author: Judge DAVIDSON.

text:
    Charles W. WARK, Shauna L. Wark, and Savanah J. Wark, by and through her next friends and parents, Charles W. Wark and Shauna L. Wark, Plaintiffs-Appellants, v. Richard M. McCLELLAN, Defendant-Appellee.
    No. 01CA1496.
    Colorado Court of Appeals, Div. IIL
    March 13, 2003.

      Crane & Tejada, P.C., Alex C. Tejada, Bethish Beale Crane, Durango, Colorado, for Plaintiffs-Appellants.
    James R. Alvillar & Associates, James R. Alvillar, Rachelle Roberson, Grand Junction, Colorado, for Defendant-Appellee.
   Opinion by

Judge DAVIDSON.

Plaintiffs, Charles W. Wark, Shauna L. Wark, and Savanah J. Wark, appeal from the judgment entered on a jury verdict in favor of defendant, Richard M. MeClellan, on plaintiffs' claims for negligence, wrongful death, negligent infliction of emotional distress, loss of consortium, and loss of services of a minor. We affirm and remand.

The case arises from an automobile accident that occurred on a mountain dirt road in rural Colorado. Plaintiffs were passengers in a large pickup truck that was towing a loaded horse trailer. In the cab of the truck were plaintiffs, Shauna and Charles Wark (mother and father, respectively, or parents), their two nine-year-old twin daughters, Leri-sa and Savanah Wark, and the driver. The occupants were seated next to each other in the cab of the truck, and Lerisa was sitting on father's lap. Father and the driver had consumed alcohol before entering the truck, and none of the occupants was restrained.

Defendant also was driving a large pickup truck with a trailer containing construction materials. The accident occurred at a narrow part of the road. Plaintiffs' truck was traveling downhill, came around a blind curve, and encountered defendant's truck, facing uphill, either stopped or moving slowly. Plaintiffs' truck maneuvered around defendant's truck on the inside, but the two trailers collided, and plaintiffs' truck then swerved to the outside and rolled down a steep embankment into the river. The driver and Lerisa died in the accident.

The driver was designated a nonparty at fault. The jury returned a verdict finding defendant not negligent and awarding no damages to plaintiffs. The court awarded costs to defendant.

On appeal, plaintiffs argue that a variety of procedural and evidentiary errors were prejudicial enough to warrant a new trial. Plaintiffs also challenge the trial court's determination of costs. Exeept for an adjustment of the costs calculation, we find no basis for reversal.

1.

Plaintiffs first contend that the court erred in denying a motion for mistrial based on evidentiary errors and unduly prejudicial statements by defense counsel. While we agree that defense counsel occasionally acted with questionable propriety, we disagree that a mistrial was warranted.

A mistrial is warranted where the prejudice created from improper testimony renders the trial unfair to the other party. Margenau v. Bowlin, 12 P.3d 1214 (Colo.App.2000). A mistrial is a drastic remedy, and we will not disturb the trial court's decision absent a gross abuse of discretion and prejudice to the moving party. Moreover, a mistrial is warranted only where the prejudice to the moving party cannot be remedied by other means. See People v. Abbott, 690 P.2d 1263 (Colo.1984); Pyles-Knutzen v. Board of County Comm'rs, 781 P.2d 164 (Colo.App.1989).

A.

Plaintiffs first contend that the trial court erred in making certain evidentiary rulings. We disagree.

A trial court has considerable discretion in ruling upon the admissibility of evidence, and we will find an abuse of discretion only if its ruling is manifestly arbitrary, unreasonable, or unfair. See Rojhani v. Meagher, 22 P.3d 554 (Colo.App.2000).

Generally, evidence that logically tends to prove or disprove a fact in issue or that sheds light upon a matter contested is relevant. Evidence so remotely related to contested issues that it affords only conjectural inference should not be admitted. People v. Rudnick, 878 P.2d 16 (Colo.App.1993). A trial court has considerable discretion in determining whether evidence has logical relevance. People v. Saiz, 32 P.3d 441 (Colo.2001).

1.

At trial, plaintiffs objected to the testimony of the defense accident reconstruction expert because he had inspected the road after it had been altered. Plaintiffs also objected to the introduction of photographs of the road taken after the alteration. Plaintiffs continue on appeal to object to the expert's testimony as irrelevant and unreliable. We disagree.

We perceive no abuse of discretion in the court's determination that, regardless of the road modifications, the expert testimony could assist the jury in understanding the evidence. See CRE 702; People v. Shreck, 22 P.3d 68 (Colo.2001)(trial court has broad discretion in determining the admissibility of scientific evidence and should consider the reliability of the scientific principles, the qualifications of the witness, and the usefulness of the testimony to the jury). Importantly, we note, in rendering his opinion, the expert took the change in road conditions into account.

Moreover, to minimize any prejudice or confusion, the court excluded photographs taken by the expert that showed the modified road at the place of impact. Conversely, photographs of areas of the road other than the specific accident site, as the expert testified, established the approach to the point of impact and were neither confusing nor misleading.

2.

We also disagree with plaintiffs that reversal is required because a defense psychiatric expert, retained only to testify on the question of mitigation of damages, was allowed to testify as to father's alcohol consumption. Because the statement went beyond the scope of the anticipated testimony, it should have been timely disclosed. However, the court sustained plaintiffs' objection and limited that portion of the testimony to a single, brief sentence. See C.R.C.P. 16(b)(4); Freedman v. Kaiser Foundation Health Plan, 849 P.2d 811 (Colo.App.1992)(court has discretion to impose sanctions when expert testifies outside areas disclosed).

8.

At trial, defendant asked a police officer whether, at the accident seene, he had determined that defendant had "violated any statutes of ... the traffic code." Plaintiffs objected, and the court, in camera, stated that it would be inappropriate for the officer to answer the question, but ultimately did not sustain or overrule the objection and did not give a curative instruction to the jury. Plaintiffs contend that the court erred by not granting a mistrial on this basis. We disagree.

Section 424-1718, C.R.8.2002, as relevant here, states that "no record of the conviction of any person for any violation of this article shall be admissible as evidence in any court in any civil action." This statutory proscription extends to reference to the issuance of a ticket. See Ripple v. Brack, 182 Colo. 125, 286 P.2d 625 (1955)(statement by counsel regarding charges filed against defendant and question "you charged him with a traffic violation?" defeats underlying purpose of statute).

Here, however, rather than referring to a conviction or the issuance of a ticket, defendant asked the officer his opinion as to whether defendant had violated any traffic laws. Moreover, the trial court did not allow the witness to answer the question, and the question was not repeated.

Under these cireumstances, although we disapprove of defense counsel's tactic, the mere possibility that the jury could infer that a traffic ticket had not been issued did not render the question so prejudicial as to require a mistrial. See Margenau v. Bowlin, supra (denying mistrial not abuse of discretion where reference was only to issuance of a traffic ticket, no mention of the citation was repeated, and reference was inadvertent); Jackson v. Moore, 883 P.2d 622 (Colo.App.1994)(statement regarding issuance of ticket not expressly disallowed by statute; therefore, attorney fees should not have been awarded for mistrial).

Moreover, to the extent plaintiffs argue that because the question required a factual conclusion as to fault, it invaded the province of the jury, we note again that the court did not allow the officer to answer.

B.

Plaintiffs next challenge alleged improper statements by defense counsel.

1.

During opening and closing statements, defense counsel referred to evidence that parents did not wear seat belts and did not restrain their children. Plaintiffs contend that by making these statements, defendant improperly characterized the seat belt defense as going to comparative negligence. We disagree.

Evidence regarding lack of seat belt use is admissible at trial, but only to reduce an award of damages for pain and suffering. See § 42-4-2374(7), C.R.S.2002; Churning v. Staples, 628 P.2d 180 (Colo.App.1981). Accordingly, statements regarding how the failure to use a seat belt caused certain injuries may be admitted. See Anderson v. Watson, 953 P.2d 1284 (Colo.1998)(defendant may, but is not required to prove causal relationship between lack of seat belt use and injuries, and need prove only that seat belt was not worn).

[12] Here, although the record indicates that defense counsel walked a dangerously fine line, generally, counsel's statements were not directed to parents' negligence, but rather to the causation of their injuries. Furthermore, the jury was given a proper limiting instruction at the close of the evidence. See Williams v. Chrysler Ins. Co., 928 P.2d 1375 (Colo.App.1996)(the form of a limiting instruction is within the discretion of the trial court); People v. Sandoval, 709 P.2d 90 (Colo.App.1985)(we must presume that the jury followed the instructions given to it).

