A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW

2006

NOVEMBER

The Supreme Court Speaketh, Twice, About Repeat DIMEs

Last month, the Colorado supreme court demystified conflicting appellate court decisions in the cases of Sanco Industries v. Stefanski, ___P.3d___, (Colo. 2006) and Williams v. Kunau, ___P.3d___, (Colo. 2006).

Bruce Williams injured his back while working on a drilling rig and was placed at MMI in May 2000.  Williams disputed the determination and underwent a DIME on September 21, 2000.  The DIME physician placed the claimant “not at MMI” and respondents resumed claimant’s treatment.

The claimant suffered a compensable rotator cuff tear that requires shoulder surgery. The orthopedic surgeon will not operate on claimant’s shoulder until the claimant’s unrelated and pre-existing heart condition stabilizes. The heart doctor wants claimant to have a cardiac catheterization. Does the insurance company have to pay for this heart procedure? Under Colorado law, the answer is yes.

An employer has a duty to pay for treatment of unrelated medical conditions when such treatment is necessary to achieve optimum treatment of the industrial injury, C.R.S. 8-42-101(1)(a). In Public Service v. ICAO, the Court held that treatment of claimant’s unrelated bi-polar disorder was necessary prior to having neck surgery for the industrial injury, 979 P.2d 584 (Colo. Ct. App. 1999). The insurer was required to pay for the bi-polar treatment because treatment was necessary for a successful recovery from the neck

On August 12, 2000, Williams’s ATP again placed him at MMI and respondents filed a FAL consistent with the ATP’s opinion.  Williams eventually prevailed on his objection to the FAL.  After unsuccessfully litigating an unrelated issue, respondents filed a revised FAL on November 14, 2003.  Again the claimant objected and requested that the original DIME physician re-determine MMI.  This time, respondents successfully argued at hearing that the request was untimely.  The claim went to the court of appeals which

held that the claimant must reinstate the DIME process within thirty days of when the employer or insurer filed the FAL.  The supreme court granted certiorari.

Richard Stefanski sustained two injuries at work in March 1998.  His ATP placed him at MMI in December 1998 and respondents filed a FAL in March 1999.  Stefanski challenged the MMI determination and timely requested a DIME.  The DIME physician concluded

surgery.

If the evidence in a particular case establishes that, but for a particular course of medical treatment, a claimant’s condition can reasonably be expected to deteriorate so that he will suffer greater disability than he has sustained so far, such medical treatment must be looked upon as treatment designed to relieve the effects of the industrial injury. See Milco Construction v. Cowan, 860 P.2d 539 (Colo. Ct. App. 1992).

If treatment of an unrelated medical condition is a reasonably necessary prerequisite to surgical treatment of the industrial injury, then the unrelated treatment is compensable under Colorado law. If you have a claim involving unrelated medical treatment and you are not sure whether the unrelated treatment is compensable or not, do not hesitate to contact any of the attorneys at Clifton, Mueller & Bovarnick for assistance.

Does the Insurer have to pay for a bad heart?

By Kimberley Quinn

 

 

The Colorado supreme court remained active last month, issuing yet another workers’ compensation decision in Ray v. Industrial Claim Appeals Office, ___P.3d___, (Colo. 2006).

The issue decided was whether the cost of health insurance, calculated as the amount that the claimant would pay to obtain the coverage provided by the employer under the contract of employment, is to be included if the calculation of the claimant’s average weekly wage if the claimant does not purchase health insurance after his employment is terminated.

The court held that the actual purchase of health insurance is not required in order for the cost of such benefits to be included in the calculation of a claimant's average weekly wage.