October 2011 

Vol. 2 - Issue 3
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Fall 2011 Newsletter
In This Issue
Recent CO Liability Appellate Decisions
Employment Law Corner
Workers' Compensation Articles
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Fall Foilage

Greetings and Happy Fall 


Everyone at Thomas Pollart & Miller LLC would like to wish you a happy Fall.  This edition of the TPM Newsletter provides recent TPM News.  Also, a review of recent decisions from the Colorado Court of Appeals is provided covering different topics in liability, from liquor liability to loss of consortium.  Furthermore, this edition provides a brief overview of the Family Medical Leave Act.  Finally, this edition provides two discussions on workers' compensation issues in Colorado regarding the Unexplained Fall Doctrine and medical reviews under Workers' Compensation Rule of Procedure 16.  


TPM Ranked 43rd in Law Week Colorado's
Top 200 Law Firms!
For the first time, TPM was recognized by Law Week Colorado's annual Top 200 Colorado Law Firms and we soared right to the top 50!  The Firm extends sincere gratitude to its client and dedicated employees, all of whom sustain its continued growth. 
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Recent CO Appellate Decisions 


Most recently, a couple of decisions from the Colorado Court of Appeals have been issued that impact general liability claims in Colorado.  Here is a brief summary of these decisions:  




The first comes from a Colorado Appellate Court decision in  

Draper v. DeFrenchi-Gordineer.   


The Plaintiff (Husband) filed a loss of consortium claim after his wife, who was seriously injured in a car accident settled with the underlying tortfeasor. He alleged claims of loss of consortium, negligent infliction of emotional distress, and negligent entrustment. The trial court granted summary judgment in favor of Defendant on all of husband's claims primarily because his wife signed the settlement agreement, and he too signed the agreement.  Unfortunately for the carrier and the Defendant, the appellate court found that a loss of consortium claim was a separate claim that creates a distinct cause of action.


The court focused on the language of the settlement agreement resolving wife's claims against defendants, which was very narrow and only addressed the wife's claims. Thus, the appellate court found that an agreement settling the claims of an injured party does not necessarily bar the spouse's claim for loss of consortium or negligent infliction of emotional distress.  


This is a significant change in the law as loss of consortium claims were believed to be only derivative claims and were extinguished if the underlying injured spouse released the claims.  Ultimately, this issue should have been addressed by including much broader release language in the settlement agreement and this agreement should have included a standard indemnity clause so that if the husband brought such a suit, the defense and indemnification would have been the responsibility of the wife, as opposed to the Defendant or the carrier.




One issue that has arisen only affects those folks who deal with liquor sales.  A state court recently ruled that the one year limitation on Dram Shop Act (C.R.S. 12-47-801) claims is a "non-claim" statute; which means the one year limitation in which to bring a claim is an element of the cause of action and without it, divests the court of jurisdiction. Thus, it is not a statute of limitations that can be tolled for any reason because the court cannot consider tolling issues if it lacks jurisdiction.  Now, this was in Boulder County and is not precedent, but it will surely be tested on future cases.     


Overview of the Family Medical Leave Act    

FMLA image  


It is often difficult for working people to successfully balance the demands of a job with personal and family needs. In response to this much-discussed problem, Congress passed the Family and Medical Leave Act (FMLA). The FMLA requires certain employers to allow their employees to take up to 12 weeks of unpaid leave per year to care for a seriously ill family member, to recuperate from their own serious illness, or to take care of a newborn or newly adopted child. In most cases, the employer must reinstate employees when they return from leave.


The FMLA applies to employees if three conditions are met:

  • The employer has 50 or more employees who work within a 75-mile radius, including those who work part time and those on leave.
  • The employee seeking leave has worked for at least 12 months.
  • The employee has worked for at least 1,250 hours (about 25 hours per week) during the 12 months immediately preceding the leave.

An employee is entitled to take FMLA leave only for specified reasons. Not every personal or family emergency qualifies for FMLA leave. The employee must be seeking leave for:

  • Birth, adoption, or foster care. A new parent or foster parent may take FMLA leave within one year after the child is born or placed in the parent's home. Leave may begin before the child arrives, if necessary for prenatal care or preparations for the child.
  • The employee's serious health condition. Generally, an employee who requires inpatient treatment, has a chronic health problem, or is unable to perform normal activities for at least three days while under the treatment of a doctor has a serious health condition.
  • A family member's serious health condition. You must grant leave to an employee who needs to care for an ill family member. Under the FMLA, only parents, spouses, and children are considered family members. Grandparents, same-sex partners, in-laws, and siblings are not included.
  • Military family leave. Employees may take leave to care for a family member who was seriously injured on active military duty or to handle specific issues arising out of a family member's deployment.

