Legal Connection Firm Newsletter – November 2017

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In this season of gratitude, Lee + Kinder is deeply thankful for your confidence, loyalty and support throughout the year and want you to know that we strive to exceed your legal expectations. Our best wishes for a happy and healthy Thanksgiving Holiday.





Victory Lap

Member Karen Gail Treece defeated Claimant’s request for workers’ compensation benefits in Somers v. Costco Wholesale, W.C. No. 5-039-189-01. Claimant reported she was bending over to obtain items from the bottom of a shopping cart when she stood up and struck her head on the cart. Claimant alleged she injured her cervical spine and suffered a traumatic brain injury. Respondents denied the claim. Ms. Treece presented persuasive and credible evidence that Claimant treated for similar symptoms prior to the date of injury. Claimant also created a “Go Fund Me” page one month prior to the alleged work injury where she reported she was hospitalized for severe vertigo for a wheat allergy. Afterwards, she could not work for several months and requested money to help pay her bills. In an IME, Respondents’ medical expert opined it was not medically probable that the described incident would produce an injury. The ALJ found Claimant had a significant history of similar symptoms and that many of the medical opinions finding Claimant sustained a work injury relied on her subjective complaints. The ALJ found that although Claimant may have bumped her head, there was no objective evidence that Claimant sustained an injury and denied and dismissed the claim.


Associate Matt Boatwright successfully defended against a full contest claim for an alleged low back injury in Phanekham v. Pepsi Beverages Company, W.C. No. 4-997-901. Claimant alleged that he injured his back while reaching above his head and stocking merchandise. The ALJ found that Claimant’s testimony contradicted the testimony of Respondents’ employer witness and certain medical records. Respondents also presented evidence of a prior automobile accident, pursuant to which the ALJ found that Claimant had complaints that were similar to those he asserted were the result of the work-related event. The ALJ found that Claimant was not credible and denied and dismissed his claim for compensation.

Associate Boatwright also successfully defended against Claimant’s attempt to overcome a DIME opinion in Kumpf v. United Parcel Service, W.C. No. 5-007-544. Claimant sustained an admitted injury to his back from an automobile accident. Claimant was originally placed at MMI and discharged from care with no permanent impairment by the ATP. Respondents’ IME physician disagreed with the ATP and opined that Claimant was not at MMI, should have surgery, and had an advisory impairment of 22% of the whole person. Claimant underwent a DIME and was found to be at MMI with a 13% whole person rating and no need for further care. The ALJ found that despite Respondents’ expert’s adverse opinion, the DIME opinion was conducted thoroughly and the diagnostic examinations did not support objective evidence of the conditions for which Respondents’ expert felt Claimant needed interventional care. The ALJ therefore denied and dismissed Claimant’s request to set aside the DIME.



Changes to Rule 16 Effective January 1, 2018
Everyone’s favorite Rule is getting a makeover effective January 1, 2018. There are several minor changes to the Rule that will impact prior authorization requests and ensure that a second opinion is timely obtained by the payer. The major change that will take effect is to Rule 16-11(E) and the elimination of the option for the payer to request a hearing within the time-frames set forth in Rule 16-11(A) or 16-11(B). Click here to continue reading this article.



Cases You Should Know

Table 53 is a Real Pain for Impairment Ratings: In Rojahn v. Monaco Rehabilitation, W.C. No. 4-955-695-02 (October 5, 2017), a DIME physician assigned Claimant a scheduled impairment rating for the shoulder and a whole-person impairment for the cervical spine. The whole-person rating for the cervical spine was based only on range of motion deficits with no Table 53 diagnosis. The ALJ upheld the DIME’s impairment rating and Respondents appealed. The ICAO overturned the ALJ’s Order, concluding that the Order was not supported by the findings. The ICAO reasoned that the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) specifically prohibit a rating for the cervical spine without a Table 53 diagnosis of the spine. Although there exists an exception to this rule where “severe shoulder pathology” is established and a claimant receives treatment of the cervical musculature, the ICAO noted that the statutes prohibit an impairment rating based on chronic pain “without anatomic or physiologic correlation.”

Moral of the Story: Impairment ratings for the cervical spine are not appropriate without a corresponding Table 53 diagnosis under the AMA Guides, 3rd Edition Revised.


