December 17, 2017

Tenth Circuit: Appeals Council Required Only to “Consider” New Evidence of Disability

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The US Social Security Administration denied her claim. She received a hearing with an administrative law judge (ALJ), who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Colorado Court of Appeals: Mutual Benefit Doctrine Supports Union Member’s Claim for Workers’ Compensation Coverage While at CBA Discussion Meeting

The Colorado Court of Appeals issued its opinion in Pueblo County, Colorado v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation—Injury at a Union Meeting—Mutual Benefit Doctrine.

Claimant was president of the local union. She worked for Pueblo County (employer). Union membership is required for workers in a bargaining unit, and union dues are deducted from workers’ paychecks. Participation in union meetings is voluntary. Claimant stayed after work for a union meeting, which was held immediately after claimant clocked out for the day and took place in a conference room in the building in which she worked. The purpose of the meeting was to review and revise the new collective bargaining agreement.

After the meeting, claimant walked to the adjacent parking lot where she normally parked for work. While getting in her car, she slipped on ice and injured herself. She filed a workers’ compensation claim for her medical expenses. An administrative law judge (ALJ) denied and dismissed the claim, finding the claimant “was not in the course and scope of her employment at the time of her injury.” The Industrial Claim Appeals Office (Panel) disagreed, finding the union activities were “sufficiently incidental” to claimant’s work “as to be properly considered as arising out of and in the course of employment.” It remanded to the ALJ to determine benefits. On remand, the ALJ ordered employer to pay all of claimant’s reasonable, necessary, and related medical expenses. The Panel affirmed.

On appeal, employer argued that the Panel erred in holding that the post-work injury sustained immediately following claimant’s attendance at a union meeting arose out of and in the course of employment. An injury arises out of employment when it originates in an employee’s work-related functions and is sufficiently related to those functions to be considered part of employment. It is not essential that an employee be engaged in an obligatory job function.

This was a case of first impression in Colorado but has been addressed in a number of other states. In general, injuries sustained during “unilateral union activities conferring, if any, only a remote or indirect benefit upon the employing enterprise” are not covered. However, the leading treatise recognizes a trend toward finding a mutual employer-employee benefit in actions of union officers. The court of appeals concluded that union activity cases in Colorado should be analyzed under the mutual benefit doctrine to determine compensability. This doctrine requires courts to examine the circumstances of each case to determine whether a union activity is of mutual benefit to the employer and employee. Here, where a union officer participated in a union meeting that served to facilitate ongoing negotiations between the union and employer concerning a new collective bargaining agreement, there was mutual benefit to employer and employee. Further, once mutual benefit is established, the location of the injury is not determinative. Accordingly, the injuries sustained were compensable.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Constitutional Violation by Using ALJs in Workers’ Compensation Proceedings

The Colorado Court of Appeals issued its opinion in Sanchez v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation Act of Colorado—Constitutionality—Separation of Powers—Equal Protection.

Claimant sustained a back injury at work lifting a hydraulic unit from his truck. Within two months he was back to work and placed at maximum medical improvement. Soon thereafter he complained of excruciating lower back pain, but both his original doctor and a specialist concluded that this new lumbar strain was not work-related but related to normal age-related degenerative changes.

Claimant sought temporary partial disability (TPD) benefits from the date of his injury and temporary total disability (TTD) benefits from when his low back pain flared up. An  administrative law judge (ALJ) rejected the request for benefits, finding that (1) his lower back pain was unrelated to his work injury, and (2) because he had continued working, claimant had not suffered a wage loss and was not entitled to either TPD or TTD benefits. The ALJ dismissed his requests. The Industrial Claim Appeals Office (Panel) affirmed but remanded the case to the ALJ to determine whether claimant was entitled to change his physician.

On appeal, claimant argued the separation of powers doctrine is violated by having workers’ compensation cases heard in the executive branch. In rejecting this argument, the court of appeals followed Dee Enterprises v. Industrial Claim Appeals Office, which held that the statutory scheme for deciding workers’ compensation cases does not violate the separation of powers doctrine.

