You Won’t Believe the Unusual Injuries Covered by Workers’ Comp

You Won’t Believe the Unusual Injuries Covered by Workers’ Comp

Denver Disability Denver Workers Compensation

Workers Compensation is an important employee benefit and right. It’s designed to pay for treatment associated with injuries and illnesses that occur as you perform duties associated with your job. However, it can cover eight unusual injuries you may have never considered before now.

Company Events

At the company picnic, you trip while playing volleyball and sprain your ankle. Your injuries could be covered by Workers Comp. File a claim if you’re injured or become ill during a company-sponsored picnic or party, business meeting held off-site, corporate ballgame or any special event you attend because of work.

Lunch Breaks

You walk into the lunch room for your break, slip on the wet floor and break your elbow. Your injuries could be covered by Workers Comp. You could also consider filing a claim if you’re injured while picking up lunch at the corner deli for your boss since technically you are working, but your injuries won’t be covered if you are injured while grabbing lunch for yourself or a co-worker.

Travel

You’re rear-ended while driving to work and suffer whiplash. If you’re in your personal car, you can’t file a Workers Comp claim, but if that same accident happens while you drive a company car, you could be eligible for Workers Comp. It can also cover injuries that occur as you travel to business meetings, to meet clients or while visiting potential and current customers.

Diseases and Illnesses

Your company decides to remodel the offices, and you work on the same floor as the repairs. Because of the asbestos in the old ceiling tiles, you develop black lung disease. File a Workers Comp claim for this and other diseases or illnesses that occur because of your work.

Hearing Loss

After working in a noisy environment for a few year, you notice that you can’t hear as well as you used to. File a Worker Comp claim, talk to your Denver disability attorney and receive compensation for your impairment if you can prove that the hearing loss happened while you were on the job.

Mental Health Conditions

Your boss micromanages every project and places so much pressure on you that you can’t even go to work. Consider filing a Workers Comp claim if you become chronically stressed, depressed or traumatized on the job. Be prepared to prove that your condition is caused 100 percent by your work, and ask a medical professional to help you prove your case.

Pre-existing Conditions

The ruptured disc in your back was repaired years ago and hasn’t bothered you until you started performing repetitive lifting tasks for your job. Now, you may be able to file a Workers Comp claim because your job aggravated your preexisting condition.

Misconduct

While showing off your muscles for a cute co-worker, you lift a chair and promptly drop it on your foot. Your injury could be covered by Workers Comp since it can cover injuries even if they occur as you break a company safety rule or perform a criminal act. Before you decide to embrace misconduct, though, remember that it does not usually cover self-inflicted injures and you give up your right to sue your employer if you file a Workers Comp claim.

These eight areas are unusual but could fall under Workers Comp. As with any Workers Compensation claim, you must prove that the illness or injury was caused by your job and is work-related. Contact your Denver workers compensation attorney today to learn more. We’re here to help you figure out if you can file a claim, and we’ll work with you to get you the benefits you deserve.

Physician Assistants Can Declare MMI

Physician Assistants Can Declare MMI

Denver Workers Compensation Workers Compensation Blog

The Statute and case law permits a physician to delegate to a PA the determination of MMI.

Susan Griego injured her wrist at work on June 6, 2016, when a trash dumpster lid closed on her hand. After being provided a list of designated medical providers, the claimant elected to treat at the CCOM clinic. The claimant never saw a physician but was examined and treated by Physician’s Assistant (PA) Byrne. PA Byrne placed her at maximum medical improvement (MMI) on August 8, 2016 with no permanent impairment. The form was co-signed by Dr. Daniel Olson, M.D. The respondents filed a Final Admission of Liability on January 6, 2017 based upon the PA’s report.

Ms. Griego filed an application for a hearing disputing the legitimacy of the Final Admission.  The ALJ upheld the legitimacy of the Final Admission relying on W.C. Rules of Procedure 16-5(A)(6) and 16-7(F)(1), 7 CCR 1101-3, which allow authorized treating physicians to countersign WC 164 forms completed by a PA. The ALJ also referenced § 12-36-106(5) C.R.S. and the decision in Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990) as authority allowing a physician to delegate to a PA the determination of MMI.

