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: May

Text Box: SM Text Box: SUPREME COURT IGNORES WEBSTER AND REDEFINES TERM “SUSPEND”

Text Box: In Sigala v. Atencio’s Market, Royal Sun Alliance, and Industrial Claim Appeals Office, 07 SC 73 (May 12, 2008), the Colorado Supreme Court granted certiorari on the issue of whether the Court of Appeals erred in interpreting the word “suspend” as used in C.R.S. § 8-42-105(2)(c).  This section  states, in part,  “If the employee fails to appear at a rescheduled appointment, the insurer or . . . employer may, without a prior hearing, suspend payment of the temporary disability benefits to the employee until the employee appears at a subsequent rescheduled appointment . . . .”  The facts of the Sigala case are familiar.  The claimant was injured in an admitted accident and was receiving temporary total disability benefits because of the accident.  The claimant missed a March 15, 2004 appointment with her authorized treating physician (ATP).  Pursuant to statute, Respondents sent the claimant a letter notifying her of a rescheduled appointment.  The letter also advised the claimant if she failed to attend the rescheduled appointment, her benefits could be suspended.  The claimant did not attend the rescheduled appointment.  The

Text Box: Respondents suspended the claimant’s benefits until June 1, 2004, when the claimant finally attended a rescheduled appointment with the ATP.  Respondents promptly reinstated benefits.  The claimant then requested Respondents pay the benefits withheld during the period she refused to attend appointments with the ATP.  At hearing, the ALJ concluded the term “suspend” as used in the statute does not contemplate retroactive payment of suspended benefits, but results in a permanent loss of the benefits during suspension.   ICAO agreed.  The court of appeals also affirmed, reasoning the statute was enacted “with a view to establishing a more rigorous sanction” for claimant’s refusal to attend medical appointments.  The Supreme Court, however, disagreed.  Reading various unrelated sections of the Act together, the Supreme rejected Webster’s definition of the term “suspend” as “[t]o interrupt; to cause to cease for a time; . . . to discontinue temporarily, but with an expectation or purpose of resumption.”  Instead, the Supreme Court held that the term “suspend” means only a temporary withholding of benefits, which continue to accrue and must be paid when

Text Box: the “disqualifying condition is removed.”  The Supreme Court indicated that if Respondents believe a claimant is imperiling her  recovery by refusing to submit to medical treatment, their remedy is under the penalties and enforcement provisions of the Act. Through its decision, the Supreme Court has effectively eviscerated C.R.S. § 8-42-105(2)(c).  As noted by the dissent, the decision also eliminates the director’s “discretion” to discontinue benefits to an employee who has imperiled his or her recovery, even though the statutory language allows such action to be taken. Taking direction from the Supreme Court, rather than simply “suspending” claimant’s benefits after two missed medical appointments, only to have the benefits continue to accrue, potentially with interest, until the claimant decides to return to the ATP, we recommend immediately filing a Motion to Compel claimant’s attendance at a rescheduled medical appointment, thereby subjecting the claimant to the penalties and enforcement provisions of the Act.

Text Box: When Governor Ritter signed Senate Bill 258 into law last May, effective May 30, 2007, one of the subtle changes was to section 8-42-107(8)(d) in which the legislature added scheduled injuries to those awards for which the first $10,000.00 could be requested to be paid in a lump sum.  The question has been raised, “Does this amendment apply retroactively to all causes of action or only prospectively to cases where the injury occurs/occupational disease has a date of onset of disability on or after May 30, 2007?”  The Industrial Claim Appeals Office has provided an answer in the case of Nelson vs. Specialty Restaurant Corp., W.C. No.: 3-987-235. In reaching its decision, ICAO analyzed prior case law on the subject of application of legislative changes to existing cases.  ICAO acknowledged the well-founded and long-standing rules of statutory construction, which indicate a statute is presumed to be prospective in operation and retroactive applications are not to be given unless a contrary result was clearly manifested by the legislature. ICAO then went on to analyze the legislative intent behind Senate Bill 258.  ICAO documented that Senate Bill 258 did not contain any express legislative statement concerning the date of applicability and the amendment was made without any express regard to date of injury.  Therefore, ICAO correctly concluded the changes set forth in Senate Bill 258 apply prospectively, not retroactively. Given ICAO's interpretation and a plain reading of the amendment, if a claimant or their counsel asks you to pay the first $10,000.00 of a scheduled injury where the date of injury is on or before May 29, 2007, you do not have to agree.  Of course, you are always free to make the payment, thereby avoiding or reducing the obligation to issue ongoing bi-weekly benefit checks.

