Walmart and Concentra to Pay $8,000,000 Settlement

In the Gianzero federal case Wal-Mart and Concentra were sued in a class action lawsuit alleging various violations including of the Colorado Workers Compensation Act, bad faith, RICO, and much more. The basics of the case was the assertion that Wal-Mart and its insurer conspired to dictate, withhold, delay, deny or interfere with the medical care of injured workers. The case made a big impression and received commentary elsewhere. The allegations involved setting forth protocols for treatment and referrals which violated the Workers Comp Act and which restricted or denied or dictated care. As alleged, Concentra then implemented "flowsheets" which were then imposed on its doctors which preempted the exercise of independent medical judgment. In my view the adjuster could control treatment which I see as the inherent conflict in most health insurance situations. He who has the money can be expected to try to set the rules! Naturally all of this was hotly contested but in the proposed settlement Wal-Mart, Concentra and their insurers have recently agreed to pay $8,000,000 to settle the case without formally admitting they were out of line. Class members would receive up to $520 each if they were treated at a Concentra facility between 2001 and November 1, 2011. The detailed proposal sets forth the proposed settlement and more is available at this website including the original complaint and the notice of the proposed settlement to potential class members. If you were injured working at Wal-Mart you may be eligible for a check should it all be approved. Added expenses are also sought by the attorneys for fees and costs. Moreover as part of the settlement they are to cease the disputed activity for 4 years and have educational training for adjusters and certain staff of Concentra regarding the prohibition on dictation of care provisions of the Workers Compensation Act. In my view this is a significant victory for doctors and claimants who deserve to have medical treatment handled as a medical matter and not unduly influenced by non-medical personnel who work for the employer or its insurer.

Administrative Law Judge Orders for September 2011

I have indicated in the past that the Office of Administrative Courts will post just about all the orders issued in the state of Colorado following hearings in workers compensation cases. In September they posted the orders and it covers some 470 pages. I skimmed through all of them and many are quite interesting reads. A great many of them involve medical legal issues so they have opinions by numerous doctors. In one early case I counted 8 doctors. Often such cases involve causality questions pertaining to whether or not a claim is work related or questions regarding treatment. I should remind claimants to discuss all your complaints at every visit with the doctor. In my experience some of the doctors do not document as we would expect them to do. As such you can provide the doctor with your history in writing if need be. By history I mean a dated statement of your current problems which you bring to your doctor each visit. Always make a copy for your records. This can prevent any misunderstandings later on. In at least one of these cases it appears the claimant asserted he was telling and telling the doctor at every visit something which never was noted by the doctor. Of course the decision went against the claimant on that point. I have had clients take a written history into their doctor every time just to keep all the details accurate. A failure to complain can be assumed to mean an absence of pain or limitation. Anyway these cases tell us what sorts of issues are going to hearing in Colorado.

Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal.

Chavez: Court Decision on Subrogation Rights

In the Chavez decision the Colorado Court of Appeals ruled against Pinnacol's efforts to obtain or share in a settlement made between the injured worker and a third party. Subrogation can give the workers comp insurer rights to obtain reimbursement from some other responsible party. Here the claimant was injured in an auto accident but received workers comp benefits. He then sought to pursue a tort claim on the accident against others. Pinnacol joined that case because it can assert its right to reimbursement should there be a big recovery. However in this case the employee settled what was called his non-economic damages such as pain and suffering. The settlement was set up not to prejudice Pinnacol's right to proceed but Pinnacol felt it was entitled to approve the settlement or at least that it was entitled to some portion of that settlement. The court ruled that the settlement was reasonable and did not affect Pinnacol's rights. As set up by the language in the settlement Pinnacol's ability to pursue its claims was not affected by all this so it was not entitled to any of the settlement. Here the non-economic damages that were settled involve matters never paid through workers comp by Pinnacol. Pain and suffering for example is not a workers comp benefit but Pinnacol felt it was wronged anyway. It lost in the original case and then in this appeal.

