Crowell v. Industrial Claim Appeals Office of the State of Colorado, No. 11CA0528 (Colo. Ct. App. 02/16/12).
The Colorado Court of Appeals held that an employer was liable for a daily penalty based on a continuing violation of failing to provide medical review.
What it means:
In Colorado, an employer's failure to provide medical review is a continuing violation subject to a daily penalty.
Summary: A worker suffered a deflated breast implant as a result of a work-related injury. She had the implant surgically replaced. She gradually developed firmness, distortion, and discomfort, and an authorized treating physician recommended further surgery to replace the implant a second time. The employer was required to respond within seven business days of the physician's request. The employer denied the request the next day, asserting that the surgery was elective and not medically required. The employer sent the denial without obtaining a medical review by a different physician or other health care professional. The worker sought penalties for a period of 184 days from the seven-day deadline after her request until the surgery was approved by an administrative law judge. The Colorado Court of Appeals held that the employer was liable for a daily penalty for the continuing violation of failing to provide a medical review.
The court explained that a continuing violation can be cured by simply taking the required action. The court concluded that an employer's failure to provide medical review was a continuing violation because medical review could occur sometime after the deadline. Therefore, every day during which the employer failed to provide a medical review constituted a "separate and distinct violation."
The court agreed with the worker's contention that when there is ongoing conduct, the continuation of the penalty is mandatory, rather than discretionary. Therefore, a penalty was imposed at a daily rate.
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April 2, 2012
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