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)

Powerplant Disasters and Ongoing Worker Danger: Trust in Government in Modern Japan

Powerplant Disasters and Ongoing Worker Danger: Trust in Government in Modern Japan

Denver Workers Compensation Workers Compensation Blog

Almost five years have passed since the nuclear plant meltdown in Fukushima at the Dai-chi, Japan, and while our Denver workers’ compensation lawyers and Greeley workers’ compensation attorneys were not involved in fighting for the workers who were injured during the disaster, the nuclear plant meltdown continues to affect the rest of the world in unexpected ways. Because of Fukushima’s location on the island of Japan, water near the plant and along the coast is extraordinarily radioactive. Like much of Japan, Fukushima had a respectable agricultural economy before the disaster. People used to trust their government in Japan, particularly where nuclear safety is concerned. Since the Dai-chi factory melt down, almost all of that has changed.

Nuclear power was, ironically, a popular form of what the Japanese considered clean energy for decades. Schools would stress how proud the Japanese people could be of their nuclear power programs, how the power source yielded relatively little waste and encouraged an educated populace.

Coal power, by contrast, yields much more waste and accidents related to coal power are a huge concern for Denver workers’ compensation lawyers. Coal power seems like an inherently risky business. Cave-ins and bad lungs are so much a hallmark of coal mining and coal power that they almost go without saying. Nuclear power, by contrast, was touted as “energy for a brighter future,” according to a bridge in Futuba, Japan. Common sentiment followed this idea until the plant meltdown and subsequent evacuation crisis.

Almost 50 people died of dehydration alone while being evacuated from nursing homes in Fukushima after the disaster. Most of the hospitals built to accommodate potential injured victims of the power plant were too close to the radiation zone and those who sought to escape the harmful radiation spewing from the factory. By March of 2013, almost 3,000 people died in shelters for victims of the disaster. Early on during the first few months of the disaster, people fleeing Fukushima were dying at almost three times the normal rate for Japanese people.

After believing for so long that nuclear power was the way forward for Japan as this was the official government stance, people were understandably shaken. In addition to the simple fact of the disaster, governmental agencies seemed ill-equipped to immediately deal with the—pardon the expression—fallout of such an accident. Because many governmental agencies were not communicating properly, a good number of evacuees were evacuated right into the path of the radiation. In a 2016 annual ranking of counties by the Edelman marketing firm, Japanese citizens ranked first as the most distrustful of government, business, media, and nongovernmental organizations. Radiation risks in the water around Fukushima are still high. Many people, including Americans, distrust the food grown in Fukushima province. Every bag of rice from the area is inspected for excess radiation.

RELATED: Acceptable Levels of Noise in the Workplace

173 workers at the nuclear factory were exposed to high levels of radiation linked to cancer. In October of 2011, the first plant worker was diagnosed with radiation-related leukemia. The Japanese health ministry approved workers’ compensation for the man according to the Japanese news source NHK but there naturally aren’t as many details as if it had been an American workers’ compensation case.

Colorado workers’ compensation is far different from international and Japanese workers’ compensation, partially due to the government setup in Japan versus America and the state-to-state variance in workers’ compensation systems. However, necessity of trust is international. Workers have to trust that the systems set up for their protection will work and are relatively easy to navigate. Unfortunately, there are many cases where miscommunication or error keeps people from the benefits to which they are entitled.

In many cases, workers are left without recourse and with mounting medical bills from accidents that occur in the workplace. While Japanese law is somewhat murkier than American workers’ compensation systems—which are themselves by no means easily navigable waters—there are caring, compassionate experts who make justice for workers their priority and lifelong passion.

Workers’ Compensation can be difficult, confusing, and very complex. Kaplan Morrell has helped thousands of injured workers since 1997 get the benefits they deserve. Contact us here or call us at(866) 356-9898 for your free consultation.

Source: http://www.stripes.com/news/fukushima-radiation-poses-little-risk-but-lack-of-trust-lingers-1.397965

Workers Compensation Case Review

Workers Compensation Blog

Carrier is able to question generic referrals without incurring risk of penalties.

Colorado Workers Compensation Law prohibits employers, claimants, and insurers from dictating medical care.

Employers, insurers, claimants, or their representatives shall not dictate to any physician the type or duration of treatment or degree of physical impairment. Nothing in this subsection (3) shall be construed to abrogate any managed care or cost containment measures authorized in articles 40 to 47 of this title. CRS §8-43-503(3)

When Ms. Teagarden’s authorized treating physician, Dr. Pak, wrote a generic referral for her to treat with primary care physician for prescription refills, the carrier asked for clarification. The letter – addressed to “Whom it may Concern” – did not identify a specific doctor, did not state what body part was to be treated, explain the medical necessity of the treatment, and was written thirteen months since the last examination had occurred.

The insurance carrier filed an application for hearing on the issue of medical benefits, and also sent a letter asking Dr. Pak to clarify the letter. After a hearing on the medical benefits (which were awarded) Ms. Teagarden sought penalties for dictation of care.

The Administrative Law Judge (ALJ) denied the claim for penalties ruling that it had acted reasonably given the ambiguity over the identity, treatment, and body parts covered in the referral.

As always, how this or any other case we discuss in this blog would apply to your case depends on many more factors. We urge you to call us to see if you are entitled to workers’ compensation benefits. Workers Compensation is difficult, confusing, and very complex. Kaplan Morrell, a Denver workers compensation law firm,  has helped thousands of injured workers since 1997 get the benefits they deserve. Contact us here or call us at (866) 356-9898 for your FREE CONSULTATION.

Cite: Chun Cha Teagarden v. JC Penny, (WC No. 4-748-106, January 13, 2014)
Tags: Penalties, Dictation of Care, Authorization, Medical Benefits