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Workers’ Compensation – Notice of Rulemaking Hearing

October 10, 2012 by Leave a Comment

The Division of Workers’ Compensation will hold a public hearing on Thursday, November 15, 2012, to discuss the proposed amendments to Rule 17 of the Workers’ Compensation Rules of Procedure regarding traumatic brain injuries.

The purpose of the proposed amendments is to revise and update procedures, recommendations, and implementations in the Medical Treatment Guidelines that address traumatic brain injuries; to update diagnosis, treatment, and testing criteria; to revise grammar and terminology; and to change exhibits in order to make them more consistent with other exhibits in the Medical Treatment Guidelines.

Any interested party is invited to appear at the hearing and testify or to submit written data, arguments or position papers to Paul Tauriello, Director of the Division of Workers’ Compensation. Written submissions should be submitted to the Director prior to the hearing on November 15, 2012.

Proposed rule revisions, the proposed statement of basis and purpose and a regulatory analysis are available here.

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New Workers’ Compensation Form: “Medical Billing Dispute Resolution Intake Form,” WC 181

October 9, 2012 by Leave a Comment

The Division of Workers’ Compensation in the Colorado Department of Labor and Employment issued a new form, WC 181, “Medical Billing Dispute Resolution Intake Form.” The form is intended for use in situations where parties have followed the dispute resolution procedures outlined in WCRP Rule 16-11(A) through (D) and a payment dispute still exists.

The completed form should be submitted to the Division’s Medical Policy Unit via fax, email, or mail. Directions for submission of the completed form can be found here.

This form is available in Adobe Acrobat (PDF) format.

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Tenth Circuit: Commissioner’s Denial of Social Security Disability Benefits Affirmed

September 19, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Pennie Keyes-Zachary v. Astrue on Tuesday, September 18, 2012.

Pennie Keyes-Zachary appealed the district court’s order affirming the Commissioner’s decision denying her application for Social Security disability benefits. Applying the Medical-Vocational Guidelines, the ALJ concluded that Ms. Keyes-Zachary was not disabled within the meaning of the Social Security Act. After a thorough analysis of the case history and medical records, the Tenth Circuit held that the ALJ’s factual findings were supported by substantial evidence, and AFFIRMED the Commissioner’s decision.

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Tenth Circuit: Title II of ADA Does Not Permit Employment Discrimination Claim

September 13, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Elwell v. State of Oklahoma on Tuesday, September 11, 2012.

Everyone agrees Title I of the Americans with Disabilities Act (ADA) authorizes the disabled to bring employment discrimination claims. But can a party bring an employment discrimination claim under Title II as well? This question has remained open in the Tenth Circuit until this case.

Plaintiff Elwell sued the University of Oklahoma for refusing to provide her requested accommodations for her degenerative spinal disc condition.  The District Court dismissed plaintiff’s ADA Title II claim stating it did not provide a cause of action for employment discrimination. Elwell appealed.

The relevant portion of the statute states as follows:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

The first clause prevents qualified individuals with a disability from being excluded from participation in or being denied benefits of services, programs or activities of a public entity. The second prevents qualified individuals from being subjected to discrimination by the public entity.

Beginning with the first clause, the question is whether “employment” can be described as a service, program or activity. The Tenth Circuit concluded that employing people is not a service, program or activity, but is rather a means the university uses to provide services, programs and activities. Accordingly, the first clause did not permit an employment discrimination claim.

The second clause prohibits the University from engaging in other forms of discrimination against the same individuals. In plaintiff’s view, the second clause applies the ADA’s anti-discrimination mandate to any operation of a public entity, including employment.

In holding the second clause does not permit an employment discrimination claim, the court pointed out that the statute prohibits discrimination only against “qualified individuals.” Congress defined qualified individuals to include only those individuals with a disability who meet eligibility requirements for the receipt of “services” or the participation in “programs” or “activities” provided by a public entity. Virtually every court to face the question has interpreted the words “services, programs and activities” to mean an agency’s “outputs.” The university’s “outputs” are its services, programs, and activities such as courses. Employing people isn’t a service, program, or activity: it is a means or method the university uses to provide its services, programs, and activities.  As much as every court to have faced the question agreed, the Tenth Circuit held the plain language of the statute does not reach employment.

