Colorado Supreme Court case----Youngquist

Decided February 2017 is the Youngquist case. This case was an appeal from the lower court and addressed the issue

of jurisdiction over a non Colorado business. The employer was a North Dakota business that hired a Colorado resident by phone and sent him a travel ticket. He was injured outside of Colorado but sought to use the Colorado workers compensation system. As a claimant he was successful at a hearing and at appeals until the last stop was the Colorado Supreme Court. That court decided that there was no jurisdiction over the employer so Colorado could not proceed on the claim. The key point in cases like this is the extent of contacts by the out of state business with Colorado. If deemed significant then Colorado would have the power to decide the entire claim. But fundamental fairness does require enough contact with the state for Colorado to exercise jurisdiction. In this case the court determined there was not much to connect Colorado to this employer. There was a phone call and the travel ticket was sent by email. There was no presence of anyone acting for the business in Colorado. There was no business being conducted in Colorado. Cases like this are decided on very specific facts but they do tell us that being a Colorado resident is not enough by itself for you to file a Colorado claim. Now most cases involve work being done in Colorado so the facts of this case are not common but it is important to realize that the Colorado Supreme Court does at times get involved in work injury cases.

Brown Bag March 2016 includes Youngquist Court case

As usually happens there was a Brown Bag lunch seminar presented by Judge Eley. The presentation is in a Part 1 and a Part 2. The reading material which consists of the actual cases for March 2016 is

The Coats case or when is medical pot legal and illegal

Yesterday the Colorado Supreme Court ruled in the Coats case. In that case a disabled employee for the Dish Network was terminated under its no tolerance drug policy. The worker was productive but required medically prescribed marijuana.

He used it in off duty time but of course the mere presence of it in his system was enough that the company felt compelled to terminate him. Now in Colorado medical marijuana is legally allowed by state law so the employee sued because of this termination. He lost because it was determined that medical marijuana is illegal under federal law and its not enough to be legal under state law. Eventually the case reached the Colorado Supreme Court and they also affirmed the dismissal of the lawsuit. Essentially they also ruled that because medical marijuana is illegal under federal law the termination of the employee was proper despite it being legal in Colorado. Now we all know that the federal law is not being enforced in Colorado so does this play any role? Could you assert that the federal law application has been waived or even that the Colorado law has been in effect approved as proper by the feds? It appears in Colorado the answer is that medical pot is legal and illegal and that is the way it is. In terms of workers compensation the potential benefit of medical marijuana is going to complicate matters if it is prescribed to an employee who works for a company that terminates for such use. In Colorado it is now legal and illegal to take any amount of marijuana. That is a tough place to be if it stays this way. For now Coats is the law.

New case on Volunteer Fireman Decided April, 23, 2015

Once again a volunteer fireman case reached the Court of Appeals. In the Smith case a volunteer fireman was injured on the way to a fire chiefs meeting. His claim was upheld but contested by Teller County and this led to an appeal. The contest was based on a number of

factors so there were several defenses. Teller County asserted the claimant was not an employee and was not attending a sanctioned activity. They also asserted that there was improper fact finding by the appeals panel and they felt the claim should be barred under the going and coming rule which can exclude a claim if it was coming from or going to work. The court disagreed with Teller County on all of their defenses and affirmed the benefits for the volunteer fireman. I am amazed at how often volunteers are considered important until they file a claim. Then they are not covered and that was the position of Teller County in this appeal. Fortunately the law protected this volunteer and the case is a good read on overcoming the arguments made by an employer. This is one where the good guys win.

Court case Kilpatrick decided March 12, 2015

A recent court case was issued on March 12, 2015. In Kilpatrick the claimant sought to reopen a closed case based on new evidence. As part of his efforts claimant sought discovery of the insurers financial records of monetary gifts to any