Workers’ Compensation, MMI and other work injury issues can be difficult and confusing to understand. Our Workers’ Compensation Attorneys can help you navigate your Workers’ Compensation Claim. Get a free review of your Denver Workers Compensation case today.

 

Loofburrow & Compensability When Injury Did Not Result In Lost Time Or Impairment

Loofburrow & Compensability When Injury Did Not Result In Lost Time Or Impairment

Denver Workers Compensation

ICAP rejects the argument that an injured worker does not suffer a compensable work injury if the injury does not result in initial lost time or permanent impairment.

Bradley Fincham worked as a truck driver for Home Depot. On April 14, 2014, the Fincham was unloading a “double door” refrigerator from the truck with a co-worker. As he was lowering the refrigerator, both the refrigerator and the dolly pulled, causing Fincham to land on top of the refrigerator.

Four months later Fincham requested medical treatment for his right shoulder and was sent to Concentra. Dr. Bird, diagnosed him with shoulder impingement, provided physical therapy, but did not provide any work restrictions.  She later placed Fincham at maximum medical improvement with no permanent impairment and opined that the claimant did not need any maintenance medical care or permanent work restrictions.

Fincham continued to work full duty without documented pain complaints during the next year-and-a-half until May 5, 2016, when he returned to Dr. Bird complaining of two out of ten right shoulder pain.

Eventually Fincham filed a claim for workers’ compensation.  Home Depot and the carrier denied the claim and the parties proceeded to hearing.  The ALJ determined that Fincham had suffered a compensable work related injury to his right shoulder.

On appeal, the respondents argued that the ALJ erred in “implicitly” concluding that the claimant proved a compensable injury. Relying on the holding in Harman Bergstedt, Inc. v. Loofbourrow, 320 P.3d 327 (Colo. 2014), the respondents argued that the claimant’s injury did not result in sufficient disability to constitute a compensable injury.

The ICAO denied the appeal without prejudice because the ALJ did not award any benefits due to the April 2014 injury.  However the ICAO rejected Respondent’s Loofburrow argument in a footnote, “The Respondents attribute consequences to the word ‘compensable’ which are not intended by the Workers’ Compensation Act (Act) or by various judicial uses of the term. As the Loofbourrow opinion explains, the Court in that decision is using the word to refer a claim for which indemnity benefits are payable. However, in different contexts the Act applies the word ‘compensable’ to simply mean an injury that arises out of the and in the course of the employment, even if the injury requires no more than the payment of medical benefits. See  § 8-42-101(6)(a) and (b) or § 8-43-404(9), C.R.S.”

Workers’ Compensation in Colorado can be difficult and confusing. If you need help with a Denver area workers’ compensation case, let our experienced attorneys review your case and help you get the benefits you’re entitled to by law. Get help from our Denver Workers’ Compensation Attorneys, our Greeley Workers’ Compensation Office or Call Us Toll Free at (866) 356-9898 for more information and a free review of your case.

 

 

BRADLEY FINCHAM v. HOME DEPOT, W.C. NO. 5-020-103-01 (11/9/2017)

The Importance of Securing a Comprehensive Workers’ Compensation Settlement

The Importance of Securing a Comprehensive Workers’ Compensation Settlement

Denver Workers Compensation Greeley Workers Compensation Lawyer

If you are eligible for workers’ compensation benefits due to a work injury, the payments and medical care you receive are typically finite. Once your treating physician okays your ability to return to work, your benefits end. This is the situation in temporary disability cases. But what if you suffer a permanent disability?

Maximum Medical Improvement

At some stage during your care, you will reach a point where your recovery is at an endpoint. This means that you are not likely to continue improving, even if you are not back to your pre-injury state. If your injury was severe, it’s possible that you may not be physically able to return to the workforce. When this is the case, you may continue receiving weekly benefits through worker’s compensation or request a lump sum, subject to a 4% per annum reduction. Some permanently injured workers may want to consider a settlement that covers future financial and medical needs.

Normally, in a settlement arrangement, the employer and insurer pay a certain sum of money to the injured worker to settle all past, present and future financial obligations. In return for these settlement funds, the employee gives up any and all future demands and claims against them. Therefore, a workers’ compensation settlement must be very carefully negotiated to ensure that that all your current and future needs will continue to be met.

