A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW

2007

April

The Court of Appeals Unleashes an Avalanche on AWW

Will the Supreme Court Provide a Beacon?

Claimant in Avalanche Industries, Inc. v. ICAO, —P.3d— (Colo. App. 2007)sustained an industrial injury in July 2000.  Her average weekly wage at the time of her injury was $416.  The claimant began working at another employer in March 2001.  Respondents filed a final admission in December 2001 that admitted to the $416 AWW and 12% whole person impairment rating.  Claimant did not object to the admission.

The claimant’s condition worsened and she successfully petitioned to reopen her claim in January 2003.  The claimant’s treating physician took her off work in April 2005. 

The Division of Workers’ Compensation wants all adjusters to know the following:

First, you must respond immediately if you  receive a letter from the Division.  “This is one point the DOWC hammers on.  DON’T IGNORE US.  I know there is a lot of stuff going on in the day, but this is an issue you must address immediately.  Call us.”

Second, “Calculate the TTD rate with the assistance of the Division’s web page.”

Third, if you reduce temporary benefits, you must do so through the petition process.  “While you can unilaterally increase benefits, you CANNOT unilaterally decrease benefits without using the petition process.”

Fourth, “If it’s not documented, it didn't happen.  Make sure you attach appropriate

The claimant’s average weekly wage in April 2005 was $625.

The claimant applied for a hearing on June 14, 2005 and endorsed only the issue of AWW.  Respondents argued at hearing that the issue of AWW was closed in 2001 after claimant failed to object the final admission.  Respondents further argued that the issue of AWW had not been reopened by the ALJ after the worsening of claimant’s condition.  Finally, respondents argued that the claimant was not entitled to the higher AWW based on a salary earned five years after she left employment with respondents.

At hearing, the ALJ disagreed with respondents and awarded an AWW based on claimant’s weekly wage while employed by her most recent employer.  

On appeal, the panel upheld the ALJ’s findings, noted that that order granting claimant’s petition reopened the entire award and concluded that the ALJ had not abused his discretion in basing claimant’s AWW on the salary she earned from her most recent employer.  Respondents appealed.

A divided court of appeals panel affirmed the ICAO’s order and held, “Here, the ALJ

documentation to your admissions.”  It was suggested that documentation is appreci-ated even when not required by the rules of procedure. “If the AWW on the admission is different than the first report of injury, provide documentation of a wage history.”

Fifth, file the final payment notice.  “It was something that was not enforced in the past.”  That policy changed with the new Director.

Finally, “We are human and we all make mistakes.  If you have a question, please call.  The DOWC receives over 55,000 admission per year, and it is easy to over-look something.  If you need more time because of difficulty locating a claimant, call us.  More often than not, we will grant additional time to file.  If you don’t understand something, call us and one of our agents will walk you through it.”

“If It’s Not Documented, It Didn’t Happen.”

Words of Wisdom from the DOWC

 

 

House Bill 07-1176 was introduced in the Senate last month after having passed in the House with a 44-20 vote.

The bill gives an injured worker the ability to select his treating physician from a list prepared by his employer of at least two physicians or one or more networks of health care providers.

After its introduction in the Senate, the Committee on Business, Labor and Technology passed the Bill unamended to the Senate Committee of the Whole.