April 20, 2019

Archives for March 20, 2019

Colorado Court of Appeals: ALJ Cannot Determine MMI Where No Physician Has Placed Claimant at MMI

The Colorado Court of Appeals issued its opinion in Burren v. Industrial Claim Appeals Office on Thursday, March 7, 2019.

Workers’ Compensation—Maximum Medical Improvement.

Burren sustained admitted work-related injuries to her arm and shoulder in 2014. Several physicians treated her for her injuries into 2017, but Burren complained that her pain continued to worsen and that none of the treatment improved her condition. None of her physicians placed her at maximum medical improvement (MMI).

In 2015 employer retained Dr. Fall to perform a medical examination of Burren. She did not find Burren at MMI, but in 2016 she found Burren had reached MMI. Employer then requested Dr. Henke to perform a 24-month division-sponsored independent medical examination (DIME) because no treating physician had placed Burren at MMI. Dr. Henke determined that Burren was not at MMI.

Employer then applied for a hearing to dispute Dr. Henke’s DIME opinion. The ALJ ruled that employer had clearly and convincingly overcome the DIME and found MMI was reached in 2016. An Industrial Claim Appeals Office panel (the Panel) upheld the ALJ’s order.

On appeal, Burren argued that the Panel and the ALJ misinterpreted C.R.S. § 8-42-107(8)(b) because an ALJ cannot determine a claimant’s MMI as a matter of fact without an authorized treating physician (ATP) placing her at MMI. She contended that if a DIME performed under the statute finds a claimant is not at MMI, treatment should proceed until an MMI determination is made. The court of appeals analyzed the statute and the Panel’s historical practices and concluded that when the DIME and the ATP agree that a claimant is not at MMI, treatment should continue until either the DIME or the ATP places the claimant at MMI. Thus, the ALJ and the Panel misinterpreted C.R.S. § 8-42-107(8)(b)(II). While the court’s conclusion effectively precludes an employer from challenging a 24-month DIME when the DIME agrees with the ATP that a claimant is not at MMI, it does not prohibit an employer from re-invoking the 24-month DIME process at an appropriate future time.

The order was set aside and the case was remanded to the Panel with directions to return it to the ALJ to enter an order consistent with the opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Juvenile Court Must Make Reasonable Accommodations Under ADA in Crafting Treatment Plan for Parents

The Colorado Court of Appeals issued its opinion in People in Interest of S.K. on Thursday, March 7, 2019.

Americans with Disabilities Act—Reasonable Accommodations—Termination of Parental Rights—Dependency and Neglect—Rehabilitation Act of 1973.

The Gunnison County Department of Health and Human Services (Department) received reports that S.K. was failing to thrive. The Department initiated a dependency and neglect case and took custody of S.K.

The parents stipulated that the child was dependent and neglected because she was without proper care through no fault of their own. The juvenile court adopted treatment plans for the parents and appointed a guardian ad litem for each parent. Ultimately, the Department moved to terminate the legal relationships between S.K. and the parents. Mother and father filed a joint motion requesting (1) a finding that the Department had not made reasonable efforts to reunify them with the child, (2) dismissal of the termination motion, and (3) amendment of the treatment plans to provide reasonable accommodations under the Americans with Disabilities Act (ADA). Following a hearing, the court rejected the parents’ arguments and terminated their parental rights.

On appeal, the parents challenged the appropriateness of their treatment plans, the efforts the Department made to reunify them with the child, and the extent of reasonable accommodations required under the ADA. An appropriate treatment plan is one that is approved by the court and is reasonably calculated to render the parent fit to provide adequate parenting within a reasonable time and that relates to the child’s needs. When evaluating parental unfitness and the likelihood that a parent’s conduct or condition will change, the court must consider whether reasonable efforts have been unable to rehabilitate the parent. The reasonable efforts standard is met when services are provided in accordance with C.R.S. § 19-3-208, including appropriate assessments and referrals and mental health and substance abuse treatment services, if funding is available. Title II of the ADA prohibits a public entity from discriminating against a qualified individual with disabilities in the provision or operation of public services, programs, or activities. Section 504 of the Rehabilitation Act of 1973 applies the same requirement to entities that receive federal financial assistance. There is an affirmative duty placed on a public entity to make reasonable accommodations for qualified individuals with disabilities.

