State News : Colorado

NWCDN Case Summaries 

Claimant injured his back picking up work equipment and was admitted to the hospital due to a gastrointestinal bleed. A few weeks later, he was re-admitted with severe back pain. Diagnosed with lower extremity edema, compression fracture in thoracic spine and severs destruction in the T9-T10 vertebra with possible discitis versus neoplastic process. Blood cultures confirmed presence of staphylococcus lugdunensis. Due to the infection, claimant became wheelchair bound. An ALJ found claimant’s back injury created the conditions for the infection and was compensable. On appeal, respondents argued the infection and its consequences were only compensable if they were the natural result of claimant’s work-related injury. The Court of Appeals (COA) disagreed and viewed the case under the “chain of causation analysis,” which is reserved for cases in which the industrial injury leaves the body in a weakened condition and the weakened condition plays a causative role in the subsequent injury.Jarosinski v. Indus. Claim Appeals Office, 62 P.3d 1082, 2086 (Colo. App. 2002). COA found it was not necessary for the work conditions to have directly caused claimant’s infection. Instead, it was sufficient if claimant’s weakened back condition played a “causative role” resulting in his disability. COA found a connection existed because of weakened back was a perfect breeding ground for infection.

City of Colorado Springs, Colorado v. Industrial Claim Appeals Office of the State of Colorado and Theodore E. Martinez, 19CA1795

Claimant installed drywall for employer and fell 14-feet and suffered a broken pelvis and two fractured vertebrae. Employer denied request for workers’ compensation benefits, because they asserted he was an independent contractor. After a hearing, the ALJ found claimant was an independent contractor when he weight factors set out in § 8-40-202(2). The ALJ listed a number of factual findings; claimant had executed a sub-contractor agreement, no training provided, employer did not oversee work, claimant obtained own insurance, claimant had taxpayer identification number, employer gave 1099 with “Noe Lopez Construction” identification, and claimant identified himself as self-employed. Claimant appealed. The ICAO Panel set aside the ALJ’s order by balancing factors set forth in Industrial Claim Appeals Office v. Softrock Geological Services, Inc., 2014 CO 30. The Panel found the claim compensable and respondent liable for consequential medical expenses. Respondent appealed. The Court of Appeals (COA) set aside the Panel’s order because neither the Panel nor the ALJ had the benefit of Pella Windows & Doors, Inc. v. Industrial Claim Appeals Office, 2020 COA 9.Pella held the factors articulated in Softrock applied in a workers’ compensation case along with factors in C.R.S. 8-70-115(1)(c). However, COA found the Panel exceeded its authority by improperly re-weighing evidence and applyingSoftrock to the facts. Under §8-43-301(8), a panel may only “correct, set aside, or remand” a judge’s order if the findings of fact are not supported by evidence, or do not support an order or law. The COA cited howPella found whether a worker is an independent contractor is a factual determination for an ALJ. So the Panel erred by looking at additional evidence and overlooking the facts the ALJ found. The Panel should have remanded the case with instructions for the judge to consider Softrock.

Holsinger Drywall Inc. and Pinnacol Assurance v. Industrial Claim Appeals Office and Neo Lopez, 19CA1013, May 28, 2020.

Summaries completed by Craig Campos, Esq. from the Fort Collins, CO. office of Ritsema & Lyon, P.C.

NWCDN Case Summaries

Claimant worked as a flagger at a constructions site. She reported that a truck hit her in the back of the leg and hit her sign, causing it to hit her in the head. She told different versions of the incident to her coworkers and supervisor and did not seek medical treatment for two weeks. Respondents denied the claim and a full contest hearing took place. The ALJ denied and dismissed the case based on a review of the medical records that revealed claimant did not have any ongoing pain complaints. Claimant appealed and the ICAP panel affirmed the ALJ. Claimant appealed again to the Court of Appeals. Claimant alleged that the respondent-employer “cherry picked” the evidence used in the claim and that the ALJ did not consider certain evidence that she presented. However, the evidence and testimony in the records supported the ALJ’s factual and legal findings. An ALJ does not have to address all evidence in the record in his or her order and has discretion to consider whatever evidence he or she chooses. 

Lisa Martinez v. ICAO, Anytime Labor Colorado, LLC, and XL Caitlin Insurance (Co. App. No. 19CA0560, November 14, 2019) *unpublished

Claimant was working the night laundry shift when he thought he heard a noise coming from the washing machine. He thought he saw a soda bottle in the washing machine and tried to reach into the machine during the spine cycle to grab the bottle. Claimant did not use the emergency or stop switch before reaching into the machine. When reaching into the machine, a sheet wrapped around his arm, flipped him and severed his arm at the elbow. Claimant admitted to smoking black tar heroin in the employee restroom before the incident. Respondent employer admitted the claim, but took a safety rule violation and reduced claimant’s benefits. Claimant challenged the safety rule violation, but the ALJ and ICAO Panel agreed with the safety rule violation and benefit reduction (50% against indemnity benefits). Claimant appealed again to the Court of Appeals and argued that the ALJ improperly limited his testimony about the plausible purpose for violating the safety rule. Claimant’s testimony about mechanical issues with the safety switch was not allowed because respondents successfully objected, arguing that claimant was not qualified to testify about mechanical issues. However, the Court of Appeals held that nothing precluded claimant from testify about his experience with the safety switch and that it did not work, which was a different issue than the mechanical issue with the switch. As a result, the ALJ did properly limit claimant from testifying regarding his reason for violating the safety rule.

Benjamin Heien v. ICAO, DW Crossland, and Liberty Mutual Insurance (Co. App. No. 18CA2398, December 12, 2019) *unpublished

Claimant felt a sudden and sharp pain on his left arm and thought he was bitten by a bug. However, no bug was found after the alleged bite. A Notice of Contest was filed by the employer. Claimant was seen by an infectious disease specialist and tested positive for Epstein-Barr virus (EBV), an infectious disease, but the specialist was skeptical the EBV caused by the alleged insect bite. Claimant never received an official work-related diagnosis. The ALJ found the Claimant had not established a causal connection between his symptoms and his job. Claimant appealed and the ICAO panel affirmed the ALJ Order. Claimant appealed again to the Court of Appeals on four grounds: that the ALJ was not credible; the Order from the ALJ was inaccurate due to typographical errors; that he was not notified of the reason for the Notice of Contest that his workers’ rights and human rights had been violated. The Court of Appeals affirmed the Order again. The court found the evidence in the record substantially supported the ALJs decision. Further, the typographical errors were harmless, the employer is not required to provide a specific reason for a Notice of Contest and the claim that the ALJ was not credible was not sufficient to warrant setting aside the order. No evidence was presented regarding claimant’s allegations that his human and workers’ rights were violated.

James A. “Butch” Smith v. ICAO, City of Ouray and CIRSA (Co. App. No. 19CA0267, October 24, 2019) *unpublished

Summaries completed by Craig Campos, Esq. from the Fort Collins, CO office of Ritsema & Lyon.