In the News
On July 14th, Lee + Kinder, LLC celebrated its 7th anniversary, providing comprehensive and legal services to employers and insurers throughout Colorado. Since inception, our approach to the practice of law has been to provide aggressive representation and protection of clients’ interests with the goal of bringing all cases to resolution in the most cost-effective and expeditious manner possible. We believe that this philosophy allows our Firm to stand – and grow – on its three founding principles of Integrity, Knowledge and Service.
We gratefully acknowledge that we would not be where we are now, 7 years later, without the support of our clients. We send out a very heartfelt thank you for your trust in our legal integrity. Our promise to you is to continue providing you with legal representation beyond your expectations. Thank you for your business.
Of Counsel M. Frances McCracken successfully overcame the DIME and had medical care beyond MMI denied in Fischer v. Family Dollar Stores of Colorado and ACE American Insurance. Claimant suffered an admitted injury to her shoulder and underwent surgery. A DIME physician opined that, in addition to impairment due to a distal clavicle resection procedure, Claimant had impairment for both loss of range of motion and motor weakness of the upper extremity under Tables 14 and 11 of the AMA Guidelines, 3rd ed., rev. Ms. McCracken successfully argued the DIME physician misapplied the Guidelines, as Claimant’s request for additional medical care was denied.
Of Counsel Sheila Toborg successfully defeated Claimant’s pursuit of maintenance medical treatment in Carol P. Davis v. United Parcel Service. Claimant sought reimbursement for post-MMI physical therapy treatments. Ms. Toborg utilized expert medical opinions to persuasively argue Claimant’s left knee symptoms of pain and instability were related to the polyethylene component of Claimant’s prosthetic knee and therefore, physical therapy would be of no benefit for that condition. The ALJ credited the testimony of Respondents’ expert, Dr. Lesnak, as well as the Peer Review opinion from Dr. Obermiller. ALJ Cain denied Claimant’s claim for payment of incurred physical therapy expenses.
Of Counsel Joseph Gren successfully defended against Claimant’s request for a referral to a dietitian/nutritionist to manage weight gain, which she claimed was due to her work-related injury in Waneka v. United Parcel Service and Liberty Mutual Insurance. Claimant gained 65 pounds since her work injury, and the authorized treating physician referred her to a weight management specialist. The ALJ credited Respondents’ expert, and Mr. Gren’s argument, that weight gain would not be an expected consequence of a toe bone fracture.
Associate Jessica Melson successfully defended against Claimant’s appeal of an Order Granting Respondents’ Motion for Summary Judgment in Smith v. Wyndham Worldwide Corp. and Liberty Mutual Group. The ALJ agreed with Ms. Melson’s argument that Claimant’s “new” claim was an attempt to relitigate Claimant’s prior claim, which had already been litigated, denied and dismissed. The ALJ granted Respondents’ Motion for Summary Judgment. ICAO upheld the ALJ’s Order Granting the Motion for Summary Judgment, finding Claimant did not present any new facts or issues that were not previously litigated.
THIRD-PARTY RECOVERY (2 – 4 – 6 – 8 Let’s Go Subrogate!)
As you are probably aware, the Colorado Workers’ Compensation Act has a statute giving a subrogation right to the payer of workers’ compensation benefits. This statute is § 8-41-203, C.R.S. Although referred to as a subrogation lien, it is actually a right of recovery that operates as an assignment. Once benefits are paid under the Act, that payment also assigns a right of recovery to the payer against a third party that may be responsible for the injury that generated a claim for which benefits are paid.
Cases You Should Know
In Savage v. ICAO, et al. (Colo. App. 2015)(nsfop), the Court of Appeals affirmed the hearing ALJ’s decision that Claimant suffered a compensable industrial exposure to carbon monoxide poisoning. Claimant, a trucker, was found in his truck cab with an acute illness later determined to be from high levels of exposure to carbon monoxide. Tests run on the truck, however, did not show evidence of any exhaust leaks which would have caused the exposure. The ALJ, nevertheless, found that Claimant suffered a compensable poisoning from carbon monoxide under the “but for” test in City of Brighton v. Rodriguez. ICAO held that this test did not apply in this case, as the evidence ruled out exposure from the truck. The Court of Appeals agreed with the ALJ, holding that Claimant could not likely have otherwise contracted the illness but for exposure from the truck, and that the evidence did not definitively rule out malfunctions in the truck. Moral of the Story: Colorado Courts are trending towards finding any injury that occurs while in the workplace compensable – even if the actual cause of injury is not, or cannot be, fully established.
The Court of Appeals upheld an Order denying and dismissing widow’s claim for survivor benefits due to late filing of a claim in Ragan v. ICAO, et al. (Colo. App. 2015)(nsfop). Decedent suffered (and survived) a heart attack in 1982 and was given lifetime medical benefits for the condition pursuant to a settlement agreement in 1990. In 2003, the insurance company became insolvent and the claim was transferred to the Colorado Insurance Guaranty Association (CIGA). The Order of Liquidation imposed a one-year deadline to file any claims under the Guaranty Act. The decedent died of a heart attack in March 2013, and the widow filed a claim for survivor benefits. The widow argued that her claim should still be considered timely, despite being filed 9 years after the deadline, for reasons of statutory construction and due process. The Court found the Order of Liquidation applied to the claim, although the death did not actually happen until after the Order of Liquidation expired, and denied the widow’s claim for benefit. Moral of the Story: This is a unique case as it only applies to claims administered by CIGA.
