In the News
Member Josh Brown successfully prevented a claimant from pursuing further workers’ compensation benefits for a back injury under a new claim after settling an existing claim for a shoulder injury in Bopp v. ICAO, Garden Square Assisted Living and Liberty Mutual Insurance Group, W.C. No. 4-893-767 (Colo. App. 2015) (nsfop). Claimant suffered an admitted injury to her right shoulder in 2009 and consequently underwent treatment with a chiropractor, which she alleged caused an injury to her low back. The parties agreed to full and final settlement of the claim in 2012, which included all other disabilities, impairments, or conditions related to the shoulder injury, including injuries unknown at that time. After settlement was approved, Claimant sought additional benefits for complaints of back pain through a new workers’ compensation claim. Respondents filed two motions for summary judgment, arguing that settlement barred further benefits for any injuries stemming from the 2009 claim, regardless of which body part was impacted, as Claimant had expressly agreed to waive further benefits under the settlement language. Because Claimant’s new alleged injury was sustained while receiving treatment for the admitted shoulder injury, Respondents argued, Colorado law considers this to be related to that injury under the quasi-course and scope of employment doctrine. The ALJ, ICAO, and the Colorado Court of Appeals agreed and denied Claimant’s claim for further benefits on this basis, dismissing the claim with prejudice.
Of Counsel Frank Cavanaugh successfully argued in James Allen v. US Engineering Co. and Liberty Mutual Fire Insurance, W.C. No. 4-945-671 (ICAO, December 8, 2014) that the employer must be apprised of the hearing by proper notice under the Workers’ Compensation Act, as it is a party of interest, and is entitled to a notice of hearing separate from that sent to the insurer. This notice must affirmatively appear on the record, unless waived, or else the proceedings are void. In this case, the Claimant failed to serve the employer the notice of the hearing. The Court stated that due process requires the employer must be notified of pending proceedings affecting its rights, thus remanding the Order granting compensability.
Equal Employment Opportunity Commission Sues another Employer for Allegedly Violating the ADA for an Inflexible Leave Policy
The EEOC’s position is clear. The ADA requires employers to incorporate flexibility into their leave of absence policies or face the consequences. In late September, we were reminded of this yet again when the EEOC sued a Chicago-area manufacturer for capping the amount of leave provided to employees, without considering whether a reasonable accommodation may exist for each employee.
In this latest suit against Doumak, Inc., the EEOC alleged that an employer and its employees’ respective union had violated the ADA by placing a cap on the amount of leave available to employees (“a maximum of 12 weeks or 12 months of medical leave”). According to the EEOC, once employees reached this cap on leave, Doumak automatically terminated them instead of providing additional leave or other reasonable accommodations. In this case, the cap on leave was part of the collective bargaining agreements between Doumak and the employees’ local union. On November 4, 2014, Doumak and the local union settled the case by entering into a consent decree with the EEOC. As part of the consent decree, the employer agreed to pay $85,000 and negotiate with the union to amend the relevant portions of the Collective Bargaining Agreements at issue. This case is part of a trend of lawsuits initiated by the EEOC over the past several years.
In 2012, the EEOC sued Interstate Distributor Company, alleging that the employer’s leave policy provided for automatic termination after 12 weeks of leave and required employees to return to work with no restrictions. That case settled for $4.85 million. In 2011, the EEOC sued Supervalu/Jewel Osco, making similar claims that the employer’s policy provided for automatic termination following a set amount of medical leave. That case settled for $3.2 million. The EEOC also settled a case against Denny’s Inc., for $1.3 million, where the agency claimed that the employer’s policy of providing a maximum of six months of leave violated the ADA.
These are but a few examples of instances where the EEOC has challenged employer leave policies that did not provide the type of flexibility required under the ADA. Remember, the ADA requires an individualized assessment to determine whether a reasonable accommodation may exist for an employee with a disability. When an employer has an inflexible leave policy (e.g., one that provides for automatic termination after a set period of time), the employer does not fulfill its obligation to engage in this individualized assessment under the ADA. And, employers with large employee populations may be particularly vulnerable to litigation because of the large number of employees affected by such policies.
But, whether you’re big or small, the take away is the same – a one-size-fits-all leave of absence policy could land you in hot water. So, in this day and age, employers must continually ask themselves, does our leave policy provide for an individualized assessment under the ADA?
Cases You Should Know
It’s discretionary for an ALJ to speed read medical records: Linda Artmann v. Reilly, Pozner & Connelly, LLP, and Sentinel Insurance Company, Ltd., W.C. No. 4-834-243 (ICAO, December 3, 2014), involved a Claimant with a low back injury who reached MMI, and was then removed from MMI by a DIME physician who recommended additional osteopathic manipulation and physical therapy. Claimant then underwent a 24-month DIME two years later. At the hearing to challenge the DIME physician’s MMI determination, the ALJ received 361 pages of medical documents from Respondents and another 112 pages, primarily medical, from Claimant. Following a 15 minute recess and live testimony from Claimant, the ALJ submitted an oral decision in favor of the Claimant, determining that Claimant was not at MMI. On appeal, ICAO held that the ALJ’s decision was supported by substantial evidence in the record. The ICAO held that ALJs are experienced in the assessment of medical evidence and testimony, and are presumed to have special expertise in evaluating this evidence. The Panel held that the ALJ was capable of weighing the doctors’ testimony and reports, and considering the bases of their opinions.
