legaLKonnection Firm Newsletter – August 2015

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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

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BabyBrown

Lee + Kinder LLC would like to congratulate Member Joshua Brown and his wife Megan on the birth of their third son, Gavin Cinninger, on August 13th! Welcome to the world Gavin!

 

 

 

 


Victory Lap

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Member Joshua Brown and Associate James Payonk successfully defended in Wilson v. SHC Servicer, et al., against Claimant’s assertion that she was an employee and entitled to TTD benefits. While leaving a pre-employment drug screen, Claimant fell in the parking lot. The ALJ found that because Claimant was still in the application process when she fell, she was not an “employee” for purposes of benefits under the Workers’ Compensation Act. Claimant’s claim was denied and dismissed.

 

In a second win, Member Joshua Brown successfully defended against a compensability claim in Sally Kleinhenz v. Sky West Airlines, Inc., et al. The ALJ found there was no question that Claimant fell onto her knee on May 17, 2013, but that Claimant failed to meet her burden of proof in establishing that the fall caused the development of pain in her knee ten to eleven months later.  Mr. Brown extinguished the claim by demonstrating there was no persuasive evidence, including medical evidence, linking the fall to the development of Claimant’s symptoms.
 
 
Karen-NEWSMember Karen Gail Treece successfully defended against Claimant’s Petition for Writ of Certiorari to the Supreme Court in Pamela McTaggart-Kerns v. Industrial Claim Appeal Office of the State of Colorado, et al. Ms. Treece argued that the lower court did not err when it found that Respondents were not liable for emergency medical treatment following Claimant’s MVA, where Claimant failed to prove she sustained a compensable injury.  She argued that, in order for lost time to be compensable, it must be due to a work-related “injury” and not simply the “accident” itself, as those two terms are not synonymous.  Claimant’s lost time was not related to an industrial injury, and lost time alone does not compel a finding of compensability. The Supreme Court denied Claimant’s Petition for Writ of Certiorari.

 

 

McCracen-50p45HROf Counsel Fran McCracken defeated Claimant’s pursuit of workers’ compensation benefits in Monica Ledoux v. Wal-Mart Stores, Inc., et al. Claimant slipped and fell at work. The incident was captured on surveillance video and Claimant then reported and treated for an alleged right knee injury.  At hearing, Ms. McCracken established the presence of preexisting knee problems and elicited credible medical evidence that Claimant’s reported symptoms were not supported by objective findings.  Ultimately, the ALJ denied and dismissed the claim, concluding that Claimant did not establish a compensable work injury.

 

 

 

Abraham-97p45HROf Counsel John Abraham successfully defended against Claimant’s claim for specific maintenance medical benefits in David Rogacki, Sr., v. Accord Human Resources, Inc., et al. Claimant sought maintenance benefits of platelet-rich plasma injections (PRP) and a continued prescription for Horizant for his admitted shoulder injury. Mr. Abraham relied upon the Medical Treatment Guidelines and expert testimony to prove PRP injections were not reasonable or necessary. Additionally, with respect to the request for continued Horizant, Mr. Abraham elicited credible testimony from an expert that Claimant currently had no objective evidence of neuropathy and that it was therefore reasonable to taper Claimant from the Horizant over a period of 4-6 weeks.  The Court denied Claimant’s request for the PRP injections and ordered that Claimant should work with his physician to taper off Horizant within 4-6 weeks.


CupOJoe_ID

 

History of Workers’ Compensation Law:  Part 1, Ancient Beginnings

The modern day workers’ compensation system has a long, and often dark, history. The concept of an individual’s right to recover monetary compensation for sustaining an injury caused by another is one of the oldest legal concepts in recorded human history. One observer has pointed out that “the history of workers’ compensation begins shortly after the advent of written history itself.” Gregory Guyton, “A Brief History of Workers’ Compensation,” Iowa Orthop. J, 1999, 19: 106-110. Guyton argues that, regardless of how professionals involved in the system “lament the difficulty” of its administration, understanding the history of the workers’ compensation system lends valuable perspective to its critical importance in the work place. This three part series, Ancient Beginnings, Industrial Revolution, and Modern America, will deliver the basic historical framework underpinning the workers’ compensation profession. Click here to continue reading this article


Cases You Should Know 

Look out! It’s a metal table!: In Briggs v. Safeway, W.C. No. 4-950-808-01 (July 8, 2015), Claimant worked as a meat and fish clerk for Respondents, when she sustained a head injury after falling onto a work table. The ALJ found that Claimant had sustained a compensable injury when she fell on a metal table at work, even though it was later determined that she had suffered a non-work related seizure. The ALJ concluded that Claimant hit her head on the table and noted that the table was a large industrial metal table and its presence was not a universal condition. The presence of the metal table created a “special hazard” of employment. The special hazard rule allowed the claim to be compensable regardless of the cause of Claimant’s fall. Moral of the story: the preexisting condition (seizure condition) is not compensable itself; rather it is the injuries that result from the condition (the fall onto the table) that result in a compensable injury.It’s all relative; or, sure, we’ll pay for your unrelated medical treatment: Also in Briggs v. Safeway, the ALJ awarded Claimant medical benefits for all treatment she received at the emergency room for her immediate treatment after the fall because the head injury was found to be compensable. This was despite the fact that the seizure was determined by the physician to be a one-time and unprovoked episode that was not work-related. The ALJ noted that medical treatment provided as a strategy to perfect a diagnosis for symptoms that are partially related to work injuries has been deemed compensable despite the circumstance that the condition treated later turns out to be an injury distinct from the work injury. Moral of the story: treatment does not have to be 100% related to an injury in order for respondents to be liable for payment.A Full and Final Settlement is sometimes neither full nor final:  Although the parties settled a compensable shoulder claim on a full and final basis, Claimant petitioned and successfully reopened his settled claim by demonstrating that he had an injury that was unknown to either party at the time the settlement was approved. In England v. Amerigas Propane, W.C. No. 4-907-349-03 (June 25, 2015), the ALJ found that the claim should be reopened because Claimant had an undiagnosed scapula fracture due to hardware placement from shoulder surgery for the work-related claim.  Settlements may be reopened upon a showing of mutual mistake of material fact pursuant to C.R.S. §8-43-204(1).  The ALJ and panel noted that in this case, there was a mutual mistake because no party knew of the fracture at the time of settlement. and this was supported by substantial medical records at the time the parties entered settlement.  This Order is being appealed. Moral of the story: An unknown condition that requires further medical treatment may warrant reopening of a settled claim.

Penalties: big money, no whammies!: Endorsing the correct penalty is imperative. In Jeanette Jordan v. Rio Blanco Water Conservancy District, W.C. No. 4-937-000 (June 23, 2015) the Court upheld the ALJ’s finding that ordered Respondents to pay penalties pursuant to C.R.S. §8-43-203(2)(a) but denied penalties pursuant to C.R.S.§8-43-304(1).  The Panel ruled that the ALJ did not err because the Claimant had specifically endorsed penalties she was pursuing per §8-43-203(2)(a) on the Application for Hearing, but Claimant did not specifically note the other statue under which she was seeking penalties, C.R.S. §8-43-304(1).  Moral of the story: Always plead penalties with specificity.

Even an ALJ may not implicate MMI:  In Davis v. Little Pub Holdings, LLC and Pinnacol Assurance, W.C. No. 4-947-977 (June 17, 2015), the ALJ found the Claimant sustained a temporary aggravation of a chronic preexisting condition. Since the temporary aggravation ended, the ALJ ordered TTD and medical benefits terminated.  Claimant appealed, arguing that the ALJ erred in terminating benefits in the absence of a MMI finding by an ATP. ICAO agreed with the Claimant, reiterating that an ALJ lacks authority to determine MMI until there has been a medical determination of MMI by an ATP or an IME on the issue.  Moral of the Story: An ATP must determine MMI, not an ALJ.

Oh yeah, I remember taking that contracts course in law school…: In Godoy v. Custom Made Meals Corp., et al. W.C. No. 4-915-606 (July 9, 2015), the parties entered an agreement to hold the issue of PTD in abeyance. Respondents filed a FAL and 53 days later, Claimant filed an Objection to the FAL and Application for Hearing. The ALJ granted Respondents’ Motion for Summary Judgment, finding that Claimant’s failure to file an Application for Hearing within 30 days of the FAL closed all issues by operation of law.  On appeal, the ICAO remanded the case for an evidentiary hearing, holding that whether the parties’ agreement to hold PTD in abeyance operated to preserve the issue of PTD, and if so, for how long, was a factual question for an ALJ.   Moral of the Story: Be specific when entering into agreements with claimants; include deadlines and language to protect the parties.

Just because it’s a bad idea doesn’t mean it’s not ripe: In McMeekin v. ICAO, et al. (Colo. App. 2015) (nsfop), the ALJ determined that Respondents’ endorsement of “authorized treating provider” for hearing was unripe, and assessed attorneys’ fees against Respondents. ICAO reversed the attorneys’ fee award, finding the issue was ripe when Respondents endorsed it.  The Colorado Court of Appeals agreed with ICAO, noting Respondents’ endorsement of maintenance medical benefits for hearing was linked to the ATP issue. The Court reasoned that the ATP issue can include not only whether a specific provider falls within the referral chain but also whether the scope of the referral covers a particular treatment. Moral of the story: “Ripeness” tests whether an issue is real, immediate, and fit for adjudication. Even if an issue lacks merit, it does not necessarily lack ripeness.