AFFIRMED.

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Tenth Circuit: Student’s Restrictive Desk Not a Violation of Equal Protection, the Fourth Amendment, or the Fourteenth Amendment

August 29, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Ebonie S. v. Pueblo School Dist. 60 on August 28, 2012.

This appeal required the Tenth Circuit to decide whether the use of a particular desk in special education classrooms is permissible under the United States Constitution. The desks in question wrap around the student on the front and the sides and have a securing bar that  runs behind the student’s chair. A student can only remove herself by sliding under or crawling over the desk’s surface when the bar is in place. In a kindergarten special education classroom in Pueblo, Colorado, Ebonie S., a young girl with multiple disabilities, was often required to sit in this type of desk. Ebonie’s mother, Mary S., filed suit on her behalf  contending that the use of the  desk violated the Fourth Amendment, the Due Process Clause, and the Equal Protection Clause. The district court granted summary judgment to defendants on the constitutional claims. Plaintiff appealed the grants of summary judgment, and the Tenth Circuit affirmed.

The Court noted that, although students do not shed their constitutional rights at the schoolhouse gate, federal courts have long recognized that government action impermissible in other spheres may be proper in the school setting. The Court further stated that the rights of students in the public schools are not automatically coextensive with the rights of adults in other settings. The Court also stated that some in-school disciplinary measures that restrict a student’s movement present only a de minimis level of imposition with which the Constitution is not concerned.

In light of this precedent and the record, the Court concluded that the desk’s limitation on Ebonie’s movement did not significantly exceed that inherent in every-day, compulsory school attendance. Accordingly, it held that Ebonie failed to demonstrate a cognizable seizure under the Fourth Amendment.

Plaintiff also contended that the desk violated Ebonie’s Fourteenth Amendment rights by restricting her liberty without due process. In light of its conclusion that the restrictions placed on Ebonie did not substantially exceed those inherent in compulsory education, the Court concluded that Ebonie’s liberty interest in freedom from bodily restraint was not implicated.

Finally, Plaintiff made an Equal Protection claim contending that the desk infringed on Ebonie’s fundamental right to be free from bodily restraint. Since Plaintiff cited no case holding that an in-school limitation of movement, especially one that was not significantly more restrictive than those imposed on all students, implicates this fundamental right, it was unwilling to subject every teacher’s order that limits the freedom of a student to strict constitutional scrutiny. AFFIRMED.

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Colorado Court of Appeals: Breach of Fiduciary Duties Arising from Trust Agreement Against Trustees Not Barred by Governmental Immunity; Barred Against Colleges

August 21, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Casey v. Colorado Higher Education Insurance Benefits Alliance Trust on August 16, 2012.

Trust—CRCP 12(b)—Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort—Contract—Breach of Fiduciary Duty—Economic Loss Rule—Breach of Covenant of Good Faith and Fair Dealing—Mistake—Inverse Condemnation.
In this class action suit, defendants, the Colorado Higher Education Insurance Benefits Alliance (CHEIBA) Trust, the eight other colleges that participated in the original trust and that continue to participate in the new CHEIBA Trust, and the trustees of the CHEIBA Trust, appealed the court’s order denying their CRCP 12(b) motion to dismiss the claims of plaintiffs, a class of employees who participated in the trusts at issue in this case. The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Beginning in 1992, employees of nine Colorado colleges, including Mesa State College, contributed to a trust designed to provide long-term disability benefits for them if they were to become disabled. The trust agreement required the employees and Mesa State to make these contributions. The original trust was succeeded in 2003 by the CHEIBA Trust. Mesa State withdrew from the CHEIBA Trust in 2005 and created a new disability trust. CHEIBA refused Mesa State’s request to release to its new disability trust approximately $1 million from the reserve fund that Mesa State and its employees had contributed to the original trust and to the CHEIBA Trust. This interlocutory appeal was limited to determine only issues of sovereign immunity.

