In the News
Congratulations to Member Katherine Lee. Ms. Lee has been named a Lawyer of the Year by U.S. News and World Report in the field of Workers’ Compensation Employers for 2017.
Lee + Kinder LLC recently attended the CDLA Annual Conference in Snowmass, CO. Of Counsel Frank Cavanaugh, as Vice Chair for the CDLA workers’ compensation section, helped arrange the speakers for the conference. Mr. Cavanaugh presented, along with co-speakers Katherine Otto and Denise Canada, to a group of workers’ compensation professionals and general liability professionals regarding the interplay between workers’ compensation and general liability. Member Joshua Brown also presented to the employment law group regarding work place bullying and potential liabilities that may exist for employers.
Member Karen Gail Treece successfully defended against Claimant’s appeal to the Colorado Court of Appeals in Satchell v. Coach America (Colo. App. Aug. 11, 2016) (nsfop). Claimant sought review of an ICAO order affirming the order of an ALJ, which denied Claimant’s low back claim. Claimant asked the appellate court to “give due consideration to” opinions from two doctors, and she sought authorization for an S1 selective nerve root block. Claimant argued the DIME physician missed the fact that she complained of back pain. The Court of Appeals interpreted Claimant’s contentions as challenges to the ALJ’s factual finding that the back condition was not work related and the ALJ’s conclusion that Claimant had not overcome the DIME’s opinion on causation of back pain. The Court of Appeals found substantial evidence supported the ALJ’s findings and affirmed ICAO’s order.
In Sandy Figueroa v. Walmart Stores, Of Counsel Fran McCracken succeeded in obtaining an order permitting Respondents to withdraw a Final Admission of Liability admitting for maintenance medical benefits. Claimant suffered an admitted neck injury and subsequently suffered from pain disorder due to psychological factors. Once at MMI, the parties reached a settlement and Respondents filed an FAL admitting in part for reasonably necessary maintenance medical benefits, including pain medications. Several days later, Claimant suffered an unrelated stroke. During her recovery from the stroke, Claimant ceased taking her pain medications, and reported that her work-related pain resolved. Respondents sought to withdraw the admission for future maintenance medical benefits, and ALJ Cannici granted Respondents’ request.
In Richard Rivera v. Fedex Freight Incorporated, Of Counsel John Abraham obtained an order allowing Respondents to withdraw a Final Admission of Liability admitting for reasonable, necessary, and related maintenance medical benefits. Claimant’s maintenance medical treatment consisted of narcotic medication. Mr. Abraham utilized expert medical opinions to demonstrate that these medications were not improving Claimant’s overall condition. Mr. Abraham successfully proved that the medication use contributed to Claimant’s lack of motivation to improve his condition and directly compromised his ability to function. Thus, there was no objective evidence supporting continued opiate use. The judge allowed Respondents to withdraw their admission of future maintenance medical benefits.
Investigation of Outstanding Medicaid Liens in Workers’ Compensation Claims
The Colorado Department of Health Care Policy and Financing, through its Medicaid program, is responsible for collection of outstanding liens for the state. This department is in charge of disbursement of state funds to indigent citizens in need of medical benefits. Oftentimes, a claimant will pursue medical benefits through the department if they qualify. This may be true even when a claimant has a current workers’ compensation claim on file with the Division of Labor. Qualification for a particular program, through the state funded Medicaid partnerships, involves several criteria. If a citizen qualifies, benefits may be paid regardless of the current status of a workers’ compensation claim. The Medicaid department will assert its lien, (referred to as a “recovery right”), against the claimant and the workers’ compensation claim. Click here to continue reading this article
Cases You Should Know
There’s a good chance dog grooming is not an essential service: In Terryl Robinson v. Chartis Claims Inc., W.C. No. 4-827-378 (July 15, 2016), respondents appealed a decision of the ALJ which held them liable for essential services of daily living for 28 hours per week. Respondents argued the order was fatally ambiguous and most of the potential services were not intended to cure or relieve the effects of the work injury. ICAO found the ALJ’s weighing of evidence and legal conclusions inadequate to justify authorization of the activities and remanded the case for additional findings. ICAO instructed the ALJ to make findings as to which activities were authorized and whether each activity either cures or relieves the effects of the injury or is incidental to obtaining medical treatment.
Moral of the Story: Seek specificity when dealing with orders for essential services.
Just because the ALJ doesn’t know what it is, doesn’t make it a neutral risk: In Sanchez v. ICAO, et al. (Colo. App. Mar. 17, 2016) (nsfop), claimant appealed an ICAO order which affirmed the ALJ’s order denying and dismissing his claim for benefits. Claimant argued that because the ALJ did not explicitly find his knee injury attributable to a preexisting condition, the injury fell into the “neutral risk” category of injuries and was compensable as a matter of law per City of Brighton. The Colorado Court of Appeals found claimant’s injury compensable but disagreed with claimant’s rationale. The Court explained it did not read City of Brighton as issuing a mandate that an ALJ must identify the precise cause of an alleged workers’ compensation injury or else that injury automatically falls into the neutral risk category.
Moral of the Story: Where an ALJ does not explicitly find a cause of injury, the injury may qualify as a neutral risk; however, an ALJ’s failure to identify the cause of injury does not automatically qualify the injury as a neutral risk. The court should still engage in a fact specific analysis as to whether a neutral risk is present.
Denial of all benefits is a denial of one benefit: In Trujillo v. Industrial Claim Appeals Office (Colo. App. June 23, 2016), claimant sought review of an ICAO order affirming denial and dismissal of his claim. On appeal, the parties agreed that the ALJ’s order was not final because it addressed only compensability and did not expressly deny a specific benefit. The Colorado Court of Appeals held the ALJ’s finding that the claim was not compensable had the practical effect of denying claimant all benefits. The Court cited prior case law which treated findings of no compensability as final and reviewable because such decisions necessarily deny a claimant’s request for benefits and noted that in the present claim, claimant requested TTD, TPD, and medical benefits.
