Spring 2012  

Vol. 3 - Issue 1
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Spring 2012 Newsletter
In This Issue
Workers' Compensation Training Course
Change to the 18-Month Division IME Process
Women and Carpel Tunnel Syndrome
State Employees and FMLA
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CO Division of Workers' Compensation

Thomas Pollart & Miller LLC   

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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 information about an up and coming Workers' Compensation Training Course.  Also, a review of a recent Industrial Claim Appeals Office decision is provided covering a recent change in the 18-Month Division IME process. Furthermore, this edition provides a brief overview of considerations to be made in determining whether carpel tunnel diagnoses for women are work-related.  Finally, this edition provides a discussion on a recent United States Supreme Court decision impacting public employees and pursuing Family Medical Leave Act violations against state governments.   


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Workers' Compensation Training Course


TPM attorneys Emily F. Ahnell, Trent E. Rinebarger, Ian R. Mitchell, and Douglas A. Thomas will be teaching the "Workers' Compensation Training Seminar & Workshop" which will be held at Staybridge Suites Denver International Airport.  The address is 6951 Tower Road, Denver, Colorado 80249. This is a three day seminar.  The dates for this seminar are May 21, 2012 through May 23, 2012 from 8 a.m.-4 p.m.


The training course covers strategies for tracking, monitoring, managing, and avoiding workers' compensation incidents.


To see what's covered, or to enroll, go to:




or contact Douglas A. Thomas at (720) 488-9586 or at dthomas@tpm-law.com for further details.



 ICAP Rules that 18-Month Division IMEs Can Only Address Issues of MMI and Causation and Not Permanent Impairment


Last week, the Colorado Industrial Claim Appeals Office (ICAP) in Meza v. Swift Foods, et al, (W.C. No. 4-625-053), determined that the 18-month Division IME process now only applies to determining the issues of maximum medical improvement and causation. ICAP specifically reasoned that the Colorado Workers' Compensation Act requires that an authorized treating provider in the first instance must address the issue of permanent impairment and thus, any opinion given by the 18-month Division IME on impairment is only advisory and not given any presumptive weight.


Consequently, employers and insurers are no longer able to base the filing of a Final Admission of Liability on the 18-month Division IME's opinion as to impairment. Instead, ICAP has advised that if any party disagrees with an 18-month Division IME's opinion as to causation or MMI, that party may challenge that determination by filing an Application for Hearing and seek a determination by a merits judge. Accordingly, if either party does not challenge the 18-month Division IME's opinion as to causation or MMI, then the injured worker is to return to the authorized treating provider for determination of permanent impairment.


Once the authorized treating provider provides an impairment rating, then employers and insurers are now required to either admit for that rating or challenge that rating by pursuing a second Division IME. Similarly, if the employer or insurer admits to the authorized treating physician's rating, claimant can also challenge that rating by pursuing a second Division IME.


This will ultimately lead to the potential for dueling Division IME opinions. In the Meza decision, ICAP concluded that the 18-month Division IME will be given presumptive weight as to causation and MMI. The second Division IME will also have presumptive weight to causation but permanent impairment as well.  As a result, not only will there potentially be conflicting opinions from two Division IME physicians as to the medical causation of injuries, but according to ICAP the system following an 18-month Division IME potentially requires use of an entirely separate and different Division IME physician for determination of permanent impairment.



Women and Carpal Tunnel Syndrome


In the '60s and '70s, women began entering the work force in unprecedented numbers. Coincidentally, diagnoses of carpal tunnel syndrome (CTS) started increasing.   Many of the jobs women did involved typing, so it was easy to conclude that constant keyboard use caused CTS. This is what earlier studies suggested.  


However, more recent studies have debunked that conclusion. In general, no association has been found between keyboarding and CTS; in fact, there are hints that keyboarding may actually prevent CTS.  How can the rise in reported CTS cases be explained for women employed in typing positions?  Current studies have established that one of the primary risk factors for developing CTS is simply being female. Others are a high body mass index, diabetes, thyroid conditions and age.


The Colorado Medical Treatment Guidelines for cumulative trauma conditions categorize the evidence for specific risk factors based on the available scientific studies. The categories include "Strong" "Good" "Some" and "Evidence Against Specific Risk Factors." These guidelines state that there is good evidence that keyboarding seven hours in a good ergonomic position is "NOT RELATED" to CTS.


The treatment guidelines contain a wealth of information on the cause of CTS and other cumulative trauma conditions, and when presented in contested cases, administrative law judges frequently find in accordance with the guidelines. As the erroneous correlation between typing and CTS has shown, it simply cannot be assumed that poorly defined "repetitive" activities are the cause of cumulative trauma disorders, especially CTS.  Consequently, employers and insurers should consider reviewing and possibly challenging the compensablity of claimed CTS cases that are based on "repetitive" activities.   


Public Employees Cannot Sue for Monetary Relief in Family Medical Leave Act Self-Care Cases


In Coleman v. Court of Appeals of Maryland, No. 10-1016 (Mar. 20, 2012), a divided U.S. Supreme Court ruled that states may not be sued for monetary damages by their employees for federal Family and Medical Leave Act (FMLA) violations where an employee's FMLA claim is based on FMLA leave to deal with the employee's own serious health condition. The Court ruled that Congress did not properly remove the states' sovereign immunity for these types of claims when it passed the FMLA. Importantly, however, the Court's ruling does not affect state employees' entitlement to FMLA leave.


For state employers, Coleman means that employees can no longer bring claims for monetary damages relating to an employee's request for leave to care for his or her own serious health condition. Importantly however, state employees remain eligible for self-care leave under the FMLA. They may sue for injunctive relief (such as reinstatement or a change in the state's policies and practices). As the dissent points out, the U.S. Department of Labor also may seek relief on state employees' behalf, including monetary damages.

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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!