New Court Case on Medical Benefits

The Colorado Court of Appeals issued a decision yesterday that concerns ongoing medical benefits. In the Hire Quest case we have a rather technical argument that is addressed by the court. It seems an example of how technical arguments get in workers compensation proceedings. In this case the parties went forward at a first hearing which addressed a safety rule violation, credits for paid temporary benefits and the permanent impairment based on a DIME (Division Independent Medical Examination). Before the hearing the issue of permanency became uncontested because the employer/insurer withdrew the opposition to the DIME doctors impairment rating. So the first hearing addressed permanency, temporary and safety rule violation issues but that judge said issues not expressly decided are reserved for future determination. Well claimant later went forward on the issue of ongoing medical treatment needed and the other side said he could not because he never raised the issue at the first hearing and it was waived. They also asserted that the judge reserving issues was not specific enough so that prior hearing closed out the matter. The court decided that the reservation was good enough to preserve the right to address medical benefits after the first hearing so they found in favor of the claimant. Common sense would tell you that medical benefits could be addressed later but the insurer tried to use a prior court decision to say the claimant was required to add the medical issues at the first hearing or else it was waived. This waiver argument is essentially saying address all issues at once or the insurer saves money by alleging too bad so sad you lose (waive) your potential right to further treatment. Even if the judge reserves matters it is not good enough unless it is a specific reservation of a medical issue according to the insurer's view of an early case they were citing. The court disagreed with that interpretation. My view is that workers comp should handle all treatment that is needed for a work injury and not made into a game of technicalities which passes the buck on treatment to others such as the taxpayers. In this case we did have the DIME doctor saying more treatment was needed and I am not sure why it was not made an issue but it could be that there was no dispute made by the insurer until later. To me you have to wonder if the insurer waived objecting to further treatment but anyway the claimant prevailed.

Australian Woman Claims sex accident is work related

This recent news article caught my eye so it makes for a good read. I am posting it here without any further comment other than to say that most of us in the field have had unusual situations that require research to assess if an injury could be considered compensable. Never let it be said that the law is boring! Those traveling for a company or stationed at some distance from their home are not simply limited to asserting a claim for injuries sustained during working hours. The average employee goes home and has his own time in his own home but when you are stationed elsewhere other factors may apply. Here this young lady in Australia was having sex in her hotel room when the activity caused an accident resulting in injury. Workers comp? In Colorado and elsewhere you should review the law for that jurisdiction.

Munoz Court Case on DIME waiver

The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.

Recent Hearing Decisions

Over at the website for the Office of Administrative Courts they do, from time to time, post all or most of the workers comp hearing decisions. They redact or edit out certain parts especially the claimant's name but the reasoning and facts found are all there for anyone to review. The latest they have is for February 2011 and the decisions start with a claimant wanting botox to matters involving compensability and a host of other matters. It is always interesting to read what is happening at the local level. Moreover they do include names of doctors or other experts so you can see what case that doctor has been involved with. If you want to see how complex this field can get go ahead and look at these cases. Moreover the cases do set forth what the hearing judge believes is the law with citations though any of the cases can be subject to an appeal.

First Comp-Appellate case on a battle between insurers

The Colorado Court of Appeals issued a decision today involving a dispute between two insurers. The claimant was injured and in the case there were two employers. The direct employer had Pinnacol Assurance and the statutory employer had First Comp as its workers comp insurer. Pinnacol alleged it had cancelled the policy so the direct employer had no coverage leaving the statutory employer and its insurer to be responsible in the case. There was evidence presented and the hearing judge ruled that First Comp was the insurer in this case. First Comp, appealed and the Court concluded it had no standing to appeal the cancellation determination. In effect the cancellation statute was between the direct employer and Pinnacol and the injured worker but not with First Comp. It sounds to me a bit like the legal concept of privity. Even though First Comp takes a direct hit when the direct insurer is able to walk away because it cancelled the policy the lack of a close statutory relationship or benefit then prevents First Comp from appealing the issue. It lacks standing said the court so First Comp's appeal was dismissed. Certainly here the legal concept of standing to appeal was raised to prevent issues remote from the claimant from interfering with the compensation process. Perhaps an insurer would not pay benefits pending an appeal which can take over a year to the harm of the claimant or his dependents (in this case the injured worker had died). Imagine waiting for benefits while two insurers battled it out!

