FEBRUARY

2005

 All  Issues  Binding  on  Division  IME

Tanessa Hernandez v. Swift Newspapers, (December 3, 2004): Claimant injured her shoulder.  The authorized treating provider (ATP) placed Claimant at maximum medical improvement (MMI) with a 6% scheduled impairment rating for the upper extremity. 

   Respondents requested a division independent medical examination (DIME) and disputed the impairment rating, but not the MMI date.  Nevertheless, the DIME physician stated Claimant was not at MMI

and gave Claimant an advisory 24% scheduled impairment rating.

   Respondents argued the DIME physic-cian’s opinion on the issue of MMI was not binding because Respondents did not “request” the issue of MMI be addressed.

   The Industrial Claim Appeals Office (ICAO) held under W.C.R.P. Rule XIV(L)(3)(a)(5), a request for a DIME constitutes an automatic “dispute” of the ATP’s findings of both MMI and impairment unless the parties expressly agree in writing to the contrary.  

Patricia Kidwell v. City of Denver (December 15, 2004): Claimant underwent hip surgery for a non-work related condition and subsequently had to use crutches.  Claimant fell and injured her knee after attempting to step up one step between the parking lot and the door to her employment. 

   The Industrial Claim Appeals Office (ICAO) held when a Claimant’s injury at work is precipitated by a preexisting physical infirmity which is unrelated to the employment, the resulting injury is not compensable unless a “special hazard” of employment elevates the risk of injury. 

   If an injury is precipitated by a pre-existing personal condition, the resulting injury does not “arise out of employment” unless a “special hazard” supplies the requisite causal link to the employment.

(See “Special Hazard” on Page 2)

Special Hazard?

Jerry Weil v. Dillon Companies, d/b/a City Market (January 24, 2005): In a personal injury case, Plaintiff slipped and fell  in City Market’s produce section.  Plaintiff suffered a fractured pelvis, sacrum, and torn rotator cuff. 

   Plaintiff filed an action against Dillon Companies to recover medical expenses associated with the injuries and non-economic damages for pain and suffering.  During pretrial discovery, Defendants requested medical records prior to the slip and fall injury. 

   The Colorado Supreme Court (SC) held that Plaintiff did not waive his physician/patient privilege to medical records prior to the slip and fall injury simply by filing a claim for non-economic damages for pain and suffering. 

   The SC held Plaintiff was not required to authorize the release of his medical records for medical treatment received prior to the slip and fall injury.  

Plaintiff not Required to

Release Prior Medical

Records

parties.

   An unrepresented (pro se) claimant is one of the parties.  Failure to comply with this rule can subject the insurer (or self-insured) to a penalty of up to $500 per day.  Send medical reports and records to the unrepresented claimant and document in your file that you did so.

Provide Reports to Claimant

By James R. Clifton

 

   The DIME physician’s opinions on both MMI and impairment become binding  unless Claimant and Respondents agree in writing, at least five (5) days before the DIME, to limit the issues of the DIME to impairment or MMI.

   There is a new penalty trap claimants’ attorneys are springing:  a claim for penal-ties against the insurer (or self-insured) for failing to provide medical reports to a claimant before claimant obtained repre-sentation.  Rule IX.B.2. of the Workers’ Compensation Rules of Procedure requires provision of every medical report to the