legaLKonnection Firm Newsletter – September 2016

Lee + Kinder LLC

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
PWC_GolfLee + Kinder LLC had a great showing at the 2016 Professionals in Workers’ Compensation golf tournament with 4 lawyers in attendance. Member Katherine Lee and Of Counsel Frank Cavanaugh played with different foursomes. Member Joseph Gren and Associate Matt Boatwright manned the Lee + Kinder sponsored golf hole number 17 wherein a lucky hole-in-one would win $10,000.00. Unfortunately, no one aced the hole, but a great time was had by all.


Victory Lap

FranNewsIn Manuel Ledoux v. Walmart, Of Counsel Fran McCracken, defeated Claimant’s assertion that he sustained a cumulative trauma injury to his right elbow and wrist through repetitive work activities. Ms. McCracken successfully persuaded the ALJ to place significant weight on the steps provided by the Medical Treatment Guidelines (MTG) to formulate causation for cumulative trauma conditions. The ALJ was not persuaded by Claimant’s expert, Dr. Rook, because he failed to explain how Claimant’s work activities fulfilled the criteria needed to develop a cumulative trauma disorder.


mbb-news_115x125Associate Matt Boatwright successfully won dismissal of a full contest claim in Henry Leal v. United Parcel Service and Liberty Mutual Insurance. Claimant alleged that he had suffered a low back injury from twisting while driving a work vehicle. Claimant later alleged a subsequent work-related aggravation and sought additional treatment. The ALJ found that the described mechanism of injury was not sufficiently work-related to find the claim compensable and, notwithstanding, that Claimant was not credible as a medical historian. The ALJ denied and dismissed the claim.


FranNewsOSHA Injury and Illness Reporting Requirements
The Occupational Safety and Health Administration (OSHA) requires many employers with ten or more employees to keep a record of serious work related injuries and illnesses (certain low risk industries are exempted). OSHA recently announced it is expanding its “Injury and Illness Record-keeping Rule” to encourage greater transparency of employer injury and illness data. Starting in 2017, the Rule will also require some employers to disclose occupational injury and illness information to OSHA electronically. Click here to continue reading this article


Workers’ Compensation Rules of Procedure Changes – Effective 9/14/16

extranews_red-webThe Division of Workers’ Compensation recently changed and revised several Rules. These changes became effective September 14, 2016. Employers and carriers participated in public comment, voicing concerns over this change since it will certainly create over-payments. Frank Cavanaugh of Lee + Kinder, LLC participated in these public comments on behalf of the Colorado Self-Insured Association.

Several changes are more substantive than others and track statutory amendments adopted by the legislature in the last session. For example, changes to Rule 5-5 regarding the filing of final admissions of liability will affect day-to-day claims handling. Rule 5-5 now requires the physician’s narrative report along with the M164 and measurement sheets be attached to the final admission of liability. In addition, this Rule now requires that the final admission of liability state a position on maintenance medical benefits, making specific reference to the medical report including the name of the physician and the date of the report. Failure to properly abide by these requirements may void a final admission of liability and potentially lead to imposition of penalties by the Director and/or audit issues. Rules 8-6 and 8-7 also track legislative changes over requests for a change of physician. An original treating physician’s role remains in place and does not terminate until there is an initial visit with the new physician . Further, a request for change of physician and a response to the request must now be on a specific form, WC197. Please also be aware that Rules 16 and 18 are undergoing changes and have not yet been finalized. We will apprise you of these additional changes once they occur. For a detailed review of all changes to the WCRP, please click on the link below.

Click here to read the changes to Rules 1-9

Cases You Should Know

Who said lawyers can’t do math? In Richard Hutchison v. Pine Country, Inc., W.C. No. 4-972-492 (July 29, 2016), ICAO upheld the ALJ’s Order that required Respondents to pay one third of the cost of medical and temporary disability benefits because Claimant’s knee arthritis and need for a total knee replacement was equally caused by three factors including genetics, age and weight, and work tasks. ICAO held that Section 8-42-104 (3), which states that medical and temporary disability benefits shall not be reduced based on a previous injury, did not apply because the occupational disease of osteoarthritis did not involve a “previous injury.” Instead, the disability was the aggravation of the arthritis, which was equally attributed to the three different factors.
Moral of the Story: In cases of occupational diseases, the employer’s liability for medical and indemnity benefits is limited to the extent the work activities acted on the occupational disease to create the disability.


