NEW COLORADO LAW LIMITS OPIOID PRESCRIPTIONS

Colorado is addressing the ongoing opioid epidemic with an array of public and private initiatives.  Per the American Medical Association,  the state Medicaid agency (the Colorado Department of Health Care Policy and Financing [HCPF]) and the Division of Insurance (DOI) are spearheading the initiatives.  On March 16, 2018, the revised Guidelines for Prescribing and Dispensing Opioids were adopted by all six of Colorado’s prescribing and dispensing Boards: the Colorado Dental Board, the Colorado Medical Board, the State Board of Nursing, the State Board of Optometry, the Colorado Podiatry Board and the State Board of Pharmacy.  On May 21, 2018, then Governor, John Hickenlooper, signed Senate Bill 18-22, Clinical Practice for Opioid Prescribing.  The bill, which limits the number of opioid pills a healthcare provider can prescribe, went into effect immediately upon the Governor’s signature.  Under the new law, a prescriber must limit a patient’s initial prescription of an opioid to a seven-day supply, if the prescriber has not written an opioid prescription for the patient in the preceding twelve months.   All six dispensing Boards recommend a prescription of less than 50 MME per day and utilization of long-acting or extended relief formulations. These limits do not apply in certain discrete situations, including, if, in the judgment of the prescriber, the patient:

 

  • Has chronic pain that typically lasts longer than 90 days past the point of healing, as determined by the prescriber;
  • Has been diagnosed with cancer and is experiencing cancer-related pain;
  • Is experiencing post-surgical pain, expected to last longer than fourteen days due to the nature of the procedure; or
  • Is undergoing palliative care or hospice care designed to improve quality of life.

 

After the first prescription, the prescriber may exercise discretion in issuing a second-fill for a seven-day supply. In cases of a second-fill, the prescriber is required to check the Prescription Drug Monitoring Program (PDMP) database before prescribing additional opioids for the same  patient.  Failure to check the PDMP constitutes unprofessional conduct if the prescriber repeatedly fails to comply with this PDMP requirement.  The requirement to check the PDMP on a second-fill does not apply in situations exempting compliance with the seven-day first-fill, with two additional exemptions:

 

  • The patient is receiving the opioid in a hospital, skilled nursing, residential, or correctional facility; or
  • Is receiving treatment during a natural disaster or where mass casualties have taken place.

 

After the second opioid prescription, the law has no additional restrictions on the healthcare provider’s prescribing practices.

 

In keeping with SB 18-22, the Colorado Division of Workers’ Compensation recently released its amendments to Rule 18, W.C.R.P., the Medical Fee Schedule. The updated fee schedule took effect January 1, 2019.  While several important changes were made in the amended fee schedule rule for 2019, including inclusion of the most current CPT code terminology, HCPCS codes, Colorado Z-codes (state-specific billing codes) and Medicare’s most current National Physician Fee Schedule Relative Value file, with updated conversion factors, the amended rule also incorporates the revised physician prescription/dispensing restrictions on opioids.   The amended rule language provides:

 

Opioids classified as Schedule II or Schedule III controlled substances that are prescribed for treatment lasting longer than seven days shall be provided by a pharmacy.

 

The changes to Rule 18, W.C.R.P. suggest the Division of Workers’ Compensation intends to move forward and integrate any necessary modifications to drive full compliance with the new restrictions on physician dispensing of Schedule II and III opioids. Physicians prescribing chronic opioids through the Workers’ Compensation system are also expected to comply with Colorado’s Medical Treatment Guidelines, Rule 17, Exhibit 9, addressing chronic pain disorder.  While the Guidelines do not have the force of law, they are intended to assist practitioners in the safe prescribing and dispensing of opioids.

 

If  you have any questions about the Medical Treatment Guidelines, changes to the Medical Fee Schedule, or any other topics, please contact us.

 

The Ongoing Dilemma of Intermittent FMLA Leave

Intermittent FMLA leave is a giant thorn in the side of humanFMLA Leave resource professionals across the country. The struggle is that not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them. The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members. The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call. It’s not always simple, however. If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

 

Eligibility Is Not Automatic

Companies can successfully dispute employee claims to FMLA eligibility. Consider this real-life example: 

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time. After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired. She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her lateness, she claimed, so each instance should have counted as a block of FMLA leave. Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition. The only time it affected her was when it was time to go to work. 

The Court denied her claim for FMLA eligibility and indicated that intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.  That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

 

Designating Leave Retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively. For example, an employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia. Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.” The key here is that the company acted quickly – within two days of being notified of the qualifying leave. The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation. It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

 

Using Employees’ Paid Time Off

Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO). Instead, companies can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

 

The Transfer Position

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation. The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same. And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

There is one large restriction – the move can’t be made if the transfer “adversely affects” the individual. An example would be if if the new position would lengthen or increase the cost of the employee’s commute.  This would adversely affect the employee. Instead, such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

 

Cooperation

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations. Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

 

The Firing Question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights. Obviously, workers can’t be fired for taking leave. But employers can layoff, discipline and terminate those employees who violate company policies or perform poorly. When an employee on FMLA leave is terminated, the Department of Labor decrees that the burdens on the employer to prove the worker would have been laid off, disciplined or terminated regardless of the leave request or usage.