Text Box: VICTORIES IN THE TRENCHES Text Box: Richard A. Bovarnick In the case of Randy L. Gilmore v. Industrial Claim Appeals Office, SOS Staffing Services, and the Insurance Co. of the State of Pennsylvania, the Court of Appeals agreed with Respondents that the claimant was terminated for cause and thus not entitled to temporary total disability benefits.  In so holding, the Court rejected claimant’s argument that employer’s failure to offer him modified employment barred the ALJ from denying him continuing TTD.  The court agreed with Respondents that, once the claimant was released to return to work, had he not violated the employer’s “zero tolerance” drug policy, he would have been offered modified work by the employer. In Dolph v. ABF Freight, Inc. and Self-Insured, Administrative Law Judge Broniak agreed with Rich Bovarnick that the claimant’s hospitalizations were due to non-work-related, pre-existing alcoholism, which was not aggravated, accelerated, or exacerbated by his entire pelvis being crushed between two forklifts.  ALJ Broniak specifically found the medical opinions and testimony of Respondents’ expert, Dr. Henry Roth, more credible and persuasive than the medical opinions and testimony of the Claimant’s authorized treating physicians and psychologists. Holly M. Barrett In the claim of Marcus Long v. Edward Kraemer & Sons, Inc. and Zurich Insurance Co., Administrative Law Judge Martin Stuber denied and dismissed claimant’s claim for benefits.  The ALJ found that the claimant’s description of the accident was incredible because it was inconsistent with significant portions of the evidence.  The ALJ further found the testimony of Respondents’ witnesses was consistent with the witness statements and employer evidence generated shortly after the alleged injury. M. Frances McCracken In Billy T. Sanchez v. Wal Mart Stores, Inc. and American Home Assurance, Administrative Law Judge Martin Stuber found Respondents overcame the opinions of the Division Examiner, Dr. John Bissell by clear and convincing evidence.  Dr. Bissell had awarded the claimant 29 percent whole person permanent physical impairment and three percent psychiatric impairment for a combined rating of 31 percent whole person , as a result of the workplace injury.  The ALJ found the only permanent impairment the claimant suffered as a result of the accident was three percent psychological impairment.

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: pteromer-hanophobia. . .

Text Box:   A United Flight Attendant announced, “People, people, we’re not picking furniture here.  Find a seat and get in it.”   There may be 50 ways to leave your lover, but there are only four ways out of this airplane.   After a particularly rough landing during thunderstorms in Memphis, a flight attendant on a Northwest flight announced, “Please take care when opening the overhead bins, because sure as hell everything has shifted after a landing like that.”   Another flight attendant’s comment on a less than perfect landing, “We ask you to remain seated while Captain Kangaroo bounces us to the terminal.”   Your seat cushions can be used for flotation.  In the event of an emergency water landing, please paddle to the shore and take them, with our compliments.   Heard on a Southwest Airline Flight, “Ladies and Gentlemen, if you wish to smoke, the smoking section on this aircraft is on the wing.  If you can light ‘em, you can smoke ‘em.”   Part of a flight attendant’s arrival announcement, “We’d like to thank you for flying with us today.  The next time you get the insane urge to go blasting through the sky in a pressurized metal tube, we hope you will think of U.S. Airways.”  

Text Box: ICAO Chips Away At Anderson v. Longmont Toyota

Text Box: In the recent claim of Donnie D. Clevenger v. El Paso Glass Company, Inc. and Pinnacol Assurance, W.C. No. 4-712-079 (April 29, 2008), the Industrial Claim Appeals Office affirmed an Order of Administrative Law Judge Martin Stuber awarding the claimant temporary partial disability benefits.  In Clevenger, the claimant suffered an admitted industrial injury.  The insurer paid TTD.  When the claimant returned to modified duty for the employer, the insurer admitted for TPD benefits.  On August 20, 2007, the claimant terminated his employment stating his modified duties were “menial” and “not worth his time.”  On August 21, 2007, the claimant filed an Application for Hearing on the issue of TTD.  The Respondents filed a Petition to Terminate TPD benefits, due to the claimant’s voluntary termination of his modified employment.  The claimant did not respond to the Petition.  It was approved by the Director.  The claimant was responsible for the termination of his employment.  Therefore, the ALJ denied the claimant’s request for TTD benefits.  However, the ALJ found the claimant’s continuing temporary partial wage loss did not result from his termination.  Instead, the ALJ found the claimant’s TPD resulted from the claimant’s industrial injury and resulting restrictions.  The ALJ concluded the Respondents had not demonstrated a permissible basis to terminate TPD and denied the Respondents’ Petition to Terminate TPD despite its prior approval by the Director.  Relying on the principles set forth in Anderson v. Longmont Toyota, specifically arguing that except in the limited circumstances of a worsened condition, the termination statutes bar any wage loss, which follows a termination for which the claimant is responsible, the Respondents appealed.  ICAO rejected Respondents’ argument and affirmed the ALJ’s award of benefits.  In reaching its decision, the Panel cited to its recent Order in Garbiso v. Wal Mart Stores, Inc., W.C. No. 4-695-612 (March 10, 2008), that a partial wage loss can be attributable to the compensable injury even though the claimant was responsible for the termination of subsequent employment and there was no worsening of condition.  The Panel reasoned that if a claimant is responsible for termination of employment, but that employment is modified employment at reduced wage, the “resulting wage loss” is measured by the AWW at the time of the termination.  Thus, to the extent the claimant’s AWW at the time of termination is less than the AWW at the time of injury, the difference remains attributable to the disability caused by the injury and does not “result” from the claimant’s action in causing the termination.  ICAO’s reasoning and holding in Clevenger amounts to an end-run around both the termination statutes and the Supreme Court’s holding in the Anderson case.  It was determined the claimant was responsible for the termination of his employment.  He had suffered no worsening of condition.  Yet, ICAO affirmed the Order finding the wage loss did not result from claimant’s action in causing the termination.  Claimants are now apparently free to accept a part-time modified position, quit that position for any reason or no reason, and under ICAO’s reasoning remain entitled to TPD.  The Clevenger case is being appealed to the Colorado Court of Appeals.

