legaLKonnection Firm Newsletter – August 2017

2017_newsletter_LK-header-badge

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.

LK-icon-512x512

Please follow Lee + Kinder LLC on LinkedIn

 


In the News

Member Joshua Brown, Of Counsel Frank Cavanaugh, Associate Jessica Melson and Associate Kelsey Bowers attended this year’s Colorado Defense Lawyers’ Association (CDLA) annual conference. This year the conference was held in beautiful Santa Fe, NM, where the focus was on various nuisances in defending claims across Colorado. The conference was well attended by the CDLA members and offered a variety of presentations by various judges.

 

Of Counsel Frank Cavanaugh, as a Vice Chair of the workers’ compensation section of the CDLA, arranged for speakers for the 2017 conference. When one speaker could not attend, Frank became a speaker as well. He and Ron Nemirow, Esq. spoke on the complicated relationship a workers’ compensation attorney has in representing both the carrier and employer, given potentially conflicting positions of both entities.

 

 


Victory Lap

Of Counsel M. Frances McCracken was successful in defending Claimant’s attempt to impose penalties against Respondents for failure to timely pay PPD benefits in Valencour v. Best Buy, W.C. 4-936-414. Claimant sought penalties against Respondents for their failure to pay PPD benefits in full following a DIME which increased his permanent impairment rating. Respondents filed an Amended FAL admitting to the DIME rating, but erroneously believed that they had paid Claimant’s PPD benefits in full. However, through an accounting error, Respondents still owed Claimant a portion of his PPD benefits that were admitted for in the Amended FAL. Claimant filed for penalties against Respondents under C.R.S. § 8-43-304(1) and (2). At hearing, the ALJ found that while Respondents failed to properly pay Claimant his PPD benefits following the DIME, it was not willful. Further, the ALJ found that Claimant failed to plead his penalties with specificity. In turn, the ALJ dismissed and denied Claimant’s claim for penalties.

 

Of Counsel John M. Abraham successfully defended Claimant’s attempt to overcome the DIME and successfully terminated Claimant’s admitted maintenance medical benefits in Stotler v. Walmart Stores Incorporated, W.C. 4-974-840. The DIME physician assigned Claimant a 6% scheduled upper extremity impairment rating. At hearing, Claimant alleged she was not at MMI, alleged that her left shoulder was also injured due to overuse and overcompensation, and sought an additional 10% impairment in the right shoulder because she underwent a resection of the bone during shoulder surgery. The ALJ credited the testimony of Respondents’ medical expert who testified that: Claimant was at MMI for her injuries, the DIME physician did not err in his causation opinions regarding the left shoulder, and that Claimant was not entitled to an additional impairment for a distal clavicle resection because Claimant had undergone an acromioplasty. The expert explained that an acromioplasty is a minor shaving of the bone which is different from a resection of the bone. Further, the expert testified that it is not mandatory to assign a 10% impairment for a resection of the bone and that it is at the discretion of the physician assigning impairment. Additionally, the ALJ permitted Respondents to terminate Claimant’s maintenance medical benefits based on the ATP’s and Respondents’ experts’ opinions that maintenance medical benefits were not reasonable, necessary or related.

 

Of Counsel John M. Abraham also successfully withdrew a General Admission of Liability (GAL) and obtained a full dismissal of Claimant’s ongoing workers’ compensation benefits for a previously admitted cumulative trauma injury in Covarrubias v. Dave & Buster’s Incorporated, W.C. 5-025-695. Claimant alleged a cumulative trauma injury to her right upper extremity that she attributed to her work-related duties as cleaner, most notably scooping ice. Claimant’s ATP ordered a Physical Demands Analysis and Risk Factor Assessment. An IME was conducted at the request of Respondents which confirmed that the Claimant’s job duties did not meet the threshold requirements for any primary or secondary risk factors under the revised Cumulative Trauma Disorder Guidelines pursuant to Rule 17. The ALJ credited Respondents’ medical expert finding Claimant performed several different activities throughout the day and that many of the activities did not meet the minimal force or time duration requirements. As a result, Respondents were permitted to withdraw the GAL and Claimant’s claim for workers’ compensation benefits was denied and dismissed.

