legaLKonnection Firm Newsletter – July 2016

Lee + Kinder LLCThank 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.

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In the News
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Congratulations to Joseph W. Gren, the latest Member of Lee + Kinder LLC

 

Mr. Gren began working at Lee + Kinder LLC in 2009 and has since practiced in the areas of workers’ compensation, subrogation recovery, and premises and auto liability.

Mr. Gren is licensed to practice law in Colorado and Arizona.

 

 

 

 


Victory Lap

In Richard Ramirez v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended against a claim alleging aggravation of a pre-existing low back condition. While ALJ Nemecheck credited the claimant’s testimony, he noted that the claimant’s MRIs and X-rays from before and after the alleged accident showed no objective evidence of worsening. He further noted that the claimant was treated for his pre-existing condition until just before his alleged accident, and that the post-accident treatment represented a mere continuation of his pre-accident treatment regimen. ALJ Nemecheck denied and dismissed the claim.

 

Joseph Gren MemberMember Joseph W. Gren and Associate Daniel Mowrey were successful in a full-contest hearing in Rafael Rodriguez v. Evraz, Inc. NA. The claim involved an employee who alleged injuries to his head, shoulder, back, neck, and lungs as a result of an explosion at work. ALJ Lamphere found that the claimant could not establish that he sustained an injury to his head, neck, or shoulder. Furthermore, Mr. Gren utilized expert medical witness testimony and employer witness testimony to present evidence that Claimant’s mechanism of injury could not have occurred the way he claimed it to have occurred. ALJ Lamphere found the lung claim to be compensable as the explosion did occur causing exposure to dust. ALJ Lamphere denied all indemnity benefits and medical benefits with the exception of the emergency room visit to address Claimant’s lung issue. ALJ Lamphere denied and dismissed the remainder of the claim.

 

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A Painful Step in Addressing the Opioid Epidemic: An Overview of the 2016 CDC Guidelines

The growing epidemic of chronic opioid use and addiction, and its consequences, permeates the American medical and legal landscape. Since the spike in the use of ubiquitous pain medications in the late 1990s, there has been little actual oversight in the health care industry to regulate the prescription of these highly addicting drugs. In March 2016, the Center for Disease Control (CDC) released new guidelines concerning opioid pain prescriptions.
Click here to continue reading this article

 

 


Cases You Should Know

Let It Be, Let It Be: As announced in a recent L + K LLC Victory Lap, the Colorado Court of Appeals recently released the decision in Victor England v. AmeriGas Propane and Indemnity Insurance Company of North America, W.C. No. 4-907-349 (Colo. App. 2016), awaiting publication. The Court of Appeals overturned an ALJ’s decision to reopen a settled claim on the basis of mutual mistake of fact. In short, Claimant asserted a mutual mistake of fact existed at the time of settlement because the parties were unaware of an existing fracture to the injured body part at the time of settlement, prior to MMI. Upon learning of the fracture, Claimant sought to reopen due to mutual error or mistake. Both the ALJ and ICAO permitted reopening on this basis. Upon appeal, the Court of Appeals overturned. The Court held that, upon entering into a full and final settlement, the parties were agreeing to resolve all issues, known or unknown at that time, and that a claimant knowingly waives his rights to future benefits in consideration of the agreement.

Moral of the Story: Full and final settlements are exactly what the title implies: Full and Final.

 

Don’t Spend What You Don’t Have: In another recently released L + K LLC victory, Toby Heffnerv. Wal-Mart Stores, Inc., et al. W.C. No. 4-869-417 (November 13, 2015), Claimant sought review of an order that found Respondents were entitled to recover an overpayment of $13,721.35 in TTD benefits per C.R.S. §§8-40-201(15.5) and 8-42-113.5. Claimant was ordered to pay it back at a rate of $250 per month, based on his AWW of $1,822.88. The only issue raised by Claimant was the rate of recovery of the overpayment (i.e. how much Claimant had to pay back per month). ICAO agreed with Respondents’ position that the ordered repayment rate was reasonable because it was appropriately based on the AWW and the amount of time it would take to have the recovery paid back, Claimant was still employed, and Claimant had offered no evidence of financial hardship due to the existing rate.

Moral of the Story: Over-payments do exist and can be collected directly from claimants at a rate proportionally reasonable to the admitted AWW at the time of injury.

 

Long Arm of the Law: In Youngquist Brothers v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), the Colorado Court of Appeals addressed when Colorado has jurisdiction to award benefits for an out-of-state work-related injury. The Respondent was a North Dakota employer with no contacts in the state of Colorado aside from the hiring of Colorado residents. The employer hired a Colorado resident who was injured in North Dakota within days of being hired. Section 8-41-204, C.R.S. sets fourth that Colorado has jurisdiction to award benefits for an out-of-state work-related injury if an employee was (1) hired or regularly employed in Colorado and (2) injured within six months of leaving Colorado. The Court noted that this provision does not require an employer hiring a Colorado employee to have any other contacts with Colorado.

Moral of the Story: If an employer hires Colorado residents, regardless of whether any work will be performed in Colorado, they should obtain workers’ compensation insurance in Colorado.

A Painful Step in Addressing the Opioid Epidemic: An Overview of the 2016 CDC Guidelines

The growing epidemic of chronic opioid use and addiction, and its consequences, permeates theopiod American medical and legal landscape.  Since the spike in the use of ubiquitous pain medications in the late 1990s, there has been little actual oversight in the health care industry to regulate the prescription of these highly addicting drugs.  In March 2016, the Center for Disease Control (CDC) released new guidelines concerning opioid pain prescriptions. The guidelines have caused some backlash from physicians, who believe the government is now overreaching into the patient-physician relationship, and shifting from its historical role of approving the use of opioids at the regulatory level. Aside from the finger pointing amongst stakeholders in the health care industry, from the government, to big pharma, to the physicians who continue to administer, to the legal system, the fact is there is plenty of blame to go around for the cause of the epidemic. The response to the guidelines reflects the fundamental agreement that more oversight and education is needed at all levels.  The CDC’s new guidelines are a broadened approach with the goal of addressing the epidemic from the top down.

 

The authors of the guidelines, which were an amalgam of health care professionals, cited a jaw dropping statistic. In 2012, health care providers wrote 259 million prescriptions for opioid medications. That is one prescription for every adult in the U.S. The increase in prescriptions were found in the areas of family practice, general practice, and internal medicine. From 1999 through 2014, more than 165,000 people died from opioid related deaths in the U.S. The authors pointed out that contemporary studies evidenced that opioids have adverse long term affects including significant physical impairment and distress. The authors stated that, “this disorder is manifested by specific criteria such as an unsuccessful effort to cut down or control use resulting in social problems and a failure to fulfill major role obligations at work, school, or home.” In other words, continued prescription of opioid medications can be a contributing factor in an injured worker not returning to the work place.

 

The substance of the CDC guidelines can be broken into three general categories:

(1) when to start or continue administration of opioids for chronic pain symptoms;

(2) how practitioners should select a particular drug, the dosage, and when to discontinue that specific dosage; and

(3) how to mitigate the potential for addiction from start to finish.

The guidelines are not intended to apply for cancer and end-of-life palliative care. Rather, the guidelines are intended to apply to primary providers, including those who work in out-patient clinical settings.

 

The guidelines emphasize the benefits of non-opioid treatments. For lower back pain, exercise therapy and non-steroid anti-inflammatories are recommended. As an alternative to opioids, cognitive behavioral therapy is recommended to mitigate disability and catastrophic thinking. If, and when, opioids are utilized in a treatment program, the physician should continue prescriptions if “meaningful improvement” in pain and function outweighs the risk of continued use. The guidelines recommend that the patients demonstrate a 30% improvement in pain scores and function to justify continued opioid use. In other words, opioids must be used as a method to improve function rather than as a “band-aid” approach to sustain the status-quo condition.

 

During the continuation process, the physician should actively manage the patient’s case by reviewing any history of controlled substances and utilize their state’s prescription drug monitoring program periodically, while performing, at a minimum, annual urine tests. In Colorado, for example, the Workers’ Compensation Medical Treatment Guidelines (MTG), Rule 17 Exhibit 9, have independent criteria for treating chronic pain in workers’ compensation case. The MTG emphasizes similar recommendations for active case management, including urine screens.  Additionally, the Department of Regulatory Agencies, in connection with several state medical boards, released an “Open Letter to the General Public on the Quad-Regulator Joint Policy for Prescribing and Dispensing Opioids” on October 15, 2014. While the policy does not draw a bright line rule of managing opioid cases in Colorado, the letter does outline the boards’ recognition that “decreasing opioid misuse and abuse in Colorado should be addressed by collaborative and constructive policies aimed at improving the prescriber education and practice, decreasing diversion, and establishing the same guidelines for all opioid prescribers and dispensers.”  The board also emphasized documenting improved functions, the use of the PDMP (Prescription Drug Monitoring Program), and random drug screening based upon the provider’s clinical judgment.

 

The CDC guidelines are important to workers’ compensation treatment and claims. The guidelines suggest that long term opioid use can be counterproductive in workers’ compensation. How these guidelines will be used by workers’ compensation physicians, in order to return injured workers’ back to work, has yet to be known. But the guidelines can be used in an effort to mitigate risk for future exposure in the litigation process. From a legal perspective, the guidelines, though not binding on any physician, are a peer reviewed document by both experts in the field and industry stakeholders. In this author’s opinion, the guidelines itself meet the threshold evidentiary requirement in Colorado as an admissible, reliable medical document. For more information, please feel contact us with specific case-related questions. As a resource, the CDC guidelines can be found here. A copy of the Colorado joint letter on prescribing and dispensing opioids can be found by following the link located here.

 

legaLKonnection Firm Newsletter – June 2016

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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.

In the News

Of Counsel Frank Cavanaugh and Of Counsel Joseph Gren attended the annual Colorado Self-Insured Association (CSIA) lunch at the Colorado History Museum. The CSIA is a group of workers’ compensation self-insured employers, and various businesses dealing with self-insured employers. The CSIA members share a common interest in the efficient delivery of workers’ benefits to their injured workers in a cost-effective manner. To further this objective, the CSIA provides educational support to members and actively participates in legislative and rule-making changes. Frank Cavanaugh has been a member of the CSIA legislative committee for a number of years, testifying in legislative committees and participating in various rule-making discussions. Lee + Kinder, LLC sponsored the event again this year and gave away gift cards to several lucky winners in a drawing.


