A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW

2006

JULY

Unexpected Changes Rattle the Western Slope

The OAC recently issued a decision in favor of the claimant’s bar. In case you hadn’t heard, the office suddenly and unexpectedly  dropped the bombshell that they were shipping ALJ Martinez to Denver for “more seasoning” and “collapsing” the Glenwood Springs and Durango Docket.

According to Chief ALJ Mike Williams, the Grand Junction docket will remain open.  The office is experimenting with a “pilot program” and will rotate ALJs into Grand Junction from Denver.  When asked to provide more specific detail regarding ALJ Martinez, the judge declined to comment, citing “personnel issues.”  He did say that ALJ Martinez will finish each hearing he has presided over.

As of press time, ALJ Felter has stated that the OAC will reinstate the Durango docket in September. 

Director’s New Interpretive Bulletin on Claimant’s Non-Compliance

By Richard A. Bovarnick

 

Director Whiteside recently issued Interpretive Bulletin Number 12, “Non-Compliance Does NOT Equal MMI,” just days before she retires at the end of July.

According to soon to be former Director Whiteside, an authorized treating physician  should not be asked to place a claimant at MMI simply because the claimant abandons healthcare.  What she suggests should be done depending upon the

The Industrial Claims Appeals Office recently clarified its position on apportionment in Resources One v. ICAO, W.C. Number 4-589-175 (June 15, 2006).  Claimant sustained a back injury in 2003 during and in the course and scope of his employment.  Claimant had an extensive history of back problems prior to the injury, having been diagnosed with degenerative disc disease, arthritic changes of the spine and spinal stenosis.

Although claimant was placed at MMI in 2004, an ALJ upheld a DIME physician’s determination that claimant was not at MMI.  On appeal, employer argued that the ALJ had failed to apportion liability between the industrial injury and claimant’s preexisting spinal condition.

Employer conceded that claimant’s injuries were caused in part by the work-related injury.  However, employer contended that it was liable only for the portion of medical and temporary disability benefits

particular facts of the case, is either file a closed General Admission pursuant to section 8-42-105(2)(c) and WCRP 6(1) where the claimant is receiving TTD and/or file a Motion to Compel pursuant to section 8-43-404(3). 

In the first instance, TTD may be terminated after the claimant fails to attend the second re-scheduled appointment but the file is still open.  In the second

instance, once the Motion to Compel is granted and the claimant fails to attend the compelled appointment, then a Motion to Dismiss the claim/close for failure to prosecute can be filed pursuant to section 8-43-207(1)(n).  CMB is of the opinion that penalties may be appropriate for claimant’s failure to comply with the order.

attributable to the work-related injury.  The panel disagreed.

According to the panel, there are three main types of apportionment: 1) between employers; 2) between an employer and a Second or Subsequent Injury Fund; 3) be-tween an employer and claimant.  The em-ployer incorrectly asserted the position that C.R.S. §§ 8-41-301 and 8-42-101 provided for the third type of apportionment. 

“We cannot see that these statutes authorize any type of apportionment, let alone the type that employer seeks… Because the third type of apportionment is both unusual and contrary to the remedial purposes of the workers’ compensation law, we would expect it to be authorized, if at all, only in unmistakable terms.”

Although the panel acknowledged that divisions of the court have approved ap-portionment, it distinguished these cases on the grounds that they involved appor-tionment between successive employers.

Apportionment: You Break It, You Bought It

By Michael P. Curry