v. ICAO , 2020 COA 131 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 27, 2020
2020COA131
No. 19CA1783, SkyWest v. ICAO — Labor and Industry —
Workers’ Compensation — Scope of Employment — Personal
Deviation — Limitation on Payments Due to Use of Controlled
Substances
In this workers’ compensation case, a division of the court of
appeals determines that the Industrial Claim Appeals Office (Panel)
did not err by reversing the decision of an administrative law judge
(ALJ) regarding whether a decedent had returned to the course and
scope of employment from a personal deviation at the time of his
fatal accident. The ALJ found that decedent’s deviation from travel
status had not ended because he was intoxicated and had neither
returned to nor appeared to be en route to his hotel. But the Panel
held, based upon the ALJ’s factual findings, that decedent’s
deviation ended when he attempted to return to a coworker’s hotel.
The division affirms the Panel’s decision ruling the claim
compensable.
The division also determines, as a matter of first impression,
that preservation of a second blood sample is required to limit a
claimant’s benefits due to an injured worker’s intoxication under
section 8-42-112.5, C.R.S. 2019. As relevant, that statute imposes
a 50% reduction in nonmedical benefits if the work-related accident
resulted from the presence in the worker’s system of a blood alcohol
level exceeding 0.10 percent. Because a second sample of
decedent’s blood had not been preserved as mandated by section 8-
42-112.5, the Panel determined that the employer could not take
advantage of the 50% reduction in benefits. The division affirms
this ruling as well.
COLORADO COURT OF APPEALS 2020COA131
Court of Appeals No. 19CA1783
Industrial Claim Appeals Office of the State of Colorado
WC No. 5-079-980
SkyWest Airlines, Inc. and Indemnity Insurance Company of North America,
Petitioners,
v.
Industrial Claim Appeals Office of the State of Colorado, Luis Ordonez Gamez,
Alayan Ordonez, Evan Ordonez, minor child, and Elija Ordonez, minor child,
Respondents.
ORDER AFFIRMED
Division VII
Opinion by JUDGE BROWN
Fox and Rothenberg*, JJ., concur
Announced August 27, 2020
Lee & Brown LLC, Joshua D. Brown, William M. Sterck, Kristi M. Robarge,
Denver, Colorado, for Petitioners SkyWest Airlines, Inc. and Indemnity
Insurance Company of North America
No Appearance for Respondent Industrial Claim Appeals Office
The Sawaya Law Firm, Katherine McClure, Denver, for Respondents Luis
Ordonez Gamez, Alayan Ordonez, Evan Ordonez, and Elija Ordonez
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 In this workers’ compensation case, we must determine
whether the Industrial Claim Appeals Office (Panel) erred by
reversing the decision of an administrative law judge (ALJ)
regarding whether a decedent had returned to the course and scope
of employment from a personal deviation at the time of his fatal
accident. The ALJ found that decedent’s deviation from travel
status had not ended because he was intoxicated and had neither
returned to nor appeared to be en route to his hotel. But the Panel
concluded, based on the ALJ’s factual findings, that decedent’s
deviation ended when he attempted to return to a coworker’s hotel.
We affirm the Panel’s decision ruling the claim compensable.
¶2 We must also determine, as a matter of first impression,
whether preservation of a second blood sample is required to limit a
claimant’s benefits due to an injured worker’s intoxication under
section 8-42-112.5, C.R.S. 2019. As relevant here, that statute
imposes a 50% reduction in nonmedical benefits if the work-related
accident resulted from the presence in the worker’s system of a
blood alcohol level exceeding 0.10 percent. Because a second
sample of decedent’s blood had not been preserved as mandated by
section 8-42-112.5, the Panel determined that the employer could
1
not take advantage of the 50% reduction in benefits. We affirm this
ruling as well.
I. Background
¶3 Decedent, Luis Ordonez-Gamez, worked as a pilot for
employer, SkyWest Airlines, Inc.1 He lived in California with his
wife and two young children. In January and February 2018, he
came to Denver for flight training. While training in Denver,
decedent stayed at the SpringHill Suites, located at the
southwestern intersection of 68th Avenue and Tower Road.
