2005

JUNE

Dillard v. ICAO, 04CA0680, June 2, 2005:  Claimant slipped and fell on ice in front of her work and sustained a compensable neck injury.  The treating physician gave Claimant a 20% physical impairment.  Claimant requested and underwent a Division IME (DIME). 

   The DIME physician gave Claimant a 25% physical impairment and a 5% mental impairment.   The DIME physician com-bined both impairment ratings for a total impairment of 29%.  Claimant asserted she was entitled to the $120,000 cap because her impairment rating exceeded 25%. 

   The Administrative Law Judge (ALJ) found Claimant may not combine a mental rating with a physical rating for purposes of exceeding the 25% cap. 

   Since Claimant suffered no more than a

25% physical impairment, the ALJ found Claimant was subject to the $60,000 benefit cap.  Pursuant to C.R.S. 8-42-107.5, no Claimant whose impairment rating is 25% or less may receive more than $60,000 from combined temporary and permanent disability payments.  The ICAO and Court of Appeals affirmed. 

   Pursuant to C.R.S. 8-42-107(7)(b)(III), mental or emotional stress . . . shall not be combined with a scheduled or a nonsched-uled injury.  Further, pursuant to C.R.S. 8-41-301(2)(b), where a claim is by reason of mental impairment, the Claimant shall be limited to 12 weeks of impairment benefits. 

   The Court of Appeals found the General Assembly’s intent in enacting these stat-utes was to limit compensation for mental

Colorado Compensation Insurance v. Jones, 03CA0487 & 03CA1740, May 19, 2005:  Claimant was driving a semi truck when he approached a herd of cattle being herded on the road by Mr. Jones, the owner, and Mr. Hagan.  Claimant slowed but did not stop as he passed the cattle.  Claimant’s driving angered Mr. Hagan and he went home to obtain a gun. 

   Mr. Hagan pursued Claimant and found him unloading the truck several miles from the initial incident.  Mr. Hagan shot Claimant who became paralyzed from the waist down as a result of the wound. 

   As a result of the injury, Claimant re-ceived benefits paid by Pinnacol.  Claimant brought a personal injury action against Mr. Jones and Mr. Hagan.  Pinnacol was

permitted to intervene to assert subrogation rights. 

   Claimant and Pinnacol agreed to settle the action against Mr. Hagan for $500,000, however, Claimant and Pinnacol did not agree on the allocation of the settlement proceeds.  

   Following a hearing, the trial court found Claimant’s noneconomic damages were over $700,000 and damages for physical impairment and disfigurement were $2 million.  Therefore, the trial court found Pinnacol had no subrogation rights to any part of the settlement because the $500,000 settlement would not fully compensate Claimant for all his noneconomic damages. 

   The Court of Appeals held the trial court erred in not determining Claimant’s past

and future economic damages and in allocating all settlement proceeds to non-economic damages.  On remand, the trial court must determine economic damages and reallocate the settlement proceeds between Claimant and Pinnacol.   

   The Court of Appeals found C.R.S. 8-41-203(1)(d)(I)(B)(amended July 2003), which states subrogation rights extend to physical impairment and disfigurement damages, did not apply retroactively to Claimant’s injury which occurred before July 2003. 

   The Court of Appeals held Pinnacol has no subrogation rights in Claimant’s physical impairment and disfigurement damages other than the $2,000 which may be awarded for disfigurement benefits.

or emotional stress.  The Court of Appeals held a mental impairment may not be combined with a nonscheduled impairment to determine the applicable benefits cap. 

Claimant Shot for Failing to Stop for Cattle: Insurer Entitled to Subrogation

CHB Seminar a Hit

   On May 26, 2005, claims representatives from throughout the region attended the CHB annual workers’ compensation seminar in Denver to witness  live “range of motion” back exams by Allison Fall, M.D., and gain valuable insight on current workers’ compensation issues. 

   For those who were unable to attend, we offer a DVD and booklet of the seminar.      

   To obtain your copy, call Tara Salazar at 303-988-7692 or email:

tsalazar@chbpc.com.

 

 

 

  

Claimant May not Combine Mental and Physical Impairments to Overcome Cap