Update on Colorado Appellate Decisions in Workers' Compensation Law

Publication year2005
34 Colo.Law. 95
Colorado Bar Journal

2005, April, Pg. 95. Update on Colorado Appellate Decisions in Workers' Compensation Law


Vol. 34, No. 4, Pg. 95

The Colorado Lawyer
April 2005
Vol. 34, No. 4 [Page 95]

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

This column provides information about workers' compensation updates on decisions of the Colorado Supreme Court and Court of Appeals. It intends 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, Denver, of Wilcox & Ogden - (303) 399-5005

About The Author

The author and column editor is Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005. The author represented the petitioners in Pena v. Industrial Claim Appeals Office and Wolford v. Pinnacol Assurance and amicus curae Steven Mullins in Lobato v. Western Forge, which are discussed in this article.

This column provides updates on workers' compensation decisions of the Colorado Supreme Court and Court of Appeals.

The Exclusivity Rule

Recent decisions of the U.S. Court of Appeals for the Tenth Circuit apply the exclusive remedy provisions of the Colorado Workers' Compensation Act ("Act").1 Radil v. Sanborn Western Camps, Inc.2 and Elliot v. Turner Construction Co.3 were governed by Colorado's substantive law,4 because the workers were employed and injured in Colorado.5

This article also discusses a 2001 case, Stuart v. Colorado Interstate Gas Co.,6 which was briefly addressed in Radil. Stuart was filed in the U.S. District Court for the District of Wyoming and involved a worker who received workers' compensation benefits, even though he was hired and injured in Colorado. In Stuart, the Tenth Circuit applied Colorado's substantive law because it believed the Wyoming Supreme Court would have done so.


The November 2004 column contained several typographical errors in referencing the Colorado Revised Statutes. A corrected version of that article appears on the Colorado Bar Association website, http://www.cobar.org. Click on The Colorado Lawyer, click on the November 2004 issue, then select the workers' compensation article. You also may request a revised copy of the article by e-mailing Specialty Law Editor Lisa Goldoftas at lgoldoftas@cobar.org.

Radil v. Sanborn
Western Camps

Radil7 involved the question of whether a judge or jury should determine whether the exclusive remedy provisions of the Act barred a plaintiff's claim when the application of the rule involved disputed issues of fact. The case arose when Radil worked as an assistant counselor at a girls' camp operated by Sanborn. The camp supervisors designated July 10 as the "Assistant Counselor Appreciation Day" and, to improve morale, gave the counselors a choice of activities in which to participate as a group. The group chose a river-rafting trip, for which Sanborn partially paid.

Although Sanborn initially agreed to provide transportation in camp vans, it later told the counselors that the vans were not available and that they would have to get to the jump-off point on their own. Two counselors, including Radil, rode in the rear cargo compartment of a Jeep Cherokee driven by one of the supervisors. En route, the supervisor lost control of the car and rolled it. Radil was ejected and became quadriplegic.

She filed a workers' compensation claim against Sanborn and its insurer, Pinnacol Assurance. Relying on Sanborn's representations that Radil's injuries were not work-related and did not occur in the scope and course of her employment, Pinnacol denied compensability. In light of this denial, Radil filed a negligence action in the federal court. She alleged that Sanborn was negligent in planning and organizing transportation for the activity and that it was vicariously liable for the supervisor's negligent driving. She also sued the supervisor.

Sanborn filed several motions to dismiss, in which it alleged that Radil's claims were barred by the exclusivity provisions of the Act. It alleged that because they were barred, the federal district court lacked subject matter jurisdiction to hear the claim. Sanborn also claimed that Radil bore the burden of proving jurisdiction and that jurisdiction was a question for the court. Radil countered that because there was a factual dispute over whether her suit was barred, the exclusivity claim was an affirmative defense for which Sanborn had the burden of proof. As an affirmative defense, it was for a jury, and not the court, to decide.

