Coxen v. Laidlaw Transit, W.C. No. 4-674-208
The court held that counsel with a valid Power of Attorney has the power to stipulate to Average Weekly Wage. The court also held such a stipulation is not a settlement.
Claimant retained counsel after suffering an industrial injury. Claimant entered into a fee agreement that included a Power of Attorney provision which allowed the attorney to “act in the name and place of the claimant, and to perform every act necessary to be done for claimant.” The provision also included a clause prohibiting the attorney from settling the case without Claimant’s permission. Claimant’s attorney later stipulated to a figure for Claimant’s Average Weekly Wage. The case was closed
Claimant later sustained a worsening of condition and the case was reopened. With new counsel, Claimant argued that the prior stipulation was void because she alleged that her former attorney had no right to stipulate to her Average Weekly Wage. Claimant also asserted that the stipulation was void because it constituted a “settlement” prohibited in the fee agreement.
The court disagreed, holding that the clause allowing the attorney to act on Claimant’s behalf empowered the attorney to stipulate to Average Weekly Wage. The court also held that the stipulation did not violate the settlement-prohibition clause, because the stipulation was not a settlement within the meaning of the clause.
Rivera v. The Corcoran Company, W.C. No. 4-759-240
The court held that relying on the advice of the DIME unit in transmitting medical reports to a DIME physician does not constitute a violation of penalty Rule 11-6. The also court held that, for purposes of penalty Rule 11-7, a DIME physician’s request for a second opinion does not constitute additional treatment.
Claimant underwent a Division Independent Medical Examination after he sustained an admitted work-related injury. The DIME physician requested a second opinion regarding the necessity of a specific surgery before he could make any Maximum Medical Improvement (MMI) determination. The physician asserted that he would provide an addendum to his report after he received the surgical opinion. He also stated that if Claimant did not require surgery, he had reached MMI.
Claimant received a second surgical opinion, and the report was sent to the insurance adjuster, who had never dealt with a case involving a DIME addendum. Unsure how to transmit the report to the DIME physician, the adjuster contacted the DIME unit. The DIME unit told her to send the report directly to the physician as well as to the DIME unit and Claimant’s attorney. The adjuster complied.
Claimant objected and asserted penalties against Respondents for the adjuster’s alleged violation of Rule 11-7, which requires a follow-up IME if the original DIME physician recommends further treatment, and of Rule 11-6, which prohibits communication between the DIME physician and the parties unless approved by the Director or an ALJ.
The court concluded that Respondents had not violated either rule. The court held that the physician’s request for a second opinion did not constitute further treatment, so a follow-up IME was not required. The court also held that because there was no rule that applied to the specific circumstances, the adjuster acted objectively reasonably by contacting the DIME unit and sending the report according to their instructions.
Shickel v. Newflower Market, W.C. No. 4-824-963
Claimant sustained a compensable injury to his ankle in January 2009. The injury required orthopedic surgery and Claimant was later treated for an infection related to the surgery. After this treatment, Claimant showed no symptoms of the infection. On May 11, 2010, Claimant fell off a ladder and injured his ankle again. Two days later, Claimant was injured in a car accident while on his way to see the doctor for his ankle. Claimant suffered bruising from his seat belt. Claimant later checked into the emergency room, where an emergency surgery on his foot revealed significant infection. The infection had also spread to other parts of Claimant’s body.
Claimant asserted that he sustained two separate work-related injuries – on May 11 and on May 13 – and asserted that these injuries caused the reoccurrence of his infection. The court disagreed, finding that Claimant suffered only one injury – on May 11. In crediting one physician’s testimony, the court also found that Claimant’s infection was not caused by the injury, but instead had occurred independently, because Claimant was particularly susceptible to the infection.
Chavez and Pinnacol Assurance v. Kelley Trucking, Inc., 10CA1720
The Court held that claimants have no obligation to seek an insurer’s consent in order to settle with a third party for non-economic damages. The Court also held that claimants were not obligated to pursue all related causes of action jointly with their insurer.
Claimant sustained a work-related injury during a motor vehicle accident. Claimant and insurer, Pinnacol, jointly filed against the three tortfeasors who caused the accident. Claimant and Pinnacol settled with two of the defendants, and Claimant also settled Claimant’s workers’ compensation claim with Pinnacol. Claimant then independently settled with the third defendant, Kelley Trucking. The settlement stated that Claimant provided a release for all non-economic damages arising out of the accident. The settlement expressly stated that it did not “settle, release, reduce, compromise or affect” any causes of action subrogated to Pinnacol. Pinnacol proceeded to trial against Kelley, but was awarded no damages.
Pinnacol subsequently argued that Claimant must forfeit the settlement because Claimant did not seek written approval from Pinnacol pursuant to C.R.S. 8-41-203(2) before settling with Kelley. In the alternative, Pinnacol argued that the settlement should be allocated between Claimant and Pinnacol because Claimant was required to pursue all settlements jointly with Pinnacol.