Similarly, we disagree with plaintiffs that it was error to allow the accident reconstruction expert to testify regarding lack of seat belt use. The court properly found that the testimony did not misstate the law and that a contemporaneous instruction would have been confusing to the jury. See Williams v. Chrysler Insurance Co., supra.

2.

We disagree with plaintiffs that other comments of defense counsel cumulatively required a mistrial. Specifically, plaintiffs argue that defendant improperly referred to the penalty of perjury during impeachment of father, questioned father regarding his blood alcohol level, and referenced plaintiffs' prior lawsuits against other parties, which had been dismissed, to suggest that plaintiffs did not bring an action based on defendant's negligence until they had lost the prior lawsuits.

However, the court, while admonishing counsel's questionable impeachment tactic, nevertheless found that the questioning did not prejudice plaintiffs, and we agree. Furthermore, father's blood alcohol level was relevant to his ability to judge whether the driver could drive safely and, accordingly, was relevant to parents' comparative negli-genee. See CRE 401. And questioning regarding the prior lawsuits did not require a mistrial because the trial court ruled that the questioning was inappropriate and instructed the jury to disregard it. See People v. Sandoval, supra.

IL

< Plaintiffs next contend that the court erred in instructing the jury on comparative negli-genee. Specifically, plaintiffs argue that parents, as passengers in the vehicle, could not have been negligent and, accordingly, such instruction was improper.

At trial, defendant asserted three grounds to support a comparative negligence instruction: parents did not restrain themselves and their children with seatbelts; they did not ask the driver to reduce his speed or drive within his lane of traffic; and they allowed themselves and their children to be passengers in a vehicle with a driver who had consumed alcohol. Apparently agreeing with each of defendant's theories, the court allowed the instruction. Plaintiffs contend that a comparative negligence instruction was improper on each of those bases. We agree in part, but find any error to be harmless.

As discussed, the seat belt defense is irrelevant to the determination of negligence, and parents' failure to use seat belts on themselves or their daughters pertained only to the issue of noneconomic damages. See § 42-4-237(7), C.R.S.2002; Churning v. Staples, supra.

Because § 42-4-236(2)(c), C.R.S. 2002, which provides that a driver must restrain child passengers, specifically applies to the driver of the vehicle, not parents who, as here, were passengers in the vehicle, we disagree with defendant that it provides an exception to § 42-4-287(7). But even if we assume that parents have a duty under § 42-4-286(2)(c) to assure their children use seat belts, a breach of that duty cannot as a matter of law have a causal connection to the accident. See Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973)(concluding that failure to use a protective device would be contributory negligence is contrary to the entire fault philosophy found in tort law, which dictates that a tortfeasor accepts the plaintiff as he finds him).

We also disagree that, because of the special relationship between parent and child, parents here had a duty to ask the driver to drive more carefully.

In general, no duty is imposed upon a person to take action for the protection of another. However, in some limited cireum-stances, such a duty has been found to exist. See Solano v. Goff, 985 P.2d 53 (Colo.App.1999).

Determining whether a party owes a legal duty to prevent a third person from harming another requires a court to balance several factors: (1) the existence of a special relationship between the parties; (2) the foreseeability of harm to others; (3) the social utility of the party's conduct; (4) the magnitude of the burden of guarding against injury or harm; and (5) the practical consequences of placing a duty upon the party. Solano v. Goff, supra.

Here, it is foreseeable that a child passenger might be injured if an adult passenger fails to try to control the driver. And, generally, a parent has a duty to protect a child from harm. See Smith v. Zufelt, 856 P.2d 8 (Colo.App.1992)(a parent has the duty to prevent a third person from injuring his or her child and may be liable for failure to take steps to protect child from harm), rev'd on other grounds, 880 P.2d 1178 (Colo.1994).

However, we conclude the other relevant factors-the social utility of the party's conduct, the magnitude of the burden of guarding against injury or harm, and the practical consequences of placing a duty upon the party-weigh against imposing a duty of care on a passenger to control the behavior of a driver, even in the parent-child cireum-stances presented here. Indeed, it is also foreseeable that a passenger directing the operation of the vehicle or interfering with the driver's control might negligently cause further harm. See Lego v. Schmidt, 805 P.2d 1119 (Colo.App.1990)(no duty to act unless person has right and capacity to control wrongdoer, and there is no longer any basis for assuming that a passenger has the capacity to assert control over or direct operation of a moving automobile); see also Watson v. Regional Transportation Dist., 762 P.2d 133 (Colo.1988)(any attempt by passenger to interfere with driver at time of accident likely would have constituted negligence).

We conclude that, under the cireumstances here, parents had no duty to protect their children by protesting the driver's actions or intervening in his control of the vehicle. Thus, the comparative negligence instruction also was improper on that basis.

However, a passenger in an automobile driven by an intoxicated person may be negligent for having entered the automobile in the first place. Thus, an instruction on comparative negligence is proper when a plaintiff is injured while a passenger in an automobile driven by someone who the plaintiff has reason to know is intoxicated. See Alford v. Andrews, 516 P.2d 652 (Colo.App.1973)(not published pursuant to C.A.R. 35(f))(deceased passenger had opportunity to observe intoxicated driver before entering vehicle); see also University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987)(distinetion between action and inaction, or misfeasance and nonfeasance, in establishing duty); Thomas v. Pete's Satire, Inc., 717 P.2d 509 (Colo.App.1985)(comparative negligence instruction given where claim is against tavern that served alcohol to driver).

Here, we agree with defendant that a comparative negligence instruction was appropriate based on the defendant's theory that parents were negligent in allowing themselves and their daughters to be passengers in a vehicle driven by someone who was alcohol-impaired. This rationale also applies to the propriety of the instruction on assumption of risk. See Pletchas v. Von Poppenheim, 148 Colo. 127, 365 P.2d 261 (1961)(when there was disputed evidence of level of driver's intoxication, whether injured passenger knew driver was impaired went to jury to determine comparative negligence and assumption of risk); Gross v. B.G. Inc., 7 P.3d 1003 (Colo.App.1999)(jury instructed on both comparative negligence and assumption of risk), aff'd, 23 P.3d 691 (Colo.2001).

Moreover, although the court erroneously allowed the comparative negligence instruction on two bases, we conclude that the error was harmless. The instructions given to the jury on the seat belt issue were accurate. In addition, none of the instructions referred to failure to direct control of the vehicle, and the references at trial to this theory of comparative negligence were minimal. The jury also was properly instructed that any negli-genee of the parents was not imputable to the surviving daughter. And, the jury found defendant not negligent without determining the level, if any, of parents' comparative negligence.

Furthermore, although plaintiffs contend otherwise, an instruction on assumption of risk, as a form of negligence, may be given with a comparative negligence instruction if, as here, the facts exist to support each instruction. See § 13-21-111.7, C.R.S. 2002 (assumption of risk considered in apportioning negligence pursuant to comparative negligence statute); Harris v. Ark, 810 P.2d 226 (Colo.1991)(assumption of risk remains an affirmative defense after enactment of comparative negligence statute); Carter v. Lovelace, 844 P.2d 1288 (Colo.App.1992)(assumption of risk requires knowledge of danger and consent to it, whereas contributory negligence does not).

IIL

Plaintiffs next contend that the trial court erred in directing a verdict against mother and the surviving daughter on their claims for negligent infliction of emotional distress. However, to establish a prima facie case of negligent infliction of emotional distress, plaintiffs must first show that defendant was negligent. See Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo.App.1997). Here, the jury indicated on a special verdiet form that defendant was not negligent. Because this same finding would have precluded recovery on the negligent infliction of emotional distress claims, and because we have found no error that unfairly tainted the Jury's finding of no negligence, any error in directing those verdicts was harmless.

For the same reason, we need not address plaintiffs' contention that the court erred in instructing the jury regarding duplicative losses for noneconomic damages for negligence and negligent infliction of emotional distress. See Flader Land Co. v. Denes, 111 Colo. 227, 139 P.2d 875 (1943)(where jury returned verdict for defendant, any error in damages instruction was harmless).

IV.

Plaintiffs contend that the costs awarded to defendant were unwarranted and excessive. We agree in part.

A prevailing party may recover the reasonable and necessary costs incurred in the course of litigation. See § 13-16-105, C.R.S.2002; Mackall v. Jalisco International, Inc, 28 P.3d 975 (Colo.App.2001). Whether to award costs and what amount to award are decisions within the sound discretion of the trial court, and its ruling will not be reversed on appeal absent a clear abuse of discretion. Ballow v. PHICO Insurance Co., 878 P.2d 672 (Colo.1994).

