June 26, 2019

Colorado Court of Appeals: ALJ Cannot Determine MMI Where No Physician Has Placed Claimant at MMI

The Colorado Court of Appeals issued its opinion in Burren v. Industrial Claim Appeals Office on Thursday, March 7, 2019.

Workers’ Compensation—Maximum Medical Improvement.

Burren sustained admitted work-related injuries to her arm and shoulder in 2014. Several physicians treated her for her injuries into 2017, but Burren complained that her pain continued to worsen and that none of the treatment improved her condition. None of her physicians placed her at maximum medical improvement (MMI).

In 2015 employer retained Dr. Fall to perform a medical examination of Burren. She did not find Burren at MMI, but in 2016 she found Burren had reached MMI. Employer then requested Dr. Henke to perform a 24-month division-sponsored independent medical examination (DIME) because no treating physician had placed Burren at MMI. Dr. Henke determined that Burren was not at MMI.

Employer then applied for a hearing to dispute Dr. Henke’s DIME opinion. The ALJ ruled that employer had clearly and convincingly overcome the DIME and found MMI was reached in 2016. An Industrial Claim Appeals Office panel (the Panel) upheld the ALJ’s order.

On appeal, Burren argued that the Panel and the ALJ misinterpreted C.R.S. § 8-42-107(8)(b) because an ALJ cannot determine a claimant’s MMI as a matter of fact without an authorized treating physician (ATP) placing her at MMI. She contended that if a DIME performed under the statute finds a claimant is not at MMI, treatment should proceed until an MMI determination is made. The court of appeals analyzed the statute and the Panel’s historical practices and concluded that when the DIME and the ATP agree that a claimant is not at MMI, treatment should continue until either the DIME or the ATP places the claimant at MMI. Thus, the ALJ and the Panel misinterpreted C.R.S. § 8-42-107(8)(b)(II). While the court’s conclusion effectively precludes an employer from challenging a 24-month DIME when the DIME agrees with the ATP that a claimant is not at MMI, it does not prohibit an employer from re-invoking the 24-month DIME process at an appropriate future time.

The order was set aside and the case was remanded to the Panel with directions to return it to the ALJ to enter an order consistent with the opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Workers’ Compensation Act Does Not Require Employer to Cover Cost of Conservator or Guardian

The Colorado Court of Appeals issued its opinion in Nanez v. Industrial Claim Appeals Office on Thursday, November 15, 2018.

Workers’ Compensation—C.R.S. § 8-42-101(1)(a)Conservator or Guardian ServicesMedical Treatment.

While working as a plumber, Nanez sustained permanent disabling closed-head injuries, causing significant cognitive deficits. His authorized treating physician (ATP) placed him at maximum medical improvement with a permanent impairment rating of 47% of the whole person. His employer admitted liability. As a result of his cognitive impairments, Nanez’s ATP recommended that both a conservator and guardian be appointed to function as Nanez’s “peripheral brain.” Both were appointed, and Nanez requested his employer pay for them pursuant to C.R.S. § 8-42-101(1)(a). He also asked that his average weekly wage (AWW) be increased to cover his lost potential earning capacity. Both requests were denied by an ALJ, and the denial was affirmed by a panel of the Industrial Claim Appeals Office (Panel).

On appeal, Nanez contended that his employer should be liable to pay for the guardian and conservator. He contended that their services are medical benefits because they relieve the effects of his brain injury. The court of appeals found support for the ALJ’s findings that the conservator’s services handling Nanez’s finances didn’t cure or relieve him of the injury’s effects, and Nanez failed to establish that the guardian’s duties in managing his treatment and ongoing care were reasonable and necessary. The court concluded that the conservator’s and guardian’s services were not medical treatment as that term is used in C.R.S. § 8-42-101(1)(a) and therefore the employer was not liable to pay for them.