Victory Lap

In Josue v. Anheuser-Busch, Inc. and ACE American Insurance Company, Member Tiffany Kinder and associate Kelsey Bowers successfully defended against the claimant’s appeal to the Industrial Claims Appeals Office (ICAO). The claimant appealed an Order Granting Respondents’ Motion for Summary Judgment, which permitted Respondents to assert an overpayment of $16,222.32. ICAO upheld the ALJ’s Order. ICAO was not persuaded by the claimant’s argument that there can be no “overpayment” if the temporary disability benefits were paid pursuant to a General Admission of Liability. ICAO agreed with Respondents that the overpayment statute, case law, and the beneficent purpose of the Act supported the Order allowing Respondents to assert an overpayment.

 

Of Counsel Sheila Toborg was successful in a full-contest hearing in [name withheld] v. Liberty Mutual Insurance, et al. The claim involved an employee who alleged injuries to her shoulder, upper back, and neck, including a cervical disc herniation as a result of her job duties as an insurance agent. ALJ David Cain found that the claimant could not establish a particular traumatic event causing her injuries. Furthermore, Ms. Toborg utilized expert medical witness testimony to present evidence that there was no causal link between an alleged occupational injury and the claimant’s job duties. ALJ Cain found that the claimant had failed to prove that she sustained an accidental injury or occupational disease proximately caused by the performance of service arising out of and in the course of her employment. ALJ Cain denied and dismissed the claim.

In Garcia v. The Home Depot, Self-Insured, of Counsel Sheila Toborg and associate Stephen Abbott successfully challenged the claimant’s request for authorization of a gastric sleeve procedure. The claimant argued the gastric sleeve – intended to assist with weight loss – was necessary so that he could undergo hip surgery related to the work injury. ALJ Jones agreed with Respondent that the gastric sleeve surgery was not a reasonable and necessary method of weight loss as there were less invasive alternatives that would have the same outcome. Ms. Toborg elicited testimony from the claimant that demonstrated that he did not understand what was required to lose weight and had not tried the less invasive weight loss methods. Dr. Fall also provided supporting expert testimony regarding the risks involved with gastric sleeve surgery and the benefits of the less invasive alternatives.

 

In Maddox v. Interactive Corporation and Ins. Co. of the State of PA, Of Counsel Fran McCracken successfully defended against the claimant’s request for authorization of a spinal cord stimulator. Ms. McCracken drew testimony from the claimant that she “would not want the surgery even if it was approved.” ALJ Kimberly Turnbow found Respondents’ expert, Dr. Shih, credibly testified that a patient’s feelings about a procedure affect the outcome by up to 30 percent. Additionally, the claimant failed to prove that she had CRPS because she only met one of the three required positive criteria for a diagnosis of CRPS. Therefore, Judge Turnbow denied the claimant’s request for a spinal cord stimulator.

 

Associate Kelsey Bowers successfully defeated the claimant’s attempt to add an additional body part and related medical treatment to the claim in Barmore v. The Home Depot, Self-Insured. At hearing, the claimant sought authorization for a cervical spine fusion. ALJ Jones agreed with Respondent’s argument that the work-related injuries included a left shoulder and brachial plexus stretch injury, but not an injury to the cervical spine. On cross-examination, Ms. Bowers elicited testimony from the claimant’s expert, Dr. Gellrick, wherein Dr. Gellrick conceded that the objective medical testing was inconsistent with a cervical spine injury. ALJ Jones found Dr. Fall’s testimony regarding the related body parts and future medical treatment to be credible and further found that the claimant did not suffer a work-related cervical spine injury. ALJ Jones denied the claimant’s request for authorization of a cervical spine fusion.

 


The EEOC’s New Wellness Program Rule

On May 16, 2016, the Equal Employment Opportunity Commission (EEOC) released its own final regulations regarding employer wellness programs. This was in direct response to the two recent court decisions – EEOC v. Flambeau, Inc. and Seff v. Broward County. In its recently issued regulations, which you can access HERE and HERE

Click here to continue reading the article.


Cases You Should Know

It’s an ALJ’s Prerogative: In Morrison v. Rock Electric, Inc., the claimant, an electrician, sustained injuries when another vehicle rear-ended his truck while he was picking up a co-worker on his way to the job site. WC No. 4-939-901 (ICAO July 24, 2015). ICAO upheld the ALJ’s conclusion that the injuries were not compensable. ICAO stated that the claimant failed to prove that the employment contract contemplated the claimant’s travel or that the travel conferred a benefit to the employer beyond the claimant’s mere arrival at work. However, ICAO noted that the outcome could have been different based on the facts presented and indicated that it was the ALJ’s responsibility to evaluate witness credibility and evidence.

Moral of the Story: While Respondents were victorious in this claim, the general rule that injuries sustained while driving to and from work are not compensable continues to disintegrate. The ALJ has prerogative to decide the issue based on the facts.

 

No Taksies-Backsies!: In Oldani v. Hartford Financial Services, the parties negotiated a full and final settlement, but Respondents agreed to keep maintenance medical treatment open. WC No. 4-614-319 (ICAO November 13, 2015). Respondents subsequently pursued litigation to deny a request for injections and terminate all future medical benefits in the claim. ICAO found that because the settlement agreement specifically indicated that maintenance care remained open, the situation required Respondents to prove fraud or mutual mistake of a material fact in order to reopen the settlement and eliminate their obligation to provide medical benefits. Since Respondents failed to endorse the issue of reopening the settlement on the Application for Hearing, ICAO upheld the ALJ’s decision to strike the issue of terminating medical care.

Moral of the Story: Leaving maintenance care open as part of a full and final settlement is a risky proposition.

 

Speak Now or Forever Hold Your Peace: In Horiagon v. Codi Manufacturing, Inc., the parties disputed the weekly amount that the claimant had to pay so that Respondents could recover a TTD overpayment. WC No. 4-985-020 (ICAO November 23, 2015). ICAO upheld the ALJ’s conclusion that $250 per week was reasonable based on the claimant’s prior Average Weekly Wage (AWW). On appeal, the claimant argued that this amount was unreasonable because his AWW reduced after he reached MMI. However, the claimant failed to present this evidence to the ALJ at hearing. As such, ICAO refused to consider the new evidence and argument on appeal.

Moral of the Story: Parties will not be permitted to bring new evidence or arguments on appeal unless the issues were raised in the original hearing.

 

In the two cases below, the Colorado Supreme Court provides clarification and guidance regarding C.R.S. §8-41-209, the “Firefighter Statute.”

The Supremes Rule: In City of Littleton v. Christ, the claimant worked as a firefighter for the City of Littleton. After 30 years of service, the claimant developed brain cancer, and ultimately died from the cancer. His widow sought workers’ compensation benefits asserting the cancer qualified as a compensable occupational disease under the “firefighter statute.” The ALJ denied the claimant’s claim finding the respondents established by the preponderance of the medical evidence that the cancer was not caused by his occupational exposure, because the evidence demonstrated the substances the claimant was exposed to while fighting fires would not cause brain cancer. ICAO reversed noting the statute created a presumption that the occupational exposure of firefighters causes cancer that may not be rebutted by the opinions of medical experts. The Court of Appeals affirmed. The Colorado Supreme Court reversed, holding that while the statute shifts the burden to respondents to prove the cancer was not caused by the occupation, the statute does not establish a conclusive (i.e. irrebuttable) presumption that firefighter duties cause cancer. Respondents bear the burden to overcome the presumption and prove the cancer did not occur as a result of the firefighter’s job. The Supreme Court explained overcoming the presumption can be demonstrated by the absence of either general or specific causation. Respondents can show either: (1) the firefighter’s known or typical exposures are not capable of causing the type of cancer at issue; or (2) that the firefighter’s employment did not cause the cancer because there was no exposure to the cancer causing agent, or where medical evidence renders it more probable that the cancer was not job-related.

Not All Cancers Are Alike: In Zukowski v. Town of Castle Rock the firefighter claimant was diagnosed with melanoma and sought workers’ compensation benefits under the firefighter statute. Respondents presented evidence that it was more probable that the claimant’s risk of developing melanoma was due to non-work related factors. Respondents’ expert testified the claimant’s known risk factors, including history of sun exposure outside of work as a firefighter and skin moles, placed him at much greater risk of developing melanoma than those risk factors from performing firefighter duties. The ALJ found the claimant’s claim to be a compensable work injury, opining the respondents failed to prove the claimant’s cancer came from a specific cause outside of work. ICAO affirmed. The Court of Appeals reversed and held the ALJ erred by requiring the respondents prove the exact cause of claimant’s cancer in order to overcome the presumption of compensability set forth in the statute. The Court held that respondents can overcome the presumption that the cancer was not caused by firefighting by demonstrating that “another source was more likely or probably the cause of the cancer.” The Colorado Supreme Court affirmed. The Supreme Court noted that to overcome the presumption that the firefighter’s cancer was caused from his employment requires only for the respondents to show, that “it was more probable than not” the firefighter’s cancer condition “did not occur on the job.”

Moral of the Story: Defending firefighter cases requires evidence that either the firefighter’s cancer would not have occurred from the specific elements the firefighter was exposed, or that the cancer is more likely related to non-work related risk factors.

The EEOC’s New Wellness Program Rule

On May 16, 2016, the Equal Employment Opportunity Commission US-EEOC-Seal.svg(EEOC) released its own final regulations regarding employer wellness programs.  This was in direct response to the two recent court decisions – EEOC v. Flambeau, Inc. and Seff v. Broward County.  In its recently issued regulations, which you can access HERE and HERE

The EEOC has set forth its final position on how the Americans with Disabilities Act (ADA) and Title II of the Genetic Information and Discrimination Act (GINA) apply to employer wellness programs that request the health information of employees and/or their spouses.  While most provisions of the final ADA rule and final GINA rule are identical to their respective proposed rules, there are some key differences, which we explain below in Q&A format below.

  1. Does the ADA’s safe harbor provision apply to employer wellness programs?

No.  The ADA’s safe harbor provision states that the ADA “shall not be construed to prohibit or restrict . . . a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.”  42 U.S.C. § 12201(c).

The Commission made no secret about its opinion that Seff and Flambeau were “wrongly decided” (including by appealing the Flambeau decision to the Seventh Circuit).  Despite case law to the contrary and pending appeals, the Commission reaffirmed its position in the final ADA rule that “the safe harbor provision does not apply to an employer’s decision to offer rewards or impose penalties in connection with wellness programs that include disability-related inquiries or medical examinations.”  Rather, the safe harbor provision only applies “to the practices of the insurance industry with respect to the use of sound actuarial data to make determinations about insurability and the establishment of rates.”  An employer’s use of a wellness program to make employees healthier and reduce the costs of health care is not the type of underwriting or risk classification that is protected by the safe harbor provision. See 29 C.F.R. § 1630.14(d)(6).