¶4 On February 14, 2018, decedent and his simulator partner,
Baylee Ladner, took the difficult Initial Maneuvers Validation test
from 6 p.m. to 10 p.m. After successfully completing the test,
decedent and Ladner had dinner and “a couple of beers” at a nearby
restaurant to celebrate. From the restaurant, they headed to a
different establishment to continue drinking and celebrating.
¶5 At approximately 2 a.m. on February 15, 2018, decedent and
Ladner stopped drinking alcohol, left the establishment, and
1SkyWest’s insurer, Indemnity Insurance Company of North
America, is aligned with the SkyWest’s interests in this
case. Therefore, we refer to the SkyWest and the insurer collectively
as “SkyWest.”
2
returned to Ladner’s hotel, the Fairfield Inn & Suites, located at the
southwestern corner of 69th Avenue and Tower Road, one block
north of and on the same side of Tower Road as the SpringHill
Suites where decedent was staying. When they arrived at the
Fairfield Inn, decedent approached the night desk attendant and
asked her “to make his room key again because it wasn’t working.”
The desk attendant informed decedent that the logo on his key
referenced the SpringHill Suites and that he “wasn’t at the right
hotel.” The desk attendant observed decedent “moving around a
lot” and surmised he was intoxicated because “[h]e smelled like
alcohol.” After being told his room key would not work there,
decedent proceeded to Ladner’s room in the Fairfield Inn.
¶6 At about 5:30 a.m., decedent returned to the Fairfield Inn’s
front lobby and spoke with the same desk attendant. He again
asked her for a new room key, and she reiterated that his key was
for the SpringHill Suites “about two buildings over” from the
Fairfield Inn. She testified that decedent still seemed inebriated
and was struggling to put a lid on his coffee cup. The desk
attendant turned to assist some other hotel guests and, after those
guests left, she noticed that decedent “was gone.”
3
¶7 A few minutes later, the desk attendant saw police lights
outside. Decedent had left the Fairfield Inn, attempted to cross
from the west side of Tower Road — where the Fairfield Inn, the
SpringHill Suites, and SkyWest’s training facility were located — to
the east side, and had been struck by a vehicle traveling
southbound on Tower Road. Decedent was transported to
University of Colorado Hospital, where he received six units of blood
and then had a blood sample taken which revealed a blood alcohol
content (BAC) of 0.209 g/100ml. The parties stipulated that
medical staff did not preserve a second blood sample. Decedent
died later that morning at the hospital.
¶8 Decedent’s widow, Alayan Ordonez, and children, Evan and
Elija Ordonez (claimants) filed a claim for survivor benefits under
the Workers’ Compensation Act of Colorado (Act), sections 8-42-114
and -115, C.R.S. 2019. The matter proceeded to hearing before the
ALJ in January 2019.
¶9 Based on the evidence, the ALJ found that
 decedent and Ladner “finished drinking” at
approximately 2 a.m. on February 15, 2018;
4
 decedent was intoxicated when he was struck on Tower
Road;
 because decedent was running away from his hotel and
from SkyWest’s training facility when he was struck, he
was not returning to his hotel or to work; and
 no “persuasive evidence” supported claimants’ contention
that decedent was simply confused when he attempted to
cross Tower Road.
Relying on these factual findings, the ALJ concluded that decedent
“was in a personal deviation at the time of the accident due to
hours of consuming alcohol” and had not returned to travel status
within the course and scope of his employment. The ALJ “denied
and dismissed” the claim, finding it noncompensable.
¶ 10 The Panel disagreed. It determined, based on the ALJ’s factual
findings, that “by the time decedent was involved in the collision,
his personal deviation had ended.” It noted that the ALJ found that
decedent had stopped drinking about four hours before the
accident, and that although he had not returned to his hotel room
“he nevertheless had returned to lodging in Ladner’s hotel room.”
