increased Claimant’s impairment rating, contained multiple errors and defects.  These defects included an insufficient review of the pertinent medical records, an apparent confusion as to the left and right extremities in various areas of the report, and some marked differences in range of motion measurements with those of the authorized physician and Respondent’s IME physician.  Mr. Boatwright argued that, given the multiple shortcomings in the report, the DIME physician’s range of motion measurements should not be accepted as valid.  The ALJ agreed and held that the impairment rating of the authorized treating physician was binding to the benefit of Respondents.

Cases You Should Know
You think you were disabled before?  Just wait until you work here… Part Two: Sorting out complex medical conditions for PTD claims based on persuasiveness of medical opinions.    In Karen Apprill v. Kroeger, Self-Insured, W. C. 4-850-029-03, (ICAO, October 24, 2014), Claimant maintained that she was permanently and totally disabled and unable to earn wages from her work-related lower back injury of February 2011. However, before and after her work-related injury, Claimant had three non-work-related leaves of absence due to physical ailments, including a total knee replacement and stroke in 2013. Respondents presented medical evidence supporting their position that although Claimant was unable to work, it was due to her myriad of medical conditions other than the work-related injury. Claimant’s ATP had placed Claimant at MMI and noted her physical limitations from a FCE report.  In the MMI report, the ATP failed to distinguish whether her physical limitations were related to her work-related injury or her other medical conditions.  However, an IME doctor had specifically noted in his report that Claimant’s physical limitations not allowing her to perform employment duties were related to her knee condition, and other non-work-related conditions, rather than the work-related back injury, which he opined had resolved. The Court found that since the ATP had failed to distinguish which of Claimant’s medical conditions created her inability to work, the IME report and opinion was more persuasive and therefore denied Claimant’s claim for PTD benefits.In Joseph Krendel v. Hulcher Services and American Home Assurance, W.C. No. 4-744-188-03, (ICAO, November 4, 2014), Claimant sustained a work-related low back injury in 2007 which required multiple surgeries.  Claimant’s medical condition continued to deteriorate and he sought PTD benefits and post-MMI medical benefits, including treatment for a pulmonary ailment. Claimant was awarded PTD benefits. Claimant’s medical records noted that Claimant had no prior pulmonary conditions until his second back surgery in 2010, but had developed a respiratory infection and pneumonia subsequent to and as a result of the surgery.  Claimant required supplemental oxygen and continued to use it, even after the postoperative infection resolved. Claimant underwent an 18-month DIME in 2011 which found him at MMI and opined that Claimant’s post-surgery infection had long resolved. However, an ATP later noted that Claimant’s pulmonary condition was multifactorial: related to obesity-related hypoventilation, use of chronic pain medication, and sleep apnea.  Based upon substantial medical evidence, the ALJ concluded that the pulmonary symptoms were secondary to the low back surgery.  As a result, the pulmonary treatment was found to be related to the workplace injury.Be your own boss (with the income to prove it): AWW Fair Calculation and Independent Contractors. In Osman v. Colorado Cab Company and Old Republic Insurance, W.C. 4-905-869-01, (ICAO, October 30, 2104), Claimant sought review of an AWW calculation and argued that the ALJ abused his discretion by deducting Claimant’s business expenses from his gross earnings in order to determine his AWW. The ALJ found that the Claimant, a taxi cab driver, executed a contract with Colorado Cab Company (Colorado Cab). Pursuant to this contract, the Claimant indefinitely agreed to lease a taxi cab from Colorado Cab for $700.00 per week. However, the Claimant also was responsible for additional costs, penalties, and fees assessed by Colorado Cab; including credit card and other processing fees, costs associated with accidents and repairs, fees and penalties associated with accidents, pass through of traffic and parking tickets, and other items. The ALJ found that the Claimant did not earn a salary from the Respondent employer because he was an independent contractor. Instead, the Claimant earned income by collecting fares from customers. Additionally, the parties had stipulated to Claimant’s gross income and business expenses, which left $162.56 remaining in gross income. The ALJ concluded that the Claimant worked as an independent contractor for Colorado Cab and he earned an AWW of $162.56. In making his AWW determination, the ALJ deducted the Claimant’s business expenses from his gross earnings, and determined that this was a fair approximation of his wage loss and diminished earning capacity.

The Tax Man Cometh: Attacking credibility by presenting evidence of a failure to file income tax returns. This case comes from the Court of Appeals and may have implications for use of evidence in workers’ compensation claims. In Leaf v. Beihoffer, 2014 WL 4472746 (Colo. App. 2014), the Colorado Court of Appeals held that failure to file income taxes for several years can be used as impeachment evidence to demonstrate that an individual claiming personal injury is not credible.

legaLKonnection Firm Newsletter – October 2014

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.

In the News

The Division of Workers’ Compensation recently proposed a number of significant changes to Rule 5 of the Division’s Rules of Procedure [linked to the current Rule 5] pertaining to claims handling. Mr. Joseph Gren testified on behalf of the Colorado Defense Lawyers Association during the October 15, 2014 rules hearing at the Division of Workers’ Compensation.  Mr. Gren testified that several of the proposed changes could adversely impact insurance carriers and employers, and may cause unnecessary confusion in daily claims handling practices. The proposed changes are currently under consideration with the Director of the Division. After the Division promulgates the rule changes, we will be available to advise you on how the modifications affect daily claims administration.Additionally, Mr. Frank Cavanaugh lectured on the legislative changes to the Workers’ Compensation Act during the Colorado Bar Associations’ Annual Fall Update. Mr. Cavanaugh’s lecture was well attended by attorneys and workers’ compensation professionals representing injured workers, employers, and insurance carriers. If you have questions, concerns, or curiosity about the administrative or legislative changes to the workers’ compensation system, please do not hesitate to contact Mr. Cavanaugh or any of the attorneys at Lee + Kinder.

Thank you to those who participated in the Professionals in Worker’s Compensation (PWC) Golf Tournament at Raccoon Creek Course this year. Lee + Kinder was proud to sponsor the event and were soundly represented by Joshua Brown, Frank Cavanaugh, Jessica Melson, and Kelsey Bowers.


Victory Lap

Of Counsel Joseph Gren successfully defeated Claimant’s claim for workers’ compensation benefits in the matter of George Tomley v. United Parcel Service. Claimant reported a low back injury the day in which he alleged the injury to have occurred.  Even in light of the immediate reporting, Mr. Gren presented credible testimonial evidence that the employer immediately investigated the Claimant’s claim, and based upon the testimony, the ALJ determined that the injury more likely than not did not occur. Mr. Gren presented further evidence that the Claimant’s testimony about his medical history and his capacity to work was not credible. The ALJ additionally credited Respondents’ IME physician that no injury occurred as reported by the Claimant.Of Counsel Frank Cavanaugh was recently successful in a Motion for Summary Judgment in Paddock v. Einstein Noah Restaurant Group, a claim involving attorney’s fees sought by Claimant against Respondents.  Respondents settled Claimant’s workers’ compensation case.  The Claimant subsequently filed a negligence law suit in District Court against the third party who caused the Claimant’s injuries.  Respondents did not intervene in the case.  Rather, Respondents sold the subrogation lien to the insurer of the defendant in the third party case.  The Claimant proceeded to a jury trial whereby the jury denied the Claimant an award of damages.  Claimant filed an Application for Hearing seeking reimbursement, on an allocated basis, for costs and attorney fees incurred in the failed third party case.  Respondents moved for summary judgment against the Claimant, citing that Claimant’s workers’ compensation case settled and that the ALJ had no jurisdiction over this issue.  In addition, Claimant had not paid any fees or costs, although he was liable to pay them under the fee agreement with the attorney.  The ALJ granted Respondents’ Motion.  Attorney fees requested by Respondents for Claimant’s setting of a hearing on an unripe hearing issue is still under consideration.

Of Counsel Sheila Toborg successfully defended Respondents’ interests in a full contest hearing in Harold Wilson v. ADP Totalsource and New Hampshire Insurance.  Ms. Toborg presented evidence in the form of hearing testimony and an IME report from Dr. Allison Fall demonstrating that there was no objective evidence that Claimant suffered from “hot tub lung disease” related to his employment as a maintenance technician.  Although the Claimant provided medical evidence contrary to Dr. Fall, the ALJ found Respondents’ witness testimony and evidence more persuasive that Claimant likely suffered from hypersensitivity pneumonitis, unrelated to his employment.  Claimant’s claim for compensation was denied and dismissed.Cases You Should Know

Penny for your thoughts: Orders that do not provide/deny benefits are not subject to review.  In Stephanie Bishop v. City of Thornton, W.C. No. 4-830-904-02 (ICAO, March 26, 2014), the ICAO reaffirmed established case law that orders which do not require the payments of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review.  See Ortiz v. Industrial Claim Appeals, 81 P.3d 1110 (Colo. App. 2003).  Claimant suffered a compensable injury in 2010, and petitioned to reopen her claim in 2013, arguing that her condition had worsened since the date of MMI.  A hearing was held on this issue, and the ALJ found that Claimant’s symptoms and disabilities were not related to her 2010 work injury, and denied the Petition to Reopen.  The ICAO held that the denial of the Petition to Reopen was not reviewable because it did not determine the Claimant’s entitlement to benefits.You think you were disabled before? Just wait until you work here…: Industrial injury need not be sole cause of permanent total disability. In Scott Chambless v. Hamlin Electric Company and Liberty Mutual Insurance, W.C. No. 4-865-310-01 (ICAO, April 3, 2014), the ICAO affirmed a finding by the ALJ that Claimant was permanently and totally disabled over Respondents’ arguments that Claimant’s medical disability and wage loss were due to a 1973 motor vehicle accident and recently diagnosed Parkinson’s Disease, and not the industrial injury.  The Court reasoned that the industrial injury need not be sole cause of the Claimant’s permanent and total disability in order to be compensable.  In rendering this decision, the Court relied upon the testimony of the Claimant’s vocational expert, who stated that it was unlikely that the 1973 accident created any of the Claimant’s current impairments.  Additionally, Claimant’s credible testimony that his Parkinson’s symptoms were well under control with medication was sufficient evidence to permit the Court to reasonably infer that the Claimant’s vocational limitations were related to his industrial injury and not his preexisting condition.

Sometimes it’s not so good to be the “King of the Hill:” Contractor liable as statutory employer even when subcontractor policy cancelled due to fraud. InAdan Gaytan Flores v. Needham Roofing , Inc., RPM X 1000, and Commerce & Industry Ins. Co., Twin City Fire Ins./The Hartford, W.C. No. 4-892-164-04 (ICAO, April 28, 2014), the ICAO found that a contractor’s workers’ compensation insurance carrier was liable for benefits of an injured subcontractor.  The subcontractor’s insurance policy was cancelled due to fraud, and the contractor then assumed liability based on its status as the statutory employer.  The Court found that the certificate of insurance indicating the subcontractor’s workers’ compensation insurance provided by the subcontractor’s insurer did not form a contract between the contractor’s insurer and subcontractor’s insurer that would bind the subcontractor’s insurer to liability for the benefits, despite its cancellation of the policy because of its procurement by fraud.

Even attorneys have to pay sometimes: Costs and fees assessable only against attorney, not claimant. In Lluvia Gutierrez v. Startek USA Inc., and Wausau Underwriters Insurance/Liberty Mutual, W.C. No. 4-842-550-05 (ICAO, March 5, 2014), the Court found that attorney fees were assessable against an attorney for filing an application for hearing on unripe issues, but not against Claimant individually.  Claimant, who sought penalties against employees of the Division of Workers’ Compensation, was denied relief.  Claimant then filed an additional Application for Hearing to review the prior decision.  Respondents requested the claim be closed, as Claimant had waived his right to the DIME process.  Claimant then filed another Application for Hearing, endorsing as issues to review the ALJ’s prior Orders.  Respondents sought penalties on the grounds that the Claimant filed another Application for Hearing after the ALJ struck previous hearing applications, as the issues endorsed for hearing were deemed unripe.  The Court again struck the Application for Hearing. The ALJ ordered Respondents to set a hearing on the matter of determining reasonable fees and costs.  The ALJ subsequently assessed attorney’s fees against Claimant.  Claimant appealed, arguing that the ALJ erred by assessing attorney’s fees and costs against the Claimant individually, rather than against her attorney.  ICAO remanded the case for further findings as to whether the costs and fees were assessed against Claimant or her former counsel.

Missed the mail man: Denial of authorization for change of physician request still timely if sent within time limit following a late receipt of request.  In Juan Rivera v. Conway Freight Inc., and Indemnity Insurance, W.C. No. 4-917-273-01 (ICAO, March 19, 2014), Claimant suffered a compensable injury in April 2013.  During September and October of that year, Claimant spoke with the adjuster and nurse administrator regarding his claim.  Claimant’s counsel entered his appearance on September 18, 2013.  Claimant continued, however, to communicate directly with the adjuster and nurse administrator regarding his concerns about returning to work and his treating physicians, without notifying them that he was represented.  The adjuster received the Entry of Appearance on October 21, 2013.  Also on that date, the adjuster received a request for a change of physician pursuant to C.R.S. § 8-43-404(5)(a)(VI) from Claimant’s counsel dated September 18, 2013.  The adjuster denied this request by correspondence dated October 30, 2013.  The ALJ found, and the ICAO affirmed, that the adjuster had timely informed Claimant that the change of physician request was denied.

