FEBRUARY Newsletter
Utah Case Law Updates
The activity of lifting less than 50 pounds while turning one’s neck is considere unusual and extraordinary when doing so in a hurry and facing exigent circumstances.
In Watson, the petitioner was employed as a nurse and was caring for a severely disabled child that had a tracheotomy, resulting in a hole in the child’s neck to facilitate breathing. When the petitioner arrived to care for the child, the child was covered in diarrhea from head to toe. Knowing that if the excrement entered the child’s tracheotomy hole there could be life-threatening complications, the petitioner rushed the child to the bathroom...(more)
Legislative Update

The 2021 Colorado Legislative Session technically convened (“gaveled in”) on January 13, 2021. However, the current plan is to return in full on February 16, 2021. A few minor and procedural bills have already been introduced, mainly those to allow the session to commence remotely. A handful of pandemic response bills were passed in a special session in November 2020, in a historic split session. 
Priorities once the regular session starts will include...(more)
Colorado Workers' Compensation Updates
Temporary Total Disability Benefits: Time off Work Must be Due to Effects of Work-Related Injury

In a claim successfully defended by this firm, Claimant appealed a denial of temporary total disability benefits and penalties for failure to pay said payments. The Industrial Claim Appeals Office (“Panel”) affirmed the administrative law judge’s (“ALJ”) decision. 
In Sullivan, Claimant was a delivery driver who had a long history of symptomatic pre-existing cervical and lumbar spine conditions. On March 18, 2018 claimant slipped on fuel and fell on a concrete...(more)

Overcoming the Division IME

Administrative Law Judge’s (“ALJ”) finding that Claimant did not overcome the Division IME (“DIME”) by clear and convincing evidence will be upheld so long as supported by substantial evidence.
In Corley, Claimant sustained an admitted injury to his lower back in 2015. Claimant’s authorized treating provider (“ATP”) placed him at maximum medical improvement (“MMI”) in January, 2016 and assigned a 7% whole person rating. Respondent employer filed a Final Admission of Liability based on the report. Claimant timely objected to the admission and underwent a...(more)

Temporary Disability Benefits: Make Sure to Terminate Such Benefits Properly

Once Respondents admit to an open period of temporary total disability (“TTD”) benefits, Respondents must ensure such benefits are properly terminated upon a statutory triggering event, such as return to modified or regular employment, physician release to return to modified or regular employment, or placement at maximum medical improvement. See C.R.S. § 8-42-105(3).
In Aguilera, Claimant was a right hand dominant customer service specialist whose job duties entailed taking phone calls, and documenting customer complaints and responses. In March, 2019, Claimant sustained an admitted injury to her right shoulder when...(more)

Offsets, Insolvency and Third Party Settlements

The Industrial Claim Appeals Office (“Panel”) issued a decision affirming Respondents’ obligation to continue paying workers’ compensation benefits to Claimant without an offset from money received from a third party settlement.
In Teti, the Claimant had been involved in work-related motor vehicle rollover accident resulting in severe injuries in June 1989. Claimant at the time was employed by a wholesale floral business owned by Claimant’s family. The employer’s workers’ compensation insurer at the time of the accident was Millers First Insurance (“Millers”). Millers admitted liability and began... (more)

Arizona Case Law Update
An award for supportive care is not a lifetime benefit and can be modified based on changes in medical conditions and recommendations of medical providers.
In Ellisor, the applicant injured his right shoulder in June 2017. At the time, the applicant had been employed less than one year and was paid minimum wage. The applicant worked an average of 34 hours per week but alleged that he was capable of working more hours and his employer scheduled him for fewer than 40 hours per week. The applicant later under shoulder surgery and was cleared for light duty post-surgery. The applicant could not return to his employer because light duty was not available. The Industrial Commission of Arizona (“ICA”) set the applicant’s average monthly wage (“AMW”) at...(more)

A claim must generally be filed within one year of the injury of when the injury accrues

In Russell, the applicant sustained an alleged occupational injury to her right elbow as of January 26, 2018. This was the date the applicant saw a physician and received a corticosteroid injection in her elbow. The applicant testified at hearing that at this appointment, the physician told her that her elbow condition was work-related due to repetitive motion. The applicant then decided to “take care of it” herself and did not file a claim for compensation until she was told she needed surgery. The application filed her claim on March 7, 2019 – more than one year after the date of injury claimed. The ALJ found...(more)