Industrial Claim Appeals Office

Workers' Compensation—Maintenance Medical Benefits—Intervening Cause. Claimant sustained admitted work-related injuries when she fell backward to the ground. Physicians diagnosed a concussion as well as cervical and lumbar strains. Within a few months claimant developed clinical depression related to the work injury. Employer admitted the compensability of the depression treatment. In October 2015, a physician who performed a division-sponsored independent medical examination placed claimant at maximum medical improvement. Pursuant to a settlement agreement that was approved by an administrative law judge (ALJ), employer paid claimant a lump sum for her permanent partial disability award. In addition, employer agreed to continue paying for maintenance care through authorized providers that was reasonable, necessary, and related to the compensable injury. The primary care that claimant was receiving was psychological. Several months later, employer retained a psychiatrist to examine claimant, and he and several other health care providers concluded claimant had returned to baseline and required no further maintenance care related to the work injury. Employer petitioned to terminate claimant's maintenance medical benefits. An ALJ agreed that claimant had returned to baseline and that any further treatment was related to claimant's pre-injury condition, not to her work-related injury. A panel of the Industrial Claim Appeals Office (the Panel) affirmed. On appeal, claimant argued that because her claim had closed, employer could only modify her maintenance medical benefits by first seeking to reopen the claim. Future maintenance medical benefits are by their nature not yet awarded, so those benefits remain open and are not closed by an otherwise closed final admission of liability. Here, claimant was entitled to receive future ongoing maintenance medical benefits for her depression. The issue was not closed, and reopening was not required to assess the continuation of t

Claimant was president of the local union. She worked for Pueblo County (employer). Union membership is required for workers in a bargaining unit, and union dues are deducted from workers' paychecks. Participation in union meetings is voluntary. Claimant stayed after work for a union meeting, which was held immediately after claimant clocked out for the day and took place in a conference room in the building in which she worked. The purpose of the meeting was to review and revise the new collective bargaining agreement. After the meeting, claimant walked to the adjacent parking lot where she normally parked for work. While getting in her car, she slipped on ice and injured herself. She filed a workers' compensation claim for her medical expenses. An administrative law judge (ALJ) denied and dismissed the claim, finding the claimant "was not in the course and scope of her employment at the time of her injury." The Industrial Claim Appeals Office (Panel) disagreed, finding the union activities were "sufficiently incidental" to claimant's work "as to be properly considered as arising out of and in the course of employment." It remanded to the ALJ to determine benefits. On remand, the ALJ ordered employer to pay all of claimant's reasonable, necessary, and related medical expenses. The Panel affirmed. On appeal, employer argued that the Panel erred in holding that the post-work injury sustained immediately following claimant's attendance at a union meeting arose out of and in the course of employment. An injury arises out of employment when it originates in an employee's work-related functions and is sufficiently related to those functions to be considered part of employment. It is not essential that an employee be engaged in an obligatory job function. This was a case of first impression in Colorado but has been addressed in a number of other states. In general, injuries sustained during "unilateral union activities conferring, if any, only a remote or indirect benefit

Workers' Compensation Insurance—Fine—Lapse in Coverage—Unconstitutional—Eighth Amendment. The Division of Workers' Compensation (Division) imposed a fine of $841,200 on Dami Hospitality, LLC, a small employer, for failing over several years to maintain workers' compensation insurance. On appeal, Dami argued that CRS § 8-43-409 is unconstitutional on its face and as applied. Dami also argued that the fine is grossly disproportionate both to its ability to pay and to the harm caused by the lack of workers' compensation insurance. The statute is not unconstitutional on its face. However, because the division director failed to apply the excessive fine factors adopted under the Eighth Amendment to the particular facts that Dami presented, including his ability to pay, the fine was excessive. Dami also contended that the provisions of CRS § 8-43-304 must be read into CRS § 8-43-409 to incorporate a cure provision, a limitation period, and a clear and convincing burden of proof and the fine must be set aside based on the Division's failure to meet these requirements. The Court of Appeals analyzed the statutes and determined that the Division was not obligated to credit Dami for curing the violation, was not required to prove by clear and convincing evidence that Dami violated CRS § 8-43-409, and did not have to file notice of Dami's violation within one year of Dami's lapse. The order was set aside and the case was remanded.