legaLKonnection Firm Newsletter – September 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

 

 

On behalf of our Texas and Florida clients, Lee + Kinder LLC made a donation to the Hurricane Relief Fund.

 

 

 

Lee + Kinder LLC sponsored the Hole-in-One competition at the PWC Annual Golf Tournament. The event was held at the Raccoon Creek Golf Course and was well attended. Members Katherine Lee and Joshua Brown played on teams as well as Of Counsel Frank Cavanaugh. Amy Braddy, on Katherine Lee’s team, nailed an Eagle on a par 4 from 130 yards out. They used Amy’s drive, and she hit her second shot – so the eagle was truly all Amy. Way to go team! We will certainly be securing Amy Braddy for our PWC golf team next year! Congratulations to all the players and to the PWC for putting on a great event.


Victory Lap

Of Counsel M. Frances McCracken successfully defended Claimant’s request for arthroscopic shoulder surgery in Johnson v. Family Dollar Stores of Colorado, Inc., W.C. 5-011-944-01. Claimant sustained admitted injuries to her right foot, right second toe, and left wrist. Three months after the initial injury, Claimant began complaining of left shoulder pain. Claimant was diagnosed with a labral tear and arthroscopic surgery was recommended. The ATP and Claimant’s expert opined that the Claimant’s worsening shoulder complaints were the result of “disuse” from the work-related left wrist surgeries. Claimant had a prior left upper extremity work-related injury from January 2007. Respondents’ expert opined that Claimant’s 2008 MRI scan and the 2017 MRI scan of the left shoulder were virtually identical. Medical records also showed that Claimant had chronic left shoulder problems that predated the current work-related incident. The ALJ concluded that Claimant failed to prove by a preponderance of the evidence that the left shoulder arthroscopy was reasonable, necessary and related to the admitted industrial injury. Claimant’s claim for left shoulder surgery was denied and dismissed.

 

In a second win, Of Counsel M. Frances McCracken , successfully appealed an ALJ’s Order requiring Respondents to pay for Claimant’s emergency medical treatment in Madonna v. Walmart, W.C. No. 4-997-641-02, ICAO August 21, 2017. Claimant was at work lifting a case of oil when a customer startled him. He turned sharply and felt a sharp pain in his chest with numbness into his left arm. Claimant’s supervisor called an ambulance fearing that Claimant was having a heart attack. Claimant had a long history of cervical spine pain with multiple surgeries in 1999. The ALJ determined that Claimant failed to prove he suffered a work-related injury, as his condition and need for surgery existed prior to the date of the alleged injury. However, the ALJ ordered that Respondents were liable for the emergency medical treatment the Claimant received on the day of the incident and his hospitalization the following two days. On appeal, Respondents argued that C.R.S. Sec. 8-42-101(1)(a) cannot be expanded to render them liable for “non-injury related emergency medical care.” ICAO held that the ALJ found that Claimant had a bona fide emergency while at work, but the emergency was not caused by the work incident and was solely caused by his pre-existing condition; thus, since there was no causal relationship between Claimant’s need for medical treatment and the work incident, Respondents were not liable. The ALJ’s Order requiring Respondents to pay for emergency medical treatment was reversed.

 

Associate Matt Boatwright successfully challenged Claimant’s attempt to relate an ankle injury and requested surgery to her admitted claim for a back injury in Gurrola v. United Parcel Service, W.C. No. 5-029-464. Claimant suffered an aggravation of a preexisting low back injury in May of 2016 and had subsequent complaints of radicular symptoms into the leg. Claimant rolled her ankle in January 2017 and suffered an injury for which surgery was requested. Claimant claimed that she injured her ankle because of leg weakness related to the admitted back injury. The ALJ found that there was insufficient evidence of a causal relationship between the ankle condition and the low back injury. The ALJ therefore denied and dismissed the request for authorization of surgery for the ankle.

 


OBAMA-ERA FAIR LABOR STANDARDS ACT OVERTIME RULE DEFEATED

Last year, the Department of Labor instituted a new overtime rule under the Fair Labor Standards Act (FLSA), which required employers to pay a little more than $47,000 annually to qualify under the white-collar exemptions. This rule had previously been in limbo given that a Texas Federal District Court judge prevented its enforcement last Thanksgiving. The same judge has now recently struck down the rule permanently. Click here to continue reading this article.

 


Cases You Should Know

Be Specific: In Guzman v. Q3 Contracting, Inc., the Respondents sought review of an Order that determined the Claimant had overcome the DIME’s finding that he was at MMI. (W.C. No. 4-955-901-02, ICAO July 18, 2017). ICAO dismissed the appeal for lack of a final Order. Hearing was held and the ALJ found that the Claimant had not reached MMI and ordered the Respondents to pay for authorized, reasonable, and necessary medical benefits. The ALJ reserved the issue of TTD benefits for future decision and determined that he did not have authority to require Respondents to pay for medical treatment that was not provided by an APT. Since the ALJ’s Order did not award or deny any specific benefit it was interlocutory and not reviewable. A general award of medical benefits does not qualify as an award of a specific benefit.