Just because you have a theory as to how your work hurt you, doesn’t mean you are correct: Claimant must show substantial evidence to directly tie injury to work conditions.  In Cory Savage v. First Fleet Inc., and Travelers Indemnity Company, W.C. No. 4-929-714-01 (ICAO, March 26, 2014), Claimant alleged suffering carbon monoxide poisoning when he slept in the cab of his truck.  The court found that Claimant failed to establish that his injury arose out of the conditions of employment, as required by C.R.S. § 8-41-301(1)(c).  The Court held that the Claimant failed to prove that he was exposed to toxic levels of carbon monoxide linked to his truck. The ICAO noted that the individuals performing the testing of the truck did not recreate the weather conditions on the date of injury, that a trailer was not attached to the tractor, that the testing did not require the truck to be idled for eight hours, and that it was tested by individuals who were not qualified as experts on the effects of carbon monoxide exposure. The ICAO found that the mere fact that a Claimant develops an injury during the course of his employment does not relieve that Claimant of proving that the injury arose out of Claimant’s employment.  The Court held that because of the absence of evidence showing a direct tie to the work itself, or evidence to show that but for the requirement of work an employee in similar conditions would also suffer these symptoms, the Claimant’s injury fell into a category of personal risk, and was therefore not compensable.

It’s not just about the bottled water: Disaster relief program volunteers fall within statute for compensability: In Smith v. Teller County and Teller County WC Pool, W.C. No. 4-920-458 (ICAO, August 26, 2014), the ICAO upheld an ALJ’s decision finding an injury compensable where the Claimant was a volunteer for a search and rescue organization and was involved in a car accident while traveling to a fire chief’s meeting.  Claimant was the president of the volunteer organization and was driving to attend a meeting when he was struck by an oncoming car.  The ALJ found that under section 8-40-202(1)(a)(I)(A), C.R.S., which covers disaster relief volunteers (among others) who are injured while performing duties or while engaged in training activities, Claimant’s injury was compensable under the Act.  Respondents contended that this provision did not cover the injury because Claimant was merely attending a meeting, not training as described by the statute, and that the meeting was optional, not mandatory. Respondents also argued that the injury was not compensable because Claimant was traveling to the meeting and was exempted under the going-to and coming-from rule regarding travel status. The ALJ rejected both of these arguments, finding that the meeting was for purposes of organizing and preparing for disaster relief, which essentially satisfied the training portion of the statute.  The ALJ also found (citingColorado Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo. App. 1983)), because the attendance of the Claimant at the meeting furthered the county’s interest in the coordination of its disaster relief program, the travel to the meeting was implicitly part of the “employment” agreement.  The ICAO upheld the decision as supported by substantial evidence.

Don’t do that chest bump quite yet: Horseplay and Compensability.  The ICAO upheld an ALJ’s dismissal of a claim involving a fractured arm on the basis that Claimant was involved in horseplay in Trujillo v. Lowe’s, W.C. No. 4-932-395 (ICAO, July 29, 2014).  Claimant fell and broke his arm after engaging in a “chest bump” with a co-worker to celebrate completion of a work task.  The Court referenced Panera Bread, LLC v. ICAO, 141 P.3d 970 (Colo. App. 2006), in assessing whether this activity constituted horseplay sufficient to sever the causal connection with the employment.  The Court indicated that under these circumstances, the most important criteria to gauge horseplay activity include the extent and seriousness of the deviation from employment, and the completeness of the deviation.  The Court determined that Claimant had engaged in a chest bump at his own accord and at no benefit to the employer.  Accordingly, the Court agreed with the ALJ that Claimant was injured in the course and scope of a chest bump, not his employment.

Another penny for your thoughts: Appeals of Decision Solely on Compensability are Interlocutory.  In Weitzel v. Delta County, W.C. No. 4-926-816, (ICAO, August 20, 2014), the ICAO dismissed Respondents’ Petition to Review an Order by the ALJ finding a claim compensable and ordering payment only of general medical benefits.  The ICAO held that orders determining compensability and containing only a general award of medical benefits, and not specific treatment, are interlocutory and not appealable.  Appealable orders are those which involve an award or denial of particular medical benefits.

Three days is long enough, two days is not: Disability and Entitlement to Temporary Benefits.  The ICAO upheld an ALJ’s Order denying Claimant temporary disability benefits for two days because he was not “disabled” under the Act in Whitney v. West Metro Fire Protection District, W.C. No. 4-920-012 (ICAO, August 27, 2014).  Claimant, a firefighter, was diagnosed with cancer and was off work on sick leave for two days pursuant to his condition.  Claimant sought temporary disability benefits only for these two days. Under Section 8-42-103(1), C.R.S., an injured worker is not entitled to temporary disability if the period of disability does not last longer than three days from the day the employee leaves work due to the injury.  This same provision states that temporary benefits are owed where the period of disability exceeds two weeks.  The term “disability” under the Act includes two elements, medical incapacity, which is evidenced by loss of bodily function, and loss of wage earning capacity, which is evidenced by wage loss.  See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999).  The ICAO upheld the ALJ’s finding that under these criteria, Claimant was not disabled for purposes of temporary benefits because he was not off work for more than three days and his disability did not last for more than two weeks.

Just because you wear a black robe: ALJ’s Authority to Determine Credibility of WitnessesIn Williams v. Colorado Cab d/b/a Denver Yellow Cab and Old Republic, W.C. No. 4-920-621 (ICAO, June 25, 2014), the ICAO upheld the ALJ’s denial of a claim for benefits and his finding that Claimant had not testified credibly at hearing on compensability.  Claimant was a taxi driver who was involved in a drunken car accident with two other passengers in his taxi, while driving through the mountains to the western part of the state.  Prior to the trip, Claimant had stopped at a restaurant and consumed alcohol with one of the passengers, thereafter picking up the second passenger on his way to what his employer alleged was a vacation destination.  Claimant was driving with his meter off during the entire journey, which the employer testified was against company policy for fares.  The employer also testified that cab drivers were not allowed to go beyond 16 miles outside of the city.  Claimant contended that while he was driving with his meter off during this trip, he was paid a cash sum by one of the passengers.  The ALJ found Claimant’s testimony not to be credible and found in favor of the employer.  The ICAO deferred to the ALJ’s determinations, noting that an ALJ’s credibility determinations are binding except in extreme circumstances (see Arenas v. ICAO, 8 P.3d 558 (Colo. App. 2000).

It’s Illegal to claim a claimant is illegal? : Immigration status is immaterial to determination of PTD benefits.  The Colorado Court of Appeals upheld a decision, inSpacecon Specialty Contractors, LLC and Tristar Risk Management v. ICAO and Erasmo Ordonez, (Colo. App. 2014)(nsfop), which found that Claimant was not barred from receiving workers’ compensation benefits due to his immigration status.  Claimant suffered a work-related injury in 2008 and was awarded PTD benefits by the ALJ at a subsequent hearing.  Respondents’ vocational evaluator indicated that Claimant had represented that he was ineligible for Social Security benefits because he did not have “papers.”  Claimant invoked the 5th Amendment of the U.S. Constitution when asked about his immigration status on the stand.  Respondents argued, at hearing and upon appeal, that Claimant was not permanently and totally disabled because of his work injury, but rather that he could not find employment because he was in the country illegally.  The ALJ found that Claimant was permanently and totally disabled because of the work injury and that his immigration status was irrelevant to that finding.  The Court of Appeals deferred to the ALJ’s determinations regarding the cause of the Claimant’s inability to work, in this respect, and upheld the decision.

legaLKonnection Firm Newsletter – September 2014

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.

In the News

Lee + Kinder is excited to welcome our newest Associate Attorney, Daniel Mowrey!  Mr. Mowrey is a graduate of Indiana University Law School. He served as a Law Clerk at Lee + Kinder through the summer of 2014 helping defend employers and insurance carriers in workers’ compensation claims.  The Firm is proud to announce that Mr. Mowrey was recently admitted to the Colorado Bar this September.  We are happy to have him on the team!

Victory Lap

Associate Matt Boatwright successfully limited Claimant’s permanent impairment to a 15% scheduled rating of the upper extremity in Claimant’s attempt to convert his rating to that of whole person in Downen v. United Parcel Service and Liberty Mutual Insurance, W.C. 4-823-249.  Claimant sustained an injury to his right shoulder in 2010. He received scheduled impairment ratings for loss of range of motion of the arm and for the distal clavicle.  Claimant argued that because he received a permanent impairment rating for structures which were above the humeral head of the arm, the permanent impairment should be considered a whole person rating under theAMA Guidelines, 3rd Ed. Rev.  Relying upon the “situs of functional impairment test” outlined in Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo. App. 1996), Respondents argued that, regardless of whether the impairment rating was above the arm, Claimant’s only functional impairment was in the arm itself, and not anywhere else in the body.  Respondents also argued that despite the distinction between the shoulder and the arm, the shoulder was nevertheless part of the upper extremity for purposes of providing a scheduled impairment rating.  ALJ Edwin Felter agreed with Respondents, finding that the situs of Claimant’s permanent functional impairment was to the upper extremity and that therefore the permanent impairment rating was appropriately limited under the schedule of impairments.

   
Member Attorney Joshua D. Brown and Associate  Jessica C. Melson successfully limited an increase in Claimant’s AWW in Alarcon v. Coca-Cola Refreshments USA, Inc. and ACE American Insurance Co., WC 4-910-466. The admitted AWW was based on Claimant’s wages approximately one year prior to his injury. Claimant sought to increase his AWW by $31.56 based on his wages six weeks prior to his injury. Respondents argued these weeks did not accurately reflect Claimant’s wage loss. The ALJ agreed with Respondents and ordered only a minimal increase in Claimant’s AWW. 

Of Counsel Attorney Sheila Toborg successfully defended against a compensability claim for an alleged occupational disease to the right shoulder in Kristin Penley v. CDI Corporation and Liberty Mutual Insurance, (W.C. No. 4-949-902, September 17, 2014). Ms. Toborg presented medical records and expert testimony to demonstrate that Claimant did not sustain an occupational disease or traumatic injury as a result of her work.  Ms. Toborg successfully convinced the ALJ that Claimant failed to meet her burden of proving that she sustained a compensable injury. The claim was denied and dismissed.

Cases You Should Know

Termination for Testing Positive for Marijuana is still an Affirmative Defense Despite Recent Changes in Colorado Law:  While Colorado has legalized marijuana, employers may still raise the defense of termination in workers’ compensation cases to defend post-termination TTD claims.  In a recent ICAO case, Claimant was terminated for violating the company’s drug policy, which prohibited employees from being on company property while in an impaired condition.  Bolerjack v. Water Edge Pond Service, LLC, (W.C. No. 4-905-434, July 29, 2014). Claimant came to work two weeks after the work injury and was given a drug test. The test revealed an extremely high level of THC.  An expert opined that the test result indicated that Claimant was a regular, heavy user of marijuana and was, more likely than not, intoxicated at the time the test was taken. The ALJ denied the Claimant’s request for post-termination TTD benefits as he found that Claimant’s wage loss was the result of his termination for cause.  Claimant argued that he used the marijuana to deal with the pain caused by the work injury; however, the ICAO affirmed the ALJ’s Order.

Quasi-Course of Employment Doctrine does not Extend Benefits to Injuries Sustained while Traveling to Unauthorized Treatment: According to the quasi-course of employment doctrine, workers’ compensation insurance coverage extends to injuries sustained while traveling to and from authorized treatment.  However, the ICAO recently re-affirmed that the quasi-course of employment doctrine does not extend benefits to injuries that are sustained while traveling to unauthorized treatment for situations that are not emergencies.  Catlow v. Dairy Farmers of America, (W.C. No. 4-886-133, August 4, 2014).  In this case, Claimant testified that he experienced a sudden onset of back pain and decided to drive to a physical therapist without an appointment and despite the fact that his physical therapy was recently discontinued by his treating physician.  Claimant was injured in a car accident while traveling to the physical therapist.  ICAO agreed with the ALJ and found that the injuries were not compensable because Claimant’s sudden need for physical therapy was not an emergency situation, nor was the treatment authorized by the employer.

Claimant Must Obtain a Follow-Up DIME in order to Seek Additional PPD Benefits: If a DIME is performed in a claim, the impairment rating provided may not be increased unless a follow-up DIME increases the rating. Gailey v. Silver Mine Subs, (W.C. No. 4-764-331, July 24, 2014). In this claim, a DIME physician provided Claimant with a 28% whole person impairment rating. Claimant later received a 32% impairment rating from a treating provider. Claimant filed a Petition to Reopen for worsening of condition and requested TTD and PPD benefits. The ALJ denied the Petition to Reopen because Claimant’s condition had not worsened since being placed at MMI and indicated that any increase in impairment rating must be done through a follow-up DIME.  ICAO held that the mere fact that Claimant received an increased impairment rating does not compel the conclusion that there was a worsening of condition. Additionally, ICAO concluded that the ALJ could not award additional PPD benefits unless the follow-up DIME increased the prior impairment rating.

The Issue of Maintenance Medical Treatment is not a Ripe Issue Until after a DIME When MMI is Disputed:  The ICAO held that an ALJ cannot issue an order regarding medical care after MMI if a DIME is requested and not yet performed.  In Hubbard v. University Park Care Center, (W.C. No. 4-907-314, July 17, 2014), Respondents originally denied the claim, but requested a DIME after the treating provider placed Claimant at MMI with a high impairment rating.  At a hearing held before the DIME was completed, the ALJ found that the claim was compensable and ordered Respondents to pay temporary disability benefits and maintenance medical care after MMI. While the ICAO upheld the Order regarding compensability and temporary disability benefits, it indicated that the Order regarding maintenance care was not ripe.  The ICAO opined that the DIME was necessary to confirm the MMI and permanent disability related to the matter. As such, the issue of maintenance care could not be considered by the ALJ until the DIME was completed and the MMI date confirmed.

