Please follow Lee + Kinder LLC on LinkedIn
Member Tiffany Scully Kinder and Associate Kristi Robarge succeeded in a Motion for Summary Judgement in Jones v. Comcast Corporation and Indemnity Insurance Company of North America. Due to Claimant’s extended leave of absence, her discounted cable and internet services through Comcast were discontinued. Claimant alleged that her average weekly wage should be increased to reflect the value of these fringe benefits. Respondents filed a Motion for Summary Judgement arguing that fringe benefits such as discounted cable services were not wages pursuant to C.R.S. § 8-40-201(19)(b). Respondents’ Motion for Summary Judgement was granted and Claimant’s Application for Hearing, endorsing the issues of average weekly wage and temporary total disability benefits, was dismissed with prejudice.
In Dumas v. Sodexo and New Hampshire Insurance Company, Member Karen Treece defeated Claimant’s request for workers’ compensation benefits. Claimant alleged he slipped and fell while working in the kitchen and sustained multiple injuries. Ms. Treece presented credible evidence from the employer that established Claimant was disrespectful, insubordinate, and defiant to his employer, as well as disrespectful and intimidating toward his staff. ALJ Jones did not find the Claimant credible, as he provided an inconsistent medical history to the medical providers. ALJ Jones denied and dismissed the claim.
Member Joseph Gren and Associate Daniel Mowrey defeated Claimant’s attempt to overcome the DIME physician’s opinions as to apportionment by clear and convincing evidence in Garciav. United Parcel Service and Liberty MutualInsurance. The DIME physician apportioned Claimant’s rating with the rating she received for her 2008 injury. Respondents admitted for the apportioned rating and filed a Final Admission of Liability (FAL). Claimant filed an Application for Hearing contesting the apportionment. Claimant alleged that the conditions from her current injury were not present in the prior injury and apportionment was therefore not appropriate. Claimant further argued she needed to overcome the DIME’s opinion by only a preponderance of the evidence burden. ALJ Jones found that Claimant provided no new medical evidence which had not been reviewed by the DIME physician in his determination of apportionment. Mr. Gren discredited Claimant by putting forth medical records that revealed her testimony was not consistent with the medical records. ALJ Jones credited Respondents’ case law met the clear and convincing standard and found that Claimant failed to overcome the DIME’s opinion as to apportionment.
Of Counsel M. Frances McCracken successfully defeated Claimant’s request for medical benefits and recovered an overpayment in the amount of $12,841.25 for Respondents. In Gomez v. The Brickman Group, LTD. and Indemnity Insurance Company of North America, Claimant sought maintenance medical benefits in the form of lumbosacral injections. Ms. McCracken presented expert medical testimony that additional lumbosacral injections recommended by Claimant’s ATP were not reasonable, necessary or related to the admitted injury. Ms. McCracken further argued that Respondents should be allowed to recover an overpayment of temporary total disability benefits paid after Claimant was placed at MMI. ALJ Cannici found that Respondents were entitled to recover the full overpayment of benefits after MMI placement. The ALJ further found Respondents’ expert medical testimony credible and persuasive, and therefore denied and dismissed Claimant’s request for lumbosacral injections.
In Chism v. Walmart Stores Inc, Of Counsel M. Frances McCracken successfully appealed ALJ Mottram’s Order wherein the ALJ ordered authorization for a left shoulder reverse total arthroplasty as maintenance medical care. The ALJ found the surgery reasonable and necessary to “cure and relieve” the effects of the work injury. On appeal, Ms. McCracken argued the ALJ committed reversible error because arthroplasty was not a benefit for which Respondents were liable, given that Claimant was at MMI and pursuing treatment under an admission for post-MMI medical benefits. ICAO reiterated that if the goal of treatment is curative, an ALJ must deny the request for post-MMI medical benefits. ICAO remanded the case to ALJ Mottram to determine whether the requested surgery is compensable post-MMI treatment or whether it is curative and must be denied.
