legaLKonnection Firm Newsletter – March 2017
Please follow Lee + Kinder LLC on LinkedIn
Member Tiffany Scully Kinder and Associate Kelsey Bowers successfully persuaded the Colorado Court of Appeals to uphold the Order from the Industrial Claims Appeals Office (ICAO) in Josue v. ICAO, Anheuser-Busch, Inc, et al. Ms. Kinder provided a convincing oral argument in front of the Court of Appeals to defeat Claimant’s attempt to overcome the Order that granted an overpayment of more than $16,000 to Respondents for Temporary Total Disability (TTD) benefits paid as the result of an unauthorized procedure. The Court of Appeals found that the Workers’ Compensation Act allows an employer to recoup benefits paid to a Claimant who was not entitled to receive the benefits. It indicated that TTD benefits paid to a Claimant resulting from an unauthorized procedure may be recouped by the employer even if the benefits were paid under a valid admission. The Court concluded that requiring the Claimant to repay these benefits did not violate public policy or the beneficent purpose of the Workers’ Compensation Act.
Member Joseph Gren had several recent wins at hearing. In Gutierrez v. Evraz Inc., et al., Mr. Gren successfully defended against Claimant’s allegation that he sustained a ratable hearing loss as a proximate consequence of an industrial explosion. Claimant was placed at maximum medical improvement (MMI), and later underwent a Division Independent Medical Examination (DIME). Among other findings, the DIME determined that Claimant did not suffer a ratable hearing impairment. Claimant later retained another physician to perform a records review, who opined that the DIME had erred in not including a rating for Claimant’s alleged hearing loss. Mr. Gren presented testimony from Respondents’ IME physician, who concluded that Claimant’s hearing loss was not causally related to the industrial accident. Based on the evidence noted above, the ALJ concluded that Claimant failed to overcome the DIME opinion on no impairment.
In Simmons v. United Parcel Service, et al., Mr. Gren prevailed in a full contest win for two separate but consolidated claims for compensation brought by Claimant for alleged left shoulder and right knee injuries. The ALJ found that Claimant’s representations, regarding her report of the injuries to the Employer, were not credible. The ALJ further found that the reported claims and complaints were not consistent with the medical evidence. The ALJ found Respondents’ expert testified credibly that the Claimant had no acute injuries or aggravations. The ALJ denied and dismissed both claims.
In Bullock v. United Parcel Service, et al., Mr. Gren prevailed in overcoming the DIME physician’s opinion as to the Claimant’s permanent impairment. Claimant was placed at MMI and provided with no impairment. Claimant later underwent a DIME with Dr. Bloch, who opined Claimant had an 18% whole person impairment rating. Mr. Gren presented testimony from Respondents’ IME physician, who credibly testified that Claimant was never diagnosed with a disc or soft tissue lesion which is required for a Table 53 rating. Mr. Gren also pressed the DIME physician on his range of motion testing. The ALJ found DIME Dr. Bloch’s testimony was not credible. The ALJ concluded that Respondents presented evidence that it was highly probable and free from serious or substantial doubt that the DIME erred in calculating an impairment rating and that the Claimant did not qualify for an impairment rating under Table 53. With no Table 53 rating, the ALJ found that Claimant did not qualify for a range of motion impairment rating for the lumbar spine and concluded that the proper impairment rating was 0%.
Of Counsel M. Frances McCracken successfully defeated Claimant’s request for benefits in Torres v. Walmart Stores, Inc., et al. Claimant alleged that he sustained a left knee injury when he stood up from a kneeling position and heard a “pop.” Claimant was diagnosed with a staph infection and prepatellar bursitis. Respondents’ expert, Dr. Bernton, opined that the staph infection was not directly related to Claimant’s work and Claimant suffered a minor knee strain that would have resolved on its own within a month without restrictions. The ALJ found Dr. Bernton’s opinions and testimony persuasive and determined that the Claimant failed to establish that his underlying infection was related to the minor knee strain. Claimant’s claim for benefits was denied and dismissed.
COLORADO UNINSURED EMPLOYERS AND A POSSIBLE NEW FUND
There has been growing governmental concern in the State of Colorado over uninsured employers. Changes to the Worker’s Compensation Act in 2005 created stiffer fines for employers who fail to comply with mandated coverage for workers’ compensation benefits. Colo. Rev. Stat. § 8-43-409 governs the procedures for non-compliant employers Proposed House Bill 17-1119 attempts to address payment for injured workers who do not have coverage through their non-compliant employer. HB 17-1119 is currently a proposed Bill, but is likely to be approved later this year. Click here to continue reading this article.