The Zolman Case on Bad Faith

The Colorado Court of Appeals just issued the Zolman decision on March 3, 2011 that concerns a civil claim for bad faith against Pinnacol. In this case which arose out of a workers comp case the claimant was upset with Pinnacol denying treatment and denying a change of physicians. A separate lawsuit was started alleging bad faith. This can mean a trial by jury on whether Pinnacol acted in bad faith which involves acting unreasonably. Pinnacol filed a motion for summary judgment against the civil case which was granted. This was affirmed by the Court of Appeals. So the claimant or rather the plaintiff in the bad faith case lost the case. Summary Judgment is a severe action and historically is not granted if there are questions of fact that should go to a jury. In Zolman there certainly were questions of fact on what is appropriate treatment so you would think the issue of how reasonable Pinnacol was should go to a jury. That is Pinnacol had what it believed were good reasons for denying and the claimant had reasons for saying it was unreasonable. It was a battle of medical experts which is common in this area. Yet the Court decided Pinnacol acted reasonably as a matter of law. Certainly when there are no genuine issues then a summary judgment is appropriate and that is what the case says. What I find puzzling is the use of the concept of "fairly debatable" apparently as a basis for concluding Pinnacol acted reasonably as a matter of law. As I understand it they are saying that the need for treatment was fairly debatable given doctors did side with Pinnacol but to me if there are doctors going the other way even if the dispute could be reasonable you still could go to a jury. On November 10, 2010 another panel of the Court of Appeals in Sanderson did decide that fair debatability alone does not defeat a bad faith claim. You have to wonder if these two cases are reconciliable on the basis to grant or deny summary judgment. In any event Zolman does have the Court deciding that Pinnacol's actions did not rise to the level of bad faith.

Retaliatory Discharge and Temporary Benefits

In a recent Industrial Claim Appeals Panel decision I'll call Gaines there was a retaliatory discharge of an injured worker. The worker was hurt and complaining about the employer not filing a report of injury or providing further medical help. As a result she was taken off the work schedule. Since she was not working and attributed it to the reprisal for her work injury she sought temporary benefits. The hearing judge denied her such benefits saying a reprisal is not a reason for temporary benefits. She appealed and the Panel agreed that the reprisal alone is not a proper statutory basis for temporary benefits but then remanded the case to the hearing judge to address whether her possible restrictions from the injury should entitle her to temporary benefits. Apparently this was not fully looked at by the hearing judge. There was evidence of restrictions but the judge did not adequately address that issue. The reasoning here appears to say that a claimant has to show both a medical problem and loss of wage due to an inability to work or restrictions which impair that ability. A reprisal alone is not enough. However such a reprisal may result in a separate civil claim for retaliatory discharge. The point being made is there is a distinction between a reprisal for having a claim and actual time and wage loss due to an injury. Let's say you fall out of your chair, complain it hurts even if temporary and want to file a claim. Your boss then just takes you off the schedule. So you are fully able to work but in reprisal they give you no hours. Under the Gaines case, as I read it, you'd receive no temporary benefits because you can work and really have no injury. It may be wrongful but your loss of pay is due to reprisal not to the injury. My preference is that this loss due to reprisal or retaliation be able to proceed in the workers comp case rather then in a separate civil case. The reason is that any separate civil case can take many months but the worker is receiving no income directly due to a work injury incident. But my preference is not the law. It takes disability not just reprisal to obtain temporary benefits though in Gaines the remand was to force the hearing judge to decide the disability issue.