DIME Determination of Causation: Claimant’s ATP opined she had a 12% whole person impairment to her cervical spine. Claimant requested a DIME. The DIME doctor opined Claimant’s impairment was not due to the industrial incident but was instead due to her preexisting condition and therefore provided a 0% impairment rating. Claimant sought to overcome the DIME. The ALJ held an apportionment analysis was not necessary where the rating physician determines there is no causal relationship between the industrial injury and the impairment. ICAO noted that the DIME physician’s findings of causal relationship between an injury and impairment must be overcome by clear and convincing evidence, which Claimant failed to do. ICAO upheld this decision. Marquez v. Amerigold Logistics and Hartford Insurance Company, WC 4-896-504 (ICAO April 14, 2014).

Exception to the Going to and Coming from Work Rule: Claimant was injured in a motor vehicle accident on the way to work. Claimant argued travel was a part of his employment contract because his job required him to use his personal vehicle to attend appointments with customers. ICAO noted Claimant was required to come to work in a personal automobile he would then use to attend appointments and meetings with customers, travel, and attend events.  ICAO further noted this as an ultimate benefit to the employer, and contemplated in the contract for hire. ICAO reversed the ALJ’s ruling and found the Claimant’s claim arising out of the auto accident was compensable. Rieks v. On Assignment Inc. and Sentry Ins., WC 4-921-644 (ICAO March 31, 2014). This is a significant broadening of workers’ compensation coverage when employers require employees to use personal vehicles for work purposes.

Sometimes it’s Good to be the Statutory Employer: This case has a lengthy factual and procedural history. In summary, Claimant was injured while working on a drilling rig in Colorado. Claimant sued Tesco, the operator of the drilling rig, for negligence. Tesco asserted it was Claimant’s statutory employer and therefor immune from a negligence claim. A few hours before the Claimant was injured, Tesco contracted its personnel services to Turnkey, which included the Claimant’s job functions. Claimant argued Tesco was no longer his employer and therefore could be sued for negligence. The Court applied the “regular business test” to determine whether Tesco, the contracting party, was a statutory employer.  The “regular business test” is satisfied where the work performed by the Claimant is so essential to the day-to-day business operations of the employer that it cannot continue to function without the task being performed. In this case, the Court noted, Tesco remained an active participant in drilling services, remained obligated to perform its duties under a contract with another party of the drilling operations, was responsible for rig safety, providing labor, designating drilling locations, and schedule. Therefore, the Court found Tesco was a statutory employer and immune from a personal injury suit. The four million dollar verdict was vacated. Phathong v. Tesco Corp., No. 12-1455 (Fed. Cir. 10, May 6, 2014) (nsfop).

legaLKonnection Firm Newsletter – August 2014

 
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 workers’ compensation community.

In the News

Lee + Kinder, LLC releases our new and improved website today.  We invite you to take a look and tell us what you think at http://www.LeeKinder.com.  In addition to expanding the portability of the Lee + Kinder website by making it responsive to all devices, we also wanted to improve on simplistic accessibility to increased resources and information – not only in the area of workers’ compensation defense, but in other practice areas as well.  As Lee + Kinder has grown over the past 6 years, so has our knowledge base and our diversity.  Our team is able to provide professional legal advice and sound, comprehensive guidance in the areas of employment defense, general liability, insurance defense, healthcare provider recovery, Medicare Set Asides, and subrogation, in addition to the area for which so many of you have come to trust and rely on us – workers’ compensation defense.  So, take a surf on the web and a tour of our Firm.  We look forward to expanding our success with the application of our Firm philosophy since its inception: Integrity. Knowledge. Service.


Victory Lap

Member Joshua Brown, assisted by Associate Jessica Melson, successfully limited Claimant’s attempt to increase his Average Weekly Wage in Shawn Runnells v. Kum & Go and Zurich American Insurance. Claimant attempted to increase his AWW by $41.33 based upon his wages prior to his date of injury and to include a post-injury raise. Respondents argued Claimant failed to establish that the admitted AWW was not a “fair computation of his wage loss and diminished hearing capacity” Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). Ultimately, the Court found that 13 weeks was an appropriate period of time to establish Claimant’s AWW but declined to recognize Claimant’s post-injury raise in calculating AWW. The Court held that Claimant’s AWW should be increased by a mere sixty-nine cents.

Mr. Brown and Ms. Melson were also successful in defending against Claimant’s claims for a general award of Grover(maintenance) medical benefits and a PPD award in excess of the DIME impairment rating.  In Keith Brockschmidt v. Skywest Airlines, Inc. and ACE American Insurance Company, Mr. Brown presented credible evidence based on the testimony of Claimant’s DIME physician, Dr. Hattem, that Claimant had over six years of treatment with less than a fifty percent improvement in complaints.  Dr. Hattem testified that additional treatment for Claimant’s back was not reasonable or necessary and not indicated within the Medical Treatment Guidelines.  Claimant’s request for a general award for reasonable and necessary Grover(maintenance) medical benefits was therefore denied and dismissed.  Claimant’s request for an award of PPD benefits in excess of those calculated according to the DIME physician’s rating was also denied and dismissed, as Claimant did not present clear and convincing evidence to overcome the DIME physician’s opinion.

Cases You Should Know

When an ALJ determines a DIME physician’s true opinion, the party seeking to overcome the DIME bears the burden of proof.  In April Samuels v. Deli Zone, W.C. 4-761-359-02 (June 18, 2014), Claimant sustained a left knee injury in 2007 and over the next few years underwent medical treatment for the left knee.  By 2010, Claimant reported gradual onset of right knee pain, which she attributed to compensating for the left knee injury.  The authorized treating physician (ATP) placed Claimant at MMI.  Claimant requested a DIME.  The DIME physician disagreed with the ATP’s MMI determination and found that Claimant needed additional conservative treatment for the left knee.  Regarding the right knee, the DIME physician diagnosed Claimant with chondromalacia patella, stated that Claimant’s right knee symptoms were due to compensation patterns resulting from the work-related left knee injury, and that additional evaluation of the right knee was needed.  The DIME physician re-evaluated Claimant two-and-a-half years later.  He found Claimant at MMI, gave her a permanent impairment rating for the left knee, and stated “[m]y opinion is unchanged on the right knee from my previous report.”  Respondents admitted to the left knee impairment rating and MMI date.  The ALJ found that the DIME physician ultimately determined that Claimant’s right knee symptoms were not related to Claimant’s left knee injury.  Claimant appealed, arguing that the ALJ’s interpretation of the DIME report was wrong and because Respondents did not contest the DIME physician’s findings about the right knee, the ALJ was jurisdictionally barred from considering the issue of compensability of the right knee injury.  The ICAO affirmed the general rule that where a DIME physician offers ambiguous or conflicting opinions concerning MMI, it is for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a matter of fact.  Then, finding for Respondents, the ICAO reasoned that because the ALJ made a factual determination that the DIME physician’s true opinion was that Claimant’s right knee symptoms were not compensable, the ALJ properly placed the burden of proof on Claimant, and therefore the ALJ’s consideration of the right knee compensability issue was not jurisdictionally barred.

An ALJ is not compelled to find a claimant not at MMI merely because the DIME physician recommended further evaluation of a certain condition. This case also held that if a DIME physician recommends additional testing to complete the DIME process, an ALJ may conclude that such testing is not inconsistent with MMI because it is not primarily performed for the purpose of treatment or diagnosis, but to assist the DIME physician in performing his evidentiary role.

A claimant is presumed to know the statutory requirements of the statutory scheme under which he seeks benefits.  C.R.S. 8-73-112 allows a claimant to receive the benefit of available wage credits for unemployment benefit purposes that would normally be lost during the claimant’s period of disability.  C.R.S. 8-73-112 explicitly states that it applies “only if a claim . . . is filed within the four weeks immediately following the termination of the continuous period of total disability.”  In Gregor M. Bryant v. Industrial Claim Appeals Office of the State of Colorado; and Division of Unemployment Insurance, 14CA0461 (Colo. Ct. App. 2014), Claimant filed his unemployment claim ten months after the termination of his TTD period.  Because Claimant filed after the statutory four-week time limit, a hearing officer held that Claimant was not covered by the statute allowing use of the additional wage credits.  The ICAO affirmed the hearing officer’s decision.  Claimant again appealed, arguing that he would have timely filed his claim had he been aware of the statutory deadline.  The Colorado Court of Appeals affirmed the lower courts’ orders denying Claimant the advantage of the statute.  The Court of Appeals reasoned that even though Claimant may have been unaware of the statute’s time limitation, the Court may not ignore the statute’s plain language requiring a claim to be “filed within the four weeks immediately following the termination of the continuous period of total disability.”  The Court stated that claimants are presumed to know the requirements of section 8-73-112.  And, unlike certain other statutes in the unemployment scheme, section 8-73-112 does not permit untimely action based on a showing of good cause.

If the designated treating physician refuses to provide treatment for non-medical reasons, the insurer must designate a new treating physician or the right of selection passes to the claimant. To be considered an authorized treating physician (ATP), the physician must be in the chain of referrals.  In Garcia v. McDonald’s Corporation and Zurich c/o Gallagher Bassett Services, W.C. 4-862-853 (June 19, 2014), Claimant sustained an admitted head injury and then sought cervical fusion surgery based on the work injury aggravating a cervical spine herniation.  Claimant was seen by Dr. Caton for her work-related injury. Dr. Caton opined that although Claimant needed surgery to treat a disc herniation, she could not refer Claimant for surgery because she had only authority to treat the work-related injury and she did not opine that the disc herniation was work-related.  Claimant sought treatment and surgical intervention from Dr. Coester based upon a referral from her personal physician.  Respondents appealed a decision that they pay for Claimant’s cervical fusion surgery stating that the surgeon was not an authorized ATP because he was not in the chain of referral.  In this case, Dr. Coester was not directly in the referral from Dr. Caton, but was a referral from Claimant’s personal physician.  The ALJ determined that the referral was ambiguous and that Dr. Caton denied treatment for non-medical reasons.  The denial of treatment was due to non-medical reasons as Dr. Caton opined that the pathology requiring the surgical intervention was not work-related.  Per Workers’ Compensation Rule of Procedure Rule 16-9(B), “lack of prior authorization for payment does not warrant denial of liability for payment.”  The ALJ considered the testimony of another physician, Dr. Rook, and Claimant to be credible and demonstrative that the work-related incident did aggravate a pre-existing cervical condition.  The Order finding Respondents liable for the costs of cervical fusion surgery was upheld.

Death Benefits are independent from compensation benefits paid to an injured worker.  In Ragan v. Metal Stud Forming and Colorado Insurance Guaranty Association, W.C. 9-920-457-02 (July 9, 2014), the Court denied and dismissed a dependent’s claim for compensation of death benefits.  The “rule of independence” provides that disability benefits awarded to a worker and death benefits awarded to workers’ dependents, constitute separate and distinct claims involving distinct rights. Therefore, the rights and liabilities of the parties are determined by the statute in effect at the time of Claimant’s injury or the date of decedent’s death.  In this case, Claimant suffered a heart attack while driving a truck for the employer in 1982.  The parties entered into a settlement agreement under which the insurer continued to pay reasonable and necessary medical benefits.  However, in 2003, the insurer at the time of Claimant’s injury became insolvent and an Order of Liquidation required that all claims with the insurer were to be filed within one year of the date of the Order.  The Colorado Insurance Guaranty Association (CIGA) took over payment of claims while insurer was liquidated.  Claimant passed away in 2013 and Claimant’s widow filed a claim for death benefits.  The claim was denied by CIGA because it was not filed within the timeframe of the Order.  The Court agreed with Respondents and upheld the decision denying benefits because the death claim was properly viewed as a “new claim” per the rule of independence and not merely derivative of the initial claim for benefits.  Therefore, the filing of the claim for death benefits needed to be filed separately within the terms of the timeframe within the Order of Liquidation.

legaLKonnection Firm Newsletter – July 2014

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 workers’ compensation community.
In the News

On July 14thLee + Kinder, LLC celebrated its 6th anniversary, providing comprehensive and legal services to employers and insurers throughout Colorado. Since inception, our approach to the practice of law has been simply based on our three founding principles:  Integrity, Knowledge and Service.  We believe that says it all.  We also believe that we would not be where we are now, 6 years later, without the support of our clients.  We send out a very heartfelt thank you for entrusting us with your legal matters.  Our promise to you is to continue providing you with legal representation beyond your expectations.  Thank you for your business.Our Newest Member

Lee + Kinder, LLC welcomes Joshua D. Brown as a Member of the Firm.   Mr. Brown initially joined the Firm in January of 2013 as Of Counsel, bringing with him an extensive and impressive background in handling all facets of employment law.  He has been practicing in Colorado since 2005 handling matters arising under such laws as Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act (ADEA), Colorado Wage Act and the Fair Labor Standard Act.  Over the years, Mr. Brown has successfully defended employers against claims of workers’ compensation, discrimination, harassment, retaliation based on race, color, religion, sex, national origin, age and disability, in addition to local discrimination laws.  He has also represented employers in the enforcement of employment contracts, including breach of contract matters, non-compete and trade secret issues.  As he has done so well in the past, Josh will continue to specialize in the defense of employment matters, as well as General Liability, Insurance Defense, Subrogation and Workers’ Compensation Defense.Victory Lap

Of Counsel Sheila Toborg and Associate Kelsey Bowers were successful in a full contest win in Esperanza Morfin v. Earthgrains and Indemnity Insurance Company of North America. Claimant alleged that she injured her back after a slip and fall accident at work. Ms. Toborg offered credible evidence at hearing showing the medical evidence did not support a finding that Claimant sustained any injury as a result of the alleged fall. The Administrative Law Judge found that Claimant had exaggerated her pain complaints and there were no objective findings to show a work-related injury. Claimant’s claim was denied and dismissed.Of Counsel Sheila Toborg and Associate Kelsey Bowers also successfully defended against a claim for medical benefits inCharles Conant v. Hemphill Trucking d/b/a Hemphill Speedy and Liberty Mutual Insurance. Claimant was seeking medical benefits that included a triple-phased bone scan to test for Complex Regional Pain Syndrome (CRPS), additional sessions of acupuncture, pain counseling, and a compound cream for pain relief. Ms. Toborg highlighted the fact that Claimant had previously undergone testing for CRPS with negative results and that he had not experienced any long-term benefit from the previous sessions of acupuncture. Ms. Toborg also presented evidence to show that Claimant made inconsistent pain reports, which were not supported by objective medical findings.  The Administrative Law Judge found that the requested medical benefits were not reasonable, necessary, and related to the work injury. Claimant’s claim for medical benefits was denied and dismissed.