History of Workers’ Compensation Law: Part 1, Ancient Beginnings

CupOJoe_ID

The modern day workers’ compensation system has a long, and often dark, history. The concept of an individual’s right to recover monetary compensation for sustaining an injury caused by another is one of the oldest legal concepts in recorded human history. One observer has pointed out that “the history of workers’ compensation begins shortly after the advent of written history itself.” Gregory Guyton, “A Brief History of Workers’ Compensation,” Iowa Orthop. J, 1999, 19: 106-110. Guyton argues that, regardless of how professionals involved in the system “lament the difficulty” of its administration, understanding the history of the workers’ compensation system lends valuable perspective to its critical importance in the work place. This three part series, Ancient Beginnings, Industrial Revolution, and Modern America, will deliver the basic historical framework underpinning the workers’ compensation profession.

The first historical recording of law requiring payment of monetary compensation for bodily injury dates back to the Code of Ur-Nammu, which is the oldest surviving set of written laws. The Code of Ur-Nammu, which is written on stone tablets and currently on exhibit inHammurabi_Code Istanbul, originated in Mesopotamia sometime between 2100-2050 B.C, while under the reign of King Namma of Ur. The overarching goal of the code was to establish “equity in the land.” In doing so, King Ur dictated laws such as “if a man knocks out the eye of another man, he shall weigh out ½ of mina in silver” or 30 silver shekels. The code itself implies that the payment of compensatory awards applied to all aspects of daily life. The code also reflects the ubiquitous use of labor slaves, as it only provided for and only awarded monetary compensation awards to the slave owner, rather than the laborer, if the slave in the case sustained the injury.

The Code of Hammurabi, famously known for the harsh eye-for-an-eye decree, adopted the compensation-for-disability concept when instituted sometime between 1795-1750 B.C. Neither the codes of Kings Ur or Hammurabi appear to give an employer special exempt privileges. According to the Code of Hammurabi, if a man committed an unintentional assault or bodily harm against another free man, he need only be charged the value of doctor’s fees as a penalty. Rev. Claude Johns, “Babylonian Law”, 11th Ed. of Encyclopedia Britannic, (1910-1911). There were harsh penalties for careless and neglectful behavior on the part of those providing public services. For example, if an unskilled surgeon caused loss of life or limb, the surgeon’s hands were cut off. Scholars point out that the code also contained instances when compensation could be awarded based upon a schedule if the underlining injury was a result of neglect conduct. One can use their own imagination to lament on how this code was applied to individuals who engaged in careless actions that caused harm to their employees. The monetary compensation and respective legal codes only applied to free citizens. One explanation for the lack of specific work-place laws certainly is that the workers’ in the high intensity jobs, such as construction, were not entitled to legal protections due to their social position as property slaves.

Contemporary observers are part to turn of the century Greek, Roman, Arabic, and Chinese legal codes as the next step in the evolution of workers’ compensation law. Gregory Guyton notes that the ancient legal systems provided for compensation schedules for the loss of a specific body part based upon the schedule on compensation for the injury itself. The compensation given to an individual for loss of a body part was only based upon the scheduled award. The value of an impairment disability did not exist in antiquity. See Geerts, Achille, et. al., Compensation for Bodily Harm: A Comparative Study, (1977). For example, in Ancient Rome, the civil liability for causing physical impairment to another citizen was contained in the civil law delict codes. Whether one was held liable for damages, based upon the schedule, depended on the degree of fault of the offending party. The Roman delict provided the early foundations for negligence based personal injury compensation systems. By all accounts, these legal systems did not include remuneration for physical impairments (disability affecting an individual’s ability to perform a task or job), but only provided compensation for an actual injury.

Payment for an actual impairment, equivalent to modern impairment benefits, subtly arose in the pre-Renaissance feudal system. The payment of quasi-impairment compensation occurred when landlords would provide impaired feudal serfs compensation for disabling physical conditions. See Gayton, Supra. One not need think too hard on whether a serf was providing services to a lord at the time of the injury. The arbitrary award to a loyal serf stemmed from the feudal lords’ culturally imposed sense of honor and benevolent obligation to care for his servants. There is no definitive evidence to suggest that the royal elites in the time of Kings Ur or Hammurabi engaged in similar practices.

The Middle Ages and pre-industrial Renaissance Europe gave way to the birth of the English common law system. The slow reduction of enslaved and indentured laborers correlated to an increased number of persons (protected under the laws) entering into more labor-intensive jobs. The law needed to respond in turn. Guyton notes that early English Common law established three principles known as the “unholy trinity of defenses” to determine whether work place injury was compensable. First, the contributory negligent principle held that if a worker was in “anyway” responsible for an injury, the employer was not liable. Second, the “fellow servant” rule exempted an employer from liability when the workers’ injury arose out of the negligent conduct of a co-worker. Third, the “assumption of risk” rule permitted employers to enter into contracts with workers whereby the worker would waive the right to sue the employer for damages. Since employers would often enter into these agreements with workers when a job required exceptionally dangerous work, the waiver agreements became known as “death contracts.”

Hundreds of years later, the modern American workers’ compensation system eviscerated the three early English compensability laws. The lessons gleaned from antiquity reflect the slow growth of the compensation for injury system, which was born out of necessity to address growing disputes amongst those protected under the respective legal system. The next edition of Cup O’ Joe will discuss Part II, how the industrial revolution shaped the modern workers’ compensation system.

legaLKonnection Firm Newsletter – July 2015

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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

On July 14th, Lee + Kinder, LLC celebrated its 7th anniversary, providing comprehensive and legal services to employers and insurers throughout Colorado. Since inception, our approach to the practice of law has been to provide aggressive representation and protection of clients’ interests with the goal of bringing all cases to resolution in the most cost-effective and expeditious manner possible.  We believe that this philosophy allows our Firm to stand – and grow – on its three founding principles of Integrity, Knowledge and Service.

We gratefully acknowledge that we would not be where we are now, 7 years later, without the support of our clients.  We send out a very heartfelt thank you for your trust in our legal integrity.  Our promise to you is to continue providing you with legal representation beyond your expectations.  Thank you for your business.


Victory Lap

FranNewsOf Counsel M. Frances McCracken successfully overcame the DIME and had medical care beyond MMI denied in Fischer v. Family Dollar Stores of Colorado and ACE American Insurance.  Claimant suffered an admitted injury to her shoulder and underwent surgery. A DIME physician opined that, in addition to impairment due to a distal clavicle resection procedure, Claimant had impairment for both loss of range of motion and motor weakness of the upper extremity under Tables 14 and 11 of the AMA Guidelines, 3rd ed., rev.  Ms. McCracken successfully argued the DIME physician misapplied the Guidelines, as Claimant’s request for additional medical care was denied.

 
ST_newsOf Counsel Sheila Toborg successfully defeated Claimant’s pursuit of maintenance medical treatment in Carol P. Davis v. United Parcel Service. Claimant sought reimbursement for post-MMI physical therapy treatments. Ms. Toborg utilized expert medical opinions to persuasively argue Claimant’s left knee symptoms of pain and instability were related to the polyethylene component of Claimant’s prosthetic knee and therefore, physical therapy would be of no benefit for that condition.  The ALJ credited the testimony of Respondents’ expert, Dr. Lesnak, as well as the Peer Review opinion from Dr. Obermiller. ALJ Cain denied Claimant’s claim for payment of incurred physical therapy expenses.

 
Joe_115X150Of Counsel Joseph Gren successfully defended against Claimant’s request for a referral to a dietitian/nutritionist to manage weight gain, which she claimed was due to her work-related injury in Waneka v. United Parcel Service and Liberty Mutual Insurance.  Claimant gained 65 pounds since her work injury, and the authorized treating physician referred her to a weight management specialist.  The ALJ credited Respondents’ expert, and Mr. Gren’s argument, that weight gain would not be an expected consequence of a toe bone fracture.

 

Jess_115x125Associate Jessica Melson successfully defended against Claimant’s appeal of an Order Granting Respondents’ Motion for Summary Judgment in Smith v. Wyndham Worldwide Corp. and Liberty Mutual Group. The ALJ agreed with Ms. Melson’s argument that Claimant’s “new” claim was an attempt to relitigate Claimant’s prior claim, which had already been litigated, denied and dismissed. The ALJ granted Respondents’ Motion for Summary Judgment. ICAO upheld the ALJ’s Order Granting the Motion for Summary Judgment, finding Claimant did not present any new facts or issues that were not previously litigated.


 

THIRD-PARTY RECOVERY (2 – 4 – 6 – 8 Let’s Go Subrogate!)
As you are probably aware, the Colorado Workers’ Compensation Act has a statute giving a subrogation right to the payer of workers’ compensation benefits. This statute is § 8-41-203, C.R.S. Although referred to as a subrogation lien, it is actually a right of recovery that operates as an assignment. Once benefits are paid under the Act, that payment also assigns a right of recovery to the payer against a third party that may be responsible for the injury that generated a claim for which benefits are paid.

Click here to read more in-depth on this topic.

 


Cases You Should Know 

“But For” Your Work, You Wouldn’t Have Been Hurt
In Savage v. ICAO, et al. (Colo. App. 2015)(nsfop), the Court of Appeals affirmed the hearing ALJ’s decision that Claimant suffered a compensable industrial exposure to carbon monoxide poisoning.  Claimant, a trucker, was found in his truck cab with an acute illness later determined to be from high levels of exposure to carbon monoxide.  Tests run on the truck, however, did not show evidence of any exhaust leaks which would have caused the exposure.  The ALJ, nevertheless, found that Claimant suffered a compensable poisoning from carbon monoxide under the “but for” test in City of Brighton v. Rodriguez. ICAO held that this test did not apply in this case, as the evidence ruled out exposure from the truck.  The Court of Appeals agreed with the ALJ, holding that Claimant could not likely have otherwise contracted the illness but for exposure from the truck, and that the evidence did not definitively rule out malfunctions in the truck. Moral of the Story: Colorado Courts are trending towards finding any injury that occurs while in the workplace compensable – even if the actual cause of injury is not, or cannot be, fully established.

