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: september

Text Box: SM Text Box: COURT OF APPEALS UPDATE

Text Box: The court of appeals issued two decisions in appeals from the Industrial Claim Appeals Office in September.  In the case cited as Heinicke v. Industrial Claim Appeals Office, King Soopers, and Sedgwick Claims Management Services, 07CA1640 (September 4, 2008), the claimant sustained an admitted injury in February 2003.  The authorized treating physician (ATP) placed her at maximum medical improvement in July 2003 with no impairment.  The employer filed a final admission of liability in July 2003, to which the claimant did not object. In 2005, the claimant reported her condition had deteriorated. She was referred to a different ATP, who ultimately determined she remained at MMI, but who assigned seven percent whole person impairment. Based on this ATP’s report, the claimant filed a petition to reopen, asserting a change in her condition.  After hearing, the administrative law judge found the claimant failed to establish any change in her condition was related to the industrial injury and denied the petition to reopen.  The claimant appealed, arguing once an ATP increases a worker’s permanent physical impairment rating, a change in condition is established and reopening is required as a matter of law.  She further contended that once an ATP finds an increased physical impairment resulting from the original compensable injury, an employer may not litigate the question of whether the claim should be reopened without first requesting a Division-sponsored IME.  The court disagreed with both arguments and affirmed the order of the Industrial Claim Appeals Office denying claimant’s petition to reopen.  The court held that the ATP’s opinion alone does not establish a right to benefits.  The ALJ found, with record support, that the claimant did not meet her burden of showing a worsening of her condition.  Where causation cannot be established, any impairment rating rendered by the ATP is inconsequential.  Regarding the need for a DIME, the court declined to read into the reopening statute a prehearing DIME requirement that does not presently exist.  In the case of Feeley v. Industrial Claim Appeals Office, Century Communications, and Sentry Insurance Co., the claimant sustained an admitted accident in 1998.  She was treated by an authorized treating physician (ATP) who placed her at maximum medical improvement (MMI) in 1999.  The claimant requested a DIME to challenge the ATP’s MMI determination.  The DIME determined the claimant was not at MMI.  Thirteen months later a different ATP again placed the claimant at MMI.  Claimant returned to the DIME a second time.  He again opined she was not at MMI.  Finally, a third ATP placed the claimant at MMI in 2002.  A Final Admission of Liability was filed on May 12, 2003.  The claimant did not object, but requested a hearing, arguing the Respondents were required to obtain a follow-up DIME before filing their FAL.  Finding no authority for this position, the ALJ disagreed and denied the claimant’s request for penalties and request for a follow-up DIME.  The claimant appealed this decision through the Colorado Court of Appeals, which affirmed the holding of the ALJ.  Some 20 months later, in November 2006, the Supreme Court issued its decision in Williams v. Kunau, holding that after a claimant has successfully challenged an MMI determination with a DIME, the DIME process remains open and that when the ATP makes a second finding of MMI, the Respondents may not file a FAL to close the claim prior to returning the claimant to the DIME for a follow-up examination.  The claimant did not petition to reopen her claim based on a mistake of law in light of the decision in Williams, but simply filed an application for hearing.  Respondents argued (1) the claimant’s claim was closed; (2) the period for reopening had expired; (3) the issues endorsed in claimant’s application for hearing were barred by the doctrines of claim and issue preclusion; and the William’s decision had no retroactive effect.  The court of appeals agreed, but did not address whether the Williams’ decision applies retroactively, given its holding that the claimant’s claim was closed and the issues endorsed in her application for hearing were barred by the doctrines of claim and issue preclusion.                                                                                                                             Back to Top

 

 