  1. What wellness programs are subject to these final rules?

Any wellness program that includes disability-related inquiries and/or medical exams is subject to the rule.  This includes wellness programs: (a) offered only to employees enrolled in an employer-sponsored group health plan; (b) offered to all employees regardless of enrollment in the employer-sponsored group health plan; and (c) offered as a benefit of employment by employers that do not sponsor group health plans/insurance.

  1. Do the final rules provide additional clarification as to what makes a wellness program “voluntary”?

Yes.  The Commission has held steadfast in its decision to apply the “30 percent rule” for incentives set under HIPAA and the Affordable Care Act to participatory wellness programs that inquire as to employee disabilities or require employees to undergo medical examinations.  In doing so, the final rule limits the size of the incentives offered by these programs to 30% of the employee’s total cost of coverage.  Many commenters wanted the Commission to adopt an “affordability standard” to protect low-income workers from incentives that prove to be large enough to render health insurance coverage unaffordable.  The Commission declined to adopt this standard however, because in its view, “this rule promotes the ADA’s interest in ensuring that incentive limits are not so high as to make participation in a wellness program involuntary.”

Additionally, in the rule’s preamble specific to 29 C.F.R. § 1630.14(d)(2)(ii), the Commission clarifies that it is of the opinion that the ADA prohibits “the outright denial of access to a benefit available by virtue of employment”, but does not prohibit “an employer from denying an incentive that is within the [30% limit] . . . nor does it prohibit requiring an employee to pay more for insurance that is more comprehensive.”  The Commission likely included this comment to further emphasize its disagreement with the Flambeau and Seff decisions – the Commission has concluded that an employer discriminates against an employee in violation of the ADA, 42 U.S.C. § 12112(d)(4), when it “denies access to a health plan because the employee does not answer disability-related inquiries or undergo medical examinations.”

The final rule explaining the notice requirement, 29 C.F.R. § 1630.14(d)(2)(iv), also clarifies that it applies to “all wellness programs that ask employees to respond to disability-related inquiries and/o undergo medical examinations.”

  1. What types of incentives may be offered to employees and how can employers calculate incentive limits?

In addition to financial incentives, employers are permitted to offer in-kind incentives (e.g., employee recognition, parking spot use, relaxed dress code) and de minimis incentives to employees, despite any difficulties in valuing these incentives.

The final ADA rule, 29 C.F.R. § 1630.14(d)(3), also explains how employers can calculate incentive limits in four situations: (a) where participation in a wellness program depends on enrollment in a particular health plan; (b) where wellness program participation does not depend on employee’s enrollment in an employer-offered single group health plan; (c) where wellness program participation does not depend on employee’s enrollment in any of employee’s group health plans; and (d) where an employer does not offer a group health plan or insurance.

  1. How do these rules relate to other federal discrimination laws?

Employers should pay special attention to interpretative guidance following the final ADA rule.  In it, the Commission states:

“[E]ven though an employer’s wellness program might comply with the incentive limits set out in [29 C.F.R. § 1630.14(d)(3)], the employer would violate federal nondiscrimination statutes if that program discriminates on the basis of race, sex (including pregnancy, gender identity, transgender status, and sexual orientation), color, religion, national origin, or age.  Additionally, if a wellness program requirement (such as a particular blood pressure or glucose level or body mass index) disproportionately affects individuals on the basis of some protected characteristic, an employer may be able to avoid a disparate impact claim by offering and providing a reasonable alternative standard.”

This appears to place the additional burden on the employer to examine all wellness program incentives and requirements for potential disparate impact.  The extent to which an employer must understand specific medical characteristics of every protected class on its employee roster is unknown.

  1. What changes did the Commission make in the final GINA rule?

There are four changes of note, all of which were added to the final GINA rules to clarify and/or enhance the proposed rules.

  • The final GINA rule extends the prohibition on offering inducements for information from the children of employees to all children (minor children and those 18 years of age or older).
  • Every provision of the final GINA rule now applies to all employer-sponsored wellness programs requesting genetic information.
  • There is no longer a different inducement limit threshold for employee spouses. The final GINA rule uses the “30 percent rule” when an employee and the employee’s spouse are given the opportunity to enroll in the employer-sponsored wellness program.  The final rule provides examples of how to calculate incentive limits where this is the case.  See 29 C.F.R. 1635.8(b)(2)(iii)(A)-(D).
  • Employers may not condition an employee’s or an employee’s spouse’s participation in a wellness program or their eligibility for offered incentives on the employee, the employee’s spouse, or a covered dependent agreeing to the sale, exchange, sharing, transfer, or other disclosure of genetic information or waiving GINA’s confidentiality protections.

Take Away

The final rules apply proactively – thus, are only applicable to wellness programs as of the first date of the plan beginning January 1, 2017 or thereafter.  In the meantime, we await the Seventh Circuit’s decision in the EEOC’s appeal of Flambeau regarding whether the ADA safe harbor provision applies to employer wellness programs.  Given the EEOC’s position that the provision does not apply and the growing number of courts that think otherwise, it is looking like the ultimate decision will be made by the U.S. Supreme Court.

legaLKonnection Firm Newsletter – May 2016

newsletter_LK-header-badge2016

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.
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In the News

Lee + Kinder, LLC was a Diamond Sponsor at the Professionals in Workers’ Compensation Awards Ceremony on May 6th. Joshua Brown and Frank Cavanaugh attended the ceremony representing Lee + Kinder LLC. The ceremony was well attended and the Master of Ceremonies, ALJ Craig Eley, was very well received. Neil O’Toole received the President’s Award for his outstanding service in representing injured workers in the utmost professional manner, an honor Mr. O’Toole certainly deserves. Patty Richardson of Gallagher Bassett was awarded the Outstanding Claims Handler, Katie Montoya was awarded the Outstanding Rehabilitation Specialist and the Outstanding Integral Service Award went to CorVel. Congratulations to all award recipients!

Victory Lap

ST_newsOf Counsel Sheila Toborg and associate Stephen Abbott were successful on a recent full-contest hearing in Odell Walker v. Raytheon Co., et al. The claim involved an employee who alleged an injury to his cervical spine while working with his arms overhead. ALJ David Cain found that the claimant’s radicular symptoms began before his employment with Raytheon, and that his cervical condition was not aggravated by work. ALJ Cain denied and dismissed the claim.

Of Counsel Sheila Toborg and associate Stephen Abbott also succeeded on a recent hearing on medical benefits in Rocco Desantis v. Northwest Airlines, Inc., et al. The claimant sought a shoulder replacement surgery that respondents previously authorized several years earlier. The respondents argued that, despite the previous authorization, the surgery was not reasonable, necessary, or related to the admitted work injury. ALJ Timothy Nemechek agreed with the respondents and denied the request for surgery.

Joe_115X150Of Counsel Joseph Gren and associate Dan Mowrey, received a favorable order denying psychological treatment and medications in Marcie Rhysling v. Pier 1 Imports and Liberty Mutual Insurance, W.C. No. 4-981-841. Claimant sought psychological treatment including prescription medications. Mr. Gren introduced testimony from Dr. Kleinman who maintained that Claimant was no worse now than she was before the injury and her need for current treatment and medication was attributed to stressors outside the scope of the occupational injury. Mr. Gren persuasively argued that there was no substantial reliable medical evidence in the record to support Claimant’s claim for additional medical benefits. ALJ Turnbow agreed noting that Dr. Kleinman, Dr. Gomer, and Dr. Boyd were all unable to link Claimant’s current depression and anxiety with the compensable injury. The ALJ found reports and testimony of Dr. Kleinman to be persuasive and more credible than Claimant’s testimony and issued an Order denying the request for medical benefits.

FMC_115x125Of Counsel Frank Cavanaugh, filing as an amicus curiae (friend of the Court) on behalf of the Colorado Self-Insured Association, received a favorable opinion from the Colorado Supreme Court involving the firefighter cancer presumption under Section 8-41-209, C.R.S. Zukowski v. Town of Castle Rock, 13SC560, ___ P.3d ___ (May 2, 2016)

Mr. Zukowski began working for the Castle Rock fire department in 2000. In 2002 Mr. Zukowski had five moles removed and biopsied. In 2008 he developed a mole on his right calf and ultimately in 2011 Mr. Zukowski was diagnosed with melanoma on his right outer calf at the same site where a mole that developed several years earlier. He had several surgeries to remove the mole and returned to full duty work, but made a claim for medical and temporary disability benefits under the presumption statute. At hearing the parties stipulated that Mr. Zukowski was entitled to the presumption that the cancer was related to his occupational exposure as a firefighter; thus the only issue was whether the employer overcame the presumption. The employer presented evidence regarding Mr. Zukowski’s known risk factors for developing melanoma including exposure to the sun and history of abnormal mole growth. The ALJ found that Castle Rock’s burden in trying to overcome the presumption was to prove by medical evidence that claimant’s cancer came from a specific cause not occurring on the job.

On appeal to the ICAO, the ICAO essentially agreed with the ALJ. Castle Rock appealed the ICAO’s decision to the Colorado Court of Appeals, arguing that the ALJ misapplied the presumption when the ALJ determined that risk factor evidence was insufficient to rebut the presumption. The Court of Appeals agreed with the town of Castle Rock, looking at cases from other jurisdictions with a similar presumption statute and concluding that employer may overcome the presumption with specific risk evidence demonstrating that the particular cancer was probably caused by a source outside of work.

The Colorado Supreme Court granted certiorari in Zukowski, along with a companion case involving a similar issue. The Colorado Supreme Court held that Castle Rock was not required to establish an alternate cause for the cancer to overcome the presumption. The Court further held that presenting risk factor evidence which demonstrates the cancer was more probably caused by something other than work can rebut the presumption.

FranNewsOf Counsel Frances McCracken successfully terminated Respondents’ liability for post-MMI medical treatment in two claims: Ronda Conley v. Wal-Mart Stores, Inc., et al. and Lynzea Hetrick v. Wal-Mart Stores, Inc., et al. In both claims, Respondents previously voluntarily admitted for post-MMI medical treatment to maintain the claimant at MMI then later sought to withdraw the admissions through litigation. Ms. McCracken elicited persuasive medical testimony and utilized surveillance video to prove by a preponderance of the evidence that post-MMI medical treatment was no longer reasonable, necessary, and related, thus halting Respondents’ liability for ongoing treatment in two claims.

 

John_NewsOf Counsel John Abraham successfully defended an appeal brought by Claimant to alter the rate of an over-payment recovery by Respondents in Toby Heffner v. Wal-Mart Stores, Inc., et al. ALJ Cannici found that Respondents were entitled to recover an over-payment of $13,721.35 in TTD benefits per C.R.S. §§8-40-201(15.5) and 8-42-113.5. Claimant was ordered to pay it back at a rate of $250 per month, based on his AWW of $1,822.88. The panel was persuaded and agreed with Respondents’ position that the rate was a reasonable rate proposed by Respondents because it was appropriately based on the AWW and the amount of time it would take to have the recovery paid back.



