legaLKonnection Firm Newsletter – April 2014

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 workers’ compensation community.
In the News
We are proud to announce that our very own Josh Brown was recently nominated as Outstanding Respondent Attorney by Professionals in Workers’ Compensation.  The PWC platform brings together professionals from all sides involved in the workers’ compensation system – judges, counsel, physicians, insurance carriers, adjusters, third-party administrators, and employers - to meet and interact with each other through various events and educational programs, allowing them to network and stay current with the constant evolution of the Colorado Workers’ Compensation system.  The PWC Awards were established to recognize those in the workers’ compensation arena for their contributions to the community as well as their professional achievements.  Congratulations Josh on your nomination!

The Victory Lap

Tiffany Kinder and Daniel Watlington were successful in a Motion for Summary Judgment in William Benton v. Lowe Enterprises, Inc. and Federal Insurance Company. Claimant filed an Application for Hearing seeking a higher AWW to account for Claimant’s out-of-pocket costs for continuing his group health insurance. Ms. Kinder and Mr. Watlington drafted a persuasive Motion for Summary Judgment, arguing well-established case law that so long as the employer has continued to pay its share of the insurance premium, then Respondents are not obligated to increase the AWW. The Motion was granted and the Claimant’s Application for Hearing was struck as unripe.  Claimant’s request for an increased AWW was denied.

 

Jessica Melson successfully limited Claimant’s increase in AWW to just over $12 in Max Sterling v. Red Lobster USA and Liberty Mutual Insurance. Claimant originally sought to increase his AWW to $350.66 based on wages 46 weeks prior to his date of injury. Respondents offered credible testimony from the employer and evidence that in the 13 weeks prior to the injury, Claimant voluntarily requested a reduction in his hours to have more time to pursue his own business and to play in a band. Additionally the ALJ found Claimant lacked credibility when he could not recall why his hours were reduced during direct examination. The ALJ limited Claimant’s AWW to $249.36 based on his wages 13 weeks prior to his injury.

Cases You Should Know

Quasi–Course of Employment Doctrine Applies to injuries sustained during medical treatment for work-related injuries: In Bopp v. Garden Square Assisted Living (W.C. 4-893-767, February 6, 2014), Respondents were successful in their Motion for Summary Judgment arguing that Claimant’s injuries sustained from her chiropractic care were not a new separate compensable injury, but were a result of her 2009 workers’ compensation claim that had been settled.  Respondents argued that the injuries were sustained under the Q-Employment Doctrine.   Under this Doctrine, the employer is required to provide medical care, so any injury sustained as a result of traveling to obtaining medical care is compensable.  Jaroinski v. ICAO, 62 P.3d 1082 (Colo. App. 2002). It is implied that an injury sustained during the treatment is also compensable. Id.  In the Bopp case, Claimant’s 2009 claim had been settled and contained language barring Claimant from recovery for other medical conditions as a result of her 2009 injury.  The Court ruled, based on Price Mine Service, Inc. v. ICAO, 64 P.3d 936 (Colo. App. 2003), that injuries sustained under the Quasi-Employment Doctrine are compensable consequences of the original injury and not a separate claim.Disputes in DIME Physician qualifications must be made prior to completion of the DIME:  In Hester v. Eco Express, LLC and Acuity Insurance (W.C. 4-838-236-03, March 11, 2014), Claimant failed to timely object to the selection of the DIME physician.  Claimant objected to the DIME physician after the DIME report was submitted by the physician.  Under the Workers’ Compensation Rules of Procedure, Rule 11 provides specific guidance on filing objections to the DIME physician selected from the panel.   In this particular case, Claimant attended three separate DIMEs with a selected physician.  Claimant objected that the DIME physician was not a spine surgeon.  ICAO ruled that Claimant could not object after completion of the DIME simply because he was unsatisfied with the result.Orders which do not require payment of benefits or penalties or deny benefits are not subject to review: Under C.R.S. §8-43-301(2), a party dissatisfied with an order that requires any party to pay a penalty or benefits, or denies a claimant any benefit or payment, may file a petition to review.  Consequently, orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review.  This subject continues to be litigated and was again considered in Merrett v. State of Colorado, Dept. of Public Safety, Colo. State Patrol (W.C. Nos. 4-912-519-01 & 4-912-520-01, March 10, 2014).  Claimant had only endorsed compensability and medical benefits for the initial hearing.  Compensability was denied.  ICAO declined to review the Claimant’s appeal of the denial, finding Claimant endorsed neither payment of a particular medical benefit/bill nor any indemnity benefits.  It is necessary to always endorse some particular benefit, and not just compensability, in order to preserve the right to file a petition to review.

