State News : Colorado

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 No. 19CA0560, November 14, 2019) *unpublished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.