Moral of the Story: When specific benefits are requested, denial of compensability counts as denial of a specific benefit for purposes of appeal.
You can’t appeal death: In Munoz Botello v. Evergreen Caissons, Inc., W.C. No. 4-692-974-01 (June 29, 2016), respondents appealed an ALJ’s order that found there was a compensable death. The ALJ did not specifically award death benefits, but instead instructed the parties to schedule another hearing to determine the allocation of death benefits. ICAO refused to review the decision on the merits, noting that the ALJ had not yet awarded or denied specific benefits.
Moral of the story: A finding of a compensable death, without a specific award or denial of death benefits, is not an appealable decision.
Claimant “signs” his way to the exit: In Zvolanek v. Blue Canyon Bar & Grill, W.C. No. 4-859-506-02 (July 13, 2016), pro se claimant failed to provide signed releases or respond to discovery. The ALJ issued an order compelling the claimant to produce discovery answers and signed releases, and prohibited the claimant from objecting. The claimant eventually responded to the discovery by objecting on the basis that the requests “created prejudice” and were unfair and meant to harass the claimant. The ALJ then granted respondents’ motion to deny and dismiss the claim, noting the claimant willfully violated the discovery order. Although the claimant argued he was unable to answer the discovery without an American Sign Language interpreter, the ALJ found claimant was in fact capable of answering the discovery, noting that the claimant filed his prior motions and pleadings without assistance from an interpreter.
Moral of the story: Refusal to sign releases and disregard for a discovery order can result in claim dismissal.
Bait and switch — subcontractor style: In Pinnacol Assurance v. Hoff, 2016 CO 53 (Colo. Aug. 1, 2016), an owner and contractor hired a subcontractor to perform roofing work. The subcontractor showed the contractor a copy of a certificate of workers’ compensation insurance. The subcontractor’s insurance policy lapsed before the claimant’s injury, but neither the subcontractor nor the insurer provided notice to the contractor of the lapse of coverage. The insurer denied coverage for the injury, and the owner and contractor were then liable as statutory employers. The contractor argued the insurer should be estopped from denying coverage, relying on the fact that the insurer did not provide notice to the contractor of the coverage lapse. The Colorado Supreme Court rejected the contractor’s argument, noting that the insurer had no obligation to notify the contractor of the lapse of coverage of the subcontractor’s policy.
Moral of the story: A subcontractor’s initial showing of a certificate of insurance does not guarantee immunity from statutory employer status.
Use it or lose it: In Smith v. NPC International, W.C. No. 4-933-753-02 (July 15, 2016), the ALJ’s Order Granting Respondents’ Motion for Summary Judgment to dismiss claimant’s request for penalties was affirmed by ICAO. Claimant sought penalties for respondents’ alleged failure to timely file General and Final Admissions of Liability. Respondents argued that the issue of penalties was closed because claimant failed to object and file an application on the issue of penalties within 30 days of filing the FAL. The ALJ granted respondents’ motion, finding the issues were closed pursuant to C.R.S. §8-43-203(2)(c). Pursuant to that statute, an uncontested FAL automatically closes the case as to issues admitted in the final admission. Upon review, the panel noted the following language in the FAL: “Any and all benefits and penalties not specifically admitted to are hereby denied.” ICAO held that this language effectively closed the issue of penalties.
Moral of the story: Respondents should draft FALs with specific language noting all benefits not specifically admitted are denied because a claimant’s failure to object to the FAL results in closure of the claim on the FAL as written.
Always put it in writing: In Turner v. Chipotle Mexican Grill, W.C. No. 4-893-631-06 (June 30, 2016), respondents sought review of the ALJ’s order which struck their 24-Month DIME and denied and dismissed their request for recovery of an overpayment. The ALJ struck the 24-Month DIME, stating that the plain language of the statute, C.R.S. §8-42-107(8)(b)(ii)(B), required the moving party to inquire in writing from an ATP as to whether a claimant reached MMI. The judge specifically found that asking an ATP to address MMI in writing is a condition precedent to obtaining a 24-month DIME. The case was remanded for review to ensure that the ALJ applied the correct standard when determining whether respondents complied with the requirement of a written request to the ATP.
Moral of the story: A party must request an ATP’s opinion regarding MMI in writing before requesting a 24-month DIME.
The prior DIME said 0% and he meant 0%: In Pederson v. ICAO, et al. (Colo. App. June 16, 2016) (nsfop), the Colorado Court of Appeals was asked to address, pursuant to C.R.S. §8-42-104, whether a 0% impairment rating issued in a prior injury for a DIME against one employer bears on the apportionment of a later claim against a second employer. The Colorado Court of Appeals set aside the finding of ICAO and remanded the case with directions for the ALJ to recalculate Claimant’s award without any apportionment. The Court of Appeals noted that Claimant had received a 0% impairment rating by a DIME for a prior injury to the same body part. However, the DIME physician in the second claim disagreed with that determination for the prior injury and applied apportionment based on his own findings of a different impairment rating for the prior injury. The Court reasoned that although the DIME physician for the second employer’s injury was entitled to provide his medical opinion on the prior injury, his opinion did not meet the legal criteria for modification of an award based on a prior permanent medical impairment to the same body part. His rating should have been based on the original physician’s finding in the prior claim, which was 0% impairment with no applicable apportionment.
Moral of the story: The impairment rating findings of a DIME physician on a prior injury cannot be overturned without clear and convincing evidence and a mere difference in medical opinion is not enough to do so.