legaLKonnection Firm Newsletter – May 2017

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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.

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In the News

Broadmoor-daytime-300x130The Southern Association of Workers’ Compensation Administrators (SAWCA) held the 2017 Colorado Workers’ Compensation Educational Conference hosted by Director Paul Tauriello and the Colorado Division of Workers’ Compensation at the Broadmoor in Colorado Springs April 17 – 19th.Lee + Kinder LLC was proud to be a sponsor and one of 43 exhibitors at this educational experience, not held in Colorado since 2014. Five of our legal eagles – Tiffany Kinder, Joseph Gren, Sheila Toborg, Kelsey Bowers and Matt Boatwright – were among the over 300 attendees who contributed to the success of this event which included a silent auction for The Pinnacol Foundation, providing educational opportunities for children of injured workers.


 

Lee + Kinder, LLC was pleased to welcome The Honorable John Sandberg to our offices in April for an all-day settlement blitz on behalf of one of our clients. ALJ Sandberg was appointed as a Prehearing Administrative Law Judge in June of 2015 after practicing in Chicago for 14 years in the areas of employer’s liability, subrogation and workers’ compensation defense, then moving to Colorado in 1998 when he focused primarily on workers’ compensation law. Most recently, ALJ Sandberg was honored as Outstanding DOWC/OAC Representative by the Professionals in Workers’ Compensation, Colorado. We are very happy to have had the opportunity to host the very knowledgeable and respected Judge Sandberg in this highly successful endeavor in which he brought together opposing sides in multiple disputes to reach mutually acceptable terms and come to a settlement agreement. It was a win-win situation for all who participated.

 


 

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The Professionals in Workers’ Compensation, Colorado held their 14th Annual Awards Banquet on May 12th at the Doubletree, Stapleton North. Lee + Kinder, LLC was happy to be present as Hospitality Sponsor. In attendance for the evening’s events, which included recognition of outstanding contributions in the workers’ compensation industry to multiple recipients and scholarship presentations, was the Firm’s Managing Member Katherine Lee, Partner Tiffany Scully Kinder and Of Counsel representatives Frank Cavanaugh and John Abraham.

 


Victory Lap

Fran-newsOf Counsel M. Frances McCracken successfully contested additional requested medical treatment as maintenance care for an ongoing lumbar spine injury in Mascotti v. Walmart Stores, Inc. and American Home Insurance, W.C. 4-478-187. Claimant suffered a low back injury in 2000 and had been at MMI since 2004 with authorized, reasonable, necessary and related maintenance medical care. The authorized treating physician requested additional physical therapy, a repeat MRI study, dry needling, and repeat medial branch blocks. Respondents’ medical expert argued that the medical evidence not only showed that the requested treatment was unlikely to improve or maintain Claimant’s condition, but that the treatment was also unrelated to the work injury and instead attributable to a longstanding independent condition. The ALJ agreed and found Respondents’ expert credible. Claimant also contended that, aside from being reasonable, necessary and related, the therapy and dry needling should be authorized for an alleged failure by Respondents to comply with W.C.R.P. 16. The ALJ found instead that the authorized treating physician had not complied with W.C.R.P. 16 in submitting an incomplete request for prior authorization. All requests for the additional treatment at issue were denied and dismissed.

 

In a second win for Ms. McCracken, the ALJ denied a Petition to Reopen and a claim for compensability of an alleged new injury upon remand to the ALJ from a previous decision by ICAO, in Jaterka v. Johnson & Johnson, W.C. 4-984-216. The ICAO decision is addressed in case summaries below. Claimant failed to timely object to Respondents’ FAL and her subsequent Petition to Reopen the claim for an award of medical benefits, temporary disability benefits and permanent partial disability benefits was dismissed by the ALJ for lack of jurisdiction. ICAO set aside the Order, holding that the ALJ did have jurisdiction to hear the issues in dispute, and remanded to the ALJ for further determination. The ALJ addressed the issues in dispute on the merits and denied and dismissed all claims for additional workers’ compensation benefits.

