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.
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 Witnesses. In 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.