The Panel rejected the ALJ’s determination that because of
5
decedent’s “high level of intoxication,” he could not have been
“within the course and scope [of his] . . . position as a commercial
airline pilot.” Citing Wild West Radio, Inc. v. Industrial Claim
Appeals Office, 905 P.2d 6 (Colo. App. 1995), the Panel noted that
intoxication alone does not preclude compensation.
¶ 11 Finally, the Panel ruled that, to the extent the ALJ admitted
toxicology results establishing that decedent’s BAC was 0.209 just
before his death to reduce claimants’ benefits under section 8-42-
112.5, she erred. The Panel observed that, under the express
language of section 8-42-112.5(1), a second blood sample “must be
preserved.” Because a second sample was not preserved, the
toxicology results could not be used to reduce claimants’ benefits
under the statute.
II. Deviation from Travel Status
¶ 12 SkyWest first argues that the Panel was bound by the ALJ’s
factual findings, particularly the ALJ’s determination that
decedent’s personal deviation had not yet ended when the accident
occurred. By reaching a different conclusion, it contends, the Panel
improperly disregarded these findings, reweighed the evidence, and
drew its own inferences from the facts. We disagree.
6
A. General Principles of Compensability
¶ 13 To receive workers’ compensation benefits, an injured worker
must establish, by a preponderance of the evidence, that he has
sustained a compensable injury or death “proximately caused by an
injury . . . arising out of and in the course of the employee’s
employment . . . .” § 8-41-301(1)(c), C.R.S. 2019; see Faulkner v.
Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000).
An injury “arises out of” employment when it has its origin in an
employee’s work-related functions and is sufficiently related to
those functions to be considered part of the employee’s employment
contract. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001).
An injury occurs “in the course of” employment when it takes place
within the time and place limits of the employment relationship and
during an activity connected with the employee’s job-related
functions. Id.B. Law Governing Travel Status
¶ 14 Injuries occurring while an employee is away from home or
work for a business purpose may arise out of and be within the
course of employment and thus be covered under the Act. As
relevant here, under the “travel status” doctrine, “if the employee’s
7
job duties require travel[,] . . . that travel is considered to be a part
of the job, and any injury occurring during such travel will be
compensable.” Mountain W. Fabricators v. Madden, 958 P.2d 482,
484 (Colo. App. 1997), aff’d, 977 P.2d 861 (Colo. 1999). And “if the
employee is sent away from home for an extended period to attend
upon the employer’s business, the employee will be considered to be
in the course and scope of employment during virtually all of such
period.” Id. (citing Alexander Film Co. v. Indus. Comm’n, 136 Colo.
486, 492-93, 319 P.2d 1074, 1078 (1957), which affirmed an award
to an employee who died after being struck by a motor vehicle as he
crossed the road separating the restaurant where he dined from his
motel). The risks associated with the necessities of eating, sleeping,
and ministering to personal needs away from home are considered
incidental to and within the scope of a traveling employee’s
employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 12 (Colo.
App. 1995); Staff Adm’rs, Inc. v. Indus. Claim Appeals Office, 958
P.2d 509, 511 (Colo. App. 1997), aff’d sub nom. Staff Adm’rs, Inc. v.
Reynolds, 977 P.2d 866 (Colo. 1999).
¶ 15 A traveling employee’s injuries are not compensable, however,
if the injury occurred while the employee was engaged in a
8
“personal deviation.” See Hirst, 905 P.2d at 11 (“An employee
whose work requires travel away from the employer’s premises is
held to be within the course and scope of employment continuously
during the trip, except when the employee makes a distinct
departure on a personal errand.”); Wild W. Radio, 905 P.2d at 8(“Generally, workers’ compensation coverage of an employee away
from home at the direction of the employer does not extend to
injuries which occur while the employee makes a distinct departure
on a personal errand.”). When considering whether an employee
was engaged in a personal deviation, “the issue is whether the
activity giving rise to the injury constituted a deviation from
employment so substantial as to remove it from the employment
relationship.” Hirst, 905 P.2d at 12. “However, when the
employee’s personal errand is concluded, the deviation ends and
the employee is again covered for workers’ compensation.” Wild W.
