legaLKonnection Firm Newsletter – June 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

Member Karen Gail Treece attended the CLM (Claims & Litigation Management) Annual Workers’ Compensation Conference in Chicago. Ms. Treece learned defense tactics from some of the best in the industry related to complicated claims involving prescriptions for extensive opioid abuse. Ms. Treece was fortunate to meet some wonderful folks and enjoy delicious Chicago pizza and Italian beef.

 


Victory Lap

 After a five-day jury trial in Denver District Court, Member Joshua D. Brown and Associate Kelsey Bowers successfully defeated multiple claims against the employer in Helton v. Environmental Demolition, Inc., Case Number 2015CV032832. The Plaintiff sought damages for an alleged breach of employment contract in the form of alleged promises of bonuses and benefits; an alleged breach of a written buy-sell agreement regarding the purchase of shares in the Company; an alleged breach of fiduciary duty; and civil conspiracy. The 7-person jury was persuaded by the testimony of several key witnesses and found that there was no breach of employment contract or breach of fiduciary duty. While the jury found that there was evidence of civil conspiracy, they found that no damages resulted from the conspiracy. According to the Trial Court Order, the only damages that were awarded to Plaintiff were the value of the shares that he owned in the Company. The fact that Plaintiff owned shares in the Company was undisputed.
 
Member Joshua D. Brown successfully defended a claim for TTD benefits in Janine Scafide v. SkyWest Airlines, Inc. and Indemnity Insurance Company of North America, W.C. No.4-840-879. Claimant filed a Petition to Reopen and an Application for Hearing alleging a worsening of condition. While litigation was pending, Claimant underwent a total hip arthroplasty. Claimant argued that she was entitled to TTD benefits following her surgery as a result of her worsened condition. The ALJ determined that Claimant’s condition had worsened; however, there was no evidence that established a link between Claimant’s surgery and a wage loss. Claimant had not been working for five years prior to her surgery and there was no evidence that her work restrictions had increased after MMI. Claimant’s request for TTD benefits was denied and dismissed. Also, despite the Petition to Reopen being granted, the ALJ ordered medical benefits to be provided as post-MMI maintenance care.
  
 Member Karen Gail Treece successfully proved Claimant’s ongoing chiropractic and acupuncture care was not reasonable, necessary, or related medical maintenance care in Kachigian v. Sigma Services, Inc., W.C. No. 4-929-024. Claimant sustained an industrial injury to his head and neck on April 17, 2013. Claimant did not request medical treatment and continued working. On April 26, 2013, Claimant presented to his personal physician and reported knee and toe pain due to training for a Spartan Race. Claimant did not report the work injury. Claimant first sought medical care for the work injury in August 2013. Claimant treated conservatively and was placed at MMI on February 4, 2014. Respondents filed an FAL and admitted for medical maintenance benefits. Claimant received over 80 chiropractic and acupuncture treatments. Respondents challenged the ongoing treatment. Respondents requested an IME with Dr. Lambden. He opined the chiropractic and acupuncture care was counterproductive and reinforcing Claimant’s pain syndrome. A radiologist, Dr. Seibert, reviewed x-rays and an MRI scan and opined that the Claimant had a preexisting C7 fracture. The ALJ denied the ongoing chiropractic and acupuncture treatments.

 

 In Bruxvoort v. Goodyear Tire and Rubber Company and Liberty Mutual Insurance, W.C. No. 4-990-459, Member Joseph W. Gren and Associate Daniel Mowrey successfully defended against Claimant’s allegations that he was no longer at MMI and that he sustained a compensable injury to his right trigger finger. Claimant contended that he injured his right trigger finger while participating in physical therapy to rehabilitate his shoulder. Claimant provided no medical evidence to support his position. Mr. Gren elicited testimony from Claimant that he was involved in a remodel of his home during the time of the trigger finger injury. The ALJ was persuaded that it was equally as likely he injured himself during the remodeling activities. Mr. Gren presented testimony from an expert medical physician who opined that the etiology of the trigger finger was idiopathic. The ALJ was persuaded by the testimony of Respondents medical expert that the trigger finger condition was not caused by Claimant’s physical therapy. The ALJ concluded that the right trigger finger condition was not compensable. Therefore, Claimant remained at MMI pursuant to the FAL filed by Respondents.
 
