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Goodwill worker, comp insurer dispute equal protection


A workers compensation insurer did not violate a Colorado man’s right to equal protection under the law when it declined to comply with a request for evidence of any financial contributions between the insurer and Colorado workers comp administrators, an appeals court has ruled.

Brian Kilpatrick injured his left wrist while working for Goodwill Industries of Denver in June 2011, according to court records. He underwent an MRI in August 2011, which showed that he tore ligaments and tissues in his wrist, and underwent wrist surgery about two weeks later.

Mr. Kilpatrick continued to feel pain in his wrist, records show. After a steroid injection failed, he sought authorization in March and April 2012 to undergo a second wrist surgery.

Denver-based Pinnacol Assurance, Goodwill’s workers comp insurer, denied the request, according to filings. Soon after, Mr. Kilpatrick’s treating physician determined that he had reached maximum medical improvement in June 2012 with a 15% impairment of his left upper extremity.

Mr. Kilpatrick’s treating physician later referred him to another doctor, who submitted a request to Pinnacol to conduct an arthroscopy and examine Mr. Kilpatrick’s wrist, records show. Though this doctor found that Mr. Kilpatrick was a good surgery candidate, Pinnacol denied the request.

Records show that Mr. Kilpatrick’s original treating physician later signed a statement in August 2013 saying he agreed with the second doctor’s surgery recommendation, and asked that Mr. Kilpatrick no longer be considered to be at maximum medical improvement. Mr. Kilpatrick petitioned to reopen his workers comp claim based on the doctors’ opinions.

As part of litigation surrounding the claim, Mr. Kilpatrick filed documents inquiring whether anyone working for or associated with Pinnacol or Goodwill’s counsel had given any gifts of monetary value to employees of the Colorado Division of Workers’ Compensation, the state Office of Administrative Courts or the state Industrial Claim Appeals Office, filings show. Goodwill and Pinnacol declined to provide the information on the grounds that the request was overly burdensome and harassing.

An administrative law judge denied Mr. Kilpatrick’s request to reopen his workers comp claim, finding that Mr. Kilpatrick’s original determination of maximum medical improvement was final, despite newer opinions from treating physicians. The industrial claims office affirmed the judge’s ruling.

Mr. Kilpatrick appealed, arguing that he was entitled to discovery related to any financial contributions that Pinnacol or its employees made to various workers comp-related administrative authorities in Colorado, and that the failure of Pinnacol to provide that information violated his right to equal protection under the law. Further, he argued that the administrative law judge was required to find that he was no longer at maximum medical improvement based on recent opinions from his doctors.

A three-judge panel of the Colorado Court of Appeals unanimously ruled Thursday that Mr. Kilpatrick’s rights were not violated by Pinnacol’s failure to provide financial disclosures.

“While such evidence could be relevant if there were a basis to believe that an (administrative law judge) in this case accepted potentially inappropriate gifts, claimant has made no such showing and has not demonstrated any basis for believing that such gifts were made,” the ruling reads.

The court also found that Mr. Livingston’s original determination of maximum medical improvement was unappealable, and therefore that the administrative law judge had not erred. The court noted that Mr. Livingston failed to appeal a final admission of liability filed by Goodwill and Pinnacol, which became binding after it went 30 days without being contested.

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