COLORADO SUPREME COURT CLARIFIES THE FIREFIGHTER CANCER STATUTE

BACKGROUND
In 2007 the Colorado Legislature enacted a firefighter cancer presumption statute at Section 8-41-209, C.R.S. The statute created a presumption that certain cancers were caused by work as a firefighter if the individual diagnosed with the cancer worked in the capacity for at least five years. For the cancer to be deemed a compensable occupational disease, the firefighter would have had to undergo physical examination upon becoming a firefighter that failed to reveal the cancer at that time. The presumption could be rebutted if the firefighter’s employer or insurer could show by a preponderance of medical evidence that the condition did not occur on the job.

This statute is similar to other presumption statutes that sprung up across the country in the wake of firefighters’ and other first responders’ actions during the 9/11 terrorist attacks. The general premise behind the presumption is that firefighters are exposed to known carcinogens to a greater extent than other occupations and that development of cancer is a known effect caused by exposures to these carcinogens.

Follow this link to read the entire article and learn about the recent case this affected.


Cases You Should Know

All or Nothing: a general award of benefits is not appealable. In Alex D. Miller v. United Insurance Group, W.C. 4-940-803 (February 25, 2016), Respondents sought review of an order determining Claimant was an employee rather than an independent contractor. ICAO dismissed the petition to review on the basis that ICAO did not have jurisdiction to address Respondents’ arguments. ICAO explained that the ALJ’s Order determined Claimant was an employee rather than an independent contractor and generally awarded workers’ compensation benefits to Claimant; however, it was not a final reviewable order because it did not require payment of a specified amount of benefits or penalties nor did it deny benefits. Moral of the Story: When litigating the issue of employee versus independent contractor status, ask the Court to order payment of a specific benefit to preserve the right to appeal.

A Physician Assistant’s MMI determination is of little consequence in the eyes of the law. In Howard MacDougall v. Bridgestone Retail Tire Operations, W.C. 4-908-701 (April 12, 2016), Claimant requested penalties against Respondents on multiple bases, including the fact that Respondents terminated TTD benefits based on a report by a physician’s assistant. ICAO denied the request for penalties, stating case law holds that penalties in such a situation are not a matter of strict liability, and negligence is measured by an objective standard based on whether a reasonable insurer would have taken a particular action under the circumstances. Moral of the Story: Per WCRP Rule 6-1(A)(1), an authorized treating physician must find MMI or release the claimant to full duty before Respondents may terminate TTD. Respondents may not rely on an opinion from a physician’s assistant or nurse practitioner to terminate TTD.

To Err is Human, but Forgive the DIME: No auxiliary shoulder ratings without arthroplasty. In Freeman v. Platte Valley Medical Center, W.C. No. 4-942-096-01 (May 4, 2016), the Claimant sought review of an ALJ’s order finding that the respondents overcame the DIME opinion with regard to an impairment rating for a shoulder surgery. The Panel held that the AMA Guides and the Impairment Rating Tips prohibit the addition of an auxiliary rating for shoulder surgeries pursuant to Section 3.1j in the case of surgeries other than an arthroplasty procedure. The ALJ’s opinion was supported by substantial evidence insofar as it found that an acromion resection did not constitute an arthroplasty under the AMA Guides. As such, the DIME erred in assigning an auxiliary impairment rating for the acromion resection. Moral of the Story: There is no auxiliary rating for shoulder surgeries unless the surgery is specifically an arthroplasty procedure.

No duty, No standing: Respondents’ duty to provide a designated provider list extends only to Claimant. After a claim reached a full and final settlement, a physician sought a hearing on the question of whether he was the authorized treating physician. In Horiagon v. Codi Manufacturing, Inc., W.C. No. 4-985-020 (March 15, 2016), the Panel found that the physician did not have standing insofar as he did not suffer an injury in fact and the question of authorized treating physician was moot. The Panel noted there were no outstanding medical bills and the claim was resolved fully and finally. With regard to the physician’s request for penalties for the respondents’ failure to tender a designated provider list to the claimant, the Panel noted that the duty to provide a designated provider list is a duty owed to the claimant, and that the physician lacked standing to pursue such relief. Moral of the Story: Respondents have a duty to provide the designated provider list to the Claimant, but the duty extends to no one else.

Can’t Always Call It Like You See It: Independent Contractor or Employee? In Pierce v. Pella Windows and Doors, Inc., W.C. 4-950-181-01 (April 26, 2016), the Industrial Claim Appeals Office reviewed a claimant’s appeal of a decision by an ALJ that he was an independent contractor instead of an employee. The ICAO panel reversed and set aside the ALJ’s order. In this case, the employer had laid off all sixteen of their service technicians and immediately rehired eight of them as independent contractors to perform the same work. Upon review, although the panel cited the nine statutory factors constituting whether an individual is an employee or independent contractor under C.R.S. §8-40-102(2), it noted that additional factors could be considered. In this case, in addition to the statutory factors, ICAO noted that Respondents basically employed Claimant in the same job he held previously and also had knowledge and control over whether Claimant could engage in independent business because he was working his same prior full time hours. Moral of the Story: An employer calling someone an independent contractor does not necessarily make the individual an independent contractor without supporting statutory factors.

No soup for you! No impairment rating without a Table 53 Diagnosis. In Silva v. Corporate Services Group Holdings, Inc.,W. C. No. 4-44-337-03 (February 23, 2016), ICAO affirmed the ALJ’s finding that the permanent impairment rating from the DIME should be set aside and Claimant’s request for PPD benefits denied. The DIME noted on the rating sheet that a rating for a specific Table 53 disorder of the spine was not applicable. Respondents cited the AMA Guides and DOWC Guidelines noting that a physician is precluded from assigning a rating for range of motion deficit unless there is first a rating based on Table 53. An impairment rating cannot be based on a range of motion measurement alone. Moral of the Story: If there is no Table 53 Diagnosis for spinal conditions, then there cannot be an impairment rating based on loss of range of motion.

Snake Bit: COBRA costs may be included in AWW even if not elected by Claimant. When a Claimant is terminated and does not elect COBRA or other health insurance, the health insurance replacement cost is still calculated into average weekly wage. An unpublished Colorado Court of Appeals decision addressed this issue in Restaurant Technologies v. ICAO, WC 481-542-001 (nsfp). The ALJ and Panel ruled that Claimant was entitled to an increase in his AWW equivalent to the full cost of covering his health insurance premium under COBRA. The only circumstances under which health insurance costs are not included in the AWW is when the employer continues to pay its share of the premium. C.R.S. §8-40-201(19)(b) does not require that the Claimant actually demonstrate that he purchased coverage. The Court of Appeals noted that in the event that the policy chosen by Claimant costs more or less than the calculated cost under COBRA, either party may seek a readjustment of the AWW. Moral of the Story: Health insurance replacement costs are included in AWW unless the employer continues to pay for insurance coverage.

COLORADO SUPREME COURT CLARIFIES THE FIREFIGHTER CANCER STATUTE

BACKGROUND

In 2007 the Colorado Legislature enacted a firefighter cancer presumption statute at Section 8-41-209, C.R.S.  The statute created a presumption that certain cancers were caused by work as a firefighter if the individual diagnosed with the cancer worked in the capacity for at least five years. firefighter For the cancer to be deemed a compensable occupational disease, the firefighter would have had to undergo physical examination upon becoming a firefighter that failed to reveal the cancer at that time. The presumption could be rebutted if the firefighter’s employer or insurer could show by a preponderance of medical evidence that the condition did not occur on the job.

This statute is similar to other presumption statutes that sprung up across the country in the wake of firefighters’ and other first responders’ actions during the 9/11 terrorist attacks.  The general premise behind the presumption is that firefighters are exposed to known carcinogens to a greater extent than other occupations and that development of cancer is a known effect caused by exposures to these carcinogens.

A series of cases had been litigated before different ALJs involving varying cancers and exposures wherein employers tried to overcome the presumption of compensability.  The ALJs, the ICAO and the Colorado Court of Appeals in a series of decisions essentially interpreted the presumption statute as being an irrebuttable presumption, requiring the employer to show an alternative cause for claimant’s cancer. The practical effect of this interpretation was to make the presumption statute similar to a strict liability statute. This is due to the fact that it is impossible to demonstrate that an individual’s cancer was in fact caused by something other than work as a firefighter.

THE ZUKOWSKI CASE

Mr. Zukowski began working as a firefighter for the town of Castle Rock in 2000. He underwent a physical examination at the time with his personal physician where there were some concerns raised over moles on his skin. Mr. Zukowski also worked part-time doing construction outdoors and eventually started his own business building decks and furniture. Mr. Zukowski spent a lot of time outdoors running, hiking and cycling when he was not working.

In 2002 Mr. Zukowski had five moles removed and biopsied. In 2008 he developed a mole on his right calf and ultimately in 2011 Mr. Zukowski was diagnosed with melanoma on his right outer calf at the same site where a mole that developed several years earlier. He had several surgeries to remove the mole and returned to full duty work, but made a claim for medical and temporary disability benefits under the presumption statute.  At hearing the parties stipulated that Mr. Zukowski was entitled to the presumption so the only issue is whether the employer overcame the presumption. The employer presented evidence regarding Mr. Zukowski’s known risk factors for developing melanoma including exposure to the sun and a history of abnormal mole growth. The ALJ found that Castle Rock’s burden in trying to overcome the presumption was to prove by medical evidence that claimant’s cancer came from a specific cause not occurring on the job.

On appeal to the ICAO, the ICAO essentially agreed with the ALJ. Castle Rock appealed the ICAO’s decision to the Colorado Court of Appeals, arguing that the ALJ misapplied the presumption when the ALJ determined that risk factor evidence was insufficient to rebut the presumption. The Court of Appeals agreed with the town of Castle Rock, looking at cases from other jurisdictions with a similar presumption statute and concluding that employer may overcome the presumption with specific risk evidence demonstrating that the particular cancer was probably caused by a source outside of work.

The Colorado Supreme Court granted certiorari in Zukowski along with a companion case involving a similar issue.  The Colorado Supreme Court agreed that Castle Rock was not required to establish an alternate cause for the cancer to overcome the presumption. The Colorado Supreme Court further held that in presenting risk factor evidence, which demonstrates the cancer was more probably caused by something other than work, can rebut the presumption.

AFTERMATH OF ZUKOWSKI

The aftermath of the Zukowski decision is not known yet.  I have tried cancer cases similar to Zukowski, where multiple potential employers were liable for the cancer and ultimately won for my client, but only because the last employer in claimant’s employment history was found liable.  I authored an amicus brief for the Colorado Self-Insured Association in Zukowski, so I have a pretty good idea of where these cancer cases are going.

