Mark A. Simon - Past Case Summaries

Weidert v. Chris’ Home Improvements, W. C. No. 4-516-840 (2005)

Industrial Claim Appeals Court

Final Order
 
Jeffery Weidert was a hard-working window washer employed by Chris’ Home Improvement (Chris’ Home) on September 21, 2001. On that day, Mr. Weidert injured his back, and brought a claim against Chris’ Home for temporary total disability and health care. Chris’ Home denied liability on the grounds that Mr. Weidert was an independent contractor, not an employee and that Mr. Weidert’s condition was caused by a pre-existing condition, not an industrial accident.  
 
Though evidence offered by both parties conflicted, the administrative law judge (ALJ) ruled that Chris’ Home failed to prove Mr. Weidert was an independent contractor and that Mr. Weidert’s back injury was caused by an industrial accident. The ALJ ordered that the respondents pay for temporary total disability and health care for Mr. Weidert.
 
On appeal, Chris’ Home contented that the record did not support the ALJ’s determination that Mr. Weidert was an employee. After review of the nine criteria for determining whether an individual is an employee or independent contractor outlined in § 8-40-202(2)(b)(II), C.R.S. 2002, the Industrial Claim Appeals Office (the Panel) affirmed the ALJ’s determination. Although several of the factors indicated Mr. Weidert could be classified as an independent contractor, the Panel concluded that the ALJ’s decision to classify Mr. Weidert as an employee was supported by the record because his employment could be terminated at any time, Chris’ Home established a quality standard, and Mr. Weidert was paid personally by Chris’ Home.  
 
Chris’ Home also argued that the record did not support the ALJ’s determination that Mr. Weidert fell from a ladder on September 21 and injured his back. Chris’ Home pointed to the ALJ’s determination that a portion of Mr. Weidert’s testimony was “incredible.” The Panel held that it was well within the ALJ’s discretion to credit the portion of Mr. Weidert’s testimony that he fell off the ladder while discrediting Mr. Weidert’s contention that he did not set the ladder against the house. Further, the medical records supported Mr. Weidert’s onset of low back symptoms.
 
Since the record supported the ALJ’s order for temporary total disability and health care, the Panel affirmed. Mr. Weidert, due to proper lawyering by Mr. Simon, received the benefits that he was entitled. So great was Mr. Simon’s commitment to his client, Mr. Simon advanced the cost of his clients appeal and charged no additional fees for the appeal. 
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Mayfield v. McKesson Corp., W. C. No. 4-521-486 (2003).

Industrial Claim Appeals Office

Final Order
 
Of the many benefits that clients receive when they hire Mr. Simon, perhaps the most valuable is Mr. Simon’s ability to guide his clients to the correct medical care. This benefit paid dividends for Mr. Simon’s client, Tracy Mayfield.
 
Roughly one year after sustaining an admitted injury, Ms. Mayfield’s employer, McKesson Corporation (McKesson), filed a Final Admission of Liability for medical benefits. However, Ms. Mayfield made it clear to Mr. Simon that she had not fully recovered from her injury, and required more medical attention. Mr. Simon understood this need, and directed Ms. Mayfield to a Division-sponsored independent medical examination (DIME), where the physician found Ms. Mayfield was not at maximum medical improvement.
 
At hearing, the administrative law judge (ALJ) found that the DIME physician’s opinion was not overcome by evidence provided by McKesson and ordered that McKesson pay for "all reasonably necessary and causally related medical care andf [sic] treatment by the authorized treating physician and his referrals." McKesson timely appealed the order of the ALJ to the Industrial Claim Appeals Office (the Panel).  
 
On review, the Panel found that the ALJ’s order did not specify any particular medical benefit or treatment. Therefore, the Panel determined that the ALJ’s order was interlocutory and therefore not subject to review. McKesson’s petition was then dismissed by the Panel without prejudice.
 
Mr. Simon allowed Ms. Mayfield to continue to receive the medical benefits which she needed by understanding the workers’ compensation system. Without directing Ms. Mayfield toward the DIME exam, Ms. Mayfield’s medical care would likely have ended before she was actually at maximum medical improvement. 
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Voelker v. Exempla Lutheran Health Center, W. C. No. 4-388-006 (2002).

Industrial Claim Appeals Court

Order
 
Though the appellate process in the workers’ compensation system is generally an uphill battle for the non-prevailing party, Mr. Simon is willing to undertake the challenge to help his clients.
Elaine Voelker was injured in her employment capacity and hired Mr. Simon for representation.  
 
