May 22, 2013

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Colorado Court of Appeals: In Workers’ Compensation Proceeding, 18-Month DIME Physician’s Findings Carry No Presumptive Weight Regarding Impairment Ratings

May 15, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Meza v. Industrial Claim Appeals Office on Thursday, May 9, 2013.

Workers’ Compensation—Jurisdiction—Weight of Evidence—Substantial Evidence—CRS § 8-42-107(8)(b)(II).

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

Claimant sustained an admitted, compensable injury in 2004 when a cow bone fell on his right foot. On November 26, 2004 his authorized treating physician (ATP) placed him at maximum medical improvement (MMI) with no impairment and released him to work, with no restrictions. Plaintiff continued to experience pain and developed low back pain four years after his initial injury.

His employer, Swift Foods Company, and its insurer, Zurich American Insurance Company (collectively, employer), agreed to reopen the claim in 2008. A new ATP suspected claimant had developed complex regional pain syndrome (CRPS) and that his low back pain was related to the foot injury. Employer retained a physician to conduct an independent medical examination (IME). The physician found that claimant had reached MMI, and that the low back pain was unrelated to the 2004 injury.

Because the ATP had not placed claimant at MMI within eighteen months of commencing treatment, employer requested a division-sponsored independent medical examination (DIME). The DIME physician examined claimant in January 2010 and placed him at MMI as of the date of the exam. The DIME physician rated claimant’s impairment at 10% of the whole person for CRPS and 11% for his spine, giving him a 20% impairment rating of the whole person.

Employer filed a final admission of liability (FAL) based on the DIME physician’s MMI and impairment ratings. Claimant moved to strike the FAL, arguing that a physician performing an eighteen-month DIME is limited to determining MMI and may not give an impairment rating. An administrative law judge (ALJ) agreed with claimant, struck the FAL, and ordered claimant to see his ATP for a permanent impairment evaluation. The ATP rated claimant at 18% for his spinal injuries, 10% for CRPS, and 4% for the lower extremity, resulting in a total impairment rating of 27% of the whole person.

Employer requested a second DIME to review the ATP’s impairment rating. The second DIME agreed that claimant had reached MMI in January 2010, but rated his impairment at 18% of the whole person. In her deposition, however, she corrected herself and rated him at 4% of the whole person.

At the hearing, claimant objected to the second DIME physician’s opinions. The ALJ found that when claimant moved to strike the FAL he waived his opportunity to rely on any presumptive weight that might otherwise have been given to the eighteen-month DIME’s impairment rating. The ALJ awarded claimant PPD benefits based on an impairment rating of 10% of the lower extremity, but found claimant’s spine injury and CRPS unrelated and therefore awarded no benefits for those conditions. The Panel affirmed.

On appeal, claimant argued he was entitled to a higher impairment rating because (1) the ALJ was bound by the eighteen-month DIME physician’s opinions and therefore lacked jurisdiction to rule on the relatedness of his alleged CRPS and low back conditions; and (2) the ALJ improperly assigned him the burden of overcoming the second DIME’s opinion. The Court of Appeals disagreed.

Claimant argued the determination of the eighteen-month DIME physician’s opinion was binding on the ALJ because neither party had requested a hearing to challenge his opinions. In general, a DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect. However, the Panel has found this general rule does not govern as to impairment when an eighteen-month DIME determination is requested under CRS § 8-42-107(8)(b)(II), because it does not mention or address impairment. The Court found that this a reasonable interpretation of the statutory language and an eighteen-month DIME report under this section only carries presumptive weight concerning MMI.

Consequently, the causation findings associated with the impairment ratings carried no presumptive effect and were not jurisdictionally binding on the ALJ. The impairment rating was advisory only and did not statutorily close the issue of causation of impairment.

Claimant also argued that the ALJ “did not enforce the presumption of validity” associated with the eighteen-month DIME physician’s causation determinations. The Court found this argument premised on the incorrect notion that the eighteen-month DIME physician’s causation opinions were related only to MMI. To the extent they were related to impairment ratings, they were not subject to presumptive weight. It was for the ALJ to determine whether the impairment opinions expressed by the second DIME physician, including the causes of impairment, had been overcome by clear and convincing evidence. The ALJ’s findings in this regard will not be set aside if supported by substantial evidence in the record. The Court found such evidence in the record. The order was affirmed.

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

April 17, 2013 by Leave a Comment

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.