Brown Bagging It on ICAP cases

Once a month an administrative law judge has a brown bag lunch where he reviews cases of interest to those in the Colorado workers comp field. These cases are not readily available to the public although most attorneys in the field have access to the decisions. The Industrial Claim Appeals Office handles a great many appeals from hearings held at the local level. Many such cases never get appealed further and the next stage is to the Colorado Court of Appeals. Judge Eley is well liked and respected by most attorneys in this field and his free Brown Bag Lunch Seminar is well attended. Even if you cannot make it he emails you the materials and an audio of his presentation. Today is the January lunch and from the materials I have already received I note two cases that are exceptionally interesting to me and perhaps to most readers. The first can be called the Wheeler case. The claimant was admittedly permanently and totally disabled and thus entitled to PTD benefits. The issue was how to compute those benefits where they are paid out every two weeks perhaps for life. So the case involved AWW which is average weekly wage. The claimant when hurt at work was earning a very low figure if you look at her actual average wage. Respondents said it was under $75 a week. However vocational evidence was provided which helped show that the rate would be much higher then her actual wage at the time of the accident. While this must all relate to the date of the injury a Judge does have discretion to depart from your actual wage and consider loss of earning capacity. Here the difference was enormous though any calculations still are based upon the law as of the injury date. The judge applied the law as of the date of maximum improvement which was a mistake. The claimant still won big here.
The second case involved a fall at work. Caselaw tells us that not all falls at work are really work injuries entitled to benefits. The claimant in Landes was determined to have a work related tramatic brain injury injury which arose from work activities despite the fact he had amnesia and remembered nothing about the fall. Often Respondents will assert it is the claimants burden to prove his case and falls can come for many reasons. No change in the law from this ICAP decision favorable to the claimant so it is up to the hearing judge to decide on the evidence presented. There was a dissent that essentially said the evidence was speculative either way making the fall unexplained and not compensable.

Over 400 Pages of ALJ Orders

Every now and then the Office of Administrative Courts posts the decisions made by the local ALJ's (Administrative Law Judges). The last month they posted this is for March 2010 but it remains interesting to browse and see what is happening out there. You can search in those decisions for a specific name or word that may be important so you do not have to scroll through hundreds of pages. What has been taken out are the names of the parties. When you read these decisions you can see the attention to detail and the complexity of the analysis. Attorneys also find them useful especially when they are asked to prepare a draft for the judge. Prior recent decisions may provide a starting point to work up the details of your case. Also doctors are often named in the decisions so you can search within those decisions for a doctor to see what he was involved in and how he helped or hurt a claimant's case. All these Orders are only at the first level so they are subject to appeal.

High Heels = Work Injury and Discrimination Claim

This case being reported by the American Lawyer and at Law.com is not a Colorado workers comp case. But what makes it interesting is the allegation that females at a law firm were required to wear high heels which then led to a workplace injury. Then the allegation is that no accomodation was made and there was reinjury and this went on until the lady lost her job. So the case goes beyond the routine work injury to result in an additional claim for discrimination. It is unusual enough that it seemed worthy to post here. High heels...work injury...seems like a blast from the past. In many Colorado law firms the dress is casual but even when it is not I am unaware of any required dress code that says you must wear high heels.

Annual Fall 2010 Workers Comp Seminar

This is just to make you aware that Colorado has its annual fall update on workers compensation coming up soon. It is usually an excellent seminar and well worth it. It also provides attorneys with continuing legal education credits. Those who cannot attend can order the materials. Workers comp is quite technical in the sense it has a great many rules, cases, deadlines, forms, guidelines and much more. Staying on top of it is critical. Colorado has a rather large amount of available resources but it still requires being up to date. Aside from legislative changes there are cases and rules which may have been updated over the last year. The lecturers at this seminar are often quite good at presenting the materials in an interesting way. Those that attend also get a chance to interact with others in the field so the fall seminar is often the best one out there.

U.S. Supreme Court Audio Now in All Cases

This is just plain interesting though not just for workers compensation or Social Security disability matters. The United States Supreme Court is opening up its website so that visitors can listen to audio recorded arguments for its cases. That is a big change as in the past it has greatly limited this to making such recordings available much later. So if you want to hear the lawyers arguing a recent case that is important to you then give it a try. By the way often we hear questions and concerns coming from the court itself so it is not boring at all if the subject is of interest. In Colorado we already have this and it is fascinating especially in a workers comp case. For example here is the Colorado Supreme Court site from which you can seek more information.

Partially Amputated Fingers are Stumps Court Says

The Colorado Court of Appeals ruled in the Leffler case to uphold the decision to add $4800.00 for partial amputation of the index and middle finger. The claimant had this happen while involved with a sod harvesting machine. This added benefit decision was appealed by the insurer by asserting that benefit only applied to "stumps" and fingers are not "stumps". The case is a simple and quick read but it amazes me that the insurer appealed. The cost to appeal to the Court of Appeals is far more then $4800.00 since it goes from the deciding judge to the Industrial Claim Appeals Panel to the Court. Quite a bit of legal work is devoted to such an appeal. I am not saying the insurer did not have a right to address this issue in an appeal. But it seems impractical and going forward with an appeal to clear up what is a stump for all future cases seems a bit of a waste. After all how many such cases are there? I have always believed that extremity injuries to include hands and fingers can be devastating matters for some people. Imagine if you were a surgeon or piano player or even a carpenter. You can lose your trade and receive a low sum for the injury. So getting a few bucks such as was done in Leffler is better then nothing.