Before Zukowski, firefighter cancer cases were very simple for claimant to prove. Claimant would appear with a doctor who would testify that the firefighter’s particular cancer fell within the types enumerated in the statute. The doctor would offer their opinion that since claimant worked for five years as a firefighter, claimant’s cancer was presumed caused by that work.  There was no amount of alternate risk evidence that would overcome the presumption as interpreted before Zukowski.

After Zukowski, litigating a firefighter cancer case will be much more involved when there are other risk factors to explain the cancer. Further, every risk factor relative to a particular cancer will have to be explored. For instance, the case I tried involved prostate cancer. Claimant had a significant family history of prostate cancer and was clearly predisposed to developing prostate cancer. Further, expert testimony was presented that prostate cancer is not something one would expect to see from exposure to carcinogens as a firefighter. Is predisposition to developing cancer a risk factor after Zukowski? It is certainly not as clear a risk factor as is exposure to sun and developing melanoma, where the cause-effect relationship is clear. Therefore, I believe these cases will become cancer and fact specific.

BOTTOM LINE

Further clarification through litigated cases is required to flesh out the presumption statute. For instance, in my prostate cancer case, claimant had his prostate removed and returned to work as a firefighter. If claimant develops another type of cancer is that an entirely separate claim? If claimant’s prostate cancer spread to a different organ after the prostate was removed, is that a new claim or continuation of the same claim? Is there a medical basis to prove that the cancer has recurred in a different organ or that it is an entirely new instance of cancer?  These questions arising out of the firefighter cancer presumption statute are all still unanswered.

 

legaLKonnection Firm Newsletter – April 2016

newsletter_LK-header-badge2016

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.

In the News

extranews_red-webRT2COLORADO BALLOT PROPOSED AMENDMENT #69 – POTENTIAL IMPACT ON WORKERS’ COMPENSATION MEDICAL BENEFITS

Section 1332 of the Affordable Care Act (“ACA” or colloquially known as “ObamaCare”) allows a State to obtain a waiver from the ACA, if the State sets up a system that provides the same level of coverage. Amendment 69 proposes creating a single-payer system for health care in Colorado known as ColoradoCare.

Initiative 20 got on the 2016 Ballot as Amendment 69. It was authored by Irene Aguilar, M.D. who is a Democratic member of the Colorado Senate and a primary care physician. A similar attempt to migrate a state to a single payer system was tried recently in Vermont. Vermont’s Bill went through the State House and Senate. It was signed by the Governor in May 2011. In December 2014, Vermont’s Governor retracted his backing of the single payer program due to a lack of clear funding and the negative effect of the taxes on businesses. Vermont’s single payer healthcare law, although passed and enacted, has essentially been abandoned. Similar to Amendment 69, Vermont’s Act 48 purported to integrate workers’ compensation medical benefits into a universal healthcare system.

ColoradoCare would be funded by a 6.67% payroll tax upon employers and a 3.33% tax on employee income. Other income sources would also be subject to the premium tax including rents, interest, dividends, capital gains, pensions and annuities.

To read more about the implications of Amendment #69, please click here for the full article.

 

2015 ANNUAL SURVEY OF COLORADO LAW

On a brief note, Of Counsel Joseph Gren and Associates Matt Boatwright and Jessica Melson contributed the Workers’ Compensation Law section of the 2015 Annual Survey of Colorado Law. The Annual Survey contains an analysis and summary of the published appellate court decisions over the previous year and an evaluation of the impact that each decision may have upon the fields of law that each involves. This year’s survey dealt with notable cases involving expansion of the scope of the going to and coming from rule in assessing the compensability of a claim, the use of the “regular business test” in determining whether an employer is a statutory employer under the Act, and public disclosure of remuneration given to Administrative Law Judges in Workers’ Compensation. The survey is generally used by attorneys to provide an overview of recent developments in Colorado law.


 

Victory Lap

Member Joshua Brown successfully argued at the Colorado Court of Appeals in favor of overturning an ALJ’s reopening of a full and final settlement agreement in Victor England v. AmeriGas Propane and Indemnity Insurance Company of North America. In 2012 the injured worker suffered an injury to his right shoulder after slipping on ice. After two shoulder surgeries but prior to placement at maximum medical improvement, the parties in 2013 entered into a Full and Final Settlement Agreement for $35,000. The agreement used was the mandated contract required by the Division of Workers’ Compensation. Several months after the entry into the settlement agreement, the injured worker’s physician discovered a previously unknown fracture in the scapula. As a result, the injured worker filed a Petition to Reopen his settlement arguing that (1) a mutual mistake of material fact existed at the time of settlement; and (2) contending that he would not have entered into the settlement agreement if he knew the fracture existed. The ALJ agreed with the injured worker’s arguments and reopened the claim awarding medical benefits, two years of back TTD benefits and ongoing TTD benefits. The Industrial Claim Appeals Office affirmed the ALJ’s decision. However, the Colorado Court of Appeals reversed the ALJ’s decision accepting Mr. Brown’s persuasive argument that the mandated settlement agreement must be enforced as written. Particularly, the Court of Appeals determined that in the agreement, injured workers specifically waive their rights to future benefits for both known and unknown injuries that may result from the work accident. Consequently, the Court of Appeals agreed with Mr. Brown that such a waiver precluded any injured worker from trying to reopen their settlement agreement based on unknown conditions existing at the time of settlement.

Member Joshua Brown and Associate James Payonk successfully defended against a claim for permanent total disability benefits in Janine Scafide v. SkyWest Airlines, Inc. and Indemnity Insurance Company of North America, W.C. No. 4-840-879-03. Claimant was seeking permanent total disability benefits, claiming she was unable to earn wages in any capacity following an injury she suffered to her hip in 2010 which resulted in her being unable to lift more than five pounds and incapable of performing activity of any kind for more than 20 minutes. Mr. Brown introduced video surveillance footage showing Claimant running errands for more than 2 hours, lifting a fifty-pound bag of ice melt, and shoveling snow. Mr. Brown also introduced testimony from Dr. Douglas Scott who opined that Claimant’s permanent work restrictions should be modified to allow for more activity, as well as testimony from vocational evaluator Katie Montoya that Claimant was capable of earning wages in a number of different positions. The ALJ found that Claimant and her vocational evaluator lacked credibility, and instead credited the testimony of Dr. Scott and Ms. Montoya in denying Claimant’s claim for permanent total disability benefit.

 

Member Tiffany Kinder and Associate Daniel Mowrey successfully withdrew Respondents’ admission of liability in Jeanne Severson v. Waste Management of Colorado, Inc. and Indemnity Ins. Co. of NA., W.C. No. 4-966-806. This was an admitted claim for a right hip injury which was initially referred to challenge a request for authorization of a total hip replacement. Through investigation it was determined that the entire claim was questionable. Ms. Kinder proceeded to hearing on the arguments that the surgery was not reasonable and necessary, and that Respondents should be allowed to withdraw the General Admission of Liability. Ms. Kinder introduced three employer witnesses who contradicted Claimant’s version of the mechanism of injury. Relying largely on the credibility of employer lay witnesses, Judge Nemechek agreed with Respondents and granted their request to withdraw the General Admission of Liability.

 

Of Counsel Joseph Gren and Associate Daniel Mowrey received a favorable order denying maintenance medical treatment in Jennifer Barnes v. Rural Metro Corporation and ACE America Insurance, W.C. No. 4-936-966. Claimant was seeking SI joint injections with sciatic nerve blocks for maintenance medical treatment for her admitted right knee injury. Mr. Gren introduced testimony from Dr. Paz who maintained that there had not been a diagnosis of a right lower extremity peripheral nerve injury, a lumbar radiculopathy, a sympathetic mediated pain condition or CRPS. Therefore, Claimant’s right lower extremity symptoms were not causally related to her December 13, 2013 industrial injury. Mr. Gren also introduced a medical report from the DIME physician, Dr. Ginsburg, who summarized that Claimant only injured her right knee and no additional ratings were warranted. The ALJ found reports and testimony of Drs. Ginsburg and Paz to be persuasive and more credible than Claimant’s testimony and issued an Order denying the request for medical maintenance benefits.

 


 

Sexual Orientation Discrimination: EEOC Initiates its Next Title VII Challenge

A new era of discrimination lawsuits is upon employers nationwide. Last month, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed its first lawsuits alleging sexual orientation discrimination under Title VII against employers in Pennsylvania and Maryland. The lawsuits are the latest step by the Commission to confirm its view that “sex” discrimination under Title VII encompasses discrimination based on sexual orientation. As with most discrimination cases filed by the EEOC, it seeks compensatory and punitive damages, as well as injunctive relief in both lawsuits.

Click here to continue reading the article.

 


Cases You Should Know

Paying for Cars, Trucks, Buses: In Morrison v. Rock Electric, Inc. and Pinnacol Assurance, W.C. No. 4-939-901 (March 9, 2016), the ICAO affirmed the ALJ’s denial of compensability of a claim for injuries suffered pursuant to an auto accident. Claimant, an electrician, deviated from his typical job route to pick up his apprentice, who was not required to be at the jobsite by the employer. Claimant was involved in an accident along the way. The ALJ found that Claimant’s transportation of his apprentice to and from work was not contemplated by the employment contract and did not confer a benefit to the employer, and that Claimant therefore was not in the course and scope of his employment at the time of the accident. Upon appeal, ICAO found that the ALJ’s findings were supported by substantial evidence. Moral of the story: If a claimant deviates from the course of their typical employment duties, for a reason that doesn’t give any benefit to the employer and wasn’t part of the employment contract, they are not in the course and scope of their employment if they get injured.

There is a Line for Every Shot: In Oldani v. Hartford Financial Services and Hartford Fire Insurance Company, W. C. No. 4-614-319 (March 9, 2016), the ICAO upheld an Order by the ALJ denying Claimant’s request for Botox injection and simultaneously denied an appeal by Respondents concerning the ALJ’s failure to address the issue of denial of all further medical care. After Claimant was placed at MMI, the parties reached a full and final settlement whereby Respondents agreed to continue to pay for all reasonable and necessary care related to her carpal tunnel syndrome. Subsequent medical opinion indicated that Claimant had developed a new condition unrelated to the original work injury and the ALJ found that Botox injections were being administered for this new condition and were therefore unrelated. Based upon this opinion, Respondents sought to deny further maintenance care but the ALJ did not address this issue because it was not endorsed as an issue for hearing. ICAO agreed, but indicated that Respondents could still contest further benefits on an individual basis or in their entirety with a new hearing proceeding. Moral of the story: Respondents can always contest the need for treatment for each and every medical condition a claimant asserts is related to the claim, and the claimant has to prove that the requested treatment is reasonable, necessary, and causally related.