On appeal, defendants contended that the probate court lacked subject matter jurisdiction because all of the employees’ claims are barred by the Colorado Governmental Immunity Act (CGIA). The CGIA bars any action against a public entity or its employees that lies in tort or could lie in tort regardless of the form of relief chosen by the claimant. The CGIA does not apply to contract actions. The trust agreements are the source of the trustees’ fiduciary duty described in the employees’ breach of contract claim. As a result, the economic loss rule bars the employees from any tort recovery from the trustees. Therefore, the employees’ breach of fiduciary duty and breach of the covenant of good faith and fair dealing claims arising from the trust agreement against the trustees is not barred by the CGIA. However, the allegation that the colleges breached any fiduciary duties they owed the employees did lie, or could have lied, in tort as the trust agreement did not place any fiduciary duties on the colleges. Therefore, this portion of the breach of contract claim against the colleges is barred by the CGIA. On the other hand, the claim that the colleges violated the implied covenant of good faith and fair dealing is not barred because it does not, and cannot, lie in tort.

Defendants also contended that the CGIA bars the employees’ inverse condemnation claim. Because an inverse condemnation claim could not lie in tort, it is not barred by the CGIA.

Defendants further asserted that language in the trust agreements bars the employees from obtaining the relief they seek. Specifically, both trust agreements explicitly provide that contributions are irrevocable unless a majority of the trustees votes to dissolve the trusts. Plaintiffs claim that their contributions to the CHEIBA trust are null and void because of either unilateral or mutual mistake. The doctrine of mistake allows the mistaken party to avoid the contract and lies or could lie in tort. Therefore, this part of the declaratory judgment claim is barred by the CGIA.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , ,

Colorado Court of Appeals: Plain Language of Statute Grants Immunity from Suit to Provider of Services for Developmentally Disabled Adult

July 10, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in McLaughlin v. Oxley on July 5, 2012.

Negligence—CRS § 13-21-117.5—Immunity.

Defendants Christopher Oxley, Ricardo Sison, and Ability Specialists, Inc. (Ability) appealed the trial court’s holding that they were not immune from the suit brought by plaintiffs Brandon McLaughlin, Michael McLaughlin, and Selena McLaughlin. The Court of Appeals reversed the trial court’s order and the case was remanded with directions.

Michael and Selena McLaughlin retained Ability to provide services to assist in the care of their developmentally disabled son, Brandon, who at the time was 21 years old. As part of the services, Oxley, an employee of Ability, was supervising Brandon at Oxley’s home, while Oxley’s own 7-year-old son, B.O., was present. Brandon and B.O. were left unattended together, during which time Brandon put B.O. in a “spanking position,” pulled down B.O.’s pants, and kissed him. Oxley informed his superiors, who called the police to investigate. The police charged Brandon with sexual assault on a child. The criminal case was dismissed after Brandon was found incompetent to proceed.

Plaintiffs later sued defendants, alleging negligence against Oxley and Ability. Defendants moved for summary judgment on all claims, arguing they were immune from liability under CRS §§ 13-21-117.5(4) and (6). The trial court denied the motion and defendants appealed.

CRS § 13-21-117.5 was enacted to “mitigate the risk of liability to providers to the developmentally disabled to the extent that such mitigation is reasonable and possible.” The Court agreed with defendants that the trial court erred in finding that § 13-21-117.5(6) did not apply. The trial court reasoned that the section applied only to immunize a provider against civil actions initiated by a victim of a developmentally disabled person’s assaultive behavior and not, as here, to a suit regarding harm to the developmentally disabled person. The Court found no support for such an interpretation of the statute. The order was reversed and the case was remanded for entry of summary judgment in favor of defendants.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , , ,

Aaron Solomon: Zoning and the Fair Housing Act

July 5, 2012 by Leave a Comment

In Cinnamon Hills Youth Crisis Center v. Saint George City (No. 11-4020), the Tenth Circuit addressed the extent to which a city may enforce zoning restrictions in a manner that limits options for programs designed to treat persons with mental and emotional disorders in a residential setting. In this case, Cinnamon Hills sought to use the top floor of a motel it owned to operate a residential facility. The city refused to grant it zoning variances from ordinances prohibiting extended stays in motels and residential uses in areas zoned for commercial use. Cinnamon Hills brought suit under the Fair Housing Act, ADA, and the Rehabilitation Act. These statutes required it to show either intentional discrimination against the disabled, unlawful disparate impact, or a failure to provide a reasonable accommodation.

In discussing the failure to accommodate issue, the court nicely summed up the standard of a reasonable accommodation: “under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining ‘the same . . . opportunities that those without disabilities automatically enjoy.”’ But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities.”

