Pollart Miller 2nd Quarter 2025 Newsletter

2nd Quarter 2025

Newsletter

Colorado Rule 16 Changes

EFFECTIVE JULY 1,2025

The Division of Workers’ Compensation (DOWC) recently announced changes to Rule 16-3(E)(3) regarding the use of a Physician Assistant (PA) or Nurse Practitioner (NP). The changes are effective as of July 1, 2025. The current language states that the physician responsible for all services rendered to an injured worker by a PA or NP “must evaluate the injured worker at least once within the first three visits to the Designated Provider’s office.”

Effective July 1, 2025, the following revised language will take effect:

All Colorado workers’ compensation (WC) claims (medical only and lost time) shall have a Physician responsible for all services rendered to an injured worker by any PA or NP.
For services performed by a PA or NP, the attending Physician must counter-sign patient records related to the injured worker’s inability to work resulting from the claimed work injury or disease and the injured worker’s ability to return to regular or modified employment, as required by §§ 8-42-105(2)(b) and (3)(c) and (d). The attending Physician must sign the WC164 form, certifying that all requirements of this rule have been met.
The Physician must evaluate the injured worker when a treating PA or NP recommends it, when deemed necessary by a Physician, or when requested by the injured worker or Payer.

Read the Article

EMPLOYMENT LAW

Employer Handbooks & Policies

Maura Healy

Pollart Miller wants to remind our great clients that their employee handbooks and policies may be due for a refresh. We will be presenting a series of summaries on newer federal and state laws that may affect your workforce. Reach out to our employment law team for advices, updates, and all things employment.

LEGISLATIVE UPDATE

Arizona Statutory Regulations – AZ SB 1551

Effective July 1, 2025

Megan Bornmann

There are some changes to A.R.S § 23-1044 and A.R.S. § 1031 that will be in effect as of July 1, 2025:

The biggest change is that the dependent credit is now $100/month. Any injured worker on TTD will receive an extra $100 per month if he/she has dependents. This is an increase from the $25 TTD per month credit.
The statute has expanded to make it clear that dental injuries are covered (this was done in practice but was not in the actual statute language).
The definition of interested parties has expanded to include TPAs. TPAs now have the same rights as the carrier to step in for subrogation or other purposes (this was also done already in practice but now is in the statute language).

Want to know more? Contact Megan Bornmann at mbornmann@pollartmiller.com

What is the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act was passed in 2023 and had full effect last summer when the Equal Employment Opportunity Commission (EEOC) passed its final rule concerning the implementation of the Act on June 18, 2024. The EEOC has continued to publish comments and rules about the enforcement of the law.

EMPLOYMENT LAW

Pregnant Workers Fairness Act, 42 U.S.C. Chapter 21G

Maura Healy

These subsequent official comments do not necessarily have the force of law, but they are helpful guidance for employers because they provide insight on how the EEOC interprets the law and intends to enforce it moving forward.

The PWFA requires covered employers to provide reasonable accommodations to a qualified employee’s or job applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The law applies to private employers with fifteen or more employees, as well as federal agencies, employment agencies and labor organizations.

...[more]

Workers' Compensation, Civil Litigation Attorney

SPOTLIGHT

Meet Associate Attorney Megan Bornmann of our Phoenix, Arizona office.

Ms. Bornmann focuses her practice on insurance defense litigation, including representing companies employers and insurance carriers in workers’ compensation, liability, and subrogation matters, as well as representing individuals employers in various civil litigation matters involving claims of Title VII, the ADA, FMLA, and unpaid wages.

To read all of the latest Winning Orders and Case Updates

visit our web blog.

COLORADO WINNING ORDER

Average Weekly Wage Based on Actual Earnings, Not Anticipated Income

Michelle Prince

The claimant was hired as a pet groomer by the employer. The claimant began working for the employer and spent her first two weeks in training for which she was paid. Claimant worked for two weeks as a groomer and then missed a week of employment due to a personal medical issue. The claimant was paid biweekly. After returning to work, the claimant was injured while grooming a dog. The claim was promptly admitted and the adjuster paid temporary total and temporary partial disability benefits based on the two pay periods for which the claimant had worked and been paid prior to her injury. After a final admission was filed, the claimant applied for a hearing on the issue of average weekly wage (AWW) and additional temporary disability benefits.

...[more]

Cook v. Petco, W.C. 5-226-825 (March 18, 2025).

COLORADO WINNING ORDER

Notice of the Final Admission of Liability

Kristi Robarge

Respondents filed a Final Admission of Liability (FAL) based on the authorized treating physician’s determination of MMI and permanent impairment. The FAL was sent to Claimant, Claimant’s counsel, and the Division by email. At the time, the Division staff could not open the attachment and requested that it be resubmitted. Respondents did not resend the admission, so it was not included in the Division file. Claimant did not object to the FAL and did not pursue the Division IME. Claimant argued that the FAL should be void ab initio, or void “from the beginning,” because it was not filed with the Division.

The Director found that, while filing with the Division is required, failure to file with the Division does not change whether the Claimant received the admission and had notice. It was undisputed that Claimant and his counsel received the FAL, but no timely objection was received. The Director found that the time for objecting to the FAL is jurisdictional in nature and cannot be extended by order or agreement of the parties. The claimant’s request to find the FAL as void ab initio was denied.