A.

Plaintiffs first argue that the expert witness fees were unreasonable. We disagree.

Plaintiffs argue that the psychiatrist's testimony was unnecessary, and therefore his costs should not have been awarded. However, the psychiatrist testified regarding the psychological distress suffered by plaintiffs, an issue arising from plaintiffs' claims for pain and suffering damages and for negligent infliction of emotional distress.

Moreover, plaintiffs argue that this expert engaged in unnecessary activities, did not carry out his investigation efficiently, and overcharged his hourly rate. However, the trial court significantly reduced the psychiatrist's charges, and plaintiffs' argument that the trial court "did not go far enough" in reducing the bill is unpersuasive. The trial court has significant discretion in determining the reasonableness of an expert's costs, and we find no abuse of discretion in the court's determination that the expert's fees, as reduced, were reasonable.

Similarly, we disagree with plaintiffs that the toxicologist's costs were unreasonable. The court apparently intended to reduce her travel costs, but otherwise found the costs reasonable, and it denied the toxicologist's supplemental bill. We perceive no abuse of discretion.

Plaintiffs also argue that the toxicologist's costs should not have been awarded because the issue for which she was retained, the alcohol level and impairment of the driver, was not in dispute. Again, we disagree.

The toxicologist did not testify because the trial court entered a directed verdict regarding the driver's impairment and liability. However, a trial court's discretion to award costs is not restricted to witnesses who testify at trial. Rather, the trial court has broad discretion to determine the costs reasonably necessary for trial preparation. See Bainbridge, Inc. v. Douglas County Bd. of Comm'rs, 55 P.3d 271 (Colo.App.2002)(trial court may award costs, if reasonable, to prevailing party for expert witness who does not testify); see also Mac-kall v. Jalisco Int'l Inc., supra (rejecting argument that costs awarded to prevailing party on claims dismissed by directed verdict were in error). Similarly, we disagree with plaintiffs that the court abused its discretion in awarding costs for other witnesses who did not testify at trial or for documents acquired for the toxicologist's use.

Plaintiffs argue that the fees for the accident reconstruction expert should not have been awarded because he reviewed the accident site after the road had been modified. However, we have rejected plaintiffs' argument that the accident reconstruction expert's testimony was irrelevant, and we likewise conclude the court did not abuse its discretion in awarding his costs.

B.

Plaintiffs also argue that the court erred in awarding costs for deposition transcripts. We disagree.

Costs for a deposition are allowed when the taking of the deposition and its general content were reasonably necessary for the development of the case in light of facts known to counsel at the time the deposition was taken. Cherry Creek School District No. 5 v. Voelker, 859 P.2d 805 (Colo.1993).

We agree with defendant that he demonstrated to the trial court the necessity of each deposition transcript. As a result, we perceive no abuse of discretion.

C.

We agree with plaintiffs, however, that the court erred in computing the toxicologist's fees, which resulted in an award greater than that requested by defendant.

Defendant stated in his bill of costs that the toxicologist's fees of $10,869.36 included $4,799.40 for travel expenses incurred in June. The court found the travel charge to be excessive, but that driving had been necessary. The court also disallowed travel expenses incurred in August. However, the court then proceeded to award an additional $1,000 for travel expenses to the total costs of $10,369.36, which the court erroneously recorded as $10,396.36.

Because it is unclear exactly which travel expenses the trial court intended to exclude, we remand to the trial court to recalculate those costs and enter an amended costs award.

Judgment affirmed and case remanded to the trial court for amendment of the costs award.

Judge ROY and Judge WEBB concur.


source: Caselaw Access Project

author: Judge DAILEY.

license: Public Domain

text:
    PUBLIC SERVICE OF COLORADO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado and Walter Lindsey, Respondents.
    No. 02CA0583.
    Colorado Court of Appeals, Div. IV.
    March 13, 2003.

      Ritsema & Lyon, P.C., Carol A. Finley, Colorado Springs, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Steven U. Mullens, P.C., Steven U. Mul-lens, Pueblo, Colorado, for Respondent Walter Lindsey.
   Opinion by

Judge DAILEY.

In this workers' compensation proceeding, Public Service of Colorado (employer) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) that upheld the award of temporary disability benefits to Walter Lindsey (claimant) for a mental impairment. We affirm.

Claimant worked twenty-five years in various capacities for employer. In 1991, a female coworker filed a Title VIL sexual harassment lawsuit against employer and prevailed. Claimant testified for the coworker, and his male colleagues retaliated against him by ostracizing and harassing him at work.

Claimant also brought a union grievance against a male coworker for remarks made during a confrontation regarding another female coworker. Claimant testified that both the male coworker and the union president pressured him not to participate in the grievance hearing and that the harassment directed against him increased. He subsequently refused to testify in the grievance hearing, which was scheduled for late summer or early fall in 1992, and the grievance was dismissed.

In 1992, claimant began experiencing psychological difficulties that interfered with his work performance, and he was diagnosed with a bipolar disorder. He brought this claim alleging that the mental stress he experienced at the workplace as a result of the harassment by his coworkers caused his psychological condition.

Following an evidentiary hearing, the administrative law judge (ALJ) found that claimant was genetically predisposed to developing bipolar disorder, but had not developed it prior to 1991. The ALJ also noted that elaimant had never been subject to disciplinary action during his twenty-five-year employment and generally had been regarded as a good employee. The ALJ accepted, in its entirety, the evidence concerning the widespread and extreme gender discrimination and sexual harassment at employer's plant, which persisted for many years despite policies instituted to counteract such conduct. The ALJ further found that after claimant testified in the federal lawsuit, he became the target "of an intense and concerted campaign of harassment and shunning by some of the male employees" at the plant. Specific instances cited by the ALJ included the sabotage of equipment for which claimant was responsible, the puncture of his car tire with a knife, rumors that he traded his testimony for money and sexual favors, and threats that his wife would be informed he was allegedly engaged in extramarital affairs.

The ALJ found that these cireumstances were pervasive, continuous, extreme, and psychologically traumatic; that the situation would have evoked significant symptoms of distress in any worker in similar cireum-stances, even a worker not predisposed to bipolar disorder; and that the harassment inflicted on claimant was outside of a worker's usual experience and not common to all fields of employment.

Concluding that the stress claimant experienced as a result of the harassment caused him to develop bipolar disorder, the ALJ determined that claimant had suffered a compensable injury. Claimant was awarded both temporary total disability and medical benefits.

On review, the Panel upheld the ALJ's award of benefits.

I.

Employer first contends that the ALJ failed to properly analyze the stressors leading to claimant's mental disability. Employer asserts that the evidence does not support the ALJ's finding that claimant had already suffered a compensable mental impairment by the time he was required to participate in the union grievance. Rather, employer argues that the grievance procedure constituted the predominant stressor in claimant's life. Consequently, employer maintains that because the union grievance was a disciplinary action undertaken in good faith, any related stress experienced by claimant was insufficient as a matter of law to support a compensable claim of mental impairment. We are not persuaded.

Former § 8-41-301(2)(a), which applies to this claim, provided in pertinent part:

A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2) "mental impairment" means a disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar cireumstances. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action ... taken in good faith by the employer.

Colo. Sess. Laws 1991, ch. 219, § 8-41-301(2)(a) at 1294-95 (emphasis added)(now amended with respect to injuries occurring on or after July 1, 1999, Colo. Sess. Laws 1999, ch. 103 at 299-300).

The causes of a claimant's mental impairment and the commonality of those causes are questions of fact to be resolved by the ALJ. When multiple stressors are alleged, that determination must include a separate analysis of each event to ascertain whether the claim is based in whole or in part upon facts or cireumstances common to all fields of employment. Trillo v. Indus. Claim Appeals Office, 957 P.2d 1052, 1054 (Colo.App.1998).

Moreover, the fact that a claimant suffers from pre-existing emotional problems does not preclude a determination that the stress-related disability resulted primarily from the employment. Gen. Cable Co. v. Indus. Claim Appeals Office, 878 P.2d 118, 121 (Colo.App.1994).

