Mark A. Simon - Past Case Summaries

Wilson v. Qwest Communications, Inc., W.C. No. 4-846-802-01 (2012).

Industrial Claim Appeals Office

Final Order
 
Mr. Simon is willing to fight for injured employees, no matter their previous conditions or the severity of the injury. Both were factors in the case of Brenda Wilson, but Mr. Simon took the case to fight for Ms. Wilson’s rights.
 
Ms. Wilson was an employee of Qwest Communications (respondent) on October 19, 2010, when her chair suddenly lowered causing her to experience back pain. Ms. Wilson was given work restrictions, but the pain persisted. She was then referred to Dr. Sacha, who compared a new MRI of Ms. Wilson’s back to a previous MRI taken on April 11, 2009, for a similar back injury. Dr. Sacha opined that the new MRI revealed no changes or worsening of Ms. Wilson’s previous back condition and placed Ms. Wilson at maximum medical improvement with a zero percent impairment rating.
 
After the respondent filed a final admission of liability (FAL) consistent with Dr. Sacha’s zero percent impairment rating, Ms. Wilson requested a DIME which was performed by Dr. Goldman. Dr. Goldman assigned a 22 percent whole person impairment, but apportioned 17 percent to Ms. Wilson’s previous injuries. At the time of the DIME, Dr. Goldman did not have Ms. Wilson’s previous medical records, but indicated that they might be necessary.
 
After the DIME, Dr. Sacha opined that the DIME physician did not follow the any of the approved guidelines or methods for assigning impairment ratings. Therefore, Dr. Sacha stated that the accredited and independently selected DIME physician’s impairment rating was not accurate or appropriate. Dr. Sacha pointed to the absence of a finding of a specific Table 53 disorder, as required by AMA guideline.
 
After Dr. Sacha’s report, the DIME physician reviewed his findings and ultimately lowered his impairment rating. Further, the DIME physician stated that Ms. Wilson was back to a qualitative baseline and that she may not have been any more impaired now as she was before her current accident. Further, the DIME physician noted that Ms. Wilson exhibited four positive Waddell signs indicating non-physiological symptom magnifications and stated that the Ms. Wilson’s symptoms should not be taken at face value. 
 
The administrative law judge (ALJ) found Dr. Sacha demonstrated that Ms. Wilson did not have a rateable impairment, which was evidenced by the unchanged MRIs and lack of a specific injury diagnosis. The ALJ also found that Ms. Wilson’s pain complaints were not reliable basis for assessment for impairment, and dismissed the claim because Ms. Wilson did not sustain a permanent disability.
 
However, Mr. Simon never doubted Ms. Wilson’s credibility or story that she sustained an injury as a result of her chair suddenly lowering. So he filed an appeal with the Industrial Claim Appeals Office (the Panel) and asserted that the respondent failed to meet the burden of proof necessary to overcome the DIME physician’s impairment rating.
 
To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991).  Second, due to this large discretion, the Panel will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
 
The Panel reviewed the record of both the DIME physician and Dr. Sacha and concluded that the ALJ was reasonable in her reliance upon Dr. Sacha’s review of the DIME report. The Panel pointed particularly to Dr. Sacha’s interpretation of the AMA guidelines and the lack of a Table 53 diagnosis as reasoning for its decision to uphold the ruling of the ALJ.
 
Though the outcome of the case was ultimately against Ms. Wilson, Mr. Simon fought an uphill battle to help Ms. Wilson receive the workers’ compensation benefits she deserved. Though medical testimony proved otherwise, Mr. Simon believed Ms. Wilson’s pain complaints and used all of his legal knowledge to attempt to overcome the unfavorable doctor diagnosis.
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Conklin v. Core-Mark International/Cor., W.C. No. 4-828-815 (2011).

Industrial Claim Appeals Office

Final Order
 
Michael Conklin was hired as a driver by Core-Mark International/Cor on April 19, 2010. Unfortunately, Mr. Conklin sustained a work-related injury on June 28, 2010 that forced him into a medical leave. Equally unfortunate for Mr. Conklin, was his employer’s policy that health insurance was available to full-time employs only after 90 days of active, continuous employment.
 
