March 2015 | Newsletter | Case Law Updates
In This Issue
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Quick Employment Law Tip: FMLA time can, and should, be run contiguous with workers' compensation temporary disability time, as long as certain criteria are met.

 

For questions on how best to implement within your company's policies and procedures, please contact us here at Thomas Pollart & Miller LLC at (720) 488-9586.

Greetings and Happy Spring
  
This edition of the TPM Newsletter provides some recent TPM news and a review of recent happenings in the workers compensation field from across the country.
The TPM Team hopes everyone is enjoying Spring!

 

This St. Patricks Day the TPM team had a fun and mischievous time playing Duck, Duck, Steal! Each employee was given a rubber duck and if your duck was left unattended, it just might be gone when you got back to your desk.

The one with the most ducks at the end of the day was awarded a pot of 'gold'. In the end our employees chose to team up and created two separate management team duck pools for the win. Great job guys!

Thank you to our management team for our delicious chocolate fountain and everyone who joined in the fun. It was a great success.
Recent Case Law

When You're Up the Creek Without a Paddle: Joseph C. Irwin Pulls Out an Improbable Win

 

TPM attorney Joseph C. Irwin recently won one of his cases with many obstacles between victory and his client. The City of Pueblo was looking to recover money paid out when police officer Compton was struck by another vehicle blowing through a stop sign. The defendant, Romero, was insured by State Farm.

 

Though there were a myriad of reasons why it was a difficult case to win to begin with the real kicker was this - at the beginning of the trial the judge ruled in favor of the defense, forbidding any mention of the money the City of Pueblo paid out for permanent partial disability and also forbidding any mention of impairment ratings. This order is in direct conflict with the worker's compensation statute and made Mr. Irwin's job that much more difficult moving forward.

 

Through careful argument and courtroom strategy Mr. Irwin was able to get the City of Pueblo a complete win. At the end of the trial a jury rendered a verdict that the City should recover its full lien of $120,000. Costs of going to trial and interest were also awarded to the city. With a separate award, costs, and interest to Compton, total combined judgment with costs and statutory interest exceeded $300,000.

 

The lessons we can take away from this huge win are that even when faced with orders precluding evidence necessary to a case, never concede victory and use the remaining evidence in the best light because it is possible to still succeed. Finally, these orders may be a new trend being brought by defense attorneys against our clients to preclude evidence of medical  impairment and PPD. If this is the case, you should seek to get clarification of these issues early in the litigation process so as not to be hindered right before trial.

 

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Bowl or Bust: How to Utilize Social Media in Investigations  

 

Some insurers are finding that utilizing social media services to combat fraud is saving them time and money with more accurate results. In this day and age everyone is connected through social media and people are constantly posting things online without thinking about the ramifications of doing so.  Adding to this, services such as geo tagging create date and time stamps associated with posts, videos and pictures. People are essentially providing the evidence needed to prove their claim is fraudulent.

 

This evolution of how we share media and our lives with the world has happened so rapidly that many people's thinking hasn't caught up. This is where insurers can make use of the quickly changing landscape of social media and harness the information out there for their investigations. In an actual example of a California case our bowler -  a warehouse worker in Los Angeles - claimed he sustained a back injury that prevented him from working. He then posted to Facebook about how he bowled a perfect game, and video surveillance confirmed that he was able to bowl without evidence of injury. This evidence was turned over to the district attorney who prosecuted him for workers' compensation fraud. 

 

TPM attorney Forrest Plesko, who has written in-depth on the use of social media investigation in liability claims defense in an upcoming article in the Denver University Law Review Online, is a staunch advocate of such online searches. "At a minimum," he says, "I do a Google search for the name of every plaintiff in my clients' cases. If that comes up with something, I can then retain a professional investigator to do a thorough online search and report." 

 

This has been a successful strategy. In one recent case, Mr. Plesko learned from an online search that an employee claiming she was permanently, totally disabled had climbed a 19,000 foot mountain on another continent while her claim was pending. "We had pictures from her Facebook account of her smiling at the summit. At the hearing, we used an LCD projector to project the pictures on a large screen during her cross examination. It was a very effective use of this evidence, particularly because it was so contradictory to the testimony she had just given a few minutes beforehand."

 

Whether it is bowling or climbing mountains, social media postings should be remembered as a useful tool to check for fraudulent activity.

 

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Fee Schedules: Not Every State's Laws are Created Equal


 

Workers compensation reform is making its way through the New Hampshire Senate in the form of a bill meant to reduce costs by 7.5 percent. The bill does not, however, impose a price-fixing mechanism which has the support of business groups keeping their eye on the process. The bill would require providers cut their workers compensation charges by 15 percent over the next three years. In addition, it would remove a portion of the law already in existence, which requires the insurers to provide 100 percent coverage. Instead, the burden would fall on providers to justify high charges.

 

A commission is planned to meet and discuss a fee schedule, collecting data to figure out if this is another way to control the high costs of workers compensation in New Hampshire. However, some business owners are skeptical of how it is being handled. The president of the auto dealers association believes that the commission meant to explore the state's options regarding fee schedules is simply delaying the reform and shelving the issue for another day. Forty-four other states already implement some type of fee schedule, and he believes this new law may not be as effective as hoped if the fee schedule is not implemented.

 

TPM attorney Derek E. Long mentions that in contrast to New Hampshire, Colorado does have a fee schedule setting maximum charges for a range of medical procedures, "right down to the amount a doctor can charge for a report. This is consistent with the policy goals behind workers' compensation acts nationwide." Mr. Long continues, "Setting maximum rates allows employers and their insurers to estimate and reserve for typical losses and reduces the cost of mandated medical treatment, while also trying to strike a balance by giving medical providers fair rates."

 

Thomas Pollart & Miller LLC is a civil litigation law firm that provides legal services to businesses throughout Colorado, Nebraska and Utah. The firm's more than 55 legal professionals are dedicated to serving the needs of our clients.

Our goal is simple:  to be the legal service provider and partner of choice for civil litigation. We accomplish this by providing superb client service, aggressive representation and sound advice to achieve our clients' business and litigation goals. We have the experience and resources of an established firm, with the personal attention and sensitivity to costs uniquely tailored for each client.