2014 Legislative Updates
The arrival of July means that the annual changes regarding benefits rates and statutory caps are implemented for 2014.  Effective July 1, 2014, the new benefits rates for injuries occurring on or after this date are as follows:

  • Maximum TTD weekly payout rate: $881.65
  • Maximum PPD weekly payout rate: $484.44
  • Scheduled impairment weekly payout rate: $277.03

The statutory caps for injuries occurring on or after July 1, 2014 have also changed, including:

  • Disfigurement for normal scarring and abnormalities: $4,673.47
  • Disfigurement for extensive scars or stumps: $9,345.38
  • Cap for combined indemnity for whole person rating of 25% or less: $81,435.67
  • Cap for combined indemnity for whole person rating above 25%: $162,869.28

Additionally, the legislature has signed into law several new bills or made changes to previous statutory provisions.  Some notable changes which became effective on July 1, 2014 include:

  • Settlement documents may now be submitted electronically to the Division, and orders of approval under C.R.S. §8-43-204(8) may be sent out electronically, making finalization of settlement agreements more efficient.
  • C.R.S. §8-43-201(3) now statutorily acknowledges that there is no requirement that the Director or an ALJ consider the medical treatment guidelines as a basis for determination of reasonable, necessary and related medical treatment, though the guidelines may be considered in this determination.
  • The date a hearing is required to commence from the notice to set on an Application for Hearing is now 120 days instead of 100, under C.R.S. §8-43-209(1).
  • The Director or an ALJ may now order out-of-state parties to appear in person for good cause shown and parties may be subject to penalties for failure to comply under C.R.S. §8-43-315(2) and (3).
  • Pursuant to C.R.S. §8-43-404(10)(a), an authorized treating provider (ATP) who refuses to treat for nonmedical reasons is now required to notify the worker within three days, explain the reasons for refusal, and offer to transfer medical records to a new authorized physician. Additionally, under this same statute, the Director or an ALJ has jurisdiction to determine whether discharge was for medical or nonmedical reasons.  The insurer must also designate a new authorized treating provider within 15 days of receipt of notice that the claimant was discharged.  The right of selection passes to the claimant where an insurer doesn’t timely comply.
  • The statutory aggregate for all lump sums under C.R.S. §8-43-406 has also changed, which varies based upon differing circumstances.

Additionally, the legislature signed bills which will not become effective until next year.  The most notable change includes a new provision that firefighters who suffer cardiac or circulatory illness as a result of a strenuous work event are given new mandatory employer-paid benefits, though this does not impact the determination of compensability for purposes of workers’ compensation and is not addressed under the Workers’ Compensation Act.  Perhaps most notably, the number of medical providers from which an injured worker may choose will increase to four beginning on April 1, 2015 next year.  We will address this change in more detail as this date approaches.

Cases You Should Know

Responsibility for Termination: In Adamson v. MNM Plumbing and Markel Insurance Company, W.C. No. 4-918-584 (ICAO, June 10, 2014), the ICAO upheld an ALJ’s determination that although the Claimant was terminated for being late to work, he was not responsible for his termination due to circumstances which were beyond his control.  The ALJ therefore awarded ongoing temporary disability benefits subsequent to the Claimant’s termination.  The termination statutes, C.R.S. §§8-42-105(4)(a) and 8-42-103(1)(g), both state that wage loss is not attributable to the work injury where an employee “is responsible for termination,” implying that the employee must be at fault. Under these statutes, the proximate cause of the employee’s termination is determinative of whether the employee was at fault and the totality of the circumstances are considered by an ALJ.  See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo. App. 1989).  In Adamson, the ALJ determined that the Claimant had difficulty sleeping the night before and was running late.  The Claimant also had to wait for a co-worker to arrive, upon which time the co-worker had to blow into a Breathalyzer device to start the Claimant’s vehicle.  These events were labeled as a “series of misadventures” by the ALJ which resulted in the Claimant being nearly two hours late to work.  As the ALJ determined that the cause of termination was Claimant’s tardiness and that these “misadventures” which resulted in the Claimant’s tardiness were “beyond his control,” the ALJ found that the Claimant was not responsible for his termination.Disfigurement Benefits: The ICAO upheld an ALJ’s finding that the Claimant was entitled to disfigurement benefits without medical evidence of causation in Fiske v. Echostar Communications Corp, W.C. No. 4-907-321 (ICAO, June 10, 2014).  The Claimant sought disfigurement benefits for a limp which he claimed was the result of work-related Dengue fever, contracted while he was on assignment in India.  However, the Claimant presented no medical opinion supporting a causal relationship between the fever and his limp at hearing.  Respondents presented a report from the treating physician which indicated the Claimant’s contention that his joint pain was caused by the fever was not medically sound.  The treating physician also criticized a report presented by the Claimant which he asserted supported his causal theory.  The ALJ nevertheless found that Claimant had established a prima facie case for benefits and Respondents had failed to present adequate evidence in defense.  The ICAO noted there was no legal requirement that a Claimant have medical evidence to support causation of disfigurement, also noting that no such requirement exists to prove a compensable injury or change in condition for purposes of reopening.  Instead, the ICAO stated that if any such requirement was intended, it would have been expressly included in the disfigurement statute by the legislature.

Dismissal of Claim Due to Claimant’s Failure to Obey an Order: In Gonzales v. University of Colorado Health and Travelers Indemnity Co., W.C. Nos. 4-865-972 and 4-851-350 (ICAO, June 12, 2014), the ICAO upheld dismissal of two consolidated workers’ compensation claims, with prejudice, due to the Claimant’s willful violation of a Prehearing Conference Order compelling discovery.  The Claimant sustained alleged injuries in 2010 and filed two claims, which were later consolidated.  Thereafter, the Claimant allowed the claims to remain largely dormant and filed an Application for Hearing only after Respondents sought to close the claims for failure to prosecute.  While hearing was pending, a PALJ ordered discovery compelled.  Prior to hearing, Respondents filed a motion to dismiss both claims for failure to comply with the Order.  The ALJ permitted dismissal under C.R.C.P. Rule 37 due to the violation of the Order because Respondents were highly prejudiced by the lack of discovery.  The Claimant was not permitted to re-file the claim.

Asserting Overpayment to Claimant with Third Party Subrogation Settlement: Respondent insurers may still claim an overpayment of benefits to the claimant as a credit against future benefits where there is an agreement between claimant and respondents to resolve a subrogation lien with a third party.  In Milazo v. Total Longterm Care, Inc. and Pinnacol Assurance, W.C. No. 4-852-795 (ICAO, June 11, 2014), the ICAO upheld an ALJ’s opinion determining that Respondents were not precluded from asserting an overpayment against Claimant where the parties had agreed to settle with a third party insurance company to satisfy an outstanding subrogation lien because Respondents had not expressly waived this right nor had they been estopped by a court.  ICAO stated that the subrogation statute, C.R.S. §8-41-203(1) operates to assign liability to the party at fault while preventing double recovery of workers’ compensation benefits by the claimant.  See Jordan v. Fonken & Stevens, P.C., 914 P.2d 394 (Colo. App. 1995).  While an insurer may waive the right to offset a claimant’s third party recovery against liability for future workers’ compensation benefits, there must be a voluntary, knowing, and intelligent waiver of this right.

Reopening Claim Based on Mistake of Fact: In Moran-Butler v. Healthone/Spalding Rehabilitation Hospital and Transportation Insurance Company, W.C. No. 4-424-488 (ICAO, June 5, 2014), the Court upheld the Director’s determination that reopening of the claim to determine the sufficiency of certain disability benefits was not appropriate under the facts of the claim.  The claimant was receiving Permanent Total Disability (PTD) benefits as the result of a 1999 work injury.  Subsequent to the determination of PTD, the parties underwent extensive litigation involving recalculation of benefits pursuant to a higher Average Weekly Wage (AWW) and an Order was issued in 2010 regarding how past due benefits were to be paid out.  Claimant did not file a timely appeal, but instead filed a Motion with the Director for determination of whether Respondents accurately calculated past due benefits and a request to reopen the claim on the basis of mistake of fact.  The Director determined that benefits were properly paid and that reopening was inappropriate because there was no mistake of fact, as Respondents had complied with the 2010 Order in payment of benefits.

Determining Whether a “Bonus” is Part of AWW Calculation:   In Yex v. ABC Supply Co., Inc., W.C. No. 4-910-373 (ICAO, May 16, 2014), the ICAO found that Claimant’s bonus should not be included in his AWW calculation because it was a fringe benefit, not wages.  The ALJ reasoned that the bonus did not fit under the statutory definition of “wages” because it did not have a present day cash equivalent value, the Claimant did not have access to the proceeds of the bonus on a day-to-day basis, and Claimant did not have an immediate expectation of receiving the bonus.   The ICAO labeled the bonus specifically a profit sharing plan.  Such plans are characteristically premised on the realization of a profit over a defined period of time.  Until that period of time is complete, the existence of any additional pay is entirely contingent.  Also, as in Orrell v. Coors Porcelain, the plan here required Claimant to be employed by the employer when the bonus was paid, a further barrier to the existence of any present cash value.

When Clear and Convincing Evidence is Required to Overcome DIME Conclusions:  In Zittel v. Pueblo County, W.C. No. 4-813-498 (ICAO, May 14, 2014), Respondents argued that Claimant was required to overcome the DIME physician’s findings of relatedness of Claimant’s cervical condition and the resulting surgery by clear and convincing evidence.  The ICAO stated that the opinions of the DIME physician are only subject to presumptive weight when expressly required by the statute, which is for MMI and medical impairment.  Cordova v. ICAO; C.R.S. §8-42-107(8)(b) and (c).  The DIME physician’s opinion on the relatedness of particular components of a claimant’s overall impairment and whether a claimant has reached MMI for those particular components carries presumptive weight; but, neither Claimant’s MMI status nor impairment was at issue here.  Thus, the Act contains no requirement for presumptive weight with respect to the reasonableness, necessity, and relatedness of requested medical treatment.  Once the DIME physician determines a claimant is not at MMI, and respondents do not challenge that decision, the normal rules for establishing entitlement to benefits apply (i.e. claimant must show entitlement to benefits by a preponderance of the evidence, which will be upheld if found by the ALJ, absent contrary substantial evidence.).

Defining “Employment” Under the “Firefighter Cancer Presumption Statute”:  InCity and County of Denver v. ICAO and Russell Snider, W.C. No. 4-820-266 (May 8, 2014, Colorado Court of Appeals), the Court of Appeals determined what constitutes “employment” for the purposes of calculating the five-year time period requirement under the “firefighter cancer presumption statute.”  This statute presumes that certain cancers contracted by firefighters with five or more years of service are compensable occupational diseases.  C.R.S. §8-41-209.  Claimant developed Leukemia, and the Court held that Claimant was entitled to medical benefits, as well as TPD and PPD based on the presumption of compensability created by the above cited statute.  In determining that Claimant had five years of “employment as a firefighter” required for the statutory presumption, the Court included Claimant’s four years of service as a volunteer firefighter and EMT for Elbert Fire Protection District and his training at the Rocky Mountain Fire Academy.  The Court noted that this five-year requirement is to ensure claimants are involved in the firefighting process and thus periodically exposed to the carcinogens found in fires.  Thus, the term “employment” includes a volunteer firefighter’s entire time of service, beginning with the time an individual commences service as a volunteer or commences training at the academy, not just the time of active engagement.  Additionally, the Court held that “employment as a firefighter” under the presumption statute was a matter of statewide concern, which does not change based upon employment with a certain municipality.

