How Claims End Up Litigated

A recent Colorado Supreme Court case that is being cited for the proposition that a workers' compensation claimant can collect Temporary Total Disability even after reaching Maximum Medical Improvement is actually a lesson in how claims end up in litigation in the first place.

Elaine Loofbourrow worked for Harman-Bergstedt Inc., a company which operated a Kentucky Fried Chicken franchise.

She injured her back in November 2008 while cooking chicken, and Harman-Bergstedt referred her to an authorized treating physician. Loofbourrow received treatment for her back from Nov. 12 until Dec. 9, 2008.

Although her doctor placed work restrictions on her during that time, her employer was able to accommodate those restrictions without wage loss and therefore did not report the injury to the Division of Workers' Compensation or admit or deny liability.

At the conclusion of this period, Loofbourrow's doctor reported that she had reached maximum medical improvement.

Around the same time her treatment ended, Loofbourrow was demoted from manager to relief manager, apparently due to her store's poor performance and, as a result, experienced a decrease in pay.

In August 2009, Loofbourrow went to see her private doctor, complaining of back pain. Her private doctor recommended work restrictions that Harman-Bergstedt could not accommodate.

Loofbourrow then filed a claim for temporary total disability benefits.

An administrative law judge found Loofbourrow's injury to be compensable and awarded her temporary total disability benefits from Aug. 24, 2009, the date on which she was first restricted from work.

Harman-Bergstedt sought review by the Industrial Claim Appeals Office.

The ICAO panel set aside that portion of the order awarding temporary total disability benefits. The panel concluded that because temporary disability benefits must, by statute, cease when a claimant reaches maximum medical improvement and "may not be paid so long as the claimant continues at MMI," temporary benefits could not be awarded in this case for any period after Dec. 9, 2008.

The Court of Appeals then set aside the panel's order and remanded the case with directions to reinstate the ALJ's award of temporary total disability benefits.

The court reasoned that the statutory scheme did not preclude the assertion of a post-MMI worsening of condition in an open claim like Loofbourrow's.

The Supreme Court of Colorado agreed but that's just the legal analysis.

I suspect that this case would either not be in the books, or would have had a completely different result had Loofbourrow not been demoted and experienced a pay decrease.

The facts aren't entirely clear but I would bet that the timing of her demotion to coincide with her treatment ending provoked her new (ahem...) complaints of back pain, so she went to her doctor and obtained work restrictions that could not be (or would not be...) accommodated by the employer.

No mystery to the origination of this litigation.

The case is Harman-Bergstedt v. Loofbourrow, No. 11SC926, 01/27/2014, published.