Text Box: LEGISLATIVE UPDATE

Text Box: After an uneventful session, the Legislature managed to pass one bill affecting Colorado’s Workers’ Compensation Act.  If signed by the governor, the changes to the Act will take effect July 1, 2008 and will apply to injuries occurring on and after that date.  Senate Bill 241 amends C.R.S. §§ 8-42-101 and 8-42-104.  In all cases where an industrial injury results in loss of a member or part of the employee’s body, loss of teeth, vision or hearing, § 8-42-101(1)(b) requires the employer to furnish artificial members, hearing aids, glasses, prosthetic devices, etc. which are reasonably required to replace or improve the function of each member injured in the accident.  The employee may petition the division for replacement of an artificial member, glasses, hearing aid, etc., upon grounds that the employee has undergone an anatomical change since the previous device was provided or for other good cause shown.  Under the old statutory language, the employer was required to provide only one artificial member, hearing aid, etc.  Moreover, good cause was not a basis for petitioning for replacement of an artificial member or other medical device. The SB 241 amendments also correct the error contained in § 8-42-101(3)(a)(1), which provided the director shall establish a fee schedule and precluded any provider, including expert witnesses, from charging a patient a fee in excess of the fee schedule, whether related to treatment or not.  The amended § 8-42-101(3)(a)(1) prohibits a provider from charging any party a fee in excess of the applicable fee schedule unless such charges are approved by the director.  Thus, under the amended statute, both Respondents and claimants are bound by the fee schedule in retaining IMEs.  The change may reduce the pool of physicians willing to perform IMEs on behalf of Respondents. Finally, SB 241 amends the apportionment statute, C.R.S. § 8-42-104(2), completely eliminating that section and adding sections 8-42-104(3) through (6).  The amendments to the Act do not affect apportionment significantly.  Legislating over Duncan v. Industrial Commission, the new law makes it clear that an employee’s TTD, TPD and medical benefits are not subject to apportionment.  Regarding apportionment in PTD claims, the legislature indicates it is not applicable when the permanent total disability is the result of the industrial injury and a pre-existing genetic, congenital, or similar condition.  However, the reductions of recovery as discussed by the Supreme Court in Anderson v. Brinkhoff continue to apply.  Otherwise, the same general rules regarding apportionment also continue to apply.  If the employee has more than one permanent medical impairment to the same body part and has received an award of settlement under the Colorado’s Worker’s Compensation Act, or a similar act, the prior rating shall be deducted from the current medical impairment rating.  Similarly, if the employee has a non-work-related impairment to the same body part that is independently disabling at the time of the industrial injury, that rating shall be deducted from the prior rating.

Text Box: OSHA’S Top Ten Causes of Workplace Injuries OSHA annually reports the leading causes of workplace injuries.  This year, the “Top 10 List” will look familiar:  1) scaffolding; 2) fall protection; 3) hazard communication; 4) lockout/tagout; 5) respiratory protection; 6) powered industrial trucks; 7) electrical; 8) ladders; machine guarding; and 10) electrical systems design.  The top spots have remained relatively unchanged for the past 3 years.  The stability is good news for risk managers and safety directors.  It provides a compass as to where to focus safety efforts to protect both employees and the bottom line.

Text Box:     Lump Sums for Scheduled Injuries; To Pay or Not To Pay By Richard A. Bovarnick