In order to receive the benefits he needed for his injury, Mr. Conklin turned to Mr. Simon to help navigate the complications of the workers’ compensation injury. Mr. Simon, aware of the employer’s 90-day health insurance coverage policy, believed that Mr. Conklin was entitled to an increase in his adjusted weekly wage (AWW) in order to cover the cost of obtaining health insurance through Mr. Conklin’s employer or purchasing a similar or lesser plan.
 
Mr. Simon asserted that, under 8-42-102(3) C.R.S., an administrative law judge (ALJ) has discretion in the computation of the AWW of an injured worker. Therefore, due to the unique circumstances presented by the short time span between Mr. Conklin’s date of hire and date of injury, the ALJ should properly exercise his discretion to include into his computation the cost of obtaining health insurance for Mr. Conklin. The ALJ, relying upon the Colorado statutory definition for “wages” concluded that, since Mr. Conklin had not yet received any health insurance benefits, there was no “cost” associated with Mr. Conklin obtaining a health insurance plan on his own which could be included in his AWW.
 
Still under the belief that there was certainly a cost attributable to Mr. Conklin obtaining health insurance, Mr. Simon appealed the ALJ decision to the Industrial Claim Appeals Office (the Panel). To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991). Second, due to this large discretion, the Panel will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
 
The Panel ultimately upheld the decision of the ALJ and denied any increase to Mr. Conklin’s AWW.
 
Though the outcome was ultimately not in Mr. Conklin’s favor, Mr. Simon still fought an uphill battle against both a company policy and an ALJ decision for Mr. Conklin. This is the level of dedication which Mr. Simon exhibits for all of his clients to get them benefits that they deserve.
 
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Ortega v. King Soopers, W.C. No. 4-720-369 (2008).

Industrial Claim Appeals Court

Final Order
 
Mr. Robert Ortega was a hardworking employee of King Soopers (respondent) where his duties included lifting materials and stocking grocery items. From his work, Mr. Ortega developed pain in his neck and hired Mr. Simon to help him receive the workers’ compensation benefits which he was entitled. Mr. Ortega was referred to Dr. Paz, who upon obtaining information from Mr. Ortega about a prior neck treatment, testified that Mr. Ortega’s symptoms and need for medical care were not related to his employment.
 
Regardless, Mr. Simon presented Mr. Ortega’s claim for workers’ compensation benefits to an administrative law judge (ALJ). The ALJ concluded that the totality of the medical reports did not establish an aggravation of Mr. Ortega’s preexisting neck condition and denied the claim.
Mr. Simon believed Mr. Ortega when he said that his injury was caused by his employment duties at King Soopers. Upon this belief, Mr. Simon filed an appeal of the ALJ’s dismissal with the Industrial Claim Appeals Office (the Panel).
 
To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991). Second, due to this large discretion, the Panel will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
 
Mr. Simon first argued that the ALJ’s refusal of a request for continuance was an abuse of discretion. Mr. Simon moved for a continuance of the hearing because, just prior to the hearing, Mr. Simon obtained a medical report that indicated the injury was work-related. The continuance was therefore to give Mr. Simon and opposing counsel the opportunity to question the report’s opining doctor before the claim was heard. Upon objection by the respondent, the ALJ denied the continuance, and excluded all untimely reports filed by both parties, including the report advantageous to Mr. Ortega.
 
Upon review of the record, the Panel found that, though the report was obtained shortly before the hearing, there was no record as to why the report was not obtained sooner. From the record, the Panel concluded that the ALJ’s finding that Mr. Simon failed to establish good cause for continuance was not an abuse of discretion.
 
Alternatively, Mr. Simon argued that Mr. Ortega was denied due process because of the ALJ’s strict interpretation of the rule requiring the exchange of medical records twenty days before the hearing. Though Mr. Simon argued that the correct interpretation of the “twenty day rule” allowed the ALJ to make an exception for the report since it was obtained within the twenty day limit, the ALJ strictly adhered to the twenty day limitation.
 
On review, the Panel stated that they did not “necessarily agree with the ALJ’s interpretation of (the twenty day rule).” However, the Panel was not persuaded by the facts of the case that the ALJ’s decision to exclude the testimony was outside the bounds of reason, and therefore did not violate Mr. Ortega’s due process rights.
 
