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Page 1 | Page 2 | Page 3 | Page 4 | Back to News |
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Always respond to a DIME
By Tiffany Scully, Esq.
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Employer convicted of theft for making false claim
People v. Witek, 02CA1218 (February 12, 2004): Defendant owned a construction company. During a barbecue held at defendant's home, his girlfriend was injured in a motor scooter accident. Defendant reported the accident to his insurance agent and said that his girlfriend was an employee on a work-related errand when it occurred. He persuaded a real employee to fill out the paperwork to file a workers' compensation claim after his bookkeeper refused to do so. Defendant and his girlfriend then told a claims adjuster that she was an employee and was delivering items for the company at the time of the accident. The girlfriend received disability payments and medical benefits.
However, the bookkeeper notified the insurer, Colorado Compensation Insurance Authority (CCIA) that the girlfriend did not work for defendant's company. Following a jury trial, defendant was convicted of theft and false statement or representation material to a claim for recovery under the Workers' Compensation Act. The girlfriend was acquitted.
The court of appeals affirmed, holding that there was sufficient evidence to convict defendant of false statement or representation under C.R.S. § 8-43-402 despite the fact that defendant did not personally file the workers' compensation claim. The statute is not limited to the filing of a claim, or to false statements or representations made on a particular claim form.
The court of appeals also rejected defendant's argument that the theft conviction should be overturned because he did not receive anything of value. On the theft conviction, it is not necessary that a defendant maintain absolute control over the stolen property for his or her own personal use. A theft by deception conviction will stand when the intended use of the stolen property is inconsistent with the owner's use or benefit and the victim parted with something of value in reliance on the defendant's misrepresentation.
The court of appeals also held that the trial court did not err by instructing the jury that the crime of theft was one of general intent. Finally, the court held that the fact that the girlfriend was acquitted did not provide a basis for reversal of defendant's conviction.
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C.R.S. § 8-42-107.2, added to Colorado Workers' Compensation Act in 1998, mandates that, within thirty days after the mailing of a Division-sponsored independent medical examination (DIME) physician's report, the insurer or self-insured employer "shall" either file an admission of liability consistent with the DIME report or request a hearing to contest the DIME report. This requirement is reiterated in Worker's Compensation Rule of Procedure IV(N)(6). The use of the word "shall" indicates that this requirement is mandatory. See Hernandez v. District Court, 814 P.2d 379, 381 (Colo. 1991).
In City Market, Inc. v. ICAO, 68 P.3d 601 (Colo.App. 2003), the treating physician provided a scheduled impairment rating for the claimant's shoulder. Claimant pursued a DIME. The DIME physician provided a 35% upper extremity rating, which he converted to a 21% whole person rating. The respondents did not file an admission of liability consistent with the DIME report or file an application for hearing. Respondents took the position that because claimant had initially received only a scheduled impairment rating, claimant was not entitled to the DIME in the first place; therefore, respondents asserted that they were not required to respond to the DIME. The ALJ rejected respondents' argument and assessed penalties for failing to respond to the DIME report. The ALJ determined that the failure to file an ad-
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mission or application was unreasonable and violated § 8-42-107.2 and Rule IV(N)(6).
Respondents must either file an admission of liability consistent with the DIME report or file an application for hearing to overcome the DIME. There are no exceptions to this rule. Even if the DIME physician completely agrees with the authorized treating physician's opinions upon which a previous FAL was based, a new FAL or application for hearing must be filed in response to the DIME.
There may be circumstances in which the respondents agree with part of the DIME report and contest the remainder. In that situation, an application for hearing should be filed to overcome the contested portion of the DIME, while any uncontested benefits should be paid. At hearing, a DIME physician's opinion regarding maximum medical improvement and impairment can only be overcome by clear and convincing evidence. However, the DIME physician's recommendations regarding medical maintenance care are not afforded any special weight.
The main point to remember is that when you receive a DIME report, you must respond within thirty (30) days of the date it is mailed or delivered by filing either a general or final admission of liability, or an application for hearing. Failure to do so can lead to the imposition of penalties of up to $500 per day.
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Expert's role in mental claim limited
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Davison v. ICAO, 03SC83, and Mobley v. ICAO, 03SC179 (February 9, 2004): In mental impairment claims, the supreme court held that § 8-41-301(2)(a), C.R.S., only requires expert medical or psychological testimony to support matters within an expert's areas of expertise. The statute states that "a claim for mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. The statue then defines "mental impairment" as a recognized, permanent disability arising from an accidental injury "that involves no physical injury and consists of a psychologically traumatic event that is generally outside of a
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worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances."
The court held that an expert must establish that the claimant has a recognized, permanent disability resulting from a psychologically traumatic event. If the expert is not qualified to testify as to whether the injury arose in the course and scope of employment, was generally outside a worker's usual experience, or would evoke significant distress in a similarly situated worker, a claimant may submit other competent evidence to prove these elements.
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