Claimant then argued his equal protection claims should be analyzed under the strict scrutiny standard. The court held that the rational basis test applies to equal protection challenges in the workers’ compensation context. Under that test, “a statutory classification is presumed constitutional and does not violate equal protection unless it is proven beyond a reasonable doubt that the classification does not bear a rational relationship to a legitimate legislative purpose.”

Claimant argued that his and other workers’ compensation litigants’ rights to equal protection were violated because workers’ compensation cases are not heard by judges. The court concluded that legitimate governmental goals provide a rational basis for employing executive branch ALJs and the Panel to decide workers’ compensation cases. The court rejected claimant’s contention that his right to equal protection was violated because his claim was heard by an ALJ and the Panel.

Claimant then contended that the Panel’s dual role as decision-maker and then-named litigant if a case is appealed “reeks of impropriety.” The requirement that the Panel be added as a party is not arbitrary and serves the purpose of the Workers’ Compensation Act of ensuring thorough and expeditious review and enforcement of ALJ and Panel orders.

Claimant also challenged on equal protection grounds C.R.S. § 8-43-404(5)(a)(II)(A), which exempts governmental entities and health care providers from providing an injured worker with a list of four physicians from whom the worker may seek medical care for his injury. The court concluded that a rational basis exists for excluding employees of those two types of employers from the four-physician referral requirement. Thus, there was no equal protection violation.

The court rejected claimant’s three non-constitutional arguments, which were that: (1) the exemption from the four-physician referral requirement did not apply because claimant’s employer did not meet the requirements of C.R.S. § 8-43-404(5)(a)(II)(A); (2) substantial evidence did not support the ALJ’s factual findings; and (3) the ALJ made numerous evidentiary errors.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Statutory Enforcement Mechanism Exists for Respondent Fee Awards

The Colorado Court of Appeals issued its opinion in McGihon v. Cave on Thursday, May 19, 2016.

Defendant Thomas Cave filed a complaint with the Secretary of State, alleging that plaintiff Anne McGihon, a lobbyist, violated the Fair Campaign Practices Act by allowing her name to be placed on an event invitation on behalf of a candidate for the Colorado House of Representatives. Following a hearing, an ALJ dismissed Cave’s claims and awarded McGihon attorney fees jointly against Cave and his attorney, Jessica Peck. The ALJ found that Cave’s claims were substantially groundless, frivolous, and vexatious.

McGihon filed an enforcement action in district court. Cave and Peck filed separate motions to dismiss, arguing the district court lacked jurisdiction over the enforcement action. The district court granted the motions and McGihon appealed.

On appeal, the Colorado Court of Appeals found that although fee awards are contemplated by both C.R.S. § 1-45-111.5(2) and Colo. Const. art. XVIII, § 9(2)(a), there is no enforcement mechanism available for prevailing respondents. Because McGihon did not raise equal protection and due process arguments in district court, the court of appeals declined to consider them.

The court affirmed the district court’s dismissal.

Colorado Supreme Court: Companion Firefighter Workers’ Compensation Case Remanded for Reconsideration

The Colorado Supreme Court issued its opinion in City of Englewood v. Harrell on Monday, May 2, 2016.

Workers’ Compensation—Firefighters—Statutory Presumptions.

The Colorado Supreme Court accepted transfer of this case from the Colorado Court of Appeals pursuant to C.R.S. § 13-4-109 and C.A.R. 50. The court set aside the order issued by a panel of the Industrial Claim Appeals Office and remanded with directions to return the matter to the administrative law judge for reconsideration in light of its decisions announced in City of Littleton v. Industrial Claim AppealsOffice, 2016 CO 25, and Industrial Claim Appeals Office v. Town of Castle Rock, 2016 CO 26.

Summary provided courtesy of The Colorado Lawyer.

 

Tenth Circuit: ALJ’s Opinion was Well Reasoned and Considered All Evidence so Reversal Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Hendron v. Colvin on Friday, September 5, 2014.

Linda Hendron applied for disability benefits three times. The first application, filed in 1999, was denied on the merits. The second application, filed in 2001, was denied on the basis of res judicata. The third application, which is the subject of this appeal, was filed in June 2009, based on a date of disability of November 1, 1995. The agency denied the claim, again based on res judicata, and Ms. Hendron requested a hearing before an administrative law judge (ALJ).

