Employment Law Tip:
As a general rule, an employee who is hired in Colorado for an indefinite period of time is considered an at will employee. Such employment may be terminated by either party without cause and without notice. Such termination ordinarily does not give rise to a cause of action. However, among other specific exceptions, statements made in an employee handbook limiting an employer's right to discharge employees may be the basis of breach of implied contract and promissory estoppel claims by discharged employees.
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.
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Wounded Warrior Project
Good works. Supporting non-profit organizations is one way that the employees of TPM fulfill their wish to do good for the community. At the beginning of 2016 our employees nominated their favorite charities and 12 were selected. In the month of April TPM will donate to the Wounded Warrior Project. Their mission is to foster the most successful, well-adjusted generation of wounded service members in our nation's history. They aim to raise awareness and enlist the public's aid for the needs of injured service members, help injured service members aid and assist each other, and to provide unique, direct programs and services to meet the need of injured service members. WWP has 5 core values: Fun, Integrity, Loyalty, Innovation, and Service.
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The Importance of Specialized Experts
 TPM attorney
Eric Pollart recently prevailed on a medical causation defense at a hearing in which the claimant's entitlement to certain medical benefits was at issue. The claimant alleged that she was walking up and down a hill, moving heavy equipment for the employer, when her knee gave out and she felt pain and swelling. Respondents admitted liability on the claim.
When claimant's physician recommended surgery, Respondents retained an expert to determine whether the surgery was reasonable, necessary, and related to the work injury. The expert opined that her knee "giving out" did not qualify as a mechanism of injury and that, as a result, she was not injured. Further, the expert opined that, even if claimant had sustained a work injury, the need for treatment was not related to the injury. Instead, the need for treatment was related to significant prior trauma which had caused degenerative changes. Based on the expert's opinion, Respondents timely denied the surgery, which the claimant contested, and attempted to withdraw the admission of liability.
The ALJ did find that the claimant sustained a compensable aggravation of her pre-existing condition. However, the ALJ credited the opinion of the Respondents' expert, an orthopedic surgeon who had performed thousands of knee surgeries, over that of the claimant's expert, who simply was a physical medicine and rehabilitation physician. As a result, the ALJ denied the requested knee surgery.
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Underlying Conditions Can Sometimes Precipitate Injury at Work
In a recent win for TPM attorneys
Eric Pollart and
Amanda Branson, Respondents successfully proved that claimant did not sustain a compensable injury and were permitted to withdraw the General Admission of Liability. Claimant had stumbled and fallen on some rocks in the parking lot at work and sustained injuries. A General Admission of Liability was filed.
 While claimant was being treated for the admitted work-related injuries, claimant was diagnosed with ALS. When the claimant's medical history was investigated, it was shown that the claimant had sustained numerous unexplained falls in the months leading up to the alleged work-related injury. Claimant's prior medical records also documented his complaints of weakness in his extremities.
Based on a review of claimant's prior falls and documented symptoms of weakness, claimant's neurologist opined that claimant likely had some underlying pathology that predisposed him to fall. Respondents presented claimant's prior medical records and the opinions of his neurologist to claimant's authorized treating physician.
The authorized treating physician testified at hearing that it was more likely than not that the claimant's underlying ALS caused claimant to fall. Respondents successfully argued that the cause of claimant's fall fell under the category of a personal risk with no special hazard present, meaning the injury did not arise out of claimant's employment.
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Changes to Workers' Compensation Rule
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| By Ilene Feldmeier |
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W.C.R.P. Rule 9 and 7 have been modified. The changes to Rule 7 and Rule 9 are effective April 15, 2016. Below is a summary of the key changes to these rules. There has been some other minor changes to wording of the rules and the rules have also been modified to match administrative practices of the Division with the filing of motions and setting of pre-hearing conferences.
The first key change is to the deadline to serve discovery (interrogatories) in a case. Rule 9-1(B)(3) has changed the deadline to serve discovery from 40 days prior to the hearing to be 60 days prior to the hearing. The effect of this change is that initial discovery should be completed sooner in a claim assuming that the interrogatories are timely answered. This means that the parties should comprehend the issues and evidence better further in advance of the hearing and it may reduce the number of hearing continuances to complete discovery. This will also allow parties to file motions to compel responses to interrogatories sooner and hopefully reduce last minute hearing continuances.
Another change to Rule 9-1(C)(3) is the method for taking the deposition on non-party witnesses. Per the Colorado Judicial Branch's Glossary of Terms, the definition of Party is: "One of the participants in a lawsuit or other legal proceeding who has an interest in the outcome." Previously, the deposition of non-party witnesses could only be taken upon (1) a written motion, (2) an order granting the motion, and (3) written notice to all parties. Now the requesting party does not have to first file a written motion and obtain an order granting the motion. Instead, the requesting party just has to schedule the deposition and serve a subpoena on the non-party witness. The subpoena must notify the non-party witness that they have the right to object to the deposition within 5 days of service of the subpoena. If the non-party objects, the requesting party would have to schedule a pre-hearing conference to obtain an order compelling the non-party witness to testify. Essentially, this change eliminates the filing of motions to take the depositions of experts, friends and relatives of the claimant, and other non-party witnesses.
A new rule has also been added as Rule 9-4 to outline the requirements of a privilege log. This rule applies to production of the claims file pursuant to C.R.S. § 8-43-203. A privilege log is required to have a sufficient description to allow the other parties to assess the applicability of the privilege claims. At minimum, the privilege log must contain (1) the date of the item; (2) the author and recipient of the item; (3) a description of the subject matter sufficient to explain, without disclosing the substance of the allegedly privileged material, why the item qualifies for the asserted privilege; (4) the legal and factual basis for the claim of privilege; and (5) if the privileged item contains a communication, the names and titles of the parties to that communication. Practically speaking, this is essentially the same information that TPM has been including in privilege logs but the rules now mandate that this practice is followed in all cases.
Rule 9-6 now also clarifies when a motion to consolidate should be filed versus a motion to merge. A motion to consolidate is done when two or more claims or hearing applications are consolidated to one hearing. A motion to merge is filed to merge duplicate workers' compensation claims and eliminate one of the claims. A motion to merge does not have to be filed if the duplicate claim was created by a typographic error in the claimant's social security number. In those cases, the claims can be merged with a written request to the Division identifying and correcting the error.
Settlement procedures has been moved from Rule 7 and are now under Rule 9-9. There has also been a new provision added under Rule 9-9(D) that allows an employment release of claims and resignation to be attached to settlement documents. This would allow the employment release to be incorporated into the workers' compensation settlement agreement. Additionally, Rule 9-9(I) allows a pro-se claimant to waive an advisement hearing and have the settlement documents immediately.
Rule 7 has been modified to remove Rule 7-2 regarding settlement documents since this is now included under Rule 9. Rule 7-2 now contains the prior Rule 7-3 regarding petitions to reopen and Rule 7-3 now contains the prior Rule 7-4 of the life expectancy table.
If you have questions about the new rules or would like additional information, please contact any of the attorneys at TPM.
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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.
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