Time period to reimburse mileage: Claimant was awarded penalties for Respondents’ failure to reimburse the Claimant for medical mileage within 30 days for alleged violation of W.C.R.P. 16-11 and C.R.S. §8-43-401(2)(a).  However, ICAO held that the 30-day period to pay medical bills in Rule 16-11 and C.R.S. §8-43-401(2)(a) was applicable to uncontested medical bills submitted by a provider. Rule 18-6(E) does not specify a time limit within which to reimburse an injured worker for mileage. Therefore, ICAO held no penalties were to be awarded. Richardson v. Pizza Hut, Inc. and Zurich, W.C. 4-560-586 (ICAO February 7, 2014).

Conflicting DIME reports regarding MMI: In Simpson v. Safeworks LLC, and Insurance Company of the State of Pennsylvania, W.C. 4-877-091, (ICAO January 23, 2014), Claimant pursued a DIME and the DIME physician opined he had reached MMI. However, afterwards, the DIME physician issued an addendum DIME report and concluded the Claimant was not at MMI. The ALJ determined that the record contained conflicting MMI determinations by the DIME physician but that the DIME physician ultimately found Claimant not at MMI. As such, the ALJ placed the burden on Respondents to overcome the DIME opinion by clear and convincing evidence. The ALJ opined Respondents failed to overcome the DIME opinion. ICAO noted that if the DIME physician offers ambiguous or conflicting opinions concerning MMI, it is for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a matter of fact. ICAO upheld the ALJ’s determination.

Increased work restrictions do not always indicate worsening condition:  In this Colorado Court of Appeals case, Claimant sustained an injury to his right shoulder. He did not immediately seek medical attention. The next day Claimant reported the injury to his employer. Claimant was seen by the physician assistant who released him to return to work with no restrictions. He was also given a drug test which was positive for morphine. Claimant was terminated. Afterwards, Claimant returned to the same clinic where the doctor ordered him “off work.” Claimant sought TTD benefits despite his termination, alleging his condition worsened after he was terminated and therefore his wage loss was attributable to his injury and not his termination. See Anderson v. Longmont Toyota, Inc.102 P.3d 323 (Colo. 2004); C.R.S. §8-42-105(4). The Court noted that the ALJ may consider several factors when considering whether a condition has worsened.  An increase in work restrictions alone is not per se evidence of a worsening of condition. The Court upheld the ALJ’s order denying Claimant’s request for TTD benefits. Apex Transportation Inc. v. Vigil, W.C. No. 4-850-101 (Colo. App. March 13, 2014)(nsfop).

Injured worker lacks credibility when providing inconsistent mechanisms of injury: Claimant reported different mechanisms which caused her shoulder injury, including closing a truck door and lifting a heavy fish tank. Claimant also had a prior workers’ compensation injury to her right shoulder which had settled. Due to the numerous inconsistencies in the Claimant’s versions of events, the ALJ denied the Claimant’s claim for compensation, and ICAO upheld the determination. Wilcox v. JHCI Holdings and Zurich American Insurance, W.C. No. 4-884-343 (ICAO January 23, 2014).

legaLKonnection Firm Newsletter – March 2014

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 workers’ compensation community.
In the News
                         Joseph W. Gren, 2014 Rising Star, Katherine M. Lee, 2012-2014 Super Lawyer,
Tiffany Scully Kinder, Partner, Joshua D. Brown, 2014 Rising Star
Lee + Kinder, LLC is very proud to have three of its own recognized by Super Lawyersas outstanding in their field: Katherine M. Lee named Super Lawyer 2012-2014Joseph W. Gren named 2014 Rising Star, and Joshua D. Brown named 2014 Rising Star.  Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with third-party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.  The Rising Stars list is developed using the same patented multiphase selection process used for the Super Lawyers list except to be eligible for inclusion, a candidate must be either 40 years old or younger, or in practice for 10 years or less.  Under this rigorous selection process, only the top 5% of lawyers in a state are named to the Super Lawyers list, and only the top 2.5% to the Rising Stars list.

A very warm welcome to the Firm’s newest Associate Attorney, Austin Wolfe.  Mr. Wolfe earned his Bachelor of Arts degree from Temple University, where he majored in English Literature with a minor in religious studies.  Prior to attending law school, he earned his master’s degree in legal administration from the University of Denver Sturm College of Law.  During this time, Mr. Wolfe worked in both the United States Bankruptcy Court and United States District Court for the District of Colorado, where he worked with judicial performance standards and operation procedures in the clerk’s office.  Mr. Wolfe earned his law degree from Villanova University School of Law in 2013.  During law school, Mr. Wolfe interned in the Pennsylvania Governor’s Office of General Counsel and Department of Corrections.  He was also a student attorney with the Farmworker Legal Aid Clinic, where he represented clients in consumer bankruptcy and various immigration proceedings.  Mr. Wolfe is a member of the Colorado and Denver Bar Associations, the Colorado Defense Lawyer’s Association, and Professionals in Workers’ Compensation.