Evidence of Causation Required for Occupational Disease:       In Western States Fire Protection/API Group, Inc. and ACE American Insurance Company v. ICAO and Paul Olsen, W.C. No. 4-891-495, (March 27, 2014, Colorado Court of Appeals), the Court of Appeals addressed the relatedness of Claimant’s back injuries to his sitting in an old pick-up truck seat. In order to prove compensability of an occupational disease, a claimant must establish the existence of a disease and that it was directly and proximately caused by claimant’s employment or working conditions, and resulted from exposure to a hazard presented by those conditions, and the extent of the resulting disability.  The Court concluded that Claimant had established the statutory elements of an occupational disease.  There was no evidence that Claimant was exposed to any other hazard or condition that aggravated his back.  The Court noted that Claimant testified his back, even with degenerative disc disease, was asymptomatic until he drove the Employer’s truck.  The Court held that the evidence supported the ALJ’s conclusion that the seat caused Claimant’s occupational disease.  The Court additionally found that Claimant did not need to prove that the seat was defective in order to show compensability.  The Court further found that the evidence was specific to this case, and that the determination that this seat was a hazard to this Claimant was supported by evidence presented to the ALJ.

When is General Contractor Immune from Common Law Negligence as a “Statutory Employer?”:  In Pathong v. Tesco Corporation, No. 12-1455 (D.C.No.1: CV-00780-WJM-MJW) (D.Colo.), the 10th Circuit had to decide whether Tesco Corporation, as general contractor, was liable for the work injuries of its subcontractor.  Tesco Corporation contracted out drilling and personnel operations to a third party, with whom Claimant was injured when he sought relief under common law negligence.  The issue was whether Tesco enjoyed immunity from negligence claims under the Colorado Workers’ Compensation Act as a “statutory employer.”  The Act grants injured employees compensation from the employer without regard to negligence and, in return, the responsible employer is granted immunity from common-law negligence liability.  Section 8-41-401(1) of the Act makes general contractors ultimately responsible for injuries to employees of subcontractors.  However, under the statutory scheme, with this workers’ compensation liability comes immunity from common-law negligence liability.  To qualify for the immunity, a general contractor must carry workers’ compensation insurance per C.R.S. §8-41-401(1).  Whether a corporation is a statutory employer depends on the nature of the work contracted out.  To determine this, the Court used the “regular business test.”  The “regular business test” is satisfied where the disputed services are such a regular part of the statutory employer’s business that absent the contractor’s services, they would of necessity be provided by the employer’s own employees.  In other words, this is where the work is so essential that the business of the general contractor cannot continue to function without the task being performed by the subcontractor.  The Court held that even after contracting out its personnel services to operate the drilling rig to a third party, Tesco was still engaged in the drilling services business, and remained obligated to perform its duties under the contract.  Even as the general contractor subcontracting out the work on the rig, Tesco was still responsible for safety on the rig, providing the labor and equipment necessary to operate the rig, and designating the drilling locations and schedule.  Thus, as an important, routine, and regular part of Tesco’s business contracted out to the third party, Tesco maintained statutory immunity based on its status as a statutory employer.

legaLKonnection Firm Newsletter – June 2014

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 workers’ compensation community.
In the News

Lee + Kinder is excited to welcome our newest Associate Attorney, Jenna Zerylnick.  Ms. Zerylnick earned a Bachelor of Science in Social Science Education from the University of Georgia in 2007.  In 2010, she graduated in the top 8% of her law school class at Florida Coastal School of Law.  During law school, Ms. Zerylnick participated in the Florida Supreme Court Internship Program for distinguished law students where she clerked for Florida Supreme Court Justice James Perry.  She also served as the manuscript editor for the editorial board of the Florida Coastal Law Review and a research assistant for a professor specializing in Mental Health and Disability Law.

Prior to joining Lee + Kinder, Ms. Zerylnick worked at a general civil law firm in Sterling, Colorado.  She practiced a variety of civil law, including personal injury, family law, school law, and probate/estate planning.  She also taught American Government as an adjunct instructor at Northeastern Junior College.  We are very happy to have Jenna join the L+K team!
Victory Lap

Of Counsel Joshua Brown was recently successful in overturning the granting of unemployment benefits in Shahan v. Austin & Ambrose LLC, d/b/a Press Play Bar. Mr. Shahan was previously terminated from his employment as the General Manager at Press Play Bar due to his unprofessional conduct with the City of Boulder’s police and liquor licensing officials.  After termination, Mr. Shahan filed for unemployment benefits, which initially was granted by the Colorado Department of Labor and Employment. Upon appeal, Mr. Brown successfully convinced the hearing officer that Mr. Shahan was at-fault for his termination, thereby disqualifying him from benefits under Colorado law. Specifically, Mr. Brown offered persuasive evidence that Mr. Shahan’s conduct was rude, insolent and offensive towards police officers and licensing officials that was not reasonably to be tolerated by the officers involved.  Accordingly, Mr. Shahan’s claim for unemployment benefits was denied and dismissed.

Cases You Should Know

Additional Exceptions to the Coming to and Going from Work Rule.  The ICAO recently added another exception to the coming to and going from work rule, which originally stated that injuries incurred while traveling to or from work were not compensable. In the Matter of the Claim of Alice Norman, Claimant, W.C. No. 4-919-557-01, 2014 WL 1694754 (Colo. Ind. Cl. App. Off. Apr. 23, 2014), the ICAO ruled that a Claimant’s injuries sustained while driving to work were compensable because her job sometimes required her to use her personal vehicle to travel to various locations during the work day. In this case, the employee was injured in a car accident while travelling on the same road she would have used to drive to her office. But the employee intended to make a stop at a courthouse to pick-up work-related paperwork before going to the office. The Court reasoned that if a job requires an employee to use a personal vehicle to travel, the employee’s travel to and from work confers a benefit upon the employer that constitutes more than the mere arrival of the employee at work. The ICAO held that because the Claimant’s travel to work was a benefit to the employer contemplated by the contract of hire, any injuries sustained while driving to work were compensable.  This case demonstrates that Colorado Courts continue to limit the coming to and going from work rule, and broaden the zone of compensable injuries.

There must be an Employment Relationship Between the Claimant and the Employer to Find the Employer Liable. The ICAO overturned an ALJ’s Order and dismissed a Professional Employer Organization (“PEO”) from the claim because the Claimant was not an employee of the PEO within the meaning of the Act. In the Matter of the Claim of Imogene D. Ritthaler, Claimant, W.C. No. 4-905-362-02, 2014 WL 1884714 (Colo. Ind. Cl. App. Off. May 7, 2014), the Service Agreement between a school and a PEO indicated that the PEO was only responsible for workers’ compensation claims of employees who were on the PEO payroll. The school notified the PEO that the Claimant was taken off the PEO payroll system after she had retired from teaching. Without notifying the PEO, the school continued to pay Claimant directly as a substitute teacher. Claimant subsequently sustained a work-related injury, and the PEO denied the claim stating that there was no insurance coverage. The ICAO held that in a co-employment relationship, the Claimant must be employed by each employer in order to hold both employers liable under the Workers’ Compensation Act. The ICAO determined that because there was no employment contract relationship between the Claimant and the PEO at the time of the injury, the PEO could not be held responsible as an employer.  The ICAO further explained that, irrespective of the contractual relationship between the school and the PEO, the PEO was not liable for the claim because the Claimant was not deemed an employee of the PEO.

Firefighter Cancer Presumption Statute’s 5-Year Requirement Includes Periods of Volunteer Firefighter Service and Training.  The Colorado Court of Appeals was asked to interpret the firefighter cancer presumption statute and determine what service qualifies when calculating the 5-year period of employment as a firefighter.  City & County of Denver v. Industrial Claim Appeals Office, 2014 COA 62 (May 8, 2014).  According to Section 8-41-209, C.R.S., there is a presumption that certain cancers are compensable when they are contracted by a Claimant who has completed 5 or more years of employment as a firefighter.  In this case, the Claimant developed leukemia after he had worked as a firefighter for less than 5 years. However, the Claimant worked as a volunteer firefighter for 4 years and trained at an academy for 17 months prior to becoming an official firefighter. The Court of Appeals ruled that the statute does not indicate what service qualifies when calculating the 5-year period. The Court held that the length of firefighting service begins to run from the date on which a volunteer firefighter fights his first actual training fire. Thus, Claimant’s service as a volunteer firefighter and training at the academy counted as part of his employment as a firefighter, which triggered the firefighter cancer presumption statute.

Demand Appointments are Not Subject to Requirements of IMEs.   Claimant presented to a demand appointment with his authorized treating physician (“ATP”). Claimant refused to proceed with the appointment because the physician did not provide him with an IME advisement form. Claimant also requested that the examination be recorded, but the physician refused to do so. Claimant’s benefits were then suspended by the claims examiner pursuant to C.R.S. §8-43-404(3), which provides that benefits shall be suspended if an injured worker refuses to submit for examination of a demand appointment. Claimant argued that because he was ordered to attend the examination, the physician was required to comply with the requirements IMEs set forth in C.R.S. §8-43-404(2). The ICAO held that an authorized treating provider is not subject to the provisions governing IMEs since the statute concerning “time to time” evaluations do not govern the procedures relevant to ATPs.  Johnston v. Hunter Douglas, Inc. and Liberty Mutual Insurance Company, W.C. No. 4-879-066 (ICAO May 29, 2014).

Concurrent Death Benefits Not Permitted. An employee was killed while working in Colorado. However, the Dependents, Decedent’s wife and son, were residents of Mississippi. Respondents admitted the claim for death benefits under Mississippi’s workers’ compensation act. The Dependents then made a claim for benefits under Colorado’s workers’ compensation system. The ALJ determined Colorado had jurisdiction and ordered benefits under Colorado law. The Dependents then sought concurrent benefits from both Mississippi and Colorado. The ICAO held that pursuant to C.R.S. §8-42-114, the Dependents were not entitled to recover the aggregate amount of benefits under the laws of both states. Keel v. Transportation Technology Services and ACE, W.C. No. 4-897-030 (ICAO April 21, 2014).

52 Weeks in a Calendar Year. Also in the Keel case, the dependents argued Social Security offset should be calculated using 52.14 weeks instead of 52 weeks. The ICAO held that 52 weeks is the correct way to calculate offsets as this is used by both the General Assembly and the Division of Workers’ Compensation.

Respondents are Not Entitled to a 50% Offset of Benefits Paid Under Alternative State’s Workers’ Compensation if Colorado had Jurisdiction Throughout the Life of the Claim. Also in the Keel case, the Dependents argued that Respondents miscalculated the interest due on past due benefits, as Respondents were not entitled to the 50% offset of benefits paid under Mississippi law. The ICAO held that because the ALJ found Colorado had jurisdiction over the claim, the benefits paid by Respondents according to Mississippi law should have been paid under the Colorado benefits statutes the entire time. Therefore, Respondents were precluded from taking a 50% offset of benefits paid for receipt of another state’s workers’ compensation benefits under C.R.S. §8-42-114. Thus, Respondents owed 8% interest for overdue benefits of the difference between what benefits were paid and what was owed under Colorado law.

Respondents Retain Right to Object to Requests to Change Provider Even if Right to Designate Provider was Initially Waived. Claimant alleged a work-related low-back injury and requested medical treatment, which was denied. Claimant treated with a personal provider at Peak Vista. Claimant pursued hearing on the issues of compensability and authorized provider. Claimant asserted Respondents waived their right to designate a provider pursuant to C.R.S. §8-43-404(5). In closing arguments, Claimant’s counsel stated that Peak Vista would not treat Claimant for a work injury and as a result Claimant wished to treat with Dr. Hall. Respondents objected to the authorization of Dr. Hall. The ALJ found the claim compensable and that Dr. Hall was the authorized provider. The ICAO reversed the ALJ’s determinations. The ICAO held that even if the employer initially waived the right to choose the authorized provider, in the “first instance,” such a waiver does not preclude it from having any right to object to subsequent changes. Lesso v McDonalds and Gallagher Bassett (as TPA), W.C. No. 4-915-708 (ICAO April 14, 2014). The case emphasizes that an injured worker must properly request a change of physician even when the injured workers’ personal physician is designated as the ATP.

Authorization for Surgery is Not an Implied Waiver to Future Request for Treatment to Same Body Part. Claimant sustained an admitted work injury to his right ankle in December 2012. However, Claimant had an extensive history of prior injuries and treatment to his right ankle, including surgery in July 2012. In February 2013, Respondents authorized right ankle surgery to install new hardware. Afterwards, Claimant sought authorization for another surgery to remove hardware. Dr. O’Brien opined the needed surgery was due to Claimant’s preexisting condition and not his work injury. Respondents denied authorization for the second surgery and Claimant pursued hearing. ALJ Stuber held the surgery was related to this claim because Respondents had authorized prior surgery to the right ankle. The ICAO held that, although Respondents paid for prior medical procedures, the payment of those respective procedures did not operate as a generalized admission of liability for future treatment related to the work injury. Rodolfo v. ACE Hardware and Fidelity & Guaranty Insurance Company, W.C. No. 4-906-748 (ICAO May 6, 2014).

Colorado Legislative Changes Coming Soon

One of Lee + Kinder, LLC’s primary goals is to educate our clients and keep them apprised of changes in Colorado law.  There are some very important legislative changes coming in July 2014 to our workers’ compensation laws.

Additionally, in April 2015, the law requiring respondents designate two authorized treating providers will change.  The new law will require respondents to designate four authorized treating providers.  We hope you find the summary and flow chart provided below helpful.  Please do not hesitate to contact any of the attorneys at Lee + Kinder, LLC with questions about these significant changes.