 

Reductions in Force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave. However, again companies should be prepared not only to prove the business necessity of the move, but to show an objective, nondiscriminatory plan for choosing which employees would be laid off.

 

Misconduct or Poor Performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave. However, companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence. As such, courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave? This is not an easy answer to explain before a jury if liability is threatened at trial.  The good news is that a number of courts have upheld employers’ rights to fire employees on FMLA leave, even when the employee’s problems were first discovered when the employee went off the job. Nevertheless, companies should move cautiously if they are to terminate an employee currently out on leave due to misconduct or poor performance existing prior to the leave, but discovered after the leave begins.

 

Every case is different and requires different strategies and decisions because of the intricacies of the FMLA.  Hence, we highly recommend consulting in-house counsel, or one of our attorneys, to assist in making the appropriate decisions.

New Rule 11 – How’s It Going?

We’re now going on almost three months since the new Rule 11 took effect with the updated DIME fees and procedures.  Time flies, doesn’t it?   There has been some litigation that has ensued as a result of the recent changes, but overall the changes have been well received.  This is likely because most people prepared adequately for the changes that were taking effect well before the start of the New Year.

 

The litigation that has ensued has been primarily regarding the “regions” listed in the checklist contained on the Application for DIME and the body parts involved in the claim.   Since the “regions” have caused some confusion, the fees have also needed clarification.   Some of the litigation revolved around the specific body parts to a claim and Rule 11’s breakdown of cost.   The checklist looks as follows:

 

2019 DIME Application

 

Above each set of body parts, the boxes are listed as regions.  Pursuant to Rule 11, “less than three regions” is a fee of $1,000.   “Three or more regions” is a fee of $1,400.   It is recommended to double-check the Applications for DIME that are received to see if compliance with the Rule is met.   Any discrepancies and/or arguments concerning interpretation of the Rule can be handled by the Prehearing Administrative Law Judges.   The Judges have done an outstanding job of interpreting the Rule and correcting many issues for the DIME unit.  Also note, that some of the disputes have resulted in body parts that either were or were not related to the claim.   Such disputes have involved related body parts that should be part of the DIME, however claimants have tried to keep them out to lower the overall costs of the DIME.   Other disputes have arisen between the terms “and/or” as used in the Rule.  The arguments pertaining to the semantics have been resolved mostly using the word “or” to imply that either one or the other conditions must be met to trigger a particular fee.

 

 

In general, the DIME process seems to be running smoothly and interpretation of the new Rules seems to be pretty straightforward.   Like any Rule change, it will take some time to get used to and iron out the wrinkles.  It is important to double-check the new Rule and make sure compliance is met to avoid missing any particular arguments that will pose any sort of leverage in a claim.   Recall, that the new Rule only applies to Notices and Proposals filed on or after January 1, 2019.   Any Notice and Proposal filed before that date adheres to the old Rule 11.

 

If you have any questions regarding the changes to the Rules or the updated statutes, feel free to contact us.

 

Workplace Bullying

Does workers’ compensation insurance cover mental, and manifesting physical injuries Workplace Bullyingresulting from workplace bullying? A recent Forbes online article cited a survey concluding that 75% of the U.S. workforce reported having experienced workplace bullying.[1] Another study cited by the Workplace Bullying Institute suggested that absenteeism and lower production costs businesses $4 billion annually.[2] Regardless of the accuracy of the statistics, with the increased use of social media, workplace bullying can start inside of the workplace, or, start outside of the workplace and permeate into daily business operations.

One definition of workplace bullying advanced in Psychology Today was “workplace bullying refers to “situations where an employee repeatedly and over a prolonged time period is exposed to harassing behavior from one or more colleagues (including subordinates and leaders) and where the targeted person is unable to defend him-/herself against this systematic mistreatment.”[3] Researches have identified both internal and external causes of workplace bullying. As noted below, identifying the cause of workplace bullying is relevant to unwinding the legal liabilities associated with resulting injuries. Types of injuries associated with this behavior includes “physical and psychological symptoms, including headaches, chronic neck pain, fibromyalgia, type 2 diabetes, sleep problems, anxiety, depression, post-traumatic stress symptoms, suicidal ideation, and others.” [4]

The current statutory law in Colorado does not specifically address a company’s insurance liability for workplace bullying injuries. However, those injuries can be covered under the exclusive remedy of the Colorado’s Workers’ Compensation Act and the associated insurance policies. Bullying injuries may be treated as assaults for purposes of liability. Assaults that arise out of work are generally compensable injuries, while those that are purely personal are not.[5] Assaults caused by a natural force, or an event that any employee would be exposed to are also compensable assaults. Before addressing the nature of the injury, the business should investigate whether the bullying, for example verbal abuse or written harassments, arose out of a personal dispute between employees or whether the bullying occurred within the parameters of the employees’ business relations. Any investigation should be undertaken consistent with a business’ employment policies and procedures for interviewing witnesses, reviewing internal documents such as email, and confiscating company phones or computers as evidence.