The ALJ found that claimant became disabled and unable to work in December 1992 because of his bipolar disorder. The ALJ noted that although the symptoms first surfaced in the spring of 1992 after the union grievance was filed, claimant nevertheless became insecure, withdrawn, quiet, forgetful, teary, and subject to marked mood swings in rapid response to the coworkers' harassment of him immediately following his deposition testimony in the federal lawsuit. The ALJ also credited the medical opinion of a psychiatrist who performed an independent medical examination of claimant and concluded that claimant's bipolar disorder was solely and directly caused by the stress at work following his testimony in the federal lawsuit. The ALJ acknowledged that claimant had family problems occurring at approximately the same time, but the ALJ expressly ruled out those issues as contributing factors to his bipolar disorder.

We agree with the Panel that these findings and conclusions are supported in the record by the testimony of the psychiatrist and claimant's former coworkers.

The fact that claimant received psychological treatment beginning in 1992 because of his increasing deterioration does not compel a conclusion that his disorder was triggered by the grievance episode rather than by the harassment he received following his participation in the federal lawsuit. Nor are we persuaded that claimant's reports of anger over the grievance in August 1992 necessarily undermine the ALJ's finding that the prior incident constituted the primary stressor. The record reflects that the harassment directed at claimant began in response to that first incident and was certainly of sufficient magnitude to overwhelm him.

Thus, we reject employer's contention that the record contradicts the ALJ's findings as a matter of law.

Accordingly, it is unnecessary for us to address whether the grievance was a disciplinary action taken in good faith and whether, in the context of this case, it would have been insufficient to support the award of benefits for claimant's disability.

IL

Relying on Horodyskyj v. Karanian, 32 P.3d 470, 479 (Colo.2001), employer also contends that the ALJ erred in determining the existence of compensability. We disagree.

The supreme court held in Horodyskyj that sexual harassment by one employee of another employee does not arise out of employment and thus is not compensable under the Workers' Compensation Act. However, we agree with the Panel that the claim here was not premised on sexual harassment, but rather arose out of the work-related retaliation claimant experienced following his testimony in the lawsuit of a coworker. Although claimant's decision to testify in the lawsuit was personal, there is no evidence in the record to suggest that the harassment he experienced as a consequence grew out of any personal relationship or personal dispute. Thus, Horodyskyj is factually and legally distinguishable from the present case.

The Panel's order is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


author: Judge WEBB.

text:
    Gregory COOK, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, a municipal corporation; and Aristedes Zavaras, in his official capacity as Manager of Safety of the City and County of Denver, Defendants-Appellees.
    No. 02CA0560.
    Colorado Court of Appeals, Div. IIL.
    March 13, 2003.

      Bruno, Bruno & Colin, P.C., Andrew J. Carafelli, Denver, Colorado, for Plaintiff-Appellant.
    J. Wallace Wortham, Jr., City Attorney, Robert A. Wolf, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge WEBB.

In this police discipline action, plaintiff, Gregory Cook, appeals the trial court's summary judgment in favor of defendants, the City and County of Denver and Aristedes Zavaras, in his official capacity as the city's manager of safety. Plaintiff argues the trial court erroneously interpreted the city's charter as permitting demotion in rank. We affirm.

Plaintiff was a member of the classified service in the police department. The chief of police recommended plaintiff receive discipline, including demotion from his rank of lieutenant to the rank of police officer, for violating various department rules. Zavaras then issued an order of disciplinary action that, as here relevant, demoted plaintiff as recommended.

Plaintiff commenced this action for a declaratory judgment that the demotion order was ultra vires and contrary to charter § 9.4.13 (formerly § 5.78). He did not contest the underlying rule violations. On cross-motions for summary judgment, the trial court affirmed the order.

Plaintiff contends the trial court erred in granting summary judgment because the charter does not provide for disciplinary action in the form of demotion in rank, although it permits disciplinary reduction in grade. We disagree.

We review a trial court's decision to grant summary judgment de novo using established standards. When, as here, neither party raises a factual dispute, issues of statutory interpretation are particularly appropriate for resolution on summary judgment. See Bontrager v. La Plata Elec. Ass'n, 68 P.3d 555 (Colo.App.2003).

The general rules of statutory construction apply to municipal charters. Smith v. City & County of Denver, 789 P.2d 442 (Colo.App.1989). However, we must strictly construe charters, which confer only the powers expressed or necessarily implied. City of Englewood v. Englewood Career Serv. Bd., 793 P.2d 585 (Colo.App.1989).

Thus, we construe a charter according to its plain meaning. Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo.App.1986). When a charter is unambiguous, we will not alter the plain meaning. Smith v. City & County of Denver, supra. Conversely, if the language does not clearly establish the meaning, or if the language is unclear because provisions are in conflict, then we must ascertain its meaning, and we may do so from extrinsic sources. See Walgreen Co. v. Charnes, 819 P.2d 1039 (Colo.1991); cf. People v. Cooper, 27 P.3d 348 (Colo.2001).

We construe charter provisions on the same subject matter together, which allows us to ascertain intent and avoid inconsistency. Smith v. City & County of Denver, supro. If language can be reconciled using one interpretation, but would conflict under another interpretation, we favor the interpretation allowing for consistency. People v. Dist. Court, 713 P.2d 918 (Colo.1986). We avoid an interpretation that leads to an absurd or unreasonable result. AviComm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1023 (Colo.1998).

When a charter provision is susceptible of more than one interpretation, the interpretation suggested by the city's executive and legislative bodies is persuasive. Mile High Enters. Inc. v. Dee, 192 Colo. 326, 558 P.2d 568 (1977); Jones v. Denver Police Pension & Relief Bd., 801 P.2d 16 (Colo.App.1990).

I. Reduction in Grade

Plaintiff argues the trial court erred because the applicable charter provisions are unambiguous and do not provide for demotions in rank. We disagree.

Denver City Charter § 9.4.18 provides:

The rules governing the conduct of members of the Classified Service in the Fire and Police Departments shall be set forth as written rules and regulations by the Chief of each of the respective departments with the approval of the Manager of Safety, provided however, that such rules and regulations shall not contain any political or religious qualifications or disqualifications. Any member of the Classified Service shall be subject to reprimand, discharge, reduction in grade, fine and/or suspension for a violation of such rules and regulations.

(Emphasis added.)

According to plaintiff, this provision is unambiguous because it allows a reduction in grade, but says nothing about a demotion in rank. Defendants assert that this provision is ambiguous. We agree with defendants.

We ascertain the meaning of "reduction in grade" by examining other charter provisions. -See Smith v. City & County of Denver, swpra.

Plaintiff emphasizes charter § 9.6.6(A) (formerly § 5.46-2), which provides:

The Classified Service of the Police Department shall only consist of the following ranks and grades: () Rank: Captain of Police, Lieutenant of Police, Radio Engineer, Sergeant of Police, Police Officer. (i) Grades of Police Officer: Ist Grade, 2nd Grade, 8rd Grade, 4th Grade, Reeruit.

This provision differentiates between rank and grade.

Charter § 9.6.8 (formerly § 5.47) defines the grades of police officers based on length of service within that rank and also provides, "Nothing herein shall prohibit disciplinary action as provided in [the current charter § 9.4.131."

Thus, among the various ranks within the police department, grades exist only for the rank of police officer. However, the levels of discipline listed in charter $ 9.4.18 apply to "any member" of the police department. Hence, plaintiff's narrow interpretation of "reduction in grade" conflicts with the breadth of "any member" because only members holding the rank of police officer are subject to "reduction in grade."

The charter empowers the chief of police to maintain administrative control over the police department and to initiate disciplinary action involving members of the police force. Charter § 94.14(A) (formerly § 5.73-1(1)); Cooper v. Civil Serv. Comm'n, 43 Colo.App. 258, 604 P.2d 1186 (1979). The chief of police then submits the disciplinary action to the manager of safety, charter $ 9 4.14(A), who approves, modifies, or disapproves the disciplinary order. Charter § 9.4.14(B) (formerly § 5.73-1(2)); Koger v. Civil Serv. Comm'n, 754 P.2d 414 (Colo.App.1987). The manager of safety has, "subject to the supervision and control of the Mayor, full charge and control of the departments of fire and police." Charter §§ 2.6.1, 2.6.2 (formerly §§ A9.1, A9.2); City & County of Denver v. Powell, 969 P.2d 776 (Colo.App.1998).

Demotion in rank represents an important aspect of maintaining discipline and control within the police department. Plaintiffs narrow interpretation of "reduction in grade," in contrast, would conflict with the broad power to discipline set forth elsewhere in the charter by precluding demotion in rank.

Accordingly, we conclude "reduction in grade" in charter § 9.4.18 is ambiguous.