Division or hearing office personnel including judges. This was denied as over-burdensome and became part of the appeal by claimant. The Court of Appeals affirmed the decision yet it concluded that all judges are subject to such disclosures despite the fact that no regulations have been set up on this. It concluded the claimants remedy is with the Division or hearing office not the court in denying claimants assertion of a denial of equal protection of the law. I question this conclusion when the claimant is denied disclosures by administrative inaction. Still unless this is appealed the Kilpatrick case does limit discovery. Every party truly may need discovery to ascertain the issues, the witnesses and the evidence. To me this includes any monetary favors provided to a judge. While bribery is unlikely and most judges are highly ethical I do believe such matters should be fully disclosed. Next, the claimant argued that the doctor rescinded his opinion that the claimant needed no further treatment with a new opinion based on new evidence. However the hearing judge decided that the case should not be reopened. The judge did not accept the doctors change of opinion. The judge believed the change was equivocal and not enough to justify reopening. Certainly a judge can weigh the evidence and absent an abuse of his discretion a judge's determination cannot be set aside. I disagree with this and would assert an outright rescinding should not be considered equivocal. Still you are encouraged to read the case yourself for all the details. There were other concerns but none to permit a favorable decision for the claimant. In this case the claimant lost his appeal unless he can get the Colorado Supreme Court to look at it.

Court of Appeals case decided October 9, 2014

Just recently decided the Hoff case concerned workers compensation insurance coverage and the assertion by a party of promissory estoppel. In this case the claimant sustained serious work

related injuries. Hoff owned a rental property which had hail damage. She hired a contractor to deal with the insurance and then to repair roof damage. That contractor subcontracted the work to another contractor. The original contractor sought to make sure the roofing contractor had workers comp coverage. This was provided but when the injury happened the workers comp insurer denied coverage due to nonpayment of premium (cancellation of coverage). Hoff asserted they had no notice of the cancellation and relied on the promise of coverage that was initially provided. The hearing judge and ICAP decided that Hoff had no standing to question the cancellation and this appeal followed. The court concluded there was a basis to assert promissory estoppel and Hoff had standing. While this case is a dispute between various contractors it is always good that a claimant brings in enough parties that may have insurance coverage. Lack of coverage can harm the claimants ability to be compensated and have his medical bills paid. In any event read the case for the details.

The Latest ICAP cases

Every month there is an update on the latest ICAP (Industrial Claim Appeals Panel) cases. These are not court appeal cases but rather are the next step to appeal after a hearing decision a party does not agree with. There are many such appeals monthly and from them

a selection is made to review. At least this provides us with some of the more interesting cases. Fortunately, these cases are posted at the Division website for anyone to read. The latest such review is shown here. There are 12 cases shown along with one court case of interest to the reviewer. These cases remind us of what is going on at recent hearings. Some of these cases may even be appealed further. Many may not be appealed. Many of us in this area enjoy getting these cases and the review which comes with them. For a list of several months of these cases you can click here. If you work in this field or even if you just wish to know what is happening in this area it is useful to have this resource. Attorneys even obtain continuing legal education credit for following this monthly program.

Marijuana and employment...the Coats case

Back in April 2013 the Colorado Court of Appeals issued the Coats case. It is not a workers compensation case but instead is a wrongful termination case. Still it will impact workers compensation. It is now on further appeal to the Colorado Supreme Court with oral arguments set for later this year with a decision to follow most likely in 2015. What makes it interesting and controversial is that it concerns marijuana. A worker was

terminated under the no tolerance policy of his employer when he tested positive for marijuana despite it being medicinal marijuana. The employee was a quadriplegic and did not use marijuana on his employers premises and his work was not affected. He sued and asserted the termination was wrongful. The court of appeals decided a dismissal of his case was proper despite medicinal marijuana use being lawful and permitted in Colorado based on its view it was unlawful by federal law. Imagine workers with various ailments taking medicinal marijuana after work hours being terminated based on a no tolerance policy. Imagine an injured worker being prescribed medicinal marijuana by his physician as part of his treatment. Can his employer validly terminate him? What will the Supreme Court say on this? That is to be determined. Meanwhile LexisNexis published an article on this case so you can read it here. Given the legalization of marijuana so its use is permitted, even recreational use, will employers be allowed to terminate you even where you use it after hours with no impact on your employee performance? All I can say is stay tuned for the answer come 2015. By the way LexisNexis asked for my comments on the case so they are included in the article.

Court of Appeals case on Firefighter coverage

On May 8th, 2014 the Colorado Court of Appeals issued a decision involving a firefighter

case. The claimant developed leukemia with an onset in November 2009. There is a statutory presumption that certain cancers arising within 5 years of firefighting service are covered or compensable. The city (Denver) defended by asserting it was not within 5 years of service by alleging they hired him in February 2005. The court affirmed the decision in favor of the firefighter by indicating that there was sufficient time as a firefighter. He had over 5 years of service (adding time as a volunteer and probationary fireman). However the city asserted it should only count the actual time firefighting. The court reasoned that few people would qualify for the coverage under that view. A firefighters entire time of service should be counted. Additionally Denver tried to assert it had a right to define "firefighter" as it sees fit. The court reasoned that firefighter coverage under the statute is a matter of statewide concern and not subject to any local city definition. Please refer to the actual case itself which you can read here.