To determine the issue of medical benefits, Mr. Simon filed an application for a hearing with a Prehearing Administrative Law Judge (PALJ). However, the respondent’s motion to strike the application because the case was closed was granted by the PALJ, and the application was dismissed with prejudice.
 
Undeterred, Mr. Simon filed an appeal with the Industrial Claim Appeals Office (the Panel) to review the dismissal. The Panel concluded that, because the order was reviewable by an administrative law judge (ALJ) assigned by the Division of Administrative hearings, the PALJ’s order was interlocutory and therefore not reviewable by the Panel.
 
So, although the appeals process for Ms. Voelker did not go through the Panel, Mr. Simon’s efforts assured that the decision to deny her medical benefits would be reviewed by another authority. 
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Schutter v. Outsource International/Tandem Staffing, W. C. No. 4-520-338 (2003).

Industrial Claim Appeals Office

Final Order – (Continuation of Schutter, W.C. No. 4-520-338 (2002)  
 
Mr. Simon is well-versed in the statutory provisions that govern the workers’ compensation system in Colorado. Due to this level of knowledge, Mr. Simon ensures that his clients receive all the benefits that they are afforded by Colorado law.
 
Such knowledge was displayed in the case of Mr. Simon’s client, Berlinda Schutter, who worked for a temporary employment agency known as Tandem Staffing (Tandem). Ms. Schutter, who did not have an automobile, would ride public transportation to Tandem’s office each day, and then be assigned to work at various remote locations. In order to travel to various locations, Ms. Schutter would either ride in Tandem’s company van, with another employee, or by public transportation. If Ms. Schutter rode with another employee or in Tandem’s van, she was charged $1.00 each way.
 
On the morning of October 24, 2001, Tandem assigned Ms. Schutter a position with Get-a-Grip, and instructed her to ride to the work site with another employee. In route, Ms. Schutter was injured in an automobile accident.
 
After Ms. Schutter hired Mr. Simon, her case was brought before an administrative law judge (ALJ) to determine her medical benefits. At first hearing, the ALJ concluded that Ms. Schutter was engaged in a “ridesharing arrangement” as defined in § 8-40-201(8), C.R.S. 2002, which barred her from compensation. However, Mr. Simon’s knowledge of the correct interpretation and meaning of a “ridesharing arrangement” allowed him to timely appeal the decision.
 
On review of the issue, the Industrial Claim Appeals Office (the Panel) reversed the order of the ALJ determining Ms. Schutter’s participation in a ridesharing arrangement and remanded the issue for further findings of fact. 
 
On remand, the ALJ issued an order on October 18, 2002, which found that Ms. Schutter’s employment contract contemplated travel, Tandem requested the travel, and Tandem received a benefit beyond Ms. Schutter’s arrival at work. From these determinations, the ALJ found Ms. Schutter’s injuries arose out of and in the course of employment.
 
Since the October 18, 2002, order did not specify any benefits, a supplemental order was entered on November 6, 2002, which grated specific benefits to Ms. Shutter. The order was timely appealed by Tandem.
 
On appeal, Tandem argued that the Panel erred in finding that Ms. Shutter was not engaged in a “ridesharing arrangement.” Tandem pointed to the company’s lack of control over Ms. Shutter’s method of travel to work locations and lack of payment for her travel to work locations as reasons why she was involved in a ridesharing arrangement.
 
The Panel was ultimately unpersuaded by Tandem’s assertion. Tandem was correct that the general rule holds that injuries sustained in the course of travel to and from work are not compensable. However, Ms. Schutter’s situation fit a unique exception to the general rule, because she traveled beyond Tandem’s place of business and at the request and benefit of Tandem. Further, the Panel agreed with Mr. Simon’s conclusion that Loffland Brothers Co. v. Industrial Commission, 714 P.2d 509 (Colo. App. 1985) limits the applicability of “ridesharing” to travel to and from work, not travel from work to another work space.
 
Alternatively, Tandem argued the factors outlined in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) proved Ms. Schutter’s injury did not arise out of or in the course of employment. The Panel, however, distinguished Ms. Schutter’s situation from the claimant in Madden, primarily because Ms. Schutter was required and willing to travel beyond Tandem’s office. Therefore, the Panel found that the ALJ’s determination that Ms. Schutter was injured in the scope of her employment was adequately supported by the record.
 