II. Demotion in Rank

Plaintiff next contends that, even if "reduction in grade" is ambiguous, we should not interpret it to include demotion in rank. Again, we disagree.

Because we have concluded charter § 9.4.18 is ambiguous, we apply rules of interpretation and look to extrinsic sources in ascertaining the provision's meaning. These rules and sources undercut plaintiff's position.

A.

Initially, exeluding demotion in rank from the discipline to which members of the police department are subject would lead to an unreasonable, if not absurd, result.

The disciplinary hierarchy set forth in charter § 9.4.13 ranges from the most severe, "discharge," to the least severe, "reprimand." Although the Colorado appellate courts have not addressed the issue, many jurisdictions hold that the power to discharge necessarily implies the power to demote. See, e.g., City of Las Vegas v. Int'l Ass'n of Firefighters, 108 Nev. 64, 824 P.2d 285 (1992)(collective bargaining agreement); Jones v. Bayless, 208 Okla. 270, 255 P.2d 506 (1953)(city charter); Civil Serv. Comm'n v. Eckles, 376 Pa. 421, 103 A.2d 761 (1954)(civil service regulations); cf. Bratton v. Dice, 93 Colo. 593, 27 P.2d 1028 (1983)(power to remove does not exclude power to suspend).

If the power to demote were not implied, plaintiff's proposed interpretation could unreasonably disadvantage members of the police force. The chief of police and the manager of safety might find misconduct that would threaten public safety if a member continued to exercise the powers of his or her rank, but under plaintiffs view they would be unable to demote the member in rank. The result of this Hobson's choice could be discharge of a member who remained competent to perform the duties of a lower rank. See Bd. of County Comm'rs v. Park County Sportsmen's Ranch, LLP, 45 P.3d 693 (Colo.2002)(interpretation leading to just and reasonable result preferred).

B.

The Civil Service Commission of the City and County of Denver has interpreted "reduction in grade" in charter § 9.4.18 to include reduction in grade and reduction in rank. It explained, "[The section was not carefully drawn, but the intent was to allow management to exercise the traditional rights to maintain discipline by imposing a number of punishments, including reduction in rank or grade." In re John O. Brown, (Civil Serv. Comm'n of City & County of Denver, May 11, 1994).

We are persuaded by the civil service commission's interpretation because it gives harmonious effect to other charter provisions, as previously discussed.

C.

Plaintiff makes several arguments in favor of interpreting "reduction in grade" narrowly, which we find unpersuasive.

Plaintiff first correctly asserts that a member of the police department acquires a vested property interest in the rank he or she holds. See, e.g., City & County of Denver v. Dist. Court, 196 Colo. 134, 582 P.2d 678 (1978). However, a member has an even greater property interest in the employment relationship itself, yet is subject to "discharge" under charter § 9.4.13. Thus, the vested property interest, whether in the rank or the employment relationship, only implicates certain procedural due process rights. See Anderson v. Colo. State Dep't of Pers., 756 P.2d 969 (Colo.1988).

Second, plaintiff notes that the difference between rank and grade enjoys judicial ree-ognition. See Schmidt v. Hurst, 109 Colo. 207, 216, 124 P.2d 235, 239 (1942)("A change in rank is a material change in duties and responsibilities. A change to a higher grade calls for an increase in salary from one fixed limit to another."). However, this difference does not make demotion in rank less appropriate than reduction in grade.

Third, plaintiff argues that charter § 9.6.8, which defines grades of police officers and firefighters, includes a cross-reference to the disciplinary hierarchy of charter § 9.4.13, while charter § 9.6.6(A), which lists the ranks within the police department, contains no similar cross-reference. However, the disciplinary hierarchy at issue applies to "any member," so we draw no conclusion from the lack of a cross-reference in the description of ranks.

Fourth, plaintiff focuses on the examination process necessary to advancement in rank. However, we discern no contradiction between advancement by examination and demotion for misconduct,. If misconduct showed a member to be no longer qualified for the rank that he or she had attained, requiring the member to repeat the selection process, including examination, following a demotion would appropriately protect the public.

Accordingly, we conclude the trial court correctly interpreted "reduction in grade" in charter § 9.4.13 as including reduction in both rank and grade.

III Due Process

Plaintiff also argues the trial court imper-missibly read a due process requirement into charter § 9.4.18. However, in the trial court, plaintiff only argued that the demotion order was ultra vires. We do not read the trial court's comments on due process as necessary to its rejection of this claim.

Accordingly, we need not address the trial court's reference to the due process protections afforded a rank in the civil service.

The judgment is affirmed.

Judge DAVIDSON and Judge ROY coneur.


author: Judge NIETO.

text:
    Faustino ROJAS and Maria Rojas, surviving parents of Miguel Rojas, decedent; and Ruben Garcia, Jr., Plaintiffs-Appellants, v. ENGINEERED PLASTIC DESIGNS, INC., Defendant-Appellee.
    No. 02CA0551.
    Colorado Court of Appeals, Div. V.
    March 13, 2003.
    Schuetze & Gordon, LLP, Robert A. Schuetze, Glenn F. Gordon, Boulder, Colorado, for Plaintiffs-Appellants.
    Dickinson, Everstine & Prud Homme, LLP, Michelle R. Prud' Homme, Denver, Colorado, for Defendant-Appellee.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.$.2002.

   Opinion by

Judge NIETO.

Plaintiffs, Faustino and Maria Rojas, as surviving parents of Miguel Rojas, and Ruben Garcia, Jr., appeal the summary judgment entered in favor of defendant, Engineered Plastic Designs, Inc. (EPD). We affirm.

EPD maintained a room on its premises where it kept a keg of beer, a television, and a pool table. Officers and employees of EPD used the room for social gatherings after work.

After completing work for the day, an EPD employee came to this room and consumed beer with other employees and officers of EPD. The employee then left EPD's premises in his own vehicle. The employee's vehicle collided with a vehicle driven by Miguel Rojas and in which Garcia was a passenger. Miguel Rojas died, and Garcia was injured in the accident. These facts are not disputed by the parties.

Plaintiffs asserted claims against EPD for wrongful death, negligent supervision, and outrageous conduct. Plaintiffs later moved to amend the complaint to add a negligence claim.

EPD moved for summary judgment, arguing that it did not owe a legal duty to plaintiffs, and therefore, plaintiffs' negligence claims should be dismissed. EPD also argued that plaintiffs' outrageous conduct claim should be dismissed because plaintiffs' allegations cannot constitute outrageous conduct as a matter of law. The trial court agreed and entered summary judgment dismissing all of plaintiffs' claims.

The trial court did not rule on plaintiffs' motion to amend their complaint. However, the court considered plaintiffs' negligence claim in ruling on defendant's motion for summary judgment and thus necessarily granted the motion to amend. Accordingly, we will address the trial court's dismissal of plaintiffs' claims including the negligence claim.

An order granting summary judgment is reviewed de novo. Summary judgment is a drastic remedy and should be granted only when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Hyden v. Farmers Insurance Exchange, 20 P.3d 1222 (Colo.App.2000). In reviewing a motion for summary judgment, we must view the evidence in the light most favorable to the nonmoving party. Cissell Manufacturing Co. v. Park, 36 P.3d 85 (Colo.App.2001).

I.

Plaintiffs contend that the trial court erred by dismissing their wrongful death, negligence, and negligent supervision claims because the facts could show that EPD negligently provided beer to its employee and negligently supervised the employee after he became intoxicated. EPD argues that these claims are barred by § 1247-801, CRS. 2002. We agree with EPD.

Initially, we note that the trial court, relying on Biel v. Alcott, 876 P.2d 60 (Colo.App.1993), granted EPD's summary judgment motion because it concluded that EPD had no duty to supervise its employee after he left EPD's premises. We do not reach this issue because we conclude that plaintiffs claims are barred by § 12-47-801.

Section 12-47-801 provides, in pertinent part, that:

(1) The general assembly hereby finds, determines, and declares that this section shall be interpreted so that any common law cause of action against a vendor of alcohol beverages is abolished and that in certain cases the consumption of alcohol beverages rather than the sale, service, or provision thereof is the proximate cause of injuries or damages inflicted upon another by an intoxicated person except as otherwise provided in this section.
(8)(a) No licensee is civilly liable to any injured individual or his or her estate for any injury to such individual or damage to any property suffered because of the intoxication of any person due to the sale or service of any alcohol beverage to such person, except when [otherwise provided in this section}.
(4)(a) No social host who furnishes any alcohol beverage is civilly liable to any injured individual or his or her estate for any injury to such individual or damage to any property suffered, including any action for wrongful death, because of the intoxication of any person due to the consumption of such alcohol beverages, except when [otherwise provided in this section].

