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Harman-Bergstedt, Inc. v. Loofbourrow

Supreme Court of Colorado, En Banc

January 27, 2014

Harman-Bergstedt, Inc., d/b/a Kentucky Fried Chicken and Zurich American Insurance Company, Petitioners
v.
Elaine Loofbourrow and Industrial Claim Appeals Office, Respondents

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 10CA2176.

Judgment Affirmed.

SYLLABUS

Harman-Bergstedt and its insurer sought review of the judgment of the court of appeals reversing an Industrial Claim Appeals Office decision, which had disallowed Loofbourrow's award of temporary disability benefits. The ICAO panel had reasoned that once Loofbourrow's treating physician placed her at maximum medical improvement, notwithstanding the failure of her injury to result in any work loss at all, temporary total disability benefits could not be awarded for the injury for which she had been initially treated in the absence of a division-sponsored independent medical examination challenging that placement. By contrast, the court of appeals concluded that under the unique circumstances of this case, including especially the fact that Loofbourrow had never yet been awarded temporary disability benefits and the fact that her employer had never filed a final admission of liability from which the statutory window for seeking a division-sponsored independent medical examination could be measured, such an independent medical exam was not a prerequisite to an award of temporary total disability benefits.

The supreme court affirms, holding that because a determination of maximum medical improvement has no statutory significance with regard to injuries resulting in the loss of no more than three days or shifts of work time, Loofbourrow's award of temporary total disability benefits was not barred by her failure to first seek a division-sponsored independent medical examination.

For Petitioners: Thomas Pollart & Miller LLC, Margaret Keck, Greenwood Village, Colorado.

For Respondent Elaine Loofbourrow: Law Office of O'Toole & Sbarbaro, P.C., John A. Sbarbaro, Denver, Colorado.

OPINION

COATS, JUSTICE.

Harman-Bergstedt and its insurer sought review of the judgment of the court of appeals reversing an Industrial Claim Appeals Office decision, which had disallowed Loofbourrow's award of temporary disability benefits. The ICAO panel had reasoned that once Loofbourrow's treating physician placed her at maximum medical improvement, notwithstanding the failure of her injury to result in any work loss at all, temporary total disability benefits could not be awarded for the injury for which she had been initially

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treated in the absence of a division-sponsored independent medical examination challenging that placement. By contrast, the court of appeals concluded that under the unique circumstances of this case, including especially the fact that Loofbourrow had never yet been awarded temporary disability benefits and the fact that her employer had never filed a final admission of liability from which the statutory window for seeking a division-sponsored independent medical examination could be measured, such an independent medical exam was not a prerequisite to an award of temporary total disability benefits.

Because a determination of maximum medical improvement has no statutory significance with regard to injuries resulting in the loss of no more than three days or shifts of work time, Loofbourrow's award of temporary total disability benefits was not barred by her failure to first seek a division-sponsored independent medical examination. The judgment of the court of appeals is therefore affirmed.

I.

On October 2, 2009, Elaine Loofbourrow filed an application for a hearing, seeking, among other things, temporary total disability benefits for work time lost as the result of a worsening back injury she initially sustained in November of the previous year. Although she couched her application in terms of reopening a previous award, by the time of the hearing she made clear that she considered reopening unnecessary, and the presiding Administrative Law Judge simply ...


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