Text Box: Legislative Update   Under the current law, employers with at least one employee must provide workers’ compensation coverage for their employees, which is the exclusive remedy for workplace injuries.  November’s ballot in Colorado will include Amendment 57.  This measure proposes changing Colorado law to require nongovernmental employers with ten or more employees to provide a “safe and healthy” workplace.  The measure gives employees injured on the job the right to sue their employers for damages beyond those paid by workers’ compensation insurance if they believe their employer did not maintain a safe and healthy workplace.  Courts or juries would be permitted to award injured employees their actual monetary losses as well as nonmonetary losses such as pain and suffering, emotional distress, inconvenience, mental anguish, and loss of enjoyment of life.  This right of action is not known to exist in any other state.  There are approximately 85,000 workplace injuries requiring medical care in Colorado annually. Text Box: Questions frequently arise concerning how to fully protect the interests of primary payers when a settlement occurs prior to receiving approval from the Center for Medicare Services (CMS) for a proposed Medicare Set-Aside Arrangement or if the settlement agreement places responsibility for repaying Medicare’s conditional payment claims on the claimant.  It is sometimes suggested that settlement language holding the claimant responsible in the event Medicare requires additional money for a set aside or if additional payment claims arise is sufficient to protect an employer or insurer from future claims by Medicare.  While including such language in the settlement documents is a good idea, it is not binding on CMS.  The law is clear that an individual or entity who is not a party to a contact, such as a settlement agreement, is not legally bound by the terms of the contract.  Therefore, the parties to a worker’s compensation settlement agreement may not legally limit Medicare’s right to recover money from the primary payer which should, at least according to Medicare, have been placed in a set aside account, but was not.  With Medicare Set Asides, the only way to ensure protection is to obtain CMS approval prior to having the settlement documents approved by the Director or an Administrative Law Judge.  If a claimant is unwilling to wait for such approval, the payer has the option of proceeding with the settlement based on a reasonable maximum amount that CMS would require to fund the account, assuming the risk CMS will require more than the amount initially submitted.  In that case, the settlement documents should identify which party will be responsible for funding any additional amount requested by CMS.  Because of the CMS approval backlog, it is very important that the MSA research process begins right away.  This allows insurers  to obtain preliminary conditional payment claim information from Medicare and thus address the issue adequately in any settlement agreement.  Keep in mind, however, that Medicare’s final conditional payment reimbursement demand (for Medicare recipients) does not issue until after CMS is provided with copies of the final and approved settlement documents.  Therefore, there is always the possibility that CMS will assert a larger claim after settlement.  Even after the claim is resolved, the primary payer remains responsible to Medicare to repay conditional payments even if money was paid to the claimant in the settlement specifically to resolve such claims and even in disputed claims. The Medicare Set Aside Laws are constantly evolving.  New memos were issued in August regarding review and early termination of MSAs and new deadlines for mandatory insurer reporting were enacted in September.   If you have any questions about Medicare Set Asides, please contact any of the attorneys at Clifton, Mueller & Bovarnick, P.C.                                                                                                                        Back to Top