Video Presentations of Recent Cases

I really like that the Division has a page devoted to video presentations which discuss recent cases. This has been done monthly for quite a while. Many attorneys enjoy the monthly live presentation but these cases are then posted on a web page so anyone can read and listen to a review about the cases. Not every case is reviewed just those deemed significant but I have found this process to be very educational. In any event to gain some insight about what issues are being heard anyone can access this page and listen to the monthly presentation. Often these cases contain cutting edge issues in the workers comp field in Colorado. After all a case may be quite complex and listening to a review or analysis gives you a good sense or perspective about the case.

Video Replay of Monthly Reviews of Important Cases

The Division has posted a link to the video replays of case reviews presented once a month to interested attorneys. I would say that posting it as available to the public means you can view the video of the month and even read the cases. While

there is a short delay in posting the materials still it is nice to have it available for your reading and hearing. These are current cases and involve an interesting issue or set of facts. Even a non lawyer may access this material. If you are curious about what's going on in workers compensation or see where a case may be similar to your case then listen to the review by a presenter Administrative Law Judge in what I call the prehearing unit. Judge Eley is excellent in reviewing each case in his monthly Brown Bag seminar. While he selects the cases he deems most interesting I know that he has been doing this for years and years. Years ago as an attorney he published a monthly review. I fondly remember that publication and used the case reviews in my practice. Now he continues his effort to present current cases that are worth learning about. These cases can be presented in another case as supporting a point of view. So they can be useful in two ways. First they show us the current types of cases coming up on appeal and second they can even be used in another case to persuade a judge that you are on the right side. A judge will often rely on an earlier case that is presented to him as relevant to an issue. So these video replays along with all of the actual cases can be quite useful. Many attorneys attend or listen to them to stay updated on the latest issues being decided. In any event the Division on its page sets forth for all to see and hear several months of the video replays of important cases. Often it is fascinating to listen to the review by Judge Eley. Workers compensation can seem like a dull subject but it is filled with interesting people and cases. I like to see what arguments are being presented by Respondents in these cases when they appeal. I enjoy novel arguments no matter who makes them though I consider myself decisively on the claimants side.

Court of Appeals case on travel expenses

In a recent case the Colorado Court of Appeals decided in the Winter case to

address mileage and travel expenses. The claimant was from Trinidad but had to travel to Vail for authorized treatment. At first the claimant was advanced the cost of travel, hotel and meals. However after the third visit the insurer advanced only the travel mileage and not hotel or meals. The claimant advised the insurer he could not afford this unless it was advanced. The matter went to a hearing where the judge ruled against the claimant. This was appealed an eventually reached the Court of Appeals. The court affirmed the decision. Prepayment of hotel and meals is not a requirement even where this can lead to a harsh result. The court did note the claimant was able to use a credit card in this case and did get reimbursed within 30 days but suggested the Division of Workers Compensation may wish to address that issue. Usually claimants are treated locally but I have had cases where travel was necessary. Most claimants can use a credit card but some are quite poor. They may not have such a card or other resources so it would be helpful to have the Division address this for those cases as suggested by the court. Many times the benefits provided in a workers compensation case are barely enough to cover living expenses and asking the claimant to pay travel expenses and wait for reimbursement is expecting a lot. Anyway this case reviews all this and the court decision is the current law on the subject.

