August 23, 2019

Colorado Court of Appeals: ALJ Not Required to Rank Firefighter’s Cancer Risk Factors in Workers’ Comp Case

The Colorado Court of Appeals issued its opinion in City of Boulder Fire Department v. Industrial Claim Appeals Office on Thursday, June 28, 2018.

Workers’ Compensation—Coverage for Occupational Diseases Contracted by Firefighters—C.R.S. § 8-41-209.

A firefighter worked for the City of Boulder’s fire department for 35 years. After he retired, a doctor discovered he had squamous cell carcinoma in his tongue. He filed a claim for workers’ compensation benefits under C.R.S. § 8-41-209 (section 209). Section 209 creates a presumption that certain cancers are compensable if stricken firefighters meet certain criteria. But it does not impose strict liability on fire departments or cities; rather, the presumption may be overcome by showing that a firefighter’s cancer “did not occur on the job.”

The City challenged the firefighter’s claim. It maintained that human papillomavirus 16/18 was the more likely cause of his cancer and retained an expert that opined that was the case. The firefighter offered testimony from his own expert refuting the City’s expert. Based on the evidence, the administrative law judge (ALJ) decided the cancer was compensable and awarded the firefighter benefits. A panel of the Industrial Claim Appeals Office (Panel) affirmed, finding that substantial evidence supported the ALJ’s findings and conclusions.

On appeal, the City argued it had proved it was more likely that the virus had caused the firefighter’s cancer than other, more attenuated, risks. It further contended that by accepting the “multifactorial” or “combination” of causes advanced by the firefighter’s experts, the ALJ misinterpreted a trio of Colorado Supreme Court cases that had analyzed section 209 (the trio of cases). The City maintained that the trio of cases requires ALJs to “weigh and rank the risk factors to determine whether the employer showed by a preponderance of the evidence that a non-occupational risk factor was the greater or higher risk factor in the firefighter’s cancer.” The trio of cases does not mandate that ALJs rank firefighters’ cancer risks, nor does it preclude consideration of multifactorial causes of cancer. Rather, the cases emphasize that an employer can overcome the presumption by establishing the prevalence of non-work-related-factors. But this does not automatically rebut the section 209 presumption because the determination of whether an employer has met its burden is within the fact-finder’s discretion. Substantial evidence supported the ALJ’s factual findings, and the Panel did not err.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Treatment with Approved Physician Did Not Terminate Previous Physician’s Authorized Treatment Provider Status

The Colorado Court of Appeals issued its opinion in Berthold v. Industrial Claim Appeals Office on Thursday, November 16, 2017.

Workers’ Compensation—Change of Authorized Treating Physician—Maximum Medical Improvement—Final Admission of Liability.

Claimant sustained work injuries and received medical care from Sharma, an authorized treating physician (ATP). Several months later she requested and received permission, under C.R.S. § 8-43-404(5)(a)(VI)(A), to begin treatment with another physician, Miller. Notwithstanding the agreed-upon change of doctor, claimant’s employer periodically sent her to the see Sharma. After Miller assumed her care, Sharma reported that claimant reached maximum medical improvement (MMI). Miller disagreed. Despite this disagreement, claimant’s employer filed a final admission of liability (FAL) based on Sharma’s conclusion. Claimant challenged the FAL, and an administrative law judge found that Sharma’s status as claimant’s ATP terminated when Miller began treating her, pursuant to C.R.S. § 8-43-404(5)(a)(IV)(C), the automatic termination provision. A panel of the Industrial Claim Appeals Office (Panel) disagreed, concluding that C.R.S. § 8-43-404(5)(a)(IV)(C) applied only if the worker sought a change of physician under C.R.S. § 8-43-404(5)(a)(III). The Panel further held that the termination provision in C.R.S. § 8-43-404(5)(a)(VI)(B), which automatically terminates the relationship between an ATP and an injured worker upon treatment with a new ATP, did not apply either because it was not in effect when claimant changed physicians.