The ALJ held a hearing at which Ms. Hendron testified. The ALJ considered 19 medical exhibits that had not been previously considered. After the hearing, the ALJ issued findings of fact, concluding that Ms. Hendron was not disabled as of the date she was last insured, December 31, 1995. The ALJ found that although Ms. Hendron could not return to her former employment as a nurse, she was capable of the full range of sedentary activities. The Appeals Panel denied review. Ms. Hendron appealed to the district court, which reversed and remanded the ALJ’s decision, concluding that the ALJ failed to cite evidence that Ms. Hendron could perform the full range of sedentary work during the relevant time period. The Commissioner appealed to the Tenth Circuit.

The Tenth Circuit found that the ALJ’s decision was reasonable and that the ALJ considered all the evidence before making a well-reasoned decision on the merits. Ms. Hendron contends that the ALJ’s decision did not support the residual functional capacity determination with a narrative statement addressing each aspect of sedentary work, essentially contesting the form of the ALJ’s decision but not the sufficiency of the evidence. The Tenth Circuit found that the evidence was more than sufficient to support the ALJ’s determination, and reversed the district court’s judgment. The case was remanded for reinstatement of the ALJ’s decision determining Ms. Hendron not to be disabled during the relevant time period.

Colorado Court of Appeals: ICAO Exceeded Its Authority by Finding Worsening of Condition Despite ALJ’s Ruling to the Contrary

The Colorado Court of Appeals issued its opinion in Apex Transportation, Inc. v. Industrial Claim Appeals Office on Thursday, March 13, 2014.

Worker’s Compensation—Injury—Temporary Total Disability Benefits—Factual Determinations.

Claimant worked as a truck driver for Apex when he sustained an injury to his shoulder. He refused medical attention at the time because it was “Apex’s busiest season” and he “thought the pain would go away.” When the pain did not subside, claimant obtained a “pain pill” containing morphine from his brother. Claimant thereafter reported the injury to his employer, and was sent to employer’s workers’ compensation healthcare provider to be examined and treated. Under employer’s policies, any employee who sustains a work-related injury must submit to a drug test when initially examined. The test proved positive for morphine. Because claimant did not have a prescription for the medication, he was terminated. Several days after being terminated, claimant returned to the medical clinic, and a physician found that his condition had worsened, gave claimant pain medication, and ordered him “off work.” The administrative law judge (ALJ) thereafter denied claimant’s request for temporary total disability (TTD) benefits. The Industrial Claim Appeals Office (Panel), on the other hand, concluded that because the physician’s work restrictions were imposed post-termination, the work restrictions, not the termination, caused claimant’s wage loss, entitling him to TTD benefits.

On appeal, employer contended that the Panel exceeded its authority when it set aside the ALJ’s original order denying claimant’s request for TTD benefits. Because the factual determination of whether claimant’s termination was volitional and that his condition had not worsened after he was terminated fall squarely within the ALJ’s province, the Panel exceeded its authority by reweighing the evidence. Substantial evidence supported the ALJ’s factual findings that claimant had not suffered a worsened condition and that his for-cause termination led to his wage loss. The Panel’s final order was set aside and the case was remanded with directions to reinstate the ALJ’s original order.

Summary and full case available here.

Tenth Circuit: In SSDI and SSI Claims, “Not Severe” Impairments Must Still Be Considered at Step 4 of RFC Analysis

The Tenth Circuit Court of Appeals published its opinion in Wells v. Colvin on Monday, August 19, 2013.

Joe Ella Wells applied for Social Security Disability and Supplemental Security Income beginning in 1994 and after her claims went up and down on appeal to the Appeals Council and she refiled several times, an ALJ issued a decision in 2009 that is the subject of the present appeal. The administrative law judge (ALJ) concluded she was not disabled under the Social Security Act and the Appeals Council denied Wells’s appeal.