In Todd Blanchard v. Evraz Inc. NA, W.C. No. 5-011-914, Member Joseph W. Gren and Associate Devon D.A. Bell successfully defended against Claimant’s allegation that he sustained an occupational disease. Claimant contended that repetitive stamping of steel samples over time caused his lateral epicondylitis. Claimant underwent an IME that determined the Claimant’s work-related activities were not enough to cause his alleged repetitive-motion injuries. These findings were corroborated by a strong job demands analysis report. Additionally, Respondents were successful in arguing that Claimant failed to satisfy the criteria set forth in the Medical Treatment Guidelines (Guidelines). Respondents were successful in presenting the evidence described above, as well as successful in conveying Claimant’s failure to satisfy the Guidelines, which allowed the ALJ to conclude that Claimant’s occupational disease was not compensable.

  
Of Counsel Frank Cavanaugh successfully defended against a claim for an alleged back injury in Saucedo v. Custom Onsite, Inc., Viart Construction, C&E Construction and Pinnacol Assurance, W.C. Nos. 5-014-532; 5-006-362; and 4-999-130. Mr. Cavanaugh represented Pinnacol Assurance, exclusively, in this claim involving multiple parties. Claimant alleged that he hurt himself at a construction site lifting a framed wall with co-workers. The ALJ ultimately found that Claimant’s account of the alleged injury was not credible and was contrary to the testimony of other witnesses and medical records in evidence. The ALJ found that he did not actually lift a wall on the date in question, and had no compensable work injury. The ALJ denied and dismissed Claimant’s claim for compensation.

 
Of Counsel John Abraham successfully proved Claimant no longer required medical maintenance related to the industrial injury. In Crouse v. Navajo Express Incorporated and Lumbermen’s (in liquidation) c/o Colorado Insurance Guaranty Association, W.C. No. 4-437-384, Claimant injured his cervical and lumber spine on October 1, 1999. Claimant was placed at MMI and Respondents filed an FAL. Indemnity settled and medical maintenance care was left open. Respondents challenged Claimant’s need for ongoing medical maintenance care and requested an IME. In the IME, Claimant admitted to a post-MMI injury to his head and neck. Claimant reported using pain cream and taking tramadol and muscle relaxers. The IME physician opined that Claimant’s current symptoms and need for medical treatment, 17 years after his date of injury, were more likely related to age related degeneration of the spine, the preexisting cervical spine injury, and the intervening injury after MMI than the October 1, 1999 fall. The ALJ found the IME physician’s report and testimony persuasive and credible. The ALJ determined Respondents met their burden of proof that the continued maintenance treatment was not reasonable, necessary, or causally related to Claimant’s October 1, 1999 work injury.
 



  
  
  
  
 
To File or Not to File? That is the Question
An incident takes place within the course and scope of claimant’s employment. Claimant is confirmed to have sustained an injury but does not miss any time from work. No permanent impairment is anticipated. What the adjuster has is characterized as what most of us refer to as a “med-only claim.” Throughout the course of the claim, claimant receives conservative treatment without any recommendation for surgery. The claimant is eventually placed at MMI with no impairment. There is no reason to challenge the claim as you believe the injury is legitimate. You’re home free! All you have to do is file the Final Admission of Liability (FAL), wait the statutory 30-day period, and when claimant fails to object, you can close your claim and move on to the next one. Right? Not exactly. Click here to continue reading this article.

