Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law

• Publication year: 2001
• Pages: 105
• Citation: Vol. 30 No. 8 Pg. 105

30 Colo.Law. 105 Colorado Lawyer 2001.

2001, August, Pg. 105. Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law

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105

Vol. 30, No. 8, Pg. 105

The Colorado Lawyer
August 2001
Vol. 30, No. 8 [Page 105]

Specialty Law Columns
Workers' Compensation Report
Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law
by Ralph Ogden

This article is an update of recent decisions from the Colorado Court of Appeals and the Colorado Supreme Court regarding workers' compensation issues. A previous update was published in the July 2001 issue on page

Compensability

Pacesetter Corp. v. Collett1 involved a worker who was hired to sell home improvement products. He was severely injured in an automobile accident that occurred during a selling trip to Laramie, Wyoming. It was undisputed that he was intoxicated at the time of the accident. The employer argued that he was engaged in a personal errand at the time of the accident, and hence, that he was not covered by the Act

The court first noted the general rules governing travel status

In most cases, an employee who is away from home on business remains under continuous workers' compensation coverage from the time of departure until the return home. Pursuant to this rule, the risks associated with the necessities of eating, sleeping, and ministering to personal needs while away from home are considered incidental to, and within the scope of, the traveling employee's employment

However, if the employee makes a distinct departure on a personal errand, coverage will cease and will not be restored until the errand has been completed. . . .

The burden is on the employer to show that the employee made a distinct departure from the scope of employment while on travel status. . . . However, whether an employee has returned to the scope of employment after a personal excursion is an issue of fact, with the burden of proof placed on the claimant. . . .2 (Citations omitted.)

The court then found substantial evidence in the record to support the Administrative Law Judge's ("ALJ") finding of a personal errand and affirmed dismissal of the claim. The claimant testified that on the date of the accident, which was a Sunday, he and his assistant sales manager met in the motel lounge for drinks. He stated that he left the lounge later to make "cold calls." The accident occurred between 8 and 10 p.m. Toxicology reports showed that the claimant's blood alcohol level was .251. The police report indicated that the employee was driving close to ninety miles per hour at the time. Based on the testimony of a toxicology expert and other testimony at the hearing, the ALJ inferred that the claimant continued to drink after he left the motel.

The court agreed with the Industrial Claims Appeals Panel ("Panel") that this was a reasonable inference and supported a finding that the claimant was on a personal errand when he drove off the road while drunk. Also, the court agreed with the Panel that "in some circumstances the act of consuming alcohol, by itself, can constitute a personal deviation sufficient to remove the claimant from the scope of employment."3

Temporary Disability
Benefits Pursuant to a
Withdrawn General
Admission

In Pacesetter Corp. v. Collett,4 the court also affirmed an Industrial Claim Appeals Office ("ICAO") holding that although the claimant's injury was not compensable, he was nonetheless entitled to temporary disability and medical benefits based on the general admission that had been filed and then withdrawn. Respondents filed their general admission on March 29, 1999, and, three days later, sent the claimant a letter stating that the admission had been filed in error and that it was being withdrawn. The ICAO ruled that although the admission had been "improvidently" filed and was properly withdrawn, the withdrawal could only operate prospectively from the date the withdrawal was approved by the ALJ. Therefore, the court entered an order for limited benefits for the period preceding the hearing.

The Court of Appeals affirmed. It held that under HLJ Management Group, Inc. v. Kim5 and CRS § 8-43-203(2)(d):

[O]nce an admission of liability has been filed, the employer may not unilaterally withdraw it, but rather must continue to make payments consistent with the admitted liability until the ALJ enters an order allowing revocation in full or in part . . . pursuant to HLJ Management Group. . . . [W]henever an admission of liability is contested by either party, the matter placed in issue is subject to determination by the ALJ at an adversary hearing, and the admission remains binding only until an order resolving the controversy is entered. . . . [I]t is well established that the claimant must prove the existence of a compensable injury. . . . Consequently, we agree with the Panel that employer did not have to show why its admission was improvidently filed in order to contest liability, and we reject claimant's assertion that, without such a showing, the admission had conclusive and binding effect.6

CRS § 8-43–203(2)(d), on which the court relies for its decision, states in pertinent part: ". . . [H]earings may be set to determine any matter, but, if any liability is admitted, payments shall continue according to admitted liability."7

The effect of this holding appears to be that a respondent that files an admission can object to its own admission and therefore place the admission at issue for purposes of attacking it prospectively. Like the Panel, the court rejected the employer's argument that although it had mailed the general admission to both the claimant and the Division of Administrative Hearings ("Division"), the admission was never "filed" because it did not appear in the Division's claim file.

Mental Impairments

In Esser v. ICAO,8 the Court of Appeals construed CRS § 8-41-301(2) as requiring in-person testimony by a medical doctor or psychologist to prove a mental impairment claim Because all other claimants were allowed by CRS § 8-43-210 to provide medical evidence by means of a report, and because the court found no rational reason for making this distinction, it held that CRS § 8-41-301(2) violated the claimant's right to...