...[article]

Ianelli v. Brink’s Denver, W.C. No. 5-193-017 (March 31, 2025).

COLORADO WINNING ORDERS

Evidence Required From a Psychiatrist or Psychologist to Support Mental Claim

Brad Miller

The claimant was employed as a Continuing Care Assistant and was assigned to Colorado Mental Health Hospital. On the date of the claimant’s alleged injury, she was assigned to monitor a patient who was classified as a suicide risk and had a known history of violence.

...[more]

Delay in Reporting Work Injury to Medical Providers

Brad Miller

The claimant alleged a left shoulder injury on September 28, 2022, after catching a falling tray holding containers of ice cream. The claimant reported the alleged injury to her employer on the same day but did not pursue medical treatment for her injury. The claimant argued that she was experiencing pain and difficulties with her left shoulder since the injury but still did not seek treatment for the alleged work injury until December 4, 2023. ..

...[more]

Lopez v. Medical Edge Recruitment, LLC, W.C. No. 5-277-242 (March 28, 2025).

Guerrero v. Cygnus Home Serv., LLC, W.C. No. 5-276-942 (April 11, 2025).

CASE LAW UPDATES

Arizona:

Issue Preclusion Denied

Megan Bornmann

In Villegas, the applicant filed a request for hearing protesting compensability. There was a dispute in the medical experts’ opinions as to whether the applicant suffered an aggravation of his pre-existing degenerative lumbar spine condition or whether he had a lumbar strain / sprain. A hearing was held and the ALJ found the claim to be compensable.

...[more]

Villegas v. Indus. Comm'n of Arizona, No. 1 CA-IC-24-0030, 2025 WL 1191727 (Ariz. Ct. App. Apr. 24, 2025).

J-King Excavating v. Indus. Comm'n of Arizona, No. 1 CA-IC-24-0025, 2025 WL 656346 (Ariz. Ct. App. Feb. 27, 2025).

Arizona:

Sole Owner and Employer?

Megan Bornmann

In J-King Excavating, the defendant employer appealed a decision finding that the applicant was an employee. Mr. Ellis was the sole owner of J-King Excavating. In May 2022, he interviewed the applicant, hired her, and instructed her of her job duties. The applicant was provided with a truck, a company debit card, and tools required for her job...[more]

Colorado:

Repaying Benefits and Mileage Reimbursement Due to Fraud

Madison Winker

In Gallegos, the claimant sustained an admitted work injury to his neck on September 5, 2019. From September 2019 to April 2022, Claimant alleged considerable pain in his neck, back, and left shoulder. Claimant also reported to his medical providers that he had lower back surgery in 2012, but no other medical history. When his authorized treating providers released him to restricted duty around late October 2019, the claimant worked for two days before asserting he could no longer work due to the pain, and he never returned to work.

After the Division IME assigned a 39 percent whole person impairment rating with an MMI date of April 28, 2022, the employer applied for a hearing to overcome the Division IME physician’s opinions ...[more]

Gallegos v. Indus. Claim Appeals Office, 2025 WL1419426, No. 24CA1770 (Colo. App. May 15, 2025).

Colorado:

Exception to the Coming and Going Rule

Madison Winker

In Roadsafe Traffic Systems, two claimants were seriously injured in a motor vehicle accident during their commute to work in a RoadSafe company truck. RoadSafe disputed the claims, arguing that the claimants’ injuries did not arise out of and in the course of their employment as they were commuting to work. The ALJ awarded the claimant’s worker’s compensation benefits, and the Industrial Claim Appeals Office (the Panel) affirmed the award. Roadsafe and its insurer appealed the orders to the Colorado Court of Appeals (the Court).

The ALJ ruled in favor of the claimants because (1) the claimants were provided with a company vehicle and fuel card for commuting between home and work; (2) the claimants were working at the time of the accident because they were conducting a pre-shift meeting in their vehicle; and (3) RoadSafe maintained some level ...[more]

Roadsafe Traffic Sys., Inc. & AIU Ins. Co. v. Indus. Claim Appeals Office & Clanton, 2025 WL 1419807, No. 24CA0684 (Colo App. May 15, 2025).

COLORADO CASE LAW UPDATE

Colorado:

Who is Not an Independent Contractor

Madison Winker

In Zuniga, the claimant began working for the employer in November 2023 as a truck driver. The claimant owned his own tractor-trailer truck which he used to transport loads. The claimant had a trade name and a federal employer’s identification number. The claimant was paid by the load and was responsible for expenses of fuel and maintenance on his truck. However, in February 2024, the claimant’s truck broke down and he did not have sufficient funds to make the necessary repairs.

Eventually, the claimant made an arrangement with the employer on February 13, 2024, where the employer loaned a leased truck from GADIS Freight. The expenses for the truck included the lease, fuel, maintenance, and insurance, which were paid by the employer and were recovered by deducting from the amounts owed to the claimant. There was no written lease agreement between the employer and the claimant. From November 2023 to March 14, 2024, the claimant did not drive for other companies, and there was no written agreement between the claimant and the employer.

...[more]

Zuniga v. YDF Speedy Trucking, W.C. No 5-268-749-001 (I.C.A.O. May 1, 2025).