On appeal, claimant contended that her employer erred in relying on Sharma’s MMI finding when issuing the FAL because Sharma was no longer an ATP when he made the MMI finding. She argued that (1) her treating relationship with Sharma was automatically terminated by C.R.S. § 8-43-404(5)(a)(IV) because it applies to all changes of physicians, and (2) even if this section does not apply, her relationship with Sharma was terminated by recently amended C.R.S. § 8-43-404(5)(a)(VI). The Colorado Court of Appeals held that the C.R.S. § 8-43-404(5)(a)(VI)(B) termination provision only applies to requests to change a treating physician made after the effective date of the provision. Second, C.R.S. § 8-43-404(5)(a)(IV) is limited to changes made under C.R.S. § 8-43-404(5)(a)(III) “within ninety days after the date of the injury.” Because claimant’s request in this case to change her physician predated C.R.S. § 8-43-404(5)(a)(VI)(B), and because it was not granted under C.R.S. § 8-43-404(5)(a)(III), her treatment with Miller did not automatically terminate Sharma’s status as an ATP.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

SB 14-137: Revising Certification Process for Workers’ Compensation Insurance Forms

On Monday, January 27, 2014, Sen. Cheri Jahn introduced SB 14-137 – Concerning Certification of Workers’ Compensation Insurance Forms. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law prohibits workers’ compensation carriers from writing any policy of insurance or any endorsement, rider, letter, or other document affecting an insurance contract on a form that has not been previously filed with and approved by the commissioner of insurance. The bill allows the forms to be used without prior approval and to be certified on an annual basis after submission by the workers’ compensation carriers.

On Feb. 12, Business, Labor, & Technology Committee amended the bill and sent it the Senate 2nd Reading Consent Calendar. On Feb. 17 the bill passed with amendments on 2nd Reading. On Feb. 18, the Senate approved the bill on 3rd and Final Reading. The bill is assigned to the House Business, Labor, Economic, & Workforce Development Committee.

Tenth Circuit: UPS Employee Failed to Show Stated Reason for Termination–Dishonesty–Was Pretext for Retaliation

The Tenth Circuit Court of Appeals published its opinion in Macon v. United Parcel Service on Wednesday, February 19, 2014.

Jeff Macon was employed by the United Parcel Service and suffered two work-related injuries. The injuries were covered by workers’ compensation. Prior to his second injury, he was disciplined and terminated for improperly signing for a customer’s next-day air delivery. The termination was later reduced to a suspension. After several suspensions and grievances, Bacon was eventually terminated for dishonesty.

Bacon filed this action in federal district court alleging UPS terminated his employment because of his work related injury. He argued that UPS’s stated reason for his termination—dishonesty—was merely a pretext for retaliation. UPS moved for summary judgment arguing Macon failed to show the necessary causal connection between his 2007 and 2008 WC claims and his 2009 termination. The district court agreed and Macon appealed.

To establish a claim for a retaliatory discharge under Kansas law, a plaintiff must show: (1) a claim for worker’s compensation benefits or an injury that might support a future worker’s compensation claim; (2) the employer knew of the claim or injury; (3) the employer discharged the plaintiff; and (4) a causal connection between the claim (or injury) and the discharge. The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.

The Tenth Circuit reviewed the documents Macon cited, but none raised a genuine and material issue of fact sufficient to allow a reasonable jury to find pretext. Macon did not explain how any retaliatory motive on the part of his supervisors could be imputed to UPS when the final decision to terminate him was made by a grievance panel. Nor did he allege the grievance panel was biased, had a retaliatory motive, or merely rubber-stamped his supervisor’s decision to terminate him. The discipline imposed after the settlement of his workers’ compensation claim did not raise a triable issue of pretext.

Macon also argued a jury could determine his discharge for dishonesty was pretextual because the record showed he was not dishonest. Macon claimed he was not dishonest, merely inadequately trained. But he was not entitled to a determination of whether he was dishonest; rather, he was entitled only to a determination of whether the terminating grievance panel could reasonably have thought so.

Finally, Macon attempted to demonstrate pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. The problem with Macon’s approach was that it failed to give UPS credit for establishing grievance panels with independent authority to assess the propriety of discipline. Even assuming the difference in treatment between Macon and another employee resulted from their supervisor’s desire to terminate Macon in retaliation for his workers’ compensation claims, this improper motive could not be imputed to UPS when the independent grievance panel concluded there was adequate reason to terminate Macon for dishonesty. But, Macon simply did not argue—and nothing in the record suggested—the grievance panel was in any way complicit in or blind to the supervisor’s retaliatory motive.