Radio, 905 P.2d at 8.
¶ 16 Whether an injured employee was in “travel status” or on a
“personal deviation” at the time of his injury is a question of fact the
ALJ decides. See Staff Adm’rs, Inc., 958 P.2d at 511; Wild W. Radio,
905 P.2d at 8. Although the burden of proof is on the employer to
9
show that the employee made a distinct departure from the scope of
employment while on travel status, the burden of proof is on the
claimant to show a return to the course and scope of employment.
Wild W. Radio, 905 P.2d at 8.
C. Standard of Review
¶ 17 We employ the same standard of review as the Panel.
Compare § 8-43-307(8), C.R.S. 2019, with § 8-43-308, C.R.S. 2019;
see also Miller v. Indus. Claim Appeals Office, 49 P.3d 334, 337
(Colo. App. 2001) (“The Panel and reviewing courts are bound to
apply the substantial evidence test in determining whether the
evidence supports the ALJ’s findings of fact.”); Metro Moving &
Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995) (“[T]he
evidentiary standard of proof applied by the ALJ is not the same as
the standard of review applied by the Panel and reviewing courts in
determining the correctness of the ALJ’s order. By statute, both the
Panel and reviewing courts must apply the substantial evidence test
in determining whether the evidence supports the ALJ’s findings of
fact.”). When an ALJ’s findings of fact are supported by substantial
evidence, we are bound by them, even when the evidence is
conflicting and would have supported a contrary result. See § 8-43-
10
308; Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App.
2001), superseded by statute as recognized by City of Brighton v.
Rodriguez, 2014 CO 7, ¶ 39 n.12. But we may set aside an ALJ’s
decision if, among other things, the “findings of fact do not support
the order” or the order “is not supported by applicable law.” § 8-43-
308. Thus, if the ALJ misconstrued or misapplied the law, we may
set the decision aside. Paint Connection Plus v. Indus. Claim
Appeals Office, 240 P.3d 429, 431 (Colo. App. 2010). And we review
de novo the application of law to undisputed facts. Hire Quest, LLC
v. Indus. Claim Appeals Office, 264 P.3d 632, 635 (Colo. App. 2011).
D. The Panel Properly Reversed the ALJ’s Order Denying Benefits
¶ 18 There appears to be no dispute between the parties that
decedent was in travel status while in Colorado or that he had
engaged in a personal deviation. Rather, the dispute is whether
decedent ended his deviation and returned to travel status before
his fatal accident. The question we must answer is whether the law
mandates an award of benefits based on the facts found by the ALJ.
We conclude that it does.
¶ 19 In Pat’s Power Tongs, Inc. v. Miller, 172 Colo. 541, 474 P.2d
613 (1970), the Colorado Supreme Court upheld the commission’s
11
finding that the claimants sustained compensable injuries. The
claimants were staying overnight in Denver while on a business
trip. They sustained injuries in a motor vehicle accident while
returning to their Denver hotel after a non-work-related dinner with
friends. Id. at 542, 474 P.2d at 614. The commission ruled that
the claimants’ deviation ceased the moment they commenced their
return to their lodging. See id. at 542-43, 474 P.2d at 614. The
supreme court affirmed the commission’s decision because the
claimants “had concluded their personal activities of the evening,
and . . . at the time they sustained their injuries they were
proceeding toward their lodging quarters for the night.” Id. at 543,
474 P.2d at 615 (citing Mohawk Rubber Co. v. Cribbs, 165 Colo.
526, 440 P.2d 785 (1968), which affirmed a commission finding
that the decedent had returned to the scope of employment from a
deviation when he died in a one-car accident heading in the
direction of his home, even though he was intoxicated and it was
unclear from where he was traveling).