When you sign a settlement agreement, you give up the following rights under the workers’ compensation benefits system:

Temporary disability benefits
Permanent disability benefits
Permanent total disability benefits
Future medical treatment
Disfigurement compensation
Penalty fees against the insurance company and/or your employer
The right to reopen your case
The right to make any claims for additional benefits for unknown injuries
Your attorney should be able to negotiate these expenses, claims, and potentialities into your settlement agreement, because you only get one shot at this. Barring very minute exceptions, once you sign your settlement agreement, you are stuck with the consequences.

Reopening Your Settlement

In Colorado, when you enter into a settlement agreement, you give up the right to reopen your workers’ compensation case due to a mistake or if your condition worsens. It may be possible to reopen the settlement agreement, but only if you can prove fraud or that a mutual mistake of material fact occurred.

Mutual Mistake of Material Fact

This is a high bar to meet. The mistake must be one made by both sides of the agreement, and it must be an error that has essential bearing on your case. Higher unanticipated bills or additional medical treatment requirements do not constitute a mutual mistake of material fact. Discovering a new medical problem may not qualify either, even if you discover that this previously unknown medical issue was the result of your settled work injury. Fortunately for Victor England, this wasn’t the case.

England v. Amerigas Propane

This case is an example of the stringent requirement for reopening a workers’ compensation settlement agreement. The Colorado Supreme Court decided the case on September 30, 2017. Truck driver England was injured in 2012, and he entered into a settlement agreement governed by the Colorado Worker’s Compensation Act. In 2013, England’s doctor discovered a previously undiagnosed stress fracture to his scapula. The settlement form used included a paragraph prohibiting a reopening of the settlement unless there was fraud or mutual mistake of material fact. England petitioned the ALJ to reopen his settlement and won, but the employer appealed, and the Court of Appeals ruled against the employee. England appealed to the Colorado Supreme Court, which finally agreed that this issue demonstrated a mutual mistake of material fact. His case was reversed and remanded.

Turn to an experienced and knowledgeable Colorado workers’ compensation lawyer to help you determine the best approach when you have been seriously injured at work. If a settlement agreement is your best option, your attorney can skillfully negotiate terms that will ensure your continued care and financial stability in the wake of your injury. Get a free review of your workers’ compensation case with our expert Denver area workers’ compensation attorneys now.

Workers’ Compensation Fraud: 4 Stories of Those Who Were Caught

Workers’ Compensation Fraud: 4 Stories of Those Who Were Caught

Denver Workers Compensation

Workers’ compensation fraud is a problem, due to propaganda, most think the fraud is perpetuated by the workers; however, employers also commit fraud by intentionally misclassify employees to widespread insurance schemes. These schemes cost the system money and detrimentally impact injured workers who rightfully deserve workers’ comp benefits.

Fortunately, most big money scams are eventually uncovered. Here are some stories of workers’ comp fraud over the years that made headlines when the perpetrators were caught.

Massive Medical Insurance Scam

An alleged California medical insurance scam racked up nearly $100,000 in false workers’ compensation medical claims. The fraudulent money-making scheme involved seven people, and was apparently spearheaded by a chiropractor. Several clinics treated injured workers and submitted inflated bills for exaggerated injuries and more. The businesses brought in more than $12 million in payments with their scam. Penalties for the charges they face can include up to 97 years in prison.  

 

FedEx Delivered Fraud in Multiple States

Well-known package-delivery company FedEx found themselves in hot water last year to the tune of $240 million! This proposed settlement was the result of a common scheme some employers use to avoid paying workers’ compensation and other employee-related costs and benefits. It involved fraudulently classifying employee as independent contractors, and dates back to litigation that began in 2005. The settlement was approved for $227,000 earlier this year. About 12,000 drivers in 19 states will receive payments of various amounts from the total.

 

Fake and Fraudulent Florida Construction Company

 

In this recent case, Leon Jimenez, the owner of a construction company, ran a widescale workers’ compensation scam. The company didn’t even perform any construction work. Instead, Jimenez was selling workers’ compensation certificates to subcontractors for profit. The subcontractors got their bogus certificates and the employees were left exposed to the risk of uncovered work injuries. Jimenez was arrested for workers’ compensation fraud, false documentation, grand theft, and various other charges that may carry up to 30 years in prison.