Tandem also argued that the Panel’s decision would lead to “nonsensical results” where travel to and from work places in many industries would be considered as “contemplated in employment contracts.” The Panel responded by stating their previous decisions already determined that travel to and from the workplace of healthcare providers was contemplated in employment contracts, and other situations would be taken as they arose. 
 
Last, the Panel rejected Tandem’s argument that the Panel’s initial review and remand for findings of fact were erroneous. Tandem argued that the ALJ’s initial determination clearly proved that travel was not contemplated by the employment contract. The Panel found that the findings of the ALJ were inconsistent with the facts on record, and therefore further findings of fact on the issue of travel contemplation were required for a determination by the ALJ.
 
In this scenario, the employer tried several legal avenues to deny Ms. Schutter her benefits. However, Mr. Simon’s knowledge of workers’ compensation case law and statutory provision allowed him to prevail for his client and ensure that she received her workers’ compensation medical benefits. This case involved multiple court appearances and appeals. So great was Mr. Simon’s commitment to his client that he advanced all costs of appeal and charged no additional fees for appeal.   
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Schutter v. Outsource International/Tandem Staffing, W. C. No. 4-520-338 (2002).

Industrial Claim Appeals Office

Order of Remand
 
Mr. Simon can secure the benefits his clients are entitled to through diverse legal strategies and avenues. One avenue that is particularly difficult, but is often the only remedy available, is through an appeal of an administrative law judge (ALJ) ruling that denies his clients benefits or medical care. One example of a hard-fought appellate win for Mr. Simon was the claim of Berlinda Schutter.
 
Ms. Schutter was employed at Tandem Staffing (Tandem), a temporary services agency. Ms. Schutter, who did not have a driver’s license, took public transportation to the Tandem offices early each morning to see if work available. If work was available, Ms. Schutter was assigned a remote work location for the day, and had the option to either take public transportation for free or ride with a fellow employee or company van for a $1.00 charge each way.  
 
On the morning of October 24, 2001, Ms. Schutter was assigned to work at remote work location and chose to ride with another employee to the work site. Unfortunately, Ms. Schutter was injured in an automobile accident during the commute between Tandem’s office and the remote work location.  
 
After the accident, Ms. Schutter hired Mr. Simon to represent her in the workers’ compensation system. At hearing, the ALJ concluded that Ms. Schutter participated in a “ridesharing” agreement, and therefore was not an employee of Tandem when the accident occurred. Further, the ALJ held that Ms. Schutter’s injuries did not arise out of and in course of her employment because: they did not arise on the premises on Tandem, Ms. Schutter’s travel was not contemplated in the employment contract, and the employment did not create a zone of special danger.
 
Mr. Simon timely appealed the order and argued that Ms. Schutter traveled at the express or implied request of her employer, not as part of a ridesharing agreement. Therefore, Mr. Simon concluded that Ms. Schutter’s injuries were compensable.
 
On review, the Industrial Claim Appeals Office (the Panel) first addressed whether Ms. Schutter was engaged in ridesharing as defined in 10-4-707.5(2), C.R.S. If Ms. Schutter was involved in ridesharing, then she would be outside the scope of employment of Tandem. However, the Panel found that ridesharing did not include travel by an employee away from its business at the employer’s direction. Unlike the “ridesharing” cases cited by Tandem where an employee was returning home from a remote work site, Ms. Schutter was not in route to her home, but rather to a place of business at the direction of Tandem. Therefore, the Panel held that Ms. Schutter was not engaged in a ridesharing arrangement.
 
Next, the Panel reviewed whether Ms. Schutter’s injuries arose out of and in the course of her employment. The ALJ based his conclusion that the injuries did not arise out of and in the course of Ms. Schutter’s employment by reliance on his interpretation of four variables set forth in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Of particular importance, the Madden court stated that when travel confers benefit to the employer beyond the employee’s arrival at work, the travel has been expressly or impliedly requested by the employer, even without compensation for the employee.
 
The circumstances of this case, mainly that the Tandem vans were already on the road, Tandem needed an employee at the remote location, and the designation of an employee as a driver, conflicted with the ALJ’s employment contemplation finding. Therefore, the Panel remanded the decision of the ALJ with instruction to make specific findings of fact regarding whether Ms. Schutter’s employment contract contemplated travel.
 
The ultimate outcome of the case after remand was a victory for Ms. Schutter and receipt of the medical benefits she deserved (See Final Order, Schutter, W. C. No. 4-520-338 (2003). 
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