Legislative Changes Summarization
SENATE BILL 14-191- effective date July 1, 2014

Section 1: C.R. S. §8-43-201-Medical Treatment Guidelines
An ALJ or the Director may consider the medical treatment guidelines when determining whether a requested medical treatment is reasonable, necessary and related to the injury. However, the ALJ or Director is not required to utilize the guidelines as the sole basis for such determination.

Section 2: C.R.S. §8-43-204-Settlement Documents
A represented claimant may submit settlement documents by email.  Original documents are not necessary if the claimant’s signature is notarized.  The Division may send the Order approving the settlement documents to the parties by email.

Sections 3 and 4: C.R.S. §8-43-209 and §8-43-211-Time schedule to set hearings
Hearings must commence within 120 days from the date of the application for hearing. The parties can agree to one extension of the hearing, not to exceed 60 days.

Section 5: C.R.S. §8-43-215-Orders
If an ALJ issues a Summary Order, any party dissatisfied with that Order may make a written request for a full Order within 10 working days after the date of mailing of the Summary Order.

Section 6: C.R.S. §8-43-315-Subpoenaing out of state witnesses
The Director, ALJ or PALJ may, upon good cause shown, order the attendance at a hearing or deposition of any party, or officer, director, employer, or agent of any party, who is located in another state. That witness shall appear in person, or by telephone, if so ordered.

If the witness fails, absent reasonable excuse to appear as ordered, then penalties may be assessed per §8-43-304(1).

Section 7: C.R.S. §8-43-318-Remand Order deadlines
If an Order is appealed and the Order is remanded with directions, the Director, or ALJ, shall issue an order consistent with those directions within 30 days from receipt of the remand.

Section 8: C.R.S. §8-43-404-Costs for IMEs/Discharge from care for non-medical reasons
If a claimant verifies that he/she will incur uncompensated wage loss because of a respondent IME, the respondent shall reimburse the claimant at the rate of $75 per day. This is in addition to transportation, mileage, food, and/or hotel costs.  The claimant has to request this reimbursement at least 3 business days before the IME.

If an ATP refuses to treat a claimant, or discharges them from medical care for non-­medical reasons when the claimant requires medical treatment to cure and relieve the effects of the injury, then the physician shall, within 3 business days, provide:

  • Written notice of the refusal or discharge by certified mail to the claimant.
  • The notice must explain the reasons for the refusal or discharge.
  • The notice must offer to transfer the claimant’s medical records to any new ATP.

The Director or ALJ has jurisdiction to resolve disputes whether the refusal or discharge was for medical or non-medical reasons.

If respondents receive written notice from the ATP, or if the respondents and the ATP receive written notice by certified mail from the claimant, that the ATP refuses to treat or discharges the claimant for non-medical reasons and there is no other ATP, the respondents shall, within 15 calendar days from receiving the notice from claimant, designate a new ATP willing to provide treatment. If respondents fail to do this, then the claimant may select their own ATP.

Section 9: C.R.S. §8-43-406-lump sums
If the claimant is an injured worker or sole survivor of a deceased worker, the aggregate of all lump sums cannot exceed $80,868.10.

If the claimant is one of multiple dependents of a deceased worker, the aggregate of all lump sums must be a proportionate share, as determined by the Director or ALJ, and shall not exceed  $161,734.15.

For all injuries after January 1, 2014, the Director shall adjust the lump sum limits each July 1 beginning in 2014, by the percentage of change (up or down) in the State AWW.

Claimants who have received a lump sum pursuant to this section are not entitled to any further lump sums as a result of an adjustment by the Director per the State AWW.
____________________________________________________________________________

Flow Chart Summary Re: Change to Designated Providers
HOUSE BILL 14-1383- anticipated effective date April 1, 2015
Current law requires an employer or insurer to provide a list of at least 2 physicians or corporate medical providers, or one physician and one corporate medical provider, to an injured worker from which to select a treating physician. This bill changes that number to 4 physicians or corporate medical providers.

Additionally, current law states that if there are fewer than 4 physicians or corporate medical providers within 30 miles of the employer’s place of business, the employer or insurer may instead designate one physician or corporate medical provider. This bill adds an exemption for rural areas where there are more than 3 but fewer than 9 physicians or corporate medical providers within 30 miles of the employer’s place of business.  The employer or insurer may instead designate 2 physicians or 2 corporate medical providers, or a combination of the providers.

ANALYSIS

Question #1 

Within 30 miles of the employer’s place of business, are there fewer than 4 physicians or corporate medical providers willing to treat workers’ compensation patients?

Yes – then the employer or insurer may list 1 physician or corporate medical provider and the claimant is not entitled to the automatic one-time change of physician. A physician is presumed willing to treat workers’ compensation patients unless he/she specifically indicates no. (C.R.S. §8-43-404(S)(a)(I)(B)).

No – then go to the next question.

Question #2 

Within 30 miles of the employer’s place of business, are there 2 or more physicians or 2 or more corporate medical providers with distinct locations and without common ownership?

No – then the employer or insurer may list 2 providers from the same location or with common ownership (C.R.S.§8-43-404(S)(a)(I)(A) and C.R.S.§8-43-404(S)(a)(I)(C)).

Yes – then go to the next question.

Question #3 

Within 30 miles of the employer’s place of business, are there more than 3, but less than 9, physicians or corporate medical providers willing to treat WC patients?

Yes – then the employer or insurer may list 2 physicians or corporate medical providers with distinct locations and without common ownership. (C.R.S. §8-43-404(5)(a)(I)(C)).

No – then go to the next question.

Question #4 

Within 30 miles of the employer’s place of business, are there 9 or more physicians or corporate medical providers willing to treat patients?

Yes – then the employer or insurer must list 4 physician or 4 corporate medical providers, or any combination thereof, with 1of the 4 providers being at a distinct location without common ownership. (C.R.S. §8-43-404(S)(a)(I)(A)).

No – then you have answered one of the prior questions incorrectly.

legaLKonnection Firm Newsletter – May 2014

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 workers’ compensation community.
In the News
Lee + Kinder is very excited to introduce you to the newest member of our team of legal professionals, Frank Cavanaugh.  Mr. Cavanaugh joins us as Of Counsel with 20 years of experience in the areas of workers’ compensation, general liability, subrogation and healthcare provider recovery.  We are very fortunate to be able to add Frank’s wide repertoire of experience and legal prowess to our growing knowledge base.
Frank M. Cavanaugh is an AV-rated attorney who is a past Colorado Bar Association Lance Butler award winner for professionalism.  He has been representing employers and their carriers in workers’ compensation matters for 20 years.  Mr. Cavanaugh has handled all aspects of workers’ compensation litigation from hearings to appeals before the Colorado Supreme Court. Mr. Cavanaugh has also handled workers’ compensation subrogation matters and workers’ compensation disability related employment claims. He has litigated general liability cases, including slip and fall, as well as auto liability cases.Mr. Cavanaugh has served as a co-chairman of the Colorado Defense Lawyers Associationworkers’ compensation section, has prepared and presented educational materials for continuing legal education seminars and has been qualified as an expert in workers’ compensation in district court litigation. In non-law related settings, Mr. Cavanaugh has served as a zoning board member for the City of Lakewood and prepared and instructed paralegal and standardized test preparation courses for tests such as the LSAT, GRE, GMAT, SAT and ACT.

Mr. Cavanaugh received his Juris Doctorate from Gonzaga University School of Law in 1991. He is a member of the Colorado Bar Association and Colorado Defense Lawyers Associations.

____________________________________________________________________________
The 2013 Annual Survey of Colorado Law was recently published for spring, and includes a separate workers’ compensation section with articles written by L+K’sOf Counsel Joe Gren and Associate Matt Boatwright. The publication involves a review of all Colorado Court of Appeals decisions rendered in 2013 and an examination of their potential and expected impact upon workers’ compensation actions going forward. Each year, the Colorado Bar Association relies upon attorneys throughout the state to volunteer their time to research and draft articles for this comprehensive publication. The annual law survey contains in-depth articles from a multiplicity of legal fields, including workers’ compensation, which practitioners from around Colorado rely upon for cutting edge legal updates. This is Mr. Gren’s third year writing for the Bar Association and Mr. Boatwright’s first year.  Their article explains how Colorado appellate court decisions impact current workers’ compensation proceedings and how the complex legal changes impact the future of this area of law.

Cases You Should Know

Determination of Independent Contractor Status: The Colorado Supreme Court recently rendered an opinion in ICAO v. Softrock Geological Services, 12SC501 (Colo. 2014) (nsfop).   The Colorado Supreme Court considered the question of whether an individual was an employee or independent contractor for purposes of the Colorado Employment Securities Act (CESA).  Section 8-70-115(1)(b), C.R.S. states that a person is only an independent contractor if the employer can show that (1) the person is free from control and direction in the performance of services and (2) the person is customarily engaged in an independent trade, occupation, profession or business related to the service performed.  The second requirement is met by considering the totality of the circumstances rather than be based on a document that lists the 9 factors contained under Section 8-70-115(1)(c), C.R.S.Section 8-70-115(1)(b), C.R.S. states that an employer attempting to show an individual is an independent contractor can do so by showing (1) the person is free from control and direction in the performance of services and (2) the person is customarily engaged in an independent trade, occupation, profession or business related to the service performed.  In the alternative, the employer can show a written document signed by both parties that establish limits on the relationship between the parties.  The 9 requirements are exactly the same as those contained under the Workers’ Compensation Act:

(A) Require the individual to work exclusively for the person for whom services are performed; except that the individual may choose to work exclusively for such person for a finite period of time specified in the document;
(B) Establish a quality standard for the individual; except that the person may provide plans and specifications regarding the work but cannot oversee the actual work or instruct the individual as to how the work will be performed;
(C) Pay a salary or at an hourly rate instead of at a fixed or contract rate;
(D) Terminate the work of the service provider during the contract period unless such service provider violates the terms of the contract or fails to produce a result that meets the specifications of the contract;
(E) Provide more than minimal training for the individual;
(F) Provide tools or benefits to the individual; except that materials and equipment may be supplied;
(G) Dictate the time of performance; except that a completion schedule and a range of negotiated and mutually agreeable work hours may be established;
(H) Pay the service provider personally instead of making checks payable to the trade or business name of such service provider; and
(I) Combine the business operations of the person for whom service is provided in any way with the business operations of the service provider instead of maintaining all such operations separately and distinctly.

These are relevant factors for the fact finder to consider, but they are not rigid ‘check box’ requirements.  The law applicable to the determination whether an individual is an independent contractor is similar in the workers’ compensation system and the unemployment insurance system.  ICAO has relied on cases construing the unemployment insurance statutes on multiple occasions while considering independent contractor status. For example, in Abbott v. Sangre De Cristo Hospice, W. C. No. 4-525-702 (2/26/03) the Panel relied on Carpet Exchange and Long View Systems to conclude as a matter of law that one job is insufficient to constitute customary engagement in an independent trade or business.  More recently see Allen v. America’s Best Carpet Cleaning Service, W.C. No. 4-776-542 (ICAO 12/1/09).

Occupational Disease Injury: In Western States Fire Protection/API Group and ACE American Insurance v. ICAO and Olsen, W.C. No. 4-891-495 (Colo. App. March 27, 2014) (nsfop), the Colorado Court of Appeals upheld a ruling in favor of Claimant concerning an occupational disease to the back from prolonged exposure to sitting in his work truck.  The Claimant had complained of pain in the back due to his truck seat beginning the month after first driving the truck, eventually filing a claim after a particularly long commute.  Respondents argued that compensability for an occupational disease due to exposure to the seat was not appropriate because the Claimant had equal exposure to a similar hazard, driving outside of work.  Respondents also argued that the Claimant had not demonstrated that the seat was defective.  However, the Court of Appeals agreed with the ALJ that the Respondents had not produced any evidence of an equal hazard outside of work which may have contributed to Claimant’s back pain, nor did any authority exist which required the Claimant to prove the seat was defective in order to establish an appropriate mechanism of injury for an occupational disease.

Previous Infractions of Safety Rule Do Not Prove Willful Violation: In Nightingale v. Lowes Home Improvement WarehouseInc.  (W.C. 4-912-834-01, April 3, 2014) the issue was whether Claimant’s benefits should be reduced for violation of a safety rule; specifically, failure to wear a safety harness.  C.R.S. §8-42-112(1) provides for a 50% reduction in benefits if there is a willful violation of a safety rule.  The term “willful” denotes deliberate intent. It is respondents’ burden to prove that the violation was willful. However, respondents are not required to present direct evidence concerning a claimant’s state of mind or prove that a claimant had the rule “in mind”.  Instead, willfulness may be inferred from evidence that the claimant knew the rule and the prohibited act.  Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968).  In this case, the ALJ found that there was no credible evidence showing willfulness, despite the testimony of another employee stating that he saw the Claimant wearing the harness and subsequently seeing the Claimant fall on the floor, no longer wearing the harness. The fact that there was testimony, including from Claimant himself, that he had a previous infraction for violating the same safety rule, did not provide an inference that he had willfully violated the safety rule and had unlatched the safety harness.  Respondents, therefore, did not meet their burden and were not permitted to take the safety rule violation offset.

Retroactive Pay Included in AWW:  C.R.S. §8-42-102(3) grants an Administrative Law Judge (ALJ) substantial discretion to calculate average weekly wage (AWW) if the statutorily prescribed methods will not “fairly compute” it.  Because of this statutory discretion, there can be no interference with an Order unless there has been a clear abuse of that discretion by the ALJ. Pizza Hut v. ICAO, 18 P.3d 867 (Colo. App. 2001).  In a recent case, Briseno v. Boise Paper Holdings, LLC (W.C. 4-901-980-01, March 18, 2014) the ALJ held that retroactive pay and retroactive overtime were included in calculating AWW, because the evidence presented by Respondents was not clear as to how those payments fluctuated or why they appeared on wage records.  The review panel could not say that there had been an abuse of the discretion or that the ALJ’s opinion was not supported by substantial evidence and therefore allowed the AWW calculation to include the retroactive pay.