 

If you’ve been injured on the job and you believe that your employer or his insurer is behaving unfairly or illegally, contact an experienced workers’ compensation attorney like Kaplan Morrell to protect your rights.

SOURCES

 

https://www.thebalance.com/workers-compensation-fraud-examples-4101604

http://www.reuters.com/article/us-fedex-settlement-idUSKCN0Z229Q

http://www.theindianalawyer.com/judge-approves-227m-in-fedex-driver-suit-settlements/PARAMS/article/43610

http://www.businessinsurance.com/article/20170602/NEWS08/912313724/Construction-firm-owner-arrested-workers-comp-fraud-Chuy-Construction-Florida

http://www.desertsun.com/story/news/crime_courts/2016/06/06/seven-riverside-county-charged-98m-medical-fraud/85368290/

How Trump May Affect Workers’ Compensation In Colorado

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The new Trump administration has ushered in some changes that many Americans weren’t quite prepared for, and much of the impact is not yet fully known. After all, he’s only been in office for a little over four months, and many changes are yet to come. With respect to workers’ compensation (work comp) benefits, the potential effect has not been fully realized. However, it appears that the greatest potential impact will come from the repeal of the Affordable Care Act (ACA) and budget cuts.

Healthcare Reform

In Colorado and many other states, the ACA, more popularly called Obamacare, has generated a favorable trend in work comp claims. Claim rates and costs have been dropping, and this movement is very likely due to increased worker access to healthcare. In its 2016 report, the Upjohn Institute for Employment Research identified a strong correlation between the decreased work comp claims and costs and the uptick in health insurance coverage.

Joe Paduda of Health Strategy Associates delves even deeper into the link between Obamacare and work comp claims. He alleges that workers who are hurt on the job have less reason to pursue care through their employer’s work comp insurance if they have their own health insurance.

Further, other health issues that may impact their work injury can be covered by the worker’s insurance, rather than work comp. For example, an employee with high blood pressure would need additional treatment for his hypertension before he could undergo a necessary work-related surgical procedure. However, when the worker has health insurance, his coverage would bear the additional cost, rather than work comp.

The proposed repeal and replacement efforts of Trump and the Republican-led House has thrown millions into uncertainty with respect to healthcare coverage. The most recent version of the new TrumpCare coverage, the AHCA, has the potential to take away health insurance from 14 million Americans by next year, according to the Congressional Budget Office (CBO) estimates. And the number of insured is expected to continue increasing over the next 9 years.

These dire projections could spell big trouble for work comp. Uninsured workers would likely once again turn to work comp for as much medical coverage as possible. These changes would also disproportionally affect older employees, workers in higher risk jobs and many who currently receive coverage through Medicaid. These issues will equate to increased claims and higher costs.

Budget Cuts and Safety Issues

Trump has also proposed budget cuts and safety reform rollbacks that will have adverse effects on the work comp system. While the Obama administration was moving towards establishing minimum workers’ compensation benefit standards on the state level, the Trump administration has expressed no interest in pursuing these reforms.

Repeal of an Obama-era OSHA safety regulation could have a detrimental impact on injured workers, as well. The “Volks” rule requires dangerous industry employers to keep health and safety incident records for five-and-a-half years. But Congress changed that to just six months, and Trump signed off. This minimum record-keeping requirement may prevent identification of frequent and repeated safety issues with many companies, and make it much more difficult for their employees to obtain work comp benefits when injured.

If a disabled worker is receiving both Social Security Disability Insurance (SSDI) and work comp benefits, the total may not exceed 80 percent of the average earnings that the worker was receiving before he became disabled. It they do, the SSDI benefits are reduced to offset the overage. In 15 states, this works in the reverse. Instead, it is the work comp benefits that are offset. On May 23, Trump released information on his most recent budget plan with proposed cuts. The Workers’ Compensation Reverse Offset faces elimination in 15 states, of which Colorado is one. With this change, work comp will need to make up the shortfall that the government has been covering via SSDI, hence, raising costs.