A DIME called by any other name is still a DIME: In Sean F. Clark v. Mac-Make-Up Art Cosmetics, W.C. No. 4-858-859 (August 3, 2016), claimant sustained an industrial back injury on March 5, 2010. In a respondent IME, Dr. Pitizer opined the claimant was at MMI with a 10% whole person impairment rating. Afterwards, respondents sent the ATP a letter asking whether the claimant was at MMI. The ATP did not respond, and respondents filed an application for a 24-Month DIME. At the DIME, Dr. Hattem noted the ATP placed the claimant at MMI on January 28, 2014, with a 34% whole person rating. Dr. Hattem agreed with the ATP’s date of MMI, but provided claimant with a 15% impairment rating. Claimant requested a hearing to strike the DIME report as the ATP, unknown to either party, had placed claimant at MMI before the 24-Month DIME was requested. The parties stipulated that neither party received a copy of the ATP’s MMI report before the 24-Month DIME. The ALJ determined respondents complied with the 24-Month DIME requirements set forth section 8-42-107(8)(b)(II) of requesting the ATP’s opinion whether the claimant was at MMI, and another physician opining the claimant was at MMI. Therefore, the ATP’s failure to timely disclose their report that the claimant reached MMI did not serve to frustrate the DIME process. Claimant appealed. ICAO affirmed. Of importance, the Panel clarified that 14 days from the date of service of a letter to the ATP regarding MMI was a reasonable amount of time to wait before respondents could request a 24-Month DIME.
Moral of the Story: Before requesting a 24-Month DIME, respondents must request from the ATP whether the Claimant is at MMI, and have an opinion from another physician the claimant is at MMI.


The perpetually open case of medical only claims: In Michael Thibault v. Ronnie’s Automotive Services, W.C. No. 4-970-099, (August 2, 2016), the claimant injured his right hand and index finger. Claimant received medical treatment and was placed at MMI with no impairment. Respondents filed an FAL denying indemnity and maintenance medical benefits. The claimant did not object to the FAL. Afterwards, the claimant sought to reopen the claim. The ALJ determined the claimant’s condition worsened after the FAL was filed and reopened the claim. Respondents appealed and argued claimant failed to establish his condition had worsened, and the claimant only sought to reopen the claim because he failed to timely object to the FAL. ICAO held the matter was not closed by the FAL because claims that do not admit for temporary or permanent benefits cannot be closed through an FAL. Therefore, the claimant did not need to meet the requirements to reopen the claim, and was only required to prove the medical treatment was reasonable, necessary, and related to the industrial injury, which he proved.
Moral of the Story: WCRP 5-5(A) recently changed effective 09/14/16 to allow for final admissions on medical-only claims. The FAL should be filed with a narrative report and appropriate worksheets.


Race you to the DIME in under 6 months: In Carol Lopez v. The Evangelical Lutheran Good Samaritan Society and Sentry Insurance, W.C. No 4-972-365 (ICAO August 16, 2016), ICAO reiterated the Colorado Supreme Court holding that a Claimant can qualify for a Table 53 specific spine disorder and impairment rating even if the Claimant reached MMI in less than 6 months of treatment. According to the AMA Guides, a Table 53 disorder is categorized by evidence of medically documented pain and rigidity for over six months. In this case, the DIME took place over a year after Claimant’s original back injury. The DIME physician opined that Claimant reached MMI one month after the injury and provided a 15% whole person impairment rating based on the Table 53 disorder and the loss of range of motion. Respondents argued that there could not be a Table 53 diagnosis because there was no evidence of pain for at least six months prior to the date of MMI. However, ICAO held that the impairment rating was appropriate based on the date the DIME took place. It reasoned that, at the time of the DIME, there was a rateable injury pursuant to Table 53 because there had been over a year of reported pain. ICAO held that the date of MMI does not affect the analysis of whether there is a Table 53 diagnosis.
Moral of the Story: If a Claimant reaches MMI for a back injury in less than 6 months, he or she could still receive a rating for a Table 53 disorder unless the DIME is completed in less than 6 months from the date of injury.


It’s not the claimant’s fault he got a DUI. In Brian Iten v. Meadow Mountain Plumbing and Pinnacol Insurance, W.C. No. 4-975-033 (ICAO August 15, 2016) the claimant was employed as a plumber and his job required him to drive a company van to job sites. Claimant injured his low back at work on February 11, 2015. Respondents admitted for ongoing temporary total disability benefits since the date of injury. On February 25, 2015, claimant was arrested for a DUI while driving his personal vehicle. Claimant contested the DUI charge and ultimately entered into a plea agreement. Claimant did not lose his driver’s license as a result of the DUI. Employer terminated the claimant as company policy required employees to have valid driver’s license and that if the insurance carrier refused to cover an employee, the employee could be terminated. Respondents filed a Petition to Suspend TTD benefits due to termination for cause pursuant to C.R.S. § 8-42-105(4)(a). The employer provided conflicting testimony that the claimant was either terminated because he lost his driver’s license as a result of the DUI or the insurance carrier indicated they would not insure the claimant due to the DUI charge. The ALJ did not find the testimony of the employer witnesses credible. The ALJ found that when the claimant was able to maintain his driver’s license, he reasonably believed he complied with the employer’s driving policy. Therefore, the claimant did not commit a volitional act making him responsible for his termination. ICAO affirmed.
Moral of the Story: To successfully assert termination for cause, respondents must prove the claimant violated a specific company policy and that his or her actions were volitional, which means the employee exercised a degree of control over the circumstances resulting in the termination.