When a business determines that a workplace bullying event has occurred, the business ought to determine whether an actual injury was caused by the perpetrator(s) conduct. The law is especially tricky when unpacking whether an injury occurred. While an employee may complain of stress or some other symptoms, especially to justify absenteeism, the claim may not always be a compensable injury. Section 8-43-301(2)(a), C.R.S., requires that an employee claiming a mental impairment provide a specific showing of a mental injury, including evidence supported by a licensed psychologist or psychiatrist. Additionally, whether the bullying itself was a crime of violence will also factor into the amount of benefits that could be owed to a victim-employee. Navigating through the patchwork of questions to determine liability hinges on the ability of a comprehensive investigation of the claim at the outset to determine its validity.

As always, if you have any questions regarding workers’ compensation insurance and laws, please contact us.

 

[1] https://www.forbes.com/sites/christinecomaford/2016/08/27/the-enormous-toll-workplace-bullying-takes-on-your-bottom-line/#5f464c0b5595

[2] https://www.workplacebullying.org/tag/workers-comp/

[3]https://www.psychologytoday.com/us/blog/finding-new-home/201809/workplace-bullying-causes-effects-and-prevention

[4] Id.

[5] Velasquez v. Industrial Commission, 41 Colo. App. 201,581 P.2d 748 (1978); In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988).

Helmet to Helmet

It’s hard to believe that the 2018 NFL football season is coming to an end soon with Super Bowl LIII. And for the 16th time in 18 years a quarterback named Brady, Manning, or Roethlisberger will represent the AFC in the Super Bowl. This will be the 9th appearance for Patriot’s Quarterback Tom Brady while the Ram’s Quarterback Jared Goff makes his first appearance. The old vs. the new.

While we are indulging in hot wings, pizza, and libations at various Super Bowl parties, it is easy to lose sight of the fact that injuries to professional athletes fall under workers’ compensation insurance. Since these players are performing their job duties and, unlike amateur athletes, they are employees.

Professional football requires two types of insurance: general liability and workers’ compensation since it is mandatory under state laws. Given the lucrative contracts these athletes sign, the Collective Bargaining Agreements often require wage continuation agreements so that these athletes continue to make the same salary if they are injured and off work. Can you imagine an athlete who makes $30 million a year being capped at the state workers’ compensation rate while recovering from an injury? Hence why wage continuation agreements are standard across the league.

With that said, one of the biggest threats to the NFL is the evaporating insurance market. According to multiple sources from the NFL, there is only one carrier willing to provide workers’ compensation coverage for NFL teams because of all the concussion litigation that began in 2011. At that time, at least a dozen carriers occupied the insurance market for pro football. Now, there is one.  Dr. Julian Bales, Medical Director and member of the NFL’s head, neck, and spine committee told ESPN “insurance coverage is arguably the biggest threat to the sport.”[1]

A study done by the University of Pittsburgh Medical Center’s sports concussion program found approximately 300,000 football-related concussions occur each year in youth, high school, college, and professional. And the biggest injury or disease that is making headlines in the NFL is traumatic brain injuries and chronic traumatic encephalopathy or “C.T.E.” The problem with this disease is the unknown “trigger” on how and when the disease starts. The disease is diagnosed after death and the symptoms of depression and delusional behavior may lay dormant for years, or even decades, before they surface. It’s concerning for carriers to know they could be on the hook years down the road given the unknown.

Similar to asbestos claims in workers’ compensation, a carrier can be at risk for a claimant who works one day and is subsequently diagnosed with lung cancer, players in California could file claims, even if they played only one game, to allege their brain disorders were caused by the sport. This cost carriers and the leagues hundreds of millions of dollars which fortunately was curtailed by new legislation in 2013. Still, carriers are cautious to cover the NFL without an exclusion for head trauma.

For many years carriers insured the NFL without restrictions for traumatic brain injuries. Now many of these companies are in a six-year lawsuit with the NFL over who will pay legal fees and claims associated with the 2013 settlement of the $1 billion-dollar class action lawsuit. Hence, these carriers are at higher risk to insure the NFL.

California has one of the most liberal workers’ compensation laws in the Union. Recently, former players who decades ago reached injury settlements with NFL teams and carriers have filed new claims alleging their settlements did not cover traumatic brain injuries. In 2015, a workers’ compensation court found that a former player’s 1989 settlement for cumulative industrial injury “does not extend to the then-unknown cumulative injury to the brain.” Similar to a worker who claims their shoulder pain is due to years of lifting heavy equipment, a former football player can argue their continued migraine headaches are a result of them playing professional football. Chances are several brain disorders like dementia, Parkinson’s and Alzheimer’s could be blamed on football. Doctors may ask, “how long did you play football and how many head injuries did you have?” and cite that as the cause for a claimant’s brain disorder when a claim against the NFL is filed. Fortunately, claimants must still meet their burden and prove that pro football alone, and not youth or college football, was the “cause” of their injury or diseases.

Workers’ compensation attorneys in California are handling numerous settled cases in which former NFL players have filed new claims for head trauma. The new claims will only increase costs for litigation and further deter carriers on what they will and will not cover. Fortunately, monetary costs for workers’ compensation claims are capped which will help put a cork in the damn but if the floodgate of old settled claims are allowed to be reopened, the market for coverage will continue to be washed away down the river…

As always, if you have any questions regarding workers’ compensation insurance and laws, please contact us.