 

The Statute of Limitations can be a Killer
The Court of Appeals upheld an Order denying and dismissing widow’s claim for survivor benefits due to late filing of a claim in Ragan v. ICAO, et al. (Colo. App. 2015)(nsfop).  Decedent suffered (and survived) a heart attack in 1982 and was given lifetime medical benefits for the condition pursuant to a settlement agreement in 1990. In 2003, the insurance company became insolvent and the claim was transferred to the Colorado Insurance Guaranty Association (CIGA). The Order of Liquidation imposed a one-year deadline to file any claims under the Guaranty Act.  The decedent died of a heart attack in March 2013, and the widow filed a claim for survivor benefits. The widow argued that her claim should still be considered timely, despite being filed 9 years after the deadline, for reasons of statutory construction and due process.  The Court found the Order of Liquidation applied to the claim, although the death did not actually happen until after the Order of Liquidation expired, and denied the widow’s claim for benefit. Moral of the Story: This is a unique case as it only applies to claims administered by CIGA.

 

Where There’s Smoke, There’s Fire…
In Teller County v. ICAO, et al. (Colo. App. 2015)(nsfop), Claimant, a volunteer for Teller County Search and Rescue, was involved in a motor vehicle accident on his way to a fire chiefs meeting.  Claimant asserted that as a volunteer he fell within the scope of the definition of employee set forth in C.R.S § 8-40-202(1)(a)(I)(A), which defines “employee” to include volunteer rescue teams or groups, … while said persons are actually performing duties as volunteer rescue teams and while engaged in organized drills, practice, or training necessary or proper for the performance of such duties. Respondents argued Claimant’s attendance at the meeting was volitional and not mandatory.  The ICAO found that Claimant had a custom and a practice under which Claimant regularly attended the fire chiefs meetings and Claimant notified Teller County that he was attending the conference prior to leaving by “marking in service.”  The Court of Appeals agreed with the ALJ and ICAO that Claimant was acting within the course and scope of his employment at the time of the motor vehicle accident. Moral of the Story: “Volunteers” may be “employees” acting within the course and scope of their employment.

 

Re/Max – Above the Crowd, and Above the Statutory Employer Requirement
The ICAO set aside an ALJ’s decision that held a real estate brokerage firm liable for workers’ compensation benefits as a statutory employer in Hopper v. Re/Max Properties, Inc. and Farmington Casualty Company, W.C. No. 4-932-057 (May 26, 2015).  Claimant was employed by a licensed real estate agent, who performed regular work for Re/Max.  The agent did not have workers’ compensation insurance. The ALJ found that Re/Max was Claimant’s statutory employer and therefore liable for benefits.  Upon appeal, ICAO set aside the ALJ’s holding and found Re/Max was exempt as a statutory employer, as § 8-41-401(5), C.R.S., states that the provisions of the Workers’ Compensation Act shall not apply to licensed real estate brokers. Moral of the Story: The Act treats real estate brokers differently than usual “employers.”

 

The Jurisdictional Bar is Set High
In Liggins v. McDonald Waterproofing, Inc., and Pinnacol Assurance, W.C. No. 4-924-286 (June 5, 2015), the ICAO affirmed an Order granting Respondents’ Motion for Summary Judgment, dismissing Claimant’s claim for Permanent Total Disability (PTD) benefits.  Section 8-43-203(2)(b)(II)(A), C.R.S., gives a claimant 30 days from the filing of an FAL in which to file an Application for Hearing on any disputed issues. Claimant filed an Application for Hearing on the issue of PTD benefits prior to Respondents’ filing of an FAL.  However, after the FAL was filed, Claimant failed to file a new Application for Hearing on the PTD issue within the requisite 30 days. The ALJ granted Respondents’ Motion for Summary Judgment striking the issue of PTD, and ICAO upheld the decision. Moral of the Story: It is critical to timely comply with deadlines set forth in the Act and Rules.

 

A Portion of a Previously Settled Claim Can Still be Apportioned
In Pederson v. Jonathan P. Bayne, DDS, et al. W.C. No. 4-894-819-02 (May 19, 2015), the ICAO affirmed an Order permitting a PPD benefits award based upon an apportionment applied by the DIME physician.  Claimant had a prior neck injury from 2009, which was settled before the rating was finalized. Claimant then suffered a new neck injury in 2012. The DIME physician in her 2012 claim provided a 9% whole person impairment rating after apportioning out the 2009 injury. Claimant challenged the DIME and argued since she failed to receive a rating for her prior claim, the DIME should not be allowed to apportion out her prior claim. Section 8-42-104(5)(a) provides for apportionment when the previous impairment rating is established either through an award or a settlement.  Here, the DIME concluded that Claimant’s prior medical impairment rating was work related and therefore calculated apportionment.  The ALJ agreed and ICAO upheld the decision. Moral of the Story: Look for documentation of pre-existing injuries and treatment to send to the treating doctors; apportionment is applicable when a previous impairment rating is established, even when the prior claim is settled.

 

The End of Discovery Road for Repeat Offenders
In Powderly v. City of Golden., et al. W.C. No. 4-936-681 (May 28, 2015), the ICAO affirmed an Order that dismissed Claimant’s claim for workers’ compensation benefits for repeated discovery violations. Claimant was ordered on three different occasions to comply with discovery requests.  After Claimant failed to comply with the third Order, the ALJ dismissed his claim pursuant to W.C.R.P. 9-1 and C.R.S. § 8-43-207(1)(e).  Rule 9-1(E) provides that if any party fails to comply with the provisions of this Rule, an ALJ may impose sanctions upon such party pursuant to Statute and Rule.  Further, § 8-43-207(1)(e) permits an ALJ to impose the sanctions provided in the Rules of Civil Procedure for the willful failure to comply with permitted discovery.  The ALJ found that Claimant had multiple opportunities to comply with the discovery Orders and that his failure to comply was willful.  The ALJ dismissed the claim and ICAO upheld the decision. Moral of the Story: Respondents can utilize discovery techniques and traps as powerful tools to minimize litigation and potentially secure dismissals of claims.

THIRD-PARTY RECOVERY (2 – 4 – 6 – 8 Let’s Go Subrogate!)

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As you are probably aware, the Colorado Workers’ Compensation Act has a statute giving a subrogation right to the payer of workers’ compensation benefits. This statute is § 8-41-203, C.R.S. Although referred to as a subrogation lien, it is actually a right of recovery that operates as an assignment. Once benefits are paid under the Act, that payment also assigns a right of recovery to the payer against a third party that may be responsible for the injury that generated a claim for which benefits are paid.

The right of recovery is independent of the injured worker’s right against the third party, meaning that the payer can bring its own cause of action, but the action is still derivative of the underlying workers’ compensation claim. This situation creates tension between the payer and injured worker relative to potential liability of a third party.

This short article gives an overview of what can be recovered along with some data over recoveries. Future articles will flesh-out workers’ compensation recovery problems.

What Can Be Recovered?dollar

The statute outlines what can be recovered. It states that the right to recovery exists to “all compensation and all medical, hospital, dental, funeral, and other benefits and expenses to which the employee or, if the employee is deceased, the employee’s dependents are entitled … for which the employee’s employer or insurance carrier is liable or has assumed liability.” The payer gets a right to recover future benefits paid and the right of recovery “…extends to money collected from the third party causing the injury for all: economic damages, physical impairment and disfigurement damages.” There are certain specific limitations to these recovery categories, but the statute makes a special exemption from recovery for amounts collected for “…noneconomic damages awarded for pain and suffering, inconvenience, emotional stress, or impairment of quality of life.” These amorphous damage categories cannot be subject to recovery by the payer in a workers’ compensation case.

As you can imagine, the struggle in subrogation in workers’ compensation is determining a fair distribution of any third party settlement or judgment between the injured worker and the payer of benefits since there is rarely, if ever, enough in settlement or judgment to fully compensate the injured worker and the payer. One mechanism to determine some of the allocation issues is known as a Jorgensen hearing, named after the case where this method of allocation was set forth. These hearings will be covered in greater detail in newsletters to come.

How Much Recovery Can Be Expected?

Colorado is not a very favorable state for third-party recovery of workers’ compensation benefits. Other states allow the payer to get paid first from any third party recovery, before an injured worker gets paid. Colorado does not allow this, but there are other reasons for low third party recovery. For instance, it is rare that an injury results entirely from the fault of a third-party. There is usually some degree of fault that can be assigned to the injured worker and to other potential non-parties that reduce the overall recovery, and sometimes even to the employer. If a carrier is pursuing a third party claim either with or without the injured worker, the worker’s and employer’s actions can reduce recovery. Further, to the extent that benefits were potentially overpaid, those amounts may not be successfully claimed as damages against a third party. A payer’s failure to mitigate its loss in the workers’ compensation claim by overpaying can also reduce recovery. Finally, and most importantly, judges and/or juries are not receptive to a payer (usually an insurance company) that paid benefits under a limited benefit package, trying to seek those amounts back from a third party.

A survey of the Jury Verdict Reporter from 2002 through present day shows that when a payer went as far as a jury verdict to try and recover against a third party, the amount claimed in recovery vs. the amount actually recovered was only 21%. Please note this is a limited sampling of recovery cases. In these cases defendants obviously felt strongly enough about their position to take the case to trial. Further, the Jury Verdict Reporter is not comprehensive of all cases taken to trial and the facts of each case are different. Taking all of these issues into account, this still demonstrates a less than favorable environment for recovery. If you would like a breakdown of this data, case by case, please email fcavanaugh@leekinder.com and I will forward it to you.

