A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW

2006

DECEMBER

DIME Physician Not Fan of Performing Arts

 Tells Thespian: “Don’t Quit Your Day Job”

 

Shirlee Gaccetta’s acting career came to an abrupt end in Shirlee Gaccetta v. City of Aurora, W.C. Number 4-550-340 (November 28, 2006).  Ms. Gaccetta sus-tained a compensable injury on January 23, 2002 when she slipped and fell on an icy parking lot.  She sought medical treatment with Dr. Mitchell the next day who diag-nosed a closed head injury, a left shoulder strain, a cervical strain and a lumbar strain.  She underwent extensive physical therapy and was treated by multiple physicians including Dr. Aschberger and Dr. Conforti.  She received a “biofeedback evaluation”, “re-education” and “training” from

The attorneys at Clifton, Mueller & Bovarnick, P.C. recently confronted several situations where opposing counsel directed communication to respondents’ insurance adjustor without our prior consent.

Ethics Opinion 73, written by the Ethics Committee of the Colorado Bar Association, states, “Once a lawyer who represents a claimant knows an insurance company has retained counsel to represent its insured in the specific matter, that lawyer may not communicate or cause another to communicate with the insurance adjustor regarding that matter unless the claimant’s lawyer has obtained the prior consent of the lawyer representing the insured.”

We often confront the situation where opposing counsel writes directly to the adjustor and copies respondents’ attorney. 

psychologist Donna Bar-Navon.  Dr. Mitchell finally placed Ms. Gaccetta at MMI on May 23, 2003 and assigned her a 52% whole person impairment rating.

Dr. Tanner performed a DIME in September 2003, opined that claimant had not reached MMI and recommended a course of osteopathic manipulation.  Upon completion of the treatment, Dr. Tanner performed a second DIME but this time noticed something unusual.  The claimant exhibited “effort problems” and “effort deficits” which Dr. Tanner easily remedied by applying “the quick delivery of forces”. 

Although the claimant exhibited “almost nonexistent” and “virtually [no]” cervical range of motion during the examination, she had no problem turning her head to read the doctor’s notes and getting into her car.  Dr. Tanner characterized Ms. Gaccetta’s behavior as “near fraudulent” and rated her impairment at zero percent.

Dr. Goldman subsequently performed an IME at the claimant’s request and measured a 33% whole person impairment.

At hearing, Dr. Tanner testified that he asked the claimant to “give a good effort”

This form of communication is prohibited unless opposing counsel received CMB’s permission to write directly to the adjustor. 

If you receive one of these letters from opposing counsel, we recommend that you call your attorney prior to taking any action.

Ethics Opinion 73: “Talk To My Attorney”

By James R. Clifton

The attorneys at Clifton, Mueller & Bovarnick, P.C. welcome Administrative Law Judge Margot Jones back to the bench and congratulate Administrative Law Judge Jill Matoon on her appointment as judge to the Pueblo District Court.

1. Make sure you attach the appropriate paperwork to your admissions. 

2. Make sure you send the claimant, or if represented claimant’s attorney, copies of his medical records within 15 working days of your receipt.

3. Make your offers of modified duty in writing and follow Rule 6-1(4) without exception.

4. Follow the requirements of the rules of procedure when contesting medical bills and requests for preauthorization.

Every action you take may eventually be scrutinized.  Please, call CMB if you ever have any questions regarding these complex areas of law.