The Firm would like to congratulate Partner Tiffany Scully Kinder and her husband Kyle on the birth of their son, Ryker Dean Kinder.  Ryker entered the world on Sunday, March 2, 2014 at 9 lbs. 13 oz. and 20.5 inches long.  Mother and son are both doing very well.

The Victory Lap
Partner Tiffany Scully Kinder was successful in a full contest win inPriscilla Coe v. Comcast Corporation and Indemnity Insurance Company of North America.  Claimant alleged to have sustained an aggravation to a pre-existing, degenerative cervical condition as a result of allegedly repetitive activities at work. Claimant also alleged that her workstation was not ergonomically correct, causing her to suffer myofascial symptoms. Ms. Kinder offered persuasive evidence at hearing, showing that Claimant’s symptomatology was attributable solely to her degenerative condition and was not related to her work activities. On cross-examination, Ms. Kinder skillfully questioned Claimant’s expert witness, Dr. Edwin Healey, who ultimately acknowledged that he was unable to determine conclusively to what degree, if any, Claimant’s work activities contributed to her symptoms. Claimant’s claim for workers’ compensation benefits was denied and dismissed.

Cases You Should Know
Halfway houses are not jails for purposes of denying WC benefits: According to the statute, claimants cannot receive WC benefits if they are confined in a jail, prison, or any department of corrections (DOC) facility. C.R.S. §8-42-113(1). In Frank Deshane III v. GCA Services Group, the Claimant was a convicted felon who was ordered to live in a halfway house following his release from prison. Respondents argued that the Claimant was precluded from receiving temporary disability benefits because he was “confined” as a result of his felony. ICAP determined that the Claimant was entitled to benefits while staying at the halfway house because he was not “confined” to a location that was a jail, prison, or DOC facility.  ICAP reasoned that a community corrections program is not a jail, prison, or DOC facility.

Orders Related to Issues Not Asserted on a Hearing Application May be Overturned for Lack of Notice: In Lisa Marie Huskinson v. Metro Construction, Inc., the uninsured employer failed to appear at the scheduled hearing. The record showed that the employer received several notices indicating that the topics for hearing included compensability, medical benefits, and AWW. At hearing, the ALJ found the claim compensable, awarded medical benefits, established AWW, awarded temporary disability benefits, and assessed penalties against the employer. On appeal, ICAP found that the employer received proper notice despite the fact that some of the pleadings misstated the employer’s name. However, ICAP ordered that the award of additional benefits and penalties be set aside because the employer was not notified that these issues were going to be determined at hearing.

Respondents Can “Cure” a Violation for Failure to Timely Exchange Medical Records by Ultimately Providing the Medical Record to the Claimant: In Sally Luke v. Hospital Shared Services, the Respondents failed to exchange a medical records review report with the Claimant for one month after receiving the report. Claimant filed an Application for Hearing seeking penalties for Respondents’ failure to properly exchange the medical record pursuant to W.C.R.P. 5-4(a)(5). On appeal, ICAP agreed with the ALJ and determined that Respondents cured their violation when they ultimately exchanged the medical record with the Claimant. Penalties were not warranted because the violation was cured and Claimant could not prove she was actually injured by the violation.

ALJs Have Broad Discretion to Determine Whether to Permit Testimony at Hearing: In Gilbert Padilla v. Wal-Mart Stores, Inc., an ALJ prevented the Claimant from presenting the testimony of his wife after Claimant failed to list his wife as a potential witness. The ALJ determined that the testimony was not rebuttal evidence, but did not state the factual basis for making this determination. On appeal, Claimant argued that the ALJ abused his discretion in not allowing the rebuttal testimony. While ICAP noted that an ALJ has wide discretion to control a hearing and make evidentiary rulings, it remanded the case because the ALJ did not indicate why he decided that the evidence was not rebuttal testimony. ICAP instructed the ALJ to use his discretion and determine whether to permit the testimony.

Issue Preclusion:  In Snell v. City and County of Denver, W.C. No. 4-318-938 (ICAO February 6, 2014), the ICAO set aside the previous order of an ALJ who granted Respondents’ Motion for Summary Judgment based upon issue preclusion, which prevents a person from litigating an issue which has already been determined by another court.  The Claimant filed a workers’ compensation claim in 1996, alleging injuries for mental impairment and hypertension originating in 1981.  However, the Claimant also indicated that the date of injury for mental impairment was unknown.  Respondents argued that, because the Claimant had a prior compensable claim in 1981 for hypertension which was closed, issue preclusion barred the new claim because it appeared to involve an injury for which compensability had already been determined.  The ICAO noted that, while precedent for issue preclusion in such an instance did establish that issue preclusion may be appropriate in instances where the claim for the subsequent injury does not differ from the initial injury, it was inappropriate in this instance because the Claimant had also indicated he suffered the onset of mental illness at an unknown date.  The Court held that this was a different injury than hypertension and therefore the claim was not barred by issue preclusion.

