Text Box:   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: 2008

Text Box: june

Text Box: SM Text Box:           FOUNDED 1991   is published monthly by the law firm of   Clifton, Mueller & Bovarnick, P.C. Attorneys at Law Suite 500 789 Sherman Street Denver, CO 80203 Telephone (303) 988-7692 Facsimile  (303) 988-7724   Grand Junction Office Suite 204 200 Grand Avenue Grand Junction, CO 81501 Telephone (970) 255-8852 Facsimile (970) 255-8905    Holly M. Barrett              Katherine M. Holom  Richard A. Bovarnick       M. Frances McCracken  James R. Clifton               Royce W. Mueller  Curtis L. Fleming              Erica A. Weber   © 2008 Clifton, Mueller & Bovarnick, P.C. All rights reserved.  Printed in USA.

Text Box: “UNUSUAL” POSITION ON REVERSAL MAY SIGNAL SHIFT AT ICAO

Text Box: In what may signal an increasingly liberal Industrial Claim Appeals Office, in the case cited Scott T. Shelton v. Eckstine Electric Co. and Pinnacol Assurance, the Panel took an almost unprecedented position and reversed an Administrative Law Judge without remanding the claim for further factual findings.  In Shelton, the claimant worked as an electrician.  He injured his left knee while working for his previous employer when he fell and fractured his patella.  The claimant underwent surgery and had screws placed in the left knee.  On May 9, 2007, the claimant was inspecting a junction box, when he heard a “pop” in his left knee and experienced severe left knee pain.  The claimant’s patella had broken in half.  Dr. Watkins determined the claimant had sustained a hardware failure.  Dr. Zinis testified the claimant had a non-union of the left patella due to the 2000 injury.  He further stated the incident on May 9, 2007 fractured the patella at its non-union and aggravated the pre-existing left knee condition.   The ALJ found the claimant failed to prove a compensable injury.  Instead, the ALJ found the claimant did not encounter a “special hazard” at work and denied the claim for benefits.  ICAO reversed the ALJ, holding, “as we read the order, the ALJ’s findings that the claimant aggravated his preexisting condition while performing an action required by his job compels the conclusion that he sustained a compensable injury.” According to the Panel, because the ALJ found the work-related activity of bending over aggravated the claimant’s preexisting knee condition, it was unnecessary for the ALJ to analyze whether some special hazard of the employment worked upon the pre-existing condition to precipitate the injury.  The “special hazard” doctrine applies in those situations where the precipitating cause of an injury is a pre-existing condition suffered by the claimant.  In those cases, the injury is not compensable unless a special hazard of employment combines with the preexisting condition to cause or increase the degree of injury.  To be considered an employment hazard for this purpose, the employment condition must not be a ubiquitous one; it must be a special hazard not generally encountered.  ICAO found the special hazards doctrine inapplicable based solely on the ALJ’s finding that the claimant “aggravated” his left knee condition in the act of bending down and reversed the denial of benefits without remand for further factual findings.  In an equally unusual position, Examiner Schrant dissented, opining that it could not be ascertained from the findings of record whether the ALJ concluded that there was a causal connection between the claimant’s injury and the circumstances of his employment.  Examiner Schrant would remand the claim for further findings on whether the need for medical treatment and disability was caused by an industrial aggravation of the pre-existing condition or by the natural progression of the pre-existing condition.