 

mbb-news_115x125Associate Matt Boatwright successfully defeated claims for medical and temporary disability benefits in Ouellette v. United Parcel Service and Liberty Mutual Insurance, W.C. 5-006-922. Claimant slipped and fell on ice in the company parking lot after her shift and alleged a work-related injury. Claimant alluded a multitude of symptoms that caused ongoing disability and an inability to work. Claimant was also involved in two subsequent motor vehicle accidents. Respondents’ medical expert opined that the fall would have caused only a contusion, which would have resolved independently without treatment or significant disability, and that any ongoing symptoms would more likely than not be related to the car accidents. Claimant’s medical expert testified that her ongoing symptoms were consistent with the mechanism of injury and required additional diagnostics and treatment. The ALJ credited the opinion of Respondents’ expert over Claimant’s expert and found that, while there was a compensable injury, there was no resultant disability that required further treatment or wage loss benefits.

 

Mr. Boatwright also successfully secured an Order denying a claim for temporary total disability benefits on the bases of the affirmative defenses of late report of injury and termination for cause in Bennett v. Pepsi Beverages Company and ACE American Insurance, W.C. No. 4-992-112. Claimant sustained a compensable injury to his right elbow while at work. Claimant was off work after the injury and alleged temporary disability benefits were owed due to alleged work-related wage loss. The ALJ found that Respondents’ employer witnesses testified credibly that the Claimant did not properly or timely report a work-related injury to his supervisor per company policy and per requirement of the Act. The ALJ found that after Claimant did report a work-related injury to the insurer, he was terminated for cause for noncompliance with company policy and reasons unrelated to the work injury. The ALJ denied and dismissed Claimant’s claim for temporary disability benefits during the periods of non-compliance with the Act and for wage loss not related to the work injury.

 

In a third win for Mr. Boatwright, Respondents successfully defended against Claimant’s attempt to convert his scheduled impairment rating of the upper extremity to a whole person impairment rating in Penman-Keever v. United Parcel Service and Liberty Mutual Insurance, W.C. No. 5-000-253. Claimant suffered a work-related injury from lifting and subsequently underwent labral repair. Claimant underwent a DIME, wherein the DIME physician found that the labral injuries were unlikely to be causally related, but did give a rating for loss of strength in the arm due to a cervical component. The Claimant’s expert testified that the labral injuries were related and resulted in functional impairment, whereas the Respondents’ expert agreed with the DIME physician that the mechanism of injury was insufficient to have caused the labral injuries. Respondents’ expert further testified that, despite the rating of the cervical component, there was no functional deficit in the neck itself. The ALJ found Respondents’ expert to be persuasive and denied the Claimant’s attempt to convert his admitted scheduled rating to a whole person rating.

 

DM-news_115x125In Rasmussen v. Manpower Group U.S., Inc., Associate Daniel Mowrey successfully dismissed Claimant’s claim for workers’ compensation. The claim was scheduled to proceed on a full contest hearing. Respondents filed a Motion to Dismiss due to Claimant’s failure to participate in discovery. Respondents persuasively argued that Claimant willfully refused to participate in discovery without any mitigating factors. The ALJ opined that dismissal should be imposed only in extreme circumstances. The ALJ credited Respondents’ arguments that the claim warranted dismissal. The ALJ Ordered that Claimant’s Request for Hearing filed on January 25, 2017 was dismissed. As a result of the dismissal, the ALJ further Ordered that the Notice of Claim Status, dated October 26, 2016, denying the claim was final.


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AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised: What Are You Doing Colorado?
One of the questions I hear frequently about the Colorado workers’ compensation system from risk managers, insurance adjusters, and even some medical professionals is: “Why does Colorado still use the AMA Guides Third Edition, Revised, when calculating impairment?” In other words, why do Division Level II accredited physicians providing impairment ratings to injured workers use the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (December 1990)? As of 2002, Colorado was, and still is, the only jurisdiction to use the Third Edition in the workers’ compensation system.
Click here to continue reading this article.

 


 

Cases You Should Know

I love rules and I love following them, unless that rule is stupid: In Cordova v. Walmart Stores, Inc., W.C. No. 4-926-520 (March 14, 2017), the ICAO addressed the application and weight of the Medical Treatment Guidelines (MTG) in consideration of determination of whether a request for prior authorization for treatment was reasonable, necessary and related. Claimant had a work-related lumbar injury for which he requested surgery. Claimant also had a diagnosis of cancer in the lumbar spine. Respondents denied the request for surgery for multiple reasons, including Claimant’s alleged inability to identify the work-related condition as the pain generator and on the assertion that Claimant could not justify surgery under the MTG because he could not demonstrate that this would improve function or relieve pain. The ALJ agreed with Claimant’s expert opinion that the surgery would both improve function and relieve pain. Upon appeal, ICAO upheld the ALJ’s Order, finding that W.C.R.P. 17 acknowledges that reasonable medical care may include deviations from the MTG in individual cases and that an ALJ is statutorily identified as the arbiter of such disputes over medical care. See Section 8-43-201(3), C.R.S.

