Text Box:   Text Box: A PUBLICATION BY THE LAW FIRM OF Clifton, Mueller & Bovarnick, P.C.                                                                      ATTORNEYS AT LAW

Text Box: CURRENT EVENTS, ARTICLES, AND SUMMARIES OF RECENT CASES AND LEGISLATION IN THE AREAS OF WORKERS’ COMPENSATION, LIABILITY, INSURANCE, AND EMPLOYMENT LAW Text Box: 2008

Text Box: april

Text Box: SM Text Box:           FOUNDED 1991   is published monthly by the law firm of   Clifton, Mueller & Bovarnick, P.C. Attorneys at Law Suite 500 789 Sherman Street Denver, CO 80203 Telephone (303) 988-7692 Facsimile  (303) 988-7724   Grand Junction Office Suite 204 200 Grand Avenue Grand Junction, CO 81501 Telephone (970) 255-8852 Facsimile (970) 255-8905    Holly M. Barrett              Cheryl A. Martin  Richard A. Bovarnick       M. Frances McCracken  James R. Clifton               Royce W. Mueller  Katherine M. Holom        Erica A. Weber   © 2008 Clifton, Mueller & Bovarnick, P.C. All rights reserved.  Printed in USA.

Text Box: COURT OF APPEALS UPDATE

Text Box: In the recent decision of Teresa Sloan v. Safeway, Inc. and the Industrial Claim Appeals Office, the employer, Safeway, Inc., sought review of the final order of the Industrial Claim Appeals Office (ICAO) in favor of the claimant, setting aside the Order of the Administrative Law Judge denying a major portion of the claimant’s request for mileage reimbursement on the ground that the mileage claim was not timely submitted. The facts of the claim are undisputed.  The claimant sustained an admitted work-related injury in May 2003.  She drove herself to medical appointments for treatment of her injury, but made no claim for mileage reimbursement for nearly three years.  In January 2004, the claimant sought reimbursement for a total of 5464 miles driven.  The employer reimbursed the claimant for travel completed within 120 days of the submission, for a total of 970 miles.  It denied the remainder of her request, relying on Rule 16-11(A)(1), W.C.R.P., which states, “Providers shall

Text Box: submit their bills for services rendered within one hundred twenty (120) days of the date of service.  Bills first received later than one hundred twenty days may be denied unless extenuating circumstances exist. . . .”  The employer argued that, in the case of a claimant driving himself or herself to a medical appointment, the only possible “provider” of the transportation service is the claimant.  Accepting this reasoning, the ALJ found Rule 16-11(A)(1) applicable and denied the claimant’s request for the remainder of her mileage submission. On appeal, ICAO disagreed, concluding Rule 16-11 applied only to “providers,” and that the claimant was not a provider.    The Court agreed with ICAO that claimants do not fall within the definition of “provider”, which is limited to “a person or entity providing authorized healthcare service to a worker in connection with a work-related injury or occupational disease.”  Rule 16-2(Q), W.C.R.P.  Further, the Court noted the Rules’ definition of “non-physician

Text Box:  providers” does not include claimants or injured workers.  Finally, the Court noted mileage expenses to attend medical appointments are recoverable as “incident[al] to medical treatment” under the Workers’ Compensation Act.  Claimant’s method for recovery of mileage expenses are dealt with under Rule 18-6(E), W.C.R.P., which does not include a time limitation within which an injured worker may submit a request for mileage reimbursement. While the claimant may be permitted to submit bills for mileage and travel expenses, without regard to timeliness, all medical providers, including non-physician providers are required to submit their bills for services rendered within 120 days of the date of service or the bill may be denied, unless extenuating circumstances exist.  Extenuating circumstances may include compensability has not been determined or the provider has not been informed where to send the bill.