¶ 20 The ALJ distinguished this case from Pat’s Power Tongs
because decedent was not “proceeding toward” his “lodging
quarters” when he ran across Tower Road. See id. at 543, 474 P.2d
12at 615. We are not convinced that this fact is dispositive. True,
decedent was not en route to his hotel and was, undisputedly,
heading away from his hotel at the time of the accident. But, the
ALJ also found, with ample record support, that before the accident
(1) decedent and Ladner had stopped drinking, left the
establishment where they were celebrating, and returned to
Ladner’s hotel; (2) decedent proceeded to Ladner’s room after he
was unable to obtain a room key from the night desk attendant;
and (3) decedent and Ladner did not consume more alcohol or
otherwise continue their celebratory activities upon reaching
Ladner’s room. To the contrary, the uncontroverted evidence
suggests the pair talked for a while and then fell asleep. In other
words, decedent had already returned to “lodging quarters for the
night” (even if it was his colleague’s room). The accident happened
hours later.
¶ 21 We agree with the Panel that, under Pat’s Power Tongs, these
findings mandate an award of benefits to claimants. Although
when a deviation ends is generally a question of fact for the ALJ’s
determination, see Wild W. Radio, 905 P.2d at 8, that determination
must be made within the bounds of existing case law. Applying
13
Pat’s Power Tongs to the facts of this case, we conclude that the
decedent’s deviation ended before his fatal accident.
¶ 22 SkyWest also contends that the ALJ correctly found that
decedent continued in his “personal deviation at the time of the
accident, due to hours of consuming alcohol.” But more than
twenty years ago, a division of this court rejected an employer’s
contention that its employee could not have ended her deviation
and returned to the scope of employment “until she attained
sobriety.” Wild W. Radio, 905 P.2d at 8. The division observed that
“the General Assembly has not evidenced an intent to preclude all
compensation for excessive levels of intoxication.” Id.
¶ 23 Despite multiple subsequent amendments to the Act, the
General Assembly has not incorporated a provision barring an
intoxicated worker from receiving benefits. And we lack authority to
read such a provision into the Act. See Kraus v. Artcraft Sign Co.,
710 P.2d 480, 482 (Colo. 1985) (“We have uniformly held that a
court should not read nonexistent provisions into the . . . Act.”).
¶ 24 We acknowledge that a division of this court held that “in
some circumstances the act of consuming alcohol, by itself, can
constitute a personal deviation sufficient to remove the claimant
14
from the scope of employment.” Pacesetter Corp., 33 P.3d at 1234.
But, notwithstanding the broad statement quoted, Pacesetter Corp.
is distinguishable on its facts because, “[b]ased upon the extent of
claimant’s intoxication and the circumstances of the accident,”
which included the claimant driving ninety miles per hour at the
time of the one-car accident, “the ALJ inferred that claimant
continued to drink after he left the motel.” Id. Based on this
inference, the ALJ determined, and the division agreed, that the
claimant failed to prove he had returned to the scope of his
employment at the time of the accident. Id.¶ 25 Here, in contrast, the ALJ specifically found that decedent had
“finished drinking at approximately 2:00 a.m.” before returning to
Ladner’s hotel; the ALJ did not find that decedent continued
imbibing after he left Ladner’s hotel room hours later and tried to
cross the street on foot.
¶ 26 We therefore affirm the Panel’s decision reversing the ALJ’s
order denying and dismissing claimants’ claim for benefits.
III. Admissibility of Toxicology Results under Section 8-42-112.5
¶ 27 SkyWest contends that the Panel erred by (1) addressing the
admissibility of decedent’s toxicology results under section 8-42-
15
112.5 even though the ALJ did not address the issue in her final
order; and (2) concluding that an employer may only invoke the
50% intoxication penalty if there is a second blood sample
preserved for review. We disagree.