 

[1] http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn

Rules Are Meant to be Broken – or At Least Updated. 2019 Rule Updates

2019 brings changes to two Rules that affect Colorado Workers’ Compensation. Rule 11 and Rule 16 have both been revised and the changes go into effect January 1, 2019. The changes to Rule 11and the DIME process are extensive. Below is a brief summary of the changes.

 

Rule 16 is undergoing a few changes.  The rule has been reordered.  Most of the changes are not substantive.  It is strongly recommended that the new rule be referenced in dealing with any prior authorization or billing issue for specifics.  The more substantive changes are highlighted below; however, the specifics of the rule should be reviewed in each situation.

  • ‘Payer’ definition is the same, but the definition now states that use of third parties to pay bills does not relieve the carrier or self-insured employer of obligations under the rules.
  • Recognized healthcare providers previously under 16-5 is now under 16-3.
  • Required use of the medical treatment guidelines, previously under 16-3 is now under 16-4
  • Notification requirements previously under 16-9 is now under 16-5.
  • Prior authorization previously under 16-10 is now under 16-6
  • Contest of prior authorization previously under 16-11 is now under 16-7.

* In conjunction with 16-11 in the new rule governing payment of medical benefits, contest for payment of prior authorization for non-medical reasons now contains examples of non-medical reasons including: no claim has been filed, compensability is not been established, the provider is not authorized, insurance coverage is at issue, typographic, gender or date errors on the bill, failure to submit medical documentation and unrecognized CPT codes.

  • Required use of the medical fee schedule previously under 16-4 is now under 16-8 and specifically sets forth the payment for build services without an established value under the medical fee schedule require prior authorization.
  • Required billing forms and accompanying documentation previously under 16-7 is now under 16-9 and has been added to somewhat.
  • Required medical documentation previously under 16-8 is now under 16-10 and sets forth in greater detail specifically what Form 164 should look like from the doctor’s office.
  • Payment of medical benefits previously under 16-12 is now under16-11.
  • Dispute resolution process previously under 16-13 is now under 16-12.
  • On-site review of hospital or other medical charges previously under 16-14 is folded into 16-10 regarding required medical record documentation.

 

Rule 11 changes are more substantial. Of Counsel, Brad Hansen, wrote an article about the updates last month and you can read it as well: Because It Goes to 11 – Rule 11 changes for 2019. 

 

The following is a brief summary of the Rule 11 changes:

Why?

  • No real change for years.
  • Doctors’ reluctance to continue to do DIMEs due to reimbursement and increased complexity.

 

Effective Date

  • January 1, 2019
  • DOWC says there is some leeway for the first month.

 

Overview of changes

  • Cost
  • Forms
  • Time-frames
  • Logistics

 

Cost

  • 3 tiers based on DOI, and number of body parts
  • $1,000 = DOI < 2 years and < 3 regions marked on the application
  • $1,400 = DOI > 2 years but < 5 years and 3 – 4 body regions marked
  • $2,000 = DOI > 5 years and ≥ 5 or more body regions marked

 

Forms

  • FAL – includes objection to the FAL, notice proposal and application for DIME
  • Request for Appointment to the DIME
  • Notice and Proposal and Application for DIME
  • DIME Examiner Summary Sheet
  • Notice of DIME Negotiations
  • Follow-up DIME
  • DIME Physician Summary Disclosure Form
  • Notice of Reschedule or Termination of DIME
  • Notice of Agreement to Limit the Scope of the DIME
  • DIME Report Template

 

Time-frames – font color corresponds to responsible party. Key to color below list.

  • FAL = 30 Days After Receipt of MMI (calendar 30 days after report for safety)
  • Notice and Proposal and Application for DIME = 30 Days After Filing of FAL
  • Claimant Files for Indigency = 15 Days After Filing the Notice and Proposal and Application for DIME
  • Attempt to Negotiate DIME = 30 Days After Notice and Proposal and Application (Notice of Negotiation Form to be filed within 30 Days)
  • DOWC Issues Panel = 5 days
  • Summary Disclosure Request = 5 Business Days
  • Requesting Party Strike If No Disclosure Request = 5 Business Days
  • Non-Requesting Party Strike = 5 Business Days
  • DOWC Send DIME Confirmation = 5 Business Days
  • Pay For and Schedule DIME = 14 Days
  • Schedule DIME = Between 35 – 75 Days After DIME Confirmation
  • Complete Copy of Medical Records to Claimant = 14 Days from DIME Confirmation
  • Claimant submits additional Medical Records to Carrier = 10 Days After Medical Packet From Carrier
  • Completed Packet Provided to DIME = 14 Days Before Exam
  • Claimant Notifies Carrier of Need for Interpreter = 14 Days Before Examination
    • Carrier is Responsible for Paying for the Interpreter
  • After DIME = 20 Days After Examination a Report is Generated

Key = Respondent duty       = Claimant duty     = Either Party’s duty

 

Logistics

  • New Rule applies to any Notice and Proposal with a certificate of service after 1/1/19
  • Applies to any follow-up DIME after 1/1/19
  • Applies to 24-month DIMEs

 

Questions

  • Body Parts?
    • The checklist proports to control body parts considered
    • PALJs likely to address
    • DIMEs still not confined to specific body parts
  • DIME Cancellation
    • Very tight cancellation time-frames with fixed penalties

 

The above summaries of Rule 11 and 16 are not intended to be used as legal advice. They are an outline of the changes to those Rules effective January 1, 2019. Please contact us for case specific legal recommendations.