Falling into a Deep Well of Penalties: ICAO upheld a fine imposed upon the employer in the amount of $841,200.00 for failure to maintain workers’ compensation insurance in Division of Workers’ Compensation v. Demi Hospitality, LLC, FEIN 84-1545878 (ICAO January 20, 2016). The fine was imposed pursuant to statute and court Rule for the employer’s second instance of not maintaining workers’ compensation insurance, for periods from August 10, 2006, through June 8, 2007, and September 12, 2010, through July 9, 2014. The court found that three factors must be considered when determining a fine to be imposed under the circumstances, which were: (1) the degree of reprehensibility of the misconduct; (2) the disparity between the harm or potential harm suffered and the fine to be assessed; and (3) the difference between the fine imposed and the penalties authorized or imposed in comparable cases. While upholding the fine, the court reasoned that the risk of an uninsured loss occurring increased with the amount of time the employer was without insurance, that the motel operated by the employer employed individuals in more than a sedentary capacity, that the employer could not solely rely on their insurance broker to maintain coverage and that the Rules and statutes properly define criteria for imposing a fine. Moral of the story: Employers are always responsible for ensuring they have workers’ compensation insurance coverage in place.

The Lawn Boys and the Vacuum Cleaner Solo Worker: In Aaron Hopkins v. Northwest Distribution, Inc. and Travelers Indemnity Company of Connecticut, W.C. 4-980-185-01 (ICAO February 22, 2016), Respondents argued that Claimant’s injuries were not compensable as Claimant was an independent contractor and the injuries resulted from horseplay. Claimant, employed as a door-to-door vacuum salesperson, was injured when he tripped and fell in front of the moving work van after grabbing the hat of another salesperson. The court found that Claimant was not an independent contractor because the employer, “paid the claimant individually, provided significant training, specified the time the claimant was to arrive at work and the number of days and hours to be worked, the type of clothing the claimant was to wear, the location at which he was to perform the job and specified the sales had to be made exclusively through home demonstrations and by following the nine point sales instructions developed by the employer.” The court also found that Claimant was not engaged in a substantial deviation from his employment at the time he was injured because horseplay, such as routine joking and pranks among sales team members which included throwing snowballs, pushing others into bushes, performing pull ups on trees and push-ups in the middle of the street were regular activities engaged in by salespeople and team leads would also engage in these activities. Moral of the story: Proving independent contractor status is difficult and allowing horseplay on-the-job means that injuries as a result thereof will be found compensable.

This Has All Been Wonderful but Now I’m on the Way to my PCP: In Junior Loy v. Dillion Companies and Self-Insured, W.C. 4-972-625-03 (ICAO February 19, 2016), the court addressed when a medical provider becomes an authorized treating physician (ATP). Following his injury Claimant was provided with a designated provider list, and upon contacting one of the providers thereon was informed that the doctor was not currently accepting new workers’ compensation patients. Claimant then attended an appointment with the other provider on the list, but was subsequently informed by that doctor that his claim had been denied and no further treatment could be rendered, but that he should follow up with his personal physician. The court found that this constituted a referral to Claimant’s personal physician, therefore making Claimant’s personal physician an ATP and making Respondent liable for all care provided by Claimant’s personal physician and any treatment obtained via the referral chain from Claimant’s personal physician. Moral of the story: The primary ATP is vested with great power when it comes to their referrals for medical care.

No Man, in No Men’s Land: In Youngquist Brothers v. Industrial Claim Appeals Office and Miner, (Colo. App. 2016), the Colorado Court of Appeals addressed when Colorado has jurisdiction to award benefits for an out-of-state work-related injury. The Respondent was a North Dakota employer with no contacts in the state of Colorado aside from the hiring of Colorado residents. The employer hired a Colorado resident who was injured in North Dakota within days of being hired. Section 8-41-204, C.R.S. sets fourth that Colorado has jurisdiction to award benefits for an out-of-state work-related injury if an employee was (1) hired or regularly employed in Colorado and (2) injured within six months of leaving Colorado. The Court noted that this provision does not require an employer hiring a Colorado employee to have any other contacts with Colorado. Moral of the story: If an Employer regularly hires Colorado residents, the out of state employer who may not have requested workers’ compensation insurance will be liable for injuries under the Colorado Act.

Maybe I’m Entitled to TTD After Termination Taboot, Taboot: In Archuletta v. Industrial Claim Appeals Office and Concrete Frame Associates, (March 3, 2016)(nsfop), the Colorado Court of Appeals upheld an ALJ’s finding that Claimant was entitled to TTD benefits as his wage loss was directly attributable to his industrial injury. Claimant was placed on modified duty work restrictions and continued to work following the injury. Claimant was placed at MMI and released back to full duty by his physician. Claimant was laid off due to the fact that his employer could not accommodate Claimant’s restrictions. Claimant was later removed from MMI by a DIME and awarded TTD benefits by an ALJ. Respondents relied on Section 8-42-105(3)(c) in that TTD benefits must cease as Claimant had been released to full duty work by his attending physician. was found not to apply in this claim as the statute applies to the termination of benefits and Claimant’s benefits had never started. The Court of Appeals, held that Section 8-42-105(3)(c) did not apply to Claimant’s claim because the statute could only terminate benefits that had already commenced and consequently could only be applied prospectively. Moral of the story: The statute terminating TTD benefits applies only if the benefits have begun.

COLORADO BALLOT PROPOSED AMENDMENT #69 – POTENTIAL IMPACT ON WORKERS’ COMPENSATION MEDICAL BENEFITS

Amendment 69 Colorado

Colorado State Health Care Initiative 20 (Amendment 69)

 
Background

Initiative 20 got on the 2016 Ballot as Amendment 69.  It was authored by Irene Aguilar, M.D. who is a Democratic member of the Colorado Senate and a primary care physician.  A similar attempt to migrate a state to a single payer system was tried recently in Vermont.  Vermont’s Bill went through the State House and Senate.  It was signed by the Governor in May 2011.  In December 2014, Vermont’s Governor retracted his backing of the single payer program due to a lack of clear funding and the negative effect of the taxes on businesses.  Vermont’s single payer healthcare law, although passed and enacted, has essentially been abandoned.  Similar to Amendment 69, Vermont’s Act 48 purported to integrate workers’ compensation medical benefits into a universal healthcare system.

 

Overview

 Section 1332 of the Affordable Care Act (ACA) allows a state to obtain a waiver from the ACA, if the state sets up a system that provides the same level of coverage.  Amendment 69 creates a single-payer system for health care in Colorado known as ColoradoCare.

 

Funding

ColoradoCare would be funded by a 6.67% payroll tax upon employers and a 3.33% tax on employee income.  Other income sources would also be subject to the premium tax including rents, interest, dividends, capital gains, pensions and annuities.  Certain income would not be subject to the premium tax.  Maintenance and unemployment are not subject to the tax.  In addition, the first $33,000 of Social Security or pension payments are not subject to the premium tax and the same is true for the first $60,000 for those filing jointly.  Those who are self-employed or whose income is from investments would be subject to a flat 10% of that income as a premium tax.  ColoradoCare would not be subject to TABOR (Colorado’s Taxpayer Bill of Rights) limits on new tax increases.  The premium tax would be deductible from income taxes.  The premium taxes are capped at $350,000 for individuals and $450,000 for those filing jointly.  Increased funding, if necessary, would come from members.  A “member” is someone who is 18 years old and has lived in Colorado for a continuous year.

 

Amendment 69 purports to raise 21 billion dollars by 2019.  For comparison, the 2016 total state budget is approximately 25 billion dollars.  The Amendment would nearly double State tax collection.  The projected savings to businesses and individual is supposed to come from the removed need for employer and individual contributions to private plans, reduced administrative costs from private plans and general fraud prevention.  Figures offered in support of Amendment 69 place current premium estimates for private health plans at a monthly contribution of $278 (employer) and $139 (employee) for an employee making $50,000 a year.  These figures go up to $556 and $278 monthly for an individual making $100,000 a year.  There are other ancillary purported savings from various sources based on no required co-pays or deductibles.

 

Governed

ColoradoCare would be operated by an interim board of 15 members appointed by the Governor and legislative leaders.  This board would then develop an election process to create a new Board of Trustees and to formulate rules to ensure the board’s operation.  It would also apply for the exemption from the ACA.

The interim Board would be replaced within three years with an elected 21-member Board of Trustees.  The trustees would be elected from seven state districts of comparable size.  The trustees would be charged with establishing purchasing authority for medications and medical equipment and with establishing an ombudsman’s office for beneficiaries and providers.

 

Coverage

ColoradoCare would provide a comprehensive benefit package.  It includes emergency and trauma services; primary and specialty care; hospitalization; prescription drugs; medical equipment, mental health and substance use services; chronic disease management; rehabilitative and habilitative services and devices; pediatric care, including oral, vision, and hearing services; laboratory services; maturity and newborn care; and palliative and end of life care.  There are no deductibles, or co-payments and any potential co-pay requirements would have to be approved by the Board of Trustees.  The “member” would choose a primary care provider.  A beneficiary traveling or living temporarily out of state is still covered.

ColoradoCare would serve as a supplement to Medicare.  For any other healthcare plan in effect ColoradoCare would be a secondary payer.

 

Delivery of Services

ColoradoCare will assume payment of health services.  The interim Board and the Board of Trustees are charged with implementing payment and billing systems, handling quality and value concerns and any cost saving mechanisms.

 

AMENDMENT 69 AND INTEGRATION OF WORKERS’ COMPENSATION MEDICAL COVERAGE

Amendment 69 integrates workers’ compensation medical coverage into ColoradoCare.  ColoradoCare offers this as an overall cost savings, citing statistical data affixing a 59% medical cost component for benefits paid under the workers’ compensation system.

 

General Considerations

Colorado Workers’ Compensation

Under Colorado workers’ compensation laws, an employer must obtain coverage for workers’ compensation insurance by becoming self-insured, obtaining coverage through a commercial insurer, or through the quasi-governmental entity, residual market insurer, Pinnacol Assurance.  Medical benefits are part of the benefit package provided under Colorado’s workers’ compensation system. Medical benefits are the most expensive component of the benefit package, accounting for over 50% of the total workers’ compensation costs to employers and carriers.  Workers’ compensation is an exclusive remedy to an injured worker.  The injured worker cannot pursue the case in District Court against an employer so long as the employer has complied with the Colorado Workers’ Compensation Act.

