The Legal Buzz – Lee & Brown Newsletter and Case Law Update February 2018

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In the News

John M. Abraham Attorney


Lee & Brown, LLC was a sponsor and attendee at the Professionals in Workers’ Compensation (PWC) Annual Bowling Tournament on February 9th. The PWC is a professional non-profit organization made up of carriers, third-party administrators, professional vendors and counsel representing both claimants and respondents’ Bars. The PWC provides ongoing educational seminars to its members on relevant and pertinent issues in the workers’compensation community. The organization funds annual scholarships to high school students interested in continuing their education in the business, medical or legal fields. The Annual Bowling Tournament is one of the events PWC organizes to raise funds for these scholarships. Lee & Brown fielded 3 teams this year, led by Members Joshua Brown and John Abraham, Of Counsel Frank Cavanaugh, Associates Jessica Melson, Kristi Robarge and Stephen Abbott and a new addition to the Firm, Of Counsel Brad Hansen. A great time was had by all in supporting a good cause with our fellow professionals in the workers’ compensation community.


Brad Hansen & Bill Sterck Attorneys


Victory Lap

In Romero v. Winn Residential Limited Partnership, W.C. No. 4-978-676, Of Counsel Frank Cavanaugh successfully defended a challenge to a DIME opinion regarding relatedness of Claimant’s cervical spine as a part of a work injury. Claimant was injured in a fall from a platform of a fairly significant height. Initial emergency treatment to Claimant’s cervical spine was deemed to be primarily precautionary, such as the use of a cervical collar to immobilize his neck. Other cervical spine pain complaints were sporadic while Claimant was undergoing treatment for his shoulder condition, but became more pronounced after the shoulder treatment. Regardless, the DIME physician felt that if Claimant had any cervical spine injury, there was no ratable impairment and that Claimant remained at MMI. The ALJ found that Claimant failed to overcome the DIME opinion by clear and convincing evidence


Associate Matt Boatwright successfully defended a full contest claim in Eastman v. United Parcel Service, W.C. 5-044-321. Claimant asserted a shoulder injury from pulling a package, but did not report the injury to the employer until the following day. Claimant told Respondents’ medical expert that he did not experience symptoms until he operated his personal vehicle. Claimant also failed to disclose several medical issues in the discovery process. Respondents’ medical expert testified credibly that it was not medically probable that Claimant injured himself while pulling the package. The ALJ found that Claimant failed to meet his burden to show his shoulder injury was more likely than not related to the asserted work event.


Associate Matt Boatwright also defended against an attempt to reopen a prior admitted claim for a shoulder injury in Shaner v. United Parcel Service, W.C. 4-904-678-07. Claimant had a preexisting condition and treated through his personal doctor for maintenance. Claimant returned to the ATP with increased shoulder pain and saw an unauthorized surgeon for evaluation after the ATP had no additional recommendations for care. Claimant returned to the ATP after the surgeon recommended surgery. The ATP made a referral for care through the surgeon at the request of Claimant. The ALJ found that Claimant failed to show a work-related worsening of the condition or a valid referral for further care from the ATP and denied the Petition to Reopen.



The Workers’ Compensation System as a Prescription for Addiction

The workers’ compensation (WC) system provides the perfect prescription for opioid addiction. There are three types of injured workers that fall into this lair: active addicts, recovered addicts who relapse after taking medications following a work injury, and the neophyte who becomes addicted following their work injury. Thus, the system, although well-intentioned, creates and perpetuates dependency and addiction. Continue reading the article. 

Cases You Should Know

At MMI or not at MMI? That is the Question: In Arnhold v. United Parcel Service, W.C. No. 4-979-208 (November 17, 2017), Respondents sought review of an ALJ’s Order finding that the ATP did not determine Claimant was at MMI and Respondents’ FAL was premature and must be stricken. Claimant was placed at MMI by her ATP when Respondents denied authorization for a total knee replacement. In the ATP’s MMI report, he stated that Claimant would not have a reasonable recovery until she completed the total knee replacement surgery. The Respondents filed a FAL and Claimant pursued the DIME. The DIME was held in abeyance pending the hearing on MMI. Respondents argued that the ALJ did not have jurisdiction to decide MMI since the DIME process was initiated. ICAO determined that the DIME was not a prerequisite to an ALJ’s resolution of whether an ATP determined Claimant to be at MMI. ICAO held that the ALJ’s determination of whether the ATP placed Claimant at MMI was a necessary prerequisite to the applicability of the DIME.

