April 2010
Vol. 1 - Issue 2

TPM Newsletter
Thomas Pollart & Miller LLC
In This Issue
Colorado Workers' Compensation Update
Employment Law Corner
The Neuropsychologist Dilemma
Quick Links

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CO Division of Workers' Compensation

Thomas Pollart & Miller LLC

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Colorado Workers' Compensation Update

Denver

IME Audio Recordings - An Overview

 

Through the amendment of             8-43-404(2), C.R.S. (2009) and the adoption of W.C.R.P. Rules 8-8 through 8-13, Colorado has taken the position that some oversight of the IME process is appropriate.  Audio recordings of workers' compensation IMEs are automatically permitted. 

 

The pertinent amendments to 8-43-404(2), C.R.S. (2009) now have several new requirements:

  • The examining physician must prepare a written report describing the examination performed and describing all written materials reviewed, along with all findings and conclusions made;
  • An audio recording of the IME must be made in its entirety and retained by the physician;
  • The physician must disclose to the employee at the beginning of the exam that it will be recorded; and
  • If a recording is requested, an exact copy must be provided to the parties. 

Note that these amendments became effective on August 5, 2009, but by the terms of the new law, they "shall apply to workers' compensation claims filed on or after the applicable effective date of this act."

 

The Colorado Division of Workers' Compensation promulgated the new W.C.R.P. Rules 8-8 through 8-13 to provide details on how the recordings are to be accomplished.  A summary of the key requirements under Rules 8-8 through 8-13 are as follows:

  • "Anytime" prior to the IME, a form that has been promulgated by the Division must be given to the claimant for his or her signature.  The form provides information regarding the IME process.  The claimant must sign the form, or the IME cannot proceed;
  • The audio recording must be saved in a digital format by the examining physician. The physician may charge $30 for recording the examination and $20 for each copy of the recording that is provided;
  • The physician must provide to "both parties" a written report of the IME;
  • If a party requests a copy of the recording, the first copy must be provided to the claimant regardless of who makes the request.  The requesting party must pay for the claimant's copy;
  • Any party may request a copy of the recorded examination within 20 days of "the date the written medical report was issued;"
  • Any request for a copy of the recording must be in writing, accompanied by payment of the $20 fee and copied to all other parties. Regardless of who makes the initial request for the recording, the physician must provide the recording only to the claimant within 15 days of the request;
  • Within 15 days of when the recording is "provided," the claimant must state in writing any portion of the recording that should remain confidential on a form issued by the Division of Workers' Compensation. If the claimant does not provide this statement within 15days, the respondents may request a copy of the recording in writing from the physician. No time limit is stated for this request, but the physician must provide a copy of the recording to the respondents within 15 days of the date the request is received;
  • Within ten days of the claimant's written statement being "provided" to the respondents, the respondents may file a response with the Division's Customer Service Unit;
  • The Division will submit the claimant's written statement, any response thereto, the recording, and the IME report to an ALJ.  An ALJ will rule on the claimant's allegation that part of the recording should remain confidential.  If the ALJ determines that part of the recording should be confidential, the ALJ "shall then produce, or cause to be produced, a copy of the recording with the confidential information redacted;" or 
  • If the ALJ determines that no redaction is necessary, the recording will be returned to the claimant and the respondents may request a copy of the recording from the doctor within 20 days of the date of the ALJ's order.

However, given the complexity of the new Rules 8-8 through 8-13, there will be many questions left unanswered regarding this process which will probably require many case-by-case evaluations and issues raised to the administrative law judges.  For example, it appears that these recording requirements only apply to claims that were filed on or after August 5, 2009.  An issue arises when a work-related injury occurs before August 5, 2009, but a "Workers' Claim for Compensation" is not filed until after August 5, 2009. 

 

Also, there is no indication as to what equipment is required for the recording of the IMEs.  Consequently, physicians have expressed some confusion over what equipment is required and if video equipment may be used.  At this point, the specific kind of equipment has been left to the discretion of the physicians with the caveat that if the recording fails, they may be required to repeat their examinations for no additional fee. 

 

Another issue concerns whether respondents may seek and obtain recordings of IMEs conducted by claimant's experts.  There is no answer to this question.  Whatever the reasons are for permitting recordings of respondents' IMEs, it might be argued that the same concerns apply as well to claimant's IMEs by their own experts.  Thus, it is possible that respondents will seek orders requiring claimants to record IMEs with their own experts. 

