Denver Workers' Compensation
Continuing Legal Education
From time to time, Mr. Simon presents portions of educational seminars for other attorneys. The following is an example of topics in workers’ compensation recently addressed by Mr. Simon.
I. Overview of Laws & Concepts
Presented By: Mark A. Simon, Esq.
October 15, 2015; 9:00 a.m. – 9:40 a.m.
A. FEDERAL WORKERS’ COMPENSATION LAW
B. STATE WORKERS’ COMPENSATION LAW
Litigating Medical Care to Obtain Findings Tantamount to MMI
Claimant’s Burden to Demonstrate Reasonableness, Necessity and Causation of Medical Care;
Respondents’ Rule 16 Pathway to Hearing;
Respondents’ Use of Rule 16 to Reach Adjudication of MMI;
Respondents’ Response to Claimant’s Motion to Strike Application.
Case Law Update
A. FEDERAL WORKERS’ COMPENSATION LAWS
B. STATE WORKERS’ COMPENSATION LAWS
Litigating Medical Care to Obtain Findings Tantamount to MMI
Claimant’s Burden to Demonstrate Reasonableness, Necessity and Causation of Medical CareIt is well established that after the filing of a general admission of liability for medical benefits respondents may contest liability for specific medical treatment on the grounds that the injury has been “cured”, that the treatment is not authorized, that the treatment is not reasonable and necessary or that the claimant failed to establish the “threshold requirement” of a causal relationship between the alleged injury and need for treatment. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Thus the respondents remain free to “dispute liability for specific medical treatment on grounds the treatment is not authorized or reasonably necessary to cure or relieve the effects of the industrial injury.” Balerio v. King Soopers, WC 4-729-226 (ICAO March 11, 2009). This principle recognizes that even after an admission is filed the claimant bears the burden of proof to establish the right to specific medical benefits, and “the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury.” Ford v. Regional Transportation District, WC 4-309-217 (ICAO February 12, 2009).
Respondents’ Rule 16 Pathway to Hearing WCRP Rule 16-10 states as follows:“16-10 CONTEST OF A REQUEST FOR PRIOR AUTHORIZATION
(A) If the payer contests a request for prior authorization for non-medical reasons as defined under section 16-11(B)(1), the payer shall notify the provider and parties, in writing, of the basis for the contest within seven (7) business days from receipt of the provider’s completed request as defined in section 16-9(F). A certificate of mailing of the written contest must be sent to the provider and parties.If an ATP requests prior authorization and indicates in writing, including their reasoning and relevant documentation, that they believe the requested treatment is related to the admitted workers’ compensation claim, the insurer cannot deny based solely on relatedness without a medical review as required by section 16-10(B).
(B) If the payer is contesting a request for prior authorization for medical reasons, the payer shall, within seven (7) business days of the completed request:
(1) Have all the submitted documentation under section 16-9(F) reviewed by a physician or other health care professional, as defined in section 16-5(A)(1)(a), who holds a license and is in the same or similar specialty as would typically manage the medical condition, procedures, or treatment under review; and
(2) After reviewing all the submitted documentation, the reviewing provider may call the requesting provider to expedite communication and processing of prior authorization requests. However, the written contest or approval still needs to be completed within the specified seven (7) business days under section 16-10(B).
(3) Furnish the provider and the parties with a written contest that sets forth the following information:
(a) An explanation of the specific medical reasons for the contest, including the name and professional credentials of the person performing the medical review and a copy of the medical reviewer's opinion;
(b) The specific cite from the Medical Treatment Guidelines exhibits to Rule 17, when applicable;
(c) Identification of the information deemed most likely to influence the reconsideration of the contest when applicable; and
(d) A certificate of mailing to the provider and parties.
(e) Prior Authorization Disputes
(1) The requesting party or provider shall have seven (7) business days from the date of the certificate of mailing on the written contest to provide a written response to the payer, including a certificate of mailing. The response is not considered a "special report" when prepared by the provider of the requested service.
(2) The payer shall have seven (7) business days from the date of the certificate of mailing of the response to issue a final decision, including a certificate of mailing to the provider and parties.
(3) In the event of continued disagreement, the parties should follow dispute resolution and adjudication procedures available through the Division or Office of Administrative Courts.”
c. Respondents’ Use of Rule 16 to Reach Adjudication of MMI
There is also a body of law that holds an ALJ may not, prior to a finding of MMI by the ATP and/or a DIME, terminate all medical benefits by issuing a de facto determination that the claimant has reached MMI. This law finds its genesis in §8-40-201(11.5), C.R.C., which defines MMI as “a point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” Further, §8-42-107(8)(b)(I), C.R.S., provides that an “ATP shall make the determination as to when the injured employee reaches” MMI. Section 8-42-107(8)(b)(II), C.R.S., provides for the selection of a DIME physician to contest an ATP’s finding of MMI or, in certain circumstances, the ATP’s failure to place the claimant at MMI (24-month DIME). Section 8-42-107(8)(b)(III), C.R.S., provides that a “hearing on this matter [MMI] shall not take place until the finding of the independent medical examiner has been filed with the division.” Absent an ATP and/or DIME physician’s finding of MMI the ALJ lacks jurisdiction to determine a dispute concerning the existence of MMI. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo. App. 2002).