Moral of the Story: If an ATP’s MMI determination is ambiguous, an ALJ is needed before the DIME.


Oh Rule 16, you complete me: In Murray v. Tristate Generation and Transmission Association, W.C. No. 4-997-086 (December 22, 2017), Self-Insured Respondent sought review of an ALJ’s Order awarding penalties for failure to comply with WCRP 16-11 for prior authorization. A request for authorization for a total knee replacement was submitted on January 16, 2017 and a second request was submitted on January 20, 2017. On February 8, 2017, the adjuster provided verbal authorization for the recommended knee replacement surgery. On March 24, 2017, Respondent’s Counsel revoked authorization after receipt of new medical records indicating a pre-existing condition. The ALJ determined that the surgery was authorized because the Respondent failed to contest the surgery within 7 business days of the request per Rule 16-11 and Respondent’s actions were not objectively reasonable, so penalties were warranted. Respondent argued that the ALJ erred because Respondent did not receive a “completed request” for prior authorization and WCRP 16-11 was not triggered. ICAO determined that the ALJ’s Order did not make findings on whether the requests for authorization contained an explanation of the reasonableness and medical necessity or contained the relevant supporting documentation required under the Rule. The matter was remanded to the ALJ for additional findings.

Moral of the Story: You only have to respond to completed requests for prior authorization under Rule 16.


What about the prior ATP? Breaking up is hard to do: In Berthold v. ICAO, 2017COA145 (November 16 ,2017)(nsfp), Claimant made a request for a 90-day one-time change of physician, which was granted. The prior ATP later placed Claimant at MMI and Respondents filed a FAL based on the MMI determination. Claimant challenged the FAL on the basis that the prior ATP no longer had authority to place Claimant at MMI due to a change in the law, which would sever the doctor-patient relationship with the prior physician. The Colorado Court of Appeals held that 90-day one-time changes of physician occurring prior to the 2016 amendments to the Colorado Workers’ Compensation Act did not sever the doctor-patient relationship with the prior ATP; therefore, the prior ATP had authority to place Claimant at MMI.

Moral of the story: 90-day one-time changes of physician prior to 2016 do not sever the doctor-patient relationship with the prior ATP.


Safety First! How about we all just wear our seatbelts and get along? In Wright v. HSS, Inc., W.C. 5-030-925-01 (December 12, 2017), Claimant appealed a 50% reduction in indemnity benefits taken due to willful violation of an established employer safety rule. The safety rule stated, “Drivers shall always wear seat belts and require the same of passengers.” Claimant maintained that the employer never enforced the safety rule. The employer countered by offering evidence that Claimant was trained and quizzed on the safety rule—thus demonstrating that Claimant knew of, and understood, the safety rule. The employer also pointed to bulletins posted in plain view around Claimant’s workplace. Respondents won on appeal with the Panel noting the determination of whether an employer enforced a safety rule is a factual determination to be made by the ALJ. In this particular case, the ALJ found that the facts supported the employer cultivating a “culture of compliance” and that was enough to demonstrate enforcement.

Moral of the Story: Whether an employer “enforces” a safety rule is a question of fact for the ALJ based on the substantial evidence presented.


One expert opinion may be a cut above the rest, according to the ALJ: In Reyes v. JBS USA, LLC, W.C. 4-968-907-04 (December 4, 2017), Claimant sought to establish compensability of shoulder injuries sustained while performing his work duties consisting of butchering meat for the employer. Despite conflicting evidence, the ALJ found Claimant’s shoulder injuries compensable. On appeal, Respondents argued that Claimant’s treating physicians were unaware of Claimant’s involvement in a motor vehicle accident that resulted in pathology to the work-injury site. Respondents were unsuccessful with this argument as the ICAO panel noted that the absence of such information merely speaks to the probative weight and credibility of physician determinations assigned to expert opinions by the ALJ as the fact-finder.

Moral of the Story: As long as there is substantial evidence on the record to support the findings, an ALJ has discretion in determining the persuasiveness of expert opinions when they conflict.