Text Box: In the recent case of Gladys Silva v. Poudre School District, the Industrial Claim Appeals Office again recognized that voluntary reopening of a claim on one issue does not automatically establish the claim is reopened for other issues.   In the Silva claim, the claimant was injured in an admitted accident.  The authorized treating physician (ATP) placed her at maximum medical improvement and assigned permanent physical impairment.  The Respondents filed a final admission of liability (FAL) on November 10, 2005.  The claimant did not timely object to the FAL, apply for a hearing or submit a Notice and Proposal to select a DIME.  The claimant’s care was subsequently transferred to another physician who opined she was no longer at MMI.  The Respondents voluntarily reopened the claim regarding medical treatment only. On June 6, 2006, the ATP noted the claimant had again reached MMI and sustained no additional impairment.  On June 21, 2006, the Respondents filed a second FAL consistent with the opinions of the ATP.  The claimant again did not object, request a hearing or timely file a notice and proposal to select a DIME.  The claimant did eventually file a notice and proposal to select a DIME.  The Respondents objected.  The ALJ found the claim was closed by virtue of the claimant’s failure to timely object to either FAL.  The claimant argued, among other things, that Respondents had voluntarily reopened the November 10, 2005 FAL.  Therefore, it cannot be held to have closed the claim.  The ALJ, and subsequently ICAO, rejected this argument relying on a long line of cases holding issues which were closed by an uncontested final admission are not revived by the filing of an amended final admission after reopening. In affirming the ALJ's order, ICAO noted the Respondents voluntarily reopened the claim regarding “pre-MMI medical treatment” only.  Therefore, the issue of permanent partial disability was not voluntarily reopened by the actions of the Respondents and that issue remained closed pursuant to the November 10, 2005 FAL. When agreeing to voluntarily reopen a claim, be very specific about the limited issues which are being reopened.