Whether a parent is a qualified individual with a disability under the ADA is a case-by-case determination. When a parent in a dependency and neglect proceeding has a disability under the ADA, the Department and the juvenile court must make reasonable accommodations for the parent’s disability in the treatment plan and the rehabilitative services provided. When deciding whether to terminate parental rights, the juvenile court must consider whether reasonable accommodations were made for the parent’s disability in determining whether the parent’s treatment plan was appropriate and reasonable efforts were made to rehabilitate the parent. The juvenile court’s primary concern is the child’s health and safety.

Here, it was undisputed that both parents had serious intellectual and developmental disabilities. Though these were disabilities under the ADA, the ADA does not restrict a court from terminating parental rights when the parent, even after reasonable accommodations, is unable to meet his child’s needs. The juvenile court considered the many services offered to the parents in concluding that the Department provided services that reasonably accommodated the parent’s limitations; the parents’ treatment plans were appropriate; and the Department made reasonable efforts to rehabilitate the parents. These conclusions were supported by the record.

Mother contended that the juvenile court erred in finding that she was an unfit parent and her conduct or condition was unlikely to change in a reasonable time. The record evidence, including the opinions of professional evaluators, did not support this argument. The juvenile court did not err in concluding that mother was an unfit parent and her conduct or condition was unlikely to change in a reasonable time.

Father argued that placing the child with the paternal grandmother was a less drastic alternative to termination. The record showed that a home study resulted in the paternal grandmother being denied placement for the child and otherwise supported the juvenile court’s determination that there was no less drastic alternative to termination.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Teacher Must Report Child Abuse Regardless of Circumstances in Which He or She Learns of Abuse

The Colorado Court of Appeals issued its opinion in Heotis v. Colorado State Board of Education on Thursday, March 7, 2019.

Teacher’s License—C.R.S. § 19-3-304(2)(l) Reporting Duties—Constitutionality.

Several months before the expiration of her teacher’s license, Hoetis submitted a renewal application to the Colorado State Board of Education (the Board). The Board denied her application because while Heotis was employed as a public school teacher, she did not report to authorities that her then-husband had sexually abused their daughter. The Board determined her failure to report the abuse was unethical under Colorado’s Teacher Licensing Act, C.R.S. § 22-60.5-107(4) (the Act). An administrative law judge (ALJ) upheld the Board’s decision, and the district court upheld the Board’s final order.

On appeal, Heotis argued that the Act violates due process on its face and as applied because the disciplinary options provided to the Board by the Act are too limited as compared to the greater disciplinary flexibility provided to other licensing boards. The court of appeals found no authority to support the proposition that the greater flexibility in other licensing statues represents a constitutional minimum. Hoetis failed to establish that the Act is unconstitutional.

Hoetis also contended that there was insufficient evidence to support the conclusion that she engaged in unethical behavior. She argued that she was not required to report the abuse of her daughter. C.R.S. § 19-3-304(2)(l) required Heotis, as a public school teacher, and thus a mandatory reporter, to immediately report any known or suspected child abuse or neglect. This duty applies irrespective of the circumstances in which the reporter learns of or suspects abuse or neglect. The statute reflects a moral standard in the community for teachers. Substantial evidence in the record supported the Board’s conclusion that Heotis engaged in unethical conduct through her failure to report because it offended the morals of the community.

Hoetis further argued that she was excused from reporting based on evidence that she suffered from battered woman syndrome. The statute does include an exception for persons suffering from battered woman syndrome. Moreover, there was substantial evidence in the record that Hoetis did not report because she was trying to keep her family together, not because of battered woman syndrome.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/19/2019

On Tuesday, March 19, 2019, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinions.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.