Update on Colorado Appellate Decisions in Workers' Compensation Law

• Publication year: 2003
• Pages: 113

32 Colo.Law. 113 Colorado Lawyer 2003.

2003, October, Pg. 113. Update on Colorado Appellate Decisions In Workers' Compensation Law

---

113

Vol. 32, No. 10, Pg. 113

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 113]

Specialty Law Columns
Workers' Compensation Report
Update on Colorado Appellate Decisions In Workers' 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

Ralph Ogden
About The Author:

The author and column editor is Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005. The author represents Charlene Wolford in Wolford v. Pinnacol Assurance, discussed in this article.

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

Mental Impairment
Benefits

CRS § 8-41-301(2), the mental impairment statute, substantially limits benefits for injured workers under some circumstances. As such, it has been the subject of considerable litigation over its interpretation and application.1 Subsection 2(b) states in part that

where a claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits which shall be in an amount not less than $150 per week and not more than 50% of the State average weekly wage, inclusive of any temporary disability benefits. This limitation shall not apply to any victim of a crime of violence nor to the victim of a physical injury or occupational disease that causes neurological brain damage.

Subsection 2(a) defines mental impairment as

a recognized, permanent disability arising from an accidental injury . . . when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.2

In Bralish v. Industrial Claim Appeals Office,3 the Court construed the language "crime of violence."4 The claimant, a police officer for the city of Thornton, responded to an incident in which a man was experiencing a seizure. The man was agitated and combative, and was yelling obscenities. As the claimant attempted to assist firefighters in subduing the man, the man bit the claimant's finger. The claimant later discovered that the man had Hepatitis B and was HIV-positive. This information caused the claimant to suffer a severe emotional and psychological reaction.

After reaching maximum medical improvement ("MMI"), the claimant was given a 50 percent whole person mental impairment rating. The city of Thornton admitted for the 50 percent impairment but refused to pay any impairment benefits because it had already paid temporary total disability ("TTD") for more than twelve weeks.

The Court of Appeals decided the case on a very narrow ground. The court discussed the definition of "crime of violence" in the Criminal Code, which appears at CRS § 16-1-104(8.5)(a)(I), upon which both the administrative law judge ("ALJ") and the Industrial Claim Appeals Office Panel ("Panel") relied. However, the court concluded that the claimant was not injured as a result of any "crime" and, therefore, it would not address the question of whether the Criminal Code definition of "crime of violence" applied to the mental impairment statute.5

The ALJ found that the man who bit the claimant did not act with any conscious or objective intent because he was experiencing a seizure at the time and was not in control of his actions. The court agreed that the claimant had not demonstrated the violation of any public law or that the assailant would be liable for punishment for anything he did. Thus, because no crime was committed, the severe limitations on impairment benefits in CRS § 8-41-301 (2)(b) applied, and the claimant was not entitled to any permanent impairment benefits because he had received more than twelve weeks in TTD benefits.6

Timing of DIME Requests

In 1991, the General Assembly added the Division Independent Medical Examination ("DIME") provisions to the Workers' Compensation Act ("Act"). They appear at CRS § 8-42-107.2. Lobato v. Industrial Claim Appeals Office7 involves amendments to this statute, made in 1998 and 1999.

The 1991 provisions did not include any time limits for requesting a DIME after the objection to the final admission had been filed. In 1998, the General Assembly amended CRS § 8-42-107.2 and required that DIME requests be filed within thirty days after the final admission was mailed. However, the thirty-day limitation applied only to injuries occurring on or after August 5, 1998. In 1999, the General Assembly again amended the DIME statute to specify that the thirty-day time limit applied to "all open cases with a date of injury on or after July 1, 1991."8

The claimant in the Lobato case was injured in 1992. In 1993, he was placed at MMI and given a zero percent impairment rating. The employer did not file a final admission until 1994. The claimant timely objected but did not request a DIME until November 30, 2000. The examination was performed in February 2001 and the DIME physician assigned a 15 percent whole person rating. The employer relied on the 1999 amendments to CRS § 8-42-107.2 and argued that the DIME application was untimely. The ALJ agreed, struck the DIME report, and denied the request for permanent medical impairment benefits.

The Panel affirmed, with one Panel member specifically concurring. Two Panel members found that under the 1999 amendment, the claimant had thirty days from the date of the 1994 final admission, because the 1999 amendments made the thirty-day period retroactive. The third Panel member was of the opinion that the claimant had thirty days from the September 1, 1999 effective date of the 1999 amendments because the effective date was the "triggering event" that put the claimant on notice of his obligation.

The claimant appealed the Panel's decision. The Court of Appeals noted that the Director of the Division of Workers' Compensation ("Director") disagreed with both the majority and concurring opinions of the Panel. The Director believed that the statute was ambiguous and had issued a formal opinion letter in which she stated that, as long as the claimant had objected to a final admission before the effective date of the 1999 amendments, either a new or revised final admission or a new medical report was required before the thirty-day period began to run.9 In her view, any other interpretation "would present due process concerns."10

The court agreed that the statute was ambiguous because of its silence regarding "its applicability to claimants who obtained and objected to a [final admission] prior to the September 1, 1999, effective date of the amendment."11 The court noted that the existence of the three separate Division of Workers' Compensation ("Division") interpretations of the amendment underscored the ambiguity.12

The Court of Appeals rejected the opinion of the Panel majority because the thirty-day time limit was not enacted until 1999 and "it is unreasonable to expect claimant to have known, at the time of the 1994 [final admission], that he was required to act within a certain time."13 Furthermore, "because the lack of notice inherent in the Panel's majority interpretation might call into question the constitutionality of the amendment, we should avoid that result."14

The court also rejected the Director's interpretation and adopted the opinion of the specially concurring Panel member Thus, September 1, 1999...