Penalties:  In Teegardin v. J.C. Penney Company, W.C. No. 4-748-106 (ICAO January 17, 2014), the ICAO upheld an order by an ALJ denying penalties endorsed by Claimant for Respondents’ alleged failure to provide medical care, dictate medical care, and attorney’s fees.  Respondents initially denied care through Claimant’s family physician due to their being unaware of a prior referral by the authorized treating provider.  Upon a hearing at the request of Respondents on the issue, ALJ Henk found that the family physician was authorized through the chain of referral and treatment through her was reasonable, necessary, and related to the work injury.  Claimant thereafter sought penalties against Respondents for failure to provide medical care, dictation of care, and attorney’s fees for preparation for hearing.  Respondents also sought penalties against Claimant for endorsing an unripe issue.  ALJ Walsh denied all penalties, finding that the Claimant had failed to meet her burden to show that Respondents acted unreasonably because there was no evidence provided to them regarding the chain of referral while care was being denied.  ICAO affirmed.

Compensability of Unexplained FallsCity of Brighton v. Rodriguez, –P.3d– (Colo. 2014) marked a pivotal case on the determination of compensability of unexplained falls in the workplace. In City of Brighton, the Colorado Supreme Court held that unexplained falls are the result of a neutral force and therefore necessarily arise out of a claimant’s employment.  Accordingly, where a claimant is within the course and scope of his employment and sustains an unexplained fall, the criteria under this decision consequentially make any resultant injury compensable, absent a valid defense.  In this case, the Claimant was descending stairs at work and suddenly fell without further explanation.  It was later found that the Claimant was susceptible to brain aneurysms.  Nevertheless, the Court held that unexplained falls, as a category, constitute a “neutral force,” meaning that they are neither related to an inherent risk of employment or a personal cause.  The Court further determined that such injuries necessarily arose out of the employment because, but for the circumstances of employment in which the injury occurred, the injury would not have occurred.  The Court indicated that, while neutral forces are not inherently work-related, the employment nevertheless is a causal factor in placing the Claimant at risk of the neutral force because it obligates the Claimant to engage in various work-related functions at the time of injury.  According to the Court’s reasoning, unexplained falls occurring at work are therefore work-related injuries because they are sustained within the course and scope of employment and sufficiently related to the obligations of employment.  While evidence of an alternative, personal cause may still be a sufficient defense, the Court noted in Brighton that the ALJ had determined that the fall was not caused by Claimant’s aneurysms.  In addition to this holding, the Court also held that a party seeking to modify an admission of liability must prove by a preponderance of the evidence that it is entitled to a modification.

Payment of TTD after placement at MMI:  The Colorado Supreme Court ruled inHarman-Bergstedt v. Loofbourrow, –P.3d– (Colo. 2014), that a claimant may still be entitled to TTD benefits after placement at MMI where no DIME had been pursued, albeit under the unique circumstances of this specific claim.  In Loofbourrow, the Claimant reported an injury to her back to her employer but missed no time from work (under C.R.S. §8-42-103(1)(a), a claimant is not statutorily entitled to TTD where there is not over three days missed from work).  The employer never reported the injury to the DOWC and Claimant was placed at MMI shortly after the injury.  No admission was ever filed.  Nearly a year later, the Claimant alleged a work-related aggravation of the initial injury and sought a hearing on compensability and TTD benefits, also petitioning to reopen the previous claim.  Because the initial claim had never been adjudicated compensable, the ALJ regarded the subsequent claim as new.  Nevertheless, the Respondents argued that the Claimant could not be entitled to TTD because she had been placed at MMI for this injury with no lost time prior to that date.  Respondents argued that the Claimant never pursued a DIME to challenge the determination of MMI and therefore Claimant was precluded from collecting TTD benefits beyond that date.  The Court held that, while the determination of MMI is relevant for the purposes of medical care, it has no statutory significance with regard to injuries in which a claimant is off work for three days or less.  The Court reasoned that MMI was only relevant for cases in which indemnity was payable and therefore inapplicable to the circumstances of this particular case.

Katherine Lee named one of the Best Lawyers in America© 2014

Katherine Lee named one of the Best Lawyers in America© 2014

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We are very proud to announce that Katherine Lee has been selected by her peers for inclusion in The Best Lawyers in America© 2014 in the field of Workers’ Compensation Law – Employers.

(Copyright 2013 by Woodward/White, Inc. of Aiken, SC).