 


Cases You Should Know

When you retire, you do not get to claim lost wages from the employer: In Ecke v. City of Washington W.C. No. 5-002-020 (May 5, 2017), Claimant was injured at work the day before his planned retirement. Claimant sought TTD benefits between his date of injury and the date he reached MMI. Respondents asserted the wage loss was related to Claimant’s volitional act of his retirement and not the work injury pursuant to C.R.S. §§ 8-42-103(g) and 8-42-105(4)(a). The ALJ denied Claimant’s request for TTD benefits and Claimant appealed. The Panel cited several cases that precluded TTD benefits in cases of voluntary resignation as the retirement precluded the employer from the opportunity to offer modified duty.

Moral of the Story: Respondents have an affirmative defense to TTD benefits in instances of termination and retirement.
 
The curious case of the ATP: Claimant suffered a work-related injury in Portillo v. Shoco Oil-Samhill-Oil, Inc., W.C. No. 4-942-783 (May 1, 2017). Respondents denied a request for sympathetic nerve blocks. Respondents referred Claimant to Dr. Hattem. He continued treating Claimant after the initial evaluation and placed her at MMI. Respondents filed an FAL and Claimant requested a DIME. Claimant also filed an Application for Hearing regarding the sympathetic nerve blocks. Respondents moved to strike Claimant’s Application as not ripe, pending the DIME. Claimant asserted the FAL was not ripe because Respondents’ referral to Dr. Hattem was for an IME; therefore, he was not an ATP who could make an MMI determination for purposes of filing the FAL. The ALJ determined the nerve blocks were reasonable, necessary benefits to cure and relieve Claimant of the effects of the work injury. The ALJ did not address whether Dr. Hattem was an ATP. Respondents appealed. The Panel set aside the ALJ’s Order. They noted a physician can become an ATP if they treat the claimant and are not merely examining the claimant in anticipation of litigation. The Panel noted Dr. Hattem scheduled additional appointments and treatments for Claimant and therefore became an ATP.

Moral of the Story: A physician can become an ATP if they provide treatment that is intended to improve Claimant’s condition.
 
A full duty release is the ATP’s decision: In Tsirlin v. Ace American Insurance, W.C. No. 4-974-865 (April 17, 2017), Claimant was placed at MMI by her ATP with a full duty release. Claimant was then removed from MMI at the DIME. At hearing, the DIME physician’s opinion on MMI was upheld. Claimant then requested a hearing seeking TTD benefits after the original date of MMI. The ALJ found there was no ambiguity that Claimant was released to full duty when she was originally placed at MMI and denied TTD benefits. On appeal, Claimant argued that there was a judicial determination that there was no applicable return to work by the ATP. ICAO was not persuaded, and held that the ATP released Claimant to full duty, therefore she was not entitled to TTD benefits.

Moral of the story: A full duty release by an ATP is valid even when Claimant is removed from MMI at a DIME.
 
AWW Windfall: In Phillips-Zalal v. King Soopers, Inc., W.C. No. 5-000-569 (April 26, 2017), the ALJ computed Claimant’s AWW by including wages from her concurrent employer. Respondents challenged the computation and argued that Claimant’s concurrent wages should not be included in her AWW calculation because she continued to work and she did not lose any wages at her concurrent employment. ICAO disagreed and stated that the ALJ did not abuse her discretion in computing Claimant’s AWW. ICAO held that the fact that Claimant suffered no lost time and no lost wages did not preclude an ALJ from calculating Claimant’s AWW using her concurrent employment wages.

Moral of the story: ALJs have wide-discretion to compute a Claimant’s AWW.
 

Compensable injury, but not a compensable surgery: In Gilbert v. Sears Outlet, W.C. No. 5-002-271 (April 24, 2017), Claimant challenged an Order denying compensability of her knee surgery. Claimant alleged that she injured her knee moving a washing machine. Claimant underwent a patellar surgery. The ALJ found the claim compensable for a right knee strain only and determined that Claimant’s right knee surgery was not reasonable, necessary, or related to her right knee strain. On appeal, ICAO agreed holding that there was sufficient evidence in the record that Claimant did not aggravate her preexisting chronic patellofemoral syndrome, and therefore, Claimant’s subsequent surgery was not reasonable or necessary.

Moral of the story: An injury can be found compensable, but not all medical treatment is necessary or related.