In a social security disability or Supplemental Security Income (SSI) case, an ALJ must evaluate the effect of a claimant’s mental impairments on her ability to work using a “special technique” prescribed by the Commissioner’s regulations. At step two of the Commissioner’s five-step analysis, this special technique requires the ALJ to determine whether the mental impairment is “severe” or “not severe.” The ALJ found Wells’s mental impairments were not severe. But the regulations also instruct that even if the ALJ determines that a claimant’s medically determinable mental impairments are “not severe,” he must further consider and discuss them as part of his residual functional capacity (RFC) analysis at step four.

The Tenth Circuit found that the ALJ did not provide an adequate RFC analysis and to the extent the ALJ intended his statements about credibility to constitute a step-four mental RFC analysis, the conclusions he reached from these statements were not supported by substantial evidence.

Wells also argued substantial evidence was lacking because the ALJ rejected all three medical opinions about her mental impairments, two of which said she had marked or moderate limitations in certain areas. The court held that where the medical opinions conflicted with the ALJ’s decision so seriously, it may have been inappropriate for the ALJ to reach an RFC determination without expert medical assistance.

The court remanded for further proceedings concerning the effect of Wells’s mental impairments on her RFC and further analysis at steps four and five. It also directed the ALJ to carefully reconsider whether to adopt the restrictions on Wells’s mental RFC detailed in the medical opinions contained in the file, or whether further medical evidence was needed on this issue. The court also directed the ALJ to re-evaluate Wells’s alleged limitations on reaching and handling. The court rejected several other arguments.

Colorado Supreme Court: Record Did Not Contain Statutorily Required Findings Necessary for Denial of Application

The Colorado Supreme Court issued its opinion in Mile High Cab, Inc. v. Colorado Public Utilities Commission on Monday, April 22, 2013.

Administrative Law—Burdens of Proof—Preponderance of Evidence—CRS § 40-10.1-203.

Mile High Cab, Inc. (Mile High) appealed the district court’s judgment affirming the denial of its application for a Certificate of Public Convenience and Necessity. After a lengthy hearing, the administrative law judge (ALJ) to whom the application had been assigned issued a recommended decision, finding that the several incumbent carriers opposing the application had proved by a preponderance of the evidencethat public convenience and necessity did not require granting the application, and that the issuance of the certificate would be detrimental to the public interest. Although it initially ordered a remand for further evidence, the Colorado Public Utilities Commission (PUC) ultimately granted the intervening carriers’ motions for reconsideration and adopted the ALJ’s recommendation to deny the application. The district court affirmed Mile High’s petition for judicial review.

The Supreme Court reversed the district court’s judgment and remanded the case with directions to return the matter to the PUC for further action. The Court held that the record did not clearly contain the finding statutorily required for a denial of Mile High’s application, and that the issuance of a certificate would actually be detrimental to the public interest.

Summary and full case available here.

Colorado Court of Appeals: Workers’ Compensation Claimant Jurisdictionally Barred from ICAO Review Because Petition Untimely Filed

The Colorado Court of Appeals issued its opinion in Youngs v. Industrial Claim Appeals Office on Thursday, April 11, 2013.

Workers’ Compensation—Worsening Condition—CRS § 8-43-301(2).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

This was claimant’s third appeal arising from his 2005 workers’ compensation claim. Claimant filed a petition to reopen his claim based on worsening condition and fraud. Employer and its insurer sought to have the fraud claim dismissed for failure to establish the elements to support his request to reopen. The administrative law judge (ALJ) agreed and dismissed the fraud claim. The Industrial Claim Appeals Office (Panel) affirmed the ALJ’s order rejecting claimant’s evidentiary and due process challenges.

A hearing was conducted on the worsening condition claim. The ALJ found employer’s retained independent medical examination (IME) physician’s testimony credible and persuasive, and discredited claimant’s testimony as “implausible, inconsistent, and unsupported by the medical records.” She denied and dismissed his petition to reopen based on worsening condition.

On July 15, 2011, claimant filed his petition to review the ALJ’s order regarding fraud, and on July 18, 2011, he filed his petition regarding worsening condition. The Panel affirmed the latter order and determined it lacked jurisdiction to review the former. Claimant appealed.

