The Rule of Independence for the Win . . . Almost: In Clubb v. Re Monks, W.C. Nos. 4-952-696 & 3-850-643 (March 31, 2015), Claimant’s husband sustained admitted injuries to his arms and ribs in 1987. Claimant reached MMI in 1994, and Respondents admitted for permanent total disability benefits. In 1995, Respondents and Claimant’s husband entered a full and final settlement. The agreement required Respondents to pay a lump sum to Claimant’s husband and a monthly annuity for the remainder of Claimant’s husband’s life. If Claimant’s husband died within 20 years of the settlement date, the unpaid balance of the first 20 years of monthly annuity payments would be made to Claimant as designated beneficiary. In the event that settlement was reopened, any money paid by Respondents pursuant to settlement would constitute a credit against any subsequently ordered workers’ compensation benefits.
Claimant’s husband died in 1997. The cause of death was acute hemorrhagic pneumonia complicated by cardiac arrest. Nearly seventeen years later, Claimant, acting pro se, pursued three claims for relief: (1) a death benefit award on the basis that her husband’s death was work related; (2) to reopen the settlement on the basis of fraudulent inducement; and (3) a claim for death benefits pursuant to C.R.S. §8-42-116(1)(a), the statute which provides for benefits based on a non-work-related death. After hearing, the ALJ found that Claimant’s request for death benefits was barred by the two year statute of limitations and that Claimant’s husband’s death was not work related. Therefore, the ALJ determined that there was no need to address the additional issues of re-opening the settlement.
On appeal, ICAP disagreed with the ALJ’s holding that the two-year statute of limitations and Claimant’s failure to prove work relatedness precluded the Court from reaching the issues of reopening settlement and death benefits not caused by work injuries. ICAP then addressed and denied both claims. Regarding Claimant’s request to reopen the settlement, ICAP held that Claimant did not have standing to attack the settlement because Claimant was not a party to the settlement agreement. Citing the “rule of independence,” ICAP concluded that the settlement agreement did not affect Claimant’s separate and independent statutory claim for death benefits not resulting from work injuries under §8-42-116. Ultimately however, ICAP held that the ALJ’s dismissal of the §8-42-116 claim for death benefits was harmless error because payments made by Respondents pursuant to settlement satisfied their liability for death benefits under §8-42-116. The settlement proceeds fulfilled the statutory purpose of §8-42-116 by serving as a substitute for the support previously provided by the decedent through his receipt of permanent total disability benefits.
Object Early and Object Often: In Finch v. Target Corporation, W.C. No. 4-899-106 (April 7, 2015), Claimant worked as a logistics team member for Respondents for nearly four years before she sought medical treatment for an alleged occupational injury to her wrist. Claimant’s job duties largely consisted of loading and unloading merchandise and stocking shelves. A vocational evaluator performed a job demands analysis (JDA). After performing a Risk Factors Assessment, based on the Medical Treatment Guidelines pertaining to cumulative trauma conditions, he found there were no primary or secondary risk factors present in Claimant’s job duties.
After reviewing the JDA, Respondents’ IME physician and an Authorized Treating Provider (ATP) concluded that Claimant’s injury was not work related. The ATP placed Claimant at MMI without impairment. Respondents filed a FAL in accord with the ATP’s opinion. Claimant sought a DIME. The DIME issued muddled statements about causation, but ultimately found that Claimant’s condition was work related and Claimant was not at MMI. Respondents filed an Application for Hearing and successfully overcame the DIME. In ruling for Respondents, the ALJ reasoned that the Respondents’ IME physician and the ATP’s opinions were most credible, in part because these physicians’ opinions were based on their review of the JDA.
On appeal, Claimant raised multiple arguments as to why admission into evidence of the JDA was an abuse of discretion. First, Claimant argued that Respondents’ failure to adequately respond to Claimant’s discovery requests about the vocational evaluator rendered the evaluator’s expert qualifications “in dispute.” ICAP disagreed, noting that during hearing Claimant did not allege that the vocational evaluator was not an expert or not qualified to draft the report. ICAP cited Colorado Rule of Evidence 103(a)(1) which provides that before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. Failure to make a contemporaneous objection constitutes waiver of the objection. Second, Claimant contended that the ALJ erred in not striking the JDA report pursuant to C.R.C.P. 37 as a discovery sanction. ICAP disagreed, noting that during hearing, Claimant’s counsel argued that Respondents’ discovery responses regarding the vocational evaluator were not sufficient. ICAP rejected this position, reasoning that Claimant did not previously file a motion to compel discovery responses regarding the vocational evaluator. ICAP cited the well settled law that absence of a prior order compelling discovery precludes C.R.C.P. 37(b) sanctions for any alleged discovery violation.
