A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW

2007

May

Helpful Hints for Common Conundrums

As a workers’ compensation insurance adjuster, you should understand that when it comes to dealing with the Division and/or the claimant, “The devil lies in the de-tails.”  Every day we receive calls from adjusters with questions ranging from of-fers of modified duty to calculating the correct amount of permanent disability benefits.  The adjuster must pay scrupulous attention to detail when tackling these is-sues.  The adjuster must also understand that the excuse, “I didn’t know I had to do that” doesn’t cut the mustard with adminis-trative law judges.  The law requires that the adjuster know the statute, rules and

A recent employment decision caught my eye as being relevant to the settlement agreements often negotiated as part of workers’ compensation settlements.  In Jencks v. Modern Woodmen of America, the 10^th Circuit Court of Appeals, which governs Colorado, again reaffirmed the validity of settlement agreements which waive the employee’s right to seek re-employment.

The employee in Jencks had waived the right to future employment with the Em-ployer as part of a lawsuit.  Years later, the employee re-applied despite the agreement she had signed.  When she was denied em-ployment on the basis of the settlement agreement, she sued the Employer.  In the lawsuit, the employee alleged that the Em-ployer didn’t care about the settlement agreement, but was actually discriminating

procedures.  In other words, ignorance of the law is not an excuse.

A significant amount of questions we field can be answered by reviewing the workers’ compensation rules of procedure.  Every adjuster should have a complete, updated copy right next to their computer.  If you don’t have one, you can print a copy off the Division’s website.  When you refer to these rules, make sure that you meticu-lously follow the outlined procedure.

Use the tools found on the Division’s website.  Document within your notes that you checked the website.  The Division’s staff prides itself on returning calls and answering questions.  They are there to

help.  Call them and have them explain the answer to your question.  Then document within your notes that you called the Division and relied on its expertise.  Claimants’ attorneys love to request your claim files, and nothing will deflate a claim for penalties like a file documenting that you relied on the Division to assist you through this complex area of the law.

Finally, don’t be embarrassed to call us for help.  As our teachers all told us, there is no such thing as a dumb question.  It is better to discuss your issue in private with one of our attorneys than on the record with opposing counsel before an administrative law judge.

against her because of the prior legal ac-tion.  The court looked at the agreement and agreed that the refusal to hire was an adverse employment action, for which the employee could bring a lawsuit against her Employer.  However, the court also found the settlement agreement constituted a “legitimate, non-discriminatory reason” not to re-hire the employee – and ulti-mately dismissed the employee’s lawsuit.

Lesson: It is perfectly valid to include a non-rehire provision as part of a settlement for a legal action – workers’ compensation or otherwise.  As with any employment situation, be sure to enforce all such agreements equally with all former employees, and the Employer should be safe from a lawsuit if the employee eventually re-applies for, but is denied, employment.

Waiving the Right to Re-Apply For Employment

By Erica Weber

 

 

 

 

The Counsel on Ethical Billing has recognized Clifton, Mueller & Bovarnick as an organization that promotes ethical billing practices while maintaining the highest standards of competence and integrity in pursuit of client defense.

Membership consists of an exclusive group of law firms, insurance companies and risk managers.  Currently, CM&B is the only Colorado law firm to have been inducted into the CEB and joins the ranks of companies such as ACE, AIG and Arthur Gallagher.

Richard Bovarnick was singled out for his exceptional work and will serve as the firm’s liaison to the counsel.