Court Opinions, March 4, 2021

Colorado Court of Appeals
On Oct. 12, the Colorado Supreme Court will hear oral arguments in two criminal cases in addition to arguments regarding a proposed congressional redistricting map.

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


MARCH 4, 2021

Daily Camera v. Regents of the University of Colorado

When University of Colorado President Bruce Benson announced his retirement, the CU Board of Regents appointed an internal search committee and hired an outside search firm. Initially, the search firm received more than 100 referrals or applications for the position. These candidates were winnowed down at various stages. After numerous interviews, the regents publicly announced there was only one finalist — Mark Kennedy. Kennedy then went through an extensive public vetting process, including personal meetings with various constituent groups at all of CU’s campuses. During this vetting process, there was considerable criticism heaped on the regents regarding both the search process itself and the regents’ apparent selection of Kennedy. Ultimately, the regents voted 5-4 to appoint Kennedy.

After Kennedy’s appointment, the Boulder Daily Camera requested under the Colorado Open Records Act and the Open Meetings Law the names and application documents of the candidates selected by the search committee and those interviewed by the regents. When CU declined to produce the records except those regarding Kennedy, the Daily Camera sued in Denver District Court. The court ruled in favor of the Daily Camera, concluding six candidates interviewed by the regents were the finalists. Proceedings before the Denver District Court confirmed that, at least with respect to appointment of officers of public entities, which all parties concede include CU and its regents, both CORA and the OML are seriously flawed. Despite many legislative attempts over the years to reconcile competing public policy interests, the statutes do a very poor job of precisely designating which records regarding which people are subject to mandatory disclosure. Faced with these confusing statutes, the district court did a yeoman’s job attempting to make sense of and bring clarity to them.

A division of the court of appeals held that a “finalist” under the plain language of CORA is a person who is disclosed by the appointing entity as a finalist. The division reversed the district court’s judgment that would have required the regents to disclose the names and interview materials of all the candidates they interviewed. The dissent held that CORA requires appointing entities to disclose multiple finalists and would have affirmed the district court’s judgment.


Fisher v. ICAO

The American Medical Association publishes guides to the Evaluation of Permanent Impairment that have been used over the years by doctors in workers’ compensation systems to evaluate and to describe patient impairments in terms of percentages of total disability. The guides are focused on “specifying methods of measurement and the assignment of a single percentage for a given impairment.” There are different editions of the guides — the most recent edition is the sixth — and there are “significant differences among” them, “not only in emphasis of certain areas, but also as a reflection of the latest consensus in medical science within its subject matter.”

The revised third edition of the guides is mentioned in Colorado’s workers’ compensation statutes. Subsections referencing the guides address one aspect of how a doctor should evaluate a work-related injury of a joint to determine the extent of the joint’s impairment, which, in turn, is used to determine the level of compensation that the worker will receive. One of the subsections states that “impairment rating guidelines. . . shall be based on the revised third edition of the [guides] in effect as of July 1, 1991, and medical treatment guidelines and utilization standards.” Another subsection says “on or after July 1, 1991, all physical impairment ratings used under articles 40 to 47 of this title shall be based on the revised third edition of the [guides], in effect as of July 1, 1991.”

In this appeal, A division of the Colorado Court of Appeals needed to address a question of statutory interpretation: Does the phrase “shall be based on the revised third edition” of the guides mean that a doctor is barred from using an evaluative process to determine an impairment rating that is not described in the guides’ revised third edition? The division answered the question “no.”

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