The exceptions in the statute are not applicable here.

Before the enactment of § 12-47-801 (previously codified at § 12-47-128.5), the common law permitted negligence claims against aleohol beverage vendors. However, the supreme court had never extended this kind of negligence claim to social hosts. Since the enactment of § 1247-801, "the liability of alcohol vendors and social hosts has been strictly a creature of statute in Colorado," and § 12-47-801 provides the exclusive remedy for the negligent provision of alcohol beverages by vendors or social hosts. Charlton v. Kimata, 815 P.2d 946, 948-49 (Colo.1991).

Section 1247-801(1), C.R.S.2002, states that "in certain cases" the proximate cause of injuries inflicted by intoxicated persons is the consumption of aleohol beverages rather than the sale, service, or provision of such beverages "except as otherwise provided in this section." The legislative intent of § 12-47-801(1) is to shift the responsibility for drinking alcohol from the vendor or provider to the consumer of aleohol beverages. The "certain cases" are all cases except those where § 12-47-801(3) and (4), C.R.S.2002, provide a cause of action. Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527 (Colo.1991). Thus, § 12-47-801(3) and (4) provide the only basis for a claim of negligently selling, serving, or providing aleohol beverages, because in all other cases it is the consumption of alcohol beverages that is the proximate cause of the injury caused by the intoxicated person.

Here, it is undisputed that EPD was not in the business of providing or selling alcohol beverages, was not licensed to sell alcohol beverages, and the employee did not purchase or pay for the beer provided by EPD. Therefore, EPD could not be liable as a licensee under the exceptions to § 12-47-801(8).

Further, plaintiffs do not contend that the employee was acting within the scope of his employment when he was drinking beer or while driving his car, and they make no claim based on the doctrine of respondeat superior. All of plaintiffs' claims, although premised on different legal theories, are based on injuries and damages allegedly suffered because EPD provided beer to the employee and his subsequent operation of his own vehicle while intoxicated. Hence, EPD could be liable, if at all, only as a social host under the exceptions to § 12-47-801(4), but those exceptions do not apply.

Plaintiffs argue that EPD and its employee did not have a social host-guest relationship because they had an employer-employee relationship. Thus, they assert that § 12-47-801(4) does not apply, and EPD can be liable for their damages if it negligently supervised the employee who became intoxicated on its premises on beer it furnished. We do not agree.

Section 12-47-801, which provides the only basis for a cause of action for furnishing alcohol beverages, does not provide a cause of action based on an employer-employee relationship.

We also note that other jurisdictions with statutory limits on the liability of social hosts have treated an employer as a social host where the employer is not in the business of selling alcohol beverages. See Beeson v. Scoles Cadillac Corp., 506 So.2d 999 (Ala.1987)(employer that hosted party on its premises and provided alcoholic beverages free of charge to its employees was a social host and not liable under dram shop act); Mulvihill v. Union Oil Co., 859 P.2d 1310, 1313 (Alaska 1993)(holding that "it would be unwise and unfair to create what amounts to an exception to [the Alaska statute] by holding employers to a different liability standard than other social hosts"); Vaughan v. Hair, 645 So.2d 1177 (La.Ct.App.1994)(employer who permitted employees to drink alcoholic beverages on its premises after finishing their work considered a social host); Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 (1970)(statute that made no provision for holding social host liable applied to employer acting as a social host); Meany v. Newell, 367 N.W.2d 472 (Minn.1985)(refusing to distinguish employer from other social hosts and holding that employer providing intoxicating beverages to employee at employer sponsored party on employer's premises is a social host); David M. Holliday, Annotation, Intoxicating Liquors: Employer's Liability for Furnishing or Permitting Liquor on Social Occasion, 51 A.L.R.4th 1048, § 5 (1987).

Further, if we were to construe § 12-47-801(4) to exclude employers from the definition of "social hosts," the statute would exclude lability for an employer who willfully and knowingly provides an alcohol beverage to a person under the age of twenty-one years. Such a construction would violate the legislative intent to provide a cause of action in such cireamstances. See § 12-47-801(4)(a)(T), C.R.98.2002.

Accordingly, we conclude that § 12-47-801(4) applies to an employer who acts as a social host, that EPD was acting here as a social host, and that EPD is not liable because the exceptions to § 12-47-801(4) do not apply in this situation.

Therefore, plaintiffs' wrongful death, negligence, and negligent supervision claims are barred by § 12-47-801(4). See Charlton v. Kimata, supra (prior version of statute precluded plaintiffs' common law negligence claims against social host for furnishing alcoholic beverages to adult guest).

II.

Plaintiffs also contend that the trial court erred in dismissing their outrageous conduct claim. Again, we disagree.

The plain language of § 12-47-801(4)(a) states that a defendant cannot be held civilly liable for injuries suffered because of the intoxication of an adult to whom the defendant has provided alcohol beverages as a social host.

Here the evidence showed only that EPD made beer available to the employee and that EPD's officers did not prevent the employee from driving. This conduct can not be considered outrageous in the context of plaintiffs' claim and does not remove EPD from the protection of § 12-47-801.

Accordingly, we conclude that the trial court properly dismissed plaintiffs' claim for outrageous conduct.

The judgment is affirmed.

Judge CASEBOLT and Judge METZGER concur.


author: Judge CASEBOLT.

text:
    Linda V. APPLEHANS, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellee.
    No. 02CA0490.
    Colorado Court of Appeals, Div. V.
    March 13, 2003.

      William J. Hunsaker, P.C., William J. Hun-saker, William J. Hunsaker, Jr., Wheat Ridge, Colorado, for Plaintiff-Appellant.
    Joel N. Varnell & Associates, John T. Scherling, Denver, Colorado, for Defendant Appellee.
   Opinion by

Judge CASEBOLT.

Plaintiff, Linda V. Applehans, appeals the orders denying her motion to vacate, correct, or modify an amended arbitration award (final award), and to confirm the original award entered in her favor against defendant, Farmers Insurance Exchange. We affirm in part, vacate in part, and remand the case for further proceedings.

Following plaintiff's injury in an automobile accident, she settled her claim in return for the payment of policy limits of $25,000 from the tortfeasor's insurance company. Thereafter, plaintiff submitted a claim for underinsured motorist coverage to Farmers, her own auto insurer.

Plaintiff's policy with Farmers contained a limit of $50,000 for underinsured motorist coverage and provided for an offset against that amount for any payments received from underinsured tortfeasors. It also had a provision requiring arbitration to settle disputes.

When the parties could not agree on the amount that plaintiff was entitled to recover, they proceeded to arbitration. The arbitration agreement the parties signed provided that the only issue for the arbitrator to decide was the "amount of damages to which [plaintiff] is entitled as a result of her injuries sustained, if any, in the accident."

During the initial arbitration hearing, neither party presented evidence of the Farmers policy limits or of the amount plaintiff had received from the tortfeasor's insurance company.

Following the hearing, the arbitrator awarded plaintiff $95,000 plus interest and costs. Within ten days thereafter, Farmers filed a request for modification with the arbitrator, asserting that the award should be reduced to $25,000, representing the policy limit less a $25,000 setoff for the settlement amount previously received from the tortfea-sor's insurance company.

Before the arbitrator decided the request for modification, plaintiff filed a motion in the district court requesting the court to confirm the arbitrator's initial $95,000 award. Because the request for modification was pending with the arbitrator, the court denied that motion.

Subsequently, the arbitrator held a hearing on the modification request and issued the final award. On disputed evidence, he concluded the parties had stipulated that "[plaintiff] [would] not disclose to the chosen arbitrator either the policy limits or any information concerning potential setoffs" and that any award would be "limited in amount to the applicable policy limits set forth in the insurance policy." Consequently, he entered the final award in favor of plaintiff for $25,000 plus costs and interest.

Plaintiff then filed a motion under §§ 13-22-214 and 13-22-215, C.R.9.2002, seeking to vacate, modify, or correct the final award. The court denied that motion, and this appeal followed.

1,

Plaintiff contends that the court erred in denying her motion to vacate, modify, or correct the final award. Specifically, she argues that the arbitrator exceeded his powers because his power to change an award, as described in § 18-22-211, C.R.8.2002, is limited to the grounds stated in § 13-22-215(1)(a) and (c), C.R.8.2002. She asserts that, because those statutory grounds do not apply here, the arbitrator exceeded the seope of his authority by rendering the final award, and therefore the court erred in refusing to vacate it. We agree.