See, e.g. “Whenever you can, you should object.” Robert Duvall in A Civil Action.
No MMI? No Donald B. Murphy. Seriously: In Laabs v. Integrated Communication Service, Inc., W.C. No. 4-890-061 (March 19, 2015), Claimant sustained an admitted injury, and the ATP placed Claimant at MMI with a 24% whole person impairment rating. Respondents filed a FAL and began paying PPD based on the admitted 24% rating. Claimant pursued a DIME. The DIME opined that Claimant was not at MMI. Respondents then filed a GAL and commenced TTD payments, including a lump sum TTD payment for five months of retroactive TTD owed in accord with the DIME’s opinion. In the five month period before the DIME’s retraction of MMI, Respondents paid PPD benefits and an automatic $10,000 lump sum payment. Respondents’ post-DIME GAL took credit for previously paid PPD and reserved the right to claim any and all offsets and over-payments.
Thereafter, relying on the $75,000 cap in C.R.S. §8-42-107.5 and the holding of Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo. App. 1995), Respondents moved to suspend Claimant’s temporary disability benefits upon reaching the $75,000 cap and to credit Claimant’s temporary disability benefits against PPD benefits previously paid. At that time, Respondents had paid $69,439.27 in combined indemnity benefits. The ALJ held that Donald B. Murphy was most analogous to the present case and allowed Respondents to suspend temporary disability benefits upon Claimant reaching the $75,000 cap. Claimant appealed, and ICAP agreed with Claimant that Donald B. Murphy was inapplicable. ICAP concluded that the DIME’s removal of Claimant from MMI rendered application of the statutory cap premature. Since Claimant’s impairment rating had not yet been determined, it was not known which cap should apply, and application of the $75,000 cap was improper.
Per Wikipedia and the Worker’s Compensation Act, an episodic stipend is not a salary: In Roscoe v. Ahlstrom, Inc., W.C. 4-870-626 (March 17, 2015), Claimant was elected to the Board of Lookout Mountain Water District and eventually became president, serving consecutive terms until he sustained an admitted injury. In this position, Claimant was paid $100 per monthly Board meeting attended. Claimant estimated that he spent 20 hours per week on District business and was not paid for this work. Respondents filed a GAL admitting for an AWW of $828.03 pursuant to C.R.S. §8-40-202(1)(a)(II) which provides that the rate of compensation for non-salaried elective officials shall be at the state maximum rate as provided by the Workers’ Compensation Act. Subsequently, Respondents filed a Petition to Modify Claimant’s AWW, asserting that Claimant did not meet the statutory definition of a non-salaried elective official because he was actually a “salaried employee,” and therefore his AWW should be based on wages actually received, which Respondents calculated to be $25 per week.
The ALJ denied Respondents’ motion and held that Claimant qualified as a non-salaried elective official entitled to the maximum compensation rate. Respondents appealed, and ICAP denied the appeal. ICAP agreed that Claimant met the statutory definition of a non-salaried elective official, reasoning that Claimant volunteered to serve as an elective official and was not compensated for many services performed. At the time of the injury, there was no enforceable agreement between the parties to pay any salary aside from the board meeting stipend. ICAP reviewed definitions of the term “salary” from multiple sources, including Wikipedia and the Workers’ Compensation Act, and concluded that the $100 meeting stipend did not constitute a salary and instead was an episodic payment. ICAP cited case law supporting the conclusion that the stipend was a nominal benefit, or gratuity, rather than a salary.
All Uninsured Parties Raise Your Hand So We Know Who’s Jointly Liable: In De le Paz Herrea v. Bohlender Colorado Farms and Precision Home Buildings, LLC and Conceptos Painting and Remodeling, W.C. 4-938-822-02 (April 6, 2015) , the ALJ ruled, and the Panel affirmed, that uninsured parties may be held jointly liable as “statutory employers” in workers’ compensation claims. In this case, Claimant was employed as a painter for Conceptos, a company that provided labor for painting and remodeling. Claimant fractured his leg when he fell from a ladder while painting the interior of a residential farm home. Conceptos was uninsured and was hired by Precision Home Building, LLC to paint the interior of the newly constructed home. Precision Home Building is a company that hires contractors for home building, but does not perform any actual construction work. Precision was also not insured for workers’ compensation and was hired by Bohlender, LLC to be a broker and general contractor to build a new residential farm home. Bohlender is a farming company with four principal members who are family. The farm home, where the injury occurred, was to be the personal residence of two principal members.
