Text Box:   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: October-november

Text Box: WWW.CMB-PC.COM Text Box: SM Text Box: Claimant Responsible for Payment of Medical Care During Appeal

Text Box: In Kilwein v. Industrial Claim Appeals Office, Joseph Hanlin, D.D.S., and Safeco Insurance, 06CA2518 (November 13, 2008), the Court of Appeals rejected the claimant’s request for authorization of medical care.  The facts of the case are as follows.  The claimant sustained a compensable occupational disease in 1980 that left her permanently totally disabled. In 2001, a medical utilization review (MUR) of claimant’s care under Dr. Jack Rook, the claimant’s authorized treating physician, resulted in a change of providers.  In 2003, Dr. Rook appealed the order to a division of the court of appeals.  The claimant elected to continue her care under Dr. Rook during his appeal of the director’s order.  While the appeal was pending, Dr. Rook referred the claimant to an osteopath for additional treatment.  The worker’s compensation carrier continued to pay bills for medical treatment rendered to the claimant by Dr. Rook and the osteopath during the appeal process.  In January 2005, a division of the Court of Appeals affirmed the director’s order.  In August 2005, the claimant again sought treatment from the osteopath, apparently pursuant to a second referral by Dr. Rook.  The insurer refused to pay for the treatment rendered by the osteopath because he was not authorized.  The claimant then initiated this proceeding seeking an order authorizing the osteopath to perform the treatment based on Dr. Rook’s 2003 referral.  Following an evidentiary hearing, the ALJ found the referral to the osteopath made after the court of appeal’s mandate was not made in the normal progression of authorized care because “no colorable argument exists that Dr. Rook was an authorized provider at that time.”  In response to the claimant’s argument that the August 2003 referral was sufficient to cover the osteopath’s 2005 treatment, the ALJ determined that Dr. Rook “was not an authorized provider during the MUR appeal process in regard to making authorized referrals” and accordingly denied the claimant’s request.  On review, the Industrial Claim Appeals Panel affirmed.  On appeal, the claimant contended the osteopath was an authorized provider by virtue of Dr. Rook’s referral during the MUR appeal process.  The court rejected this argument, finding that the Workers’ Compensation Rules of Procedure provide that a physician under review remains authorized “during the medical utilization review process.”  Dr. Rook lost his status as an ATP when the director issued his order in the MUR.  The court further noted the claimant may be held liable for the medical costs the insurer paid to Dr. Rook during the appeal period. Claimant also argued that the ALJ’s order must be disapproved because it was the product of bias.  However, the Court found nothing in the record that suggested bias, favoritism, impropriety, or other conduct that would overcome the presumption of integrity, honesty, and impartiality accorded the ALJ.  The order was affirmed.