Moral of the Story: Always have an ALJ rule on specific benefits so that the order is appealable.

 

Asleep at the Wheel: In Lagasse v. Xtreme Drilling and Coil Service, the Claimant filed a request for death benefits when her husband died in a motor vehicle accident while driving home from work. (W.C. No. 4-993-361-02, ICAO July 24, 2017). The Claimant appealed the decision of the ALJ that determined there were no special circumstances to justify an exception to the general going to and coming from work rule. In general, injuries sustained while going to and coming from work are not compensable unless a special circumstance creates a causal relationship between the employment and travel. The Claimant argued that the employment contemplated use of a personal vehicle because employees would have to change locations without notice. The Claimant argued that if personal vehicles were not used, the employer would have to arrange and pay for the transportation to the new work-sites. The ALJ found that the decedent’s use of his personal vehicle did not confer a benefit to the employer. ICAO upheld the ALJ’s Order denying compensability.

Moral of the Story: “Special circumstances” as an exception to the “going to and coming from” rule occur when the employment contract contemplates the travel or the employer provides the transportation or pays the cost of the travel.

 

Let’s Get Ready to Rumble: In Ostberg v. Mr. Bult’s Inc., the Respondents sought review of the ALJ’s Order finding the claim compensable. (W.C. No. 5-012-857-01, ICAO July 14, 2017). The Claimant was a truck driver and returned to the loading facility to retrieve a trailer. The Claimant got into an altercation with a co-worker about the trailer that was selected and they exchanged a series of four letter words. The Claimant turned to walk away and the co-worker called him an offensive name. The Claimant turned back and the fight became physical resulting in injuries. The Respondents argued that since the Claimant walked away from the original fight, the physical altercation was a second fight due to the offensive name calling and was purely a personal dispute. The ALJ determined that the events were all part of the same dispute pertinent to the Claimant’s use of the trailer and the three second interval of the Claimant turning to leave did not represent a deviation from the original argument. The ALJ found the claim compensable and awarded TTD benefits. ICAO upheld the ALJ’s Order.

Moral of the Story: Physical altercations between employees resulting in injuries are compensable if the basis of the fight arises out of work. If employees import personal unrelated disputes into the work-site, then injuries resulting from a physical altercation are not compensable.

 

For Whom the Statute Tolls: In Becirovic v. Residence Inn, W.C. No. 5-002-866 (August 3, 2017), ICAO affirmed an Order of that dismissed a claim for death benefits upholding the ALJ’s finding that the claim was barred by the statute of limitations. The original injury occurred on August 31, 2011 and the decedent died on November 19, 2013. Claimant obtained an IME report relating the death to the injury on March 23, 2015. Claimant filed a claim for death benefits with the OAC on July 2, 2015 and again on November 5, 2015 but did not file the claim with DOWC until December 7, 2015. Section 8-43-103(2), C.R.S., requires that a claim for death benefits be filed with the DOWC within two years after the death, with an additional year permitted if there is a reasonable excuse. The statute of limitations begins to run when the Claimant should “recognize the nature, seriousness, and probable compensable character of the injury.” The ALJ found that there was no evidence that Claimant or OAC sent notice to the DOWC or Respondents within two years. ICAO dismissed Claimant’s argument that the statute began to run after the IME opinion that related the death to the injury, upholding the ALJ’s opinion that the Claimant should have been aware of the probable compensable nature at the time of the death due to medical records already in existence at that time. ICAO found that the statute of limitations was not tolled by the alleged failure of the employer to file the required notice upon learning of the death, as they did not have evidence that the death was related. ICAO also upheld the ALJ’s finding that the filing through OAC did not constitute a “reasonable excuse” not to file with DOWC within two years.

Moral of the Story: Claims for workers’ compensation, including death benefits, must be filed within two years from the injury or death with the Division of Workers’ Compensation, and claim filings through the Office of Administrative Courts do not constitute notice or a reasonable excuse to extend or toll the statute of limitations.

 

The Penalty Box: In Cruz v. Sacramento Drilling, Inc., W.C. No. 4-999-129 (July 28, 2017), ICAO affirmed an Order by the ALJ denying Claimant’s request for penalties surrounding an offer of modified employment. Respondents sent Claimant an offer of modified employment on August 10, 2016 that directed Claimant to begin the job on August 16, but was contingent upon a background check. The offer described duties, hours, and wages and was approved by the ATP. Claimant did not begin working on August 16 or any time thereafter. Respondents subsequently reduced Claimant’s benefits in a GAL filed September 6, 2016 and maintained a reduction in a later GAL filed after litigation over AWW. Claimant asserted that because the offer of modified duty was contingent upon passage of a background check, it did not meet the definition of an “offer” and was therefore not in compliance with WCRP 6. The ALJ found that the offer met the basic requirements of the WCRP 6 and that Respondents were in compliance and not subject to penalties. On appeal, ICAO upheld the ALJ’s finding, noting that required participation in a background check is not a contingency that negates an offer of employment. See Underwood v. Skywest, W.C. No. 4-745-218 (ICAO, May 15, 2009). ICAO further found that the offer was still valid, even though the job was through a third party, as Claimant remained employed by Respondent-employer. ICAO further upheld the ALJ’s denial of penalties for Respondents’ alleged failure to file a GAL that accurately reflected when TPD began, as the Court noted that a GAL is not a record of payments actually made.