Upon review, the Panel determined that the broad definition for “regular business” must be used when determining the appropriate statutory employer. In this case, whether or not Precision had actually performed the service with its own employees did not matter. Evidence demonstrated that the painting of the house was a regular part of Precision’s business, which, with the use of subcontractors, Precision would perform. Therefore, Precision was deemed a statutory employer. Generally, there’s only one party determined to be a statutory employer. However, the Panel, citing case law, stated that where no party is insured, the Panel had previously determined that the employers are jointly liable for benefits due. Coffey v. Graham d/b/a Affordable Roofing, W.C. 3-909-714 (January 24, 1991). Accordingly, both Precision and Conceptos were found to be jointly liable.
The Panel also affirmed that Bohlender was not a statutory employer because the labor being performed was at a primary residence. The Panel reasoned that a qualified residence, under the IRS code, is one that is a primary residence. Use of the residence for primarily personal reasons is dispositive and, in this case, there was enough evidence to support a conclusion that Bohlender, LLC was not a statutory employer, as the labor being done was on a primary residence, despite the fact that an LLC hired the subcontractors.
Lying is a Disability Worthy of PTD Benefits…for Some People: In Romero v. Alstom, Inc., W.C. 4-767-157-06 (April 9, 2015), the Panel found that Claimant’s prior cognitive issues and personality disorders did not disqualify him from an award of PTD benefits. Upon review of this case, the Panel found that the ALJ did not err when he concluded the Claimant’s ability to tell the truth did not disqualify him from an award of PTD. Claimant was a welder who injured his neck and shoulder when he fell from a scaffolding. He had a preexisting history of cognitive issues and possible personality disorders that caused him to be untruthful and embellish his recounting of information. Claimant had undergone two prior shoulder surgeries and a third was recommended. The ALJ credited the opinion of Dr. Castrejon that the Claimant could realistically only work in sedentary jobs. This was a considerable change from claimant’s previous earning capacity. Claimant was 64 years old, had no high school diploma or GED and had only worked in jobs characterized as being in the heavy work category. The ALJ noted that Claimant’s preexisting psychological condition was a factor in determining that Claimant was unable to earn any wages, finding that Claimant’s inability to be truthful can actually be seen as an employment disability. The ALJ determined the effects of the industrial injury were significant and bore a direct relationship between the precipitating event and resulting disability. The ALJ cited Askew v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995). In that case, the test was first to determine the residual impairment caused by the industrial injury and then determine whether it was sufficient to result in permanent total disability without regard to subsequent or intervening events or preexisting conditions. In all cases, a claimant’s overall condition necessarily includes characteristics present prior to an injury. In this case, the ALJ concluded that this would include Claimant’s reluctance to be forthright about himself. On appeal, the Panel upheld the ALJ’s findings regarding the issue of PTD.
In addition to PTD benefits, Respondents argued that Claimant’s second surgery failed, in part due to his disinclination to follow-up with physical rehabilitation treatment. They argued that this constituted injurious practice. Claimant’s unwillingness to stop smoking, maintain his blood glucose level and attend medical appointments were noted by Respondents. However, both the ALJ and the reviewing Panel noted Respondents showed no evidence that the proposed shoulder surgery would be useful or promote Claimant’s recovery. ICAP upheld the ALJ’s determination that Claimant’s inability to comply with his physicians’ recommendations constituted an “injurious exposure,” which would have mitigated Respondents’ ongoing indemnity benefits exposure.
Would you like Workers’ Compensation Benefits with your Coffee?: Parking lots owned by the employer, or maintained by the employer for its employees, are generally considered part of the “premises” whether within the company’s main premises or separated from it. In Wilson v. Dillon Companies, Inc. W.C. 4-937-322-01 (March 16, 2015), a barista at a coffee shop sustained a compensable injury when she slipped and fell on ice in the parking lot outside of the coffee shop where she worked. This injury was found to be compensable even though Claimant had completed her shift and had clocked out but remained in the same shopping center to complete some personal grocery shopping. The ALJ and ICAP reasoned that, in addition to the parking lot doctrine noted above, the claim was compensable because although Claimant had a “personal deviation” to conduct her own shopping, when she completed the personal shopping, the deviation had ended. They noted that once Claimant completed her check out from the grocery store and walked out to where her car had been parked while she had been working; her injury had arisen out of and within the course and scope of her employment. The time that had elapsed between the end of her barista shift and her personal grocery shopping was not only minimal, but it did not end the applicability of parking lot doctrine. This was due to the fact that her injury had occurred in the same parking lot, which was considered the premises of her employer. It did not matter whether she had just finished her shift or not.