BECAUSE IT GOES TO 11

It is hard to believe that the holiday season is here and, with that, 2019 will soon be upon us. 2019 Rule 11 revisionsWith the New Year, several changes and updates to the Workers’ Compensation Rules of Procedure will take place. One rule that will have significant changes and impact on the system is Rule 11, which pertains to the DIME process.

The DIME program has seen little change since its inception in 1991, yet it is an essential piece of the Colorado Workers’ Compensation system. There have been attempts throughout the years to change the procedures from both respondent’s and claimant’s bars but to no avail. After three years of collaboration and tedious consideration, the Division of Workers’ Compensation has finally adopted a new rule that will address key challenges of each stakeholder. This is due in part to weekly staff meetings with representatives from both sides of the bar commenting on the changes and individual meetings with each side of the bar. There were over 50 revisions to Rule 11 and a Public Rule Hearing held for additional comment.

 

Effective January 1, 2019, these revisions and changes to Rule 11 will take place. Several key changes to the Rule:

     

    • There will now be a three-tiered payment system based on the date of injury to the filing of the DIME application and the number of body regions indicated on the DIME application;
    •  
    • The DIME physician must receive the fee prior to the requesting party scheduling the DIME appointment;
    •  
    • The Notice and Proposal and DIME Application are now combined as one document;
    •  
    • The time-frame to schedule a DIME appointment is extended to no earlier than 45 days or later than 75 days after the requesting party receives the notice of the DIME Physician Confirmation; and
    •  
    • Parties will now be responsible for agreeing on a singular medical records packet to send to the DIME physician.

     

 

The Division Rule will go into place January 1st, but the Division has indicated there will be some leniency the first month to sort out compliance issues. By February the Division will be enforcing the new process. Any Notice and Proposal with a certificate of mailing dated on or after January 1, 2019 is subject to the new Rule 11 provisions.

 

One provision of the Rule that will be advantageous for respondents is the requirement that once a Notice and Proposal is filed, claimant must simultaneously file a DIME application. With the current Rule 11 provision, claimant could file a Notice and Proposal to perfect their jurisdictional requirement to object to the Final Admission of Liability but could wait on filing for a DIME. Sometimes it would be months, or even close to a year, before a DIME application was filed and physician selected. Hopefully, the new Rule 11 revisions will bring a speedier DIME process and claim resolution/closure.

 

One negative effect of the new Rule is that parties are now to agree on one set of medical records to be sent to the DIME physician. This could create more litigation as claimants may not want to provide certain records, but respondents may feel they should be included in the medical packet. A standoff could require pre-hearings to adjudicate the matter. This is likely why the Division extended the time requirement to 45 – 75 days so that parties have time to reach an agreement on the medical records submitted and additional time to set the DIME appointment.

 

With these changes to Rule 11, there will be a lot of questions that need to be addressed. The attorneys at Lee & Brown, LLC are here to answer any questions you may have regarding the new changes to Rule 11 and will be conducting training seminars “on our DIME” early next year to go over all these changes. Below are some helpful links from the Division of Workers’ Compensation which provides general DIME information and new timelines to consider.

 

https://www.colorado.gov/pacific/sites/default/files/DIME_Presentation_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/Important_DIME_Timelines_2019.pdf

 

https://www.colorado.gov/pacific/sites/default/files/General_DIME_Fee_Information.pdf

 

 

Recovery of Overpayments in Workers’ Compensation Claims

The issue of overpayments has drawn much attention in recent years.   Several claimsOverpayment in WC Claims have gone up to the appellate courts regarding the jurisdiction and ability of the Division and an ALJ to order repayment of workers’ compensation benefits that were previously paid.  As you may imagine, repayment of several thousand dollars by a claimant is usually very difficult, if not impossible.  Employers and carriers usually protect themselves and recoup overpayment from future benefits owed.  Several cases have emerged, (as well as arguments from claimants), that recovery of over-payments is impermissible, unconstitutional, and burdensome.

 

The parties must always take into consideration that the workers’ compensation system is a gamble at every stage.   The parties often encounter substantial risk throughout the claim that could tip the scales in favor of one party or the other.  The Division IME is one such process.  Another example is a merits hearing and the ultimate determination of the ALJ.  Claimants risk that benefits paid earlier in the claim will suddenly become an overpayment based on the opinions of either a physician or a Judge, or both.

 

Pursuant to section 8-40-201(15.5), C.R.S., an overpayment is defined as: “money received by a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles. For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits under said articles.”