Overall, it appears that the Trump administration will be bad news for work comp in Colorado, and throughout the nation. And that’s only addressing what we know so far. If you have questions about these pending changes, or other workers’ compensation issues, please contact us for answers.

 

 

Sources

Kalin: Obamacare has had an impact on workers’ compensation claims in Colorado

AHCA, CBO, and Workers’ Comp

Four Ways the New Administration Will Influence Workers’ Comp

http://www.safetyandhealthmagazine.com/articles/15517-trump-signs-resolution-to-strike-down-volks-recordkeeping-rule

https://www.bostonglobe.com/news/politics/2017/05/23/here-list-agencies-and-programs-trump-budget-would-defund-entirely/DMRzbdY4lwB0XEGA13Y6PP/story.html

How Does House Bill 1119 Stack Up For Workers’ Compensation In Colorado?

How Does House Bill 1119 Stack Up For Workers’ Compensation In Colorado?

Denver Workers Compensation Greeley Workers Compensation Lawyer Workers Compensation Blog

The Colorado General Assembly has proposed new legislation that would address the issue of worker injuries when their employers have no workers’ compensation insurance. If passed, the proposed law packaged in House Bill 1119 will create the Colorado Uninsured Employer Act.

Colorado’s HB 1119 Overview

This legislation is a show of bipartisanship with support from Democrat Senator Cheri Jahn and Democrat Representative Tracy Kraft-Tharp and Republican Senator Jack Tate and Republican Representative Lang Sias. The Act would create a fund from which eligible injured workers can draw benefits. Employer penalties and fines imposed by the Division of Workers’ Compensation for no insurance coverage will help fund the account. Other financial sources may include grants, donations, and public and private gifts.

The bill also directs the establishment of a governing board to cover a range of duties for the uninsured employer fund. Some of these responsibilities include the setting of criteria for rates, claims adjustments, rules adoption and benefit payments. The Board must establish a plan of operation for fund administration duties and money collection procedures for the fund.

The Plight of the Injured Worker and No Workers’ Compensation Coverage

As a worker, when you are considering employment, you may look at several different factors. While stable work hours, healthcare benefits, paid leave, and retirement plans are frequently considered, whether your potential employer has workers’ compensation coverage rarely comes up.

Because it’s the law, most workers assume their employer has the necessary coverage. They only discover a lapse if they experience a work injury that leads to a Colorado workers’ comp claim. A seriously injured employee who is unable to receive benefits under workers’ comp due to their employer’s negligent insurance oversight is left in a precarious position.

Workers’ comp covers medical treatment for your injury or illness. It also pays a percentage of your wage loss if you are unable to work due to your injury. With no workers’ comp coverage, these and other benefits are no longer available.

Seriously injured workers find themselves struggling to receive desperately needed medical treatment and facing overwhelming unpaid bills due to their lost wages. In the event of a resulting disability, the injured worker is unable to receive the temporary or long-term disability benefits that would otherwise be available to him under the workers’ comp program.

Related: Passage of Amendment 69 Could be Bad News for Colorado Workers’ Compensation

One option in this situation is to sue your employer in civil court for the losses associated with your injury. A big problem with this method of reimbursement is the length of time it typically takes to recover damages in civil court. The process is lengthy, and your medical and financial needs are immediate. The biggest problem is that most employers don’t have the assets to pay the benefits due injured workers. Bankruptcy is declared – or the business stops functioning – and the injured worker is left with an order he or she cannot collect.

The proposed Colorado Uninsured Employer Act is a far more effective solution to the uninsured employer problem. Many other states already have these funds set up for these types of injured workers. Some have temporary disability insurance programs instead.

Uninsured Employers’ Workers’ Compensation Fund Examples

Several states, such as California, New Jersey, and New York, have some form of compensation funding for injured workers whose employers have no coverage. California has two funds, the Uninsured Employers Benefits Trust Fund (UEBTF) and the Subsequent Injuries Benefits Trust Fund (SIBTF).

New Jersey also operates two funds, the Uninsured Employer’s Fund and the Second Injury Fund. In New York, their Uninsured Employers Fund (UEF) assigns direct liability to the employer for compensation payments and medical costs.