Moral of the Story: Offers of modified duty that require a background check or are through a third party, so long as there is no requirement to rehire through the third-party employer, are in compliance with WCRP 6.

 

Keep Paying Those Health Insurance Premiums: ICAO reversed an ALJ’s Order increasing AWW to include the employer’s cost of Claimant’s health insurance premiums in De Bell v. IKEA, W.C. No. 5-011-040 (July 14, 2017). Claimant continued employment with Respondent-employer and the employer never stopped paying its portion of the Claimant’s health insurance premiums. The ALJ nevertheless increased the AWW to include the employer’s cost of the insurance premiums, solely to increase the calculation of the PPD award. Respondents appealed, arguing this was an abuse of discretion. ICAO reversed, finding that the ALJ abused his discretion in several respects. Section 8-40-201(19)(b), C.R.S., requires an increase in AWW for the employee’s cost of continuing the employer’s health insurance plan. ICAO found that the ALJ did not have authority to increase AWW by the employer’s portion of the cost. ICAO also found that the ALJ did not have authority to increase AWW because the employer continued to pay the cost of the health premiums, and that the statute explicitly states that AWW shall not be increased in this circumstance. ICAO further found that the ALJ abused his discretion in recalculating AWW solely for purposes of PPD, as the AWW statute Section 8-42-102(1), C.R.S., makes no distinction between temporary and permanent benefits. The ALJ’s Order was reversed in its entirety.

Moral of the Story: An ALJ is without authority to recalculate AWW to include an employer’s cost of health insurance premiums, is prohibited from increasing AWW to include the employee’s cost of insurance premiums where the employer continues to pay their portion of the premiums, and is without authority to recalculate AWW with distinctions between temporary and permanent benefits.

 

Shoulder the Burden: In Vitwar v. City of Colorado Springs, Respondents sought review of an Order determining that Claimant’s melanoma was a compensable occupational disease under the firefighter cancer presumption statute. (W.C. No. 4-832-507-06, ICAO July 19, 2017). The ALJ determined Claimant met the requirements of the firefighter cancer presumption statute C.R.S. 8-41-209. Those requirements are the following: Claimant has been a firefighter for five or more years; he suffered an onset of a specific condition listed; and that there was no evidence showing he had melanoma when Respondents hired him. The ALJ explained that the compensability presumption can be overcome by the employer by proving, by a preponderance of the evidence, that the firefighter’s cancer did not occur on the job. An ALJ will weigh the risk factors related to employment to determine if they are more predominant than those risk factors not connected to employment. ICAO upheld the ALJ’s Order finding Claimant’s melanoma compensable.

Moral of the Story: When challenging compensability under the firefighter cancer presumption statute, C.R.S. 8-41-209. Employers have the burden of proof, by preponderance of the evidence, to prove that a firefighter’s cancer is not related to their employment after the Claimant has met the enumerated requirements of the statute.

 

Running for your Claim: In Kendrick v. ICAO, the Colorado Court of Appeals affirmed the ALJ’s decision denying compensability by finding that Claimant’s injury occurred during a voluntary recreational activity. Voluntary recreational activities are explicitly excluded from the definition of “employee” within the definition provided in C.R.S. 8-40-301(1). (August 3, 2017, Colo. Ct. App.). Claimant, a pilot, was injured while running during a scheduled layover between flights. The Court of Appeals rejected, as did the ALJ and ICAO, Claimant’s argument that his running fell within the “personal comfort doctrine” applicable to workers on “travel status”. The Personal Comfort Doctrine states that injuries suffered by employees while traveling as a requirement of work are held to be within the course and employment continuously during the trip, except when the employee makes a distinct departure on a personal errand. The Court opined that Claimant’s injury occurred during a “recreational activity” which is explicitly excluded from the definition of “employee” from C.R.S. 8-40-201(8) and C.R.S. 8-40-301(1). The Court drew attention to the undisputed facts that Claimant was not required to exercise and that many other pilots for employer did not exercise during layovers. The Court of Appeals affirmed the lower court’s ruling and found the claim was not compensable.

Moral of the Story: Just because an injury occurs while a Claimant is in “travel status” for their employment, does not inherently make it compensable under the personal comfort doctrine. Injuries from voluntary recreational activities may not be compensable.