 

Recovery of overpayments is permitted within the Act.  Many examples exist in which a claimant may have been paid money that they were not owed.  Most of the time, Respondents recoup an overpayment from PPD or future indemnity.  However, in a situation in which there are no future benefits owed, the Act allows for garnishment of the claimant’s assets upon filing of a final order with the district court.  Section 8-43-306(1), C.R.S. states, “A certified copy of any final order of the director or an administrative law judge ordering the payment of  any penalty  or  repayment  of  overpayments  pursuant  to  articles 40 to 47 of this title may be filed with the clerk of the district  court  of  any  county  in  this  state  at  any  time  after  the  period  of  time  provided  by  articles  40  to  47  of  this  title  for  appeal  or  seeking  review  of  the  order  has  passed  without  appeal or review being sought or, if appeal or review is sought, after  the  order  has  been  finally  affirmed  and  all  appellate  remedies and all opportunities for review have been exhausted. The party filing the order shall at the same time file a certificate to  the  effect  that the  time  for  appeal  or  review  has  passed without appeal or review being undertaken or that the order has been  finally  affirmed  with  all  appellate  remedies  and  all  opportunities for review having been exhausted. The clerk of the  district  court  shall  record  the  order  and  the  filing  party’s  certificate in the judgment book of said court and entry thereof made in the judgment docket, and it shall thenceforth have all the effect of a judgment of the district court, and execution may issue thereon out of said court as in other cases. Any such order may be filed by and in the name of the director or by and in the name of the party in the worker’s compensation action who was injured by the violation of any provision of articles 40 to 47 of this title  or  who  was  found  to  be  entitled  to  repayment  of  overpayments under said articles.”

 

It is quite difficult for a claimant attorney to explain to their client that money that was previously received by a claimant, now had to be paid back to the carrier.  For example, when a Division IME physician backdates the date of MMI, and TTD that was paid during the prior MMI period, now becomes an overpayment; a claimant is often left with the burden of understanding how a physician can retroactively find that MMI happened earlier in time.  Another example is recovery of benefits against SSDI that is being collected.  Claimant sometimes believe that they are entitled to SSDI and TTD/TPD concurrently without an offset.

 

Many arguments have been made to the appellate courts unsuccessfully regarding collection of an overpayment.  One such argument involves “monies due and owed at the time of payment.”  Any money paid to the claimant at the time it was owed should not be an “overpayment” pursuant to the Act.  This argument was addressed by the Court of Appeals and they declined to follow it indicating that the Act allows for repayment of monies in situations in which the money was never due in the first place.  It wouldn’t be surprising for this line of thinking to be quickly eroded by a legislative change in which an overpayment is defied expressly in the statute by other means in which the facts of a case would not change the overall intentions of the way it was written.

 

For now, Respondents have one-year from the date the overpayment exists or accrued to claim it.  If it is not claimed, it is considered waived.  If an overpayment of indemnity exists on a file, it is best to claim it right away and strategize with counsel how best to recoup the overpayment.  Sometimes, remedies can be worked out with the claimant to make both parties happy and ensure that there is not prejudice to either side.  It can certainly prevent an Order being granted which puts the claimant is a difficult position of having to make a repayment of monies, when in all likelihood the money is either gone and/or has a very little chance of being seen again.

 

If you have any questions regarding an overpayment, recoupment, or strategy regarding benefits on a claim; please contact us.

 

 

The Cross Contamination between Workers’ Compensation and OSHA: Considerations for Handling Blood-Borne Pathogen Claims in Colorado and Arizona.

Exposure to blood-borne pathogens presents unique risks in the work place. Workers in health care or in-resident home care are, on a daily basis, subject to the potential of disease transmitted by bodily fluids. These diseases range from methicillin-resistant staphylococcus aureus (MRSA), spinal meningitis, tuberculosis, hepatitis, to HIV. Given the Sharps Containerubiquitous daily potential for exposures to workers across the board, including direct patient care workers to maintenance workers to transport personnel, risk managers and adjusters need to understand the overlap with workers compensation and the Occupational Safety and Health Administration’s (“OSHA”) rules. Understanding exposure and needlestick law is critical to containing risks as well as protecting employees from life-altering danger. [1]

 

The OSHA rules pertaining to disease transmitted though bodily fluids are found on the public domain at: https://www.osha.gov/SLTC/bloodbornepathogens/gen_guidance.html. The federal regulations governing OSHA’s rules and role is found at 29 CFR 1910.1030. OSHA laws, since 2002, also conform to the federal Needlestick Safety and Prevention Act (NSPA) of 2000.[2] Congress in large part delegated the enforcement of the NSPA to OSHA. In turn, OSHA rules require employers evaluate controlled safety programs to keep employees safe from potential exposures and to implement engineering controls to effectuate any respective safety plan. The NSPA requires that “Requires certain employers to: (1) review and update exposure control plans to reflect changes in technology that eliminate or reduce such exposure, and document their consideration and implementation of appropriate commercially available and effective safer medical devices for such purpose; (2) maintain a sharps injury log, noting the type and brand of device used, where the injury occurred, and an explanation of the incident (exempting employers who are not required to maintain specified OSHA logs); and (3) seek input on such engineering and work practice controls from the affected health care workers (exempting employers who are not required to establish exposure control plans).”[3]  The federal NSPA and OSHA law do not alter the scope of workers compensation liability insurance coverage or impose additional coverage requirements upon employers. However, OSHA regulations do require the employer of an exposed employee set up an immediate confidential medical evaluation. Under OSHA standards, the evaluation: “This evaluation and follow-up must be: made available at no cost to the worker and at a reasonable time and place; performed by or under the supervision of a licensed physician or other licensed healthcare professional; and provided according to the recommendations of the U.S. Public Health Service (USPHS) current at the time the procedures take place. In addition, laboratory tests must be conducted by an accredited laboratory and also must be at no cost to the worker. A worker who participates in post-exposure evaluation and follow-up may consent to have his or her blood drawn for determination of a baseline infection status but has the option to withhold consent for HIV testing at that time. In this instance, the employer must ensure that the worker’s blood sample is preserved for at least 90 days in case the worker changes his or her mind about HIV testing.”[4] The employee has recourse under OSHA regardless of state workers compensation laws and coverage to have the employer pay for lab tests and blood analysis to determine the presence of blood-borne illnesses.