Text Box: Here is the scenario…. Insurance Carrier hires Joe Investigator to investigate an alleged work-related injury and to conduct surveillance on the Injured Worker.  Joe Investigator calls Injured Worker to conduct an interview and records their telephone conversation.  Later that afternoon, Joe Investigator goes to Injured Worker’s house to begin surveillance.  Joe Investigator obtains video surveillance of Injured Worker working in his yard.  Then, Joe Investigator follows Injured Worker to the local grocery store and obtains additional video surveillance of Injured Worker shopping and lifting items into his shopping cart.  After Injured Worker returns home, Joe Investigator uses a telephoto lens on his camera to snap photos of Injured Worker doing various tasks inside his home.  When Injured Worker leaves again, Joe Investigator goes into Injured Worker’s fenced back yard, finds an open window, and puts a recording device inside the window to record conversations inside the Injured Worker’s home. An investigator hired by an insurance carrier to conduct surveillance is an agent of the insurance carrier.  As an agent of the insurance carrier, the investigator cannot do what the insurance carrier itself is prohibited from doing.  In some instances, the insurance carrier may be held liable for the conduct of its investigators. In the scenario above, if Injured Worker is represented by counsel, Insurance Carrier is prohibited from communicating directly with Injured Worker without the consent of Injured Worker’s attorney.  As Insurance Carrier’s agent, Joe Investigator cannot call Injured Worker to conduct the interview without Injured Worker’s attorney’s consent.  Along the same lines, Joe Investigator cannot have a face-to-face conversation with Injured Worker nor communicate with Injured Worker via e-mail or other electronic means such as posting anonymous questions on Injured Worker’s website. Joe Investigator, and possibly the Insurance Carrier, could be charged with “trespass” for entering onto Injured Worker’s property without being invited. In addition, Joe Investigator, and possibly the Insurance Carrier, could be charged with “eavesdropping” for recording the conversations in Injured Worker’s home.  In Colorado, at least one of the parties to a conversation must consent before that conversation can be recorded. Joe Investigator is permitted to obtain surveillance of Injured Worker so long as that surveillance does not invade Injured Worker’s privacy.  Injured Worker does not have a reasonable expectation of privacy while in a public setting.  Using the scenario above, Joe Investigator can observe, videotape, or photograph Injured Worker while Injured Worker is in his yard or doing his shopping at the local grocery store.  However, Injured Worker has a reasonable expectation of privacy while in Injured Worker’s own home.  Judges have held that Joe Investigator cannot use enhancing equipment such as the telephoto lens or binoculars to observe Injured Worker in Injured Worker’s own home.  Such tactics have been found by judges to be an invasion of Injured Worker’s privacy and, in some instances, the judges have held Insurance Carrier liable as well. Be aware of what your agents/investigators are doing and direct the scope of their assignments accordingly so that you do not run the risk of becoming liable for their prohibited actions.

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: Surveillance Insurance Carrier’s Can Be Liable For The Acts of Their Agents By Holly M. Barrett

Text Box: 1.     You keep more food in the fridge than beer; 2.     6:00 a.m. is when you get up, not when you go to bed; 3.     You hear your favorite song in an elevator; 4.     You watch the weather channel; 5.     Jeans and a sweater no longer qualify as “dressed up”; 6.     You no longer know when Taco Bell closes; 7.     A $4.00 bottle of wine is no longer “pretty good stuff”; 8.     90 percent of the time you spend in front of the computer is for real work; 9.     Sleeping on the couch makes your back hurt; 10.   You feed your dog Science Diet instead of McDonald’s leftovers. Bonus:  You read this entire list desperately searching for one sign that does not apply to you.

Text Box: VICTORIES IN THE TRENCHES

 