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HB 13-1126: Changing Statutorily Established Time Intervals to Comply with “Rule of Seven”

March 7, 2013 by Leave a Comment

On January 18, 2013, Rep. Jared Wright and Sen. Irene Aguilar introduced HB 13-1126 - Concerning Statutorily Established Time Intervals. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill changes time periods in the appellate process to seven-day periods or periods that are multiples of seven days to avoid actions being due on weekends. Similar changes to seveb-day periods or periods that are multiples of seven days were made to the Colorado Revised Statutes in 2012, pursuant to Senate Bill 12-175. On Feb. 18, the House passed the bill on 3rd Reading; it has been assigned to the Judiciary Committee in the Senate.

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

November 7, 2012 by Leave a Comment

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.

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Colorado Court of Appeals: Delivery Drivers Were Under Control and Direction of Employer and Were Therefore Employees

November 1, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Western Logistics, Inc. v. Industrial Claim Appeals Office on Thursday, October 25, 2012.

Unemployment Tax Liability—Covered Employment Under CRS § 8-70-115.

In this unemployment tax liability case, petitioner Western Logistics, Inc., doing business as Diligent Delivery Systems, (Diligent) sought review of an order of the Industrial Claim Appeals Office (Panel). The Panel affirmed a hearing officer’s decision that services performed for Diligent by certain individuals constituted covered employment under CRS § 8-70-115. The Court of Appeals affirm the Panel’s order.

Based on an audit covering the 2008 and 2009 calendar years, respondent, the Division of Employment and Training (Division), issued a liability determination concluding that approximately 220 delivery drivers (drivers) were in covered employment with Diligent. Diligent was directed to report payments made to the drivers and to pay corresponding unemployment premiums.

Diligent appealed. The hearing officer made extensive factual findings, concluding that notwithstanding written contracts designating the drivers as independent contractors, the evidence demonstrated that was “not true in fact.” The officer found none of the drivers was “customarily engaged in a delivery business” and they “received direction and control” from Diligent. On review, the Panel affirmed, primarily based on the finding that the drivers were not customarily engaged in independent delivery businesses. On appeal, Diligent argued the Panel’s decision was not supported by substantial evidence. The Court disagreed.

The Court noted that to satisfy the “independent business” requirement, a worker generally must be shown actually, customarily, and contemporaneously to have provided similar services to others. Substantial evidence in the record supports the hearing officer’s

ultimate finding that Diligent failed to meet its burden of demonstrating that the drivers were truly engaged in independent delivery businesses and therefore it will not be disturbed on appeal.

Diligent also argued that the parties submitted specific evidence concerning roughly 10% of the drivers, and for the remaining drivers, the only evidence presented was the written contract stating they were engaged in a delivery business. Therefore, Diligent claimed that the “only permissible conclusion” as to these drivers is that they were customarily engaged in independent businesses. The Court disagreed.

The hearing officer’s express finding was that the written contracts did not accurately describe the relationship between Diligent and the drivers. Diligent was making an argument of evidentiary weight that is within the hearing officer’s discretion.

The Court also found that the decision was sustainable independently and separately based on the officers’ conclusion that Diligent failed to show the drivers were free from its control and direction. Substantial evidence supported this finding and the Court therefore will not disturb it. The Panel’s order was affirmed.

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Colorado Court of Appeals: Workers’ Compensation Insurer Not Entitled to Subrogate Against Interest on Claimant’s Annuities from Third-Party Lawsuits

September 18, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Hertz Corp. v. Industrial Claim Appeals Office on September 13, 2012.

Workers’ Compensation—Subrogation—Malpractice—Interest—Economic Damages.

In this workers’ compensation proceeding, the Colorado Insurance Guaranty Association (CIGA) appealed from the final order issued by the Industrial Claim Appeals Office (Panel), which disallowed it from taking a credit or offset against interest earned on the multiple third-party recoveries obtained by claimant. The order was affirmed.

Claimant received a workers’ compensation award of ongoing medical benefits and permanent total disability (PTD) benefits. He also received third-party recoveries for malpractice. The interest earned by claimant included both the investment income generated by the several lump-sum malpractice settlements and the interest component embedded in a statutorily required, court-ordered annuity investment. Claimant later moved for an order compelling CIGA to begin payments for PTD and medical benefits on a continuing basis and to pay past-due benefits without offsetting any of the interest earned or any interest contained in the annuitized payments for loss of future earnings and medical costs.