 

One interesting aspect of the OSHA regulations deals with the employer-employment relationship of a physician using a health care facility under a contract for staff privileges.  Surgeons, for example, may have staff privileges at a hospital to perform surgeries they otherwise could not do in their office. According to OSHA’s interpretation of its own rules, “Under OSHA’s blood-borne pathogens compliance directive (OSHA Instruction CPL 02-02-069 [formerly CPL 2-2.69]) the status of the physician as an employer or employee is important to establish in order to determine the application of OSHA standards. According to the paragraph XI.D. in the directive, physicians “… may be cited if they create or control blood-borne pathogens hazards that expose employees at hospitals or other sites where they have staff privileges in accordance with the multi-employer worksite guidelines of CPL 02-00-124 [formerly CPL 2-0.124], Multi-Employer Citation Policy.”[5] In terms of needlestick or exposure cases in both Colorado and Arizona, an employer/carrier should always assess the corresponding contracts (or independent contractor status) to determine whether a what (or whose) particular workers compensation insurance policy applies in these situations.

 

Arizona has passed specific legislation pertaining to exposure risks. Section 23-1043.04, A.R.S., specifically deals with MRSA, spinal meningitis, and tuberculous exposures. Mere exposure to a needlestick is not an automatic claim for compensation. The workers must first file a claim with the ICA. The statute then requires, to sustain a claim: (1) The employee’s regular course of employment involves handling of or exposure to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis; (2) Within thirty calendar days after a possible significant exposure that arises out of and in the course of employment, the employee reports in writing to the employer the details of the exposure. The employer shall notify its insurance carrier or claims processor of the report. Failure of the employer to notify the insurance carrier is not a defense to a claim by the employee; (3) For a claim involving methicillin-resistant staphylococcus aureus, the employee must be diagnosed with methicillin-resistant staphylococcus aureus within fifteen days after the employee reports pursuant to paragraph 2 of this subsection. (4) For a claim involving spinal meningitis, the employee is diagnosed with spinal meningitis within two to eighteen days of the possible significant exposure; (5) For a claim involving tuberculosis, the employee is diagnosed with tuberculosis within twelve weeks of the possible significant exposure.

 

What is also of interest for employers is that the respective Arizona statue contains protects the medical information of third parties. In the course of an exposure case, an employer may allege that a sexual partner or perhaps drug use caused the alleged condition. Under A.R.S. 23-1043.04(D) “a person alleged to be a source of a significant exposure shall not be compelled by subpoena or other court order to release confidential information relating to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis either by document or by oral testimony. Evidence of the alleged source’s methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis status may be introduced by either party if the alleged source knowingly and willingly consents to the release of that information.” Proving an alternative source of the exposure may be challenging without court intervention.

 

The statutory provisions pertaining to HIV is found in section 23-1043.2, and the provisions pertaining to Hepatitis C is found in 23-1043.3. Each respective section has reporting requirements similar to 23-1043.3, and contain the same provision barring compelled blood tests of third parties. Additionally, an employee may file a notice with the Industrial Commission reporting a significant exposure to blood-borne illness.[6] The worker must also file a separate claim, for which the employer/carrier may then respond by operation of a Notice of Claim Status.

 

Colorado does not have specific statutory provisions concerning blood-borne illness exposures. The Colorado exposure analysis is traditionally done in the general rubric of whether an event caused an injury in the course of employment, and that the injury arose out of employment.[7] It is the claimant’s legal burden to prove a causal nexus with work.[8] In other words, whether a needlestick caused an injury requiring medical treatment to cure or relieve the effects of the respective industrial injury. If you have a needle stick or blood-borne illness exposure issue, please contact us for help with specific guidance on these complex issues.

 

[1] For example, see the story of one health care worker exposed to a needle stick. https://www.nursingworld.org/practice-policy/work-environment/health-safety/safe-needles/safe-needles-law/

[2] https://www.gpo.gov/fdsys/pkg/PLAW-106publ430/html/PLAW-106publ430.htm

[3] https://www.congress.gov/bill/106th-congress/house-bill/5178

[4] https://www.osha.gov/OshDoc/data_BloodborneFacts/bbfact04.pdf

[5] https://www.osha.gov/laws-regs/standardinterpretations/2003-02-20

[6] https://www.azica.gov/claims-significant-work-exposure

[7] C.R.S. section 8-41-301

[8] See. e.g., Manzanares v. Quality Uniform Linen Supply & Liberty Mutual WC #4-268-197 (ICAO 1999)

Injuries Sustained Coming and Going From Work – When Are They Compensable?