Bottom Line

Workers’ compensation is complicated and recovery of benefits paid only compounds the complication. It requires someone who understands workers’ compensation and liability matters. We have handled all aspects of recovery cases, including defending against them. Watch for future recovery topics in future newsletters. In the meantime, if you have any questions about this topic, please do not hesitate to call or email us.

legaLKonnection Firm Newsletter – June 2015

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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
CSIAOn June 5th, the Colorado Self Insurers Association (CSIA) held their summer luncheon before taking a couple of months’ hiatus necessary to begin preparing for the 2016 legislative session.  The summer luncheon, sponsored in part by Lee + Kinder, LLC, was held at the City Park Pavilion in Denver and was attended by Karen Gail Treece and Frank Cavanaugh. The Colorado Self Insurers Association (CSIA) is an association of entities approved by the State of Colorado to insure internally for workers’ compensation benefits.  This organization seeks to provide education opportunities for members regarding workers’ compensation issues, promote positive legislative action to ensure that their employees receive full benefits in a cost effective manner under the Colorado Workers’ Compensation Act, and to promote timely return to work programs to allow injured employees a chance to get back to their ordinary productive lives.  Lee + Kinder, LLC has been an active professional member of this organization for a number of years.  Frank Cavanaugh has served on this organization’s legislative committee for 5 years and has helped set the agenda for educational programs sponsored by the CSIA on a monthly basis.  Lee + Kinder, LLC will continue to partner with and support this organization so as to stay abreast of legislative activities, legal changes and any other matters related to the Colorado Workers’ Compensation Act.


Victory Lap

Karen Gail TreeceMember Karen Gail Treece submitted a persuasive Brief in Support of the Petition to Review successfully convincing ALJ Jones to reverse her previous decision and submit a Supplemental Order in favor of Respondents in Jacquese Satchell v. Coach America and American Home Assurance. After the hearing, ALJ Jones found that Claimant failed to overcome the DIME and determined that the back injury was not related to the compensable knee injury. However, ALJ Jones also found that Claimant proved she was not at maximum medical improvement (MMI) and required an S1 selective nerve root block to treat the ongoing knee pain. Ms. Treece filed a Petition to Review and Brief in Support, which argued that the S1 selective nerve root block was treatment for the unrelated back condition and not the knee injury. After reviewing the Briefs, ALJ Jones issued a Supplemental Order agreeing with Ms. Treece and finding that Claimant was at MMI.

Sheila ToborgOf Counsel Sheila Toborg successfully defeated Claimant’s pursuit of additional medical benefits in Cassandra Wessels v. The Home Depot before ALJ Felter. Claimant was seeking biofeedback sessions and a suprascapular nerve block, as recommended by her authorized treating physician, to treat the admitted left arm injury. At hearing, Ms. Toborg highlighted the fact that Claimant had not undergone psychological evaluation and the additional medical benefits were not reasonable until such an evaluation is completed. Dr. Allison Fall provided more persuasive testimony than Claimant’s expert witness. ALJ Felter denied Claimant’s request for the additional medical benefits.
 

Fran McCrackenOf Counsel M. Frances McCracken successfully argued that Claimant’s request for radiofrequency nerve ablation was not reasonable, necessary, or causally related to the industrial injury in David Turner v. Sam’s Club. Ms. McCracken highlighted the portion of the Medical Treatment Guidelines that indicated that patients who do not experience at least 80% relief with branch and facet blocks should not proceed with a more permanent nerve procedure such as radiofrequency ablation. She stressed that Claimant received only 50% relief from the medial branch blocks, which was a non-diagnostic response. ALJ Cannici credited the medical reports and post-hearing deposition testimony of Dr. Benton who concluded that the requested procedure would be highly unlikely to provide any significant relief. ALJ Cannici denied Claimant’s request for prior authorization of radiofrequency nerve ablation.

Joseph GrenOf Counsel Joseph Gren successfully defended two claims this month. In John White, vs. Evraz Inc., N/A, Self-Insured by Sedgwick CMS, he defended a request for authorization for lumbar fusion surgery. This claim previously was heard on the issue of compensability of Claimant’s low back injury occurring on November 30, 2012. During that hearing, Claimant denied seeing a doctor after his full duty release for a prior work-related back injury. Claimant also denied any problems with his back between January 2002 and November 2012. Claimant reported to his medical providers his back pain was completely resolved within two years after a prior surgery in 2001. Following the first hearing, Dr. Davis recommended Claimant for lumbar surgery which was the issue for this hearing. In the course of discovery for this hearing, Mr. Gren discovered medical records indicating that Claimant was treated for low back pain in Las Vegas in 2008, 2009 and 2010. Respondents’ medical expert testified, based on medical records from Las Vegas and Claimant’s questionable symptomatology during examination in an IME, that Claimant did not suffer an acute injury on November 30, 2012 and that the request for surgery was not reasonably related to this claim. In light of the recently obtained medical evidence, Dr. Davis no longer recommended surgery. Therefore, the ALJ found Claimant failed to prove his need for lumbar surgery was causally related to the November 30, 2012 work injury.

In the next case, Niziolek v. United Parcel Service and Liberty Mutual Insurance, Mr. Gren successfully challenged the DIME physician’s opinion as to permanent impairment.  In the DIME, Dr. Hattem originally assigned a 16% impairment rating for the lumbar spine.  However, Mr. Gren successfully convinced Dr. Hattem, in a post-DIME deposition, that Claimant did not qualify for an impairment rating to the lumbar spine.  The matter proceeded to hearing and the ALJ found that Claimant was not entitled to a lumbar spine impairment.  As a side issue, Claimant contended at hearing that Dr. Hattem was precluded from eliminating a lumbar spine impairment given that compensability to the low back had previously been determined by a previous ALJ.  Mr. Gren successfully convinced the recent ALJ to conclude that a finding of compensability does not automatically lead to assignment of permanent impairment.


Joshua D Brown Down_With_Brown

 
 
The Colorado Supreme Court, one-week ago, issued a highly anticipated decision implicating employment law related decisions as they pertain to employees using lawful medical marijuana for activities outside the course and scope of employment. In the decision of Coats v. Dish Network, the Colorado Supreme Court, for the first time, provided its position on whether employers could make adverse employment actions against its employees who are lawfully using medicinal marijuana away from work. The Court held that even though medical marijuana is “lawful” activity in Colorado, such activity is not “lawful” under the federal law.  As a result, employees may not assert protections under the Colorado Lawful Activities Statute.

In Jordan v. Panorama Orthopedics and Spine Center, 346 P.3d 1035 (Colo. 2015) the Supreme Court considered whether a tenant in a leased building could be a landowner under the Premises Liability Act.  Plaintiff was a patient of Panorama.  She tripped and fell on a sidewalk in a common area.  She brought suit against the landlord, the management company, and Panorama.  The landlord and management company settled.  Panorama moved for judgment on a question of law under Rule 56(h), arguing that Panorama was not a landowner.  That Motion was denied.  Eventually Panorama asked for a directed verdict over the same issue.  That Motion was denied, the trial court noting that Panorama is the major tenant and exerted more control over the common areas than other tenants.  The jury gave plaintiff a $411,000 verdict.  The Court of Appeals agreed with Panorama on appeal.  The Court of Appeals found that Panorama had no control over the sidewalk, did not have possession of the sidewalk and did not create the condition producing Plaintiff’s injuries.  The Supreme Court concluded that Panorama was not in possession of the sidewalk where Plaintiff fell because, under the terms of the lease, it had only a right of non-exclusive use of the common areas and that the landlord retained responsibility for maintaining those areas.  Further, the Supreme Court concluded that Panorama was not legally responsible for the condition of the sidewalk where Jordan’s injuries occurred, or for activities conducted or circumstances existing there. Therefore Panorama was not a landowner within the meaning of the Premises Liability Act.

In Caylor v. State of Colorado, W.C. No. 4-880-213 (ICAO, May 13, 2015), Claimant tried to avoid the statutory procedural bar that required her to file an Application for Hearing within 30 days of receiving the Final Admission of Liability (FAL). The FAL was filed on May 16, 2014 in accordance with a DIME report.  Claimant filed an objection to the FAL and a Notice and Proposal to Select another Independent Medical Examiner. She later filed an Application for Hearing on June 25, 2014, endorsing the issues of overcoming the DIME and seeking additional medical treatment.  ICAO held that Claimant was only entitled to one DIME, which previously took place. ICAO found that Claimant missed the strict 30-day deadline to file the Application for Hearing to dispute the FAL. As such, ICAO struck the Application for Hearing seeking to overcome the DIME and requesting additional medical treatment.

ICAO recently outlined the evidentiary standards used when a DIME physician finds that a condition is not related to the employment after the claim has been previously admitted. In Clickner v. Comfort Systems dba Design Mechanical, Inc., W.C. No. 4-798-331 (ICAO, April 30, 2015), Respondents admitted for a low back claim after the treating physicians opined that the work duties aggravated a preexisting condition. Subsequently, the DIME physician found that there was no permanent impairment because the incident did not cause, aggravate, or exacerbate the underlying condition. At hearing, Respondents were not permitted to withdraw their admission of liability because the ALJ found that there was a compensable injury. Claimant appealed the ALJ’s Order that found he failed to overcome the DIME. ICAO held that Claimant had the burden to overcome the DIME by clear and convincing evidence by showing the DIME opinions were highly probably incorrect or by showing that the evidence in support of his argument was unmistakable and free from substantial doubt. ICAO confirmed the ALJ’s determination that Claimant sustaining a compensable injury did not equate to a finding that the DIME physician’s opinions about MMI or impairment had been overcome.

In Easley v. Ruby Tuesday, W.C. No. 4-934-489 (ICAO, April 22, 2015), ICAO affirmed the Order finding that Claimant’s carpal tunnel syndrome was not compensable. At hearing, Respondents provided a Job Demand Analysis (JDA) report, which indicated that Claimant’s job duties as a salad bar attendant and dishwasher did not trigger risk factors associated with cumulative trauma disorders. On appeal, Claimant argued that the JDA should not have been relied upon by the ALJ because the report did not analyze Claimant actually performing the job duties, as required by the Medical Treatment Guidelines. ICAO found that the observation of actual job performance is not required under the Guidelines.  ICAO ruled that any differences or inaccuracies found in an expert report will go only to the weight the ALJ assigns to the evidence and will not affect the ALJ’s ability to rely upon it.