Text Box: James R. Clifton In the claim of Raymondo Ruiz v. Nabors Drilling and Zurich American Insurance Co., the claimant moved to Texas following the admitted accident.  The treating physician in Texas, Dr. Randy Pollet, placed the claimant at MMI and assigned seven percent whole person impairment to the claimant’s lumbar spine injuries.  Respondents had the claimant evaluated by Level II accredited physician, Dr. Rachael Basse in Colorado.  Dr. Basse assigned fourteen percent whole person impairment to the claimant’s injuries.  Dr. Ranee Shenoi then performed a Division IME at the request of Respondents.  Based on her examination, Dr. Shenoi agreed with Dr. Basse and assigned fourteen percent impairment to the claimant’s lumbar injuries.  Jim Clifton deposed Dr. Shenoi, showing her video surveillance of the claimant washing windows, climbing extension ladders, and climbing over roof gables.  Based on questioning by Mr. Clifton, Dr. Shenoi opined the claimant had sustained zero percent impairment as a result of the industrial accident.  On questioning by claimant’s counsel, Dr. Shenoi agreed that while each person’s perception of pain differs, she described the claimant’s activities as documented by surveillance as “acrobatic” and putting “Cirque du Soleil to shame.” In Albert Espinoza v. Shaw, Stone & Webster, Inc. and Zurich American Insurance Co., the claimant was employed as a concrete finisher.  He alleged a cervical spine injury after being hit in the head by a concrete vibrator while wearing a hard hat.  The claimant was subsequently terminated by the Respondent employer, for cause.  Based on video surveillance, the authorized treating physician, Dr. Peter Walsh, placed the claimant at MMI with zero percent impairment.  The claimant requested a Division IME.  Dr. Edwin Healey was selected as the DIME examiner.  Dr. Healey opined the claimant was not at MMI and assigned an advisory rating of fifteen percent whole person.  Jim Clifton deposed Dr. Healey, showing him video surveillance from 2007 and 2008.   The surveillance documented the claimant doing concrete work, using a sledgehammer, wearing a harness, and turning his head from side to side.  On questioning from Jim Clifton, Dr. Healey agreed the claimant was a stocky individual with a “bull neck,” who would not be expected to have a full range of cervical motion even without a neck injury.  Dr. Healey testified the claimant’s activities on video were inconsistent with the limitations and range of motion he demonstrated on physical exam.  Dr. Healey further testified, based on the surveillance, the claimant was at MMI, and one would never suspect the claimant had a cervical injury or a radicular problem. Richard A. Bovarnick In Danny Hurt v. Wal Mart Stores, Inc. and American Home Assurance, the authorized treating physician, Dr. Darrell Quick, provided a permanent physical impairment rating for the claimant’s medial meniscal tear and ACL deficient knee.  After much wrangling with the Department of Defense, the Respondents obtained permission to depose Dr. James McBride, the claimant’s treating surgeon at Fort Evan’s Army Hospital.  Dr. McBride testified that Dr. Quick erred in rating the claimant’s ACL deficiency since it was more than two years old at the time of the surgery and the claimant’s industrial injury occurred only two months prior to surgery.  Dr. Quick did not have a copy of the operative report at the time he rated the claimant’s impairment, nor did he contact Dr. McBride to discuss the surgical findings.  Claimant’s counsel agreed the claimant was not entitled to the permanent physical impairment rating assigned for the torn ACL. In the claim of Lee Crisel v. Labor Ready, Inc., Administrative Law Judge Bruce Friend agreed with Rich Bovarnick that claimant’s slip and fall did not arise out of or in the course and scope of his employment.  ALJ Friend found the Respondents’ witnesses more credible than the claimant on the operative fact that claimant was to be paid for “showing up” for work when no work was performed. Holly M. Barrett In the permanent total disability claim of Pauline Strench v. Wild West Casino and Western Guaranty Fund, ALJ Friend did not allow claimant’s expert witnesses to testify in claimant’s case-in-chief as they were not disclosed in response to discovery requests.  On appeal, the Industrial Claim Appeals Office ordered the ALJ to make a finding regarding the willfulness of claimant’s failure to disclose the witness’ potential testimony.   In the proceedings on remand, Respondents subpoenaed claimant’s counsel, Sheila Toberg, to testify regarding her failure to disclose claimant’s experts.  Ms. Toberg retained outside counsel who then filed a Motion to Quash the subpoena relying on Williams v. District Court, which adopts a three-part test for subpoenaing opposing counsel.  ALJ Friend adopted Holly Barrett’s argument and denied the motion to quash, holding the matter was procedural in nature and did not go to the merits of claimant’s claim.  Sheila Toberg will be required to testify at hearing. M. Frances McCracken In the claim of Ruben M. Leza v. Wal Mart Stores, Inc. and American Home Assurance, the claimant alleged an injury to his low back occurring sometime in August 2006.  He filed a worker’s claim for compensation in December 2007 after being terminated from his employment for cause and losing an unemployment claim.  Administrative Law Judge Donald Walsh denied and dismissed the claimant’s claim for benefits. In Emily Maestas v. Wal Mart Stores, Inc. and American Home Assurance, the claimant filed an Application for Hearing endorsing the issues of “propriety of DIME panel selection and physician specialties, contrary to Claimant’s DIME rights as expressed in AFL-CIO v. Donlan and Whiteside v. Smith, contrary to claimant’s true treatment and diagnostic needs and extent of her occupational impairments.” Administrative Law Judge Ted Krumreich granted Respondents’ Motion to Strike the claimant’s Application, awarded Respondents attorney fees incurred in connection with the Application for Hearing, and ordered that no further hearings be set in the claim upon any Application for Hearing that endorses the same or similar issues as in Claimant’s previous applications unless accompanied by a Notice of Completion of IME proceeding from the DIME Unit.

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: Real questions...

Text Box: Voluntary Reopening on One Issue ≠ Reopening on All Issues By M. Frances McCracken

Text Box: ...sent in to the country’s favorite advice columnist…   1.     Dear Abby: What can I do about all the Sex, Nudity and Foul language on my VCR?   2.     Dear Abby: I have a man I can’t trust.  He cheats so much, I’m not even sure the baby I’m carrying is his.   3.     Dear Abby: I am a 23 year old liberated woman who has been on the pill for two years.  It’s getting expensive and I think my boyfriend should share the cost, but I don’t know him well enough to discuss finances.   4.     Dear Abby: You told some woman whose husband lost all interest in sex to send him to a doctor.  Well, my husband lost all interest in sex and he IS a doctor.  Now what do I do?   5.     Dear Abby: I suspect that my husband has been fooling around. When confronted with the evidence, he denied everything and said it would never happen again.   6.     Dear Abby: I joined the Navy to see the world.  I’ve seen it.  Now how do I get out?   7.     Dear Abby: I was married to Bill for three months.  I didn’t know he drank until one night he came home sober.   REMEMBER, THESE PEOPLE CAN VOTE… AND DRIVE CARS!

