 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Arenas v. Industrial Claim Appeals Office of the State of Colorado3/16/2000
ORDER AFFIRMED IN PART, IN PART, AND CAUSE REMANDED WITH DIRECTIONS
Division II
Plank and Davidson, JJ., concur
In this workers' compensation case, Frank Arenas (claimant) petitions for review of a final order of the Industrial Claim Appeals Office (Panel) reducing his temporary disability benefits by the fifty percent penalty for intoxication. Kent Enterprises, doing business as Kent Sheet Metal, and its insurer, Fremont Indemnity Insurance Company (collectively employer ), cross-petition for review of that portion of the Panel's order denying a retroactive reduction in benefits. We affirm the reduction of benefits, set aside that portion of the order denying the reduction retroactively, and remand for further proceedings.
Claimant suffered compensable injuries on October 31, 1997, when he fell from a ladder. During emergency treatment at a hospital, a blood sample was drawn. The toxicology report indicated a blood alcohol level of .104.
Employer filed a general admission of liability for temporary total disability benefits commencing November 1, 1997. In February 1998, employer filed a petition to modify claimant's temporary disability rate based on the toxicology report and the intoxication penalty then in effect. See Colo. Sess. Laws 1990, ch. 62, §8-42-112(1)(c) at 495 (intoxication penalty now codified with changes at §8-42-112.5, C.R.S. 1999). When claimant objected, the Administrative Law Judge (ALJ) denied the petition, and employer applied for a hearing on the issue.
Crediting the toxicology report and the testimony of a forensic toxicologist, the ALJ determined that employer sustained its burden to establish the statutory presumption of intoxication and that claimant had failed to overcome the presumption. The ALJ also determined that even without the toxicology report, employer had sustained its burden to prove that claimant's injury was the result of intoxication. Therefore, the ALJ ordered a fifty percent reduction of claimant's temporary disability benefits.
The ALJ, however, denied employer 's request to make the intoxication penalty retroactive to the date claimant commenced receiving compensation; instead, the ALJ ordered the penalty effective as of August 3, 1998, the date of the ALJ's summary order.
Both claimant and employer sought review. The Panel affirmed the ALJ's order in its entirety.
I.
Claimant contends that employer failed to prove that the blood alcohol test was reliable, and therefore, employer is not entitled to the statutory presumption regarding intoxication and causation. Claimant asserts that the ALJ erroneously credited the toxicology report and the toxicologist's testimony. Claimant bases this assertion on the following grounds: (1) there is no evidence that the hospital laboratory was properly certified; (2) the report is a medical blood alcohol test rather than a forensic blood alcohol test; (3) the blood was drawn and tested incorrectly; and, (4) the test results cannot be verified for accuracy. We are not persuaded by claimant's arguments.
A.
Section 8-42-112(1)(c) provided that compensation shall be reduced by fifty percent when:
[The injury] results from the intoxication of the employee. When an employee has a 0.10 or more grams of alcohol per one hundred milliliters of blood or 0.10 or more grams of alcohol per two hundred ten liters of breath as shown by chemical analysis, it shall be presumed that the employee was intoxicated and that the injury was due to such intoxication. This presumption may be overcome by clear and convincing evidence. See Colo. Sess. Laws 1990, ch. 62, §8-42-112(1)(c)
Page 1 2 3 4 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|