Employment Law Corner

This quarterly edition of Employment Law Corner addresses the potential legal issues and liabilities that may arise when employers utilize social networking websites either as an online day-to-day business tool or while conducting online monitoring of applicants and current employees.  In the last several years, there has been an explosion in the popularity of online social networking websites.  Websites such as Facebook, MySpace, Twitter, and other online blog websites can present a tremendous amount of opportunity for employers, but at the same time present a series of legal pitfalls.  This article will discuss what legal issues employers must consider with social networking websites in the workplace.

 soc. networks

There are several issues that must be considered prior to engaging in such monitoring or adopting the use of social networking websites as a day-to-day business tool. Specifically, employers must understand the potential issues of discrimination, privacy, privilege, and confidentiality.   

 

Discrimination Concerns

A discrimination claim may arise when an employer uses social networking sites to pre-screen candidates.  Employers have increasingly used social networking websites to provide insight into whether a candidate will fit into a company's cultural makeup along with other extensive justifications for screening applicants through such monitoring.  Employers must understand, however, that in pre-screening an applicant's Facebook or MySpace page, an employer might become aware of a candidate's race, religion, gender, sexual preference, age, nationality, marital status or disability.  Consequently, through searching these sites, employers might obtain information about applicants they otherwise would not have known by simply interviewing applicants.  As a result, such information learned may result in improper hiring decisions based on information that they cannot legally use in making hiring decisions.  This pre-screening issue potentially implicates a number of federal employment statutes including the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Uniform Services Employment and Reemployment Rights Act (USERRA).  If employers utilize information such as age, disability, race, sex, etc., as the basis for denying employment to applicants, liabilities from the above listed statutes could result. 

 

Privacy Concerns

Another issue that arises with social networking in the workplace is privacy.  It should be noted that employers must be aware that monitoring through use of social networking websites may result in invading employees' privacy.  Generally, an employer may infringe upon an employee's privacy rights if the employee's interest in keeping the social networking information private outweighs the employer's interests in obtaining the information and the employer nevertheless requires that the employee provide such information.  A key component of this issue is that an employee must take reasonable efforts to keep the information private. 

 

Hence, if an employee has not restricted access to the information, i.e., allows the worldwide web viewing public to view such information, then the employee did not take the reasonable steps to keep the information private from an employer.  However, if an employee has a personal webpage that is accessible only to those who enter a proper user name and password and/or other processes in recovering the information, then the employee has taken reasonable steps to keep the information private.  In this latter example, the employee would have a privacy interest in the information posted on his or her social networking webpage.  Employers should know that if they choose to access information that employees or applicants have posted in a private manner on such websites, there could be potential liability if employers seek to obtain such information without permission from the employee or applicant.

 

Privilege and Confidentiality Concerns

Finally, some courts have found that employers violate state professional conduct ethics rules by retaining and using e-mails protected under the attorney-client privilege doctrine.  At times, information posted via social networking sites can be obtained through the employee's e-mails that were sent through the employee's work computer.  This information may have also been sent to an employee's attorney and later accessed by the employer.  While this is an issue of first impression in the Colorado courts, this question will likely turn on whether the employee took adequate steps to protect the confidentiality of her privileged communications between herself and her attorney.  Thus, while this area of confidentiality is unclear, the lesson for employers is to have a properly-drafted e-mail policy that is disseminated to employees and updated as appropriate that clearly identifies the loss of such confidential privileges. 


Social Networking Website Policy

It is further recommended that the adoption of a social networking policy should also be developed to avoid the potential legal issues discussed above.  In choosing to adopt such  a policy, the employer should consider the goals of this type of policy which include protecting a company's:  (1) trade secrets, confidential, proprietary and privileged information; (2) reputation; and (3) privacy of its employees.  Furthermore, an effective social networking policy should establish guidelines regarding whether employees can use social networking websites during working hours, and if so, under what circumstances. 

 

Conclusion

Due to the ever-increasing popularity of social networking websites, employers must embrace that day-to-day use of such websites can provide useful resources.  With that said, employers should consider and recognize the potential liabilities that may arise when attempting to take advantage of these resources.


