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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

2008

JANUARY
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COURT OF APPEALS UPDATE

In the case of Leeway v. Industrial Claim Appeals Office, Harrison School District No. 2 and American Compensation Insurance Company, decided November 29, 2007, a panel of the Colorado Court of Appeals reversed a decision issued by the Industrial Claim Appeals Office and held that a second Final Admission of Liability, filed within thirty days of the initial Final Admission, supercedes the first Final Admission and extends the time before automatic closure of all issues raised in the corrected FAL.

In Leeway, the claimant sustained an admitted work-related injury in 2003.  The

authorized treating physician placed her at MMI in May 2005.  The Respondents filed a Final Admission of Liability consistent with the opinions of the ATP on MMI and impairment and also admitted to 2 days of temporary total disability.  The claimant requested a DIME.  The DIME physician agreed with the opinions of the treating physician.  In response to the DIME report, Respondents filed a Final Admission dated October 10, 2005.  The October 10, 2005 FAL admitted to TTD benefits from “November 10, 2004 through December 3, 2004,” but indicated the claimant was entitled to only 29 weeks of disability.  On

October 20, 2005, the Division issued a notice of the discrepancy and requested a corrected FAL be filed within fifteen days. On October 26, 2005, Respondents filed a corrected FAL,  admitting for two days of TTD.   On November 10, 2005, claimant filed an objection to the FAL and sought hearing on the issues of permanent partial disability benefits and post-MMI medical benefits.  It is undisputed the claimant’s objection and application for hearing were filed 31 days after the October 10, 2005 FAL.
Text Box: Please see COURT OF APPEALS on p 2

REOPENING A PERMANENT TOTAL DISABILITY AWARD

The reopening statute, C.R.S. § 8-43-303, provides that, in cases where a claimant is determined to be permanently totally disabled, the case may be reopened at any time to determine if the claimant has returned to employment.  If the claimant has returned to employment and is earning in excess of four thousand dollars per year or has participated in activities which indicate that the claimant has the ability to return to employment, the claimant’s permanent total disability award shall cease and the claimant shall not be entitled to further permanent total disability benefits. Administrative Law Judge Bruce Friend’s application of this statute was recently affirmed by the Industrial Claim Appeals Office in the claim of Dennis Garrison v. Direct Sales Tires, Inc. and Aetna Casualty Insurance.  In Garrison, the claimant sustained a compensable left knee injury on January 12, 1988.  When he

reached maximum medical improvement on March 18, 1991, the ATP opined the claimant could “hardly walk” and was unable to perform even a light duty job.  In the course of an IME conducted by Dr. Henry Roth, the claimant also demonstrated significant limitations in the use of his left leg.  Respondents admitted the claimant was permanently totally disabled and began paying benefits.

Video surveillance was taken in 2005, which was shown to Dr. Roth.  Dr. Roth stated that in the video, the claimant demonstrated an ability to kneel, squat, stoop and bear weight on his left leg, none of which he was capable of doing on prior exam.  According to Dr. Roth, the video documented functional improvement from 1991.  He opined the claimant could perform work in the medium duty work category.  Vocational expert David Zeirk

opined there were jobs available to the claimant within Dr. Roth’s restrictions.  Crediting Dr. Roth’s and Dr. Zeirk’s opinions, ALJ Friend found the claimant’s condition had improved and that he was capable of employment.  The ALJ concluded the claimant was no longer permanently totally disabled.  He authorized the Respondents to terminate payment of permanent total disability benefits. The Order was affirmed on appeal. The Garrison case demonstrates it is possible to reopen a permanent total disability award, even in cases where the claimant has not returned to work.  Evidence, supported by medical and vocational opinions, will support an order terminating a prior award of permanent total disability benefits.  Section 8-43-303(3), C.R.S. is an important tool, particu-larly when permanent total disability was awarded in a questionable claim.