Text Box: James R. Clifton In the claim cited Albert Baker v. Nabors Drilling, USA and Zurich/FARA, ALJ Bruce Friend found the claimant failed to meet his burden of proving by a preponderance of the evidence that he suffered an injury while performing services arising out of and in the course and scope of his employment.  ALJ Friend found the claimant’s changing versions of when and how he was injured and the lack of any sort of contemporaneous reporting of the injury belied his testimony of an injury at work.  The ALJ further found the claimant had a motive to have the claim found compensable because he was no longer employed, and had received extensive medical care since being terminated by the Respondent employer. Richard A. Bovarnick In the claim of Cynthia Milligan v. Wal Mart Stores, Inc. and American Home Assurance, ALJ Donald Walsh agreed with Rich Bovarnick that Respondents did not violate Rule 16, W.C.R.P., by denying or failing to pay the authorized treating provider’s bills.  Respondents established the ATP was not in compliance with Rule 16-7, W.C.R.P. as he failed to provide supporting documentation at the time of submission of the bills.  Therefore, no penalties were assessed. In James Scott v. Wal Mart Stores, Inc. and American Home Assurance, ALJ Martin Stuber held the claimant’s testimony as to a worsened condition was insufficient to reopen his 2005 claim.  ALJ Stuber relied on medical evidence presented by Dr. Albert Hattem that the claimant’s ongoing symptamatology was due either to his increased obesity, rheumatoid arthritis, or was idiopathic, but it was not a natural progression of his compensable industrial injury to the thoracic spine.  ALJ Stuber also found persuasive the pre- and post- MMI MRIs that did not document any change in pathology. In the claim of Yolanda Olague v. Wal Mart Stores, Inc. and American Home Assurance, the claimant sustained lateral epicondylitis.  The claimant underwent a Division IME by Dr. Stephen Lindenbaum. Dr. Lindenbaum opined that the claimant’s elbow problems should be converted to whole person because of their effect on the claimant’s ability to work, giving her a thirteen percent whole person impairment rating, worth over $30,000.  Respondents filed an application for hearing to overcome the Division IME.  The claimant responded raising the issue of conversion of the elbow impairment.  At hearing, ALJ Michael Harr agreed with Respondents that in order for the DIME opinion to have enhanced weight, the claimant must establish conversion of the scheduled impairment to whole person.  Respondents moved for a directed verdict on the issue of conversion.  ALJ Harr agreed that the claimant failed to prove functional impairment of the arm beyond the shoulder and directed a verdict in Respondents’ favor on the issue of conversion.  ALJ Harr agreed with Respondents that the DIME opinion carried no special weight as the impairment was on the schedule of impairments. Following hearing in Yolanda Olague v. Wal Mart Stores, Inc. and American Home Assurance, ALJ Harr denied claimant’s Motion to Reopen the Evidence finding the claimant had the opportunity to cross-examine the ATP who was subpoenaed for hearing and who testified.  ALJ Harr agreed with Respondents the claimant gets only one bite at the apple. Finally, in Yolanda Olague v. Wal Mart Stores, Inc. and American Home Assurance’s epilogue, ALJ Harr agreed with Respondents that  Dr. Lindenbaum’s use of grip strength to determine medical impairment in a DIME was improper and not in accordance with the AMA Guides.  The ALJ also agreed that Dr. Basow and Dr. Holthauser’s use of the cumulative trauma disorder matrix was incorrect.  ALJ Harr credited the testimony of Dr. Allison Fall that the claimant was limited to three percent scheduled impairment. M. Frances McCracken In Sherri Anderson v. Wal Mart Stores, Inc. and American Home Assurance, ALJ Martin Stuber denied and dismissed the claimant’s Petition to Reopen her October 13, 2002 claim.  ALJ Stuber found the claimant did not present credible evidence that she is no longer at MMI or that additional medical treatment will improve her condition.  Although the claimant’s expert witness, Dr. Giancarlo Barolat testified a MRI of the claimant’s lumbar spine might show additional changes in the spine, even Dr. Barolat could not testify the claimant’s condition now is any different or worse than it was when she was placed at MMI in October 2003.  The claimant’s pain complaints were high when she was placed at MMI and they remain high currently.  The ALJ relied on the testimony of both Dr. Barolat and Respondents’ expert Dr. Fall, who testified it is not medically probable that the MRI requested by the claimant would demonstrate work-related pathology.  The claimant’s request for removal of a non-work related spinal cord stimulator to obtain the MRI was also denied and dismissed. In Denise Lawler v. Sam’s Wholesale Club, Inc., ALJ Stuber denied and dismissed the claimant’s Petition to Reopen her claim.  The claimant sought medical benefits in the form of a neuroma excision and placement of interspaced neural tubes, together with TTD benefits from the date of the alleged worsening and ongoing.  ALJ Stuber found the claimant’s testimony at hearing regarding her worsening “inconsistent”.  He also found the opinions of the authorized treating hand surgeon did  not document a worsening of condition post-MMI.  