HB 1119 was introduced on January 20, 2017 and is currently under consideration. Meanwhile, if you have suffered a work injury and subsequently learned that your employer has no workers’ compensation insurance, contact a seasoned Colorado Workers’ Compensation lawyer like Kaplan Morrell to explore your options.

Need help now? We’re here for you. Contact our Denver Workers’ Compensation Attorneys here, and if you’re out in the “burbs” you can reach our Greeley Workers’ Compensation Attorneys here.  We’re here to help- and we will fight to get you the benefits you are entitled to!

 

 

Social Security Recipients Second Amendment Rights preserved Having a Representative Payee No Longer Prevents You From Owning a Firearm

Social Security Recipients Second Amendment Rights preserved Having a Representative Payee No Longer Prevents You From Owning a Firearm

colorado gun laws Denver Disability Denver Workers Compensation gun laws Social Security Blog Workers Compensation Blog

In February 2017, the House of Representatives voted to “overturn an Obama administration rule” that required the Social Security Administration to “forward the names of all Social Security Disability Insurance . . . benefit recipients who use a representative payee . . . to the National Instant Criminal Background Check System . . ..

Reaction sadly was over-the-top and exaggerated as some gun safety advocates characterized the vote as the House permitting “severely mentally ill” people from getting guns and will make Americans less safe.

WHAT ACTUALLY HAPPENED

The Obama Administration required the Social Security Administration to send the records of Social Security Disability (SSDI) recipients who need a representative payee to the FBI for the National Instant Criminal Background Check System.  This meant these particular SSDI or SSI recipients were deprived of their right to purchase a firearm.

What’s a Representative Payee?

Individuals are required to have a representative payee for mental impairments when a beneficiary is “legally incompetent or mentally incapable of managing benefit payments.”  An injured and disabled worker who has difficulties remembering deadlines, properly doing math, or any other significant inability to spend their SSDI benefit properly may be required to have a representative payee even if his or her disability has nothing to do with a mental impairment.

Having a Representative Payee does not mean that your inability to mange finances is because a disabled worker is violent, or poses a risk to themselves or to others.

Because of the myriad of impairments that could require a representative payee, even the American Civil Liberties Union (“ACLU”) spoke out against the rule, saying “A disability should not constitute grounds for the automatic per se denial of any right or privilege, including gun ownership.”  Republican House Judiciary Chairman, Bob Goodlatte opposed the rule because “it paints all those who suffer from mental disorders with the same broad brush.”

Congress has now revoked that rule.

WHAT HAPPENS NOW?

Because of this vote, if you are awarded Social Security Disability benefits, SSDI or SSI, and have the need for a Representative Payee – the Social Security Administration will no longer automatically report you to the NICS.

Have Questions?

Navigating the Social Security Disability process is not always easy.  Circumstances are always changing, and we are happy to answer questions and help navigate the process.  Email – Tre Eyden, EDPNA, or call 970-356-9898.

What a Difference An “AND” Makes In Colorado Work Injuries

What a Difference An “AND” Makes In Colorado Work Injuries

Denver Disability Denver Workers Compensation Greeley Workers Compensation Lawyer

THE Industrial Claims Appeals Office (ICAO) HIGHLIGHTS A MAJOR LIMITATION ON MAINTENANCE MEDICAL CARE

Intersection between a law with a later statute creates a major distinction for injured workers’ medical care rights.

Lola Chism injured her left shoulder in July 2009 in an admitted work injury.  Following what was described as “considerable” physical therapy, and two surgical procedures her treating physician placed her at Maximum Medical Improvement(MMI) in January 2011.  The treating physician recommended, and the insurance carrier admitted for, future maintenance medical benefits.

Injured Colorado workers are entitled to medical benefits following an on-the-job injury “to cure and relieve effects of the injury.”  CRS §8-42-101(1)(a).  In 1988 the Colorado Supreme Court interpreted that law as requiring Colorado Workers Compensation Insurance carriers to pay for all medical care “to relieve the worker from the effects of the industrial injury” based upon the rationale that it “is an obvious fact of industrial life, however, that an injured worker can reach maximum medical improvement from an injury and yet require periodic medical care to prevent further deterioration in his or her physical condition.”  Grover v. Industrial Commission, 759 P.2d 705, 710 (Colo. 1988).