 

Medical Care in Workers’ Compensation vs. ColoradoCare

There is no coordination between the proposed Amendment 69 and the Colorado Workers’ Compensation Act.  ColoradoCare simply steps in as a payer for work injuries.  By the same token, there is no coordination between recovery for injuries from a third party.  ColoradoCare simply has recovery rights against third parties, presumably for amounts paid as a result of injury.  Therefore, workers’ compensation third party recovery rights remain intact for benefits not covered under ColoradoCare.

Medical benefits under workers’ compensation are different than those provided under ordinary health insurance.  Workers’ compensation is an event-based coverage, meaning that coverage is dependent on the event of a work injury and extends first so long as treatment continues to cure and relieve the effects of the injury to a point that treatment plateaus.  Medical coverage is then extended for modalities to maintain claimant’s level of function.  The goal of medical treatment under workers’ compensation is to get the worker back to work as quickly as possible and at an optimal level of function. The injured worker has no payment obligation for medical care.  Under the circumstances, the employer and carrier are the primary stakeholders in the workers’ compensation system.  Colorado allows the employer to maintain a degree of medical management of workers’ compensation claims that includes selecting the authorized treating physician in the first instance.  Barring a change of physician that same physician serves as a gatekeeper, making necessary referrals and medically managing the claim to a point of maximum medical improvement and, in certain circumstances, determining a medical impairment for claimant’s injury or condition.  Providers under the Colorado Worker’s Compensation Act generally follow medical treatment guidelines established for most injuries or conditions and are reimbursed under a medical fee schedule aligned with the services provided.

Health insurance is treatment based and extends for the length of the coverage without regard to the cause of the injury, or condition. Health insurance coverage is significantly less structured in approach to care and providers are reimbursed under different systems and rates. Further, there is less emphasis on treatment directed at an individual’s level of function.

Medical providers under the workers’ compensation system generally have accreditation as level I or level II.  This training emphasizes treatment for functional gain and returning the injured worker to work within safe parameters.  Many of these medical care providers are experts in occupational medicine and\or are board certified in physical medicine and rehabilitation.  These providers have a working familiarity with medical treatment guidelines that are designed to foster the goals of treatment directed at functional improvement and returning an injured worker back to work.  Further, only level II providers can provide a medical impairment rating for work injury or occupational disease.  Treatment by a non-level II primary care physician would require a referral to a level II physician to provide a medical impairment rating.  Given the circumstances, integrating medical care under ColoradoCare, with less emphasis on functional improvement and returning an injured worker back to work, will likely extend and increase the cost of this care.

The cost and duration of medical care is also directly tied to increased indemnity cost per claim.  Without emphasis on returning to work within restrictions potential entitlement to wage replacement benefits will increase. In addition, an injured worker’s eligibility for indemnity benefits is capped depending on the amount of medical impairment assigned for an injury or occupational disease.  To the extent an injured worker uses amounts under the applicable cap as wage replacement benefits, it may prevent the injured worker from receiving a full award of medical impairment benefits.  It is likely that incorporating medical care for work injuries or occupational diseases under ColoradoCare will have the indirect effect of creating increased exposure for indemnity benefits on these claims.  There is evidence of this from Vermont where private carriers were either unable, or unwilling, to offer an insurance product to cover indemnity benefits for Vermont’s workers’ compensation system without having medical benefits controlled under that system.

 

Safety Incentives in Workers’ Compensation vs. ColoradoCare

Workers’ compensation insurance premiums are a function of gross wages paid under specific job classifications and factored by an experience modifier.  Therefore, there is strong incentive for employers to maintain a safe workplace, reducing work injuries and occupational diseases.  This, in turn, reduces premiums by lowering the experience modifier.  Integration of workers’ compensation medical benefits into a universal health care system reduces or eliminates employer incentive to ensure a safe workplace as there is no financial ramification tied to a higher experience modifier.

 

Indemnity Obligations Under the Colorado Workers’ Compensation Act

Notwithstanding Amendment 69’s integration of medical benefits into ColoradoCare, other benefits under the Colorado Workers’ Compensation Act are still required to be covered by employers.  These benefits include wage replacement, medical impairment, disfigurement and dependent benefits. ColoradoCare does not integrate or eliminate these other benefits.  Therefore, passage of Amendment 69 would require a mixed model benefit package, with publicly funded medical benefits provided under a different regulatory structure combined with privately funded benefits through a different insurance product.  In an official report to the Vermont Legislature from Vermont’s Director of Healthcare Reform dated January 15, 2016, this type of mixed model is discussed.  Private carriers in Vermont determined that private indemnity coverage required a new insurance product to cover indemnity portions of workers’ compensation claims.  Private carriers operating in Vermont were not interested in offering this product due to the connection between the lost ability to manage the medical component of the work injury or occupational disease and the resulting indemnity obligations.  Removing medical management of the claim would likely increase the amount of indemnity owed on that same claim.

 

Legal Issues Regarding Integration of Workers’ Compensation Medical Benefits into ColoradoCare

 

HIPPA

In general, the HIPPA privacy rules do not apply to workers’ compensation insurers, administrative providers or employers.  These entities are allowed access to otherwise private records to coordinate medical care and to deal with work-related issues, like restrictions and return to work options.  In Colorado, there are close connections between medical care providers, employers and workers’ compensation carriers and/or self-insured employers.  The employer selects the authorized providers for work injuries in the first instance and forms are generated for return to work options.  In addition, there are specific provisions for a change in medical care provider and authorization to treat for a work injury or occupational disease.  Amendment 69 does not address these matters.  Presumably, the entities involved in workers’ compensation matters would remain immune from HIPPA privacy issues, particularly in light of medical treatment and return to work issues connected to wage replacement benefits and permanent total disability benefits.

 

Exclusive Remedy

Colorado has a very strong exclusivity provision that immunizes employers from a lawsuit filed by an employee for a work injury or occupational disease.  This is part of the trade-off under the workers’ compensation no-fault system.  Removal of medical benefits as part of the benefit package under the workers’ compensation system could, through other legislation or interpretation of the exclusivity provision, erode or eliminate workers’ compensation as an exclusive remedy.  Amendment 69 does not address exclusive remedy concerns.

 

ERISA

The Employee Retirement Income Security Act (ERISA) is a federal statute that regulates private-sector, employer-sponsored benefit plans, including health care coverage.  ERISA protections specifically supersede any and all state laws in so far as they may now or hereafter relate to any employee benefit plan.  29 U.S.C. 1144(a).  Workers’ compensation is an exception to this preemption clause, meaning that states have the right to regulate workers’ compensation.  Once medical benefits under workers’ compensation are integrated into a single payer system, medical benefits may no longer be offered for the purpose of complying with the workers’ compensation benefit package and may now be preempted by ERISA laws.  There is no clear precedent over this issue and Amendment 69 is silent on this issue.

 

Treatment and Medical Impairment Under the Colorado Workers’ Compensation Act

Section 8-42-101, C.R.S. of the Colorado Workers’ Compensation Act requires every employer to supply certain medical benefits, including certain conditions for supplying those benefits given the nature of employment and the condition.  Further, it identifies accreditation process as a requirement for a physician to provide primary care and to provide an evaluation for potential impairment of an injured worker.  ColoradoCare would be the payer for work injuries.  Amendment 69 is silent as to its overall effect on the Colorado Workers’ Compensation Act.  Therefore, integration of the medical benefit component in the workers’ compensation system into ColoradoCare would likely require large-scale revision of the Colorado Worker’s Compensation Act, including revision of statutes and rules regarding physicians and determination of medical impairment.

 

Multi-Jurisdictional Employers

Workers’ compensation laws differ from state to state.  Currently, different state requirements and interpretations of when an injury or occupational disease is work-related creates risk for liability for uninsured loss for employers doing business in multiple jurisdictions.  Integration of medical benefits into ColoradoCare compounds this problem.  By its terms, a “member” is someone at least 18 years old, who has lived in Colorado as a primary resident for one continuous year.  Colorado has one of the fastest-growing populations of any state in the country and many of those individuals are moving to Colorado for employment.  If one of these individuals, 18 years old or older, is hurt at work but not a “member” of Colorado Care, that individual would not be eligible for medical coverage for a work injury.  This would leave the employer obligated to fill the gap in coverage or be subject to penalties as an uninsured employer.

 

Existing Claims

There is no provision in Amendment 69 for how existing claims would be integrated into ColoradoCare.  ColoradoCare would simply assume responsibility for payment of medical benefits for injuries arising out of or within the course and scope of employment.  This is a substantive change in the law and would be given prospective application.  Therefore, integration of medical benefits into ColoradoCare creates a different payer, but is unclear as to what it does to the status of any existing medical care provider for any existing workers’ compensation claim.

 

Litigation

Passage of Amendment 69 and the integration of medical benefits into ColoradoCare will spawn significant litigation over the issues identified above.  This litigation would not be limited to hearings in the Office of Administrative Courts, but would involve District Court actions in both the state and federal systems over a myriad of potential situations.  This litigation will be a significant cost to employers in Colorado and will potentially disrupt “… the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers.”  Section 8-40-102, C.R.S.

 

ELECTION LANDSCAPE

The Initiative vs. Legislative Process

Initiative 20, (appearing on the 2016 Ballot as Amendment 69), is an example of Colorado’s flawed initiative process.  Initiative 20 needed only 86,492 signatures to get on the Ballot, but received 158,831 signatures.  This demonstrates the ease with which it got on the Ballot and a level of support for Amendment 69.

Amendment 69 is really in the form of a new statutory act.  Ordinarily, such legislative proposals take the form of a bill with a legislative sponsor, committee assignment, public comment and discussion and debate that allows for amendment, etc., before it is passed and potentially enacted by signature of the Governor.  Amendment 69 would never have appeared in ordinary legislative process as it appears on the Ballot.  Instead, as an initiative, Amendment 69 is non-legislation that alters the Colorado Constitution through a simple popular vote.

Outlook

The proponents of Amendment 69 spent a great deal of money getting it on the Ballot and may not have the resources to advocate further for its passage.  Virtually all business organizations oppose Amendment 69 for reasons identified above.  Further, former Democratic Governor Bill Ritter, and current Democratic Governor John Hickenlooper do not support Amendment 69.  Very limited polling data shows stronger than expected support for this Amendment.  In this unique election cycle, it is difficult to forecast whether or not this will pass since it is connected to the demographics of the people coming out to vote.

Sexual Orientation Discrimination: EEOC Initiates its Next Title VII Challenge

A new era of discrimination lawsuits is upon employers nationwide.  Last month, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed its first lawsuits alleging sexual orientation discrimination under Title VII against employers in Pennsylvania and Maryland.  The lawsuits are the latest step by the Commission to confirm its view that “sex” discrimination under Title VII encompasses discrimination based on sexual orientation. As with most discrimination cases filed by the EEOC, it seeks compensatory and punitive damages, as well as injunctive relief in both lawsuits.