Nanez also contended that the Panel erred in affirming the ALJ’s denial of the AWW increase. The ALJ’s decision declining the increased AWW because Nanez’s potential future wages are too speculative is supported by substantial record evidence, and the Panel properly affirmed it.

The order was affirmed.

Summary provided courtesy of 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: Hearing Officer Erred in Ascribing Fault to Claimant for her Mental Health Disorders

The Colorado Court of Appeals issued its opinion in Mesa County Public Library District v. Industrial Claim Appeals Office on Thursday, June 16, 2016.

Unemployment Compensation Benefits—Mental Health Disorder.

Gomez worked for the Mesa County Public Library District (Library) for almost 25 years. In 2013, she began having performance issues and was placed on two successive performance improvement plans (PIPs). In September 2014, she was placed on a third PIP and told to produce a satisfactory organizational capacity report by October 7 or face additional disciplinary action, including discharge. She called in sick on that date, and again on October 9, and did not return to work again. On October 14, she submitted a doctor’s note advising that she was suffering from acute stress disorder and major depressive disorder. She was granted a request to remain off work for four to six weeks. The Library director terminated her on October 20, 2014 for failing to provide the organizational capacity report.

The hearing officer in her unemployment compensation benefits case determined that Gomez had become mentally unable to perform her job duties but found her “at fault” for becoming mentally unable to complete the report, and under C.R.S. § 8-73-108(5)(e)(XX), disqualified her from receiving benefits. On review, the Industrial Claim Appeals Office (Panel) adopted the hearing officer’s evidentiary findings but rejected as a matter of law the conclusion that Gomez was disqualified from receiving benefits because she was at fault for her own diagnosed mental disorders. It awarded her benefits under C.R.S. § 8-73-108(4)(j).

On appeal, the Library argued that the Panel substituted its findings of fact for those of the hearing officer. The Court of Appeals found that the Panel adopted the hearing officer’s findings of fact. The Court also rejected the Library’s contention that the evidence demonstrated that Gomez’s mental health disorder did not affect her ability to complete the report. The Court agreed with the Panel that the hearing officer erred in determining that Gomez was at fault for her nonvolitional conduct.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Workers’ Compensation Settlement Agreement Precluded Later Reopening for Unknown Injuries

The Colorado Court of Appeals issued its opinion in Amerigas Propane & Indemnity Insurance Co. of North America v. Industrial Claim Appeals Office on Thursday, April 21, 2016.

Mutual Mistake—Workers’ Compensation Claim—Reopening Settlement Agreement.

The worker was injured while working for Amerigas Propane and filed a claim for compensation. The worker and the employer (including the insurer) agreed to settle the claim. The settlement agreement clearly stated that the worker would forever waive his right to request compensation for unknown injuries. It also stipulated that the claim could only be reopened on grounds of fraud or mistake of fact. The worker later moved to reopen the settlement, alleging a mistake of fact in that he had a newly discovered injury that was unknown at the time of the settlement and it was related to the original injury. An administrative law judge (ALJ) reopened the claim. The employer appealed to the Industrial Claim Appeals Office (Panel) and the Panel affirmed. The employer then filed this appeal.

The Colorado Court of Appeals examined the language of the settlement agreement, specifically its statement that the worker waived his right to compensation for “unknown injuries” that arose “as a consequence of” or “result[ed]” from the original injury. The court found the newly discovered injury was clearly and unequivocally covered by this language and therefore the case could not be reopened.

The Panel’s order was set aside and the case was remanded to the Panel to direct the ALJ to vacate the worker’s benefits award and to deny his motion to reopen the settlement.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Claimant Released to Full Duty but Unable to Perform Work Entitled to TTD

The Colorado Court of Appeals issued its opinion in Archuleta v. Industrial Claim Appeals Office on Thursday, April 21, 2016.

Workers’ Compensation—Temporary Total Disability Benefits—C.R.S. § 8-42-105(3)(c)—C.R.S. § 8-42-103—C.R.S. § 8-42-105(1).