We typically think of compensable injuries occurring when the employee is already at their place of employment.  But what about the time employees spend on the road, coming from and going to work?  Many industries require employees to drive as part of their daily duties, not to mention the time workers in various professions spend commuting to and from the job site.

 

In 2017 alone, there were 648 fatalities in Colorado resulting from motor vehicle accidents.  https://www.codot.gov/library/traffic/safety-crash-data/fatal-crash-data-city-county In the same year, there were close to 3,500 injury-only accidents.   https://www.colorado.gov/pacific/csp/traffic-safety-statistics.   Generally, injuries sustained while travelling to and from work are not considered to have arisen out of, and in the course and scope of, the employment relationship.  However, special circumstances may exist which establish a causal relationship between the employment and the travel to and from the worksite.  In the sentinel case of Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the Supreme Court reiterated the longstanding rule that injuries sustained going to work from home, and while returning, are not compensable because they are not seen as arising out of employment.  The Madden opinion however, also acknowledged the facts of any particular case may justify an exception to this general rule.  The decision sets forth four categories of “variables” to consider in determining compensability of travel-related accidents.  The Madden court indicated that the variables include, but are not limited to; (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the obligations or conditions of employment created a “zone of special danger” out of which the injury arose. The Madden court also recognized the question of whether the travel was contemplated by the employment contract has the “potential to encompass many situations.” Generally, these situations involve the following: (a) whether the particular journey was assigned or directed by the employer, (b) whether the travel was at the express or implied request of the employer and conferred a benefit beyond the employee’s arrival at work, and (c) whether the travel was singled out for special treatment as an inducement to employment. The common element in these types of cases is that the travel is a substantial part of the service to the employer. Finally, if the Claimant establishes only one of the four Madden “variables,” recovery depends upon whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury, such that the travel to and from the work arises out of and in the course of employment.

 

Following the Supreme Court’s holding in Madden, the courts have applied the analysis with varying outcomes.  In Norman v. Law Offices of Frank Moya, W.C. No. 4-919-557 (April 23, 2014), the Claimant was employed as an attorney performing public defender duties for the employer pursuant to its contract with the City and County of Denver. The Claimant was required to use her automobile at work to travel from her office to the court house, to the jails, and to other miscellaneous locations. When the Claimant was injured in a traffic accident while she was driving to her first appointment of the day at the court house, the Industrial Claim Appeals Panel upheld the ALJ’s determination the Claimant’s travel was contemplated by the contract of hire and the Claimant’s injuries were compensable. The Claimant’s travel by automobile to the court house was deemed to confer a benefit upon the employer beyond the sole fact of the Claimant’s arrival at work. Therefore, “…the circumstances of the auto accident on that date fell within the exception to the going and coming rule specified in the Madden decision.”

 

However, in In the Matter of the Claim of: Holly Lagasse, Claimant, 4-993-361, 2018 WL 15445488 (March 29, 2018) (NSFOP), the Court of Appeals affirmed the ALJ’s denial of benefits based on the coming and going rule.  The Claimant in the case was the decedent’s wife. The decedent worked for the employer as a derrick hand on an oil rig. The decedent worked for 12.5 hours each day from December 11, 2013 through December 17, 2013. The decedent voluntarily worked extra shifts from 6:00 am to 6:00 pm on December 19, 21, and 23, 2013. On December 24, 2013, the decedent began working the 6:00 pm to 6:00 am shift. The Claimant slept for about six hours on Christmas day and left for work at approximately 4:30 pm on December 25, 2013, to begin his 6:00 pm shift. After the decedent completed his work shift the morning of December 26, 2013, he started driving home. At approximately 6:36 am, the decedent’s pickup truck drifted across the center line of the County Road 66 in Weld County and collided with a bread truck. At hearing, the Claimant contended that the decedent’s death occurred during the course and scope of employment. The Claimant asserted that the decedent’s accident was compensable because of two special circumstance exceptions to the general rule that injuries sustained while coming and going to work are not compensable. The Claimant argued that the decedent’s work created a “zone of danger” because his work schedule produced significant fatigue and caused him to fall asleep at the wheel.  Claimant further argued the decedent’s employment implicitly contemplated the use of a personal vehicle as the work location could change without notice because of a “rig move.” According to the Claimant, there was a benefit to the employer because if the employees did not bring their personal vehicles to work, the employer would have had to arrange and pay for transporting the employees to the new work site after a rig move. Finally, the Claimant argued that the employer benefitted from the employees transporting their uniforms and special apparel home for cleaning.

 

The ALJ rejected the Claimant’s argument regarding the “zone of danger exception.” The ALJ also determined that the travel was not contemplated by the employment contract. The ALJ found the employer did not require the decedent to use his vehicle to work; mainly the decedent’s vehicle was not used to perform job duties and did not confer a benefit to the Claimant beyond his mere arrival at work. The ALJ determined that the Claimant failed to show that special circumstances existed to justify an exception to the general going to and coming from work rule, concluded that the decedent’s accident was not compensable and denied the Claimant’s request for death benefits.

 

The “special circumstances” outlined by the Madden court sufficient to establish the required nexus between travel and a compensable work injury can present complicated factual and legal issues. Should you have any questions concerning accidents occurring while an employee is coming or going from work, please contact us.