Page 1

Text Box: 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

Text Box: RULE 18-6 EXTENDS SAMMS’ DECISION

Text Box: The Colorado courts have long held that when a plaintiff initiates a civil action, and by alleging a physical or mental condition as the basis for a damage claim, injects that issue into the case, the plaintiff impliedly waives the physician/patient privilege with respect to that medical condition. In Samms v. District Court, 908 P.2d 520 (Colo. 1995), the Colorado Supreme Court held that, as a result of such waiver, defense counsel is permitted to conduct informal interviews with the claimant’s treating physicians in the absence of claimant or the claimant’s attorney, provided the questioning is limited to matters relating to the claim and that the claimant and/or counsel is given notice of any proposed interview. The Samms’ decision does not require the claimant’s attorney to provide notice to defense counsel of any proposed interview with a treating physician. Therefore, under Samms, claimant’s attorneys retain the ability to communicate with the treating physicians ex parte.
Rule 18-6, W.C.R.P. effectively extends the holding in Samms to all parties in workers’ compensation cases. Rule 18-6(A) provides: Conferences Held at the Request of a Party. Telephonic or face-to-face conferences shall be related to the injured worker's treatment. All parties shall receive actual notification from the requesting party in advance and within 24 hours of the scheduling.
Under Rule 18-6(A), Claimants’ counsel no longer have the advantage of being able to contact the treating physician prior to appointments, depositions, or hearings, to discuss potential treatment recommendations or testimony without providing Respondents actual notification of the proposed conference in advance and within 24 hours of the scheduling. Rule 18-6 effectively levels the playing field regarding physician contact.

Text Box: James R. Clifton
In the claim of Lawrence Middleton v. Nabors Drilling U.S.A. and Zurich American Insurance, ALJ Laura Broniak agreed with Jim Clifton and Holly Barrett finding the claimant failed to obey Prehearing Administrative Law Judge Ronald Jayne’s June 26, 2007 Prehearing Conference Order and Rule 5-4(C), W.C.R.P., by failing to provide employment record releases requested on July 21, 2006. Rule 5-4(C) provides that a requested release for relevant information be provided unless the request is unreasonable or not reasonably necessary. If the request for the release is unreasonable or the information is not reasonably necessary, the claimant must file a Motion or set the claim for a prehearing conference. ALJ Broniak found the claimant failed to issue employment releases when requested or otherwise comply with the Rule. Instead, approximately six weeks after Respondents’ request, claimant’s counsel asked Mr. Clifton to justify his reasons for seeking the information. The claimant’s communication did not comply with Rule 5-4(C). The ALJ found that clearly claimant’s counsel, Shelly Dodge, disputed the relevancy of the requested releases; however, a unilateral determination of irrelevancy does not permit the claimant to ignore the Rule or the Respondents’ request. ALJ Broniak found it was objectively unreasonable for claimant to ignore the request for releases for six weeks and then to fail to comply with the Rule for approximately four months. She imposed penalties against the claimant for the 180-day violation.
In Dennis Williams v. Hyland Enterprises and Zurich American Insurance Co., Administrative Law Judge Martinez denied the claimant’s request for medical benefits, including additional surgery. In reaching this result, ALJ Martinez denied claimant’s motion to preclude Respondents from presenting evidence of an intervening injury arising out of subsequent employment based on the doctrine of law of the case. The claimant argued Respondents were precluded from presenting evidence of a subsequent injury as ALJ David Cain ruled at prior hearings that the claimant testified credibly that he did not sustain any new injuries. ALJ Martinez found Judge Cain’s findings regarding a new injury were factual, not legal. Consequently, the doctrine of law of the case is inapplicable. Moreover, ALJ Martinez ruled there were new facts showing ALJ Cain’s finding that there was no new injury should not necessarily be followed. Considering the evidence of a subsequent intervening injury, ALJ Martinez found the claimant’s testimony on the issue of causation incredible. The ALJ credited the testimony of Dr. Louis Winkler who opined there were several possible causes of the claimant’s need for surgery. The most likely cause was a fall suffered by the claimant. However, claimant’s other activities such as stacking hay or working at a job requiring vigorous physical activity could have caused the need for surgery.
Richard A. Bovarnick
In Angela Poussard v. Sava Senior Care and ACE American Insurance Co., Administrative Law Judge Michael Harr agreed with Rich Bovarnick that claimant’s six emergency room visits were not Respondents’ liability. ALJ Harr accepted Dr. John Sacha’s expert medical testimony that the claimant’s treatment at the emergency room was not for emergent care, but was due to the claimant’s drug seeking behavior. In addition, the ALJ found the Respondents were entitled to credit the $675 they paid for a Division IME against any additional benefits owed to the claimant. With regard to penalties for late payment of TTD, although the claimant established a late period of 50 days, in light of the claimant’s drug-seeking behavior, questionable and non-physiologic symptoms, and lack of candor regarding her prior work-related injuries and motor vehicle accidents, ALJ Harr found the claimant’s testimony regarding the effect of the late payment unreliable and lacking credibility. Therefore, he imposed penalties of only $21.43 per day for a total award of $1071.50, against which $675 was offset.
Administrative Law Judge Martin Stuber agreed with Rich Bovarnick in the claim of Stewart Smilanich v. Interstate Brands Corp. and ACE American Insurance Co., that the claimant failed to prove his two years as a route sales representative caused, aggravated, or exacerbated a left thumb condition. ALJ Stuber found the claimant’s condition was more probably due to his riding horses and cattle roping consistent with the testimony of the claimant’s supervisor. This case also presented the question of compensability under the quasi-course of employment doctrine, as the claimant fell and hit his head after he received a cortisone injection in the thumb. ALJ Stuber recognized the injection was administered by an unauthorized physician. Therefore, the sequela of the head injury would not be the Respondents’ liability.
In Cathy Hernandez v. Wal Mart, Inc. and American Home Assurance, Administrative Law Judge David Cain granted Respondents’ Motion for Summary Judgment against claimant, represented by attorney Rick Blundell, who filed an Application for Hearing on the issue of the constitutionality of the Division IME process and panel.
In David Dolph v. ABF Freight Systems, Rich Bovarnick persuaded Prehearing Administrative Law Judge Sharon Fitzgerald to deny claimant’s motion to permit a nurse case manager to sit in and take notes during an independent medical examination performed by Henry Roth, M.D. The PALJ agreed the statute and Rules do not support the claimant’s argument that he should be permitted to bring a nurse to an IME because Respondents can request a nurse case manager attend medical appointments. The claimant can decline nurse case management services. Further, the statute clearly states the claimant has the right to have a physician of his choosing, not a nurse, attend an IME.
Royce W. Mueller
In Vahida Bukva v. Adam’s Mark Hotel and American Home Assurance, Royce Mueller successfully defended a permanent total disability claim brought by a non-English speaking Bosnian immigrant before Administrative Law Judge Edwin Felter, Jr. ALJ Felter rejected the claimant’s argument that her post-MMI position performing “room service calls” was “sheltered employment.” The ALJ was persuaded by the testimony of the Respondents’ vocational expert, Tim Shanahan, that the claimant retained the capacity to work not only in her position at the hotel, but also in other potential employment. In addition, although the claimant suffered an admitted injury to her left upper extremity, ALJ Felter rejected her assertion that the authorized treating physician’s shoulder impairment rating should be converted to a whole person impairment rating.
Erica A. Weber
In the claim of Kent Lockhart v. Tetra Tech, Inc. and ACE American Insurance Co., the claimant alleged a repetitive-use injury to his left shoulder. Respondents paid medical benefits, but contested the injury when diagnostic testing showed evidence of extensive pre-existing or traumatic injuries to the shoulder. ALJ Edwin Felter, Jr. found the claimant suffered a temporary aggravation to a significant pre-existing condition. He found Respondents were liable only for limited medical benefits, all of which had been paid. The ALJ found the claimant failed to meet his burden of establishing the need for accident-related care from April 17, 2007 and ongoing. Erica objected to the proposed Order as originally written by claimant’s attorney and successfully argued for the limited award of medical benefits ALJ Felter ultimately included in his Findings of Fact, Conclusions of Law and Order.
Holly M. Barrett
In the claim of Kriemhilde Silvey v. Psychiatric Solutions and ACE U.S.A., Inc., Administrative Law Judge Martin Stuber denied and dismissed the claimant’s claim for compensation and benefits. Judge Stuber found the claimant failed to prove she suffered from an occupational disease resulting directly from the employment or conditions under which work was performed and following as a natural incident of the work. The ALJ found the medical records failed to support the claimant’s allegations and that the claimant had been off work completely for over two months before returning to work and filing a claim. Judge Stuber relied on the testimony of vocational specialist Pat Anctil who performed a job site analysis. He found the claimant’s description of her job duties incredible.

