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reported to Mesa County Detention Center, authorities confiscated from claimant two bags filled with medications. Claimant admitted to the nurse at the Detention Center that he was not taking the medications, but was collecting them in case he could not obtain them later. Although the nurse reported this to Dr. Werner, he continued to prescribe medications for claimant.
Claimant's attorney Turner filed an application for a Division-sponsored independent medical examination. Karen Ksiazek, M.D., was selected to examine claimant. Attorney Clifton successfully argued at a prehearing conference that Dr. Ksiazek should be permitted to review the extensive videotapes of claimant. After reviewing the videotapes and examining claimant, Dr. Ksiazek concluded that claimant had reached MMI with no permanent impairment and was "malingering."
Faced with formidable evidence, attorney Turner nonetheless filed an application for hearing and contended that Dr. Kesten was not an authorized treating physician, that the FAL was invalid, that respondents wrongfully cut off claimant's benefits, and that respondents should be penalized.
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Despite substantial evidence showing that Dr. Kesten actively treated claimant, Administrative Law Judge (ALJ) Edward Martinez ruled on October 1, 2002 that Dr. Kesten was not an authorized treating physician and State Farm was obligated to resume payment of TTD compensation. Attorney Clifton appealed the ALJ's order on behalf of State Farm and convinced the ALJ to issue a supplemental order on January 17, 2003 that withdrew the award of additional TTD benefits.
Subsequently, the Colorado Attorney General filed a criminal complaint against claimant alleging theft and making false statements for the purpose of obtaining payment under the Workers' Compensation Act. Shortly before trial on these charges in December 2003, claimant pled guilty to the Class 5 felony of making a false statement. He was sentenced to two years of probation and ordered to pay State Farm $18,761 as restitution.
This case represents an example of the success that can be accomplished, despite a biased forum, through the relentless, determined effort by the claim representative, the defense attorney and the investigators.
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Rocky Mountain Cardiology v. ICAO, 03CA437 (February 12, 2004): Claimant was injured in 1999. In June 2001, employer filed a general admission of liability for payment of temporary disability benefits. In August 2001, employer suspended benefits based on claimant's failure to attend a rescheduled medical appointment. However, claimant did attend a rescheduled appointment on August 31, 2001, and by September 20, 2001, employer knew that claimant had done so. Employer did not reinstate benefits. Instead, in December 2001, employer moved to stay, seeking to bar reinstatement of benefits pending completion of the independent medical examination process. The stay was denied. In January 2002, employer filed an application for hearing on the issues of compensability and claimant's entitlement to temporary disability benefits, and sought to withdraw the previously filed admissions of liability.
The Administrative Law Judge (ALJ) held that claimant failed to prove that she had suffered compensable injuries. The ALJ granted employer's request to with-
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draw its admission of liability, determined that employer had no duty to reinstate temporary disability benefits once they had been properly suspended, and denied claimant's claim for penalties.
On review, ICAO held that employer properly suspended benefits after claimant failed to attend the medical appointment. However, based on C.R.S. § 8-42-105(2)(c), ICAO determined that employer was required to reinstate disability benefits after August 31, 2001, and to pay such benefits until the ALJ entered his August 2002 order. ICAO concluded that claimant's receipt of the disputed benefits was not an overpayment. ICAO set aside the ALJ's ruling that penalties were not warranted, and remanded that issue to determine the amount of penalties to be imposed.
The court of appeals affirmed, holding that ICAO did not err in ordering reinstatement of temporary disability payments based on the August 2001 general admission of liability. The court held that under § 8-42-105(2)(c), temporary disability benefits must be automatically reinstated once the claimant appears at a rescheduled
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appointment. Thus, employer was bound by the June 2001 admission to pay temporary disability benefits until prospective relief was granted by the ALJ. The court rejected employer's arguments that equitable principles required a different result, and that the disputed payments constituted an overpayment.
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