The Tenth Circuit cited Bigby v. Big 3 Supply Co.8 and several earlier Colorado cases for the proposition that "the exclusivity of workers' compensation is an affirmative statutory defense which must be timely raised, or it is waived."9 Thus, the district court should have treated Sanborn's motion to dismiss as a motion for summary judgment, because it presented the court with evidence outside the pleadings. If there was any genuine issue of material fact about whether the claim was barred by the exclusivity provisions of the Act, that issue was to be resolved by the jury, not the court.10

The Tenth Circuit distinguished Bigby from several other Colorado cases in which there was no factual dispute about whether the exclusivity rule applied.11 Where there are no factual disputes, the jurisdictional issue becomes a legal question for the court to decide. However, where the evidence is in dispute, the exclusivity rule ceases to operate as a jurisdictional bar and becomes an affirmative defense for the jury rather than the court.

Key Words and Acronyms

Act: Colorado Workers' Compensation Act
ALJ: administrative law judge
AWW: average weekly wage
COLA cost of living allowance
DIME: Division Independent Medical Examination
Director: Director of the Division of Workers' Compensation
Division: Division of Workers' Compensation
Employer: employers and insurers collectively, as used by the Colorado Court
of Appeals
FAL final admission of liability
ICAO: Industrial Claim Appeals Office
MMI: maximum medical improvement
Panel: Industrial Claim Appeals Office Panel
PALJ: prehearing administrative law judge
PPD: permanent medical impairment (the "acronym" refers to pre-1991
PTD: permanent total disability
TTD: temporary total disability

Stuart v. Colorado
Interstate Gas Co.

Radil briefly discussed the Tenth Circuit's earlier decision in Stuart.12 Stuart was filed in the U.S. District Court for the District of Wyoming; it involved the workers' compensation laws of both Wyoming and Colorado. Stuart is interesting primarily because the court held that "[t]he Wyoming Supreme Court, as a matter of comity, would recognize the Colorado [Workers' Compensation] Act's exclusive remedy on the facts of this case."13

Stuart was a Wyoming resident employed by Northwinds to work on Colorado Interstate Gas Company's ("CIG") natural gas pipelines in Colorado. Northwinds was a Wyoming company that issued Stuart's paychecks out of Wyoming, even though it hired him when he went to an apparently temporary office at the CIG pipeline facility in Colorado. Stuart was injured in an explosion in Colorado. Thereafter, he began receiving workers' compensation benefits in Wyoming under the Wyoming Workers' Compensation Act, through coverage provided by Northwinds. He sued CIG in Wyoming under the federal court's diversity jurisdiction. CIG moved to dismiss and argued that it was a statutory employer under Colorado law.

The Tenth Circuit noted that it was "presented with the problem of discerning if a Wyoming court would apply Wyoming law, Colorado law, or perhaps a combination of the two."14 In discussing the interplay between the two workers' compensation acts, the court noted that Wyoming had a valid interest in the case because its law governed Stuart's receipt of workers' compensation benefits and that under Wyoming law, Stuart had the right to sue CIG for negligence. Nonetheless, the court noted that if the Wyoming Supreme Court would, as a matter of comity, apply Colorado law to the tort case, the claim was barred.15

The Tenth Circuit analyzed the various factors involved in determining how the Wyoming Supreme Court would apply the comity rule and noted that the Wyoming Supreme Court had described comity "as the recognition which the courts of one state give to the laws of another state as a matter of respect and courtesy."16 It then weighed Colorado's interest in the outcome of the case, which existed because Stuart was injured in Colorado and entered into his employment contract with Northwinds in Colorado. It concluded that "as far as the relationship between Mr. Stuart and CIG is concerned, the reasonable expectations of the parties must have been such that all would have anticipated Colorado law to apply."17

The Tenth Circuit noted that, because the jurisdictional prerequisites of the Colorado Workers' Compensation Act were satisfied, Stuart could have filed a compensation claim under Colorado law. Thus, "Colorado's interest in this case is more than an abstract or passive one. . . ."18 It concluded that because Colorado was the state in which the alleged tort occurred, the work was performed, and the contract of employment was executed, as a matter of comity, the Wyoming Supreme Court would apply Colorado law to the tort case, even though it was filed in Wyoming. Because CIG was a statutory employer under Colorado law, the Tenth Circuit affirmed the Wyoming federal court's dismissal of Stuart's claim.

Elliot v. Turner

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