Text Box: VICTORIES IN THE TRENCHES Text Box: James R. Clifton In the claim of Delores Sauers v. Wal Mart Stores, Inc. and American Home Assurance, Administrative Law Judge William Martinez awarded penalties against the claimant and in favor of Respondents for claimant’s improper contact with a Division IME physician.  The relevant facts of the Sauers’ claim are as follows.  The claimant sustained admitted work-related injuries to her neck and back.  She received treatment for her injuries from the employer’s designated provider, Dr. Kevin Pulsipher.  Dr. Pulsipher placed the claimant at MMI, assigned no impairment, and indicated no treatment was necessary to maintain the claimant’s condition at MMI.  The claimant was dissatisfied and requested a Division IME.  Dr. Alan Lichtenberg was selected as the DIME.  Dr. Lichtenberg assigned an eleven percent whole person impairment rating.  After the Notice of Completion was issued by the Division of Workers’ Compensation, the claimant, ex parte, sent a letter to Dr. Lichtenberg asking if acupuncture would be reasonable post-MMI care to maintain her condition.  Dr. Lichtenberg responded in a follow-up report, that acupuncture would be appropriate post-MMI treatment.  Although the ex parte communication did not affect the DIME rating, the ALJ found the contact was inappropriate and claimant should be required to pay a penalty, 75 percent to Respondents, and 25 percent to the Subsequent Injury Fund. Richard A. Bovarnick In Steven Wood v. Wal Mart Stores, Inc. and American Home Assurance, Administrative Law Judge Bruce Friend agreed with Respondents that the claimant’s request for a total knee replacement was not the result of the compensable work-related knee injury he sustained at Wal Mart.  The ALJ agreed that the Respondents’ expert, fellowship joint replacement specialist, Manhal Gharnma, M.D., was more credible and persuasive than the claimant’s treating physicians. In the claim of Amy Goracke v. Rescare and ACE American Insurance Co., Administrative Law Judge Michael Harr found that the claimant’s testimony concerning the development of the occupational disease of lumbar disc disease while working as a certified nurses’ aid was incredible and wholly inconsistent with her medical history as recorded in her medical records.  In addition, ALJ Harr found Dr. Reichhardt’s testimony that it was not medically probable the claimant suffered an occupational disease of lumbar disc disease while working as a CNA credible and persuasive.  The claimant’s claim for benefits was denied and dismissed. In Ken Sewell v. ABF Freight, Inc., Self-Insured, the claimant alleged a March 6, 2008 injury to his left shoulder as a separate compensable injury after sustaining a December 2006 admitted industrial injury to his right shoulder.  After taking medical depositions and presenting lay testimony before Administrative Law Judge Laura Broniak, counsel for claimant conceded there was no new compensable claim in 2008, but that the left shoulder injury was a direct and proximate result of the 2006 accident. M. Frances McCracken In the claim of David L. Framel v. Wal Mart Stores, Inc. and American Home Assurance, Administrative Law Judge Edwin L. Felter agreed with Respondents that the claimant was responsible for the termination of his employment.  ALJ Felter granted Respondents request that the claimant’s temporary total disability benefits be terminated from May 2, 2008 through July 21, 2008.  On July 22, 2008, the claimant suffered a worsening of condition and was taken off work completely to undergo an arthroscopic manipulation of his shoulder joint.  The claimant was again released to return to work, with restrictions, on July 31, 2008.  ALJ Felter found that, but for the claimant’s for cause termination, the Respondents could have and would have offered him employment within the physician-imposed restrictions on and after July 31, 2008.  Therefore, ALJ Felter also granted the Respondents’ request to terminate TTD benefits on July 31, 2008 and ongoing.                                                                                                                       Back to Top

Text Box: Q. Cardiovascular exercise prolongs life?  Is this true? A:     Your heart is only good for so many beats… Don’t waste them on exercise.  Everything wears out eventually.  Speeding up your heart will not make you live longer. Q. Should I cut down on red meat and eat more vegetables? A:     You must grasp logistical efficiencies. What does a cow eat?  Hay and corn.  What are these?  Vegetables.  So steak is nothing more than an efficient mechanism of delivering vegetables to your system. Q. Is chocolate bad for me? A.     HELLO!  Cocoa beans.  Another vegetable! Q. Are fried foods bad for you? A.     YOU’RE NOT LISTENING!  Fried foods these days are fried in vegetable oil.  In fact, they are permeated in it. How could getting more vegetables be bad for you? Q. What are some advantages of participating in a regular exercise program? A.     I can’t think of a single one.  My philosophy is No pain… Good! And for those of you who watch what you eat, here’s the final word on nutrition and health:  The Japanese eat very little fat and suffer fewer heart attacks than Americans.  The Mexicans eat a lot of fat and suffer fewer heart attacks than Americans.  The Chinese drink very little red wine and suffer fewer heart attacks than Americans.  The Italians drink a lot of red wine and suffer fewer heart attacks than Americans.  The Germans drink a lot of beer and eat a lot of fat and suffer fewer heart attacks than Americans.  Conclusion: Eat and drink what you like.  Speaking English is apparently what kills you.

