August 25, 2019

Workers’ Compensation – Notice of Rulemaking Hearing

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.

Colorado Court of Appeals: Penalty for Violation of Colorado Employment Security Act Upheld but Restitution Penalty was Abuse of Discretion

The Colorado Court of Appeals issued its opinion in People v. Welliver on March 15, 2012.

Restitution—Unemployment—Penalty—Colorado Employment Security Act—Colorado Department of Labor and Employment—Due Process.

Defendant appealed the order for restitution, including a penalty imposed by the Colorado Employment Security Act (CESA). The order was affirmed in part and reversed in part, and the case was remanded with directions.

Defendant provided false information to the Colorado Department of Labor and Employment (CDLE) when he represented that he was unemployed and earned no income. Based on this conduct, defendant was charged with one count of felony theft, one count of computer crime, and one count of forgery. He was not criminally charged under the provisions of the CESA. Defendant entered into a plea agreement, and the trial court sentenced him to seven years’ probation and ordered him to pay $11,905 in restitution, including the CESA penalty.

Defendant contended that the restitution order violated his right to due process because the prosecution did not prove the amount of the alleged victim’s actual pecuniary loss by a preponderance of the evidence. Other than an objection to the penalty, defendant did not object to the amount of the CDLE’s pecuniary loss as documented in the attachments to the presentence report, which included the overpayments that were paid by the CDLE to defendant in the total amount of $7,830 and a 50% percent statutory penalty of $3,915. Accordingly, the court was justified in relying on the report to determine the amount of restitution.

Defendant also contended that the trial court erred when it included a 50% statutory penalty as restitution. The penalty authorized in CRS § 8-81-101(4)(a)(II) is to be paid into the unemployment revenue fund, which is a general fund used for such enforcement purposes, and the amount cannot be specifically attributed to defendant’s conduct. Thus, there is no evidence in the record that the amount of the penalty ($3,915) correlates in any way to the cost that the CDLE incurred to investigate and enforce the provisions of the CESA against defendant. Without such a correlation, there is no loss suffered by the CDLE that can be “reasonably calculated” under the restitution act. Accordingly, the 50% penalty was not properly included as restitution because it is not a “pecuniary loss that was suffered by” the CDLE as a “natural and probable sequence produced” by defendant’s conduct. Therefore, the trial court abused its discretion when it included the penalty as restitution.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.