Even in the face of time constraints, an unfavorable doctor’s report, and objections from opposing counsel, Mr. Simon did everything in his power to help Mr. Ortega.
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Olivas v. Apt Service, Inc., W. C. No. 4-711-385 (2007)

Industrial Claim Appeals Court

Final Order
 
Robert Olivas was employed as a tow truck operator for Apt Service, Inc. on January 5, 2007. On that day, Mr. Olivas drove a tow truck with a manual transmission to the home of a woman to assist her in pulling her car out of a snow bank. After Mr. Olivas tilted the bed of the tow truck, he slipped and fell while pulling a cable to connect his truck to the woman’s car. Mr. Olivas stopped his fall and felt a sharp pain in his right shoulder. Despite the pain, Mr. Olivas continued to tow cars until the end of the day, until around 7:00 P.M. that evening. At that time, he signed his time card and picked his check up from the owner’s office at Apt Service.
 
Mr. Olivas did not mention the injury to his employer the night it occurred, but the next morning was unable to attend work because of severe pain in his shoulder. Around 9:00 A.M., Mr. Olivas’ wife called the employer to explain Mr. Olivas’ condition, and she was told to take Mr. Olivas to Concentra, which was open until noon. Due to pain and complications, Mr. Oliva was unable to get to Concentra before it closed, so he was seen at an emergency room. At the emergency room, the treating physician noted that Mr. Olivas could not lift his arm above his right shoulder and that Mr. Olivas was in acute pain from his fall on the ice.
 
After attempts to return to limited-duty work, Mr. Olivas again had to visit the emergency room on February 2, 2007, due to increased pain in his shoulder and pain and tingling in his hands.
Mr. Olivas then hired Mr. Simon to pursue proper treatment from his workers’ compensation benefits. Unfortunately for Mr. Olivas, other witnesses testified against his story. First, the woman that Mr. Olivas helped testified that Mr. Olivas did not appear to be hurt and did not see him fall while he helped her. Further, she testified that she did not believe Mr. Olivas could have injured himself between when she called the tow company and when she first saw Mr. Olivas. Second, the company’s owner testified that Mr. Olivas would not have been able to operate his truck without the use of right hand and arm.  
 
Regardless, Mr. Simon understood and believed Mr. Olivas when he told him that he was injured on the job and that he needed Mr. Simon’s help to receive workers’ compensation benefits. Upon review of the claim, the administrative law judge (ALJ) was not persuaded that Mr. Olivas could have performed his duties after the injury Mr. Olivas claimed, and determined that Mr. Olivas failed to establish that he sustained a work-related injury.
 
Upon Mr. Simon’s belief in Mr. Olivas’ account of the story and reported injury, Mr. Simon appealed the decision of the ALJ to the Industrial Claim Appeals Court (the Panel). Mr. Simon disputed several of the ALJ’s findings and argued that the dismissal of Mr. Olivas’ claim was not supported by substantial evidence.
 
To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991).  Second, due to this large discretion, the Panel will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
 
First, Mr. Simon argued that the customer that Mr. Olivas helped, whose testimony about a lack of time for Mr. Olivas to sustain an injury and was given deference by the ALJ, was not in a position to witness the accident. In response, the Panel stated that although it was conceivable that Mr. Olivas’ injury could have happened as he described, the ALJ made a reasonable inference that Mr. Olivas did not sustain an injury as he described. Since the standard of review for the Panel does not allow it to overturn the ALJ’s decision when the record supports a reasonable conclusion by an ALJ, the Panel upheld the findings of the ALJ.  
 
Second, Mr. Simon argued that the ALJ erred in finding that Mr. Olivas would not have been able to continue working after sustaining the injury he described. Mr. Simon pointed to Mr. Olivas’ testimony that he was not a weak person and simply wanted to complete his job to the best of his abilities. However, the ALJ credited testimony that the truck Mr. Olivas was driving was a manual transmission that required the use of the right arm and hand, and the completion of other duties, as reasons to support the conclusion that Mr. Olivas did not sustain the injury he described. The Panel stated that the ALJ is free to credit portions of Mr. Olivas’ testimony while discrediting the others, and found that the ALJ’s determination that Mr. Olivas would not have been able to work was supported by the record.
 