Text Box: Note: Summaries and articles should not be relied upon as authority for a particular case.  Consult your attorney for advice on the application of all the law to the specific facts of your case or legal problem. Text Box: GREAT TRUTHS ABOUT GROWING OLD

Text Box: 1.   Growing old is mandatory; growing up is optional. 2.   Forget the health food.  I need all the preservatives I can get. 3.   When you fall down, you wonder what else you can do when you are down there. 4.   You know you are getting old when you get the same sensation from a rocking chair that you once got from a roller coaster. 5.   It is frustrating when you know all the answers but nobody bothers to ask you the questions. 6.   Time may be a great healer, but it is a lousy beautician. 7.   Wisdom comes with age, but sometimes age comes alone.

Text Box: NEW AH FORM ON ONE-TIME CHANGE OF PHYSICIAN The Office of Administrative Courts has developed a new form as a direct result of the recently adopted provisions in Rule 8-5(C), W.C.R.P.  You may access a fillable PDF or Word® version of the Application for Expedited Hearing One-Time Change of Authorized Treating Physician form on the Office of Administrative Court’s website at: http://www.colorado.gov/dpa/oac/pdf/App1TimeChange3.pdf .

Text Box: The Industrial Claim Appeals Office, and the Court of Appeals has repeatedly held that the heightened burden of proof required by § 8-42-107(8)(c) is confined to the issues of maximum medical improvement and permanent medical impairment benefits. Unlike an opinion on maximum medical improvement and permanent physical impairment, the DIME physician's recommendation for future medical treatment carries no special weight.  Therefore, when filing a Final Admission following a Division IME, an adjuster need not readily admit to the Grover medical benefits as recommended by the Division IME, but can rely on the recommendations of the authorized treating physician.

Text Box: Division IME Opinion on Post-MMI Medical Treatment

Text Box: Adjusters have limited time to investigate a claim and decide whether to file a General Admission or a Notice of Contest.  With only 20 days to decide whether to admit or contest liability, an adjuster may accept compensability of a claim based on incomplete information.  After the admission is filed, additional facts may surface suggesting the claim is not compensable.  Take heart! Although an admission of liability has been filed, compensability can still be contested. In the event of an improvidently filed General Admission, Respondents’ recourse is to file an application for hearing on the issue of compensability.  Once liability is admitted, payments must be made according to admitted liability.  Nonetheless, when an insurer seeks to withdraw an admission of liability, it does not have the burden of showing why the admission was improvident.  The burden remains on the claimant to show a compensable injury.  Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo. App. 2001).  While if respondents improvidently admit liability, they may receive only prospective relief from the admission after the claim is litigated before an ALJ, they are still afforded an opportunity for a hearing and prospective relief if subsequently discovered facts suggest the admission was incorrect.  See Rocky Mountain Cardiology v. Industrial Claim Appeals Office, 94 P.3d 1182 (Colo. App. 2004). If there is any doubt about the compensability of a claim, a Notice of Contest should be filed for further investigation.  This  filing will provide additional time to investigate the claim, gather medical records, interview the employer and employee, and make a fully informed decision as to whether to admit for the claim.  However, if a claim is admitted, and later-discovered information suggests the injury may not be work-related, compensability can always be contested.  The claimant always has the burden of proving an injury occurred in the course and scope of employment.