Ultimately, the court held that Cinnamon Hills could provide neither direct evidence of discrimination nor sufficient evidence of indirect discrimination. The court further held that there was no evidence of disparate impact or a failure to accommodate. Notably, the court repeatedly avoided reaching the issue of whether a city ordinance requiring all new treatment centers be placed in rural areas was discriminatory as the city did not rely on the statute in this case and the court believed a challenge to its validity was not ripe.

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on July 5, 2012.
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Tenth Circuit: ALJ’s Handling of Findings Was Erroneous and Dispositive Hypothetical Inquiry Was Fatally Defective

June 27, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Chapo v. Astrue on Tuesday, June 26, 2012.

The Tenth Circuit reversed and remanded the district court’s decision. Petitioner “appeals from a district court order upholding the Commissioner’s denial of her application for disability and supplemental security income benefits.” Petitioner contends that the administrative law judge’s residual functional capacity (RFC) “determination was not supported by substantial evidence, in particular by medical opinion evidence directly supporting the RFC findings, and . . . the ALJ improperly handled the opinion evidence in the case.”

The Court found that her first contention “rests on an unduly narrow view of the role of the administrative factfinder in social security disability proceedings.” “There is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question.” Her second contention, however, has merit,” and led the Court to reverse and remand this matter to the agency for further proceedings. “[T]he ALJ’s handling of Dr. Vega’s findings was erroneous and, as a result, the dispositive hypothetical inquiry put to the [vocational expert] was fatally defective.”

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Colorado Court of Appeals: Transcript of Interview About Railroad Incident Was Admissible as Prior Consistent Statement to Rebut General Charge of Fabrication

June 11, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in McLaughlin v. BNSF Railway Co. on June 7, 2012.

Federal Employers’ Liability Act—Locomotive Inspection Act—Safety Appliance Act—Personal Injury—Negligence—Strict Liability—Eggshell Doctrine—Aggravation Doctrine—Pre-existing Medical Condition—Lost Wages—Collateral Source Rule—Disability Benefits.

Defendant BNSF Railway Company (railroad) appealed the judgment entered and damages awarded after a jury found in favor of its employee, plaintiff Thomas McLaughlin, on his statutory strict liability and negligence claims. The judgment was affirmed.

McLaughlin was injured when a locomotive handbrake allegedly malfunctioned when he attempted to release it. He sued the railroad for negligence and strict liability. The railroad asserted that McLaughlin’s injuries were not caused by the handbrake, and alternatively that the jury should apportion damages because McLaughlin had preexisting conditions that the incident had merely aggravated.

The railroad contended that the district court erred by (1) admitting a transcript of the railroad’s claims agent’s post-incident interview of McLaughlin because it contained hearsay, and (2) denying the railroad’s motion for a new trial based on this admission. The railroad’s counsel offered a page of the transcript to challenge McLaughlin’s testimony about the handbrake tension or pressure, and also more generally challenged his description of the incident and his injuries. Consequently, the entire transcript of McLaughlin’s interview about the incident was admissible as a prior consistent statement to rebut the general charge of fabrication. Alternatively, it was admissible to provide context for McLaughlin’s testimony on cross-examination that he had not reported experiencing tension or pressure in operating the handbrake. Because it was not offered for the truth of the matter asserted, it was not inadmissible hearsay.

The railroad also contended that the district court erred by improperly instructing the jury on the eggshell and aggravation doctrines. The evidence showed that although McLaughlin’s doctors had diagnosed him with pre-existing degenerative disc disease, other age-related deteriorating back conditions, and a pre-existing hernia from his childhood, he had not experienced any symptoms before the incident. The eggshell doctrine can apply in Federal Employers’ Liability Act (FELA) cases involving pre-existing conditions. The aggravation doctrine applies when the pre-existing condition was symptomatic before the incident giving rise to the plaintiff’s claim. The eggshell doctrine instruction was appropriate here because (1) there was no evidence that McLaughlin had suffered any pain or symptoms from his back conditions or hernia before the handbrake incident; and (2) there was evidence that his pre-existing conditions were made symptomatic or exacerbated by the incident. In contrast, the evidence did not support giving the aggravation instruction or the modified verdict form. However, any error was harmless because it was in the railroad’s favor.