Claimant sustained a work-related injury in February 2014. His physician imposed temporary restrictions and released him to modified duty. On March 5, the attending physician released him to full duty work with no restrictions. On May 21, the attending physician determined claimant had reached maximum medical improvement (MMI) with no impairment restrictions. Employer filed a final admission of liability.

Claimant continued to maintain that he could perform only light duty work because of his injury. He was laid off one week after reaching MMI because, according to him, he was “hurt on the job,” could no longer perform his duties, and was on “light duty.” He requested a division-sponsored independent medical examination (DIME) to challenge the MMI finding. The DIME physician concluded he was not at MMI. An administrative law judge (ALJ) then awarded claimant temporary total disability (TTD) benefits, finding that he was laid off because of his industrial injury. On review, the Industrial Claims Appeal Office (Panel) reversed, finding that under C.R.S. § 8-42-105(3)(c), once a claimant has been released to full duty work TTD benefits must cease.

On appeal, claimant argued that C.R.S. § 8-42-105(3)(c) applies only to the termination of benefits and because he didn’t have any benefits when the attending physician released him to work, his case should have been analyzed under C.R.S. §§ 8-42-103 and -105(1), which apply to the commencement of benefits and do not have a restriction based on release to full duty. The court of appeals agreed, holding that C.R.S. § 8-42-105(3)(c) did not apply to claimant’s case because the statute can only terminate benefits that have already commenced and therefore can only be applied prospectively.

The order was set aside and the case was remanded with directions to reinstate the ALJ’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Workers’ Compensation Act Applies to Employers who Hire in Colorado

The Colorado Court of Appeals issued its opinion in Youngquist Brothers Oil & Gas, Inc. v. Industrial Claim Appeals Office on Thursday, February 25, 2016.

Workers’ Compensation Act—Out-of-State Employer/Injury.

Youngquist Brothers Oil and Gas, Inc. (Youngquist) has business operations in North Dakota but hires workers from other states, including Colorado. It maintains workers’ compensation insurance in North Dakota but not Colorado.

Miner lived in Colorado. He applied for and was offered a job by Youngquist, who then flew him to North Dakota. During his second shift, Miner injured his back. Youngquist agreed to allow Miner to seek medical treatment in Colorado and arranged for his return. Miner filed a workers’ compensation claim with North Dakota Workforce Safety and Insurance, which was denied. Miner then filed for workers’ compensation benefits in Colorado. After a hearing, the administrative law judge (ALJ) determined that he was hired in Colorado and therefore his claim was subject to the Workers Compensation Act (Act). The ALJ found he suffered a compensable work-related injury, awarded him benefits, and imposed a 50% penalty on Youngquist for failing to carry workers’ compensation insurance in Colorado. The Industrial Claim Appeals Office affirmed the ALJ’s order.

On appeal, Youngquist argued it is not subject to the Act because it does not conduct business in Colorado, Miner was not hired in Colorado, and it does not have sufficient contacts with Colorado to establish personal jurisdiction. The Court of Appeals disagreed. Colorado has jurisdiction to award benefits for out-of-state work-related injuries if an employee was (1) hired or regularly employed in Colorado and (2) injured within six months of leaving Colorado. It was undisputed that Miner was injured within six months of leaving Colorado. The Court found record support for the ALJ’s finding that the “last act necessary” to form the employment relationship occurred in Colorado when Miner accepted the job offer at his home, not after he filled out the paperwork and did the drug testing in North Dakota.

Youngquist also alleged that it lacked sufficient minimum contacts with Colorado to be subject to personal jurisdiction there and that enforcing Colorado benefits violates principles of comity. The Court rejected the former and did not reach the latter constitutional argument.

The Court also rejected Youngquist’s argument that the ALJ erred in applying the Act’s penalty provision.

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Volunteer Traveling to Meeting Was Employee for Workers’ Compensation Purposes

The Colorado Court of Appeals issued its opinion in Teller County, Colorado v. Industrial Claim Appeals Office on Thursday, April 23, 2015.