The Panel dismissed claimant’s appeal for lack of jurisdiction because it was interlocutory and he had failed to file his petition to review within the applicable twenty-day statutory time period after it became final. On June 24, 2011, ALJ Cain granted partial summary judgment to employer dismissing the petition to review based on fraud, but allowed the remaining claim to proceed (the interlocutory order). On June 27, that order was mailed. On June 29, a hearing on the worsening condition claim was heard by ALJ Jones. On July 15, claimant submitted his petition to review ALJ Cain’s order. On the same day, ALJ Jones denied and dismissed the petition to review based on worsening condition. On July 18, that order was mailed. On July 18, claimant submitted his petition to review only ALJ Jones’s order.

CRS § 8-43-301(2) provides that a petition to review an ALJ order “shall be filed within twenty days after the date of the certificate of mailing of the order.” A party missing this time limit is jurisdictionally barred from obtaining further review of the order.

Claimant argued that he was entitled to automatic review of ALJ Cain’s order when he filed a timely petition for review of ALJ Jones’s order. The Court of Appeals disagreed, finding no authority for such an argument. The Panel correctly determined it had no jurisdiction to review ALJ Cain’s order.

In addition, under CRS § 8-43-301(2), claimant was required to submit a petition to review ALJ Cain’s order after ALJ Jones issued her final order. Filing the petition before ALJ Cain’s interlocutory order became final and appealable does not satisfy the statutory requirement, because it was not within the permissible twenty-day filing period. The Panel therefore had no jurisdiction.

Claimant also challenged the merits of ALJ Jones’s order denying and dismissing his petition to re-open based on worsening condition. ALJ Jones found that claimant failed to establish that his right shoulder pain was related to and caused by his work-related injury to his left shoulder. The Court found the record supported the ALJ’s decision and there was no abuse of discretion in her evidentiary rulings.

Summary and full case available here.

Colorado Court of Appeals: Occupational Disease Statutorily Presumed to Have Resulted from Employment as Firefighter

The Colorado Court of Appeals issued its opinion in City of Littleton Fire Rescue v. Industrial Claim Appeals Office on Thursday, November 1, 2012.

Workers’ Compensation—Firefighter—Brain Cancer—CRS § 8-41-209.

This workers’ compensation appeal arose from an order issued by the Industrial Claim Appeals Office (Panel). The City of Littleton Fire Rescue and its insurer (collectively, Littleton) sought review of the Panel’s order in favor of Littleton’s employee, firefighter Jeffrey Christ (claimant). The order was affirmed.

Claimant was diagnosed with glioblastoma multiforme (GBM), a type of brain cancer, and sought workers’ compensation benefits to cover his treatment. Littleton objected, and the case was brought before an administrative law judge (ALJ). The ALJ recognized that claimant’s cancer was statutorily presumed to have resulted from his employment; however, she ruled that Littleton had proved that claimant’s cancer was not caused by his occupational exposures. Claimant then appealed to the Panel, which ruled that Littleton had failed to sustain its burden of proof. The Panel reversed the ALJ’s order and remanded for a determination of benefits. Littleton appealed.

The firefighter’s statute creates a substantive presumption (in the nature of affirmative evidence) that claimant’s GBM resulted from his employment as a firefighter. To overcome that presumption, Littleton was required to affirmatively prove, by a preponderance of the evidence, that claimant’s cancer did not result from, arise out of, or arise in the course of his employment. Littleton did not disprove specific causation, however, and Littleton’s evidence was insufficient to rebut the presumption of the fireman’s statute because it “merely denied the underlying legislative premise of a causal relationship between the firefighter’s occupational exposure and the development of cancer.” The Panel’s order was affirmed.

Summary and full case available here.

Tenth Circuit: Commissioner’s Denial of Social Security Disability Benefits Affirmed

The Tenth Circuit issued its opinion in Pennie Keyes-Zachary v. Astrue on Tuesday, September 18, 2012.

Pennie Keyes-Zachary appealed the district court’s order affirming the Commissioner’s decision denying her application for Social Security disability benefits. Applying the Medical-Vocational Guidelines, the ALJ concluded that Ms. Keyes-Zachary was not disabled within the meaning of the Social Security Act. After a thorough analysis of the case history and medical records, the Tenth Circuit held that the ALJ’s factual findings were supported by substantial evidence, and AFFIRMED the Commissioner’s decision.