“Cancer is a number of diseases subsumed within one diagnostic label.” Mary Burton Maggie Watson. Firefighter sought workers compensation benefits from Town. Per CRS 8-41-209, certain cancers are presumed covered, unless the employer can show by a preponderance of medical evidence the disease did not occur on the job. Both parties stipulated the statute’s presumption of coverage applied, and the only issue on appeal was whether the Town overcame that presumption. An administrative judge held, and the Industrial Claims Appeals Office affirmed, that a defendant must establish a specific non-work-related cause of the cancer to overcome the presumption. The court of appeals remanded, holding that requiring an employer to establish a specific cause may be an insurmountable barrier, and the correct standard to overcome the presumption was a preponderance of the evidence.
Category Archives: Workers Compensation
Patrick Youngs, v, Industrial Claim Appeals Office; White Moving and Storage, Inc.; and Pinnacol Assurance, 2013COA54 (April 11, 2013)
“Time is what we want most, but what we use worst.” – William Penn. In this workers’ compensation case, 2 Administrative Law Judges (ALJ) each issued an order denying Claimant’s claim for benefits based on 1) fraud, and 2) a worsening condition, respectively. Claimant appealed the first (interlocutory) order, before the second order was final. The court of appeals held that under CRS 8-43-301, Claimant was required to file his appeal of the interlocutory order after the final order. He didn’t, so the IACO lacked jurisdiction to hear the appeal of the first order. The court also upheld the second order because the ALJ properly exercised her discretion to 1) refuse to touch the injured shoulder during the hearing, and 2) limit the cross-examination of the IME. Finally, Claimant’s request that the ALJ recuse herself after the hearing was untimely. The IACO’s decisions were upheld.
United Airlines v. Industrial Claim Appeals Office of the State of Colorado and Angela Jones, 2013COA48 (March 28, 2013)
“It just so happens that your friend here is only MOSTLY dead. There’s a big difference between mostly dead and all dead.” Miracle Max – The Princess Bride. In the workers’ compensation context, it would be “temporary total disability” (TTD) and “permanent partial disability.” Here, claimant is injured and received TTD benefits in excess of the $75,000 cap under CRS 8-42-107.5. Employer sought to recover the excess. Those efforts were rejected. First, claimant was not overpaid under 8-40-201 because she received only benefits to which she was entitled, and she didn’t get permanent and temporary benefits. And, there is no provision for repayment of excess – the statute intends that employers continue paying benefits until a claimant reaches maximum medical improvement. Finally, the operation of CRS 8-42-105 in conjunction with CRS 8-42-107.5 did not violate equal protection.
Here is a short summary of the Court’s certiorari Orders from March. See the Certiorari page and the pages for each individual Justice for more detailed information. You can also follow the links to the CLR summaries or the underlying Court of Appeals opinions provided below.
On March 18, 2012, the Colorado Supreme Court granted certiorari in one case, and denied a petition that Justice Coats would have granted.
In City of Brighton and CIRSA, v. Helen M. Rodriquez, (Court of Appeals Case No. 11CA1868), the Court granted certiorari to address issues under the Workers’ Compensation Act, CRS 8-41-301 and 8-43-201, arising from a fall that occurred during the course of an employee’s employment, but whose exact cause/mechanism was unknown, and whether the employer, who initially admitted liability for the injuries of its employee, met its burden to prove that the employee’s injuries did not arise out of the employee’s employment.
Justice Coats would have granted certiorari in McLaughlin, et. al. v. Oxley, et. al. (Court of Appeals Case No. 11CA1136) to review the district court’s denial of summary judgment under CRS 13-21-117.5.
On March 25, 2013, the Colorado Supreme Court granted certiorari in three cases, and denied a petition that Justice Eid would have granted.
In Hickerson v. Vessels (Court of Appeals Case No. 11CA317), the Court granted certiorari to address the availability of the defense of laches against a timely filed claim for collection of a promissory note, where the statute of limitations period was extended by the partial payment doctrine.
In two related cases, the Court granted certiorari to address issues arising from the determination as to whether a worker is an employee or an independent contractor when they do not provide similar services to others at the same time they are working for a putative employer: Industrial Claim Appeals Office v. Softrock Geological Services, Inc., and Colorado Division of Unemployment Insurance (Court of Appeals Case No. 11CA2331) and Western Logistics, Inc., d/b/a Diligent Delivery Systems v. Industrial Claim Appeals Office, et. al. (Court of Appeals Case No. 11CA2461). In Western Logistics, the Court also agreed to address whether the delivery drivers were subject to petitioner’s control and direction.
Justice Eid would have granted certiorari in BNSF Railway Company v. McLaughlin (Court of Appeals Case No. 11CA751) to address giving a jury instruction on apportionment of damages when the plaintiff’s preexisting condition was asymptomatic at the time of the incident.
City of Littleton and CCMSI v. Industrial Claims Appeals Office, Julie Christ, and Michelle Parris 2012COA187 (November 1, 2012)
Radiation causes cancer; does being a firefighter also cause cancer? Causation is never that simple, as this 68 page opinion and dissent demonstrate. In this case, a firefighter gets brain cancer and claims it was related to his employment and the hazardous chemicals to which he was exposed on the job. The central issue on appeal is what evidence the fire district must present to prove that being a firefighter did not cause the cancer? In a typical toxic tort case, the burden would be on the firefighter. But in Colorado there is a special statute that shifts the burden to the employer to prove that the employment could not have caused cancer, and that it did not cause cancer in this firefighter. The court found the employers’ evidence did not meet that burden because it could not disprove the presumption that employment-related exposure to toxic substances was the source of the cancer.
Western Logistics, Inc., d/b/a Diligent Delivery Systems, v. Industrial Claim Appeals Office, 2012COA186 (October 25, 2012)
Delivery drivers being directed and controlled are not independent contractors. The Division of Employment and Training made a determination that 220 drivers working for a delivery business were employees for unemployment tax liability purposes, notwithstanding language in the drivers’ contracts stating they were independent contractors. The court of appeals upheld the administrative ruling based on the following facts: 1) the drivers were not customarily engaged in the delivery business, 2) they did not offer those services to others, 3) they were paid under their own names, 4) the business set prices, determined clients, and required compatible cell phones, among others, and 5) employer could terminate contracts without penalty, demonstrating a right to control the drivers. Thus, the drivers were employees for unemployment tax purposes under CRS 8-70-115(1)(b).
Communications Workers of America, Local 7750 v. Industrial Claim Appeals Office 2012COA148 (August 30, 2012)
Unions are employers too, and, in this case, contested an award of unemployment compensation to a former employee – its president. Claimant worked for both Quest and as the union president, but was only paid by one or the other for the time spent on each job respectively. When the union merged and restructured, he lost his employment as union president. He filed for unemployment benefits from the union, which were granted. On appeal, the union argued that it only replaced Quest’s wages not that it paid “wages” itself. The union did not argue that it was not an employer or that it did not provide employment to Claimant. The court of appeals upheld the grant of benefits for two main reasons: 1) he received payment for required services on behalf of the union and, 2) failure to consider payments as wages could result in lost unemployment benefits from Quest too, by reducing available benefits.