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

legaLKonnection Firm Newsletter – Feb 2013

In the News
Our exclusively women-owned firm has increased its muscle mass in the past month.  With the addition of Josh Brown, who has joined the firm as Of Counsel, the firm expands upon its focus of workers’ compensation to include welcome experience in employment law and general liability practice.  Enriching this addition are new staff members and an expansion in our office space.  L+K will be acquiring new property to accommodate its growing practice and expects to continue on this course through the remainder of the year.  In keeping with this spirit of progress, we have also renovated our digital case management system for more streamlined and effective file management, billing, and operational efficiency.  We expect only increased momentum in our legal capacity as a result of these evolutions.

Joshua D. Brown, has been practicing in Colorado since 2005 and has successfully defended employers in suits involving the Americans with Disabilities Act (ADA), “Title VII” employment discrimination, age discrimination, and other matters routinely encountered by businesses large and small alike.

Josh also specializes in employment contract matters and related concerns, non-compete agreements, and trade secret issues, with a focus on avoiding undue litigation.

Federal, state, and administrative proceedings are familiar jurisdictions of practice for Josh. In the past two years, he has overseen defense verdicts in three trials which involved bad faith, fraud, and discrimination claims. In following with the L+K livelihood, Josh also has over seven years of workers’ compensation experience.

The Victory Lap

Kudos to Joseph W. Gren, who racked up two appellate victories for the firm in January. In front of the Industrial Claim Appeals Court, Joe successfully argued in Cheney v. Coca-Cola and Blue Bell Creameries that the Claimant’s injury was the result of his duties with Blue Bell and that Coca-Cola was not responsible for the requested elbow surgery. Cheney v. Coca-Cola Refreshments, Blue Bell Creameries, ACE American Insurance, and Standard Fire Insurance, W.C. No. 4-873-873, (January 29, 2013). In another L+K victory, the Colorado Court of Appeals affirmed an ICAO opinion denying reopening on the basis that the symptoms which Claimant asserted had worsened were not only unrelated, but may not have changed to an extent warranting reopening. Martinez v. ICAO and Evraz Rock Mountain Steel, (Colo. App. 2012)(nsfop).

Kudos also to Tiffany Scully Kinder, who recently had a successful outcome to litigation involving a Claimant’s claim for a worsening condition. Claimant had an undisputed head injury from being struck by a heavy machine gate, and attempted to add to the claim later treatment for a “traumatic brain injury.” Ms. Kinder successfully argued in Vu Bui v. Caraustar Industries, Inc. and ACE American Insurance, W.C. 4-893-645-02 (February 1, 2013) that this later claim for benefits was not related to the initial work-related injury. Claimant’s claim for further medical treatment was denied and dismissed.

Legalization of Marijuana in Colorado: Employer Guidelines for Workers’ Compensation Claims

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Legalization of Marijuana in Colorado:

Employer Guidelines for Workers’ Compensation Claims

N. Elizabeth Quick, Esq.

 

On November 6, 2012, Colorado became the first State to legalize marijuana with the passage of Amendment 64. Under Amendment 64, persons over the age of twenty-one will be allowed to legally possess up to one ounce of marijuana[1]. However, the Amendment contains a provision for employers, subsection six (6). This provision states, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Despite Colorado legislation, possession and growing of marijuana remains illegal under federal law, and is classified as a Schedule I Controlled Substance under the Federal Controlled Substances Act. Given the conflict between State and Federal Law, how do employers proceed? State laws which conflict with, or are contrary to, federal laws are invalid[2]. We anticipate substantial litigation regarding the constitutionality of Amendment 64, and the Department of Justice has pledged to challenge Amendment 64 in federal court. Given that Federal Law ultimately controls, we recommend all employers update, or implement, a “no tolerance” policy for drugs and alcohol.

While marijuana may be legal in Colorado, employers may still use consumption of marijuana as a basis for a safety rule violation or termination for cause in a workers’ compensation claim. The hallucinogenic agent in marijuana is THC, and can be detected at a level of 5ng/mL[3].  THC is stored in the body’s fat, making it possible to detect for up to 13 days[4]. However, only 20% of THC is detectible in a urine screen[5], as the THC has already passed through the body.  If an employer is randomly testing employees for drug use, we recommend urine screens as the standard protocol. The THC present in the drug screen will be sufficient to show use and support a termination for cause defense.

However, THC is also detectible in the blood, and blood tests will show the current levels of THC in the employee’s bloodstream; the level of THC intoxication (see footnote 5). While a toxicologist may testify regarding THC levels expected in a “recreational user” versus the THC levels present in a blood sample, there is currently no State recognized level of marijuana intoxication. Despite this oversight in regulation, we recommend employers require employees to submit to a blood test if an accident or safety rule violation has occurred. The practice of employer-required blood tests has repeatedly been upheld by the Courts[6].