Under the FMLA, an eligible employee is entitled to take 12 weeks of unpaid leave in any 12-month period for the reasons listed above. However, an employee who needs leave to care for an injured service member can take up to 26 weeks of leave in a single 12-month period. Generally, when the employee's leave is over, the employee must be reinstated to the same position he or she held prior to taking leave.  

Judicial Interpretation of Rule 16 Invalidates Prior Methods of Denying Prior Authorization Requests

When denying a prior-authorization request for medical reasons, employers/insurers are required to comply with several requirements outlined in WCRP 16-10(B). A recent court decision found that what was previously believed to be an acceptable denial is no longer valid based on a strict reading of the requirements of Rule 16-10(


WCRP 16-10(B) requires a request for prior-authorization be reviewed by a physician,who holds a license in a specialty that would provide the recommended treatment or treat the condition for which the treatment has been requested. The reviewing physician must issue a written opinion and within seven (7) business days after receiving the request for prior authorization, the employer/insurer must issue a written denial stating the reason for the denial. If the denial is based on the recommended treatment not complying with the Colorado Medical Treatment Guidelines, the denial should include a site to the specific applicable provision of Rule 17 exhibits. The denial letter must also state the name and professional credentials of the physician that performed the record review and a copy of the reviewing physician's report should be attached. The denial letter must also include a certificate of service and be sent to the requesting provider and the claimant or claimant's attorney.


Previously, insurers and their attorneys would sometimes rely on a prior IME report to deny the request for prior authorization. For example, if an IME was done in January and the IME physician opined that the claimant's neck condition was not work-related, this report would be used to deny any future requests for treatment of the claimant's neck. 


Recently, an ALJ found that this was not valid. The ALJ found that Rule 16-10(B) requires the actual request for prior-authorization be reviewed by a physician after it is received by respondents.  


Therefore, in the example above, if an adjuster receives a request for neck treatment in February, the adjuster must have this request reviewed by a physician and cannot rely on the January IME report. Thus, the adjuster must send the February request for prior- authorization to either a new physician to review or to the prior IME physician for his/her review. It should suffice for the IME physician to simply review the request and issue a brief addendum to the prior IME report stating he/she reviewed the request for authorization and the claimant's neck condition is not work-related. The adjuster can then use this addendum to file a written denial of the request.


This strict construction of Rule 16-10(B) will now require insurers to obtain a peer review after every request for prior authorization is received, even if the same request for prior-authorization was previously received, reviewed by a physician, and properly denied. This could result in substantial costs for insurers and the potential of missing the deadline for a request. 

The Unexplained Fall Doctrine in Colorado:   

A Contrast of Two Recent Compensability Decisions


When are falls at work truly unexplained and thus not compensable in Colorado? Most recently, two decisions were upheld by the Industrial Claims Appeal Office involving the analysis of whether an injured worker suffered a compensable injury as a result of a fall on the employer's premises. In one case, the fall was found to be compensable, in the other, just the opposite conclusion was reached and the unexplained fall theory was applied.  


First Scenario: Juliet worked in a call center. She left her desk to get information requested by a caller. She was in a hurry because she had left the caller on hold. There were no snags or tears on the carpeting or any other obstruction impeding Juliet's way. Yet, while returning to her workstation, Juliet tripped in the hall and fell on her outstretched arms. Schaffhauser v. National Jewish Medical Center and Tristar Risk Management, W.C. 4-815-335 (ICAO, August 29, 2011).


Second Scenario: Helen was headed to her office from the employee parking lot on the morning of January 8, 2009. To get to her office, she had to walk down a flight of stairs on the outside of City Hall. She stopped at the top of the stairs to converse with some coworkers. She then started to go down the stairs. There was no ice on the street or stairway. Yet, the next thing Helen remembers is being face down at the bottom of the stairs. Helen had no idea what caused her to fall. Rodriguez v. City of Brighton and CIRSA, W.C. 4-782-516 (ICAO, August 23, 2011).


Juliet's claim was found to be compensable. Helen's claim was not. Why? The difference is that Juliet's fall can be explained. The ALJ held that Juliet's fall was a result of a "want of ordinary care" on her part because she tripped while rushing to get information for a client. As a result, the ALJ held that Juliet's fall was in the course and scope of her employment. By contrast, Helen's fall was found by the ALJ to be unexplained. The ALJ found that Helen's fall was not caused by dizziness or any other balance problems. Instead, the evidence, including testimony of coworkers, indicated that there was no hazardous condition which would cause or contribute to the fall and Helen herself testified that she had no idea what caused her fall.


When determining whether a particular fall is compensable, consideration must be made as to whether any facts exist to "explain" why or how the fall happened.  Even if the explanation is as simple as rushing to complete a work task, an ALJ will likely find the fall compensable. However, if the injured worker simply cannot provide any explanation for the fall, consideration for denying the claim should be made under the unexplained fall theory.

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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!