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A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

ATTORNEYS AT LAW
Text Box: CURRENT EVENTS, ARTICLES, AND SUMMARIES OF RECENT CASES AND LEGISLATION IN THE AREAS OF WORKERS’ COMPENSATION, LIABILITY, INSURANCE, AND EMPLOYMENT LAW

2007

June
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LEGISLATIVE UPDATE

Colorado Governor Bill Ritter (D) gave his pen a workout this 2007 Legislative Ses-sion approving at least five bills incorpo-rating critical amendments to Colorado’s Workers’ Compensation Act.  The follow-ing highlights some of the more important provisions of the bills Governor Ritter signed at the end of this legislative session.

Senate Bill 07-258, a comprehensive piece of legislation, which became effective May 30, 2007, will have a number of procedural impacts on claims.  Section 1 of the bill  requires the Director to establish a fee schedule for medical services pertaining to injured workers whether related to treatment or not.  It makes it unlawful for

any person or institution, including expert witnesses, reviewers or evaluators to contract for services in excess of the fee schedule without express permission of the Director.  Claimant’s bar interprets the bill as applying to services provided both respondents and claimants.  However, the plain language of the poorly worded bill prohibits only charges to any patient in excess of the fee schedule.  Experts remain free to charge Respondent employers and insurers what the market will bear.

Senate Bill 07-258 also increases the aggregate of all lump sums granted to $60,000.  Within ten days of a request from a represented claimant, the insurer

must review, calculate and pay all lump sums and  file the calculations and proof of payment with the Division within those same ten days.  The Division will review, calculate, and issue orders on lump sum requests by unrepresented  claimants.  The form necessary for reporting the lump sum calculation and payment are available on the Division’s website, www.coworkforce.com/dwc.

In an additional change to  lump sum payments, the new legislation also requires automatic payment of up to $10,000 in a lump sum for both scheduled and non– scheduled awards.  The new $60,000 ag-

In the recent case of Fera v. Industrial Claim Appeals Office, __ P.3d ____ (Colo.App. No. 06 CA 1549) (May 3, 2007), the Court of Appeals held that an ALJ may award penalties for an unreason-able denial of medical care even when the Respondents comply with Rule 16.  Rule 16-10(B) requires an employer who con-tests a claimant’s request for prior authori-zation of medical treatment to, within 7 business days of the completed request: (1)have the request reviewed by a physician or other health care professional . . . and . . . (3) furnish the provider and the parties a written contest setting forth specific infor-mation relevant to the contest.  In Fera, the claimant had a history of injury to the area in question prior to his work-related injury.  Respondents’ physician-advisor reviewed

Penalties for Denial of Care

By M. Frances McCracken

 
Text Box: Please see Legislative Update, p. 2 Text Box: Please see PENALTIES on page 2

claimant’s medical records and concluded the claimant’s need for treatment was re-lated to the pre-existing condition.  The Respondents denied the request for medi-cal treatment and complied with all provi-sions of Rule 16-10(B).  Thereafter, the claimant requested a hearing on the issue of medical benefits and sought penalties for the denial of treatment.  The claimant did not dispute the Respondents had com-plied with all relevant provisions of Rule 16.  However, he argued that despite this compliance, Respondents nonetheless violated the Act and the procedural rules for “unreasonable denial” and were thus subject to penalties.  The ALJ denied the claimant’s request for penalties on a Motion for Summary Judgment. ICAO affirmed the denial. The court of appeals

disagreed with the ALJ and ICAO and reversed the Order granting summary judg-ment.  The court held the record contained several medical reports supporting the claimant’s position that the requested treat-ment was related to his work injury, in-cluding the opinion of the ATP who sought preauthorization for the proposed treat-ment.  The court found “no basis in the record for giving more weight to the opin-ion of the insurer’s physician-advisor than to the contrary medical report.”  According to the court, the Respondents could be sub-ject to penalties for relying upon the opin-ions of the physician-advisor, thereby un-reasonably delaying or denying authoriza-tion for medical treatment.  In light of this holding, Respondents are not insulated