Update on Colorado Appellate Decisions in Workers' Compensation Law
Publication year | 2005 |
Pages | 95 |
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]
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
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.
Errata
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
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
terminology)
PTD: permanent total disability
TTD: temporary total disability
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
terminology)
PTD: permanent total disability
TTD: temporary total disability
Stuart v. Colorado
Interstate Gas Co.
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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