Rather, the surgeon simply waited to see if the claimant improved before recommending the surgery. Erica A. Weber In Misty L. Farber v. Washington Inventory Services and ACE American Insurance Co., ALJ David Cain denied the claimant’s motion to endorse additional witnesses and take post hearing depositions.  The ALJ found the claimant failed to properly lay a foundation at hearing for the admission of bills for which she was seeking reimbursement.  Following hearing, the claimant’s counsel filed a motion to endorse witnesses and take post-hearing depositions in an effort to present the evidence he was unable to submit at hearing.  Respondents objected.  ALJ Cain denied the claimant’s Motion, holding the Respondents should not incur the expenses of post-hearing depositions when the “counsel for the claimant did not exercise due diligence in endorsing the witnesses, or attempting to endorse them prior to the second hearing.” In Stacy Lloyd-Skaggs v. Western Sugar Cooperative and ACE American Insurance, the Claimant refused to attend medical appointments with the employer’s designated authorized treating provider, asserting the right to designate had passed to her when Respondents failed to respond to a request for change in physician.  However, an order entered following a previous hearing specifically held that the employer’s designated authorized provider had not been de-authorized by the act of the employee being allowed the change in physician.  Therefore, ALJ Michael Harr agreed the claimant was required to attend medical appointments with the employer’s designated provider when scheduled. In the claim cited Evelin Riley-Speer v. National Mentor Holdings and ACE American Insurance, the Claimant requested temporary total disability after being terminated from her employment for failure to follow company procedures in emergency situations.  ALJ Nancy Connick found the Respondents successfully proved the claimant was responsible for the termination of her employment and denied the request for TTD for a period prior to the claimant sustaining a worsening of condition necessitating surgery. Holly M. Barrett In the claim of Pauline Strench v. Wild West Casino and Western Guaranty Fund, heard by ALJ Bruce Friend on remand by the Industrial Claim Appeals Office, ALJ Friend again found the claimant failed to prove she is unable to earn a wage as a result of her industrial injury and therefore, she is not permanently and totally disabled.  The ALJ relied on the opinions of Respondents’ vocational expert that even considering the claimant’s industrial injury of low back strain, the reports of pain, use of medications, and questionable motivation to perform to the best of her ability, the claimant had the aptitude, academic achievement, manual dexterity, and cognitive abilities, to perform the essential functions of both Cashier II and clerk.  ALJ Friend rejected the testimony of the claimant’s vocational expert who relied on outdated FCEs and claimant’s “less than truthful reports” regarding her abilities. In Eric Celaya v. Trueblue, Inc. and Indemnity Insurance Company of North America, ALJ Donald Walsh granted Respondents’ Motion to Dismiss the Claimant’s Claim with Prejudice for his failure to abide by an Order directing him to produce both Rule 5-4(C) releases and essential information and responses to Respondents’ discovery requests. Katherine M. Holom In Jennifer Roessler v. Labor Ready Inc. and ESIS Insurance Co., ALJ Bruce Friend entered a Supplemental Order following Respondents’  Petition to Review his July 17, 2008 Specific Findings of Fact, Conclusions of Law and Order, which found the claimant suffered a compensable occupational disease and further found the right to select the treating physician had passed to the claimant.  In his Supplemental Order, ALJ Friend agreed with Katherine Holom that, despite his finding that the employer’s authorized treating provider refused to treat the claimant’s work-related injures for non-medical reasons, the Respondents had not been notified of the refusal to treat.  Because the claimant did not notify the insurer that the authorized treating physician terminated claimant’s care for non-medical reasons, the claimant was not free to consult with another physician to treat her as a result of the compensable nature of her claim.  Therefore, the treatment claimant sought from her personal physicians was not authorized.

Text Box: Interesting Statistics*... - 50% of injured workers who have been off of work for between 6 months to 1 year never return to work - 90% of injured workers who have been off of work more than 1 year never return to work - 85% of costs of all workers’ compensation claims come from only 5% of claims - 40% of the costs from all claims come from delayed recovery - 10% of injured workers actually perform their prescribed physical therapy exercises at home. *As reported by Colorado Workers’ Compensation Staffscapes Text Box: Supreme Court Denies Cert in Gilmore On October 6, 2008, the Colorado Supreme Court denied the Claimant’s Petition for a Writ of Certiorari.  In Gilmore, the ALJ, the Industrial Claim Appeals Office, and ultimately, the Colorado Court of Appeals rejected the claimant’s argument that under a doctrine established by Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004), and Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054 (Colo.App. 2005), his temporary disability benefits could not be discontinued unless and until he had been offered modified employment.

Claimant Responsible for Payment of Medical Care During Appeal

Victories in the Trenches

 

Practice Pointer

Supreme Court Denies Cert in Gilmore

Ipsi Dixit

Interesting Statistics