To prove a safety rule violation, the employer and insurer must show the injury was caused by the employee’s marijuana use[7]. The blood sample will allow the toxicologist to testify regarding how the level of THC in the employee’s blood would have affected job performance at the time of the injury. Common signs of marijuana impairment include: distorted perceptions; impaired coordination; difficulty with thinking and problem solving; and problems with learning and memory[8].

In summary, despite the passage of Amendment 64, employers may continue to hold their employees accountable for marijuana use on the job through the safety rule violation and termination for cause provisions of the Workers’ Compensation Act. Please do not hesitate to contact our office so that we may provide additional guidance on this issue on a case by case basis.

 

 

 


[1] http://www.regulatemarijuana.org/s/regulate-marijuana-alcohol-act-2012

[2] Gibbons v. Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).

[3] Am J Addict. 2009; 18(3): 185–193.

[4] Drew, M., et al, “The Metabolism of Marijuana.” Achieve Solutions 1999., National Institute on Drug Abuse “Marijuana: Facts for Teens.” Revised March 2008., National Institutes of Health “Workshop on the Medical Utility of Marijuana.” February 1997., National Highway Traffic Safety Administration “Cannabis / Marijuana” Accessed November 2008., NORML “The ABCs of Marijuana and Drug Testing.” Apr 01, 2004.

[5] Huestis, M. A. (2005). “Pharmacokinetics and Metabolism of the Plant Cannabinoids, Δ9-Tetrahydrocannibinol, Cannabidiol and Cannabinol”.Cannabinoids. Handbook of Experimental Pharmacology 168 (168): 657–90.

[6] American Federation of Government Employees, Local 2391 v. Martin, 969 F.2d 788 (9th Cir.1992), and National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990). Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

[7] C.R.S. § 8-42-112 (1)(a)(b)

[8] http://www.drugabuse.gov/publications/drugfacts/marijuana

Lee + Kinder Certified by WBENC

Lee and Kinder, LLC are very excited to be certified as a Women’s Business Enterprise by the Women’s Business Enterprise Council (“WBENC”). As an advocate of women-owned businesses, the WBENC’s broad network will provide our law firm the opportunity to connect with many corporate entities interested in creating a diverse network of legal professionals. We look forward to providing our standard of legal representation to those in need of what we do best – quality, knowledgeable, and outstanding service in the areas of workers’ compensation defense and employment/insurance defense, all combined with integrity and pride in our ability to take care of our clients. We are very proud of our success as a women-owned business and pleased to be recognized by this very reputable and well-connected organization.

October 2011 ICAO Updates

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.

Case Law Updates, May 2011

The following memo surveys the Industrial Claim Appeals Office (I.C.A.O.) and the Colorado Court of Appeals decisions issued in May of 2011. If you have any questions about the future implications of each one of these cases, please never hesitate to contact us.

 

Beth Robinson v. Goodbye Blue Monday, W.C. No. 4-613-287 (April 21, 2011)

The parties entered into a full and final settlement agreement, which included funding of a Medicare Set Aside (MSA). The settlement agreement provided that Respondents would fund the MSA upon CMS approval. Another provision stated that MSA funding was contingent upon CMS approval and Respondents agreed to pay for maintenance medical benefits during the approval process.

After the settlement agreement, the Social Security Administration awarded the Claimant retroactive Social Security Disability Income (SSDI) benefits. Respondents refused to submit the MSA for CMS approval. Respondents also refused to pay maintenance medical benefits pending approval of the MSA. Respondents argued that submission of the MSA to CMS was futile because the amount of the settlement was under $250,000 and CMS would not likely consider the MSA proposal.

The ALJ determined that Respondents’ conduct caused the Claimant “great harm and potential harm.” The ALJ assessed penalties in the amount of $300 per day from November 23, 2009 through July 29, 2010 for Respondents’ failure to pay maintenance medical benefits, which the ALJ construed as unilateral termination of medical benefits despite the amendments to W.C.R.P. Rule 7-2. The I.C.A.O. affirmed the ALJ’s assessment of monetary penalties against Respondents.

 

Deanna Siefken v. The Home Depot, W.C. No. 4-740-549 (April 27, 2011)

The I.C.A.O. issued two separate opinions on April 27, 2011 in favor of Respondents. One case concerned insurance coverage and penalties. The second case concerned permanent partial disability benefits and medical maintenance benefits.

In the first case, Claimant sought monetary penalties for the employer’s alleged failure to carry worker’s compensation insurance. Claimant argued the employer’s contractual obligation to reimburse the insurer was considered a “deductable.” The Colorado Workers’ Compensation Act prohibits deductibles from exceeding $5,000.  The ALJ determined that the contractual obligation was not a deductable because a deductable is defined as “the portion of the loss to be borne by the insured before the insurer becomes liable for payment.” Thus, Respondents did not violate the Act’s insurance coverage requirements. The I.C.A.O. affirmed.