Moral of the Story: In disputes over reasonable, necessary and related medical treatment outside of the MTG, an ALJ may consider the MTG, but is ultimately not bound by these criteria.

 

Speak now (in response to a FAL), or forever hold your peace: In Heib v. Devereuax Cleo Wallace and Zurich American Insurance, W.C. No. 4-626-898 (March 15, 2017), the ICAO upheld the ALJ’s Order holding that the issue of AWW was administratively closed pursuant to the Claimant’s failure to object to a FAL within the requisite time period. Respondents filed both a FAL and a subsequent Amended FAL after Claimant was placed at MMI. Claimant did not endorse AWW in response to her objection to either the initial FAL or the Amended FAL, instead endorsing the issue later in a Response to Respondents’ Application for Hearing on a separate matter. Citing Section 8-43-203(2)(b)(II), C.R.S., which requires that disputed issues be endorsed in an Application for Hearing within 30 days of the filing of a FAL, the ALJ found that AWW was closed by operation of statute and denied and dismissed the issue. Upon appeal, Claimant asserted the right to litigate AWW based upon case law that permitted hearing on the issue where there was also an issue of reopening. ICAO found the Claimant’s reliance on these cases was misplaced, as there was no reopening at issue in this claim and no mutual consent to litigate the issue.

Moral of the Story: Issues not endorsed by a Claimant in an Application for Hearing filed within the requisite 30 days from a FAL are closed administratively and can only be reopened on the basis of fraud, overpayment, error, mistake or a change of condition.

 

Reality is contradictory. And it’s paradoxical: The ICAO upheld an ALJ’s Order finding that Respondent failed to meet its burden to overcome the DIME where the ALJ declined to apply issue preclusion on an asserted conflict between the ALJ’s Order and a previous hearing Order in Holcombe v. Fedex Corp., W.C. No. 4-824-259 (March 24, 2017). The first ALJ found that Claimant failed to meet his burden in proving by a preponderance of the evidence that surgery requested for Claimant’s left elbow was reasonable and necessary. Claimant subsequently underwent a DIME, which determined that he was not at MMI because the surgery for the left elbow was reasonable and necessary. Respondent sought to overcome the DIME at a second hearing and the second ALJ found that Respondent had failed to meet its burden to overcome the DIME by clear and convincing evidence. On appeal, Respondent asserted that issue preclusion, which bars re-litigation of issues previously determined, should prevent the second ALJ from reaching a different outcome than the first. ICAO found that issue preclusion did not apply, as the issues were decided under differing burdens of proof. See Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006). ICAO found that because the burdens were different, issue preclusion did not apply. ICAO further found that, regardless, the issue was not identical because the Claimant’s condition had changed between the first and second hearings.

Moral of the story: An ALJ is not necessarily precluded from reconsidering medical benefits that were the subject of previous litigation where the burden of proof on the parties changes after a DIME or where the passage of time affects the Claimant’s condition.

 

Sometimes you don’t get closure. You just move on: In Jaterka v. Johnson & Johnson, W.C. No. 4-984-216 (March 22, 2017), ICAO set aside and remanded an Order of the ALJ, which concluded that he lacked jurisdiction, and therefore authority, to hear an issue of reopening brought by Claimant. Claimant did not object to Respondents’ FAL with either an Application for Hearing or DIME within the requisite 30 days. Claimant filed a Petition to Reopen her claim because she was not at MMI and because her claim for a shoulder injury was inappropriately denied. The ALJ found that, because Claimant had failed to timely object to the FAL, the claim was administratively closed and the ALJ lacked jurisdiction to address reopening. ICAO found that the ALJ misapplied the law in determining that he had no jurisdiction to address the issue of reopening. Pursuant to Section 8-43-303, C.R.S., any award may be reopened on the ground of error, mistake or change of condition, and the statutory authority of the court to reopen is broad. ICAO noted that it was bound by the Court of Appeals’ decision in Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005), and found that the ALJ erred by dismissing the issue rather than making findings pursuant to the issue of reopening. ICAO remanded for additional findings by the ALJ. Upon remand, however, the ALJ denied and dismissed Claimant’s request to reopen her claim and also denied her claim for a left shoulder rotator cuff injury.