In Flores v. American Furniture Warehouse, W.C. No. 4-939-951 (ICAO, April 30, 2015), Claimant worked as a lift operator. Safety rules require lift operators to wear a harness and to tether the harness to the lift truck while operating the truck “if the employee perceived a risk of fall.” Claimant raised the lift 20 feet off the ground and was loading boxes from a mezzanine onto the lift. Claimant was not tethered to the truck because the tether was not long enough to allow him to reach the boxes on the mezzanine. Claimant fell through a narrow space between the lift and the mezzanine. Respondents pursued a 50% reduction in workers’ compensation benefits arguing Claimant had willfully violated a safety rule per C.R.S. § 8-42-112. Claimant testified he did not believe he was at risk of falling and therefore did not utilize the tether. The ALJ determined Claimant did not willfully violate the employer’s safety rule. Respondents appealed and asserted Claimant willfully violated the safety rule because he knew of the rule and deliberately performed the forbidden conduct. ICAO noted “willful” connotes deliberate intent, but mere carelessness, negligence, forgetfulness or oversight does not satisfy the statutory standard. Bennett Properties Co. v. ICAO, 437 P.2d 548 (1968). ICAO upheld the ALJ’s opinion because evidence supported Claimant was not operating the lift at the time of the injury and he did not “perceive a risk of fall” per the safety rule. Therefore, Claimant’s actions did not arise to the level of “willful.”

In Pierce v. Pella Windows and Doors and Pinnacol Assurance, W.C. No. 4-950-181 (ICAO May 11, 2015), Claimant was injured while installing windows. Respondents successfully argued Claimant was an independent contractor. Claimant appealed. ICAO remanded the case for further finding due to ALJ’s failure to adequately apply the rules for determining whether an employee is an independent contractor or employee. C.R.S. § 8-40-202(2)(b)(II) indicates an individual is not an independent contractor if they are paid an hourly rate or salary, instead of a fixed contract rate, and are paid individually rather than under a trade or business name. Conversely, independence may be shown if the individual is provided only minimum training and is not provided with any tools or benefits. The ALJ found Claimant was an independent contractor based upon a document signed by Claimant which set forth the above factors and provided he was an independent contractor. ICAO noted that while the signed contract may have created a rebuttable presumption of an independent contractor relationship, the factors set forth in the statute must still be applied and analyzed.

In the case of Sackett v. City Market, W.C. No. 4-944-222, (ICAO April 21, 2015), the ALJ determined Claimant sustained a compensable injury, and a referral to Dr. Scheffel was authorized. Respondents appealed the determination that the referral to Dr. Scheffel was authorized, arguing the referral was at Claimant’s request and not based upon the ATP’s “independent medical judgment.” ICAO determined Claimant was referred to treatment with her personal care physician (PCP) at her request. The PCP then referred Claimant to Dr. Scheffel. Subsequently, Claimant underwent knee surgery with Dr. Scheffel for her work-related injury.  ICAO held the referral to the PCP was at Claimant’s request and not based on “independent medical judgment” from the ATP. Therefore, the referral by the PCP to Dr. Scheffel was outside of the chain of referral and was unauthorized medical care.

Colorado Supreme Court Tackles Medical Marijuana

Down_with_Brown_ID

 

The Colorado Supreme Court, one-week ago, issued a highly anticipated decision implicating employment law related decisions as they pertain to employees using lawful medical marijuana for activities outside the course and scope of employment. In the decision of Coats v. Dish Network, the Colorado Supreme Court, for the first time, provided its position on whether employers could make adverse employment actions against its employees who are lawfully using medicinal marijuana away from work. The Court held that even though medical marijuana is “lawful” activity in Colorado, such activity is not “lawful” under the federal law. As a result, employees may not assert protections under the Colorado Lawful Activities Statute.

In Coats, the Plaintiff filed a lawsuit against Dish Network for discharging him for his use of medical marijuana, green-cross-thmbR medical marijuana to treat painful muscle spasms caused by his quadriplegia.   Between 2007 and 2009, the Plaintiff worked for Dish Network as a telephone customer service representative. In May 2010, the Plaintiff tested positive for tetrahydrocannabinol (“THC”) during a random employee drug test. The Plaintiff informed Dish Network that he was a registered medical marijuana patient. Dish Network terminated the Plaintiff for testing positive for THC as a violation of the company’s drug policy.

The Plaintiff alleged a wrongful termination claim against Dish Network, pursuant to C.R.S. 24-34-402.5, which generally prohibits employers from discharging an employee based on his or her engagement in “lawful activities” off the premises of the employer, during nonworking hours. The case was dismissed by the trial court finding that, while medicinal marijuana was legal under state law, it was still illegal under federal law and thus, not a lawful activity. The Colorado Supreme Court has affirmed this decision and agrees with this conclusion.

Accordingly, the take away for Colorado employers is simple. Colorado employers may continue to enforce their drug policies against their employees who use medicinal marijuana and any adverse employment actions taken against them will not violate Colorado’s Lawful Activities Statute. It should be noted that this decision specifically did not address use of recreational marijuana, which Colorado has also made lawful. Nevertheless, it would be anticipated that the Court would treat recreational use no differently.  In other words, because both medical and recreational uses are still illegal under federal law, such activities still will not be “lawful” to support a claim under the Lawful Activities Statute.

For those interested in reading the opinion, please click the link below:

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC394.pdf

legaLKonnection Firm Newsletter – May 2015

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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

Lee + Kinder is pleased to introduce the newest addition to our team, Ms. Karen Gail Treece, as our latest Member. Ms. Treece, a trial lawyer with over thirty years of litigation experience, is recognized as one of the premier workers’ compensation defense lawyers in the state of Colorado. For a more in depth look at our newest Member, please click here to read her biography page on the Lee + Kinder website.

 

The Professionals in Workers Compensation (PWC) banquet was held on May 1, 2015.  Member Joshua Brown was recognized as a nominee for Outstanding Respondent Attorney.  Lee + Kinder, LLC was the proud recipient of the award for PWC Outstanding Sponsor.

 

 

 

Of Counsel Joseph Gren, acting as editor, and Associates Matt Boatwright and Jessica Melson recently published a major article on workers’ compensation law for the 2014 Annual Survey of Colorado Law.  Practitioners from across key practice areas provide their time and expertise to help produce the Annual Survey of Colorado Law, a yearly compilation of updates to Colorado case law, as well as statutory and regulatory developments. The article, which provides an overview and survey of recent trends in workers’ compensation law, will be reviewed and utilized by lawyers and non-lawyers alike as a valuable resource in this area of law.

Victory Lap

Member Katherine Lee halted Claimant’s pursuit of workers’ compensation benefits in Brenda Elatabani v. Canterbury Gardens.  Claimant alleged a work-related lumbar injury due to preventing a patient from falling out of bed.  At hearing, Ms. Lee destroyed Claimant’s credibility by establishing the presence of a preexisting low back condition which Claimant adamantly denied.  Ms. Lee highlighted Claimant’s self-serving denial and down play of her diminished pre-accident physical capacity and presented credible evidence of reporting inconsistencies by Claimant, including the fact that Claimant was less than candid with physicians about her preexisting condition.  The ALJ denied and dismissed the claim, concluding that Claimant did not establish that she sustained a compensable work injury.

Member Joshua Brown successfully defended a full contest claim in Christopher Piccone v. Skywest Airlines, Inc. and Ace American Insurance Company.  Claimant was employed as an airplane mechanic. He alleged a work-related injury to his right knee while getting up from a chair after a work meeting. Claimant reported to his providers that he experienced right knee swelling a couple years ago but “fully recovered.” Mr. Brown argued Claimant’s injury was due to his pre-existing condition and getting up from a chair was not an action specific to his employment. The Court noted, where the claimant suffers from a preexisting idiopathic condition, which becomes symptomatic at work, the resulting injuries are not compensable unless the conditions of employment contribute to the accident or to the extent of the injuries sustained. National Health Laboratories v. ICAO, 844 P.2d 1259 (Colo. App. 1992). In order for there to be a sufficient employment connection for such an injury to arise out of employment, the claimant must prove the employment created a “special hazard.” Ubiquitous conditions, such as concrete floors, do not qualify as special hazards. Gates Rubber v. Industrial Commission, 705 P.2d 6 (Colo. App. 1985). The Court held Claimant failed to establish that there was a causal connection between the injury and the Claimant’s work related functions. Standing up from a chair lacked the required causal connection to a work injury or his work functions.  Standing up from a chair at work was no different than standing up from a chair at his home.  Therefore, the claim was denied and dismissed.

Of Counsel Sheila Toborg successfully defeated Claimant’s pursuit of additional benefits in Vonvalee Adair v. The Home Depot.  The Claimant sought to add her left shoulder as a compensable body part after Respondents admitted for a right shoulder injury. Claimant originally reported a right shoulder injury that occurred on July 24, 2012 when she lifted a box of tile at work. She did not report left shoulder symptoms until February of 2013.  Later, the DIME physician opined that Claimant injured both shoulders on July 24, 2012 when lifting the box.  Dr. Allison Fall provided convincing testimony and opined that the left shoulder injury was not likely related to the work incident because of the delay in symptoms. Claimant argued that Respondents had the burden to overcome the DIME’s opinion on causation by clear and convincing evidence. However, Ms. Toborg convinced the Administrative Law Judge (ALJ) that it was Claimant’s burden to prove compensability of the scheduled left shoulder impairment by a preponderance of the evidence. The ALJ found that case law indicates that a claimant has the burden of proof to establish by a preponderance of the evidence that he or she sustained a particular scheduled impairment caused by a work incident. Additionally, the ALJ was persuaded by Dr. Fall’s testimony and found that there was an insufficient relationship between the work incident and the later development of left shoulder symptoms.


