In Sorensen, the Industrial Claim Appeals Office (the Panel) set aside the ALJ’s order denying an application for hearing to retroactively reduce the claimant’s compensation by 50% based on the claimant’s alleged violation of a safety rule.
The claimant worked as a security guard in a parking garage. On December 9, 2021, he was involved in an altercation with a vehicle leaving the garage. The claimant attempted to prevent the vehicle from exiting, and the vehicle drove into the claimant, lifting him onto the car’s hood. The claimant traveled some distance while on top of the vehicle’s hood before being thrown to the ground, sustaining multiple injuries.
On December 29, 2021, Advantage Security and Pinnacol Assurance (the “respondents”) filed a General Admission of Liability (GAL) admitting to medical benefits and temporary total disability. The GAL did not mention any defense based on violation of a safety rule. Two years later, on December 27, 2023, the respondents petitioned to modify their GAL and reduce the benefits by 50% for the claimant’s allegedly willful violation of a reasonable safety rule. The petition was not approved, so respondents applied for an expedited hearing on the issue.
The ALJ denied and dismissed the request to reduce Claimant’s compensation by 50%. The basis for denial was that the efforts to modify the claimant's compensation were time barred under WCRP 6-4 (petition to modify must be filed within 30 days after the initial indemnity admission) and § 8-42-112, C.R.S. (application for expedited hearing must be filed within 45 days after the date of the admission reducing compensation). Respondents appealed to the Panel.
On appeal, the Panel agreed with respondents that “neither § 8-42-112(4) nor WCRP 6-4(B), operate to preclude the respondents from requesting to reduce compensation for the claimant’s alleged safety rule violation, nor do they preclude the ALJ from adjudicating the issue.” These statutes do not function as a statute of limitations that prevent a party from retroactively adjudicating whether an alleged safety violation existed.
The Panel explained that “under Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000), a retroactive reduction of compensation benefits under § 8-42-112, C.R.S., is an exception to the general rule that admissions of liability may not be retroactively withdrawn or revoked in the absence of fraud. Consequently, the ALJ erred in his determination that the respondents’ December 29, 2021, GAL precluded the respondents from requesting, or the ALJ from adjudicating, the issue of a safety rule violation.” They went on to clarify that if the 45-day period in § 8-42-112 has lapsed, then a party may still file a regular application for hearing under § 8-43-209, C.R.S., to adjudicate the safety rule violation.
The Panel held that: “[N]one of the provisions cited in the ALJ’s order operate to bar the respondents’ request for a reduction of compensation based on an alleged safety rule violation. We further conclude that the ALJ erred in failing to adjudicate the respondents’ request to reduce the claimant’s compensation for an alleged safety rule violation. The question of whether a safety rule existed, and whether it was willfully violated, are questions of fact. Indus. Comm’n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App. 1990).”
Sorensen v. Advantage Security Inc. and Pinnacol Assurance, W.C. No. 5-190-559-002 (I.C.A.O. Sep. 9, 2024).
Want to know more? Contact Jonny Campbell at jcampbell@pollartmiller
