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September 2014 | Newsletter | Case Law Updates
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Greetings and Happy September

  

Everyone at Thomas Pollart & Miller LLC hopes you've had an amazing summer.  This edition of the TPM Newsletter provides some recent TPM news and a review of recent decisions from the Colorado Court of Appeals.  

 
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Tina Oestreich

Tina Oestreich

Ms. Oestreich practices Workers' Compensation. She has successfully represented clients in all aspects of litigation, including administrative hearings, pre-trial, and settlement conferences. Since joining the TPM team...
CO Appellate Court Updates

 

Collecting Attorney Fees

In Castro v. Lintz , Castro was employed by Lintz Construction, Inc. (Lintz Construction). He was injured during the course of his employment when he fell from the roof of a building while shoveling snow. Castro filed a workers' compensation claim against both Lintz Construction and its owner, Lintz. When Lintz Construction failed to comply with the ALJ's order to pay Castro benefits, Castro successfully obtained an award of penalties for each day in which the award for benefits remained unpaid. Castro then filed a civil action against Lintz alleging that Lintz was personally liable for Lintz Construction's obligations through a doctrine known as "piercing the corporate veil."

Lintz moved to dismiss Castro's claims on grounds that Castro's claims had already been decided in the workers' compensation court. The District Court agreed and granted his motion. It also awarded him attorney fees and costs against Castro based on a statute which allows for the imposition of fees and costs against a party whose civil action is dismissed by motion. However, the Court of Appeals reversed the dismissal.

 

The Court of Appeals held that Lintz's claim for fees was made under the assumption that Castro's claims for piercing the corporate veil were based on tortious conduct by Lintz Construction. It was concluded that Castro's action against Lintz was not one sounding in tort, because the overall purpose of his claims was to collect on the workers' compensation awards and judgment he had already obtained against Lintz Construction, and not to obtain additional tort remedies.

 

Bottom Line: When seeking to collect attorney fees and costs as the result of a successful motion to dismiss, you will need to look at the essence and thrust of the claims. If the plaintiff was using these actions as a means to recover awards from a previous action, awarding fees and costs to the defendant may not satisfy the policy goal "to discourage and deter the institution or maintenance of unnecessary litigation concerning tort claims."



Drug Policy Violations and TTD

In Bollerjack v. Water Edge Pond Service Specialist, LLC (ICAO, W.C. No. 4-905-434-02), the claimant was employed as a "pond specialist". He injured his back while transporting granite in a wheelbarrow on November 6, 2012. He did not advise the employer of the incident until November 19, 2012. He was referred to HealthOne, and was evaluated by Dr. Basow. The doctor diagnosed a lumbar strain, outlined restrictions for the claimant and recommended a course of treatment. The record reflects Dr. Basow would not treat the claimant once the Notice of Contest was filed, so the claimant began treating with his own physician, Dr. Ray. On the date he reported the incident, the claimant was taken for a drug test, which revealed an extremely high level of THC/marijuana. Although the claimant advised his employer that he had a medical marijuana card for shoulder pain and he only used marijuana after work and on the weekends, the claimant was terminated for violating the drug policy. The ALJ ultimately determined that the claimant was not entitled to TTD benefits subsequent to his termination since the presence of marijuana in his system was at such a level to render him impaired while working and in violation of the drug policy. The ALJ also held the right of selection had passed to the claimant and Dr. Ray was the treating physician. However, after the claimant stopped treating with Dr. Ray, the ALJ ruled that the ATP status reverted back to Dr. Basow. The Panel set the latter portion of the ruling aside and held that Dr. Ray remained the ATP. The Panel affirmed the ALJ's decision that the claimant was terminated for cause, and therefore was not entitled to TTD benefits as of the date of his termination since the wage loss was the result of non-industrial factors.

 

Bottom Line: Even if filing a Notice of Contest, to maintain control over the medical aspect of a claim, treatment should be authorized to the extent it is deemed reasonable and necessary by the designated provider. Furthermore, if a drug policy is in place, testing should be conducted at the first available point in time to determine whether the claimant is in violation of the policy. If the claimant is terminated for cause, due to the policy violation, this will negate his or her entitlement to TTD benefits.


 

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Final Admission of Liability and MMI

  

The claimant in Gailey v. Silver Mine Subs (ICAO, W.C. No. 4-764-331-01) sought review of the ALJ's decision denying her petition to reopen for temporary total and increased permanent partial disability benefits due to an alleged changed in condition. The claimant was found not to be a surgical candidate for her injuries to the neck and back and ultimately found to have reached maximum medical improvement. A Final Admission of Liability was filed based upon the Division IME opinion on MMI. Thereafter, the claimant was seen by her personal physician, and reported complaints substantially similar to those present at the time MMI was noted. Nonetheless, the claimant was referred to a surgeon and underwent unauthorized lumbar discectomy and an artificial disc displacement surgery. The restrictions noted subsequent to surgery were identical to her prior restrictions. Furthermore, the claimant reported improvement in her condition as a result of the successful surgeries. The original treating physician assigned an increase in the permanent impairment rating, but this was based upon utilization of Table 53, which accounted for the unauthorized surgeries. An IME found her condition had not worsened since being placed at MMI. Moreover, the claimant did not undergo a second Division IME. The Panel held there was no significance to the surgeries being unauthorized, but rather the determining factor was the absence of evidence that her condition had worsened.

 

Bottom Line: Although a claimant may undergo additional treatment, including surgical intervention, subsequent to a determination of MMI, the claimant's actual presentation of symptoms and restrictions, rather than the nature of the treatment is what governs whether there has been a change in condition to warrant reopening the claim.

 

If you would like more information about these cases, please feel free to call our attorneys at (720) 488-9586.

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