Moral of the story: Even if a claimant does not timely object to a FAL, this does not prevent them from subsequently seeking to reopen a claim on the bases of fraud, error, mistake or change of condition, and an ALJ must make a determination whether the asserted grounds warrant reopening under the facts.

 

No free lunch for Claimants just because Respondents seek a DIME: In Mulgeta v. ISS Facility Services, Inc., W.C. No. 4-978-510-02 (March 8, 2017), a Claimant had an admitted low back injury. However, due to the Claimant’s diffuse and non-physiologic pain complaints, the ATP provided only a 5% impairment rating based on six months of medical documented pain at the time of MMI. The Respondents did not file a FAL, but instead sought a DIME. The Claimant sought penalties against the Respondents on the basis that the Respondents should have paid TTD or PPD while the DIME was pending, because the Claimant was no longer employed with the employer. The ALJ denied penalties partly on statute-of-limitations grounds, but noted that TTD need not be paid while the Respondents seek a DIME where the Claimant was not receiving TTD prior to being placed at MMI by the ATP. The ICAO agreed.

Moral of the story: When Respondents seek a DIME instead of filing a FAL, the Claimant is statutorily entitled to ongoing TTD if he was receiving TTD at the time of MMI.

 

Shopping for impairment ratings: In Newton v. True Value Co., W.C. No. 4-978-459-02 (April 4, 2017), one of the Claimant’s authorized treating physicians, Dr. Kawasaki, placed the Claimant at MMI on September 17, 2015 and provided a scheduled rating for the upper extremity. Shortly thereafter, another of the Claimant’s authorized treating physicians, Dr. Adams, placed the Claimant at MMI as of October 5, 2015, but provided a whole-person impairment based on a spinal cord injury. The Respondents filed a FAL admitting for the scheduled injury provided by Dr. Kawasaki but admitted for the MMI date based on Dr. Adams’ report. Both were attached to the FAL. The Claimant argued that the Respondents were obligated to admit Dr. Adams’ rating because they relied on her report for the admitted date of MMI. The ALJ and ICAO disagreed. ICAO held that the Respondents could choose among the MMI dates and impairment ratings provided by the several authorized treating physicians when filing their FAL.

Moral of the story: Where various ATPs have differing opinions regarding MMI and impairment rating, Respondents may pick and choose on which to admit.

 

Where the DIME physician is right, it does not matter how he got there: In Powell v. Aurora Public Schools, W.C. No. 4-974-718-03 (March 15, 2017), a Claimant suffered an admitted hip injury. The Claimant was placed at MMI by her ATP, and the DIME physician concurred, noting that the Claimant suffered only minor tenonosis and joint irritation. After the DIME, the Claimant underwent an MRI that showed a torn labrum of the hip. The Claimant sought to overcome the DIME with regard to MMI and sought additional treatment, arguing that the DIME physician’s opinion was in error because he did not know of the torn labrum that would later appear on the MRI. The ALJ relied on expert testimony to conclude that the Claimant failed to overcome the DIME regarding MMI because the DIME physician would have come to the same result anyway. Therefore, even though the DIME physician did not have all information available to him, the Claimant still failed to prove by clear and convincing evidence that the DIME physician came to the wrong result. ICAO affirmed.

Moral of the story: Even if the DIME physician did not have all information available, the DIME doctor’s opinion will not be overcome so long as the DIME doctor reached the correct result.

 

DIME’s opinion does not preclude maintenance disputes: In Walker v. Life Care Centers of America, W.C. No. 4-953-561-02 (March 30, 2017), a Claimant sought maintenance medical treatment for a surgical consultation for her neck. The Claimant had previously undergone a DIME that concluded that the Claimant had an impairment of the upper extremity but which did not provide an impairment for the neck. The Respondents filed a FAL admitting for the rating as well as maintenance medical benefits. When the Claimant sought a hearing on the reasonableness and relatedness of recommended surgical consultation for the neck, the Respondents argued claim preclusion on the basis that the relatedness of the neck was already decided by the quasi-judicial determination of the DIME physician. The ALJ rejected the argument and concluded that the DIME’s opinion did not have any preclusive effect, noting that a previous ALJ had, in fact, converted the Claimant’s scheduled rating to whole person. ICAO affirmed.

Moral of the story: The DIME physician’s opinion regarding relatedness of body parts does not preclude later litigation of whether specific maintenance medical benefits are related.