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A PUBLICATION BY THE LAW FIRM OF Clifton, Mueller & Bovarnick, P.C. ATTORNEYS AT LAW |
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2006 |
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JUNE |
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Mental Impairment + Physical Impairment = Higher Statutory Cap? |
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NO! The Colorado supreme court affirmed the appellate court’s decision in Dillard v. ICAO, — P.3d — (Colo. 2006). The sole issue was whether a claimant may combine a mental impairment rating with a physical impairment rating for the purpose of exceeding the then-applicable sixty thousand dollar cap in favor of the one hundred twenty thousand dollar cap under C.R.S. § 8-42-107.5. |
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Lately there has been quite a bit of news surrounding claims for mental impairment. As noted in the last edition of Defense Talk, Governor Bill Owens signed HB06-1055 into law on March 27, 2006, thereby amending C.R.S. § 8-41-301(2)(b). The amended statute excludes all acts of violence, regardless of criminal intent, from the twelve week limitation on medical impairment benefits for mental impairment claims. In a recent decision, Dillard v. ICAO, — P.3d — (Colo. 2006), the supreme court held that a claimant cannot combine a mental impairment rating with a physical impairment rating to circumvent the benefit cap found in C.R.S. § 8-42-107.5. And even more recently, in City of Loveland Police Department v. ICAO, —P.3d — (Colo. App. 2006), the appellate court decided that the twelve week limitation on medical impairment benefits |
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On December 19, 1999, claimant hit her head when she slipped on ice in front of her workplace. She subsequently received a 23% cervical spine, 2% left hip and 5% mental impairment rating. Claimant’s DIME physician combined the physical and mental impairment ratings for a 29%whole person rating. The whole person rating would have pushed claimant above the 25% statutory cut-off, allowing her to collect almost all of her $131,500 award. |
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The supreme court disagreed with the rat-ing and capped claimant’s benefits at $60,000. Justice Hobbs’s majority opinion delved into the intent of the General As-sembly and noted that C.R.S. § 8-42-107(7)(b)(III), “[U]nambiguously bars a claim-ant from combining mental impairments with scheduled or nonscheduled injuries |
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for mental impairment claims is not applicable to death benefits. In City of Loveland Police Department, a police officer committed suicide and his wife subsequently filed a claim for work-ers’ compensation. She argued that her husband’s psychological injury and result-ing suicide were caused by job-related stress and were compensable under C.R.S. § 8-41-301(2)(a). The employer argued that if claimant was entitled to an award of benefits, the award should have been limited to twelve weeks of medical impair-ment benefits per C.R.S. § 8-41-301(2)(b). The court disagreed with employer and held, “C.R.S. § 8-41-301(2)(b) has no rele-vance to the issue of death benefits, and the plain language of the statute does not sup-port the construction urged by employer...” Do not get caught off guard by the continuing evolution of mental impairment claims. And as always, do not hesitate to contact CM&B if you have any questions. |
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THE CONTINUING EVOLUTION OF MENTAL IMPAIRMENT CLAIMS By Michael Curry |
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YOU CAN WIN A BAD FAITH LAWSUIT! Stephens v. Virginia Surety Company, et al., involved a bad faith breach of insurance contract. Plaintiff sustained a work related injury on January 24, 2001. Although defendants conceded that mistakes led to untimely payment of multiple medical bills, all outstanding bills were paid. Defendants further argued that their late payments were not due to willful and wanton conduct. Defendants made several statutory offers of settlements, the last of which consisted of $15,000 to settle the instant case, or $20,000 to settle both the instant case and the pending workers’ compensation case. Plaintiff rejected all offers of settlement. The court granted defendants’ motion for a directed verdict. Defendants subsequently filed a bill of costs of $23,636.89.
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