In the second case, the insurer, but not Respondents’ attorney or the employer received a DIME report.  Respondents did not receive the DIME addendum report until several months later. Respondents subsequently filed an Application for Hearing to overcome the DIME on the issue of MMI and impairment. The DIME provided a 23% whole person impairment rating, which the ALJ overruled and provided no impairment.  The Claimant argued that Respondents failed to timely file an Application for Hearing challenging the DIME physician’s opinion on MMI and impairment. The ALJ determined Respondents’ receipt of the DIME addendum report triggered the statutory 30 day time limit to file an Application for Hearing to challenge the DIME physician’s opinion. The I.C.A.O. affirmed.

 

Ben Steele v. Oakland Raiders, W.C. No. 4-833-191 (April 27, 2011)

Claimant, who resided Colorado and played football in California, filed a claim for workers’ compensation benefits in California. Respondents filed the Employer’s First Report of Injury in Colorado. The Director assessed monetary penalties against Respondents failure to file a position within 20 days. Respondents submitted documents to the Director evidencing that Claimant sought benefits in California for alleged cumulative trauma. While the I.C.A.O. vacated the Director’s penalties order, the case was remanded to determine whether it was necessary for Respondents to admit or deny the claim given that the First Report of Injury was filed in Colorado.

 

Schell v. Tolin Mechanical Systems, W.C. No. 4-592-624 (May 11, 2011)

Respondents sought to introduce testimony of an employer witness at hearing. The ALJ barred the witness’s testimony on the grounds that Respondents failed to endorse the witness on their Response to Application for Hearing. A co-Respondent removed from the claim prior to hearing endorsed the witness on their Response to Application for Hearing. The I.C.A.O. affirmed the ALJ’s decision holding that only witnesses endorsed on the pleadings may testify not withstanding a later order or written agreement.

 

Medina-Weber v. Denver Public Schools, W.C. No. 4-782-625 (May 9, 2011)

During a previous claim, Respondents overcame a DIME that assessed a 13% whole person impairment rating. The DIME also apportioned 10% of the 13% whole person impairment rating to previous injuries. At hearing, the ALJ assessed no permanent impairment. During a later case, the Claimant underwent a DIME, which determined physical impairment with no apportionment. The later ALJ determined that no apportionment was applicable because the previous ALJ provided no ratable impairment.

On appeal, the I.C.A.O. stated that the DIME report must be overcome by clear and convincing evidence. Although the first ALJ determined permanent impairment, the Claimant did not overcome the first DIME physician’s apportionment determination by clear and convincing evidence. Thus, the I.C.A.O. held that apportionment was applicable and remanded the case for an apportionment determination.

 

Munoz v. Industrial Claim Appeals Office, No. 10CA0592 (May 12, 2011)

This case involved whether DIME proceedings are stayed during the pendency of a dispute over the DIME selection process. The Court of Appeals held that when an Application for Hearing challenging the DIME selection process is filed with the Office of Administrative Courts and the party serves the Division DIME Unit, the stay of DIME proceedings is automatic. The Court of Appeals dismissed the remaining penalties issue.

 

Case Law Updates, April 2011

Kondracki v. Metro Taxi, W.C. No. 4-782-175, ICAO

This claim addresses the “similar” insurance coverage requirements of C.R.S. § 40-11.5102(5)(b). Claimant was injured while operating a taxi cab.  Metro asserted that Claimant was an independent contractor.  The ALJ held that Claimant was an employee of Metro Taxi based on the terms of the agreement between Claimant and Metro.  Additionally, Metro was uninsured at the time, and notified of such due to another pending claim.  The ALJ assessed penalties against Metro for violation of C.R.S. § 40-11.5102(5)(b) as Claimant’s insurance policy with AIG was “not similar” to workers’ compensative coverage. The panel affirmed. What this means for you: An employer cannot evade the required workers’ compensation coverage by contracting out work to independent contractors with substandard coverage plans. Ensure all independent contractors or contract employees have sufficient coverage similar to workers’ compensation coverage.

 

Lane v. Hospital Shared Services, W.C. No. 4-784-015, ICAO

This claim addresses the causation requirement between inability to earn wages and eligibility for permanent total disability (PTD) benefits. Claimant injured his left arm and hand tripping over a pallet jack.  In addition to his workers’ compensation injury, Claimant suffered from numerous, debilitating non-work related conditions. With all of his injuries and illnesses, Claimant was unable to work and asserted a claim for PTD benefits.  The ALJ determined Claimant’s inability to earn wages was due to his non-work related conditions and complications, and he was therefore not eligible for PTD benefits. The panel affirmed.  What this means for you: Claimant bears the burden to prove that the industrial injury is a “significant causative factor” in Claimant’s inability to earn wages and subsequent entitlement to PTD benefits.