A. The Panel Had Authority to Address the Issue
¶ 28 We first reject SkyWest’s contention that the Panel lacked
authority to determine the admissibility of the toxicology results
under section 8-42-112.5 because the ALJ did not specifically
address it in her final written order. Before the hearing, a
prehearing ALJ (PALJ) granted claimants’ motion to redact the
toxicology results from the adjuster’s notes, the medical records,
and the medical examiner’s report. The PALJ ruled that a second
blood sample — which the parties stipulated had not been
preserved — was “a prerequisite to reduce compensation under
[section] 8-42-112.5.” With no second sample, the PALJ ruled, the
toxicology results were inadmissible for the purpose of imposing the
50% statutory penalty.
¶ 29 From the bench at the start of the hearing, the ALJ reversed
and struck the PALJ’s evidentiary ruling. Thus, the ALJ ruled on
the evidence’s admissibility, which ruling is subject to review. The
16
ALJ did not address the issue in her later written order because it
was unnecessary for her to do so. Having found the claim
noncompensable, it was irrelevant whether benefits should be
reduced under the statute. In contrast, the Panel determined that
the claim was compensable based on the ALJ’s factual findings. It
therefore properly addressed the admissibility of the toxicology
results to reduce benefits under section 8-42-112.5.
B. The Toxicology Results Were Inadmissible
¶ 30 Turning to the admissibility of the evidence, SkyWest contends
that the toxicology results are admissible for purposes of reducing
benefits under section 8-42-112.5 even if a second blood sample is
unavailable. It argues that if the legislature “intended that
intoxication cannot be proven under any circumstance without a
second blood sample, [it] would have stated that in the statute.”
SkyWest acknowledges that without a second sample it was not
entitled to a presumption of intoxication but contends it could still
establish decedent’s intoxication for purposes of the 50% reduction
17
in benefits with other medical and nonmedical evidence.2 We
disagree.
1. Rules of Statutory Construction and Standard of Review
¶ 31 In analyzing a provision of the Act, “we interpret the statute
according to its plain and ordinary meaning.” Davison v. Indus.
Claim Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004). “[W]e give
effect to every word and render none superfluous because we ‘do
not presume that the legislature used language idly and with no
intent that meaning should be given to its language.’” Lombard v.
Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008)
(quoting Colo. Water Conservation Bd. v. Upper Gunnison River
Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)).
¶ 32 We review statutory construction de novo. Ray v. Indus. Claim
Appeals Office, 124 P.3d 891, 893 (Colo. App. 2005), aff’d, 145 P.3d
661 (Colo. 2006). Although we defer to the Panel’s reasonable
interpretations of the statute it administers, Sanco Indus. v.
Stefanski, 147 P.3d 5, 8 (Colo. 2006), we are “not bound by the
2To be clear, we do not address whether, in the absence of a second
sample, toxicology results nonetheless may be admitted for
purposes other than a 50% reduction in benefits under section 8-
42-112.5, C.R.S. 2019.
18
Panel’s interpretation” or its earlier decisions, United Airlines v.
Indus. Claim Appeals Office, 2013 COA 48, ¶ 7; see also Olivas-Soto
v. Indus. Claim Appeals Office, 143 P.3d 1178, 1180 (Colo. App.
2006). Still, “the Panel’s interpretation will be set aside only if it is
inconsistent with the clear language of the statute or with the
legislative intent.” Support, Inc. v. Indus. Claim Appeals Office, 968
P.2d 174, 175 (Colo. App. 1998).
2. The Panel Properly Interpreted Section 8-42-112.5
¶ 33 Section 8-42-112.5 penalizes workers who are injured while
intoxicated by reducing their benefits by 50% if certain conditions
are met. As relevant, the statute provides as follows:
(1) Nonmedical benefits otherwise payable to
an injured worker are reduced fifty percent
where the injury results from the presence in
the worker’s system, during working hours, of
. . . a blood alcohol level at or above 0.10
percent, or at or above an applicable lower
level as set forth by federal statute or
regulation, as evidenced by a forensic drug or
alcohol test conducted by a medical facility or
laboratory licensed or certified to conduct such
tests. A duplicate sample from any test
conducted must be preserved and made
available to the worker for purposes of a
second test to be conducted at the worker’s
expense. If the test indicates the presence of
such substances or of alcohol at such level, it
is presumed that the employee was intoxicated
19
and that the injury was due to the
intoxication. This presumption may be
overcome by clear and convincing evidence.