RESEARCHING NARCOTIC PRESCRIPTION INFORMATION IN COLORADO

A ubiquitous problem in workers’ compensation patient care, as well as in the general clinical healthcare setting, is an individual patient’s use, and potential abuse, of controlled prescription narcotics.   The Prescription Drug Monitoring Program (PDMP) is the State of Colorado’s secure, central electronic informational data base that records and tracks each pharmacists’ dispensement of controlled narcotics. In an effort to curb narcotic prescription abuse, as well as to improve overall clinical care, the state of Colorado recently revised its PDMP guidelines with the goal of promoting more accessibility to the PDMP’s recording and research functions. Click here to continue reading this article

 

 


Cases You Should Know 

The Rule of Independence for the Win . . . Almost: In Clubb v. Re Monks, W.C. Nos. 4-952-696 & 3-850-643 (March 31, 2015), Claimant’s husband sustained admitted injuries to his arms and ribs in 1987.  Claimant reached MMI in 1994, and Respondents admitted for permanent total disability benefits.  In 1995, Respondents and Claimant’s husband entered a full and final settlement. The agreement required Respondents to pay a lump sum to Claimant’s husband and a monthly annuity for the remainder of Claimant’s husband’s life.  If Claimant’s husband died within 20 years of the settlement date, the unpaid balance of the first 20 years of monthly annuity payments would be made to Claimant as designated beneficiary. In the event that settlement was reopened, any money paid by Respondents pursuant to settlement would constitute a credit against any subsequently ordered workers’ compensation benefits.

Claimant’s husband died in 1997.  The cause of death was acute hemorrhagic pneumonia complicated by cardiac arrest.  Nearly seventeen years later, Claimant, acting pro se, pursued three claims for relief: (1) a death benefit award on the basis that her husband’s death was work related; (2) to reopen the settlement on the basis of fraudulent inducement; and (3) a claim for death benefits pursuant to C.R.S. §8-42-116(1)(a), the statute which provides for benefits based on a non-work-related death.  After hearing, the ALJ found that Claimant’s request for death benefits was barred by the two year statute of limitations and that Claimant’s husband’s death was not work related.  Therefore, the ALJ determined that there was no need to address the additional issues of re-opening the settlement.

On appeal, ICAP disagreed with the ALJ’s holding that the two-year statute of limitations and Claimant’s failure to prove work relatedness precluded the Court from reaching the issues of reopening settlement and death benefits not caused by work injuries.  ICAP then addressed and denied both claims. Regarding Claimant’s request to reopen the settlement, ICAP held that Claimant did not have standing to attack the settlement because Claimant was not a party to the settlement agreement.  Citing the “rule of independence,” ICAP concluded that the settlement agreement did not affect Claimant’s separate and independent statutory claim for death benefits not resulting from work injuries under §8-42-116.  Ultimately however, ICAP held that the ALJ’s dismissal of the §8-42-116 claim for death benefits was harmless error because payments made by Respondents pursuant to settlement satisfied their liability for death benefits under §8-42-116.  The settlement proceeds fulfilled the statutory purpose of §8-42-116 by serving as a substitute for the support previously provided by the decedent through his receipt of permanent total disability benefits.

Object Early and Object Often: In Finch v. Target Corporation, W.C. No. 4-899-106 (April 7, 2015), Claimant worked as a logistics team member for Respondents for nearly four years before she sought medical treatment for an alleged occupational injury to her wrist.  Claimant’s job duties largely consisted of loading and unloading merchandise and stocking shelves. A vocational evaluator performed a job demands analysis (JDA).  After performing a Risk Factors Assessment, based on the Medical Treatment Guidelines pertaining to cumulative trauma conditions, he found there were no primary or secondary risk factors present in Claimant’s job duties.

After reviewing the JDA, Respondents’ IME physician and an Authorized Treating Provider (ATP) concluded that Claimant’s injury was not work related.  The ATP placed Claimant at MMI without impairment.  Respondents filed a FAL in accord with the ATP’s opinion.  Claimant sought a DIME.  The DIME issued muddled statements about causation, but ultimately found that Claimant’s condition was work related and Claimant was not at MMI.  Respondents filed an Application for Hearing and successfully overcame the DIME.  In ruling for Respondents, the ALJ reasoned that the Respondents’ IME physician and the ATP’s opinions were most credible, in part because these physicians’ opinions were based on their review of the JDA.

On appeal, Claimant raised multiple arguments as to why admission into evidence of the JDA was an abuse of discretion.  First, Claimant argued that Respondents’ failure to adequately respond to Claimant’s discovery requests about the vocational evaluator rendered the evaluator’s expert qualifications “in dispute.”  ICAP disagreed, noting that during hearing Claimant did not allege that the vocational evaluator was not an expert or not qualified to draft the report.  ICAP cited Colorado Rule of Evidence 103(a)(1) which provides that before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection.  Failure to make a contemporaneous objection constitutes waiver of the objection.  Second, Claimant contended that the ALJ erred in not striking the JDA report pursuant to C.R.C.P. 37 as a discovery sanction.  ICAP disagreed, noting that during hearing, Claimant’s counsel argued that Respondents’ discovery responses regarding the vocational evaluator were not sufficient.  ICAP rejected this position, reasoning that Claimant did not previously file a motion to compel discovery responses regarding the vocational evaluator.  ICAP cited the well settled law that absence of a prior order compelling discovery precludes C.R.C.P. 37(b) sanctions for any alleged discovery violation.

See, e.g. “Whenever you can, you should object.” Robert Duvall in A Civil Action.

No MMI? No Donald B. Murphy. Seriously: In Laabs v. Integrated Communication Service, Inc., W.C. No. 4-890-061 (March 19, 2015), Claimant sustained an admitted injury, and the ATP placed Claimant at MMI with a 24% whole person impairment rating.  Respondents filed a FAL and began paying PPD based on the admitted 24% rating.  Claimant pursued a DIME.  The DIME opined that Claimant was not at MMI.  Respondents then filed a GAL and commenced TTD payments, including a lump sum TTD payment for five months of retroactive TTD owed in accord with the DIME’s opinion.  In the five month period before the DIME’s retraction of MMI, Respondents paid PPD benefits and an automatic $10,000 lump sum payment.  Respondents’ post-DIME GAL took credit for previously paid PPD and reserved the right to claim any and all offsets and over-payments.

Thereafter, relying on the $75,000 cap in C.R.S. §8-42-107.5 and the holding of Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo. App. 1995), Respondents moved to suspend Claimant’s temporary disability benefits upon reaching the $75,000 cap and to credit Claimant’s temporary disability benefits against PPD benefits previously paid.  At that time, Respondents had paid $69,439.27 in combined indemnity benefits.  The ALJ held that Donald B. Murphy was most analogous to the present case and allowed Respondents to suspend temporary disability benefits upon Claimant reaching the $75,000 cap.  Claimant appealed, and ICAP agreed with Claimant that Donald B. Murphy was inapplicable.  ICAP concluded that the DIME’s removal of Claimant from MMI rendered application of the statutory cap premature. Since Claimant’s impairment rating had not yet been determined, it was not known which cap should apply, and application of the $75,000 cap was improper.

Per Wikipedia and the Worker’s Compensation Act, an episodic stipend is not a salary: In Roscoe v. Ahlstrom, Inc., W.C. 4-870-626 (March 17, 2015), Claimant was elected to the Board of Lookout Mountain Water District and eventually became president, serving consecutive terms until he sustained an admitted injury.  In this position, Claimant was paid $100 per monthly Board meeting attended.  Claimant estimated that he spent 20 hours per week on District business and was not paid for this work.  Respondents filed a GAL admitting for an AWW of $828.03 pursuant to C.R.S. §8-40-202(1)(a)(II) which provides that the rate of compensation for non-salaried elective officials shall be at the state maximum rate as provided by the Workers’ Compensation Act. Subsequently, Respondents filed a Petition to Modify Claimant’s AWW, asserting that Claimant did not meet the statutory definition of a non-salaried elective official because he was actually a “salaried employee,” and therefore his AWW should be based on wages actually received, which Respondents calculated to be $25 per week.

The ALJ denied Respondents’ motion and held that Claimant qualified as a non-salaried elective official entitled to the maximum compensation rate.  Respondents appealed, and ICAP denied the appeal.  ICAP agreed that Claimant met the statutory definition of a non-salaried elective official, reasoning that Claimant volunteered to serve as an elective official and was not compensated for many services performed.  At the time of the injury, there was no enforceable agreement between the parties to pay any salary aside from the board meeting stipend. ICAP reviewed definitions of the term “salary” from multiple sources, including Wikipedia and the Workers’ Compensation Act, and concluded that the $100 meeting stipend did not constitute a salary and instead was an episodic payment.  ICAP cited case law supporting the conclusion that the stipend was a nominal benefit, or gratuity, rather than a salary.

All Uninsured Parties Raise Your Hand So We Know Who’s Jointly Liable: In De le Paz Herrea v. Bohlender Colorado Farms and Precision Home Buildings, LLC and Conceptos Painting and Remodeling, W.C. 4-938-822-02 (April 6, 2015) , the ALJ ruled, and the Panel affirmed, that uninsured parties may be held jointly liable as “statutory employers” in workers’ compensation claims. In this case, Claimant was employed as a painter for Conceptos, a company that provided labor for painting and remodeling.  Claimant fractured his leg when he fell from a ladder while painting the interior of a residential farm home.  Conceptos was uninsured and was hired by Precision Home Building, LLC to paint the interior of the newly constructed home.  Precision Home Building is a company that hires contractors for home building, but does not perform any actual construction work.  Precision was also not insured for workers’ compensation and was hired by Bohlender, LLC to be a broker and general contractor to build a new residential farm home.  Bohlender is a farming company with four principal members who are family.  The farm home, where the injury occurred, was to be the personal residence of two principal members.