Cases You Should Know
I’ll take “Credibility” for $200, Alex. In Hayes v. Pae Holding Corporation, W.C. No. 4-978-794-02 (January 25, 2017), the Claimant sought review of an ALJ’s Order denying and dismissing her claim for an alleged right shoulder injury. The ALJ determined Respondents’ expert’s testimony was persuasive. Dr. Klajnbart testified Claimant’s right shoulder injury was due to her preexisting rheumatoid arthritis and systemic lupus. On appeal, Claimant argued that the ALJ erred by ignoring substantial evidence that supported her claim for a compensable injury, specifically that the ALJ had ignored Claimant’s expert’s opinions. ICAO explained that an ALJ’s determination of causation must be upheld if it is supported by substantial evidence. ICAO must defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. ICAO determined that the ALJ’s decision was supported by substantial evidence and the ALJ’s Order was affirmed. Moral of the Story: ICAO will defer to the ALJ’s determination of credibility of expert witnesses.
Newsflash! The Medical Treatment Guidelines are just…guidelines. In Andregg v. Arch Coal, Inc., W.C. No. 4-629-269-07 (January 24, 2017), the Respondents sought review of an ALJ’s Order finding Respondents liable for maintenance medical benefits including an ongoing prescription for Tramadol. The ALJ found that though the Claimant admitted to prior opioid dependence, the Claimant was able to function with the use of Tramadol. Respondents argued that the Medical Treatment Guidelines do not recommend the use of Tramadol for patients with opioid addiction issues. ICAO noted that while the Guidelines are accepted professional standards under the Workers’ Compensation Act, they are not definitive and an ALJ is not required to utilize the Guidelines as the sole basis for determining whether medical treatment is reasonable and necessary. ICAO did not perceive any error and the ALJs Order was affirmed. Moral of the Story: The Medical Treatment Guidelines are only guidelines and are not definitive of treatment that should be authorized or denied.
“The trick is to stop thinking of it as ‘your’ money.” – quote from an IRS auditor. In Smith v. NPC International, W.C. No. 4-933-753 (January 24, 2017), both parties sought review of an Order of the Director that reduced Respondents’ subrogation lien. Claimant moved for summary judgment, requesting Respondents’ subrogation lien be reduced by 35% to account for his attorney fees and Respondents’ alleged violation of C.R.S. § 8-41-203(4)(e). The Director reduced Respondents’ subrogation lien by 20% as reasonable attorney fees and denied Claimant’s request for further reduction based on violation of C.R.S. § 8-41-203(4)(e). The Director found that Claimant did not provide evidence to support a 35% reduction in the subrogation lien for reasonable attorney fees; thus, the Director only reduced the subrogation lien by 20%. ICAO determined that summary judgment was not appropriate as there were still outstanding disputed issues of material fact because of the limited evidence provided by both parties. Thus, ICAO set aside the Director’s Order and remanded the case for hearing. Moral of the Story: Summary judgment is a drastic remedy and is not warranted unless there are no disputes of material fact.
TTD and TPD working together in harmony. In Montoya v. Ethan Allen Retail, W.C. N0. 4-974-821 (February 2, 2017), ICAO reversed an award of TPD benefits. Claimant was released to full-duty the day after her injury, but Respondents began paying TPD benefits. At hearing, the ALJ found Claimant was disabled and upheld the TPD award. On appeal ICAO reversed, holding that a claimant’s physical ability to perform regular employment was sufficient to terminate a claimant’s “disability” for the purposes of TTD and TPD benefits. Moral of the story: A release to full-duty by an ATP is sufficient to terminate a claimant’s “disability” with regards to both TTD and TPD benefits.
You burrito believe you should get the ATP’s opinion on MMI in writing. In Turner v. Chipotle, W.C. 4-983-631 (January 31, 2017), Claimant moved to strike the 24-Month DIME based on Respondents’ failure to request the ATP’s written opinion on MMI prior to initiating the 24-Month DIME process. ICAO held that the 24-Month DIME was valid, reasoning that Respondents’ 24-Month DIME Application satisfied their initial burden of proving compliance with the requirements of the 24-Month DIME. The Respondents’ 24-Month DIME Application shifted the burden to Claimant to prove noncompliance. Claimant failed to provide any evidence of noncompliance and ICAO allowed the DIME to stand. Moral of the story: Avoid unnecessary litigation and request the ATP’s opinion on MMI in writing prior to initiating the 24-Month DIME process.
No impairment? No settlement award? No apportionment! In Kellebrew v. Rifle DSC, W.C. No. 4-964-409 (February 6, 2017), Claimant received an 18% apportioned whole person impairment from the ATP. Claimant challenged the rating, arguing apportionment should not apply because he did not receive a previous impairment award or settlement for his prior work-related injury. The ALJ agreed and awarded an unapportioned 26% impairment. On appeal, ICAO reversed and remanded. ICAO held that the apportionment statute did not apply, and that causation of the impairment was the issue for determination. Thus, Claimant needed to first proceed to the DIME before he could challenge the rating at hearing. Moral of the story: Causation, as it relates to impairments, must first be addressed by the ATP and then a DIME physician before an ALJ has jurisdiction over the matter.