Associate Matt Boatwright successfully challenged Claimant’s appeal in Leal v. United Parcel Service and Liberty Mutual Insurance. Compensability of the claim was denied by the hearing ALJ on the basis that Claimant failed to show a direct causal link between his job duties and injury, referencing the “special hazard of employment doctrine” as part of her legal analysis. On appeal, Claimant argued that the ALJ misapplied the special hazard of employment doctrine in denying the claim, arguing that Claimant only needed to show that “but for” the circumstances of employment, Claimant would not have suffered an injury. ICAO found that the ALJ’s holding was based in part on Respondents’ expert testimony, and further the ALJ found that there was no causal relationship between the injury and employment, regardless of the application of the special hazard rule. ICAO found that the findings were supported by substantial evidence and that the ALJ’s Order should therefore be affirmed.
Associate Jessica Melson successfully defeated Claimant’s attempt to add her cervical spine and left shoulder to the claim in Schlecht v. Patterson UTI Drilling Energy, Inc. and Liberty Mutual. Claimant fell at work and sustained an admitted injury to her right shoulder. Claimant later attempted to include her left shoulder and cervical spine. Medical treatment for the additional body parts was denied and the claim proceeded to hearing. Claimant argued that she injured her left shoulder either in the work-related fall or from “overuse or overcompensation” due to the right shoulder injury. Claimant further alleged that she injured her cervical spine in the fall. ALJ Jones did not find the Claimant credible as she reported multiple different mechanisms of injury and failed to disclose an intervening motor vehicle accident to her medical providers. Ms. Melson discredited Claimant’s IME expert by showing he initially opined he was unsure how Claimant injured her left shoulder as the described fall would not have caused the injury. But the doctor later opined Claimant’s left shoulder injury was directly related to the fall. ALJ Jones denied Claimant’s request for medical treatment for the left shoulder and cervical spine.
Associate Kelsey Bowers defeated the Claimant’s attempt to overcome the DIME with regard to MMI and request for temporary disability benefits in Garcia v. The Home Depot and Liberty Mutual. Claimant’s weight prevented him from being able to undergo surgery to repair the work-related hip injury. The DIME physician indicated that Claimant needed to lose weight in order to undergo the necessary hip surgery. Nonetheless, he placed Claimant at MMI. Claimant’s counsel argued that the DIME opinion on the issue of MMI was ambiguous because the DIME doctor recommended additional treatment. ALJ Jones was persuaded by Ms. Bowers’ argument and Dr. Fall’s testimony showing that the weight loss was completely in Claimant’s control and there was no way to tell whether Claimant would ever be able to lose the required weight. ALJ Jones concluded that Claimant failed to overcome the DIME and was properly placed at MMI while he tries to lose the weight necessary to undergo the hip surgery.
Division Proposed Changes to W.C.R.P. Rule 17 Exhibit 5 – Cumulative Trauma Disorders
W.C.R.P. Rule 17 contains the Medical Treatment Guidelines promulgated by the Division of Workers’ Compensation. Several corresponding exhibits discuss the applicable medical criteria regarding injuries to different body parts and recommended treatment. Exhibit 5 addresses cumulative trauma disorders and the causation matrices involved in guiding physicians to assess whether an occupational disease may be work related. The Division has proposed updates to the matrices to specifically address certain scenarios facing injured workers and the applicable statutes under the Workers’ Compensation Act. Also, there have been additional journals, studies, and treatises better addressing the anatomy behind some of the cumulative trauma disorders and causation. The following will help outline some of the updates to the Guidelines proposed by the Division. Click here to continue reading this article.
Cases You Should Know
The Guidelines are….well, just guidelines: In Robles v. Denver Processing, LLC, W.C. No. 4-997-535 (December 22, 2016), the Claimant sought review of an ALJ’s Order denying and dismissing his claim involving an alleged repetitive use injury. Claimant’s medical expert opined that Respondents’ expert did not follow the Workers’ Compensation Medical Treatment Guidelines in deciding whether the Claimant suffered a cumulative trauma injury. ICAO explained that the compensable nature of an injury is not controlled by the Guidelines. Rather, compensability of an alleged occupational injury remains controlled by the Workers’ Compensation Act and relevant case law. Moral of the Story: The Court may consider the Guidelines when evaluating diagnosis and causation; however, the Guidelines are not controlling as to the issue of compensability.