 

Trusty v. Big Lots Stores, Inc., W.C. No. 4-770-446, ICAO

This claim addresses the requirement to assert the affirmative defense of issue preclusion (a.k.a. collateral estoppel). Claimant suffered a low back injury which was found compensable by ALJ Felter. Claimant underwent a Division IME (DIME) and was provided a 20% whole person impairment rating. Respondents challenged the DIME, and ALJ Jones found Respondents overcame the DIME by clear and convincing evidence. Claimant appealed on the basis that compensability was determined by ALJ Felter, and thus precluded from consideration by ALJ Jones. The panel referenced Sunny Acres Villa, Inc. and held that the issue sought to be precluded must be identical to an issue actually determined in prior proceedings. Because Claimant did not raise the issue of impairment or the issue of the nature and extent of his permanent impairment before ALJ Felter, ALJ Jones properly considered the issue at hearing and did not commit error in determining Respondents met their burden to overcome the DIME by clear and convincing evidence. What this means for you: Collateral estoppel will rarely be an available affirmative defense, as issues raised in subsequent hearings are rarely similar, let alone identical, to issues raised in initial compensability proceedings.

 

Pankratz v. Hancock Fabrics, W.C. No. 4-653-869, ICAO

This claim addresses the rights of the parties to alter a settlement agreement in the event the Medicare Set Aside (MSA) approved amount far exceeds the estimated amount. The parties entered into an approved settlement agreement with Respondents’ agreement to fund an MSA which was estimated to be approximately $30,000. The final approved MSA amount was over $488,000. Respondents filed an Application for Hearing and requested the MSA portion of the settlement be set aside to due mutual mistake of material fact. Claimant then alleged penalties against Respondents for failure to comply with the Order approving the settlement. The ALJ found Respondents failed to prove mutual mistake and denied Claimant’s claim for penalties Claimant appealed the ALJ’s failure to impose penalties, and asserted the ALJ erred in determining he had no jurisdiction over the MSA. The panel held that W.C.R.P. Rule 7-2(A)(1) clearly stated that approval of a settlement agreement does not constitute approval of an MSA, and therefore Respondents were not in violation of the Order, or subject to penalties, by failing to adequately fund the MSA. What this means for you: The panel intimated the MSA might well be a binding agreement, a breach of which could lead to a cause of action. However, the panel did not reach any further conclusions as that issue was not before the panel. Structure settlement language carefully to allow for setting aside the settlement agreement in the case of a “surprise” MSA amount.

 

Smith v. J-T Initiatives, Inc., W.C. No. 4-815-801, ICAO

This claim affirms established law that a Claimant is entitled to an increase in average weekly wage based on concurrent employment, which will correspondingly increase Claimant’s temporary total disability benefit rate.

 

Olaes v. Elkhorn Construction Company, W.C. No. 4-782-977, ICAO

This claim affirms established law that a Claimant who is responsible for termination of their employment cannot allege entitlement to lost wages through temporary total disability benefits.  In this claim, Claimant falsified his social security and permanent resident card.

 

Steele v. Denver Public Schools, W.C. Nos. 4-826-116 & 4-833-702, ICAO

This claim affirms established law that a Claimant must prove compensability by a preponderance of the evidence, and an ALJ’s determination regarding compensability will not be disturbed on appeal unless the findings of fact are not supported by the evidence.

 

Johnson v. Champ, LLC, W.C. No. 4-785-983, ICAO

This claim concerns the required supporting documentation for proper filing of a Final Admission of Liability (FAL). At hearing, the ALJ concluded the physician’s report attached to the FAL had been altered, most likely by outside influence, in regards to permanent impairment and MMI. Respondents had admitted for a wrist injury, which was at MMI, but not Claimant’s neck, elbow, and shoulder conditions. As such, the ALJ held the FAL to be void, and assessed penalties against Respondents in the amount of $49,050 for violation of W.C.R.P. 5-5.  Respondents appealed, citing violation of due process, and improper burden shifting on causation. The panel held Respondents were not provided sufficient notice regarding the allegedly altered FAL, thus the ALJ abused his discretion by not providing the insurer with a fair opportunity to respond to the allegation. Regarding causation, the panel found the ALJ had not made sufficient findings of fact to conclude that Respondents knew the disputed conditions were related to the admitted condition upon the filing of the FAL, and therefore could not assess penalties.  The panel remanded the claim back to the ALJ for further findings.  What this means for you: Whenever a Claimant asserts a claim for penalties, request that the ALJ make in-depth, specific findings of fact for the basis of penalties so that your counsel can properly consider appeal without remand.

Legislative Update, April 2011

The following is an overview of a number of important House Bills and statutory changes made in the Legislature that have a direct impact on the parties in adjudication of Colorado workers’ compensation claims. [Read more...]