The Neuropsychologist Dilemma

In today's litigation, more and more cases involving head injuries include additional subjective claims from claimants and plaintiffs of cognitive dysfunction and impairment including symptoms such as word finding problems, confusion, and emotional instability.  To address these limitations and alleged injuries, an independent medical examination and report from a licensed neuropsychologist are becoming increasingly more useful. 

 

Concussion syndromes, along with psychological effects of closed head injuries, are often impossible to verify with objective radiological studies such as MRIs or CT scans.  Neuropsychologists, however, run a scientific battery of tests, the results of which can be convincingly explained with supporting evidence to a jury or a judge.

 

The dilemma in utilizing a neuropsychologist arises when the parties request the use of, or access to, the raw testing data compiled during the independent medical examination.  Neuropsychologists frequently refuse to disclose the raw test data based on ethical objections. The American Psychological Association Ethical Principles and Code of Conduct 9.04 states, "Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test..."  This refusal to disclose the raw test data creates a confrontation between the legal rules of disclosures in both workers' compensation and the Colorado Rules of Civil Procedure.

 

The purpose of discovery is to eliminate surprise or ambush at trial and to give both parties' access to information that can help them to better value the case.  A report from a neuropsychologist, along with the underlying data can confirm the presence of cognitive dysfunction and significantly increase the value of a claim.  Alternatively, a report showing no evidence of cognitive impairment or injury coupled with the absence of an objective injury can thwart a party's attempt to inflate their damages.

 

Psychologists and neuropsychologists will also argue that the test questions and responses include copyrighted material which could endanger the integrity of the tests.  This argument is much like the SAT or LSAT sponsors' concerns that dissemination of testing materials could allow future test subjects to artificially manipulate the outcome and invalidate the test scores.

 

One of the effects this issue has on litigation is increased costs and expenses.  Neuropsychological testing usually requires 1 to 2 full days of testing and additional time for the neuropsychologist to evaluate the results and draft a report which can be expensive.  Their refusal to release test data, however, can also create the need for additional discovery motions to the court which can increase litigation expenses and attorney's fees in addressing the issue.

 

Several steps can be taken once a neuropsychological evaluation is contemplated to avoid unnecessary motions practice and expense.  The neuropsychologist's position on disclosures should be addressed prior to their retention to determine whether the issue will arise at all.  Stipulated protective orders in which the other party agrees to release the information only to other qualified neuropsychologists or psychologists have been used in several cases to eliminate the conflict.

 

Ultimately, in Colorado, neuropsychologists can be ordered by the courts to produce the information given the court's discretion and the broad language supporting disclosure in the Colorado rules.  Parties should be aware, however, that in some states legislative statutes have been passed creating an exception to the judicial rules of discovery foreclosing the ability of a party to obtain this type of information from psychologists.  A careful analysis of the jurisdiction and the necessity to your case of the underlying test data should be considered early on and the costs associated with obtaining such materials should be included in any discussion regarding the retention and use of a neuropsychologist or psychologist expert.    


This Newsletter is prepared as a service to our clients and prospective clients. This publication is not intended as a substitute for professional advice in a given case.   Instead, this publication is meant to advise the reader as to general legal principles and trends.  We welcome feedback concerning the Newsletter or suggestions for future topics to discuss. Please contact us with your specific questions. If you would like to receive this Newsletter by e-mail when it is published, send a message to ThomasPollart&MillerLLC@tpm-law.com requesting to be added to the Newsletter list.  If you would no longer like to subscribe to this Newsletter, please send a message to ThomasPollart&MillerLLC@tpm-law.com.

Again - Thank you for reading!  

Thomas Pollart & Miller LLC
Firm Overview

The firm of Thomas Pollart & Miller LLC provides aggressive, comprehensive and responsive legal services to employers, businesses, and insurance carriers throughout Colorado, Utah, and Nebraska.  The firm emphasizes litigation defense in insurance defense with an emphasis on workers' compensation and subrogation claims.  In addition, the firm also represents clients in employment law and general tort liability defense.  However, representing employers and insurance carriers in litigated claims is only part of our firm's practice, as we aggressively represent our clients in all facets of the defense arena by providing both front-end legal advice and counseling, in addition to the back-end litigation defense.  Our attorneys have drafted workers' compensation legislation, handled bad faith claims, and advised clients on policy and commercial contract issues.  Our attorneys also provide employers comprehensive advice on handling employment issues as well, inclusive of the development of and drafting of employment handbooks, defense of discrimination claims, commercial contracts review and drafting, and general liability claims.