Furthermore, with these lawsuits currently pending, the EEOC has also recently issued guidance on gender identity and sexual orientation discrimination.

What You Should Know About EEOC and the Enforcement Protections for LGBT Workers and

Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment

This guidance is all stemming from last year’s EEOC decision in Baldwin v. Department of Transportation where the Commission held for the first time that a claim of discrimination, on the basis of sexual orientation, necessarily involved sex-based considerations under Title VII because sexual orientation discrimination: (1) inevitably involves treating employees differently because of their sex; (2) is associational discrimination on the basis of sex; and (3) necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

As such, with the filing of the two recent lawsuits in Pennsylvania and Maryland, the EEOC is seeking to have two separate courts agree with its guidance on sex-based considerations. In the first challenge, the Commission alleges that a Pennsylvania-based health care company subjected a gay male employee to harassment because of his sexual orientation.  The lawsuit alleges that employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life.  The employee complained to the clinic director, but the director allegedly refused to take any action to stop the harassment.  The employee eventually quit.

In the second challenge, the EEOC alleges that a lesbian employee at a recycling company was harassed by her supervisor because of her sexual orientation.  The supervisor purportedly made comments about the employee’s sexual orientation and appearance on a weekly basis.  The employee purportedly complained to the general manager and called the company’s hotline about the harassment.  She was fired just a few days after she raised complaints.

Take Away: Plaintiff firms are taking notice and it is expected that sexual orientation based discrimination suits will increase over the next year or so, particularly pending the outcome of the recent lawsuits.  Consequently, employers should prepare for the EEOC to continue its focus on investigating sexual orientation and gender identity claims and should address these types of discrimination in training materials and handbooks.  In the end, employers should treat any such complaints of discrimination just as it would for other Title VII based discrimination complaint raised internally.

legaLKonnection Firm Newsletter – March 2016

newsletter_LK-header-badge2016

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.

In the News

Lee + Kinder, LLC is very proud to have three of its own recognized by Super Lawyers as outstanding in their field: Katherine M. Lee, 2012-2016 Super Lawyer, Joshua D. Brown, 2014-2016 Rising Star, and Joseph W. Gren, 2014-2016 Rising Star.

 

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The Rising Stars list is developed using the same patented multiphase selection process used for the Super Lawyers list; however, to be eligible for inclusion, a candidate must be either 40 years old or younger, or in practice for 10 years or less. Under this rigorous selection process, only the top 5% of lawyers in a state are named to the Super Lawyers list, and only the top 2.5% to the Rising Stars list.


Victory Lap

Of Counsel Sheila Toborg and associate Stephen Abbott successfully defended Respondents’ interests at a full-contest hearing in Brougham v. Spectrum Wireless Solutions and Liberty Mutual, W.C. 4-961-481-03 (February 29, 2016). Claimant suffered a seizure on the job and sustained injuries when he hit his head on the ground. ALJ Lamphere found that Claimant’s injury was idiopathic in nature and denied his claim for benefits.

 

 

Of Counsel Joseph Gren had a successful month with several big wins. Mr Gren, and associate Matt Boatwright, successfully defeated two compensability claims alleged by the same Claimant in Speed v. United Parcel Service and Liberty Mutual Insurance, W.C. Nos. 4-983-398 and 4-958-598. Claimant claimed a back injury as a result of a slip and fall at the employer’s facility. Claimant subsequently alleged a neck, arm, and brain injury as a result of a second slip and fall on ice in the company parking lot. Mr. Gren litigated both claims at the same hearing and introduced evidence, which ALJ Cannici found to be persuasive, that no work-related event had occurred in either claim.

Mr. Gren and associate Dan Mowrey, also received a Summary Order denying compensability for a carbon monoxide poisoning claim in Jennifer Barnes v. Rural Metro Corporation and ACE America Insurance, W.C. No. 4-983-123. Claimant claimed that she was exposed to carbon monoxide from the exhaust of her ambulance while in the course and scope of her employment. Mr. Gren introduced testimony from Claimant’s co-worker that discredited Claimant’s story. Mr. Gren also introduced expert medical testimony and a medical report proving that Claimant was not subjected to carbon monoxide poisoning. ALJ Jones found Dr. Bernton’s testimony and the medical report to be more credible than Claimant’s testimony and issued a Summary Order denying and dismissing the claim.


 


Legislative Update 2016

The 2016 legislative session is half over. The deadline for introduction of bills has come and gone; however, late bill introduction is very common. This is a brief summary of some of the introduced legislation of interest to clients:

Workers Compensation

Right now there are no pending bills regarding workers’ compensation. It is anticipated that there will be a bill introduced regarding first responders and compensability of posttraumatic stress disorder. A joint bill arising from discussions between Pinnacol Assurance, WCEA and CSIA is also a possibility, along with a bill from Pinnacol Assurance to allow it to establish a separate corporate entity that could write policies outside of Colorado.

Other Bills of Interest – Follow this link to read the entire article.

 


Cases You Should Know

Show Me the Money: In Brown v. Apollo Group, Inc. and Travelers Indemnity Company, (W.C. 4-905-547 (January 21, 2016 ICAO), ICAO held the ALJ erred when he prevented the Claimant from cross-examining Respondents’ medical expert on the amount of money earned for performing IMEs and testifying on behalf of Respondents. However, because the ALJ allowed Claimant to cross-examine the expert regarding the percentage of defense work he performed, ICAO held that there was no prejudicial error to justify a reversal of the ALJ’s Order. Moral of the story: Expert witness fees are fair game for cross-examination. Claimant attorneys often attack Respondents’ experts in an attempt to show prejudice and bias.

 

Good Writing is Clear Thinking Made Visible: In Garcia v. Swift Foods Company and Zurich American Insurance, Co. W.C. 4-679-322 (February 11, 2016 ICAO), the ALJ dismissed Respondents’ Motion for Summary Judgement (MSJ) because the language noted in a Stipulation was unclear. In this case, Claimant timely filed a Petition to Reopen. The parties subsequently filed a Stipulation indicating that Claimant’s Application for Hearing endorsing the issue of Petition to Reopen was withdrawn and all other issues were reserved. Several years later, Claimant refiled the Petition to Reopen based on an alleged worsening of condition. Respondents filed a MSJ arguing that Claimant withdrew the prior Petition to Reopen and the updated pleading was not timely filed within the six-year statute of limitations. ICAO denied the MSJ because there was a factual dispute regarding whether the Stipulation constituted a withdrawal of the issue of Petition to Reopen or preserved the right to file a Petition to Reopen based on a worsening of condition. Moral of the story: Stipulations are enforceable agreements, but can only be enforced to the extent of what they state. Be clear and be concise in written agreements with Claimants.

 

No Time for DIME Means No Time for MMI: In Mohammed v. Cargill Meat Solutions and American Insurance Group Plan, W.C. 4-951-860 (January 27, 2016 ICAO), ICAO reversed the ALJ’s order which granted additional medical benefits after MMI. Claimant was placed at MMI and ongoing medical treatment was denied. Instead of pursuing a DIME to challenge MMI, Claimant went to a new physician seeking additional medical treatment that he believed was necessary to reach MMI. The ALJ found that the additional treatment was causally related to the work injury and reasonably necessary to attain MMI. ICAO reversed this Order holding the ALJ lacked authority to resolve the issue of MMI without a DIME. Moral of the story: Parties are not permitted to indirectly attack determinations of MMI without first pursuing a DIME.

 

Parking Lots…Of Course It’s Compensable. In Rodriguez v. Pueblo County, W.C. No. 4-911-073 (ICAO January 21, 2016), Claimant clocked out to attend a union meeting. After the union meeting Claimant was walking through the employer’s parking lot to go home when she slipped and fell and was injured. The ALJ determined Claimant’s injury did not arise out of her employment duties as she was engaged in personal matters when she was injured. Claimant appealed. ICAO reversed the ALJ concluding that any alleged personal deviation ended when Claimant exited the building to return to her car in the employer’s parking lot. The Panel noted that Colorado appellate courts have held that injuries sustained while walking through the employer’s owned, maintained, or provided parking lots arise out of employment because the employer is required to furnish safe means to and from work. Thus, such injuries in parking lots are an incident of employment. Moral of story: Most injuries occurring in employer parking lots before or after work are compensable.

 

No Forwarding Address? No Problem. In Stoewer v. Douglas Colony Group, W.C. No. 4-937-085 (ICAO January 21, 2016), Respondents mailed the FAL to opposing counsel at his previous address. Claimant’s counsel untimely objected to the FAL. The ALJ determined the objection was untimely and the issue of PPD was closed pursuant to the FAL because Claimant received a copy of the FAL. Even though Respondents had notice of opposing counsel’s new address, he failed to update his address with the Division. ICAO reversed and held that due process is violated when the attorney of record, through no fault of his own, is denied notice of critical determinations in his client’s case. This applies to copies of admissions. Additionally, Respondents had notice of opposing counsel’s new address and there was no requirement that the new address be on record with the Division. Moral of the story: When in doubt, send pleadings to the attorney’s or claimant’s (if pro se) known address and address of record. This may be different from the address on file with DOWC, but if you have notice of the new address, use it.

 

And You Think Your Job Stinks…. In this bizarre and somewhat disturbing case, Claimant sought TTD benefits for a compensable claim. Respondents asserted the affirmative defense of termination for cause. The ALJ determined Respondents failed to prove Claimant had performed a volitional act leading to his termination. The ALJ listed a number of facts to support the Order. Of significance, Claimant’s direct supervisor testified that he often engaged in “pranks” with his employees which included: shooting golf balls at employees from a potato gun; building and detonating bombs in vehicles and irrigation ditches where employees were working; putting his feces in employees’ lunches; and defecating on employees’ heads as they worked in irrigation ditches. Claimant brought information regarding the direct supervisor’s conduct to managers. Claimant reported he was afraid for his and coworkers’ lives and that he had reported complaints regarding his direct supervisor to head supervisors for eight years but nothing was done. Claimant was ultimately terminated for “insubordination” for refusing to communicate with his direct supervisor. The ALJ determined Claimant did not precipitate the employment termination by a volitional act which he would reasonably expect to result in the loss of employment. Instead, it appeared that the alleged insubordination was pretext for firing him given that the actions of the direct supervisor were not grounds for termination. W.C. No. 4-976-398. Moral of Story: The court will consider the nature of the employer’s conduct using an objective standard when assessing whether a claimant’s termination resulted from a volitional act or some other reason. The reasons can be independent from the work injury if Claimant did not exercise control over the situation leading to the separation.

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