Court Opinion- Aug 31, 2020

People v. Houser


After being convicted of patronizing a prostituted child, Timothy Houser appealed a district court’s order denying his motion for postconviction relief based on ineffective assistance of counsel. The postconviction court rejected Houser’s constitutional arguments and his claims of ineffective assistance of counsel without a hearing. 

A division of the Colorado Court of Appeals affirmed the postconviction court’s denial of Houser’s constitutional arguments and also affirmed the portion of the postconviction court’s order addressing his claim that his trial counsel was ineffective for failing to raise novel arguments. The court held that an attorney cannot be deemed ineffective solely because he or she did not take positions unsupported or not “clearly foreshadowed” by then-existing law. The division also affirmed the portion of the order holding that Houser is not entitled to a hearing on his claim that his attorney was ineffective for failing to raise a valid defense.

The division reversed the postconviction court’s denial of Houser’s claims that his counsel was ineffective, and the case was remanded to the postconviction court for a hearing on those claims. 

Morris v. ICAO

In this workers’ compensation action, Zachary Morris sought review of a final order of the Industrial Claim Appeals Office, which affirmed the order of an administrative law judge denying and dismissing his request for whole person permanent partial disability benefits. 

A division of the Colorado Court of Appeals held that the “findings and determinations” of a division sponsored independent medical examination, as contemplated by section 8-42-107.2(4)(c), C.R.S. 2019, do not include a DIME’s recommendation to convert a scheduled impairment to a whole person impairment and that the insurer and employer do not forfeit their right to challenge a claimant’s request to convert his impairment even if the insurer and employer do not request a hearing on the issue of conversion within 20 days of the DIME report. Because of that, the court affirmed.

In this workers’ compensation action, Zachary Morris sought review of a final order of the Industrial Claim Appeals Office, which affirmed the order of an administrative law judge denying and dismissing his request for whole person permanent partial disability benefits. 

A division of the Colorado Court of Appeals held that the “findings and determinations” of a division sponsored independent medical examination, as contemplated by section 8-42-107.2(4)(c), C.R.S. 2019, do not include a DIME’s recommendation to convert a scheduled impairment to a whole person impairment and that the insurer and employer do not forfeit their right to challenge a claimant’s request to convert his impairment even if the insurer and employer do not request a hearing on the issue of conversion within 20 days of the DIME report. Because of that, the court affirmed.

Welch v. Colorado State Board of Plumbing

After Michael Welch and his company Confidence Plumbing Co., Inc. were disciplined for violations of the Plumbing Practice Act, both Welch and Confidence challenged the constitutionality of section 12-155-124, as well as the board’s adoption of the interpretation of the Administrative Law Judge that “supervision” under that section requires line-of-sight oversight of apprentices at the job site.

A division of the Colorado Court of Appeals considered whether section 12-58-117, C.R.S. 2018, repealed and replaced by section 12-155-124, C.R.S. 2019, of the Plumbing Practice Act is unconstitutionally vague and, in doing so, applied principles of statutory construction to determine whether the statute requires line-of-sight supervision.

The division concluded that section 12-155-124 is not void for vagueness because the terms challenged in the case, though ambiguous, are capable of a constitutional construction. Because the division concluded that section 12-155-124 only requires that a licensed plumber supervising apprentices be within a sufficient distance of the apprentice, whether in or outside a building, in order to monitor, inspect and sign off on the apprentice’s work with reasonable frequency, the division vacated the board’s order.

SkyWest v. ICAO 

In this workers’ compensation case, a division of the Colorado Court of Appeals determined that the Industrial Claim Appeals Office did not err by reversing the decision of an administrative law judge 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 the 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 the decedent’s deviation ended when he attempted to return to a coworker’s hotel.

The division affirmed the panel’s decision ruling the claim compensable. The division also determined, 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 affirmed this ruling as well.

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