Illustrative of these principles is the case of Kaltenborn v. Hobart Corporation, WC 4-123-182 (ICAO January 10, 1997). In Kaltenborn an ALJ found the claimant sustained a compensable aggravation of a pre-existing condition on November 8, 1991 and ordered the respondents to pay medical benefits and temporary disability benefits. Later the respondents sought to terminate the temporary disability and medical benefits on the theory the claimant had reached MMI and his ongoing treatment was related not to the industrial injury but a pre-existing condition. A second ALJ found that the industrial injury was only a “temporary aggravation” of the claimant’s pre-existing condition and that the aggravation was “over as of July 12, 1993 and no further treatment was necessary to cure or relieve the effects of the 1991 injury. Therefore the second ALJ terminated the claimant’s medical benefits and also his temporary disability benefits. The claimant argued to the ICAO that the second ALJ erred in terminating the medical and temporary disability benefits because she had determined MMI in violation of §8-42-107(8)(b). The ICAO affirmed the second ALJ’s order holding that because there was a lack of a causal connection between the industrial injury and the disability for which the benefits were sought it was “immaterial” whether the termination was consistent with §8-42-107(8)(b).
However, in Kaltenborn v. Industrial Claim Appeals Office, (Colo. App. No. 97CA0174, July 31, 1997)(not selected for publication), the Court of Appeals set aside the ICAO’s order. The court noted that determinations of MMI, except in the cases where an 18-month DIME was requested, are to be made by the authorized treating physician. The court stated that the second ALJ’s finding that the claimant had reached his pre-injury baseline by July 12, 1993 and his injury had resolved by that date was simply “an alternate means of stating the conclusion the claimant had reached MMI.” The court held that it was improper for the ALJ to terminate temporary disability and medical benefits based on the finding that no further treatment was reasonable and necessary to cure or relieve the effects of the 1991 injury. See also Lissauer v. Arapahoe House, WC 4-208-121 (ICAO November 26, 2007), aff’d. Arapahoe House v. Industrial Claim Appeals Office, (Colo. App. No. 97CA2132 July 9, 1998)(not selected for publication)(once claimant proves causal connection between injury and need for treatment the “duration” of the causal relationship is a determination for the ATP and causal connection is presumed to continue until no further treatment is reasonably necessary to improve the condition”; Medical Baca v. Interwest Equipment, WC 4-457-313 (ICAO November 19, 2001).
d. Respondents’ Response to Claimant’s Motion to Strike Application
If the Administrative Law Judge were to vacate the hearing, this claim would be in limbo. Respondents would have properly complied with Rule 16 by filing an Application for Hearing and therefore Respondents would not be liable for the surgery being requested. There would be no forum for this issue to be determined if the Administrative Law Judge were to vacate the hearing.
Claimant has indicated in his Motion that Respondents should request a Division Independent Medical Examination pursuant to Section 8-42-107(8)(b)(II), C.R.S. However, Respondents cannot request a Division Independent Medical Examination as a treating physician has not placed the Claimant at maximum medical improvement. Until a determination is made as to whether the Claimant should undergo the total knee replacement, a determination cannot be made as to maximum medical improvement.
Case Law Update
Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo. App. 1997) appeared to resolve the issue regarding receipt of Colorado Workers’ Compensation benefits by undocumented workers. In Champion, the court held a Mexican National who did not possess legal work status in the United States was entitled to Colorado Workers’ Compensation benefits. The respondents argued that the claimant was not entitled to TTD and TPD benefits because his immigration status caused a “legal disability” that precluded him from proving that any of his wage loss was caused by the effects of the industrial injury. However, the court held that the claimant’s immigration status did not create a “legal disability” that prohibited him from entering into an employment contract. Rather, under federal immigration law the claimant’s unauthorized work status merely prohibited employers from hiring or continuing to employ claimant with knowledge of his unauthorized status. Further, applying the principles set forth in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Champion court held that the claimant’s unauthorized work status did not prohibit him from establishing that “to some degree” his wage loss was caused by the industrial injury.
However, in Gutierrez v. Exempla Healthcare, Inc., supra, the ICAO upheld an ALJ’s ruling that under the termination statutes the claimant was disqualified from receiving TTD benefits because she “acted volitionally when she used a social security number that was not assigned to her for purposes of getting hired.” The claimant argued that the Champion decision dictated a different result. However, in Gutierrez the ICAO pointed out the Champion was decided under the law as it existed prior to enactment of the termination statutes. The ICAO held that the termination statutes were adopted to “overturn PDM Molding, Inc. v. Stanberg, supra” and prevent an otherwise temporarily disabled worker “from recovering temporary disability benefits where the worker is at fault for the loss of post-injury employment, regardless of whether the industrial injury remains a proximate cause of the subsequent wage loss.” The ICAO explained that the termination statutes preclude an ALJ from “finding that a claimant’s post-separation wage loss is ‘to some degree’ the result of the industrial injury where the claimant is ‘responsible’ for the termination.” See also, Enriquez v. Oglebay Norton Co., WC 4-603-526 (ICAO January 21, 2005).
The reasoning in Gutierrez is arguably consistent with the Supreme Court’s subsequent interpretation of the termination statutes in Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 328 (Colo. 2004). In Anderson the Supreme Court acknowledged that “the legislative history to section 8-42-105(4) demonstrates” that PDM Molding “caused concern among employers, their insurers, and members of the General Assembly that [the court] had created a ‘loophole’ promoting illegitimate claims.” As one example of the “loophole” the Anderson court noted legislative history showed that PDM Molding had been applied to award TTD benefits to a claimant who “was not authorized to work in this country” and had “falsified his work documents at his hiring.” 102 P.3d at 329. Ultimately, the Anderson court stated that the “General Assembly intended section 8-42-105(4) to weed out wage loss claims subsequent to voluntary or for-cause termination of modified employment that do not involve a worsened condition.”
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002)