Firefighter Court of Appeals Case Zukowski

On July 3, 2013 the Colorado Court of Appeals issued a decision I call Zukowski. It is a case that concerns the statutory presumption that certain diseases arise from firefighting duties. The statute shifts the burden to Respondents to overcome the presumption or else the disease will be considered covered under workers compensation. The problem for firefighters is that they do not keep track of all their exposures to toxic chemicals or factors that can cause job related diseases. To improve that situation the statute was passed. However since then there have been efforts to defend against such a presumption. This blog has previously noted this (see the Littleton case entry in this blog for November 3, 2012). In the Zukowski case the firefighter had a melanoma which led to a claim. Respondents lost the hearing and the appeal to the next level but appealed further and the court reversed the prior rulings. In other words the firefighter lost the case barring further appeal. At the hearing the Respondents produced evidence through two physicians. Essentially they concluded that there were greater risk factors for the development of the melanoma from non work factors. The court ruled that the evidence was enough to overcome the statutory presumption and that the hearing judge interpreted the statute too heavily against the Respondents. It was error to require that the statutory presumption can only be overcome by proving the disease was caused by something else unrelated to the job. The court viewed such a standard as akin to saying strict liability applies against the Respondents. My concern is that the evidence was really indicating that non work factors were the greater risk factors then the job exposure to the development of the melanoma. I would say that this defense could well impair the statute's intent. Respondents can use this approach forcing the firefighter to again try to show his melanoma came from work and that could be difficult. My concern is that risk factors or the increased risk do not show what caused the disease and the statute sought to indicate it would presume the cause came from work activities and exposures. In any event the case is required reading in any firefighter case.

Colorado Court of Appeals: The Youngs case

Last week the Court of Appeals decided the Youngs case. The case is as complicated as it is long. It started in 2005. In 2011 the claimant sought to reopen the case. Reopening was sought on two grounds. One ground was fraud and the second was a worsening of the claimants condition. The insurer opposed both allegations. On the fraud assertion that was dismissed by one judge after deciding the claimant could not establish the elements to support the request to reopen. Later a hearing was held on reopening based upon a worsening of the claimants condition. On the evidence another judge decided against reopening. The claimant appealed both orders. The court decided against the claimant. On the fraud dismissal the claimant filed to appeal but it was determined to be premature until the second order was issued and while claimant appealed the second order he did not appeal the fraud dismissal after the second order making it untimely. On the worsening appeal it was decided there was no worsening and no error permitting that decision to be overturned. You are encouraged to read the case for a full review of the courts opinion. The decision on no worsening is straightforward enough to read and understand. Perhaps I might not agree but the burden is on the claimant and a judge has discretion with respect to the evidence. But on the fraud issue we seem to have a decision which says the early appeal by the claimant was too early and he needed to appeal again on that issue and when he did not then he lost his right to appeal. Now for my personal comments: I do question that the first appeal was premature. It seems rather final to dismiss the fraud allegation and a final decision starts the time frame to appeal. The claimant did appeal in a timely way but the court clearly felt otherwise. But next the court seems to impose a requirement that the claimant had to appeal a second time on the fraud issue after the last hearing and order. Perhaps that is the case but it is rather clear the claimant did initially appeal so does that existing filed appeal become timely after the second order? It is not like it was ever ruled upon until much later. Of course I am aware and the reader should be aware that the court had its own reasoning which is the law unless this case is appealed to the Colorado Supreme Court. Even if appealed that court can choose not to address the present decision.

Colorado case on Firefighters and cancer

This week the Court of Appeals issued a decision in the Littleton case. In this case a Littleton firefighter developed brain cancer. He filed a claim in workers compensation which was contested. The firefighter relied on a recent

Colorado statute which provides for a statutory presumption that certain cancers came from on the job exposures for firefighters. The Respondents fought hard and presented several witnesses to assert that his cancer was not from firefighting. The judge at the hearing decided against the claimant firefighter who then appealed. At next level of appeal it was decided in the firefighters favor so the Respondents appealed to the Court of Appeals. This court decision issued this week also determined in favor of the firefighter. The court went about analyzing the statute and concluding the efforts to provide evidence the cancer did not come from firefighting were not enough to overcome the statutory presumption the cancer was work related. It seemed the medical evidence the Respondents presented was really attacking the statute and in order to overcome that presumption you must present evidence as to where the cancer came from other than work activities. At least that is my view but read the case. In that respect the Respondent burden is very high. If fire fighters had to prove their exposure to toxic things caused a cancer it would be quite difficult. Fire fighters do not monitor all the chemicals they are exposed to or the level of that exposure. The other side can often come up with medical experts to provide opinions such exposures are not likely to cause cancer. So when the firefighter can rely on the statute he has a big edge. UPDATE: This case is now at the Colorado Supreme Court as of October 2013. Look for its decision in 2014.

Court case on interest and subrogation

A few days ago the Colorado Court of Appeals issued a decision which concerns CIGA (Colorado Insurance Guaranty Association). In this case the Claimant had an industrial injury to his left index finger and it was amputated.