The railroad further argued that the district court erred by denying its motion in limine to preclude McLaughlin from presenting evidence of lost wages because of his receipt of Railroad Retirement Act (RRA) disability benefits or to reduce the damages award by the amount of those benefits. RRA payments, such as those received by McLaughlin here, are collateral source benefits and may not be offset against a FELA award. Therefore, the district court did not err in denying the motion in limine.

Summary and full case available here.

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Colorado Court of Appeals: Workers’ Compensation Benefits Correctly Reduced by Amount of Social Security Award but No Reduction Allowed for Retirement Benefits from Different Employer

May 2, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Zerba v. Dillon Companies, Inc. on April 26, 2012.

Offsetting Social Security Payments Against Permanent Total Disability Benefits—Offsetting Military Retirement Benefits—Equal Protection.

Both parties sought review of the final decision of the Industrial Claim Appeals Office (Panel). The Panel’s decision allowed employer, Dillon Companies, Inc., doing business as King Soopers, to offset the old-age Social Security payments (SSA) received by claimant Robert Zerba against his permanent total disability (PTD) benefits, but denied King Soopers’ request to offset Zerba’s military retirement benefits. The order was affirmed.

Zerba contended that the administrative law judge (ALJ) and Panel erred in granting King Soopers an offset of his SSA benefits against the PTD benefits he was awarded. Specifically, Zerba claimed that this offset disproportionately harms elderly and poor workers by depriving them of the full sum they were receiving when they supplemented their SSA benefits with income. However, Zerba failed to establish that his right to equal protection under the law was violated because the SSA offset has a rational basis and therefore met constitutional scrutiny. Therefore, neither the Panel nor the ALJ erred in determining that King Soopers was entitled to an offset of Zerba’s SSA benefits against the PTD award. Additionally, the ALJ did not abuse its discretion in calculating Zerba’s PTD benefits before offsetting his SSA benefits.

In its cross-appeal, King Soopers contended that the ALJ and the Panel erred in denying it an offset for Zerba’s military retirement benefits. CRS §8-42-103(1)(c)(II.5), however, does not provide for an offset of military retirement benefits because that provision permits an offset only of “employer-paid retirement benefits.” Because King Soopers is not the employer providing Zerba with the retirement benefits in question, it was not entitled to the statutory offset. Therefore, neither the Panel nor the ALJ erred in denying King Soopers’ request for an offset of Zerba’s military retirement benefits.

Summary and full case available here.

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New Bill Signed Creating Exception to Hearsay Rule; Allows Testimony from Persons with Developmental Disabilities

April 3, 2012 by Leave a Comment

On Tuesday, April 3, 2012, Governor John Hickenlooper signed HB 12-1085 into law, which creates an exception to the hearsay rule and allows testimony from persons with developmental disabilities in certain circumstances.

An out-of-court statement made by a person with a developmental disability that is not otherwise admissible as an exception to hearsay is admissible in any criminal or delinquency proceeding in which the person is alleged to have been a victim and the statement describes all or part of any of the following offenses:

  1. Sexual assault;
  2. Unlawful sexual contact;
  3. Sexual assault on a child;
  4. Sexual assault on a child by one in a position of trust;
  5. Internet exploitation of a child;
  6. Sexual assault on a client by a psychotherapist;
  7. Incest;
  8. Aggravated incest;
  9. Trafficking in children;
  10. Sexual exploitation of a child;
  11. Indecent exposure; or
  12. Criminal attempt to commit any of these acts.

Click here to read the full bill, including further limiting factors for this exception to the hearsay rule.

Additionally, Governor Hickenlooper also signed the following bills into law on Monday:

  • HB 12-1065 – Deadline Advanced Practice Nurse Retain Prescriptive Authority
    • Concerning the Deadline for an Advanced Practice Nurse Who was Granted Prescriptive Authority Prior to July 1, 2012, to develop an Articulated Plan for Purposes of Retaining Prescriptive Authority.
  • HB 12-1061 – The Skills for Jobs Act
    • Concerning Requiring a Report of the Correlation between the Educational Credentials Issued and the State’s Workforce Needs

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

Filed Under: Legislation Tagged With: , , , , , , , , , ,
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