The Court disagreed, holding that Pinnacol’s subrogation rights extended only to those damages for which Pinnacol was liable, namely “all compensation and all medical, hospital, dental, funeral, and other benefits and expenses to which the employee…[is] entitled under [the Act].” The Court noted that Pinnacol was not liable to Claimant for non-economic damages. Therefore, while Claimant could not settle with Kelley for expenses for which Pinnacol was liable, he could settle for those for which Pinnacol was not liable. The Court also noted that the settlement “explicitly and successfully preserved Pinnacol’s ability to prosecute the subrogated claims.” Therefore, the Court held that Claimant was not required to seek Pinnacol’s permission in order to pursue a settlement for non-economic damages. The Court also held that there is no provision or case that required Claimant and Pinnacol to obtain settlements jointly.
Loofbourrow v. Industrial Claim Appeals Office, W.C. No. 4-804-458; 10CA2176
The Court held that, when a claimant suffers a worsening of condition in a claim that remains open and for which no admission of liability has been filed, the claimant may still receive Temporary Total Disability (TTD) benefits after being placed at Maximum Medical Improvement (MMI). The Court also held that employers must specify an Authorized Treating Provider (ATP) for both the initial injury and also for the worsening of condition.
In November 2008, Claimant sustained a compensable back injury and was placed at MMI with no permanent medical impairment. Claimant received treatment, but lost no time at work. Because Respondents did not file any admission of liability, the case remained open. However, Claimant later sustained a worsening of condition which forced her to stop working. Claimant notified Respondents of the worsening, but Respondents failed to designate an ATP. Claimant began treating with her personal physician, to which Respondents objected.
The Court concluded that, although Respondents had designated an ATP for Claimant’s initial injury, they failed to direct Claimant back to her original ATP, so the right of selection had passed to Claimant.
Claimant alleged entitlement to TTD benefits. Ordinarily, a claimant is only eligible for TTD benefits up to the point that she is placed at MMI. An MMI determination is binding in the absence of a DIME. However, a claimant may only undergo a DIME after the employer or insurer files a Final Admission of Liability (FAL). Because Respondents never filed an FAL, Claimant never had the opportunity to contest the MMI determination. Without an FAL, the case remained open.
The Court first stated that the fact that a case remained open did not preclude a claimant from asserting a worsening of condition. The Court next asserted that, because Claimant could not challenge the MMI determination – and thus potentially be taken off MMI and eligible for TTD benefits – she was entitled to the TTD benefits she accrued because of her worsening of condition.
Risberg v. Industrial Claim Appeals Office, W.C. No. 3-941-887; 10CA2593
In an unpublished opinion, the Court held that an expert at hearing cannot base his testimony on assumptions that contradict facts established at prior hearing. The Court also held that the law at the time a claimant is initially determined to be permanently and totally disabled is the standard that governs whether a claimant’s condition has improved.
Claimant suffered a compensable brain injury in 1988. She was placed at MMI in 1992 and determined to be permanently and totally disabled. She began receiving Permanent Total Disability (PTD) benefits. In 2006, after Claimant’s credit and identity cards were stolen and Claimant began her own investigation of the matter, a local news station aired a segment profiling Claimant and her efforts. Prompted by the report and other surveillance, Respondents alleged Claimant had undergone a change in condition or had committed fraud, and sought to reopen the case and to terminate Claimant’s PTD benefits. An ALJ, relying on the testimony of three of Respondents’ expert witnesses, found that Claimant’s status had improved and that she was no longer permanently and totally disabled.
During the hearing, Respondents presented testimony from a neuropsychologist and psychiatrist, both of whom asserted that Claimant had never suffered a compensable brain injury. The Court stated that the testimony should not have been admitted, because, in stating that Claimant never sustained a compensable injury, the experts raised an original issue that had already been litigated in 1988. The Court concluded that the experts’ opinions did not have a reasonable basis and were legally unfounded because claimant’s injury had already been established in prior proceedings.
Respondents also presented the testimony of a vocational expert who both relied on the other two experts’ assertion that Claimant never suffered a compensable injury and also applied the current legal standard for permanent and total disability. The expert asserted Claimant did not meet the current standard that an employee be “unable to earn any wages in the same or other employment” to be considered permanently and totally disabled. However, the Court held that the applicable legal standard was the standard at the time that Claimant was initially determined to be permanently and totally disabled. The standard at that time only required that an employ be unable to regain efficiency in some substantial degree as a working unit in the fields of general employment. Because the expert applied an incorrect legal standard, the Court held that the expert’s testimony should not have been admitted.
The Court concluded that the ALJ should never have considered the experts’ testimony, because the Court found the testimony of all three experts legally unfounded. As a result, the Court overturned the ALJ’s ruling and denied Respondents’ request to reopen the case and terminate PTD benefits.