Text Box:   Text Box: VICTORIES IN THE TRENCHES

 

Text Box: Proposed Rules Regarding Apportionment

Text Box: Proposed Rules 5-5(J) and 12-3, W.C.R.P., both of which address the changes to apportionment are now posted on the Division of Workers’ Compensation’s website.  The changes to the apportionment statutes take effect July 1, 2008. Rule 5-5. W.C.R.P. deals with admissions of liability and emphasizes the new statutory language prohibiting a carrier from reducing a claimant’s temporary total, temporary partial, or medical benefits because of a prior injury, whether work-related or non-work-related.  The rule also requires that a copy of the previous award or other documentation supporting the apportionment be attached to the admission if permanent benefits are reduced based on a prior injury. Rule 12-3 provides guidance for physicians performing impairment ratings pursuant to Colorado’s Workers’ Compensation Act.  The Rule recognizes the apportionment standards differ based on the date of injury.  For injuries occurring prior to July 1, 2008, the physician shall apportion any pre-existing medical impairment, whether work-related or not, from a work-related injury or occupational disease using the AMA Guides, 3d Ed. where medical records or other objective evidence substantiates a pre-existing impairment to the same body part.  If there is insufficient evidence to measure the change accurately, the physician shall not apportion.  For claims with a date of injury on and after July 1, 2008, the physician may provide an opinion on apportionment for any pre-existing work-related or non-work-related permanent impairment to the same body part using the AMA Guides, 3d Ed., where medical records or other objective evidence substantiate a preexisting impairment.  The physician shall explain in their report the basis for the apportionment. If there is insufficient information to measure the change accurately, the physician shall not apportion.  The physician may be asked to provide an opinion as to whether the previous medical impairment was identified, treated, and independently disabling at the time of the work-related injury that is being rated. Public hearings regarding these proposed rules will be held at 9:00 a.m., August 1, 2008 at 2nd Floor, 633 Seventeenth Street, Denver, Colorado.

Text Box: The Supreme Court has not yet issued a decision in Avalanche Industries v. Industrial Claim Appeals Office, 166 P.3d 147 (Colo.App. 2007), in which the Court of Appeals affirmed the decision of the Industrial Claim Appeals Office holding the claimant is entitled to a higher average weekly wage based on a salary earned five years after she had left employer's employ, and including the cost of health insurance benefits under COBRA offered by her most recent employer.  Certiorari was granted in the claim on August 27, 2007.  The court’s decision is expected soon. The claimant’s Petition for Rehearing in Gilmore v. Industrial Claim Appeals Office, decided May 15, 2008, and argued before the Court of Appeals by Rich Bovarnick, was denied.  The claimant is expected to file a petition for writ of certiorari.  In Gilmore, the claimant contends the employer’s failure to offer him modified employment barred the ALJ from denying him continuing TTD benefits.  The Court of Appeals disagreed, affirming the ALJ and Industrial Claims Appeals Office’s holding that Colorado’s Workers’ Compensation Act prohibits a claimant from receiving TTD benefits if the claimant is responsible for the termination of the employment relationship.

Text Box: APPELLATE COURT UPDATE

Text Box: CMB Welcomes Curtis Fleming Clifton, Mueller & Bovarnick is pleased to announce Curtis Fleming has joined the firm as an associate attorney.  Curtis is a 1997 graduate of Pepperdine University School of Law.  Curtis is a former Mesa County Deputy District Attorney and staff attorney with the Mesa County Attorney’s office.  His professional experience also includes work with the medical malpractice defense firm of Kennedy, Christopher, Childs & Fogg.  Before law school, Curtis spent four years playing professional golf on the mini tours.  Curtis will practice out of the firm’s Grand Junction office.  Welcome Curtis!

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ICAO Update

Appellate Court Update

Practice Pointer

Victories in the Trenches

Meet Curtis Fleming

Proposed Rules Regarding Apportionment

Ipsi Dixit