The Road Not Taken: Unless the ALJ Determines it is Within the Commutable Labor Market: In Simms v. Shiloh Steakhouse, W.C. No. 4-892-836-01 (October 3, 2017), Claimant injured his low back after trying to pick up a full five-gallon bucket. After being placed at MMI, Claimant sought PTD benefits. The ATP and Respondents’ medical expert concurred that Claimant should alternate between standing and sitting every 30 minutes as part of his permanent restrictions. The ALJ found that there were jobs within a 40 to 60-minute drive that Claimant would be able to successfully perform, and that Claimant could make the drive to those positions. On appeal, Claimant asserted that the ALJ’s finding that he could drive 40 to 60 minutes each way was inconsistent with his restrictions requiring him to alternate between sitting and standing every 30 minutes. ICAO found that the ALJ’s finding that Claimant was capable of a 40 to 60-minute drive each way under his permanent work restrictions was supported by substantial evidence.

Moral of the Story: In determining PTD benefits, whether the labor market is commutable is a question of fact to be determined by the ALJ.


Subcontractor Liability Falls Through the Cracks: In Noyola v. Davie Roofing and Eco Roof and Solar Inc., W.C. 4-969-386-08 (September 19, 2017), Claimant was injured when he partially fell through a roof while working as an employee of a subcontractor. Claimant attempted to demonstrate that Eco Roof and Solar were his statutory employers. Eco Roof and Solar cited a certificate of insurance representing workers’ compensation coverage issued to the subcontractor as immunity to the claim. The ALJ found Claimant failed to demonstrate by a preponderance of the evidence that Eco Roof and Solar were statutory employers. Claimant appealed. Citing Buzard v. Super Wall Inc., 681 P.2d 520 (Colo. 1984) in the appeal, ICAO reasoned that in the absence of proof that the subcontractor was also an insured employer, the statutory employer remains solely liable for the work-related injuries of the subcontractor. ICAO determined Eco Roof and Solar were solely liable for Claimant’s injuries unless they could show that there was a subcontractor with workers’ compensation insurance to cover the Claimant at the time of injury, noting that the mere existence of a policy was deemed insufficient to meet this burden. ICAO remanded to the ALJ to determine whether the subcontractor had insurance to cover Claimant’s injuries.

Moral of the Story: To establish immunity, the burden remains on the statutory employer to show that the subcontractor had workers’ compensation insurance capable of covering a claimant.


Everyone is Entitled to an Opinion but…: In Oliphant v. Ward Electric, W.C. 5-006-696-03 (September 27, 2017), Claimant lost on the issue of compensability for a shoulder injury and appealed, arguing that the ALJ’s Order was not supported by substantial evidence. Claimant argued that the ALJ should have given more weight to two expert opinions that opined Claimant’s condition was an aggravation of a pre-existing condition. Citing Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) in the opinion, ICAO reasoned that to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. ICAO noted that the ALJ was more persuaded by a conflicting expert opinion that found Claimant did not sustain an acute injury. The ALJ found that the Claimant’s need for medical treatment was caused by a “temporary aggravation” of his symptoms and not a subsequent aggravation or acceleration of the preexisting condition. ICAO agreed that the medical opinion relied upon by the ALJ fully supported this determination. ICAO affirmed the ALJ’s Order.

Moral of the Story: The weight, credibility, and deference to be assigned expert testimony is a matter solely within the ALJ’s discretion, absent reversible error.


Do you have a valid FAL? Yes, if the Maximum Medical Improvement/Impairment Rating Report is Co-signed by the ATP and Benefits are Actually “Payable”: In Flake v. JE Dunn Construction, Claimant suffered work-related dehydration leading to a brief hospitalization. The physician’s assistant (PA) placed Claimant at MMI with no impairment, and the supervising physician agreed with the determination and countersigned the form WC164, agreeing with the PA. Respondents filed a FAL. Claimant requested a DIME and sought a hearing on several issues, including penalties for the improper filing of a FAL because the MMI determination was made by the PA, not the ATP. The ALJ denied the penalties, noting that countersignature of the ATP was sufficient to satisfy Rule 5-5, W.C.R.P. The ICAO agreed with the ALJ. However, the two ICAO panel members split on whether the FAL had any legal effect in light of the controversial 2014 Loofbourrow decision by the Colorado Supreme Court, which held that a MMI determination has no legal effect if indemnity benefits are not “payable” because it has not yet become a compensable claim. The two ICAO panel members in Flake split on whether such benefits are “payable” under the Loofbourrow analysis, where entitlement to indemnity benefits remains in dispute.

Moral of the Story: (1) A PA’s MMI and impairment determinations are adequate for a FAL as long as they are countersigned by the ATP; (2) The Workers’ Compensation bar and courts in Colorado are still deciding on how to interpret and apply the Loofbourrow decision summarized above. The Flake case differs from Loofbourrow because benefits were actually payable prior to the MMI determination and were ultimately ordered to be paid.