Text Box: Note: Summaries and articles should not be relied upon as authority for a particular case. Consult your attorney for advice on the application of all the law to the specific facts of your case or legal problem. Text Box: Ten
Fascinating
Facts

Text Box: In the wrongful death action of Moore v. Western Forge Corporation, 06 CA 0229 and 06 CA 1557 (November 15, 2007), the plaintiff appealed the trial court’s summary judgment in favor of Western Forge and Crawford & Company, as well as the costs awarded against her. On appeal, the plaintiff asserted Western’s handling of a worker’s compensation claim through Crawford was in bad faith and caused her deceased husband emotional distress that led to his suicide. Plaintiff argued that because defendants are liable for her husband’s suicide, the trial court erred in granting summary judgment. The Court of Appeals disagreed.
In the underlying worker’s compensation claim, the claimant filed a claim against his long-term employer, Western Forge. While he was off work awaiting surgery, Crawford mailed him a Notice of Contest pending further investigation. Shortly after reading the notice, the claimant killed himself. The claimant’s wife then filed a claim for death benefits. After hearing, the ALJ found the claimant’s suicide was not due to a severe mental disorder created by the industrial injury, but “appeared to be triggered by the Notice of Contest.” Both ICAO and the Court of Appeals affirmed the ALJ’s Order. The claimant’s wife then filed claims for bad faith and wrongful death. She also asserted a claim for abuse of process. The trial court dismissed the claims on summary judgment and awarded the defendants $67,061 in costs and attorney fees. On appeal, the Court of Appeals upheld the trial court’s dismissal, holding that the intentional tort approach does not apply to liability for suicide in bad faith cases because the defendants’ duty of good faith and fair dealing does not involve intent to cause emotional distress or physical injury. In addition, the court held liability for suicide is not recognized in a bad faith case because suicide is typically a voluntary and willful choice, “the person committing suicide is in effect both the victim and the actor.” Because the plaintiff failed to show the claimant was suffering from delirium or insanity, his act is considered voluntary, and a subsequent intervening event, making summary judgment appropriate. Finally, the court held a cause of action for abuse of process reflects the need to protect the integrity of judicial proceedings. The court found no case extending the abuse of process tort to actions taken in workers’ compensation claims, such as filing a Notice of Contest. The claim was thus properly dismissed on summary judgment.
The case was remanded to evaluate the defendants’ expert attorney’s fee submission of $14,858.39, which was submitted without documentation. The remaining $52,202.61 in costs and attorney fees awarded against the plaintiff were affirmed.