Upon review, the Panel determined that the broad definition for “regular business” must be used when determining the appropriate statutory employer.  In this case, whether or not Precision had actually performed the service with its own employees did not matter.   Evidence demonstrated that the painting of the house was a regular part of Precision’s business, which, with the use of subcontractors, Precision would perform. Therefore, Precision was deemed a statutory employer.  Generally, there’s only one party determined to be a statutory employer.  However, the Panel, citing case law, stated that where no party is insured, the Panel had previously determined that the employers are jointly liable for benefits due.  Coffey v. Graham d/b/a Affordable Roofing, W.C. 3-909-714 (January 24, 1991). Accordingly, both Precision and Conceptos were found to be jointly liable.

The Panel also affirmed that Bohlender was not a statutory employer because the labor being performed was at a primary residence.  The Panel reasoned that a qualified residence, under the IRS code, is one that is a primary residence. Use of the residence for primarily personal reasons is dispositive and, in this case, there was enough evidence to support a conclusion that Bohlender, LLC was not a statutory employer, as the labor being done was on a primary residence, despite the fact that an LLC hired the subcontractors.

Lying is a Disability Worthy of PTD Benefits…for Some People: In Romero v. Alstom, Inc., W.C. 4-767-157-06 (April 9, 2015), the Panel found that Claimant’s prior cognitive issues and personality disorders did not disqualify him from an award of PTD benefits.  Upon review of this case, the Panel found that the ALJ did not err when he concluded the Claimant’s ability to tell the truth did not disqualify him from an award of PTD.  Claimant was a welder who injured his neck and shoulder when he fell from a scaffolding.  He had a preexisting history of cognitive issues and possible personality disorders that caused him to be untruthful and embellish his recounting of information. Claimant had undergone two prior shoulder surgeries and a third was recommended.  The ALJ credited the opinion of Dr. Castrejon that the Claimant could realistically only work in sedentary jobs.  This was a considerable change from claimant’s previous earning capacity. Claimant was 64 years old, had no high school diploma or GED and had only worked in jobs characterized as being in the heavy work category.  The ALJ noted that Claimant’s preexisting psychological condition was a factor in determining that Claimant was unable to earn any wages, finding that Claimant’s inability to be truthful can actually be seen as an employment disability.  The ALJ determined the effects of the industrial injury were significant and bore a direct relationship between the precipitating event and resulting disability. The ALJ cited Askew v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).  In that case, the test was first to determine the residual impairment caused by the industrial injury and then determine whether it was sufficient to result in permanent total disability without regard to subsequent or intervening events or preexisting conditions. In all cases, a claimant’s overall condition necessarily includes characteristics present prior to an injury.  In this case, the ALJ concluded that this would include Claimant’s reluctance to be forthright about himself. On appeal, the Panel upheld the ALJ’s findings regarding the issue of PTD.

In addition to PTD benefits, Respondents argued that Claimant’s second surgery failed, in part due to his disinclination to follow-up with physical rehabilitation treatment. They argued that this constituted injurious practice.  Claimant’s unwillingness to stop smoking, maintain his blood glucose level and attend medical appointments were noted by Respondents. However, both the ALJ and the reviewing Panel noted Respondents showed no evidence that the proposed shoulder surgery would be useful or promote Claimant’s recovery.  ICAP upheld the ALJ’s determination that Claimant’s inability to comply with his physicians’ recommendations constituted an “injurious exposure,” which would have mitigated Respondents’ ongoing indemnity benefits exposure.

Would you like Workers’ Compensation Benefits with your Coffee?: Parking lots owned by the employer, or maintained by the employer for its employees, are generally considered part of the “premises” whether within the company’s main premises or separated from it.  In Wilson v. Dillon Companies, Inc. W.C. 4-937-322-01 (March 16, 2015), a barista at a coffee shop sustained a compensable injury when she slipped and fell on ice in the parking lot outside of the coffee shop where she worked.  This injury was found to be compensable even though Claimant had completed her shift and had clocked out but remained in the same shopping center to complete some personal grocery shopping.  The ALJ and ICAP reasoned that, in addition to the parking lot doctrine noted above, the claim was compensable because although Claimant had a “personal deviation” to conduct her own shopping, when she completed the personal shopping, the deviation had ended.  They noted that once Claimant completed her check out from the grocery store and walked out to where her car had been parked while she had been working; her injury had arisen out of and within the course and scope of her employment. The time that had elapsed between the end of her barista shift and her personal grocery shopping was not only minimal, but it did not end the applicability of parking lot doctrine.  This was due to the fact that her injury had occurred in the same parking lot, which was considered the premises of her employer. It did not matter whether she had just finished her shift or not.

Researching Narcotic Prescription Information In Colorado

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A ubiquitous problem in workers’ compensation patient care, as well as in the general clinical healthcare setting, is an individual patient’s use, and potential abuse, of controlled prescription narcotics.  The Prescription Drug Monitoring Program (PDMP) is the State of Colorado’s secure, central electronic informational data base that records and tracks each pharmacist’s dispensement of controlled narcotics. In an effort to curb narcotic prescription abuse, as well as to improve overall clinical care, the state of Colorado recently revised its PDMP guidelines with the goal of promoting more accessibility to the PDMP’s recording and research functions.

Currently, medical professionals use the PDMP to track a particular patient’s use, prescription quantity, frequency of prescriptions, and procurement of controlled substances. The PDMP is frequently used in the workers compensation system to reference whether an injured worker is obtaining narcotics prescriptions from more than one physician, or whether an injured worker has a history of narcotic dependency. The PDMP is considered a medical record, and protections of HIPPA apply to PDMP information. This information can be used to evaluate a specific course of treatment unique to the injured workers’ clinical history; however, a long-standing issue has been the quality and quantity of the information available to physicians.

Prior to October, 2014, PDMP users were only permitted to upload data twice every month. As of October 15, 2014, the revised PDMP regulations, Rx_keyadministered by the Division of Professions and Occupations, require that all in-state and non-resident pharmacies registered by the state’s Pharmacy Board submit controlled substance dispensing data to the PDMP on a daily basis. Most of these changes are contained in House Bill 14-1283. Any pharmacist or physician possessing a Drug Enforcement Agency registered narcotics prescriber permit is required to register with PDMP and follow rules and regulations of the State Board Pharmacy. The new regulations also contain tools to help ease the burden of having to enter massive amounts of patient data in real time. As of January 2015, each prescriber and pharmacist registered as a user with the PDMP may delegate access to the PDMP to three agents by way of creating sub-accounts with the PDMP under the corresponding prescriber or pharmacist’s account.

Granting broader access to the PDMP is an important step for purposes of controlling and containing medical costs in workers’ compensation. Based upon the new revisions to the PDMP guidelines, a workers’ compensation authorized provider may delegate authority to access the PDMP database to three designees acting for the provider. Large and small facilities treating patients will now be able to utilize nurses, or other health care professionals who did not previously have access to the PDMP, as delegated agents authorized to research an injured workers’ narcotic prescription history. The regulatory changes will give busy pharmacists the opportunity to input data on a daily basis. Physicians practicing in workers’ compensation can then obtain real time data about an injured worker’s prescription history by using their staff to obtain and process the clinical information.

Under the applicable rules, physicians performing independent medical examinations may not access the PDMP for information on an injured worker. However, it is recommended that, after obtaining a HIPPA compliant release, the authorized physician be asked to check the PDMP to evaluate an injured worker’s narcotic prescription and compliance history. It is also recommended that insurance representatives adjusting a workers’ compensation claim make repeated requests for PDMP information throughout any claim when narcotic prescription management is an issue. More information about Colorado’s PDMP can be found at

http://www.hidesigns.com/copdmp.

legaLKonnection Firm Newsletter – April 2015

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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
We are excited to announce that the Firm’s latest expansion is now complete.  Our dedication to the standard that the client drives the case and our continued commitment to providing the best, most cost-effective legal advice to support that standard has brought us to our 4th expansion since the Firm’s inception in 2008.  The Firm would like to sincerely thank all of those who continue to contribute to our success. 

 
The Professionals in Workers’ Compensation 2015 Awards Banquet will take place on Friday, May 1st at the Doubletree by Hilton in Denver.  Lee + Kinder, LLC, in addition to being nominated for Outstanding Sponsor, is proud to have Member Joshua D. Brown recognized as a nominee for Outstanding Respondent Attorney. 
 


Victory Lap

 

Of Counsel M. Frances McCracken had a stellar month in March, with favorable Orders in three 2015 hearings.  In Josh Clark v. Walmart Stores, Inc., W.C. No. 4-950-741, Ms. McCracken won a full contest hearing on the compensability of an alleged right foot and knee injury.  Under the criteria outlined in the recent City of Brighton v. Rodriguez Decision by the Colorado Supreme Court, Ms. McCracken successfully argued that the Claimant’s knee condition arose from a purely personal risk, which was completely unrelated to the employment, and was the result of degenerative changes not affected by any special hazard at work.
 
In Charles Johnson v. Walmart d/b/a Sam’s Wholesale Club, W.C. No. 4-851-843, Ms. McCracken put on evidence that the Claimant continued to receive SSDI benefits after he reached retirement age. The ALJ agreed that Respondents were entitled to an offset for SSR benefits against temporary disability benefits. 
 