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: ICAO REJECTS PTD CLAIMS

Text Box: In the claim cited as In the Matter of the Claim of Bruce Williams v. Kunau Drilling and Pinnacol Assurance, W.C. No. 4-300-974 (September 3, 2008) the Industrial Claim Appeals Office affirmed an order of Administrative Law Judge Friend (ALJ)  determining the claimant failed to establish  he was permanently and totally disabled.  The Williams’ claim is interesting because ALJ Friend initially entered a Summary Order finding the claimant was permanently totally disabled. Respondents were dissatisfied with the Summary Order and filed a request for specific findings of fact.  The claimant’s counsel prepared the Specific Findings, Conclusions of Law and Order, but did not provide a copy to Respondents’ counsel.  The ALJ entered his Specific Findings of Fact, Conclusions of Law, and Order on November 21, 2007 (the Order).  Respondents filed a Motion to Set Aside the Order.  The ALJ issued an order dated December 5, 2007, noting that the claimant’s proposed order was to have been provided  to the respondents’ counsel, but the claimant had not done so.  The ALJ vacated the Order.  The respondents filed an objection and requested reconsideration of an evidentiary ruling excluding from evidence a 2002 video of the claimant.  The ALJ then entered an order in which he determined that the video was excluded based on his misunderstanding that respondents had not provided the claimant with a copy of the video.  Therefore, the ALJ ordered that a continued hearing be arranged.  A further hearing was held and the video was admitted into evidence.  The ALJ found the video showed the claimant engaged in rigorous physical ranch work in stark contrast to the complaints, image, and behavior he presented in his medical appointments.  The ALJ then issued an Order finding the claimant demonstrated many significant inconsistencies and deceptions and also found that the claimant’s description of his symptoms and limitations was not credible.  The ALJ found the claimant was capable of earning wages and failed to establish that he was permanently and totally disabled.  On appeal, the claimant contended that having entered a summary order and thereafter a full order, the ALJ erred in setting aside the full order because the claimant did not copy his draft of the full order to the respondents.  The claimant argued that the ALJ erred in setting aside the full order.  According to the claimant, the ALJ may not reopen the hearing to permit respondents to present additional evidence.  The panel disagreed and affirmed the ALJ’s Order. In another interesting and unusual opinion , in Holly Hand v. Petersen Contractors & Excavation, Inc. and GI Global Insurance, W.C. No. 40392-766 (September 16, 2008), the Industrial Claim Appeals Office set aside Administrative Law Judge Nancy Rumler’s award of permanent total disability benefits and remanded the claim for entry of a new order.  In the Hand claim, the claimant sustained an admitted work-related injury to her cervical spine on July 21, 1998.  The claimant’s primary treating physician opined she was not capable of competitive employment, even part-time, because of pain, medications, and the physical and mental stress associated with employment.  The claimant’s vocational expert testified the claimant was incapable of performing any work.  The ALJ determined the claimant was entitled to PTD benefits.  On appeal, Respondents contended the ALJ abused her discretion by relying solely on the opinions of the claimant’s experts and failing to discuss the opinions of the Respondents’ experts.  The Panel rejected these arguments.  However, ICAO noted that the ALJ relied on the vocational expert for the claimant rather than the Respondents’ vocational expert because the ALJ found that “due to difficulties beyond the control of the Respondents’ expert, she had only outdated restrictions for the claimant on which to base her opinion.”  According to the Panel, the ALJ’s reliance on the claimant’s vocational expert’s testimony was based on misunderstanding of the Respondents’ expert’s testimony.  During cross-examination of the Respondents’ expert, she testified that when she wrote her report in 2007, she had only the ATP’s 2002 restrictions.  However, she immediately explained that the more recent restrictions from Dr. Lesnak would only increase the alternatives for the claimant because they represented an improvement over Dr. Lockwood’s sedentary work category.  This evidence, if credited, might support a finding that the claimant is not entitled to PTD benefits.  Therefore, the Panel could not conclude the ALJ’s misunderstanding of the evidence was harmless error and remanded the claim for reconsideration of the evidence and entry of a new order on the issue of claimant’s entitlement to PTD.                                                                                                                              Back to Top

Practice Pointer

 

Victories in the Trenches

 

Legislative Update

 

ICAO Rejects PTD Claims

 

Ipsi Dixit