 


     

 

 

 

SETTLEMENTS POST ENGLAND

The Colorado Supreme Court issued an opinion on May 30, 2017 in England v. Amerigas Propane, 395 P.3d 766 (Colo. 2017). This case involved settlement of workers’ compensation matters and may even affect settlement of liability matters in a personal injury case. The case has significant ramifications for employers and carriers moving forward. Click here to continue reading this article.

 


Cases You Should Know

No Immunity for You: In Am. Family Mut. Ins. Co. v. Ashour, the Court of Appeals held that a Claimant could recover underinsured motorist (UIM) benefits from his personal auto insurance policy in addition to WC benefits in cases where the incident was the result of a co-worker’s negligence. (May 18, 2017, Colo. Ct. App.). In this case, Claimant was severely injured in a truck accident caused by a co-worker. The employer paid benefits under the admitted WC claim, but Claimant could not recover from the at-fault co-worker for his remaining damages because the WC Act was his sole remedy. Thus, Claimant filed a claim with his personal auto insurance policy to recover the remainder of his damages from his UIM benefit coverage. The auto insurance carrier denied the claim and argued that Claimant could not recover UIM benefits because he was not “legally entitled to recover” damages from the at-fault co-worker because of the immunity. The Court disagreed and held that the immunity given to employers and co-workers under the WC Act does NOT bar an injured employee from recovering damages from his personal insurer. The Court reasoned that Claimant was entitled to recover from the co-worker under the terms of his personal auto policy. The fact that the co-worker was ultimately immune from suit under the WC Act did not impact the decision because the policies behind the WC Act and the UIM coverage were not in conflict and Claimant was not trying to recover additional damages from the immune co-worker.

Moral of the story: While employers and co-workers have immunity under the WC Act, the immunity will not protect automobile insurance carriers from having to pay UIM benefits to claimants who have UIM coverage policies and are injured as a result of the negligence of their employer or co-workers.

 

The No-Mans’ Land of Medical Only Claims: In Trujillo v. Elwood Staffing and Zurich Am. Ins. Co., ICAO dealt with the question of when a medical-only claim can close and what impact a DIME opinion has on this type of claim. (W.C. 4-957-118, ICAO June 22, 2017). Here, Respondents filed a FAL admitting for no lost time and no permanent impairment based on a follow-up DIME report. Claimant pursued a hearing where the ALJ found that he failed to overcome the DIME opinion. On appeal, ICAO reiterated their previous holding that the DIME’s determination of MMI has no statutory significance with injuries that do not result in the loss of more than 3 days of work or permanent disability. Because the DIME opinion on MMI had no impact, ICAO held that (1) Claimant’s claim was not closed, (2) the FAL was premature, and (3) the FAL did not preclude the Claimant from requesting further medical benefits. ICAO held that Claimant would need to prove the reasonableness, necessity and relatedness of any disputed medical benefit in the future, but would not have to prove a worsening of condition to formally reopen the claim in order to get the medical treatment.

Moral of the story: Do not file a GAL unless you are required to because of (1) a loss of more than three days of work, (2) anticipated permanent impairment, or (3) the Division is demanding a position because a claim for compensation was filed. We anticipate that the Colorado legislature will resolve some of these issues soon.

 

Medical v. Financial Services: In Nanez v. Mechanical & Piping, Inc. and Pinnacol Assurance, ICAO held that conservator and guardian services for a Claimant with a brain injury were not compensable under the WC Act because they were not medical in nature and did not enable access to medical services. (W.C. 4-922-618, ICAO June 16, 2017). Claimant sustained a traumatic brain injury, which impacted his short-term memory. The Colorado District Court appointed a conservator and guardian to monitor Claimant’s finances and protect his personal property. Both charged hourly fees to Claimant’s estate. Claimant filed an Application for Hearing requesting that Respondents pay for these services because the injury caused his need for the services. ICAO agreed with the ALJ that the conservator and guardian services were not medical in nature and not compensable expenses. ICAO also agreed with the ALJ that the ALJ did not have authority to authorize these services based solely on the appointment by the District Court. However, ICAO indicated that Claimant would be able to ask the ALJ to approve specified services that could be classified as medical treatment and have Respondents reimburse his estate for the cost of those specific compensable services.

