Update on Colorado Appellate Decisions in Colorado Worker's Compensation Law

• Publication year: 2002
• Pages: 89

31 Colo.Law. 89 Colorado Lawyer 2002.

2002, September, Pg. 89. Update on Colorado Appellate Decisions In Colorado Worker's Compensation Law

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89

Vol. 31, No. 9, Pg. 89

The Colorado Lawyer
September 2002
Vol. 31, No. 9 [Page 89]

Specialty Law Columns
Workers' Compensation Report
Update on Colorado Appellate Decisions In Colorado Worker's Compensation Law
by Ralph Ogden

This column provides updates on workers' compensation decisions of the Colorado Supreme Court and Court of Appeals It is written to help practitioners keep up with both the appellate interpretations of the Workers' Compensation Act and the potential ramifications of those interpretations

Column Editor

Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005

About The Author:

The article was written by Column Editor Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005.

This article discusses recent Colorado appellate decisions on workers' compensation issues.

Temporary Disability
Benefits

In Colorado Springs Disposal v. Industrial Claim Appeals Office,1 the question was whether a worker lost the right to temporary total disability ("TTD") benefits because the worker was responsible for the termination from employment. The Industrial Claim Appeals Office ("ICAO") found that CRS §§ 8-42-103 (1)(g) and 8-42-105(4) ("Termination Statutes") were ambiguous and did not apply here. The Court of Appeals affirmed on different grounds, after finding that the Termination Statutes were unambiguous.

Issues regarding the effect of termination on workers' compensation benefits have been addressed by the courts and legislature. In 1995, the Colorado Supreme Court held that even where an injured worker was responsible for his or her termination, the worker would be entitled to temporary disability benefits if the industrial injury contributed in some degree to his or her post-termination wage loss.2 This holding was "overruled" by the 1999 General Assembly, which added CRS §§ 8-42-103(1)(g) and 8-42-105(4). Both provisions contain identical wording: "In cases where it is determined that a temporarily disabled employee is responsible for termination from employment, the resulting wage loss shall not be attributable to the on-the-job injury."

In Colorado Springs Disposal, the claimant was disabled in a compensable automobile accident. He was cited for reckless driving. After he was released to modified duties, the claimant was fired because he had violated company policy by being involved in a driving accident. The employer did not offer modified employment. The Administrative Law Judge ("ALJ") found that the claimant was not "responsible" for his termination, as that word is used in the Termination Statutes and, hence, the Termination Statutes did not apply. The ALJ awarded post-termination TTD benefits. The ICAO affirmed on the ground that the term "employment" in the Termination Statutes was ambiguous and applied only to the termination of modified employment.

The Court of Appeals held that "employment" was not ambiguous, that it was not limited to "modified" employment, and that it applied to both modified and regular employment. Nonetheless, the court chose to affirm the holding of the ICAO Panel ("Panel") on a different ground. It first noted that under CRS § 8-41-101(1)(c), compensation was provided to an injured employee even if the employee was negligent and the employer was not.3 In return for this no-fault liability and the payment of benefits - even where the employee was responsible for his or her own injuries - the Workers' Compensation Act ("Act") immunized employers from common law tort claims by injured workers.

The court then directed its attention to the term "responsible" in the Termination Statutes. The court construed the term in the context of the overall scheme of the Act, including a provision that required a 50 percent reduction in disability benefits for a "willful" violation of any safety rule.4 The court held that in light of this provision and the abrogation of the contributory negligence defense, it was "highly unlikely that the General Assembly intended to deny completely temporary disability benefits where an employee was terminated for negligently (or, for that matter, even willfully) causing a work injury."5 (Emphasis in original.)

