legaLKonnection Firm Newsletter – April 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

Lee + Kinder Super Lawyers 2017

 

Lee + Kinder Associates


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JDB-news_115x125 In Dillingham v. SkyWest Airlines, Inc. and ACE American Insurance, Co., Member Joshua Brown and Associate Kelsey Bowers successfully defeated Claimant’s attempt to prove a compensable left knee injury. Claimant tried to use two theories of compensability and argued that (1) there was a specific work event that aggravated his preexisting left knee osteoarthritis and (2) he developed a cumulative trauma injury to his left knee working over a prolonged period-of-time. Dr. Paz provided convincing testimony that Claimant had preexisting, severe osteoarthritis as a result of a prior stroke. He explained that the condition was not aggravated by a specific work incident or accelerated by prolonged work activities. The ALJ found that although Claimant experienced knee pain at work, that was not enough to establish a compensable claim.

 


Karen-NEWSMember Karen Gail Treece defeated Claimant’s request for appeal in Newton v. True Value, W.C. No. 4-978-459 (ICAO April 4, 2017). Claimant injured his left hand at work. When Claimant reached MMI, Dr. Kawasaki assessed him with a 25% scheduled impairment, but Dr. Adams determined he had a 25% whole person impairment due to Complex Regional Pain Syndrome (CRPS). Respondents admitted to Dr. Kawasaki’s impairment rating, but mistakenly attached Dr. Adams’ report to the FAL. Claimant sought hearing and argued Respondents were required to either admit to the 25% whole person rating or request a DIME. The ALJ held Respondents were not required to admit to the whole person rating because both Dr. Adams and Dr. Kawasaki were treating physicians. Therefore, Claimant had the burden to prove he had a whole person impairment rating, which he failed to prove. Claimant appealed and argued Respondents had to admit to Dr. Adams’ rating because she was “the” authorized treating provider. The Court held that “an” ATP could determine MMI and impairment. Dr. Kawasaki and Dr. Adams were both ATPs. When an ATP assigns an impairment listed in the schedule, Respondents may either file a FAL or dispute the rating at hearing. There is no requirement for a DIME for scheduled impairments. Whether Claimant’s impairment should be considered scheduled or whole person is a question of fact for an ALJ. Claimant’s appeal was denied.


ST_newsIn Fincham v. The Home Depot, Of Counsel Sheila Toborg and Associate Stephen Abbott successfully defended on the issue of compensability. A Claimant alleged that he injured his right shoulder while unloading a refrigerator from a truck. However, the Claimant did not seek treatment until several months after the alleged incident. Furthermore, the Claimant exhibited numerous degenerative changes in his shoulder consistent with his active lifestyle of playing softball and golf. Respondent argued that these factors made it unlikely that Claimant’s shoulder condition was related to the alleged incident. The ALJ agreed and denied compensability.

 


FMCnews_115x125Of Counsel Frank Cavanaugh successfully argued that apportionment was appropriate and could be determined at hearing without first securing a DIME. Franklin v. Pueblo City Schools. W.C. No. 4-988-862. Claimant suffered a work injury to his low back and was placed at MMI with a 15% whole person impairment. Claimant had a prior low back injury from 1998 with a 5% whole person impairment rating; however, the medical records for this prior injury had been destroyed. At hearing, Claimant challenged the apportionment noted in the FAL and argued that apportionment cannot apply without medical documentation. The Administrative Law Judge agreed with Respondents that apportionment was appropriate and that the issue can be decided at hearing without first securing a DIME.

 

FranNewsOf Counsel M. Frances McCracken successfully defended against Claimant’s claim for a low back injury in Madonna v. Walmart Stores, Inc and New Hampshire Insurance Co., W.C. 4-997-641. Claimant had a lengthy history of intermittent neck pain, cervical surgeries, paralysis resulting from a surgery, and coronary artery disease. Claimant suffered an alleged injury while at work and underwent extensive medical treatment for neck pain. At no point did Claimant treat for back pain. At hearing, Claimant for the first time alleged that he injured his back, not his neck. Dr. Reiss provided convincing testimony that Claimant’s symptoms and need for treatment were likely more related to his preexisting conditions. The ALJ agreed with Respondents that Claimant failed to provide sufficient evidence to establish that he suffered an industrial injury.