Workers’ Compensation—Volunteer as Employee—Coming and Going Rule.

Claimant is the president and incident commander for Teller County Search and Rescue (TCSAR). All employees of TCSAR, including claimant, are volunteers who receive no monetary compensation.

On May 10, 2013, claimant left his home in Florissant to attend a fire chiefs meeting in Divide. Before leaving, he contacted the Teller County dispatch to “mark in service,” thereby notifying Teller County that he was en route to the meeting. As he was driving, he was struck head on by an approaching vehicle and sustained severe injuries.

He filed a workers’ compensation benefits claim, asserting that as a volunteer he fell within the definition of “employee” set forth in CRS § 8-40-202(1)(a)(I)(A). The administrative law judge (ALJ) agreed and the Industrial Claim Appeals Office(Panel) affirmed.

On appeal, Teller County argued that (1) claimant’s actions did not fall within the statutory definition of “employee” because he was driving to a meeting and not actually performing duties or engaged in an organized drill or training when the accident occurred; (2) the Panel’s inclusion of “planning and preparation” activities under the definition of employee broadened the scope of the provision beyond the General Assembly’s intent; (3) the Panel engaged in improper fact finding in affirming the ALJ’s decision; and (4) claimant’s claim should have been barred by the “coming and going” rule.

The Court of Appeals was not persuaded by these arguments. Attending fire chief meetings was clearly a part of claimant’s position and duties as president of TCSAR. It was, contrary to Teller County’s argument, a part of the custom and practice of claimant’s position. In addition, the Court reviewed the record and found no improper fact finding by the Panel. Finally, the Court found that the circumstances here fell squarely in one of the many exceptions to the coming and going rule, which ordinarily does not allow workers benefits if they are injured coming from or going to work. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: All Separations from Base Period Employers Must Be Evaluated to Determine Unemployment Eligibility

The Colorado Court of Appeals issued its opinion in Nagl v. Industrial Claim Appeals Office on Thursday, April 23, 2015.

Unemployment Compensation—CRS § 8-73-108(5)(e)(IV)—Constitutional Right to Travel.

Claimant worked as a front desk agent for Destination Vail Hotel, Inc. He quit this job to be located closer to his girlfriend in Telluride. Claimant found a new position in Telluride, but was subsequently laid off.

Claimant then sought unemployment insurance benefits. A deputy for the division of unemployment insurance denied claimant’s request for benefits based on his employment with Destination Vail Hotel. However, claimant did receive benefits based on his work for his Telluride employer. Claimant appealed, and the hearing officer affirmed the deputy’s decision. The Industrial Claim Appeals Office (Panel) affirmed.

On appeal, claimant contended that the Panel’s decision was inconsistent with the express purpose of the Colorado Employment Security Act (CESA), which is to provide unemployment benefits to persons who are unemployed through no fault of their own. Whether a claimant is entitled to unemployment benefits attributable to wages paid by a particular employer depends on the reason for the separation from that employment. Because it was undisputed that claimant voluntarily quit his employment with Destination Vail Hotel, and thus was at fault for that separation, the hearing officer and the Panel did not err in determining that he was disqualified from receiving benefits from that employer.

Claimant also argued that the move to Telluride was not a disqualifying event under CRS § 8-73-108(4)(n). However, the hearing officer properly limited the proceeding to the circumstances surrounding his Vail job, not his subsequent employer. The fact that he accepted work after leaving the Vail job does not bear on whether he refused to accept work following the termination of his Telluride job. Thus, CRS § 8-73-108(4)(n) does not provide a basis for awarding benefits to claimant based on his employment with Destination Vail Hotel.