Tenth Circuit: Employment Agreement Shortening Time to Bring Suit Violated Public Policy in Workers’ Compensation Retaliation Case

The Tenth Circuit Court of Appeals published its opinion in Pfeifer v. Federal Express Corp. on Monday, July 1, 2013.

Plaintiff Cynthia Pfeifer filed a diversity action against Defendant Federal Express Corporation in the District of Kansas alleging that Defendant retaliated against her for receiving workers’ compensation benefits by terminating her employment. Plaintiff’s employment agreement contained a provision requiring all claims against Defendant to be brought within “the time prescribed by law or 6 months from the date of the event forming the basis of [Plaintiff’s] lawsuit, whichever expires first.” The governing Kansas statute provided a 24 month statute of limitation and Pfeifer filed suit within that time period but after six months. The district court granted Defendant’s motion for summary judgment and the Tenth Circuit certified two questions to the Kansas Supreme Court.

Because the Kansas court held that the contract violated public policy by shortening the time allowed to file suit, which recognizes that injured workers should be protected from retaliation when exercising rights under the Workers Compensation Act, the Tenth Circuit reversed summary judgment and remanded.

HB 13-1025: Authorizing Increase in Allowable Deductible for Workers’ Compensation Insurance Policies

On January 9, 2013, Rep. Spencer Swalm and Sen. Cheri Jahn introduced HB 13-1025 – Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance PoliciesThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current workers’ compensation law allows employers a deductible of up to $5,000 in a workers’ compensation policy. This bill increases the amount of the authorized deductible up to the amount of the workers’ compensation insurance rate split point approved by the commissioner of insurance. Assigned to the Business, Labor, Economic, & Workforce Development Committee.

Tenth Circuit: Summary Judgment for Employer Reversed in Workers’ Compensation Retaliation Claim

The Tenth Circuit published its opinion in Barlow v. C.R. England, Inc. on Wednesday, December 26, 2012.

Plaintiff Willie Barlow worked for C.R. England (England) as a security guard. He formed a company to provide janitorial service to England and did that in addition to his security job. He filed a workers’ compensation claim in June 2007 after being struck in the head by a heavy gate. He continued working at England in both capacities while receiving workers’ compensation benefits, but had a lifting restriction of 25 pounds. In November 2007, England terminated Barlow’s janitorial contract and fired him in April 2008 from his security guard job. The district court granted summary judgment for England on Barlow’s Title VII and § 1981 race discrimination claims, FLSA overtime claim, and wrongful discharge in violation of public policy claim based on workers’ compensation retaliation.

The Tenth Circuit affirmed summary judgment on the race discrimination claims, holding Barlow failed to establish a prima facie case. The court also affirmed summary judgment for England on the FLSA claim. Barlow alleged he had the status of employee under the FLSA while performing janitorial work and was thus due overtime pay. The court applied the economic realities test and decided Barlow was not an employee for purposes of FLSA coverage while performing his janitorial work.

The court held Barlow had established a prima facie case of retaliatory discharge from his security guard job. England’s site facility manager, Smith, fired Barlow six days after an email exchange with England’s workers’ compensation manager, who expressed frustration with Barlow’s collection of benefits. The court disagreed with England’s argument that timing did not support Barlow’s case because he had filed for benefits 10 months before termination. “Colorado law protects an employee’s ongoing receipt of workers’ compensation benefits, not just the employee’s initial filing.” The Tenth Circuit reversed summary judgment on the retaliatory discharge claim regarding the security job and remanded on the janitor retaliatory discharge claim as it was not clear if the district court applied state or federal law in determining Barlow was an independent contractor rather than an employee.


“Request for Lump Sum Payment” Form Updated by Division of Workers’ Compensation

The Division of Workers’ Compensation in the Colorado Department of Labor and Employment issued a new form in September, “Request for Lump Sum Payment,” Form WC 62. The form may be used in situations where at least six months have passed from the date of injury or date of death and there is an award of permanent disability benefits.

