April 2011 

Vol. 2 - Issue 1
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Spring 2011 Newsletter
In This Issue
TPM News and Notes
Colorado's Going to -Coming From Work Rule
New Proposed Colorado Workers' Compensation Legislation
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Joshua D. Brown, Esq.


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Greetings and Happy Spring!    


Everyone at Thomas Pollart & Miller LLC would like to wish you a happy Spring.  This edition of the TPM Newsletter provides some exciting firm news, as well as the launching of our new website. Furthermore, this edition provides a review of the complex "Going to/Coming From Work" rule and its analysis in Colorado workers' compensation claims.  Finally, this edition provides a review of recently proposed Colorado workers' compensation legislation.  

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Launch of the New and Improved TPM Website

We are happy to announce the recent launch of the new firm website.  The address will remain the same and can be found by clicking TPM Website 


 TPM Home Page


This new site provides in depth information about the firm's practice and attorneys, as well as updates on recent TPM News and Notes.  Also, as a service to our clients, the website has an archive of all previous Newsletters and Legal Updates that can be easy accessed and reviewed.  Please feel free to take a minute and review the site.   

TPM News & Notes   

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Douglas A. Thomas recently successfully defended a third-party administrator (TPA) against a civil fraud/bad faith lawsuit.   After a four-day trial, a Denver jury returned a fully favorable verdict, finding on all counts for the firm's client.   The trial was held before Judge William Hood in Denver District Court.  The Plaintiff's allegations included that Defendants had engaged in fraud during the course of adjusting a workers' compensation claim.  After presentation of medical and industry experts, the six-person jury awarded no damages to the Plaintiff.  


Margaret Keck recently won a  workers' compensation hearing before Judge David P. Cain in Denver for one of the firm's retail clients. The claimant had alleged a work related rotator cuff injury, for which she was seeking extensive medical and wage loss benefits.  Ms. Keck presented the testimony of an orthopedic expert at hearing.  The expert was provided with records that  showed a pre-existing condition to the same body part.  In conjunction with the expert's testimony, Ms. Keck presented the testimony of the claim representative to directly contradict the testimony provided by the claimant.   Based on the testimony, Judge Cain denied and dismissed all claims brought by the claimant.


The Colorado Court of Appeals recently affirmed a lower decision of the Industrial Claims Appeals Office (ICAO) denying benefits to a claimant in a case successfully litigated by Eric J. Pollart.  The claimant sustained a compensable shoulder injury and underwent surgical repair.   The claimant argued that the impairment rating he received from his treating physician for his shoulder was inadequate and  sought entitlement to amounts based on impairment to his body as a whole.  Claimant retained an expert who frequently appears on behalf of claimants at hearing.  The expert testified that the claimant was entitled  to impairment as a whole person.  Judge Theodore Krumreich rejected the opinion of  the claimant's expert and denied the claimant's claim. See Gonzales v. Industrial Claims Appeals Office of the State of Colorado, Transervice Lease Corporation, and Travelers Indemnity Company of America, Court of Appeals No. 10CA1014 (February 3, 2011).    


The Lexis/Nexis File & Serve Newsletter recently recognized Kim Brown as its practice tip winner.  The national publication of the electronic legal research giant cited Ms. Brown's practice suggestions for filing in both Federal Court and Appellate cases.  Successful representation requires excellence on all levels and Ms. Brown's  recognized expertise of complex case management is part of the service we are proud to provide to our clients. 

Colorado's Going to/Coming From Work Rule and Workers' Compensation Liability


Question mark A recurring issue concerns whether injuries while an employee is going to and coming from work are compensable work injuries in Colorado.  There is a general rule that such injuries are not worked-related.  When deciding whether a claimant is within the course and scope of employment while commuting a comical test can be stated this way:  "car wrecks on the way to or from work aren't compensable as workers' compensation claims unless they are."  With this comical anecdote in mind, it is apparent that application of the general rule has fallen by the wayside and a more detailed analysis has been adopted by the Colorado Supreme Court.


The test for compensability is to determine whether the injured worker was performing some service for the employer which was, in fact, contemplated by his or her contract of employment and which, directly or indirectly, benefits the employer beyond simply getting to work.  Examples of compensable injuries while going to/coming from work may include when an employee's job as a trainer for portrait photographers requires him or her to regularly travel to remote locations at the start of the day,or when a salesman is on a long business trip and an accident results while driving to fulfill this business purpose (as opposed, for example, to a diversion for an afternoon's fishing, errands etc. on the same day).    


In Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the Colorado Supreme Court stated:


"For an injury to occur 'in the course of' employment,' the claimant must demonstrate that the injury occurred within the time and place limits of his employment and during an activity that had some connection with his work-related functions."    


The Court provided a set of factors to consider when addressing this issue:

  • whether the travel occurred during working hours;
  • whether the travel occurred on or off the employer's premises;
  • whether the travel was contemplated by the employment contract; and
  • whether the obligations or conditions of employment created a "zone of special danger" out of which the injury arose."

In Madden, claimant was injured in a single car accident while driving from his home to his employer's temporary construction site in Rifle.  He lived approximately sixty miles from the construction site and the main office  of the employer was seventy-one miles from it.  Additionally, his "working hours" did not begin until one hour after his accident.  Applying the above factors, the Court denied the claim given that the travel did not occur during his working hours, the accident did not occur on the employer's premises, and that the travel was not an added benefit for the employer other than the claimant's arrival at work.     


The key to a successful defense will largely depend on showing that, as a matter of fact, nothing that the employee did other than being at some regular place of business to actually begin work benefitted the employer. In an appropriate case, even the daily transporting of tools to and from a construction site due to theft concerns, especially when done at an employer's request, will make a commute a work-related occurrence.  Depending upon the zeal of opposing counsel (and the gravity of the injury), this will normally require some discovery to learn what claimant will allege he or she was doing at that time, along with the testimony of human resources personnel and/or a supervisor to rebut these claims.                                 

Colorado Senate Bill 11-199


Recently, Senate Bill 11-199 was introduced in the Colorado State Legislature which proposes several changes to various provisions in the Colorado Workers' Compensation Act.   The current version of the bill can be found here.  The bill currently seeks to make four changes to the Act:

  • Maintenance Medical Care.  The bill would require an employer/insurer to admit liability for reasonable and necessary maintenance medical benefits when the authorized treating physician recommends such benefits and if there is no contrary medical opinion;   

  • Discovery.  Represented parties would no longer need to agree to participate in discovery in workers' compensation litigation.  Discovery would be presumed and available for the represented parties to use;  
  • Pre-Payment of Estimated Expenses for Employers/Insurers IMEs.  The bill would require that a claimant be paid his or her "estimated expenses" of attending the Employers/Insurers IMEs including costs for transportation, mileage, food and hotel cost at least three business days in advance of the appointment.  Under the current proposed bill, failure to make payment will be grounds for the claimant to refuse to attend the examination.  Also, the bill provides that if the estimated expenses are properly paid and the claimant does not attend the examination, the Employer/Insurer may recover the costs paid from future indemnity benefits; and   

  • Lump-Sum Compensation Payments. All lump-sum compensation payments would no longer be conditioned on claimant waiving his or her right to pursue permanent total disability benefits, regardless of the date of claimant's injury. 

The Bill is currently in committee, but it is anticipated that it will  become law given the current sponsorship.  

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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!