CIGA contended that the Panel erred in interpreting CRS § 8-41-203(1) to preclude a credit or offset against the interest component earned on the judgments against the hospital and physicians who caused claimant’s damages. CRS § 8-41-203(1) provides the workers’ compensation insurance carrier with a subrogation right to the proceeds received by the claimant for economic damages awarded in a third-party lawsuit against the tortfeasor. Here, purchase of the annuities essentially constitutes an investment of claimant’s previous judgment, and the interest earned on the annuity is funded by the original investment, not by the third-party tortfeasor’s liability obligation. Thus, the interest earned on the annuity is not the equivalent of the economic and medical benefits recovered from the tortfeasor or owed by the workers’ compensation provider. Rather, the interest component compensates claimant for the loss of use of funds during the accrual period. Further, CIGA was not entitled to any interest earned on claimant’s lump sum payments from the physicians. If CIGA received a credit or offset for the interest earned on these amounts, it would be permitted to recover a sum in excess of the amount of compensation for which it would be liable, in contravention of the statute. Therefore, the Panel properly determined that CIGA’s subrogation rights did not extend to that part of the periodic payments.

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Colorado Court of Appeals: Payments Made to Union President for Services Performed to Union Constituted “Wages” for Purposes of Unemployment Compensation

September 6, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Communications Workers of America 7717 v. Industrial Claim Appeals Office on August 30, 2012.

Unemployment Compensation Benefits—“Wages.”

Communications Workers of America 7717 (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming a hearing officer’s decision determining that claimant was entitled to an award of unemployment compensation benefits. The order was affirmed.

From 2003 until February 2011, claimant worked part-time for employer, serving as union president. He was supervised by employer’s executive board. He also worked full-time for another employer (Qwest).

The hearing officer found that when the union wanted claimant to work on union business during times that he would be working for Qwest, employer paid him the equivalent wage he would have received from Qwest. The officer found employee was separated from this employment when employer merged with another local union chapter. The officer found no reason that claimant should be disqualified from receiving benefits based on the reason for the separation, and no reason that employer should be exempt from paying them.

On review to the Panel, employer argued the money it paid to employee did not constitute “wages” under the statute and that employee still had his full-time job with Qwest and therefore suffered no wage loss. The Panel held the nature of the payments made did not exempt employer from paying benefits and that the issue of ongoing work for Qwest was not properly before it. The hearing officer’s decision was affirmed by the Panel.

On appeal, employer renewed its argument that it did not pay “wages” to employee. CRS § 8-70-141(1)(a) defines “wages” as “[a]ll remuneration for personal services.” The undisputed evidence established that claimant provided personal services to employer by performing work as its president and was remunerated by employer with payments. The Court of Appeals saw no error in the finding that claimant was paid “wages” under the statutory scheme.

Employer also argued that claimant suffered no wage loss because he was still employed by Qwest. The Court agreed with the Panel that this was not properly before it for review. The judgment was affirmed.

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Colorado Court of Appeals: Where Liability Admitted in Workers’ Compensation Case, Burden Shifts to Respondent if Liability Later Disputed

August 22, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Rodriguez v. Industrial Claim Appeals Office on August 16, 2012.

Compensable Accidental Employment Injuries—Burden of Proof—Admission of Liability.

Helen M. Rodriguez appealed from an order issued by the Industrial Claim Appeals Office (Panel) in favor of the City of Brighton and its insurer, CIRSA (collectively, Brighton). The order was set aside and the case was remanded with directions.

Rodriguez works for the City of Brighton as a special events coordinator. One morning, she fell while descending the stairs to her office. She was taken to the emergency room, where she received a CT scan and an MRI. The tests revealed unruptured brain aneurysms.

Brighton initially admitted liability for Rodriguez’s disability and medical benefits. It later sought to withdraw its admission, arguing the injuries did not arise out of her employment.

An administrative law judge (ALJ) found that (1) because Brighton initially admitted liability, it bore the burden of proof under CRS § 8-43-201(1); (2) Rodriguez’s fall was not caused by her aneurysms but was “unexplained”; and (3) because her fall was unexplained, her injuries were not compensable. Brighton therefore sustained its burden of proving non-compensability and could withdraw its admission of liability. Rodriguez appealed to the Panel, which affirmed the ALJ’s order.

Rodriguez argued the ALJ erred in ruling her injury was not compensable. The Court of Appeals agreed. An employee may recover for accidental injuries “arising out of and in the course of the employee’s employment.” It was undisputed Rodriguez was injured in the course of her employment; the question was on the “arising out of” prong. Ordinarily, the plaintiff bears the burden of proving this element. Here, the burden was shifted to the employer because of Brighton’s initial admission of liability. Consequently, the finding that the fall was unexplained was a failure of proof on Brighton’s part. Because Brighton failed to sustain its burden of proof, the ALJ erred in allowing it to withdraw its admission of liability. The Panel’s order was set aside and the case was remanded to the ALJ with directions to reinstate Brighton’s general admission and to conduct further proceedings as necessary.

