January 2010
Vol. 1 - Issue 1

TPM Newsletter
Thomas Pollart & Miller LLC
In This Issue
Colorado Workers' Compensation Update
Employment Law Corner
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CO Division of Workers' Compensation

Thomas Pollart & Miller LLC

5600 S. Quebec St., Suite 220-A
Greenwood Village, CO 80111

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Greetings and Happy New Year!  Welcome to the launching of the quarterly email newsletter from Thomas Pollart & Miller LLC.  Here and in future issues you will find updates to assist in insurance defense, employment defense and general tort liability matters.  We invite you to read and review every newsletter and to contact us with any follow-up questions that you may have.  Subscriptions are free and will be sent out on a quarterly basis.  We further invite you to forward our newsletter and to make suggestions about any future topics that you would like to see discussed.  If this newsletter has been forwarded to you and you wish to subscribe to future issues, please send an email to ThomasPollart&MillerLLC@tpm-law.com or simply click on the "Join our Mailing List" link.   If you no longer wish to receive future issues to the TPM Newsletter, please send an email to ThomasPollart&MillerLLC@tpm-law.com

Thank you for reading! 
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.

Colorado Workers' Compensation Update

Most recently, two new decisions have been announced that impact the recovery of overpayments for respondents in  Colorado Workers' Compensation.  This article is a brief summary of  these two recent decisions that serve as reminders of additional tools to reduce indemnity liability and seek repayment of any overpaid funds from claimants. 

Reopening to Recover an Overpayment

C.R.S. Section 8-43-303(2)(a) provides within two-years after the date the last temporary or permanent disability benefits become due or payable, the director or administrative law judge ("ALJ") may review and reopen an award on the ground of fraud, overpayment, error, mistake, or change in condition.  This statute along with recent case law interpreting it, provides a reminder of the mechanism of reopening a claim in order to recover an overpayment after favorable pre-existing medical history on a claimant is discovered or when respondents mistakenly calculate a benefit award. 

Krauth v. Great West Life and Annuity

In the context of learning about favorable pre-existing medical history on a claimant, the Industrial Claim Appeals Office recently upheld an ALJ's reopening of the claim to award an overpayment to respondents.  Here, prior to closing the claim, the Division IME awarded seven percent whole person impairment for a 2007 low back injury.  Respondents filed a Final Admission of Liability admitting to the seven percent whole person impairment.  After the claim closed, respondents learned that claimant received a seven percent whole person rating for a low back injury occurring in 2000.  Respondents filed a petition to reopen  based on fraud and mistake, and proceeded to hearing arguing (1) the Division IME's opinion as to impairment was incorrect and (2) an entitlement to an overpayment for the payment of the seven percent whole person impairment.  The ALJ denied respondents' reopening attempt on the basis of fraud, but granted the reopening on the basis of mistake and ordered claimant to repay respondents $20,152.72 for overpaid permanent partial disability benefits.

Claimant appealed, arguing in part, that the ALJ erred in reopening the claim because respondents did not prove a statutory mistake that supports reopening.  ICAO disagreed and noted that a mistake under the reopening includes mistakes of law and fact.  ICAO further found that substantial evidence in the record existed to support the ALJ's order and his findings that the claimant was not honest in the disclosure of the prior low back injury that was subject to the mistake of fact.  Consequently, ICAO affirmed the reopening and the ALJ's ordering of claimant to repay respondents the $20,152.72.    

Simpson v. Indus. Claim Appeals Office

In this case, the employer discovered that it had overpaid claimant for temporary total disability and permanent partial disability benefits.  When claimant applied for and received a lump sum award for permanent total disability benefits, the employer credited the lump sum amount against the overpayment.  Claimant objected and pursued a hearing arguing that the permanent total disability rate was wrongfully calculated and alleged penalties.  The ALJ determined and ICAO affirmed the decision that the employer was entitled to the overpayment.  The Colorado Court of Appeals similarly affirmed the ordering of the overpayment based on the application of C.R.S. Section 8-43-303(2)(a).  


Both of these recent cases from ICAO and the Court of Appeals seem to suggest that the courts are permitting respondents to reopen claims to recover overpayments and specifically have the claimant ordered to repay overpaid monies that either resulted from mistakes from the non-disclosure of prior medical histories or improper calculations.  As such, these cases serve as a reminder of this available mechanism.

It should be further noted that the Colorado Workers' Compensation Act now mandates that any attempts to collect overpayments must be asserted by respondents within one-year after the time respondents knew of the existence of the overpayment. (C.R.S. 8-42-113.5 (1)(b.5)).  Therefore, if respondents wish to pursue a reopening for purposes of recovering an overpayment, such filing must be made one-year after the time respondents knew of the existence of the overpayment.  

Employment Law Corner
Every month this section of the newsletter will address a variety of employment law issues currently being faced by a variety employers in the State of Colorado.  Whether a large or small business owner, the issues discussed will assist in providing updated insight into the ongoing changes of not only Colorado employment law, but applicable Federal laws as well.  This month a brief overview of the recent amendments to the American with Disabilities Act is discussed. 
Overview of the Recent Amendments to the Americans  with Disability Act
 ADA Sign
On September 28, 2008, the Americans with Disability Act Amendment Act of 2008  (ADAAA) was signed into law by the President of the United States.  The amendments make significant changes from the original Americans with Disabilities Act previously enacted in 1990. 

The underlying protections against discrimination under the original ADA have remained the same even with the new amendments. The Act provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment."    
The Act retains the ADA's basic definition of "disability" which is shown by the existence of an impairment that either (1) substantially limits one or more major life activities, (2) is documented in record form, or (3)  is "regarded as" by the employer of having such an impairment.  However,  the recent amendments change the way that these three statutory terms should be interpreted in several ways. Most significantly, the amendments:
  • directs the Equal Employment Opportunity Commission (EEOC) to revise that portion of its regulations defining the term "substantially limits";  
  • expands the definition of "major life activities" by including two non-exhaustive lists: (1) the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating) and (2) the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
  • states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
  • clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
  • provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.
With these changes, Congress has broadened the definition of "disability" thereby opening the door to more potential claims for reasonable accommodations as previously required by the older version of the Act.  This could potentially impact employers with an increase in requests for accommodations and/or claims being pursued by prospective, current and former employees. 
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 email 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