Thus, as used in the Termination Statutes, the word "responsible" did not refer to an employee's injury or injury-producing activities. The Termination Statutes therefore were inapplicable if the worker was terminated when his or her conduct was in some way responsible for the worker's own injury. The court concluded by noting,

To otherwise interpret the term "responsible" and the statutes would, in our view, defeat the Act's major purpose of compensating work-related injuries regardless of fault and would dramatically alter the "mutual renunciation of common law rights and defenses by employers and employees alike." See § 8-40-102 (1), CRS 2001.[S]uch an interpretation might call into question the constitutionality of the Act."6

Permanent Medical
Impairment Benefits

MGM Supply Co. v. Industrial Claim Appeals Office7 presents the question of whether a worker's refusal to undergo further injections and surgeries was reasonable and, hence, whether that refusal provided any basis for reducing benefits under CRS § 8-43-404(3). This statute allows the Director of the Division of Workers' Compensation ("Director") and ALJs to exercise their discretion to "reduce or suspend" indemnity benefits if an injured worker "refuses to submit to such medical or surgical treatment as is reasonably essential to promote recovery."8

The court reiterated that the "reasonableness of a claimant's refusal to submit to treatment is a question of fact for the ALJ." A claimant is not required to prove that a surgical procedure posed unusual risks before he or she is justified in refusing it. Even where it poses only "usual" risks, the employer still must show that the surgery is calculated to effect a cure before CRS § 8-43-404(3) may be invoked.

In the MGM Supply Co. case, the evidence showed that the claimant had had a number of earlier surgeries. None of them had been successful, and he did not want additional surgeries because he did not believe they would provide relief. The employer's expert agreed that the proposed surgery would involve the normal risks of surgery and was not guaranteed to be successful. This supported the ALJ's refusal to invoke the forfeiture provisions of CRS § 8-43-404(3).9

SSDI Offsets

In Jiminez v. Industrial Claim Appeals Office,10 the claimant was injured in 1993. He began receiving Social Security Disability Income ("SSDI") benefits in October 1995; the respondents were informed of this fact in April 1995. The respondents filed a "general admission"11 a few months later, but did not claim the SSDI offset allowed by CRS § 8-42-103(1)(c)(I). After a Division Independent Medical Examination ("DIME"), the respondents filed a new admission and claimed the benefit of the $60,000 cap for combined temporary disability and permanent medical impairment benefits.

In April 1998, the claimant filed a successful petition to reopen based on a worsening of his condition. The respondents filed a new final admission, in which they again asserted the $60,000 cap and, for the first time, claimed the SSDI offset retroactively to October 1994. The offset resulted in a reduction and partial suspension of the claimant's TTD benefits. After the claimant again reached maximum medical improvement ("MMI"), an ALJ found that the claimant had sustained a 32 percent whole person impairment, which increased the statutory cap to $120,000.

The claimant then challenged the respondents' retroactive claim of the SSDI offset and claimed that the respondents had waived their offset rights. The ALJ, the Panel, and the Court of Appeals relied on Johnson v. Industrial Commission12 and rejected this argument. Johnson holds that an insurer may claim the SSDI offset retroactively to the date SSDI payments begin. Johnson was followed by Cody v. Industrial Claim Appeals Office,13 which allowed a retroactive offset where the claim had been closed and then reopened because of a worsened condition. The court noted that a waiver was a voluntary, knowing, and intelligent relinquishment of a known right. The court upheld the ALJ's determination that there had been no such relinquishment.

Reasonable and Necessary Medical Treatment

In Owens v. Industrial Claim Appeals Office,14 the claimant suffered a compensable injury to her upper extremities and reached MMI on May 14, 1997. The respondents admitted that she was permanently and totally disabled. In December 1997, she was diagnosed with breast cancer and given the choice of two treatments, both of which would be followed by radiation therapy. The lumpectomy that she elected normally would be followed by radiation beam therapy at a probable cost of approximately $6,645. However, because of her extremity injuries, she could not be placed in the position necessary for the radiation beam therapy. She required a different procedure that would cost close to $9,460. The claimant argued that the compensation carrier was liable for that increase because the industrial injuries caused the increase in cost for the radiation therapy. The Court of Appeals disagreed.

The court based its opinion on the ALJ's factual finding that the cancer and its treatment were not "effects of" the industrial injury:

[I]t is undisputed that claimant's cancer occurred independently of the industrial injury.Although claimant's permanent range of motion deficits in her upper extremities limited her...