 

jmanewsIn Tortorella v. Mariner Healthcare Inc., Of Counsel John Abraham successfully withdrew Respondents’ Final Admission of Liability that authorized reasonable, necessary and related medical maintenance benefits. Claimant sustained an admitted injury to her lumbar spine on April 18, 2005. Claimant underwent conservative medical care and reached MMI on March 7, 2007. Respondents filed a FAL on February 8, 2015, admitting for maintenance medical benefits. Claimant received maintenance care from her treating physicians since 2008. Mr. Abraham produced an IME report from Dr. Fall which persuasively maintained that there was no objective medical evidence that Claimant exhibited any functional gains as a result of her extensive maintenance care. Dr. Fall persuasively opined that Claimant no longer required medical maintenance care. Mr. Abraham also entered into evidence surveillance which documented Claimant functioning beyond her stated level of limitations. The ALJ found the surveillance video and Dr. Fall’s opinions credible and persuasive. The ALJ ordered that Respondents were permitted to withdraw their February 8, 2008 FAL and the admission of reasonable, necessary and related medical maintenance benefits.

 

SJA-news_115x125In McClelland v. The Home Depot, Associate Stephen Abbott successfully defended against a claim for disfigurement based on waiver. Claimant underwent surgery and reached MMI. The claim was closed on a FAL without a disfigurement award. Claimant subsequently reopened the claim for additional surgery and then sought a disfigurement award for his surgical scarring from the first surgery. Mr. Abbott persuasively argued that Claimant had waived his right to a disfigurement award for the first surgery by failing to object to the FAL. Further, reopening the claim did not reopen the issue of any disfigurement existing at the time of the FAL. The ALJ agreed and denied Claimant’s claim for disfigurement benefits as to the first surgery.

 


Cases You Should Know

If you think insurance is expensive, try being uninsured: In Dami Hospitality, LLC v. ICAO, the Colorado Court of Appeals held that imposing a fine of over $840,000 on a smaller employer for failure to maintain WC insurance was excessive and the Court should have considered other factors. (February 23, 2017, Colo. Ct. Appeals). While the employer failed to maintain insurance on two occasions, it argued that the high penalty was unreasonable because it was grossly disproportionate to its ability to pay and the harm caused by the lack of insurance. The Court of Appeals concluded that the 8th Amendment’s protection against excessive fines applies to natural persons as well as corporations. As such, it set aside the Director’s Order and instructed the lower court to consider additional facts that were relevant to the employer’s specific circumstances. These facts included 1) the employer’s ignorance that the required WC insurance had lapsed, 2) the failure of the Division to notify the employer of the lapse for almost five years, 3) the employer’s ability to pay the fine, and 4) the actual or potential harm to employees for the failure to maintain insurance.


Moral of the Story: Corporations are entitled to 8th Amendment protections against excessive fines, so the Director or ALJ must consider facts that are relevant to the employer’s specific circumstances, such as ability to pay, before issuing a penalty for failure to maintain WC insurance.


Finality is not the language of politics: In Evergreen Caissons, Inc. v. ICAO and Jennifer Munoz Botello, the Colorado Court of Appeals held the ALJ’s and ICAO’s separate Orders were not final for purposes of review. Decedent died as a result of his industrial injuries. The employer admitted death benefits for the Decedent’s minor children, but contested whether Claimant Jennifer Munoz Botello was a surviving spouse for purposes of entitlement to death benefits. The hearing ALJ held that Ms. Botello was a surviving spouse, and directed the parties to set a hearing to determine the remaining issues. The employer petitioned the Industrial Claim Appeals Office (ICAO) to review the ALJ’s Order. ICAO dismissed the petition without prejudice, finding that the hearing issues were limited to whether Ms. Botello was a dependent, as well as the allocation of benefits amongst the dependents. Thus, ICAO concluded that the ALJ’s Order did not award death benefits to Claimant Botello and was therefore not final and could not be appealed. The Court of Appeals agreed with ICAO, citing that for an order to be final and subject to appeal, it must grant or deny benefits or penalties. Furthermore, the Court held the ALJ must determine the amount before the ruling is “final” for purposes of review. As such, the Court of Appeals noted that the ALJ did not award death benefits, but merely determined whether or not Ms. Botello was a dependent. Therefore, the Court of Appeals denied the employer’s appeal.