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Colorado Court of Appeals: Claimant Seeking Workers’ Compensation Benefits for Solely Psychological Claim Has Heightened Burden of Proof

July 24, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Kieckhafer v. Industrial Claim Appeals Office on July 19, 2012.

Workers’ Compensation—Burden of Compensability Under CRS § 8-41-301(2)(a).

Claimant appealed the final order of the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) dismissal of her claim for benefits. The order was affirmed.

Claimant worked as a nurse in the women’s forensics unit of employer, the Colorado Mental Health Institute–Pueblo. Claimant began experiencing work-related emotional distress and sought psychological help. Eventually, she filed a claim for workers’ compensation benefits for her “mental/emotional distress.”

The ALJ determined claimant had failed to introduce necessary evidence from a mental health professional establishing that she “suffered a recognized disability arising from a psychologically traumatic event.” Consequently, the ALJ held that claimant had not met her burden of demonstrating entitlement to benefits for her “mental–mental” claim. The ALJ denied and dismissed the claim. The Panel affirmed and claimant appealed.

Claimant argued that CRS § 8-41-301(2)(a) imposes an insurmountable obstacle to claimants seeking medical benefits for their emotional injuries. The Court of Appeals disagreed. To receive benefits, an injured worker has the threshold burden of establishing, by a preponderance of the evidence, that he or she has sustained a compensable injury proximately caused by her employment. Here, claimant was claiming “mental–mental” injuries, in which “mental impairment follows solely an emotional stimulus.” This requires a “heightened standard of proof” to “help prevent frivolous or improper claims.” The statute requires “the testimony of a licensed physician or psychologist” to establish the claim. Because claimant failed to introduce any such evidence, the order denying and dismissing her claim was affirmed.

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Colorado Court of Appeals: Attorney Fees and Costs Appropriately Assessed Against Counsel for Filing Application for Hearing on Unripe Issues

May 15, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Youngs v. Industrial Claim Appeals Office on May 10, 2012.

Workers’ Compensation—Attorney Fees and Costs.

In this workers’ compensation action, appellants Patrick Youngs and his counsel, Chris Forsyth, sought review of the final order entered by the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) order assessing the employer’s attorney fees and costs against Forsyth, individually, because appellants requested a hearing on an issue that was not ripe for adjudication. The judgment was affirmed.

This case presented an issue of first impression: whether CRS § 8-43-211(2)(d) requires that reasonable attorney fees and costs be assessed when only one issue, among others raised, in a request for a hearing is not ripe for adjudication at the time such request is made. The Court of Appeals concluded that any person requesting a hearing on an issue that is not independently ripe for adjudication when the request is made, even though there are other ripe issues in the same request, must be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing.

Youngs sustained an admitted, work-related injury in March 2005. He was awarded benefits for an 8% impairment to his left upper extremity and a 5% impairment to his left lower extremity. The ALJ denied his claim for permanent total disability (PTD), and the Panel affirmed the order. During the pendency of the appeal on the PTD, appellants filed an application for a hearing on a “petition to reopen [permanent partial disability (PPD)] and PTD pursuant to [section] 8-43-303 fraud/mistake.” Employer argued that fraud or mistake had already been argued and decided.

The ALJ dismissed the petition to reopen, finding that the reopening issue had been improperly endorsed, but declined to assess employer’s attorney fees and costs. The Panel held that the plain language of CRS § 8-43-211(2)(d) required an assessment of fees and costs and remanded for a determination of that amount. The ALJ assessed fees and costs of $23,308.54 against Forsyth, individually, and the Panel affirmed.

The Court of Appeals held that the ALJ and the Panel properly determined that the petition to reopen was not ripe when the request was made. When the request was made, these issues were on appeal and, in fact, were not fully adjudicated until much later when the U.S. Supreme Court denied appellants’ petition for a writ of certiorari.

Appellants also argued that other issues in their request for hearing were ripe, which negated the prohibition on endorsing unripe issues. The Court found that the plain language of the statute and the intent of the provision do not allow for such an exception.

Appellants further argued that the amount of fees assessed was “erroneous.” The Court disagreed, finding the fees and costs assessed are within the ALJ’s sound discretion and that there was no abuse of that discretion in this instance.

Appellants raised several evidentiary issues, none of which the Court found was an abuse of the ALJ’s discretion. The judgment was affirmed.

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