In the News
With the Stock Show in town, many of the members of the Colorado Cattleman’s Association were also visiting for the midwinter meeting at the Renaissance Hotel. As a part of the midwinter meeting the Colorado Cattleman’s Association held a legal symposium. Of Counsel Frank Cavanaugh attended on behalf of Lee + Kinder, LLC to meet members and discuss the legal services Lee + Kinder, LLC provides.
Of Counsel Joe Gren successfully defended two claims this month. In Hardy v. Wendy’s of Colorado Springs and Traveler’s Casualty Insurance Company of America, W.C. 4-974-734 (January 14, 2016), Mr. Gren defended Claimant’s worker’s compensation claim. Claimant alleged an industrial injury to his right shoulder following an electric shock. Mr. Gren successfully argued that Claimant’s need for right shoulder treatment was not caused by Claimant’s allegation that he was shocked by a live wire. The ALJ found Respondents’ expert opinions persuasive and credible that Claimant’s symptoms, and need for medical treatment, were due to his preexisting injuries. Mr. Gren also presented witness testimony from a fellow coworker who stated that Claimant was never shocked by the wire. The ALJ denied and dismissed Claimant’s claim.
Mr. Gren also received a favorable judgement from ALJ Lamphere in Good v. Evraz, INC., NA W.C. No. 4-929-785. The ALJ found that conversion of Claimant’s scheduled lower extremity impairment to impairment of the whole person was not warranted. Mr. Gren successfully argued that while Claimant may experience the occasional limp, his low back and hip pain was not related to the asserted limp. The ALJ was persuaded that Claimant’s low back and hip pain was a consequence of being substantially de-conditioned and having to return to full duty. Claimant’s request for conversion of his 16% scheduled right knee impairment to the corresponding 6% whole person rating was denied and dismissed.
Member Joshua Brown successfully argued in favor of striking penalties as an issue for hearing in two prehearing conferences. In Vasquez-Cabrera v. Olsons Greenhouses of Colorado and American Zurich Insurance, W.C. No. 4-972-192, Claimant sought penalties for “unreasonable denial of prior authorization” in response to Respondents’ denial of treatment for an injury the authorized provider felt was unrelated to the claim. Claimant acknowledged that there was no specific request for treatment that had been denied. The PALJ struck the issue of penalties on the basis that no particular penalty had been specified in the pleading, as required under the Act. The PALJ denied Respondents’ motion to pursue attorney’s fees for having to prepare for an unripe issue, ruling that simply because an issue was stricken on grounds of inadequacy does not necessarily mean that it is unripe. In Skoll v. Prime Sight Associates and Colorado Casualty C/O Liberty Mutual Insurance, W.C. No. 4-960-091, the PALJ struck penalties on the same basis, failure to plead the issue with specificity. However, the PALJ in Skoll granted Respondents’ motion to preserve the issue of attorney’s fees for later determination at hearing, ruling that whether the issue endorsed by Claimant was ripe or not was a factual matter that required determination by an ALJ and was not appropriate for determination at prehearing.
Associate Mathew Boatwright successfully defended against a contested claim for an alleged knee injury in Graffis v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 4-978-066 (December 31, 2015). Claimant alleged that he suffered an aggravation of a preexisting condition while walking to deliver a package. Respondents’ expert testified that, while there was a preexisting, non-related condition that could have been aggravated from Claimant’s work duties, there was no specific work-related mechanism to indicate that the onset of pain was more likely than not related to Claimant’s work duties. Respondents argued that merely walking, absent some special hazard of employment, is not a sufficiently work-related activity to result in a compensable injury. ALJ Peter Cannici agreed, and denied and dismissed the claim.
Associate Jessica Melson successfully defended a claim for conversion of the shoulder. Claimant testified that due to his industrial shoulder injury he has pain in his neck and pectoral area which disrupted his sleep. Therefore, since his symptoms extended beyond the shoulder injury, his scheduled impairment should convert to a whole person rating. Ms. Melson presented Claimant’s medical records where he specifically denied neck pain, pain beyond the shoulder, or difficulty sleeping. ALJ Turnbow found Claimant’s testimony not credible and denied his request for conversion. Dennis Craig v. Courtesy Motors, CO and Republic Indemnity, W.C. 4-966-802 (December 24, 2015).
Personnel Files in Colorado: Who owns the file and what privacy interests are involved?
This is a question that I repeatedly see throughout the year and it comes in a variety of contexts. Often times, employers who may have recently terminated an employee, are suddenly posed with a request from that former employee for his/her personnel file. Sometimes, within a workers’ compensation or other employment related claim, the worker is seeking copies of the personnel file in an effort to bolster his or her claims. Click here to continue reading the article.