§ 8-42-112.5(1).
¶ 34 The PALJ interpreted the statute to require the preservation of
a second sample to admit information about decedent’s BAC for the
purpose of reducing benefits under the statute. The ALJ disagreed,
as her ruling from the bench reflects:
I disagree with [the PALJ] and find that the
presence of a second sample is only required if
the respondents are relying on [a] presumption
of intoxication. And that in that event, a
second test must be made available to the
claimant’s side, and then they’re able to rebut
the presumption by clear and convincing
evidence.
I don’t find that proof of intoxication is
governed generally by this statute, rather a
party can prove intoxication by a
preponderance of the evidence as they could
prove any other issue in any other claim, and
that the second sample is required only if
respondents try to avail themselves of a
presumption of intoxication at a blood alcohol
content level of .10 percent.
So I find the general rule of proving
intoxication is the larger rule, and that this
statute, 8-42-112.5, carves out an exception
when the responding parties are trying to rely
upon the presumption of intoxication. So I will
20
reverse and strike that portion of [the PALJ’s]
order.
¶ 35 SkyWest argues that the ALJ’s interpretation is correct but
admits that neither the supreme court nor any division of this court
has addressed this question. Indeed, we know of no appellate case
which has examined the ramifications of failing to preserve a
second blood sample in a workers’ compensation case. The Panel,
however, has addressed this issue on more than one occasion.
¶ 36 In Stohl v. Blue Mountain Ranch Boys Camp, W.C. No. 4-516-
764, 2005 WL 481322 (Colo. I.C.A.O. Feb. 25, 2005), for example,
the Panel explained that the legislature enacted the second sample
requirement
as a procedural protection against the possible
reduction of benefits from a false positive
result in the first blood sample testing. The
General Assembly determined that given the
magnitude of the evidentiary presumption
created by an initial test result showing 0.10
or greater blood alcohol level, the availability of
a second sample for the claimant to
independently test is a necessary safeguard to
the wrongful loss of benefits. (See
Respondents’ Brief in Support of the Petition to
Review, Exhibit C, House Committee on
Business Affairs & Labor Transcript on Senate
Bill 99-161, pp. 2, 4, 21, 29). Therefore, the
General Assembly conditioned application of
the penalty statute on the availability of a
21
second sample for use by the claimant to
contest the accuracy of the initial test.
Id. at *2 (emphasis added). As a result, the “preservation of a
second sample is a condition precedent to the evidentiary
presumption created by a 0.10 blood alcohol test from the first
sample which in turn is required to assert a penalty under § 8-42-
112.5.” Id.
¶ 37 Consistent with this pronouncement, in cases in which a
second sample was not available, the Panel has refused to reduce
benefits under the statute. See, e.g., Ray v. New World Van Lines,
W. C. No. 4-520-251, 2004 WL 2348543, at *7 (Colo. I.C.A.O. Oct.
12, 2004). The Panel’s interpretation is consistent with the
legislative intent reflected in the plain language of the statute. See
Sanco Indus., 147 P.3d at 8; Support, Inc., 968 P.2d at 175.
¶ 38 When certain conditions are met, section 8-42-112.5 creates a
presumption that a worker’s injury resulted from his intoxication.
The consequence of the presumption is that the injured worker’s
benefits are reduced by 50%. The presumption may only be
overcome by clear and convincing evidence to the contrary.