Moral of the story: If the requested services are not medical or enable the access to medical care, the services are not likely compensable under the WC Act and should be denied.

 

Volunteers truly work for “nothing”: In Lewis v.Wellbridge/Starmark Holding and XL Specialty Insurance Company, W.C. N0. 5-006-772 (June 12, 2017), Respondents appealed an Order from the ALJ that found Claimant’s injury compensable because he was an employee and not a volunteer. Claimant contracted with the Employer to run demonstration basketball clinics initially as a volunteer. The contract stated that after the demonstration clinics were completed, Claimant would be paid on a commission basis for any future clinics. Respondents argued that Claimant was a volunteer on the date of injury because he was not paid for the demonstration clinic on the date of injury and therefore, not entitled to workers’ compensation benefits. The ALJ disagreed and ICAO affirmed, finding that a volunteer was a person who gives his services without any express or implied promise of payment.

Moral of the story: If you promise to pay someone wages as an employee, you better have workers’ compensation insurance.

 

Define incidental . . . : In Schwartz v. Dillion Companies, W.C. No. 3-989-875 (June 5, 2017), Claimant sought review of an ALJ’s Order which denied Respondents’ liability to pay for household chores performed by Claimant’s son. Claimant contended performing household chores would increase her pain. ICAO explained that the law required an ALJ to find either that Claimant’s son’s assistance was ‘incidental’ insofar as it allowed Claimant to access medical care, or that his help not related to accessing medical care was only a small portion of his total assistance. ICAO stated a prior ICAO decision held housekeeping services allowing a claimant to avoid activity that would aggravate pain could be denominated ‘medical’ for that reason; however, the Court of Appeals reversed the decision. ICAO reviewed the type and amount of services provided in this claim and found no reason to disturb the ALJ’s decision.

Moral of the story: Performance of household chores must be incidental to medical treatment to be compensable. Courts have interpreted incidental to mean allowing a claimant to access medical care or as quantifying the amount of household chores as small in comparison to total assistance rendered.

 

Don’t dismiss the “Impairment Rating Tips” as a paper tiger: In Kromer v. State of Colorado, W.C. No. 4-965-485 (July 6, 2017), Claimant appealed an ALJ’s Order which credited a physician’s opinion on impairment rating for the knee which included a reduction in the rating for range of motion loss in the contralateral knee. Claimant argued there was no basis in statute or rule to allow reduction for ROM loss based on ROM loss in the contralateral knee. ICAO noted the Division of Workers’ Compensation “Impairment Rating Tips” provide that when deemed appropriate, a physician may subtract contralateral joint ROM impairment from the injured joint’s ROM impairment. ICAO affirmed the ALJ’s Order, citing case law which provides that the “Impairment Rating Tips” are not part of the AMA Guides but may be relevant to the impairment rating. Therefore, a physician’s application of the tips goes to the weight an ALJ gives to an impairment rating.

Moral of the story: While the “Impairment Rating Tips” do not hold the force of statute or rule, ICAO extends deference to DOWC’s interpretation of the AMA Guides as set forth in the “Impairment Rating Tips.”

 

Everybody hurts sometimes but it does not necessarily rise to the level of a compensable mental impairment claim: In Ashton v. City and County of Denver, W.C. No. 5-010-884 (June 8, 2017), Claimant appealed an ALJ’s Order denying and dismissing his claim for mental impairment benefits and raised numerous allegations of error. ICAO rejected all of Claimant’s allegations. In pertinent part, ICAO explained that a claim for mental impairment is governed by § 8-41-301(2), C.R.S, which provides that a claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. ICAO referenced case law which explained that the statute on mental impairment seeks to limit recovery to those permanent mental impairments that have a disabling effect on the sufferer.

Moral of the story: When an injury is the result of an emotional stimulus that results in mental impairment, a heightened standard of proof is required to prevent frivolous claims.