Cases You Should Know
Sometimes You Can Break the Rules and Get Away With It: In American Furniture Warehouse v. Industrial Claim Appeals Office and Flores (December 3, 2015)(nsfop), the Colorado Court of Appeals upheld an ALJ’s finding that Claimant did not willfully violate a safety rule of the employer when he failed to tether himself while loading from a platform. Though the employer had a safety rule requiring its employees to tether themselves to an anchor when loading from an elevated position, Claimant neglected to tether himself because he felt he was too large to fall through the gap from the platform to the floor. Relying upon case precedent that “willful” means acting with deliberate intent or with knowledge that an injury is likely to result from disregard of a rule, the ALJ found that Claimant’s failure to use the tether did not amount to willful disregard of the safety rule. See City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App. 1990); see also Johnson v. Denver Tramway Corp., 171 P.2d 410 (Colo. 1946). The Court of Appeals affirmed, finding that the ALJ’s opinion was legitimately based upon inferences drawn from circumstantial evidence and substantially supported by the evidence in the record.
An Independent Contractor Might Be Your Employee: In Precision Home Buildings, LLC v. Industrial Claim Appeals Office and Venancia De La Paz Herrera (October 22, 2015)(nsfop), the Colorado Court of Appeals affirmed an ICAO decision which found, contrary to the ALJ, that Respondent Precision was a statutory employer. Precision operated as a general home building contractor and hired Conceptos, the painting company subcontractor for which Claimant was working when he was injured. Both entities were uninsured. Though Precision had no employees and did not engage directly in any home construction, the Court found that, under the “regular business” test, Precision regularly contracted out painting work. As contracting painting projects to complete homes was part of its regular business, Precision was found to be a statutory employer of the injured worker.
When You Really Do Need A Doctor’s Note: The ICAO found that a release to regular employment has to come from the attending physician and that an ALJ does not have discretion to challenge such a release to regular employment. Connie Andrews v. School District RE-1 Valley and Pinnacol Assurance, W.C. 4-887-035-02 (ICAO, December 4, 2015). In this claim, Respondents appealed an Order from the ALJ that found the claimant’s reasons for leaving her multiple jobs were not relevant to her entitlement to temporary disability benefits, and that a treating physician’s release of the claimant to regular employment was “not credible.” The ALJ had ordered Respondents to pay temporary disability benefits for the wage loss from her three jobs, finding her reasons for leaving each of them irrelevant. ICAO remanded the claim to the ALJ for additional findings, requiring the claimant to prove by a preponderance of the evidence that her inability to earn wages was related to her work injury. The ICAO ordered the ALJ to make factual findings as to which of the claimant’s physicians was the attending physician and adhere to the opinion of the attending physician regarding the claimant’s return to regular employment.
Shouldering the Load: In Velvet Serena v. SSC Pueblo Belmont Op Co. LLC., and ACE American Insurance, W.C. 4-922-344-01 (ICAO December 1, 2015), the ICAO was addressing an ALJ’s finding that the claimant was entitled to an additional 10% scheduled impairment rating for each of her shoulders as a result of the claimant undergoing bilateral shoulder decompression surgeries. ICAO agreed with respondents argument that the AMA Guides only provide for such an “extraordinary rating” when the surgery involved is an arthroplasty. ICAO similarly rejected the claimant’s argument that her decompression surgeries resulted in “derangement of a body part,” and therefore was entitled to an additional impairment rating based on the Director’s Impairment Rating Tips. The ICAO found that a decompression surgery is not an arthroplasty, and therefore the claimant was only entitled to an impairment rating based on range of motion loss.
Per Diem – Allowance or Wage?: In William Stonebraker v. American Merchandising Special and Liberty Mutual Insurance, W.C. 4-959-213 (ICAO, December 1, 2015), the ICAO found that Claimant’s Average Weekly Wage (AWW), for the purposes of calculating the payment of temporary benefits, is to be based on payments from the employer which exclude those made for per diem reimbursement purposes. Claimant worked as a field service representative and would travel to various locations using his personal vehicle. Claimant was paid on an hourly basis and was reimbursed for the approximate cost he incurred for using his personal vehicle. The ALJ applied the definition of wages set forth in C.R.S. § 8-40-201(19)(c). That paragraph specified that “no per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes. The ALJ excluded the reimbursement payments from the calculation of Claimant’s wages. ICAO affirmed noting that the fixed and variable reimbursement payments were not subject to withholding for income taxes pursuant to IRS guidelines.