International Shoe Lives! That Con Law class in law school finally came in handy. In Youngquist v. Miner, the Supreme Court held that Colorado did not have personal jurisdiction over an out-of-state employer who hired a Colorado resident. Claimant applied for an online job with Employer, and was interviewed and hired by telephone while residing in Colorado. Within two days of leaving Colorado for his new job, Claimant was injured. The ALJ held that because Claimant had been hired in Colorado and was injured within six months of leaving the State, Colorado had jurisdiction pursuant to statute. The ALJ also imposed a penalty against the Employer for failing to carry workers’ compensation insurance in Colorado. ICAO affirmed the ALJ’s Order, as did the Court of Appeals. The Supreme Court reversed. The Supreme Court noted that it was simply “random and fortuitous” that the Employer contacted Claimant while he was in Colorado. Moreover, the Employer did not specifically recruit Colorado residents, did not physically send a representative to Colorado, nor did the Employer have a physical business location in Colorado. As such, the Court concluded the Employer did not have sufficient minimum contacts with Colorado for the state to exercise personal jurisdiction over the Employer. Moral of the story: The mere fact that a Claimant was hired in the State of Colorado and is injured within 6 months of leaving is not a sufficient analysis to determine whether Colorado workers’ compensation law applies to an out of state injury.
Once more unto the breach, dear friends, once more. – Shakespeare. ICAO (again) reaffirmed the state of the law regarding maintenance medical benefits in Willis v. Qwest Corporation d/b/a CenturyLink, W.C. No. 4-141-210-04 (January 20, 2017). ICAO noted that in all cases where the Court orders a general award of maintenance medical benefits, Respondents are entitled to contest the reasonableness, necessity and relatedness of specific medical care. ICAO specifically noted that the ALJ’s Order, which stated, “including to but not limited to” in naming specific medications that were being contested by Respondents, was consistent with a prior general award of medical benefits. ICAO agreed that the ALJ was in her discretion to determine which individual medications the Claimant had proven were reasonable, necessary and related, based on the evidence presented. Moral of the Story: Claimant is entitled to a general award of maintenance medical benefits, but it remains the Claimant’s burden to prove reasonableness, necessity and relatedness of a specific medical benefit contested by Respondents.
The testimony of one eyewitness is worth more than the hearsay of a hundred. – Sicilian proverb. In an interesting case involving hearsay evidence, Respondents sought review of an Order denying the request for a 50% reduction in Claimant’s benefits for violation of a Safety Rule. In Goddard v. Qwest Corporation d/b/a CenturyLink, W.C. No. 4-919-196-02 (January 26, 2017), Claimant sustained injuries after falling out of an aerial lift. The ALJ found that Claimant’s failure to wear a safety harness and lanyard while operating an aerial lift in a bucket truck did not constitute a willful violation of a safety rule. In reaching this decision, the ALJ excluded testimony of a witness. The witness testified that after the fall, the Claimant informed him that he had to retrieve his harness from the truck and then return to the site of the accident. Generally, this type of testimony from the witness would be considered hearsay; however, Respondents argued the Claimant’s statement to the witness should have been admitted as an “excited utterance” exception to the hearsay rule. On review, ICAO held that it is within the ALJ’s discretion to determine whether a statement is admissible under an exception to the hearsay rule and that there was no error made when the judge sustained Claimant’s hearsay objection. Moral of the Story: The “willful” intent element of the Safety Rule Violation reduction is often difficult to prove and an ALJ has discretion in determining which evidence will be admissible in doing so, including determining applicable exceptions to the hearsay rule.
“Your Honor what I meant to state was…” In Wang v. August Moon Asian Grill, W.C. No. 4-885-554-07 (January 17, 2017), Claimant asserted respiratory problems due to exposure to smoke in the employer restaurant. A dispute arose over Claimant’s date of MMI because the DIME found that Claimant’s asserted injuries were not work related and provided no impairment rating. The ATP had previously placed Claimant at MMI and assigned an impairment rating. In his closing argument for hearing, Claimant stated he was not challenging the treating physician’s finding of MMI. The ALJ found that Claimant’s claim was compensable, denied Respondents’ request for a withdrawal of their admission of liability, and awarded medical benefits to cure and relieve the effects of Claimant’s injury as Claimant was not at MMI. Respondents solely appealed the determination that Claimant was not at MMI. ICAO noted that a dispute over the MMI date is distinct from whether Claimant is at MMI. Further, Claimant had made a judicial admission that Claimant was at MMI in his closing argument. Therefore, ICAO determined that the issue of MMI was not before them for review. In their findings, they noted that parties were permitted to exclude an issue, in this case MMI, from being heard by an ALJ. The panel affirmed the Order, but set aside the portion that Claimant was not at MMI, remanding to the ALJ to determine the date of MMI because MMI had already been determined based on judicial admission. Moral of the Story: Choose your words carefully, judicial admissions may exclude issues for determination.