Orders Inconsistent with Medical Treatment Guidelines are Permissible:  Madrid v. Trinet Group, Inc.  (W.C. 4-851-315-03, April 1, 2014) addressed this issue. In Rule 17-(C), “the Division recognizes that reasonable medical practice may include deviations from these Guidelines, as individual cases dictate.” These types of cases refer providers to the preauthorization procedure of Rule 16.  Since preauthorization procedure disputes require eventual adjudication through the Office of Administrative Courts, the Court held that it is apparent that an ALJ has some discretion to approve medical treatment which deviates from the Guidelines.   Therefore, the Guidelines are not mandatory where there is a reasonable deviation by a provider.

Judge is Not Recusable for Bias Based on Facts and Circumstances of the Case: InMcCormick v. Exempla Healthcare (W.C. 4-594-683-07, April 1, 2014), Respondents asserted that the ALJ formed an improper adverse inference that unconsciously tainted his opinions, and that he erred by re-issuing an Order without addressing the alleged appearance of impropriety. Respondents argued that its due process rights were violated when the ALJ failed to recuse himself after conducting an in camera review of the adjuster file and the employer file on the Claimant.  The Court held that an in camera review does not disqualify an ALJ because ALJs and trial court judges routinely conduct in camera reviews of evidence alleged to be protected from discovery by privilege, in order to determine whether such evidence is discoverable.  Sheid v. Hewlett Packard, 26 P.2d 396 (Colo. App. 1991).  A judge is not recusable for bias that is based on the facts and circumstances of the case, even where the court is exceedingly ill disposed toward a party.  Watson v. Cal-Three, LLC, 254 P.3d 1189, 1192 (Colo. App. 2011).  The Court held in this matter that the ALJ is not precluded from reviewing the personnel files in camera merely because a PALJ previously ruled that such files were irrelevant. While orders of a Prehearing Administrative Law Judge [PALJ orders are binding per C.R.S. §8-43-207.5(3)], the statute does not confer exclusive jurisdiction to a PALJ to resolve disputes on evidentiary matters.  Rather, an ALJ may consider and rule on a party’s request to reconsider a PALJ’s discovery ruling.

Failure to Plead Penalties with Specificity: In Salad v. JBS USA and Zurich American Insurance, W.C. No. 4-886-842 (ICAO, March 27, 2014), the ICAO upheld an ALJ’s Order striking the Claimant’s Application for Hearing endorsing penalties for fraud on the basis that the Claimant failed to plead the penalty with sufficient specificity.  The general penalties statute under which Claimant pled penalties, C.R.S. §8-43-304(4), requires that a party “shall state with specificity” the grounds for the penalty.  Here, the Claimant did not identify the specific statute, rule, or order which was allegedly violated by the error or Respondents, other than an insufficiently supported general penalty.  Additionally, the Claimant did not identify any material facts in dispute in his response to Respondents’ Motion for Summary Judgment.

Placement of Burden of Proof for Overcoming the DIME: The recent ICAO decisionSimpson v. Safeworks and Insurance Company of the State of Pennsylvania, W.C. No. 4-877-091 (ICAO, January 23, 2014), involved determination of which party bore the burden of proof to overcome the DIME where the DIME physician’s opinion concerning MMI was originally conflicting.  The Claimant was originally placed at MMI by the authorized treating physician and underwent a DIME, which agreed with the original date of MMI.  However, additional medical opinion caused the DIME to waver on MMI during a subsequent deposition and the DIME physician thereafter issued an addendum opinion definitively opining that the Claimant was not at MMI.  The ALJ determined that the addendum DIME opinion was the ultimate medical opinion on MMI and placed the burden upon Respondents to overcome the DIME at hearing, which they failed to do.  ICAO upheld the ALJ’s opinion, stating that it was established law that it is within the ALJ’s authority to determine the DIME’s true opinion where prior conflicting opinion exists.  Therefore, the Court held that placing the burden to overcome the DIME by clear and convincing evidence upon Respondents was appropriate because the DIME’s ultimate conclusion was judicially determined to be against Respondents.

Causation and Overcoming the DIME: The ALJ’s opinion that Respondents successfully overcame the DIME on the issue of causation of permanent impairment was upheld in Solis v. Schwartz’s Krautburger and Kitchen and Truck Insurance Exchange, W.C. No. 4-800-423 and 4-795-922 (ICAO, March 18, 2014).  The Claimant had two admitted work injuries, one to her right hand and a subsequent injury to her low back and neck.  The Claimant underwent unauthorized lumbar surgery.  After extensive medical treatment and involvement of the DIME, the Claimant was eventually placed at MMI and given permanent impairment by the DIME for both the right hand and back condition.  However, Respondents introduced medical evidence at hearing indicating that the back injury was preexisting and unrelated to the work injury and therefore the rating for specific disorders of the spine given by the DIME for lumbar impairment was inappropriate.  The ALJ agreed and held that Respondents had overcome the DIME as to impairment of the back by clear and convincing evidence.  Upon appeal, the Claimant contended that a rating for specific disorders of the spine was not precluded simply because the lumbar surgery was unauthorized.  The ICAO upheld the ALJ’s opinion, however, noting that the medical guidelines require that causation be determined for purposes of rendering an impairment rating, and that a rating for specific disorders of the spine must be supported by a compensable injury.  Here, the Respondents had established that the spinal condition which necessitated surgery was unrelated to the work injury and therefore any consequent permanent impairment was likewise unrelated.

Statute of Limitations to Bring Claim:  In Taylor v. Summit County, W.C. No. 4-897-476 (ICAO, March 18, 2014), ICAO upheld the ALJ’s Order finding that the Claimant was not time-barred by the statute of limitations to file her workers’ claim for compensation (WCC).  Under C.R.S. §8-43-103(2), a claimant who sustains a work-related injury must file a WCC within two years of the date of injury, excepting certain circumstances. In this instance, the Claimant sustained an injury to her hip in January of 2010 but remained on full duty, later complaining of continued pain in the hip and seeking additional treatment in January of 2011, when she received work restrictions.  The Claimant did not file a WCC until September of 2012.  The ICAO held that the criteria under City of Boulder v. Payne, 426 P.2d 194 (Colo. 1967), applied in this instance.  The Colorado Supreme Court held in Boulder that the statute of limitations does not begin to run until the claimant, as a reasonable person, knows or should have known the nature, seriousness, and “probable compensable character” of the injury, where “compensable” means entitlement to payment of compensation benefits.  Applying these criteria, the ICAO held that the statute did not begin to run until the Claimant received work restrictions in January of 2011, thus placing her within the statute of limitations at the time she filed her WCC.

Compensability:  The ICAO upheld the ALJ’s Order denying workers’ compensation benefits to Claimant in Wilcox v. JHCI Holdings and Zurich American Insurance Company, W.C. No. 4-884-343 (ICAO, January 23, 2014).  The Claimant indicated that she sustained a work-related injury to her right shoulder on February 17, 2012 after closing the door to a trailer.  However, evidence at hearing indicated that the Claimant had a preexisting condition which had previously been surgically addressed.  Additionally, the Claimant’s testimony revealed numerous inconsistencies in reporting of the injury to both the employer and her providers.  ICAO upheld the ALJ’s opinion on the basis that it was supported by substantial evidence in the record.

Issue Preclusion Does Not Apply to Different Burden of Proof:  This issue was addressed in Madrid v. Trinet Group, Inc.  (W.C. 4-851-315-03, April 1, 2014).  The Court of Appeals has held that issue preclusion does not apply where the burdens of proof differ. In this case, the DIME physician’s determination regarding the existence of a compensable injury had no standing in the face of a prior decision on this issue, because they were both subject to a preponderance of evidence standard.  However, the DIME physician’s opinion concerning a particular component of Claimant’s impairment must be overcome by clear and convincing evidence. Qual-Med v. ICAO, 961 P.2d 590 (Colo. App. 1998).  Therefore, this issue was not precluded from being reviewed.

Attorney’s Fees for Endorsing Unripe Issues May Only be Assessed on Represented Parties: C.R.S. §8-43-211(2)(d) allows a party to be awarded attorney’s fees for the endorsement of unripe issues by another party.  However, the Court held in Barrera v. ABM Industries (W.C. 4-865-048-03, March 28, 2014) that the awarding of attorney’s fees may only be assessed to represented parties, not pro se claimants.

legaLKonnection Firm Newsletter – April 2014

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 workers’ compensation community.
In the News
We are proud to announce that our very own Josh Brown was recently nominated as Outstanding Respondent Attorney by Professionals in Workers’ Compensation.  The PWC platform brings together professionals from all sides involved in the workers’ compensation system – judges, counsel, physicians, insurance carriers, adjusters, third-party administrators, and employers – to meet and interact with each other through various events and educational programs, allowing them to network and stay current with the constant evolution of the Colorado Workers’ Compensation system.  The PWC Awards were established to recognize those in the workers’ compensation arena for their contributions to the community as well as their professional achievements.  Congratulations Josh on your nomination!

The Victory Lap

Tiffany Kinder and Daniel Watlington were successful in a Motion for Summary Judgment in William Benton v. Lowe Enterprises, Inc. and Federal Insurance Company. Claimant filed an Application for Hearing seeking a higher AWW to account for Claimant’s out-of-pocket costs for continuing his group health insurance. Ms. Kinder and Mr. Watlington drafted a persuasive Motion for Summary Judgment, arguing well-established case law that so long as the employer has continued to pay its share of the insurance premium, then Respondents are not obligated to increase the AWW. The Motion was granted and the Claimant’s Application for Hearing was struck as unripe.  Claimant’s request for an increased AWW was denied.

 

Jessica Melson successfully limited Claimant’s increase in AWW to just over $12 in Max Sterling v. Red Lobster USA and Liberty Mutual Insurance. Claimant originally sought to increase his AWW to $350.66 based on wages 46 weeks prior to his date of injury. Respondents offered credible testimony from the employer and evidence that in the 13 weeks prior to the injury, Claimant voluntarily requested a reduction in his hours to have more time to pursue his own business and to play in a band. Additionally the ALJ found Claimant lacked credibility when he could not recall why his hours were reduced during direct examination. The ALJ limited Claimant’s AWW to $249.36 based on his wages 13 weeks prior to his injury.

Cases You Should Know

Quasi–Course of Employment Doctrine Applies to injuries sustained during medical treatment for work-related injuries: In Bopp v. Garden Square Assisted Living (W.C. 4-893-767, February 6, 2014), Respondents were successful in their Motion for Summary Judgment arguing that Claimant’s injuries sustained from her chiropractic care were not a new separate compensable injury, but were a result of her 2009 workers’ compensation claim that had been settled.  Respondents argued that the injuries were sustained under the Q-Employment Doctrine.   Under this Doctrine, the employer is required to provide medical care, so any injury sustained as a result of traveling to obtaining medical care is compensable.  Jaroinski v. ICAO, 62 P.3d 1082 (Colo. App. 2002). It is implied that an injury sustained during the treatment is also compensable. Id.  In the Bopp case, Claimant’s 2009 claim had been settled and contained language barring Claimant from recovery for other medical conditions as a result of her 2009 injury.  The Court ruled, based on Price Mine Service, Inc. v. ICAO, 64 P.3d 936 (Colo. App. 2003), that injuries sustained under the Quasi-Employment Doctrine are compensable consequences of the original injury and not a separate claim.Disputes in DIME Physician qualifications must be made prior to completion of the DIME:  In Hester v. Eco Express, LLC and Acuity Insurance (W.C. 4-838-236-03, March 11, 2014), Claimant failed to timely object to the selection of the DIME physician.  Claimant objected to the DIME physician after the DIME report was submitted by the physician.  Under the Workers’ Compensation Rules of Procedure, Rule 11 provides specific guidance on filing objections to the DIME physician selected from the panel.   In this particular case, Claimant attended three separate DIMEs with a selected physician.  Claimant objected that the DIME physician was not a spine surgeon.  ICAO ruled that Claimant could not object after completion of the DIME simply because he was unsatisfied with the result.Orders which do not require payment of benefits or penalties or deny benefits are not subject to review: Under C.R.S. §8-43-301(2), a party dissatisfied with an order that requires any party to pay a penalty or benefits, or denies a claimant any benefit or payment, may file a petition to review.  Consequently, orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review.  This subject continues to be litigated and was again considered in Merrett v. State of Colorado, Dept. of Public Safety, Colo. State Patrol (W.C. Nos. 4-912-519-01 & 4-912-520-01, March 10, 2014).  Claimant had only endorsed compensability and medical benefits for the initial hearing.  Compensability was denied.  ICAO declined to review the Claimant’s appeal of the denial, finding Claimant endorsed neither payment of a particular medical benefit/bill nor any indemnity benefits.  It is necessary to always endorse some particular benefit, and not just compensability, in order to preserve the right to file a petition to review.