In order to appeal, first you must pay: In Rivas v. Cemex, Inc., W.C. No. 4-975-918 (December 22, 2016), Respondents filed a Petition to Review an ALJ’s Order granting Claimant’s request for a change of authorized treating physician. ICAO cited a recent case which held that an order for change of physician would be subject to review when recent amendments to the Act obligated Respondents to make additional payments implicated by the change of physician, such as fees for copying medical records or payment for at least an initial appointment. In the present matter, no costs were involved or made necessary by the ALJ’s Order. Accordingly, ICAO held that the ALJ’s Order did not grant any benefits and therefore was not subject to review under section 8-43-301(2), C.R.S.
Moral of the Story: Before seeking review of an order granting a change of physician, parties should analyze whether the change of physician resulted in respondents making medical benefits payments.
No enterprise is more likely to succeed than one concealed from the enemy until it is ripe for execution: In Heinz v. State Farm Mutual Automobile Insurance Company, W.C. No. 4-991-171 (December 9, 2016), Claimant filed for hearing on multiple penalty claims, primarily alleging that Respondents failed to timely take a position on the claim and had no good faith basis to pursue a DIME. Respondents had the former issues stricken by a PALJ at prehearing on the basis of ripeness and thereafter sought attorney fees from Claimant upon her continued pursuit of the stricken issues at hearing. ICAO confirmed the ALJ’s decision finding penalties inappropriate, and that there was no requirement that a party pursue a DIME in “good faith.” However, ICAO reversed the ALJ’s decision awarding attorney fees, finding that the issues were ripe at the time that Claimant filed her Application for Hearing, notwithstanding the PALJ’s Order, because there was no legal impediment to the ALJ’s ability to adjudicate these issues at the time that Claimant filed for a hearing.
Moral of the Story: Despite a PALJ striking a penalty claim for lack of ripeness, an ALJ is not precluded from ruling on the issue of penalties. Further, attorney fees are not appropriate if the issue is ripe at the time the party seeking penalties files an application for hearing.
Absence of evidence is not evidence of absence: In Sanchez v. Highlands Glass and Shower, Inc., W.C. No. 5-006-630 (December 6, 2016), Respondents appealed an Order finding that Claimant suffered a compensable injury, and Respondents were a statutory employer liable for medical and disability benefits. ICAO upheld the ALJ’s Order of compensability, holding the evidence satisfied the “totality of the circumstances test” concerning whether a claimant is an employee. ICAO further upheld the ALJ’s award of temporary disability benefits, despite Claimant’s release to work less than three days after the injury (Claimant was subsequently given restrictions), based upon the ALJ’s finding that Claimant credibly testified that he could not work due to the injury. ICAO noted that it is not necessary for the ALJ to predicate such a finding on medical evidence. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997).
Moral of the Story: It is well established in case law that a claimant does not have to present medical evidence of a disability to allow an ALJ to find that the claimant was disabled due to a work injury as testimony, alone, may be sufficient in the absence of evidence to the contrary.
The high and mighty DIME: In Spath v. Hobby Lobby Stores, Inc., W.C. No. 4-866-427-01 (January 5, 2017), ICAO upheld the Order of the ALJ which found that Claimant failed to overcome the DIME as to MMI and permanent impairment rating determinations. It was found that the DIME’s recommendation for additional medical treatment, while concurrently finding Claimant had reached MMI, did not conflict as the DIME noted the recommended medical treatment was likely to be “temporarily helpful.” The Claimant further argued that the DIME erred because there was no mention of Claimant’s lumbar spine in the DIME report, and Claimant was seeking an impairment rating for the lumbar spine. However, ICAO determined that this was not an error as it is presumed that a DIME physician evaluated all components of a claimant’s condition, as required by C.R.S. § 8-42-107(8)(b). Thus, ICAO found, it can be inferred that the DIME intended to not assign an impairment rating for Claimant’s lumbar spine.
Moral of the Story: Opinions of a DIME are afforded great weight, and overcoming the DIME by clear and convincing evidence is a high burden to meet.