The issue here is whether the reasons stated in § 13-22-211 provide the only grounds upon which an arbitrator may modify the award. The scope of the arbitrator's ability to modify an award under this statute is an issue of first impression in Colorado.

Statutory construction involves a question of law. Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). In interpreting a statute, we must give effect to the intent of the General Assembly. See Dawson v. Reider, 872 P.2d 212 (Colo.1994). To discern that intent, we look to the language employed in the statute. If the words used are plain and unambiguous, our task is accomplished by giving effect to the commonly accepted meaning of those words. Brock v. Nyland, 955 P.2d 1037 (Colo.1998).

A strained or forced construction of a statutory term is to be avoided, and we must look to the context in which a statutory term is employed. Miller v. Byrne, 916 P.2d 566 (Colo.App.1995). Further, we must construe the statute as a whole so as to give consistent, harmonious, and sensible effect to all its parts and, if possible, give effect to every word in the statute. City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998).

If the statutory language does not clearly establish the General Assembly's purpose, or if the statute appears to conflict with other provisions, then we may determine the meaning of the statute by considering other factors, such as legislative history, prior law, the consequences of a given construction, and the end to be achieved by the statute. Section 24-208, C.R.S.2002; Martin v. People, 27 P.3d 846, 851 (Colo.2001).

As pertinent here, § provides: "On application of a party ... the arbitrators may modify or correct the award upon the grounds stated in section 13-22-215(1)(a) and (1)(e) or for the purpose of clarifying the award." The "grounds stated" in § 13-22-215(1)(a) and (c) are a miscalculation of figures; mistake in description of a person, thing, or property; and imperfection in a matter of form of the award, not affecting the merits of the controversy.

We do not discern that the statute's meaning is wholly plain. Therefore, under the camon of construction expressio unius est exclusto alterius-the inclusion of one thing implies the exclusion of another-we conclude that the inclusion of specific grounds for modification implies the exelusion of other grounds. See City of Arvada v. Colo. Intergovernmental Risk Sharing Agency, 19 P.3d 10, 13 (Colo.2001).

Our interpretation is supported by the pri- or common law. At common law, an arbitrator's ability to modify or amend an award was limited by the doctrine of functus officio. Under that doctrine, once an arbitrator issued an award and delivered it to the parties, his or her power and authority to proceed in the matter terminated. . See 1 Domke on Commercial Arbitration §§ 22.01, 82.01 (Gabriel M. Wilner ed., 2000). The official commentary to the Uniform Arbitration Act, upon which the Colorado act is modeled, notes that the provision allowing an arbitrator to change an award was intended to address the doctrine of functus officio and to provide only a limited opportunity for parties to request a modification from the arbitrator when the award contains a miscalculation or misdescription that is evident on its face. See Uniform Arbitration Act § 20 official emt. 2 (2000). Hence, we must apply the rule that statutes in derogation of the common law should be strictly construed, and therefore we conclude that the reasons for modification are limited to those expressly set forth in the statute. See Preston v. Dupont, 35 P.3d 433 (Colo.2001).

Accordingly, we conclude that when an arbitrator issues an award and delivers it to the parties, amendment or modification of the award by the arbitrator is permitted only under the narrow cireumstances listed in § 13-22-211. See Foust v. Aetna Cas. & Ins. Co., 786 P.2d 450 (Colo.App.1989)(an award can be vacated, modified, or corrected by the court only for the statutory grounds set forth in §§ 13-22-214 and 13-22-215); cf. Farmers Ins. Exch. v. Taylor, 45 P.3d 759 (Colo.App.2001)(in the absence of statutory grounds to modify, vacate, or correct an award, a trial court may not review the merits of the award).

We find support for our interpretation in decisions from other jurisdictions that have adopted the Uniform Arbitration Act. See Conn. Valley Sanitary Waste Disposal, Inc. v. Zielinski, 436 Mass. 263, 763 N.E.2d 1080 (2002)(an arbitrator is without power to modify the award except where the controlling statute or the parties authorize modification); Chaco Energy Co. v. Thercol Energy Co., 97 N.M. 127, 637 P.2d 558 (1981)(an arbitration award that is amended for purposes other than those enumerated by the statute is void and of no effect).

Here, the final award dramatically changed the amount of plaintiff's recovery; thus, it affected the merits of the controversy. The final award did not correct a miscalculation or mistake as to form, nor did it clarify the previous award. Plaintiff did not agree that the award could be modified. Thus, the arbitrator exceeded the seope of his power to modify under § 18-22-211. Accordingly, we conclude that the trial court erred in declining to vacate the final award. See § 18-22-214(1)(a)(III), C.R.S.2002 (the court shall vacate an award where the arbitrators exceed their powers).

Farmers asserts that Swan v. American Family Mutual Insurance Co., 8 P.3d 546 (Colo.App.2000), requires a different result because the Swan division recognized the arbitrators' authority to reduce the award to conform to policy limits. We disagree.

In Swan, in an uninsured motorist context similar to that present here, the arbitrators entered an initial award that exceeded the available policy limits, Eleven days following the award, the insurer filed an application with the arbitrators under § 13-22-211, requesting modification of the award to reduce it to policy limits. The arbitrators declined to modify the award, but ordered that the maximum amount recoverable under the law was the applicable policy limit. Within thirty days following entry of the amended award, but more than thirty days after the initial award, the insurer asked the court to vacate and modify the initial award to reduce it to policy limits. The court did so.

On appeal, the insured asserted that the initial award had become final because the insurer failed to request the court to vacate or modify it within thirty days of delivery to the parties, as required by §§ 18-22-214 and 13-22-215. The insurer asserted that its application to the arbitrators to modify the award pursuant to § 18-22-211 tolled the time limits of those two statutes. A division of this court agreed with the tolling argument.

Contrary to Farmers' assertion, the Swan division did not address the authority of the arbitrators to modify the award. In fact, it does not appear that the issue was presented, because the facts indicate that the arbitrators declined to modify their award. Instead, the issue presented there was whether the court had erred by modifying the award because of the thirty-day limit. The division held that the request was timely and that, under the authority of Kutch v. State Farm Mutual Automobile Insurance Co., 960 P.2d 93 (Colo.1998), the trial court had authority to vacate the award in exeess of policy limits because the arbitrators had exceeded their powers when they awarded an amount above the policy limits. Accordingly, Swan is inap-posite.

Relying upon the doctrine of judicial estop-pel as elucidated in Estate of Burford v. Burford, 935 P.2d 943 (Colo.1997), Farmers also asserts that, because the arbitrator found that plaintiff had stipulated that any award would be subject to policy limits and the setoff, that stipulation should be enforced. Because the arbitrator lacked authority to change or modify the award except under the statutory cireumstances, and that finding does not fall within those cireum-stances, we reject this contention. However, having asked the arbitrator to modify the award and having prevailed on that assertion, Farmers had no need to request the court to modify or vacate the original award under §§ 13-22-214 or 13-22-215. Because we must vacate the final award, on remand the court should allow Farmers an opportunity to file a motion under §§ 13-22-214 or 13-22-215 within thirty days of the issuance of our mandate, requesting the court to vacate, modify, or correct the initial award. See Kutch v. State Farm Mut. Auto. Ins. Co., supra. Farmers may raise the judicial es-toppel issue anew before the court in the event it files such a motion.

Moreover, because judicial estoppel is an equitable doctrine that, in this case, will require specific facts to be found before it may be applied, we decline Farmers' request to apply it as a matter of law on appeal.

IL.

Plaintiff asserts the trial court erred in denying her motion to confirm the initial award. We disagree.

Under § 13-22-2183, C.R.8.2002, the court should not confirm an award if grounds are urged for vacating, modifying, or correcting it. Because Farmers had filed an application to modify or correct the award with the arbitrator, we conclude the trial court correctly denied the motion. See Swan v. Am. Family Mut. Ins. Co., supra (if parallel petitions are filed with the arbitrator and the court, it could lead to the anomalous result of the arbitrator modifying an award at the same time the court is vacating it).

Plaintiff nevertheless asserts that Farmers' application states that it is filed pursuant to § 18-22-215, a statute that allows only the court to modify or correct the award, not the arbitrator. However, the body of the application and its caption make it clear that the request was directed to and filed with the arbitrator, and § 18-22-211 expressly allows the arbitrator to "modify or correct" the award. Moreover, plaintiff received notice of the application and filed a response with the arbitrator. Accordingly, we reject plaintiff's contention that Farmers' application was a nullity.