In Teller County v. ICAO, et al. (Colo. App. 2015)(nsfop), Claimant, a volunteer for Teller County Search and Rescue, was involved in a motor vehicle accident on his way to a fire chiefs meeting. Claimant asserted that as a volunteer he fell within the scope of the definition of employee set forth in C.R.S § 8-40-202(1)(a)(I)(A), which defines “employee” to include volunteer rescue teams or groups, … while said persons are actually performing duties as volunteer rescue teams and while engaged in organized drills, practice, or training necessary or proper for the performance of such duties. Respondents argued Claimant’s attendance at the meeting was volitional and not mandatory. The ICAO found that Claimant had a custom and a practice under which Claimant regularly attended the fire chiefs meetings and Claimant notified Teller County that he was attending the conference prior to leaving by “marking in service.” The Court of Appeals agreed with the ALJ and ICAO that Claimant was acting within the course and scope of his employment at the time of the motor vehicle accident. Moral of the Story: “Volunteers” may be “employees” acting within the course and scope of their employment.
The ICAO set aside an ALJ’s decision that held a real estate brokerage firm liable for workers’ compensation benefits as a statutory employer in Hopper v. Re/Max Properties, Inc. and Farmington Casualty Company, W.C. No. 4-932-057 (May 26, 2015). Claimant was employed by a licensed real estate agent, who performed regular work for Re/Max. The agent did not have workers’ compensation insurance. The ALJ found that Re/Max was Claimant’s statutory employer and therefore liable for benefits. Upon appeal, ICAO set aside the ALJ’s holding and found Re/Max was exempt as a statutory employer, as § 8-41-401(5), C.R.S., states that the provisions of the Workers’ Compensation Act shall not apply to licensed real estate brokers. Moral of the Story: The Act treats real estate brokers differently than usual “employers.”
In Liggins v. McDonald Waterproofing, Inc., and Pinnacol Assurance, W.C. No. 4-924-286 (June 5, 2015), the ICAO affirmed an Order granting Respondents’ Motion for Summary Judgment, dismissing Claimant’s claim for Permanent Total Disability (PTD) benefits. Section 8-43-203(2)(b)(II)(A), C.R.S., gives a claimant 30 days from the filing of an FAL in which to file an Application for Hearing on any disputed issues. Claimant filed an Application for Hearing on the issue of PTD benefits prior to Respondents’ filing of an FAL. However, after the FAL was filed, Claimant failed to file a new Application for Hearing on the PTD issue within the requisite 30 days. The ALJ granted Respondents’ Motion for Summary Judgment striking the issue of PTD, and ICAO upheld the decision. Moral of the Story: It is critical to timely comply with deadlines set forth in the Act and Rules.
In Pederson v. Jonathan P. Bayne, DDS, et al. W.C. No. 4-894-819-02 (May 19, 2015), the ICAO affirmed an Order permitting a PPD benefits award based upon an apportionment applied by the DIME physician. Claimant had a prior neck injury from 2009, which was settled before the rating was finalized. Claimant then suffered a new neck injury in 2012. The DIME physician in her 2012 claim provided a 9% whole person impairment rating after apportioning out the 2009 injury. Claimant challenged the DIME and argued since she failed to receive a rating for her prior claim, the DIME should not be allowed to apportion out her prior claim. Section 8-42-104(5)(a) provides for apportionment when the previous impairment rating is established either through an award or a settlement. Here, the DIME concluded that Claimant’s prior medical impairment rating was work related and therefore calculated apportionment. The ALJ agreed and ICAO upheld the decision. Moral of the Story: Look for documentation of pre-existing injuries and treatment to send to the treating doctors; apportionment is applicable when a previous impairment rating is established, even when the prior claim is settled.
In Powderly v. City of Golden., et al. W.C. No. 4-936-681 (May 28, 2015), the ICAO affirmed an Order that dismissed Claimant’s claim for workers’ compensation benefits for repeated discovery violations. Claimant was ordered on three different occasions to comply with discovery requests. After Claimant failed to comply with the third Order, the ALJ dismissed his claim pursuant to W.C.R.P. 9-1 and C.R.S. § 8-43-207(1)(e). Rule 9-1(E) provides that if any party fails to comply with the provisions of this Rule, an ALJ may impose sanctions upon such party pursuant to Statute and Rule. Further, § 8-43-207(1)(e) permits an ALJ to impose the sanctions provided in the Rules of Civil Procedure for the willful failure to comply with permitted discovery. The ALJ found that Claimant had multiple opportunities to comply with the discovery Orders and that his failure to comply was willful. The ALJ dismissed the claim and ICAO upheld the decision. Moral of the Story: Respondents can utilize discovery techniques and traps as powerful tools to minimize litigation and potentially secure dismissals of claims.