Moral of the story: For an order to be final, it must grant or deny benefits or penalties. Furthermore, an order must determine the amount of benefits and/or penalties before it is final for purposes of review.


Keep Calm and Carry (Complete) Insurance: In City of Lakewood v. Safety National Casualty., the Colorado Court of Appeals affirmed the summary judgment in favor of the insurance company, denying indemnification for the City’s defense costs. A City police officer was killed by friendly fire, and his widow alleged that the City and its officers violated the Decedent’s Federal Constitutional rights under 42 U.S.C. § 1983. The City sought indemnification for its defense costs, as well as the costs incurred by the officers named in the lawsuit, but the insurance company denied coverage. The District Court concluded that a § 1983 claim does not arise under an employer liability law and granted the insurance company’s motion for summary judgment. On appeal, the Court of Appeals held that § 1983 is not a workers’ injury statute that displaces common law claims with a new cause of action. Nor can § 1983 be classified as a common law claim as it is a Federal Constitutional claim. Had the insurance company intended to cover claims arising out of federal law, it is likely that it would have cited to federal references, which was not the case in this matter. As such, the Court of Appeals held that the City’s defense costs, which were sustained because of liability imposed a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employer’s liability law and were, therefore, not covered by the insurance company’s policy.


Additionally, the police officers’ claims for indemnification were also dismissed after the Court of Appeals held that the City’s indemnification payments to the officers named in the lawsuit were not classified as “losses” – actual payments, less recoveries, legally made by the employer to the employees and their dependents. The Court of Appeals also held that the term “employee” refers to an injured employee, not to an employee potentially responsible for the injury, such as the named officers. Furthermore, the Court of Appeals was unwilling to contradict the clear intention of the insurance company’s policy to cover only workers’ injury claims. Therefore, the City was not entitled to reimbursement from the insurance company for the incurred costs of the named officers.


Moral of the story: Unless specifically addressed in a policy, the Federal Constitutional right under § 1983 does not mandate insurance companies to indemnify payments to named parties arising from the applicable insurance companies’ policies aimed at covering injured workers.


Want to scare the neighbors? Name your wifi “FBI Surveillance Van”: In Ross v. St. Thomas More Hospital, W.C. 4-985-129 (February 16, 2017), Claimant sought review of an ALJ’s Order denying and dismissing her claim for additional medical benefits. The ALJ reviewed a surveillance video and specifically found that Claimant’s testimony regarding her pain level and functional abilities were out of proportion to the objective findings on the surveillance. The ALJ also credited Respondents expert’s testimony over Claimant’s treating physician. On appeal, Claimant argued that the ALJ erred in admitting the surveillance tapes. Claimant argued that the surveillance was only provided to her 10 days prior to hearing in violation of W.C.R.P. Rule 9-1(E). ICAO explained that the ALJ did not abuse his discretion in allowing the surveillance tapes into evidence. ICAO determined that the proper relief under Rule 9-1(E) was for the Court to entertain a continuance, which Claimant specifically declined. ICAO determined that the ALJ’s decision was supported by substantial evidence and the ALJ’s Order was affirmed.


Moral of the story: An ALJ’s decisions on evidentiary rulings will not be disturbed without a showing of an abuse of discretion leading to a reversible error.


De minimus non curat lex (“the law does not concern itself with trifles”): In Arnhold v. United Parcel Service, W.C. 4-979-208-02 (February 24, 2017), Claimant sought review of an Order denying the Claimant’s request for penalties to be assessed against the Respondent insurance carrier. At hearing, Claimant sought a 10-day penalty for late payment of TTD benefits. The adjuster testified that she was attempting to verify the amount owed before sending a check to Claimant two days after the due date. The ALJ determined that there was no credible or objective evidence that Respondents knew that they were in violation of the Order. On appeal, ICAO reversed and remanded. ICAO held that the testimony confirmed that the check was mailed two days after the deadline, thus supporting a penalties award. Nevertheless, ICAO took note of the lack of objective evidence put forward by Claimant and opined that more than a de minimis penalty was not justified. ICAO remanded the claim back to the ALJ to determine the amount to be awarded for a 2-day penalty.


Moral of the story: Ensure that all monies agreed to are issued in a timely fashion.