Regretably there were complications which led to a surgery which had its own complications. As a result the claimant sustained an anoxic brain injury and now cannot work at all. He resides in an assisted living facility for brain injured individuals. This claimant is now permanently and totally disabled. The claimant then filed malpractice claims against physicians and a hospital and recovered several million dollars. By statute a workers compensation insurer does have rights (subrogation) to proceeds actually collected. Apparently this subrogation lien was paid but CIGA asserted a right to the interest earned when some of the malpractice proceeds were invested and structured in amounts to be paid out over time. The court decided that the interest was not something the insurer was entitled to assert a subrogation lien against so CIGA lost the appeal. I see this as indicating that the claimants investment of his proceeds does not entitle the insurer to seek any part of the gain or interest from his proceeds. Of course the case goes into more detail and does point out that workers comp insurers are entitled to a subrogation lien on actual proceeds collected by a claimant in other claims which can come out of work injuries.

Rodriguez Court of Appeals case on falls

Just a few days ago the Colorado Court of Appeals decided the Rodriguez workers comp case. In this case the claimant

was injured in a fall descending the stairs to her office. The employer initially admitted liability for disability but then sought to withdraw its admission of liability arguing the injuries did not arise out of the employment. A CT scan found unruptured brain aneurysms but it was determined the fall did not come from the aneurysms but was unexplained. The judge found the claim to be not compensable because the fall was unexplained. The hearing judge recognized that the employer bore the burden in proving non-compensability and it did so when the fall was determined to be unexplained. Claimant appealed and it was affirmed by the panel leading to the Court of Appeals decision when the claimant appealed again to a higher court. The court said the burden being on the employer the fact it was unexplained was a failure of proof. Essentially the burden of proof was on the employer since they had admitted liability and that burden requires more then saying the fall was unexplained. All claimants should be aware that unexplained falls are usually not compensable because normally the burden is on the claimant to show the injury was work related. However here the employer had the burden when it admitted liability. Clearly it appears the court is saying the burden you have is a real one and there must be evidence to carry that burden. A lack of explanation is not good enough. To me falling on stairs is usually work related but it is important to have an explanation of what happened. You might return to the scene of any fall if you are worried. Perhaps the traction is a problem or the angle or the step itself may be a problem. Fortunately in this case the claimant was lucky not to have it contested where the burden would be hers to prove. In many cases the other side disputes or contests the claim. If at all possible a claimant should have an attorney to handle such contested claims because they are often tough cases to win. UPDATE: This case went to the Colorado Supreme Court and while affirming the decision the court went further so see my post of February 4, 2014.

Psychological Trauma Case Kieckhafer

This week the Colorado Court of Appeals decided a case involving mental injury. In Kieckhafer

the claimant asserted a claim for work related emotional distress. She did not succeed and the appeal followed. In Colorado stress cases are difficult to handle. All work has some measure of stress and claims would be immense if the standards for recovery were loose so Colorado has tightened up on them. In this case the claimant lost the appeal because the court determined that you need evidence from a physician or psychologist to establish the claim. The claimant only used a licensed social worker and a physicians assistant. That is simply not enough. The claimant alleged that the law makes it impossible to prove the claim because you have to prove a permanent disability before you can get benefits so it forces you to pay for your own treatment. Once you reach MMI then you are permanent so the law prevents coverage until you reach MMI (maximum medical improvement). The court disagreed with that view but a claimant still has to provide proper evidence. In any event a full reading of the case is wise because it is a bit complicated and involved. Anyone with a pure stress case has a tough road to obtain benefits so obtain an attorney if you can.

Two cases on bad faith, subrogation and offsets

While not applicable in most work injury cases these two cases remind us that a work injury can lead to additional claims and that offsets are still a complicated matter. Decided on April 26,2012 the Zerba case involves offsets. That is, what can be deducted from your workers comp benefits. Social security benefits can be an offset to permanent total disability benefits and the case goes into the subject of offsets. Military retirement benefits are not typical offsets for Colorado employers as is noted in the case. The claimant also did assert constitutional matters so we shall see if an effort is made to take the case to the Colorado Supreme Court. In the Schuessler case

the decision addressed claims that came from a work injury claim. The claimant sued a doctor for malpractice and the workers comp insurer for bad faith. The insurer raised many issues to include subrogation or its right to seek reimbursement. The case addresses many matters but this was not a workers comp appeal. It more involved matters which came from the underlying workers comp case.

Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal. UPDATE: The Colorado Supreme Court affirmed this decision on January 27, 2014.