Third, Mr. Simon argued that the ALJ erroneously allowed lay witnesses to testify as experts, particularly the authority given to the owner’s testimony that Mr. Olivas did not act “out of the ordinary” when he picked his check up. Mr. Simon asserted that the ALJ’s finding that Mr. Olivas had pain and inability to use his right arm were contrary to the owner’s testimony was an improper inference made from the testimony of a layperson.
 
The Panel, however, found that the ALJ only concluded that the findings were inconsistent with pain and inability to use his right arm, which was a permissible inference from the testimony of a layperson. Combined with other testimony, the Panel found that the ALJ did not err in the deference she gave to the testimony of the owner.
 
Ultimately, the Panel upheld the denial of benefits to Mr. Olivas. However, this case is a perfect illustration of Mr. Simon’s commitment to belief in the stories his clients present. Three different witnesses testified against Mr. Olivas’ injury, but Mr. Simon still pursued the case for Mr. Olivas because he was his client. Against the odds of the outcome, Mr. Simon went to-bat for Mr. Olivas, and offered every bit of legal expertise he could to help Mr. Olivas prove that his injury occurred.
 
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Rivera v. James Ranches Landscaping Co., W. C. No. 4-674-865 (2007).

Industrial Claim Appeals Office

On November 17, 2005, Manuel Rivera was a hardworking employee of the James Ranches Landscaping Company (respondent). On that day, Mr. Rivera worked with another employee (Gio) to lay erosion blankets on a steep hill that included a sudden drop-off at the bottom. Due to the drop-off, Gio and Mr. Rivera wore safety harnesses with ropes that were anchored at the top of the hill, where a spotter stood for added safety.
 
At some point, Gio became disoriented and removed his safety harness. As Mr. Rivera attempted to help Gio, the pair suddenly fell down the hill and over the edge, and stopped only when Mr. Rivera’s coat caught on his safety line. After untangling the lines, the pair jumped down to the roadway below the drop and Mr. Rivera caught a ride from a flagger on the road to the bathroom before returning to the top of the hill.
 
Despite Gio’s pleas for Mr. Rivera not to report the injury he sustained from the fall for fear Gio would lose his job, Mr. Rivera wrote a note for his supervisor and obtained Gio’s signature. Mr. Rivera then continued to work despite his injury until late January. On January 22, 2008, Mr. Rivera went to the emergency with a chief complaint of headaches from the injury. Then, on January 26, 2008, Mr. Rivera again went to the hospital where X-rays and an MRI of the cervical spine showed degenerative disc disease throughout the cervical spine, but no acute injury.
 
Though Mr. Rivera was clearly injured from the fall, conflicting testimonies caused him great difficulties in receiving the medical care he needed. So, Mr. Rivera hired Mr. Simon for representation in the workers’ compensation system. Mr. Simon was faced with the following conflicting testimonies from other employees at the respondent’s company:
 
The spotter at the top of the hill testified that he never left his post during the day and did not see Mr. Rivera fall. Further, he testified that, if any person had fallen, she was in a position that she would have seen the fall.   
 
The supervisor testified that he never received the note Mr. Rivera claimed he wrote about the incident. Further, on the space provided on the back of each employee’s timecard designated to report injuries, there was no report of an incident on the back of Mr. Rivera’s card for November 17. 
 
The flagger who reportedly took Mr. Rivera to the restroom and back to the top of the hill testified that he did not leave her pots the entire day, she did not see Mr. Rivera fall, and that if he would have fallen then she absolutely would have seen the fall. Further, she testified that she never took only one employee at a time to the restroom.
 
Also, a fellow employee who often talked to Mr. Rivera testified that Mr. Rivera did not mention anything about a fall or injury during their conversations.
 
Upon the facts, the administrative law judge (ALJ) dismissed and denied Mr. Rivera’s claim for compensation. The ALJ concluded that Mr. Rivera’s testimony was unreliable internally, unreliable against the testimonies of the other witnesses, and unreliable against the medical records.
 
Despite the mounting evidence against Mr. Rivera’s claim, Mr. Simon appealed the decision to the Industrial Claim Appeals Office. To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991). Second, due to this large discretion, the Industrial Claim Appeals Office (the Panel) will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
 
Though the decision of the ALJ was ultimately upheld, it was not for lack of effort on the part of Mr. Simon. 
 
 
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