Text Box: VICTORIES IN THE TRENCHES Text Box: Richard A. Bovarnick In the claim of Lenore Hull v. Wal Mart Stores, Inc. and American Home Assurance, after objecting to Respondents’ Motion for Summary Judgment, counsel for claimant confessed the case was closed subject to a Petition to Reopen after records received from the Division established he did not timely file his Application for Hearing. In Angelo Ortiz v. Service Experts and ACE American Insurance, Respondents convinced ALJ Friend that Dr. Joseph Fillmore’s Division IME was incorrect, in part, based on improper application of the AMA Guides, by awarding additional impairment for vascular loss from an elbow injury. In the claim cited, Richard Raleigh v. Wal Mart Stores, Inc. and American Home Assurance, the claimant agreed to withdraw his claim, after viewing the in-store videotape and being deposed by Rich Bovarnick.  The claimant agreed that between the videotape and the eyewitness’ testimony describing the incident, the accident did not occur as he reported to the treating physicians and would more likely than not be denied at hearing. In Araceli Diaz Luevano v. La Quinta Inns, Inc., PALJ Carolyn Sue Purdy agreed with Rich Bovarnick that counsel for the claimant’s contact with Dr. David Yamamoto, one of the DIME panelists, and scheduling an independent medical examination before the Division IME was designated, violated Rule 11, W.C.R.P. and voided the entire DIME panel.  Thus, Dr. Ronald Swarsen was not the Division Examiner.  A new DIME panel would be issued without Dr. David Yamamoto on it. In the 1998 claim of Lynda Thompson v. Wal Mart Stores, Inc. and American Home Assurance, Administrative Law Judge Donald Walsh agreed with Respondents and Dr. Allison Fall that claimant’s left sacroiliac joint complaints, which began eight months after the claimant was placed at MMI were not related to, nor caused by, the industrial injury or its sequelae.  Therefore, the ALJ denied and dismissed the claim for medical benefits and temporary total disability related to the claimant’s SI joint complaints. In Hermalinda Navarrete v. Landry’s Restaurant’s Inc. d/b/a Joe’s Crab Shack and ACE American Insurance, ALJ Friend agreed with Respondents’ counsel and vocational expert Pat Anctil that the non-English speaking, non-driving claimant, with permanent restrictions of no greater than sedentary employment, was able to earn wages in the same or other employment.  Judge Friend found the claimant’s expert, Michael Fitzgibbons to lack credibility in his opinion that the claimant’s medications precluded her from maintaining work.  Thus, this illegal alien was not entitled to any additional worker’s compensation indemnity benefits. Erica A. Weber In Stacy Lloyd-Skaggs v. Western Sugar Cooperative and ACE American Insurance, Administrative Law Judge Michael Harr found Respondents successfully proved termination for cause when this probationary employee was terminated shortly after her work injury.  The claimant was terminated for absences not related to the injury, which occurred during a 30-day probationary period.  Under the employer’s contract with the union, probationary employees are not permitted to miss work during their probationary period.  The claimant argued she did not understand her probationary status.  However, the ALJ relied on contradictory testimony and good employer documentation of information provided to the claimant during the probationary period to find she was responsible for her termination and no temporary benefits were awarded. Holly M. Barrett In the claim of Kriemhilde Silvey v. Psychiatric Solutions, Inc. and ACE American Insurance Co., Administrative Law Judge Donald Walsh agreed with Respondents that the claimant failed to overcome the opinions of Division Examiner, Dr. Eric Ridings, finding the claimant did not require additional medical treatment after MMI.  Specifically, Dr. Ridings found the claimant did not require continuation of the medication Celebrex, treatment with Hyalgen injections, or a total knee replacement to cure and relieve her from the effects of her injury.  This issue, which went forward on claimant’s application, raises an interesting issue, as ALJ Walsh applied the clear and convincing standard for overcoming the DIME.  However, the ALJ is not required to afford special weight to the DIME physician's recommendation for future medical treatment. M. Frances McCracken In Albert Torres v. Cemex, Inc. and the Insurance Company of the State of Pennsylvania, Adminstrative Law Judge Nancy Connick agreed with Respondents that the claimant failed to prove his severe degenerative knee joint disease was caused by his 39 year employment history at Cemex.  The ALJ found the Claimant’s problem with degenerative arthritis was due to a number of factors:  his aging, his work, his obesity, his diabetes, his bowleggedness and he was also likely genetically tagged to get arthritis.  According to the ALJ, in relation to the contribution made by claimant’s employment, the record contained no evidence suggesting that, if for example, the claimant had pursued sedentary employment, his degenerative arthritis would be any different.  Any type of employment might have caused someone with Claimant’s risk factors to develop arthritis of the knees.  Therefore, the claim for occupational disease was denied.

Text Box: Legislative Update Colorado’s General Assembly convened January 9, 2008.  It is scheduled to adjourn May 7, 2008.  After several bills were passed in the 2007 legislative session that will increase workers’ compensation costs to insurers and expand employer liability in Colorado, this session is proving mercifully uneventful, with no bills amending the Act currently pending in the House or Senate.  However, rumor has it there is a movement by the Claimant’s bar to eliminate apportionment as presently applied.