However, the presumption and the consequential reduction in
22
benefits apply only where (1) “the injury results from the presence
in the worker’s system, during working hours, of . . . a blood alcohol
level at or above 0.10 percent”; (2) the impermissible blood alcohol
level is “evidenced by a forensic drug or alcohol test conducted by a
medical facility or laboratory licensed or certified to conduct such
tests”; and (3) “[a] duplicate sample from any test conducted [is]
preserved and made available to the worker for purposes of a
second test to be conducted at the worker’s expense.” § 8-42-
112.5(1). When all these conditions are met and “the test indicates
the presence of . . . alcohol at such level, it is presumed that the
employee was intoxicated and that the injury was due to the
intoxication.” Id.
¶ 39 The legislature declared that a second sample “must be
preserved and made available to the worker for purposes of a
second test.” Id. SkyWest suggests that this sentence modifies only
the next two sentences which impose a presumption of intoxication
if “the test indicates” a blood alcohol level at or above 0.10 percent.
In other words, SkyWest argues that the absence of a second
sample may prohibit it from relying on a presumption that decedent
was intoxicated, but it does not prevent it from otherwise proving
23
that decedent’s injury resulted from his intoxication such that his
benefits must be reduced by 50%. SkyWest’s argument is flawed
for two reasons.
¶ 40 First, we reject SkyWest’s contention that the second sample
requirement affects only the sentences that follow it in the statutory
subsection. On the contrary, the context establishes that the
legislature intended the second sample prerequisite to apply to the
entire statute. See Jefferson Cty. Bd. of Equalization v. Gerganoff,
241 P.3d 932, 935 (Colo. 2010) (“The language at issue must be
read in the context of the statute as a whole and the context of the
entire statutory scheme.”).
¶ 41 The first sentence of the statute authorizes a reduction in
benefits only when a “test conducted by a medical facility or
laboratory licensed or certified to conduct such tests” reflects a
blood alcohol level at or above 0.10 percent. § 8-42-112.5(1). The
very next sentence mandates that “[a] duplicate sample from any
test conducted must be preserved and made available to the worker
for purposes of a second test to be conducted at the worker’s
expense.” Id. (emphasis added). Thus, the plain language makes
clear that the duplicate sample “from any test conducted” refers to
24
the “test conducted by a medical facility or laboratory,” which is
required by the first sentence to invoke the penalty in the first
instance. See id. The last two sentences of the subsection do not
refer to the second sample; rather, they refer to “the test” and the
presumption that flows from a test result showing an impermissible
level of alcohol in the worker’s system. Indeed, the statute does not
require that a second test be conducted on the second sample, or
that two separate test results be admitted, to invoke the
intoxication penalty.
¶ 42 Second, and more importantly, the presumption and the
penalty cannot be separated. When all conditions are met, the
statute creates a presumption that the worker’s injury resulted
from his intoxication and that his benefits must be reduced by 50%.
The worker can overcome that presumption by clear and convincing
evidence that something other than his intoxication caused the
injury. But the statute does not contemplate any other means for
an employer to secure a 50% reduction in benefits because of a
worker’s intoxication other than through the articulated
presumption (which requires proof of an impermissible level of
alcohol evidenced by a blood alcohol test conducted by a qualified
25
medical facility or laboratory, which in turn requires a second
sample be preserved to ensure the test result is accurate). In other
words, the statute does not authorize a 50% reduction in benefits if
the employer is able to prove, by some means other than the
presumption, that the worker’s injury resulted from his
intoxication.
¶ 43 The Panel’s interpretation is entitled to deference. The Panel
considered the mandate for a second sample an independent
prerequisite to be satisfied before toxicology results could be
admitted to justify a 50% penalty against claimants’ benefits.
Because this interpretation is consistent with the statutory
language, we decline to set it aside. See Sanco Indus., 147 P.3d at
8; Support, Inc., 968 P.2d at 175.
¶ 44 We agree with the Panel that because a second sample was
not preserved, decedent’s toxicology results could not be admitted
for the purpose of imposing a 50% reduction in claimants’ benefits
under section 8-42-112.5.
IV. Conclusion
¶ 45 The Panel’s order is affirmed.
JUDGE FOX and JUDGE ROTHENBERG concur.
26