Time period to reimburse mileage: Claimant was awarded penalties for Respondents’ failure to reimburse the Claimant for medical mileage within 30 days for alleged violation of W.C.R.P. 16-11 and C.R.S. §8-43-401(2)(a).  However, ICAO held that the 30-day period to pay medical bills in Rule 16-11 and C.R.S. §8-43-401(2)(a) was applicable to uncontested medical bills submitted by a provider. Rule 18-6(E) does not specify a time limit within which to reimburse an injured worker for mileage. Therefore, ICAO held no penalties were to be awarded. Richardson v. Pizza Hut, Inc. and Zurich, W.C. 4-560-586 (ICAO February 7, 2014).

Conflicting DIME reports regarding MMI: In Simpson v. Safeworks LLC, and Insurance Company of the State of Pennsylvania, W.C. 4-877-091, (ICAO January 23, 2014), Claimant pursued a DIME and the DIME physician opined he had reached MMI. However, afterwards, the DIME physician issued an addendum DIME report and concluded the Claimant was not at MMI. The ALJ determined that the record contained conflicting MMI determinations by the DIME physician but that the DIME physician ultimately found Claimant not at MMI. As such, the ALJ placed the burden on Respondents to overcome the DIME opinion by clear and convincing evidence. The ALJ opined Respondents failed to overcome the DIME opinion. ICAO noted that if the DIME physician offers ambiguous or conflicting opinions concerning MMI, it is for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a matter of fact. ICAO upheld the ALJ’s determination.

Increased work restrictions do not always indicate worsening condition:  In this Colorado Court of Appeals case, Claimant sustained an injury to his right shoulder. He did not immediately seek medical attention. The next day Claimant reported the injury to his employer. Claimant was seen by the physician assistant who released him to return to work with no restrictions. He was also given a drug test which was positive for morphine. Claimant was terminated. Afterwards, Claimant returned to the same clinic where the doctor ordered him “off work.” Claimant sought TTD benefits despite his termination, alleging his condition worsened after he was terminated and therefore his wage loss was attributable to his injury and not his termination. See Anderson v. Longmont Toyota, Inc.102 P.3d 323 (Colo. 2004); C.R.S. §8-42-105(4). The Court noted that the ALJ may consider several factors when considering whether a condition has worsened.  An increase in work restrictions alone is not per se evidence of a worsening of condition. The Court upheld the ALJ’s order denying Claimant’s request for TTD benefits. Apex Transportation Inc. v. Vigil, W.C. No. 4-850-101 (Colo. App. March 13, 2014)(nsfop).

Injured worker lacks credibility when providing inconsistent mechanisms of injury: Claimant reported different mechanisms which caused her shoulder injury, including closing a truck door and lifting a heavy fish tank. Claimant also had a prior workers’ compensation injury to her right shoulder which had settled. Due to the numerous inconsistencies in the Claimant’s versions of events, the ALJ denied the Claimant’s claim for compensation, and ICAO upheld the determination. Wilcox v. JHCI Holdings and Zurich American Insurance, W.C. No. 4-884-343 (ICAO January 23, 2014).

legaLKonnection Firm Newsletter – March 2014

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 workers’ compensation community.
In the News
                         Joseph W. Gren, 2014 Rising Star, Katherine M. Lee, 2012-2014 Super Lawyer,
Tiffany Scully Kinder, Partner, Joshua D. Brown, 2014 Rising Star
Lee + Kinder, LLC is very proud to have three of its own recognized by Super Lawyersas outstanding in their field: Katherine M. Lee named Super Lawyer 2012-2014Joseph W. Gren named 2014 Rising Star, and Joshua D. Brown named 2014 Rising Star.  Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.  The Rising Stars list is developed using the same patented multiphase selection process used for the Super Lawyers list except to be eligible for inclusion, a candidate must be either 40 years old or younger, or in practice for 10 years or less.  Under this rigorous selection process, only the top 5% of lawyers in a state are named to the Super Lawyers list, and only the top 2.5% to the Rising Stars list.

A very warm welcome to the Firm’s newest Associate Attorney, Austin Wolfe.  Mr. Wolfe earned his Bachelor of Arts degree from Temple University, where he majored in English Literature with a minor in religious studies.  Prior to attending law school, he earned his master’s degree in legal administration from the University of Denver Sturm College of Law.  During this time, Mr. Wolfe worked in both the United States Bankruptcy Court and United States District Court for the District of Colorado, where he worked with judicial performance standards and operation procedures in the clerk’s office.  Mr. Wolfe earned his law degree from Villanova University School of Law in 2013.  During law school, Mr. Wolfe interned in the Pennsylvania Governor’s Office of General Counsel and Department of Corrections.  He was also a student attorney with the Farmworker Legal Aid Clinic, where he represented clients in consumer bankruptcy and various immigration proceedings.  Mr. Wolfe is a member of the Colorado and Denver Bar Associations, the Colorado Defense Lawyer’s Association, and Professionals in Workers’ Compensation.

The Firm would like to congratulate Partner Tiffany Scully Kinder and her husband Kyle on the birth of their son, Ryker Dean Kinder.  Ryker entered the world on Sunday, March 2, 2014 at 9 lbs. 13 oz. and 20.5 inches long.  Mother and son are both doing very well.

The Victory Lap
Partner Tiffany Scully Kinder was successful in a full contest win inPriscilla Coe v. Comcast Corporation and Indemnity Insurance Company of North America.  Claimant alleged to have sustained an aggravation to a pre-existing, degenerative cervical condition as a result of allegedly repetitive activities at work. Claimant also alleged that her workstation was not ergonomically correct, causing her to suffer myofascial symptoms. Ms. Kinder offered persuasive evidence at hearing, showing that Claimant’s symptomatology was attributable solely to her degenerative condition and was not related to her work activities. On cross-examination, Ms. Kinder skillfully questioned Claimant’s expert witness, Dr. Edwin Healey, who ultimately acknowledged that he was unable to determine conclusively to what degree, if any, Claimant’s work activities contributed to her symptoms. Claimant’s claim for workers’ compensation benefits was denied and dismissed.

Cases You Should Know
Halfway houses are not jails for purposes of denying WC benefits: According to the statute, claimants cannot receive WC benefits if they are confined in a jail, prison, or any department of corrections (DOC) facility. C.R.S. §8-42-113(1). In Frank Deshane III v. GCA Services Group, the Claimant was a convicted felon who was ordered to live in a halfway house following his release from prison. Respondents argued that the Claimant was precluded from receiving temporary disability benefits because he was “confined” as a result of his felony. ICAP determined that the Claimant was entitled to benefits while staying at the halfway house because he was not “confined” to a location that was a jail, prison, or DOC facility.  ICAP reasoned that a community corrections program is not a jail, prison, or DOC facility.

Orders Related to Issues Not Asserted on a Hearing Application May be Overturned for Lack of Notice: In Lisa Marie Huskinson v. Metro Construction, Inc., the uninsured employer failed to appear at the scheduled hearing. The record showed that the employer received several notices indicating that the topics for hearing included compensability, medical benefits, and AWW. At hearing, the ALJ found the claim compensable, awarded medical benefits, established AWW, awarded temporary disability benefits, and assessed penalties against the employer. On appeal, ICAP found that the employer received proper notice despite the fact that some of the pleadings misstated the employer’s name. However, ICAP ordered that the award of additional benefits and penalties be set aside because the employer was not notified that these issues were going to be determined at hearing.

Respondents Can “Cure” a Violation for Failure to Timely Exchange Medical Records by Ultimately Providing the Medical Record to the Claimant: In Sally Luke v. Hospital Shared Services, the Respondents failed to exchange a medical records review report with the Claimant for one month after receiving the report. Claimant filed an Application for Hearing seeking penalties for Respondents’ failure to properly exchange the medical record pursuant to W.C.R.P. 5-4(a)(5). On appeal, ICAP agreed with the ALJ and determined that Respondents cured their violation when they ultimately exchanged the medical record with the Claimant. Penalties were not warranted because the violation was cured and Claimant could not prove she was actually injured by the violation.

ALJs Have Broad Discretion to Determine Whether to Permit Testimony at Hearing: In Gilbert Padilla v. Wal-Mart Stores, Inc., an ALJ prevented the Claimant from presenting the testimony of his wife after Claimant failed to list his wife as a potential witness. The ALJ determined that the testimony was not rebuttal evidence, but did not state the factual basis for making this determination. On appeal, Claimant argued that the ALJ abused his discretion in not allowing the rebuttal testimony. While ICAP noted that an ALJ has wide discretion to control a hearing and make evidentiary rulings, it remanded the case because the ALJ did not indicate why he decided that the evidence was not rebuttal testimony. ICAP instructed the ALJ to use his discretion and determine whether to permit the testimony.

Issue Preclusion:  In Snell v. City and County of Denver, W.C. No. 4-318-938 (ICAO February 6, 2014), the ICAO set aside the previous order of an ALJ who granted Respondents’ Motion for Summary Judgment based upon issue preclusion, which prevents a person from litigating an issue which has already been determined by another court.  The Claimant filed a workers’ compensation claim in 1996, alleging injuries for mental impairment and hypertension originating in 1981.  However, the Claimant also indicated that the date of injury for mental impairment was unknown.  Respondents argued that, because the Claimant had a prior compensable claim in 1981 for hypertension which was closed, issue preclusion barred the new claim because it appeared to involve an injury for which compensability had already been determined.  The ICAO noted that, while precedent for issue preclusion in such an instance did establish that issue preclusion may be appropriate in instances where the claim for the subsequent injury does not differ from the initial injury, it was inappropriate in this instance because the Claimant had also indicated he suffered the onset of mental illness at an unknown date.  The Court held that this was a different injury than hypertension and therefore the claim was not barred by issue preclusion.

Penalties:  In Teegardin v. J.C. Penney Company, W.C. No. 4-748-106 (ICAO January 17, 2014), the ICAO upheld an order by an ALJ denying penalties endorsed by Claimant for Respondents’ alleged failure to provide medical care, dictate medical care, and attorney’s fees.  Respondents initially denied care through Claimant’s family physician due to their being unaware of a prior referral by the authorized treating provider.  Upon a hearing at the request of Respondents on the issue, ALJ Henk found that the family physician was authorized through the chain of referral and treatment through her was reasonable, necessary, and related to the work injury.  Claimant thereafter sought penalties against Respondents for failure to provide medical care, dictation of care, and attorney’s fees for preparation for hearing.  Respondents also sought penalties against Claimant for endorsing an unripe issue.  ALJ Walsh denied all penalties, finding that the Claimant had failed to meet her burden to show that Respondents acted unreasonably because there was no evidence provided to them regarding the chain of referral while care was being denied.  ICAO affirmed.

Compensability of Unexplained FallsCity of Brighton v. Rodriguez, –P.3d– (Colo. 2014) marked a pivotal case on the determination of compensability of unexplained falls in the workplace. In City of Brighton, the Colorado Supreme Court held that unexplained falls are the result of a neutral force and therefore necessarily arise out of a claimant’s employment.  Accordingly, where a claimant is within the course and scope of his employment and sustains an unexplained fall, the criteria under this decision consequentially make any resultant injury compensable, absent a valid defense.  In this case, the Claimant was descending stairs at work and suddenly fell without further explanation.  It was later found that the Claimant was susceptible to brain aneurysms.  Nevertheless, the Court held that unexplained falls, as a category, constitute a “neutral force,” meaning that they are neither related to an inherent risk of employment or a personal cause.  The Court further determined that such injuries necessarily arose out of the employment because, but for the circumstances of employment in which the injury occurred, the injury would not have occurred.  The Court indicated that, while neutral forces are not inherently work-related, the employment nevertheless is a causal factor in placing the Claimant at risk of the neutral force because it obligates the Claimant to engage in various work-related functions at the time of injury.  According to the Court’s reasoning, unexplained falls occurring at work are therefore work-related injuries because they are sustained within the course and scope of employment and sufficiently related to the obligations of employment.  While evidence of an alternative, personal cause may still be a sufficient defense, the Court noted in Brighton that the ALJ had determined that the fall was not caused by Claimant’s aneurysms.  In addition to this holding, the Court also held that a party seeking to modify an admission of liability must prove by a preponderance of the evidence that it is entitled to a modification.

Payment of TTD after placement at MMI:  The Colorado Supreme Court ruled inHarman-Bergstedt v. Loofbourrow, –P.3d– (Colo. 2014), that a claimant may still be entitled to TTD benefits after placement at MMI where no DIME had been pursued, albeit under the unique circumstances of this specific claim.  In Loofbourrow, the Claimant reported an injury to her back to her employer but missed no time from work (under C.R.S. §8-42-103(1)(a), a claimant is not statutorily entitled to TTD where there is not over three days missed from work).  The employer never reported the injury to the DOWC and Claimant was placed at MMI shortly after the injury.  No admission was ever filed.  Nearly a year later, the Claimant alleged a work-related aggravation of the initial injury and sought a hearing on compensability and TTD benefits, also petitioning to reopen the previous claim.  Because the initial claim had never been adjudicated compensable, the ALJ regarded the subsequent claim as new.  Nevertheless, the Respondents argued that the Claimant could not be entitled to TTD because she had been placed at MMI for this injury with no lost time prior to that date.  Respondents argued that the Claimant never pursued a DIME to challenge the determination of MMI and therefore Claimant was precluded from collecting TTD benefits beyond that date.  The Court held that, while the determination of MMI is relevant for the purposes of medical care, it has no statutory significance with regard to injuries in which a claimant is off work for three days or less.  The Court reasoned that MMI was only relevant for cases in which indemnity was payable and therefore inapplicable to the circumstances of this particular case.

Page 1 of 41234