This form is available in Adobe Acrobat (PDF) format. All of the Division of Workers’ Compensation’s forms can be found here.

New Workers’ Compensation Form: “Medical Billing Dispute Resolution Intake Form,” WC 181

The Division of Workers’ Compensation in the Colorado Department of Labor and Employment issued a new form, WC 181, “Medical Billing Dispute Resolution Intake Form.” The form is intended for use in situations where parties have followed the dispute resolution procedures outlined in WCRP Rule 16-11(A) through (D) and a payment dispute still exists.

The completed form should be submitted to the Division’s Medical Policy Unit via fax, email, or mail. Directions for submission of the completed form can be found here.

This form is available in Adobe Acrobat (PDF) format.

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

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.

Summary and full case available here.

Colorado Court of Appeals: Homeowners’ Liability to Injured Contractor Limited by Statutory Damages Cap

The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.

Premises Liability—CRS § 8-41-401(3).

In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.

Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.

Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.

Contractor argued that CRS § 8-41-401(3) did not apply because homeowners were not required to obtain workers’ compensation insurance covering contractor and, because no coverage was required, homeowners were not among the individuals protected by the statutory damages cap. The Court of Appeals disagreed. The Court noted that the purpose of the section is to encourage participation in the workers’ compensation system and limit exposure of contractors who obtain coverage from lawsuits or claims brought by uncovered independent contractors injured on the job.” [Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1215 (Colo.App. 2009).]

Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

Summary and full case available here.

Tenth Circuit: Damages for Retaliatory Discharge After Workers’ Compensation Claims Reduced; All Other Aspects of Judgment Against Employer Upheld

The Tenth Circuit Court of Appeals issued its decision in Jones v. United Parcel Service, Inc., on March 5, 2012.

Plaintiff Keith Jones (Jones), a United Parcel Service (UPS) package car driver, suffered work-related injuries, filed workers’ compensation claims, and received benefits. Jones’s physician and the UPS physician disagreed about whether Jones was able to return to work without restrictions. Under their collective bargaining agreement, if the UPS doctor and the employee’s doctor disagreed, the parties had to select a third doctor “whose decision [would] be final and binding.” The third doctor, whose review was limited by UPS, concluded Jones could not perform the essential functions of his job. UPS therefore terminated Jones.

Jones filed a state law retaliatory discharge claim and UPS removed the case to federal court. A jury awarded Jones over $2.5 million in actual and punitive damages. UPS appealed. On appeal, UPS alleged that:

(1)    It was entitled to judgment as a matter of law on Jones’s retaliation claim. Upon de novo review, the Court found the evidence presented supported a reasonable inference in support of Jones’s retaliation claim. Affirmed.

(2)    The district court erred in giving two improper jury instructions. The Court concluded that, although not a model of clarity, the jury instructions were not improper. Affirmed.

(3)    It was entitled to judgment as a matter of law on Jones’s claim for punitive damages. Based on the evidence presented, UPS is not entitled to judgment as a matter of law on Jones’s claim for punitive damages because enough evidence was presented to establish ratification of UPS’s conduct “by a person expressly empowered to do so on behalf of the . . . employer.” Kan. Stat. Ann. § 60-3702(d)(1). Affirmed.

(4)    The district court erred in allowing the jury to decide the amount of punitive damages. The Court concluded that the district court did not err in instructing the jury to determine the amount of punitive damages, relying on Federal Rule of Civil Procedure 38 rather than Kansas law. A federal district court sitting in diversity applies federal procedural law and state substantive law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 428 n.7 (1996). Affirmed.

(5)    The jury’s award of $2 million in punitive damages violated its federal due process rights. “[T]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Hardman v. City of Albuquerque, 377 F.3d 1106, 1121 (10th Cir. 2004). Whether an award is grossly excessive or arbitrary is based on “(1) the degree of reprehensibility of the defendant’s action; (2) the disparity between the actual harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damage award and the civil penalties authorized or imposed in comparable cases.” Id. The Court concluded that the jury’s $2 million punitive damage award was excessive and violated UPS’s federal due process rights. Reversed and remanded on this limited issue for the district court to enter a punitive damage award equal to the compensatory damage award.