N e w s l e t t e r
August 2020
We are excited to welcome Paul Berard to Pollart Miller. Paul is a workers' compensation attorney in our Colorado office.
Change of Physician Requires More than a Showing of Dissatisfaction - The claimant sustained a reinjury to a body part that had been previously accepted and closed. She sought treatment with the authorized treating provider ("ATP") who had previously provided the treatment under the closed claim. That ATP treated her for approximately a year, at which point, he began documenting that the claimant was approaching MMI... [more]
Medical Benefits—Claimant must prove the specific treatment is compensable not just the body or diagnosis. - Claimant sustained a low back injury in 1998 and underwent multiple surgeries between 2000 and 2013 including a spinal cord stimulator. Claimant was eventually found permanently and totally disabled in 2017 and continued with maintenance medical treatment. In 2018 claimant underwent two surgeries...[more]
Responsibility for Termination - Claimant sustained a compensable work injury to his right upper extremity during a required employment physical. Claimant received initial care for his upper extremity and he was tentatively diagnosed with CRPS. While receiving care, Claimant continued full duty for Respondent Employer performing sandblasting activities. In July 2019, Claimant was working with a crew of three in Nebraska....[more]
Medical Benefits—A temporal relationship does not equal causation - Claimant was an 86 year old maintenance technician who sustained a head injury when he slipped and fell on snow stepping out of a golf cart. Claimant was evaluated by an occupational clinic and at the ER on the date of incident. He was admitted to the hospital on the date of the incident and it was noted that he had no changes in his vision or hearing...[more]
Reopenings – Using the ATP to Defend - The claimant had an admitted neck injury in 2017. Prior to MMI, the claimant underwent spinal fusion and the treating physician maintained him on restrictions of no work based on substantial subjective complaints. Respondents were able to obtain very favorable surveillance that caused the treating doctor to significantly question the claimant’s credibility as to his ability to function and he was placed at MMI. The claimant later sought reopening...[more]
Arizona Workers' Compensation
In order to resolve conflicts in testimony, the presiding judge must hear all the testimony, and not rely on transcripts from a hearing covered by a substitute courtesy judge. - In Diaz, the applicant sustained an admitted work-related injury to his right arm and right hip when he fell 10 to 12 feet off a roof in October 2017. The applicant also complained of left wrist pain...[more]

An applicant’s average monthly wage does not include unused per diem food allowance. In Free, the applicant worked as a field interviewer and had to travel all but four weeks of a year. The applicant’s pay included the federal government per diem rates based on where she was staying. The applicant did not have to submit receipts and often never used the full per diem...[more]
Colorado Workers' Compensation
Chain of Causation Analysis - In a workers’ compensation claim, the claimant bears the burden of establishing whether a claim is compensable by showing a direct causal relationship between his employment and his work injury. Following an initial work injury, a claimant may develop a subsequent injury. If that occurs, such developments may also be compensable under the “chain of causation doctrine,”...[more]

Duty to Preserve Evidence - In anticipation of litigation, there exists a legal duty to preserve potentially relevant evidence that a party has in its possession. Colorado has authorized its courts to impose sanctions against parties for “spoliation,” which is defined as a failure to preserve such evidence. Spoliation may prejudice an adverse party, and for that reason, a variety of sanctions...[more]

Substantial Evidence - It is well-known in workers’ compensation claims that it is an Administrative Law Judge (“ALJ”) who resolves conflicts in evidence presented, determines its probative value, and then makes determinations based on that evidence. When an ALJ’s determinations are supported by substantial evidence,...[more]

Senate Bill 20-026: Operators’ Benefits - Section 8-41-301 C.R.S. concerns eligibility for workers’ compensation benefits for workers who are exposed to psychologically traumatic events, which includes exposure to the serious bodily injury or death, of one or more people as the result of a violent event...[more]

Jurisdictional Deadlines - In workers’ compensation cases, a variety of pre-hearing and hearing jurisdictional deadlines must be met. In Parker Movers v. DBA Gentle Hands Moving and Storage, the Industrial Claims Appeals Office (“Panel”) discussed that requirements to file timely petitions are jurisdictional, and therefore must be strictly enforced...[more]

Emergency COVID-19 Rules Update - This set of currently enacted emergency rules due to COVID-19 replaces two rules issued by the Department of Labor and Employment in March 2020. Notably, the Director rescinded the waiver of notarization for settlement documents. Governor Polis recently issued an executive order allowing for remote notarization. Therefore, there is no longer a need to waive notarization...[more]

Overcoming Credibility Determinations/Minor Claimants - Administrative Law Judges (“ALJs”) have the authority to decide how credible a piece of evidence is, and what weight to give it when making determinations on issues presented. In Chaussingand v. ICAO, Claimant appealed...[more]

Medical Treatment Cost-Containment - It is well-known that following a compensable work injury, the employer is required to provide reasonable and necessary medical treatment to cure and relieve the effects of that injury. Therefore, if an authorized treating physician (“ATP”) prescribes medication...[more]

Expert Testimony - In workers’ compensation claims, experts may testify to provide evidence for an Administrative Law Judge (ALJ) to utilize in making findings of causation or compensability. ALJs have broad discretion to determine whether a witness is qualified...[more]

Apportioning Impairment Ratings - When a claimant sustains an injury, that person may receive an impairment rating which is applied to a specific part of the body or to the whole person. A claimant may sustain multiple injuries over the course of time, and therefore may receive multiple impairment ratings. When the same body part is impaired more than once...[more]

“But for” Causation Analysis - Under theory set forth by City of Brighton, work injuries may be compensable if caused by either: 1) a risk inherent to duties and scope of employment or 2) a neutral circumstance that would not have occurred...[more]
Utah Case Law Update
Ramos v. Cobblestone Centre, 2020 UT 55, --- P.3d ---. Factual and Procedural Summary: Claimant moved metal trestles weighing about 300 pounds. One day, he and a co-worker were loading one such trestle onto a forklift when it fell, temporarily pinning Claimant and bending his left knee inward. He was diagnosed with an MCL tear and compressive bone marrow edema...[more]

JBS USA v. Labor Comm’n, 2020 UT App 86, --- P.3d ---. Factual and Procedural Summary: Claimant was driving a semi-truck on the freeway when she noticed a burning smell. She heard an explosion coming from the passenger side of the vehicle and quickly opened the door and jumped out, away, and down from the truck, about a three-and-a-half foot drop...[more]

Oceguera v. Labor Commission, 2020 UT App 83, --- P.3d ---. Worker’s compensation Claimant with preexisting osteoarthritis in knee sought review of the Utah Labor Commission’s Appeals Board decision adopting the decision of Administrative Law Judge ("ALJ") to dismiss Claimant’s request for TTD...[more]