In Cheney v. Blue Bell Creameries, Ms. McCracken successfully defeated two separate claims for workers’ compensation benefits.  Ms. McCracken won a full contest hearing on the compensability of Claimant’s alleged knee injury.  She elicited credible medical evidence that Claimant required no medical treatment and that he only suffered a temporary aggravation of a preexisting condition.  The ALJ applied the criteria outlined in Eisenach v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981) and ultimately denied and dismissed the claim, concluding that Claimant’s accident did not result in the need for medical treatment or result in a disability.  Additionally, Claimant was seeking a request for prior authorization for wrist surgery for a prior admitted claim.  Ms. McCracken proved that the authorized treating physician failed to perform a causation analysis as required by the Medical Treatment Guidelines, and did not explain how the Claimant’s current need for surgery, if any, is related to his employment. The ALJ agreed that Claimant’s surgery was not reasonable, necessary, or related to the effects of the admitted work injury. 
 


Office of Administrative Courts New Procedural Changes for Hearings Effective March 30, 2015

 
The Office of Administrative Courts recently implemented numerous procedural changes for workers’ compensation hearings.  To view and/or download these changes, click here:

https://www.colorado.gov/pacific/sites/default/files/OACRP%202015_1.pdf.

While the changes are mostly of interest to attorneys in the litigation process, there are some changes which claims adjusters may want to note in their handling of the claim.  Under the new rules, a claimant may not pursue an Application for Hearing on Disfigurement unless at least six months have passed since either the date of injury or the date of surgery, or otherwise unless a final admission of liability has been filed.  Also, a claimant who is requesting an expedited hearing must attach a copy of the medical record documenting urgent need for prior authorization along with the Application for Expedited Hearing.  Finally, the deadline for submitting written closing statements to an ALJ after hearing is now completely in the discretion of the ALJ, which may impact the time that the parties can expect for an order.  Please feel free to contact us if you have any questions about any of the new rules.

 


 

Recent U.S. Supreme Court Decision – Is there Now a Duty to Accommodate Pregnant Employees?
In a pattern of ongoing protections for employees, the Equal Employment Opportunity Commission (EEOC) along with the United States Supreme Court has taken head-on the issue of pregnancy discrimination.  For the first time in over 30 years, the EEOC in July 2014 issued Enforcement Guidance regarding pregnancy disability.  In general, the Guidance explains Title VII's prohibition against pregnancy discrimination, describes individuals to whom the Pregnancy Discrimination Act (PDA) applies and discusses how the expanded definition of "disability" under the Americans with Disabilities Act (ADA) applies. In sum, the Guidance advises employers to apply the same work place accommodation policies, leave of absence policies, medical benefits, and seniority/retirement benefits to all employees, regardless of whether a request for leave of absence, workplace accommodation, or medical benefit is due to a medical condition related to pregnancy or any other disability. The EEOC concedes that pregnancy is not a “disability” under the ADA, but points out those pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, even though these disabilities are temporary.Click here to read more in-depth on this topic.
 


Cases You Should Know 
How much are you “Interested” in Death Benefits?: In Keel v. Transportation Technology Services and Ace American Insurance Company, W.C. No. 4-897-030 (ICAO March 4, 2015), Claimant sought review of an Order, that recalculated the interest due and owing on past due Colorado death benefits. The ALJ previously found that the deceased employee was killed on October 27, 2010 in a Colorado industrial accident.  At that time, the decedent’s wife and dependents were residents of Mississippi.  A claim for death benefits was initially brought in Mississippi. A claim was later made in Colorado, with the ALJ determining Colorado had proper jurisdiction. ICAO, in an Order dated April 1, 2014, remanded the ALJ to re-calculate the applicable interest due and owed on past due Colorado death benefits.  In this case the ICAO determined that the 8% interest in C.R.S. §8-43-410(2), should be applied to the amount of Colorado death benefits that were owed to the dependents and not paid by Respondents.  ICAO further determined that the dependents were not entitled to recover full duplicated benefits under both Colorado and Mississippi law.  On October 16, 2014, the ALJ ordered Respondents liable for 8% interest pursuant to C.R.S. §8-43-410(3).   The dependents again argued that under C.R.S. §8-42-114 and under the Mississippi Workers’ Compensation Code, that they were entitled to recover concurrent workers’ compensation benefits. The Court upheld the ALJs Order, noting that the interest was correctly calculated pursuant to the Colorado claim. 

Equal Di$clo$ure: The Colorado Court of Appeals addressed issues brought by Claimant concerning equal protection of the law and whether an ALJ, PALJ, or other administrative judiciary figures must make public financial disclosures in Kilpatrick v. Industrial Claim Appeals Office, Goodwill Industries of Denver, and Pinnacol Assurance, 2014CA1003 (March 12, 2015).  Claimant’s petition to reopen his claim was denied by the ALJ.  Prior to litigation, Claimant’s Motion to Compel disclosure of whether anyone employed by Respondents had ever given anything of value to an administrative law judge was denied by a PALJ.  Upon appeal, Claimant asserted that he was denied equal protection of the law because litigants in district courts are entitled to a judge’s financial information. The Court of Appeals declined to address the equal protection issue, holding that there was no violation of equal protection in this instance because Colorado law does, in fact, require that administrative law judges make public any compensation, gifts, or transfer of anything of value by a party per the Colorado Code of Judicial Conduct.  The Court of Appeals held that the Code applied to administrative law judges just as it does a judge in any other court, and that if such disclosures had not been made, this should be addressed with the Division and Office of Administrative Courts.  Accordingly, the Court affirmed the lower Courts’ decision on this issue, as well as the issue of denial of the Petition to Reopen.

The Impossible Presumption: In Kittleson v. City and County of Denver and Self-Insured, W.C. No. 4-923-057 (ICAO, February 24, 2015), Claimant worked as a firefighter for Respondent-employer.  Claimant chose to participate in Respondents’ deferred retirement program and retired in April 2008.  Claimant developed Leukemia three years later and died at the age of 60, on May 30, 2013.  C.R.S §8-41-209 provides a presumption that cancer was a result of the Claimant’s employment. At the initial hearing, the ALJ found the claim compensable, stating that the presumption was not overcome by a preponderance of the evidence.  (Respondents appealed, contending that the ALJ erred in finding that the presumption in C.R.S § 8-41-209 was overcome.)  In City of Littleton v. ICAO, the Court found the Respondent-employer had not overcome the presumption in the statute because the employer did not establish either that (1) the firefighter’s occupational exposure “could” not cause his cancer, or (2) that the occupational exposure “did” not cause his cancer.  The ALJ found the Claimant’s expert testimony to be more persuasive, and that Respondents did not meet the burden of proof.  ICAO determined that the reports and testimony from Claimant’s expert were substantial evidence.  Respondents also raised the issue of Claimant’s average weekly wage, in that it was calculated not at the time of death but at the time prior to Claimant’s retirement.  ICAO agreed and remanded the matter to the ALJ for additional findings.

Determination of Statutory Employer in Tort Claim and Attorney Fees for Dismissal: In Monell v. Cherokee River, Inc., 13CA2230 (February 26, 2015), the Colorado Court of Appeals affirmed the lower Court’s dismissal of the Plaintiff’s negligence claim against Defendant Cherokee River (CRI), but reversed the District Court’s award of attorney’s fees to CRI for having to file a Motion to Dismiss.  CRI was hired by a landowner to build a structure on his property.  CRI subcontracted another company, which employed Plaintiff, to do the construction work.  The Plaintiff was injured while constructing the building.  Because the District Court found CRI to be a statutory employer, and the Plaintiff received workers’ compensation benefits through his direct employer, the District Court dismissed Plaintiff’s negligence claim for failure to state a claim under C.R.C.P. 12(b)(5) and awarded attorney fees.  Plaintiff argued that the Court’s dismissal was improper because it was required to determine whether CRI was a statutory employer using the regular business test in Finlay v. Storage Tech. Corp., 764 P.2d 62 (Colo. 1989). 

The Colorado Court of Appeals upheld the dismissal of the claim, holding that while courts should use the regular business test where the employment relationship is unclear, this was not required where statutory employer status was obvious, as in this case.  CRI subcontracted with Plaintiff’s employer for construction work and the Plaintiff was injured while working in this capacity.  However, though the Court noted that CRI would be entitled to attorney fees under C.R.S. §13-17-201 for successfully having the claim dismissed for failure to state a claim, it held that no such fees were warranted here because the Plaintiff’s defense to the Motion to Dismiss was not substantially frivolous, groundless, or vexatious under C.R.S. §13-17-101.   

Employer Cannot Appeal when the ALJ Orders Them to Play, but Not to Pay: In Dennis v. Nabors Drilling USA and American Zurich Insurance Company, W.C. No. 4-917-915 (ICAO March 4, 2015),  Respondents sought review of an Order that found Claimant’s injury to be compensable pursuant to Colorado law.  Claimant was injured while working in Utah.  Respondents admitted for the injury and began paying benefits pursuant to Utah workers’ compensation guidelines.  Claimant contended Colorado had concurrent jurisdiction to award benefits.  The only issue for hearing was the application of Colorado jurisdiction to the matter.  The ALJ concluded the claim was subject to Colorado Law.  Claimant sent his application for employment from his home in Fruita, Colorado.  Claimant was offered the job from an administrator calling from Casper, Wyoming while Claimant was in Canon City, Colorado.  The ALJ found that the last act necessary to complete the contract of hire occurred in Colorado in August, 2011, when the job offer was accepted.  Pursuant to C.R.S. §8-41-204, the ALJ determined the Claimant was entitled to benefits pursuant to the laws of Colorado as an employee “hired” in this state.  The Respondents petitioned to review the ALJ’s order, arguing that the ALJ erred in ruling that Claimant was hired in Colorado.  The Court dismissed Respondents’ Petition to Review, noting that the ALJ’s Order was not final and did not require Respondents to actually pay benefits. Orders which do not award or deny benefits or penalties are interlocutory and not subject to review.  This puts the employer in a sticky situation. 

 

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