Supreme Court reverses Court of Appeals in Ruff

Yesterday the Colorado Supreme Court issued a decision in the Ruff case. The issue posed to the court and at the original hearing was over a possible conflict of interest in a Division Independent Medical Examination (DIME). The claimant argued that the physician had at least the appearance of a conflict of interest so how can the exam be fair and impartial. In the case the physician selected had received some $600 a month from Pinnacol (the insurer in the case) for being an advisor and also was in Selectnet the Pinnacol endorsed medical group. So it was argued that it was inappropriate and should have led to a disqualification of the physician. The ALJ (Administrative Law Judge) decided it was not a conflict and the Court of Appeals decided it might require more review by the ALJ. The Supreme Court decided the Court of Appeals went too far and that there was no conflict on the facts of the case. Merely receiving some money and being in Selectnet was not enough to establish the sort of conflict of interest to disqualify the doctor. The dissent noted that in Selectnet the physician received 25% of his income and since this might raise questions about impartiality that the Court of Appeals should have been affirmed. There really was no evidence that the doctor was not professional and objective but his status as a Pinnacol advisor and being in Selectnet seemed to raise a question about his objectivity.

The Franz Case

The Franz case was decided on May 13, 2010 by the Court of Appeals. It concerns utilization review which is a process to review a treating physician. It can lead to the replacement of that physician or other consequences that directly impact a claimant. In this case the claimant addressed two points both of which were shot down by the court yet both have some logic to them. First he said the process violated his right to due process because he had no opportunity to discover and present evidence. Second he asserts a potential conflict of interest argument which was not permitted in the process. The court essentially said that there was no violation of Rule 10 which governs the process. The claimant had no right to assert a due process argument since it did not affect a property interest as only retroactive denial of treatment or benefits allows for such a due process argument said the court. It also said the rule was not violated as there was no conflict of interest as defined by the rule. Essentially the claimant could not explore and discover nor could he present evidence on any conflict of interest. In this case the claimant believed there was an inherent conflict because the committee members are closely involved with the insurer and SelectNet a provider organization. This case is disturbing as it deprives the claimant, in the end, of his doctor and he sought review by an ALJ who said he had not overcome the decision by clear and convincing evidence. Let's see now...if you stop the claimant from presenting evidence in the UR proceeding and prevent discovery exactly how can he even try to overcome the decision by clear and convincing evidence? So here Pinnacol was the insurer and it sought to replace the physician and the UR committee involved members of SelectNet which Pinnacol has a pretty cozy relationship with and sure enough they recommend to replace the treating physician for the claimant. Does it seem fundamentally fair? Not to me but the case really narrowly defines due process and the Rule in this matter at least in my opinion.

Supreme Court issues decision on AWW

In the Simpson/Bennett cases the Colorado Supreme Court reversed the Court of Appeals to the extent it used the concept of date of disablement to determine a claimant's average weekly wage or AWW by applying a higher maximum rate in effect years later. The wage calculation can be a very important figure that is used to pay out benefits. The higher the calculation the higher the benefits may be. The case reviews the two ways a judge can determine AWW. One way is the statutory way which can involve computing your wage as of the date of injury. Another allows a judge to use his discretion when another way would be more appropriate. For the last year we also dealt with the concept of date of disablement which suggests another approach. Actually most of us in the field realized that the date of disablement concept is unnecessary anyway in most cases. The discretion given a judge is enough to afford him the ability to figure an appropriate wage if he exercises that discretion. Usually your wage at time of injury includes tips and overtime, perhaps room and board and perhaps even the cost of health insurance if it was paid in part by your employer and can be cancelled. Using some other concept seemed to be somewhat confusing but it came because of a prior Supreme Court case called Avalanche. Now the court simply corrected itself although the rest of that prior case still holds that wage calculations may include a subsequent wage if the judge in exercising his discretion decides it is appropriate.