Claimant further argued that the hearing officer’s application of CESA violated his right to travel, as protected by the Colorado Constitution, because it effectively penalized his right to move within the state. To succeed on an “as applied” challenge, a party must show that the statute is unconstitutional under the circumstances in which the party acted. Here, the loss of benefits resulting from claimant’s decision to quit his job to move closer to his girlfriend is not a constitutionally significant restriction. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: ALJs and PALJs Subject to Financial Disclosure Requirements of C.J.C.s so No Equal Protection Violation

The Colorado Court of Appeals issued its opinion in Kilpatrick v. Industrial Claim Appeals Office on Thursday, March 12, 2015.

Workers’ Compensation—Discovery—Maximum Medical Improvement—Petition to Reopen—Evidentiary Rulings.

Claimant sustained an admitted, compensable injury to his left wrist in the course and scope of his employment with Goodwill Industries of Denver (employer). Post-surgery, claimant continued to complain of pain. Following a steroid and lidocaine injection, claimant still had symptoms. Claimant sought additional surgery through his authorized treating physician (ATP). Employer’s insurer (Pinnacol) denied the request.

Soon thereafter, claimant was placed at maximum medical improvement (MMI). The ATP and two other physicians opined that further surgery would not be helpful. Employer filed a final admission of liability.

Claimant was referred to another physician, who recommended further surgery. The ATP signed a statement agreeing with this recommendation and apparently attempting to rescind his previous MMI determination. Claimant petitioned to reopen his claim. The administrative law judge (ALJ) denied the request, and the Industrial Claim Appeals Office (Panel) affirmed.

On appeal, claimant argued the ALJ made errors and abused her discretion in denying a discovery request he made concerning Pinnacol’s financial disclosures. He argued that workers’ compensation litigants are treated inequitably as compared to litigants in district court because they do not have access to the financial disclosures of prehearing administrative law judges (PALJs), ALJs, and Panel members. The Court of Appeals found that the PALJ held a hearing at which the parties presented arguments regarding the discovery request, and held that it was reasonable to find disclosing the financial records of hundreds of Pinnacol employees as overly burdensome and having no direct bearing on claimant’s request to reopen his claim. Therefore, there was no error.

Claimant argued that the denial of the request for Pinnacol’s financial records violated his right to equal protection under the law, noting that district court litigants can obtain a written disclosure of the financial records of each justice or judge of a court of record. Employer argued that ALJs and Panel members are subject to the same financial reporting requirements, and therefore there can be no equal protection violation. The Court of Appeals agreed with employer. The Colorado Code of Judicial Conduct (CJC) applies to all full-time judges, which includes the administrative law judiciary. Moreover, pursuant to CRS § 24-30-1003(4)(a), ALJs are subject to the standards of conduct set forth in the CJC. Finally, the Panel conceded that it was covered by the financial disclosure provisions. Therefore, claimant was not treated differently from other civil litigants.

Claimant argued that the ALJ erred by rejecting the ATP’s apparent retraction of his MMI determination and contended that the ALJ was bound by the retraction. The Court found this was a misreading of the case law and that the ALJ was not so bound. Further, there was substantial evidence supporting the ALJ’s MMI finding and denial of the request to reopen.

Finally, claimant challenged a number of the ALJ’s evidentiary rulings, essentially arguing that employer abused the discovery process by failing to disclose evidence and testimony to be presented. The Court found no basis that there was any abuse of discretion in the ALJ’s evidentiary rulings. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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.

Colorado Court of Appeals: No Workers’ Compensation Prepayment of Meal and Hotel Expenses

The Colorado Court of Appeals issued its opinion in Winter v. Industrial Claim Appeals Office on Thursday, August 15, 2013.

Workers’ Compensation—Prepayment of Hotel and Meal Expenses.

In this workers’ compensation proceeding, claimant sought review of the final order issued by the Industrial Claim Appeals Office (Panel) in favor of his employer, the City of Trinidad, and its insurer, CIRSA, which upheld the denial of his request for prepayment of the hotel and meal expenses he incurred while traveling to see his authorized treating physician. The Court of Appeals affirmed.

Summary and full case available here.