However the Colorado Legislature added a formal, statuotry definition of MMI as the “point when any physical impairment is stable and “no further treatment is reasonably expected to improve the condition.” That definition excluded from ‘further treatment’ any “future medical maintenance.”  CRS § 8-40-201 (11.5).

Ms. Chism continued to have ongoing physical therapy for her shoulder after MMI as maintenance care.  In December of 2015 the treating physician referred her to a surgeon who recommended a reverse total arthroplasty   The employer challenged the proposed treatment, however an ALJ ruled that the surgery should be approved, finding it reasonable and necessary to “cure and relieve” the effects of the injury. The employer appealed.

The ICAO determined the obligation to “cure” the effects of the injury ends at MMI because of the later 1991 statutory definition of MMI that declares “no further treatment is reasonably expected to improve” the injured worker’s condition.  Thus, ICAO reasons, only treatment that will relieve but not cure the work injury can qualify as maintenance care.

The ICAO remanded the case back to the Administrative Law Judge for further consideration if the proposed treatment would just “relieve” the injury, noting that there was no “bright line” test to distinguish between those treatments.  Because six years had passed after the injury, Ms. Chism cannot reopen her work injury claim, she is limited to maintenance care.  If this surgery is curative – it has to be denied under the ICAO’s parsing of the statute.

 

CITE:  Chism v. Walmart, WC No. 4-809-103-03, (January 9, 2017).

Appeals Office Shifts the Burden to Injured Workers in Responsible for Termination Claims

Appeals Office Shifts the Burden to Injured Workers in Responsible for Termination Claims

Denver Disability Denver Workers Compensation Greeley Workers Compensation Lawyer

Injured Workers must now be ready to provide evidence explaining that work absences weren’t their fault.

Injured workers who lose their job while treating for a work injury are entitled to lost wage benefits, called Temporary Total Disability.  However the Colorado Legislature changed the law allowing employers to avoid paying lost wages to injured workers when they are “responsible” for their termination.

Until now, the burden to prove this allegation has rested squarely upon the employer.  The employer must not only prove that the injured worker did – or failed to do – something that led to his or her termination – but that that it is was volitional on the part of the injured worker.  For example if a worker is fired for being late to work three times in one week, the employee could show that the absences were caused by circumstances outside his or her control.

Nicholas Coleman worked as a housekeeper and suffered a low back injury in late 2014.  However in February 2015 he was incarcerated for violating his parole and as a result stopped coming to work and was terminated.  After his release in August 2015 he sought lost wage benefits.  The employer denied claiming that Mr. Coleman was responsible for his termination.

At hearing, although the employer did introduce evidence that Mr. Coleman stopped coming to work, and that Mr. Coleman had been incarcerated for violating his parole – there apparently was no evidence why or how Mr. Coleman violated his parole.  Reasoning that the employer had failed to show proof as to whether the parole violation was volitional, the Administrative Law Judge was unwilling to assume that it was and awarded benefits.

The Industrial Claims Appeals Office (ICAO) remanded the case back for a further hearing and testimony.  The ICAO imposed the burden not on the employer, but the injured worker.  “Typically, when an employer introduces evidence that a claimant has failed to show up for work when scheduled, this amounts to a prima facie case satisfying the employer’s burden of demonstrating the claimant was at fault for the job separation. See Lucero v. Industrial Claim Appeals Office, 812 P.2d 1191 (Colo. App. 1991)(employer’s initial burden to show claimant was discharged for disqualifying reasons). The claimant must then introduce exculpatory evidence or evidence showing that his failure to show up for work when scheduled was non-volitional. See Gonzales v. Industrial Commission, supra (disqualification for failure to meet defined standards, unless the claimant is not at fault in the circumstances).”

This burden-shifting is a major departure from traditional litigation when a a party must prove each and every statutory requirement.  Now, employers may simply be able show that a worker was fired in accordance to policy without showing that the worker acted volitionally.  Then if the employee doesn’t provide an explanation, the employer will win.  This case highlights another reason why injured workers need experienced and dedicated attorneys.  Workers Compensation Law Changes weekly and you or your loved one needs an attorney who keeps up with these changes.

 

Source Citation:  Coleman v. Starmark Holdings, WC No. 4-969-560-02, (January 9, 2017)