Meritless claims still ripe for picking: In Jane McMeekin v. Memorial Gardens and Reliance National Indemnity, W.C. No. 4-384-910 (ICAO, September 30, 2014), the Court overturned an award of attorney’s fees previously awarded to Claimant, holding that the issues endorsed on Respondents’ application for hearing were ripe for adjudication, and thus, did not warrant an award of fees to Claimant. At hearing, the ALJ held that Respondents’ endorsement of apportionment and authorized treating physician were not ripe, and directed that Respondents’ pay attorney fees and costs to Claimant. Claimant argued that Respondents did not possess evidence to support their claim in regard to the “authorized provider” issue endorsed for hearing. As a consequence, Claimant argued that Respondents had requested a hearing on an issue that was not ripe for adjudication, and that Claimant was therefore entitled to attorney fees. The Panel held that the likelihood of success of the merits of an issue is a distinct consideration from whether there is a legal barrier adjudicating the issue. The Court distinguished between the merits of an issue and its ripeness, noting that the latter had nothing to do with the former, and that a frivolous or meritless claim may nonetheless be ripe for adjudication. The Court noted that Workers’ Compensation Law often requires quick deadlines, requiring parties to take action before any significant evidence can be gathered. The Court, therefore, opined that the parties would be forced to choose between their right to hearing or waiving that right to avoid an assessment of fess if they guessed wrong about the possible strength of their claim. Thus, the Court held that Respondents’ endorsement of “authorized provider” did not have a legal barrier to adjudication, regardless of its merits.
Didn’t provide a designated provider list after employee injury? Expect penalties: Dennis Meenan v. Boulder County and Self Insured, W.C. No. 4-898-245 (ICAO, September 9, 2014) involves a claim by Claimant for penalties for Respondents’ failure to provide a designated provider list pursuant to C.R.S. § 8-43-404(5)(a). The ALJ assessed penalties against Respondents for failing to provide a designated provider list to Claimant when aware Claimant was actively receiving medical care for a workers’ compensation injury.
Attorney’s Fees for Unripe Issues for Injuries Occurring Before July 1, 1991: ICAO upheld the ALJ’s denial of attorney fees to claimant for respondents’ alleged endorsement of an unripe issue for hearing in Wilde v. Sears Roebuck & Company and Allstate Insurance Co, W.C. No. 4-018-793 (ICAO June 9, 2014), though for reasons different from the lower court. Claimant suffered an admitted injury in March of 1991 and made a request for prior authorization for surgery in 2013, which was timely denied by Respondents within seven business days with an Application for Hearing. Claimant sought attorney’s fees when Respondents later re-filed the Application, alleging that the issue was unripe because the Application was outside of the seven-business day window set forth by statute. The ALJ denied attorney fees because Respondents had initially challenged surgery within the permitted time frame. ICAO upheld the decision, though it instead held that Claimant could not seek attorney’s fees because his injury occurred before the July 1, 1991 introduction of the attorney fee statute, which applied to injuries occurring on or after that date. ICAO did not address basis for the ALJ’s finding that the issue was unripe because the initial Application was filed on time.
Appeals upon Error in the Record: In Milroy v. ICAO and City of Colorado Springs, W.C. No. 4-884-077 (Colo. App. 2014) (nsfop), the Colorado Court of Appeals, which affirmed the ICAO Decision denying Claimant’s appeal of the ALJ’s Order denying and dismissing his claim for a back injury, the ALJ denied Claimant’s claim for benefits but mistakenly did not record the hearing proceedings. Claimant appealed, primarily on the basis that the ALJ erred in not recording the hearing, arguing the matter was therefore unappealable and warranted a new evidentiary hearing. While Section 8-43-213(1), C.R.S., upon which Claimant relied, does state that hearing shall be taken either verbatim by a court reporter or otherwise by electronic recording, the Court of Appeals found that the absence of a recorded hearing transcript does not necessarily bar appellate review. For a new trial on the basis of error, an appellant must: 1) make a specific allegation such; 2) show that the defect in the record materially impacts the appellate court’s ability to review; and 3) show that a proceeding under C.A.R. 10(c) (an appellate court rule which sets forth the proper procedure in the event of an absent written record) failed to produce an adequate substitute for the evidence. The Court found that Claimant, in this instance, had failed to meet any of the above three criteria. Specifically, the Court found that, in addition to the appellate court’s having access to all exhibits, written medical records, and deposition testimony, the ALJ’s detailed hearing notes were an adequate substitute for a written record. Accordingly, the Court of Appeals affirmed denial of Claimant’s appeal in its entirety.
Ambiguity in a DIME Report and ALJ’s Jurisdiction Regarding Causation: The Colorado Court of Appeals set aside an ICAO decision upholding an ALJ’s findings regarding an ambiguous DIME determination in Samuels v. ICAO, Deli Zone and Sentinel Insurance Company, W.C. No. 4-761-359 (Colo. App. 2014) (nsfop), and remanded to the DOWC for clarification of the ambiguous opinion. The DIME physician issued two consecutive opinions regarding MMI and impairment for an admitted left knee injury and what Claimant alleged was a related right knee condition. Respondents did not admit for any impairment of the right knee and Claimant sought to overcome the DIME’s opinion on causation of this condition. While ICAO upheld the ALJ’s determination that the DIME opinion was ambiguous in regard to causation of the right knee symptoms, it set aside the ALJ’s opinion that the DIME considered the right knee unrelated and remanded the case to the DOWC for further clarification on the issue. The ICAO held that, because there was not substantial evidence in the record to support a finding that the DIME physician did not believe the right knee condition was work-related, in light of the ambiguity, the ALJ could not have found against Claimant in overcoming the DIME on that issue.