Plaintiff also asserts that the notice of the filing was defective because neither the application nor the certificate of service stated that plaintiff "must serve her objections thereto, if any, within ten days after the notice," contrary to the provision in § 18-22-211 requiring such language. However, plaintiff has failed to assert or prove prejudice from Farmers' omission of that specific language, and we find none. Hence, we reject this contention as well. See C.R.C.P. 61; C.A.R. 835(e) (courts will ignore errors or defects not affecting the substantial rights of the parties).

For similar reasons, we reject plaintiffs contention that the trial court erred in denying the motion before she had the opportunity to file a reply brief. Plaintiff was able to assert the grounds for her reply in a subsequent motion for reconsideration.

IIL.

Relying upon Farmers Insurance Exchange v. Taylor, supra, plaintiff asserts that policy limit and setoff amounts are affirmative defenses to the insurer's obligation to pay benefits and that such defenses are waived if evidence supporting them is not introduced during the arbitration hearing. Therefore, she argues, Farmers' failure to introduce such evidence bars any consideration thereof as a matter of law. We disagree.

In an uninsured or underinsured motorist insurance, arbitration, an award beyond the policy limits may exceed the powers of the arbitrators and can be vacated by a court pursuant to § 13-22-214(1)(a)(IIl). Kutch v. State Farm Mut. Auto. Ins. Co., supra; Swan v. Am. Family Mut. Ins. Co., supra.

In Taylor, a division of this court held that the existence of policy limits and setoffs are affirmative defenses that must be raised in the arbitration, and the parties' failure to present that evidence in the arbitration precludes the presentation thereof in a proceeding to vacate the award. However, the Taylor division predicated its determination on the parties' obligation to "present all relevant arguments, defenses, and evidence during the arbitration." Taylor, supra, 45 P.3d at 762 (emphasis added). The division relied upon Fisher v. State Farm Mutual Automobile Insurance Co., 243 Cal.App.2d 749, 52 Cal.Rptr. 721 (1966), for the proposition that, where a party fails to produce evidence at arbitration on an issue properly before the arbitrator, that party cannot subsequently seek modification if the only reason for the erroncous award is that party's failure to produce the evidence.

Here, Farmers argues plaintiff had stipulated that any award would be subject to the policy limits and a setoff before undertaking the arbitration and also had agreed that information concerning policy limits and setoffs would not be disclosed to the arbitrator. Plaintiff disagrees with this assertion and with the arbitrator's finding that there was such a stipulation. If there were such a stipulation, the policy limits and setoff would not have been relevant or an issue properly before the arbitrator. Hence, assuming there were a stipulation, Farmers did not "fail" to produce evidence on the issue, but rather did not produce it based on its stipulation with plaintiff.

This is not inconsistent with Taylor. There, neither party had asserted an agreement to limit recovery to the policy limits, allow a setoff, or not disclose such information to the arbitrator. The insurer there relied only upon the insurance policy itself, which had never been introduced. We do not read Taylor to require assertion of policy limit and setoff defenses before the arbitrator when there is a stipulation between the parties precluding the arbitrator from considering or knowing about such issues, as Farmers asserts there is here.

This reading of Taylor is consistent with general principles governing arbitration proceedings. Colorado adopted the Uniform Arbitration Act to provide a uniform statutory framework for arbitration and to encourage the settlement of disputes through the arbitration process. See generally Judd Constr. Co. v. Evans Joint Venture, 642 P.2d 922 (Colo.1982). The purpose of the act is to provide ground rules and procedures for enforcement of awards through the courts, but not to supersede any agreement entered into by the parties Water Works Employees Local No. 1045 v. Bd. of Water Works, 44 Colo.App. 178, 615 P.2d 52 (1980).

Plaintiff nevertheless asserts that the arbitration provisions in the policy at issue here are identical to those considered in Taylor, and the Taylor division held that such policy language unambiguously requires arbitration of the insurer's obligation to the insured under the policy. Again, we disagree.

While the policy provisions are identical, the parties' arbitration agreement here stated that the "only issue remaining for determination by the arbitrator is the amount of damages to which [plaintiff] is entitled as a result of her injuries sustained, if any, in the accident." In contrast, in Taylor, the arbitrator was to determine "the amount of payment under this part [of the policy] as determined by this policy or any other applicable policy," which the Taylor division concluded required the arbitrator to determine the amount of underinsured motorist benefits actually payable by the insurer under the policy.

Because of the difference in the description of the issue the arbitrator was to consider, we view the agreement here to require the arbitrator to determine the damages plaintiff would be entitled to recover from the underinsured tortfeasor. See, e.g., Assicurazioni Generali, S.P.A. v. Clover, 195 F.3d 161 (3rd Cir.1999).

This analysis is consistent with Kutch v. State Farm Mutual Automobile Insurance Co., supra. Under this analysis, an insurer that has stipulated with its insured not to inform the arbitrator of policy limits or applicable setoffs and also to limit the award may still seek vacation, modification, or correction of the award from the court by asserting that the arbitrator acted in excess of his or her powers. In Kutch, the supreme court indicated that an uninsured motorist award in exeess of policy limits may be modified by the court upon timely application on such grounds.

As previously noted, plaintiff asserts there was no stipulation to limit the award to the policy limits, to apply a setoff, or to withhold such information from the arbitrator. Because we have vacated the final award in which the arbitrator found such a stipulation to exist, we cannot rely upon the arbitrator's finding. Accordingly, that issue will remain an issue of fact for the trial court to resolve upon timely application. For the same reason, we reject Farmers' assertion that we have authority, under Kutch, to modify the original award ourselves.

Thus, on remand, and following a timely application, the parties may present evidence to the trial court concerning the existence of a stipulation regarding policy limits, setoffs, and disclosure to the arbitrator. If the trial court finds there was no stipulation, Taylor controls, Farmers is precluded from raising the issue of policy limits and setoff as a ground to vacate the award, and the trial court should confirm the initial award in favor of plaintiff.

However, if the court finds that the parties had stipulated to be bound by policy limits, to apply a setoff, and not to submit those issues to the arbitrator, the court must vacate the arbitrator's initial award to the extent that it exceeds the policy limits and ignores the setoff.

Accordingly, the final award is vacated, the order denying plaintiff's motion to confirm the initial award is affirmed, and the case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

Judge TAUBMAN and Judge NIETO concur.


author: Judge CARPARELLL.

text:
    CITY MARKET, INC., Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Amy Bueling, Respondents.
    No. 02CA1437.
    Colorado Court of Appeals, Div. IL.
    March 13, 2003.

      Hoskin, Farina, Aldrich & Kampf, Frederick G. Aldrich, Grand Junetion, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    The Frickey Law Firm, Jeff Francis, Lakewood, Colorado, for Respondent Amy Bueling.
   Opinion by

Judge CARPARELLL.

City Market, Inc., a self-insured employer (employer), seeks review of a final order of the Industrial Claim Appeals Office (Panel) awarding penalties to Amy Bueling (claimant) for employer's violation of a provision of the Workers' Compensation Act (Act) and of Department of Labor and Employment Rule IV{(N)(6), 7 Code Colo. Regs. 1101-8. We affirm.

Claimant suffered a compensable injury to her left shoulder. Finding that claimant had reached maximum medical improvement (MMI), the treating physician rated a 16% upper extremity impairment, which she converted to a 10% whole person impairment. Based on this report, employer filed a final admission of liability for a 16% scheduled impairment of the left upper extremity.

Claimant filed an objection and a notice and proposal to select an independent medical examiner. She stated that she was not waiving any arguments and requested a division-sponsored independent medical examination (DIME) on the issues of both MMI and the impairment rating. In a report dated October 2000, the DIME physician agreed with the MMI date, but assigned a 35% upper extremity impairment rating, which he converted to a 21% whole person impairment rating. The DIME physician assigned a 21% "{inal/combined" whole person impairment rating. Employer admits that it filed neither an amended final admission of lability consistent with the DIME physician's permanent impairment rating nor an application for hearing to dispute the DIME physician's whole person impairment rating.

Consequently, claimant applied for penalties, alleging that employer's failure to file an admission or an application for hearing violated the Act and failed to obey Rule IV(N)(6). Employer countered that the treating physician's report supported a scheduled rating, not a whole person rating, and therefore, claimant was not entitled to a DIME to dispute impairment. According to employer, because claimant had no such entitlement, it had no duty to respond to the DIME report.

The administrative law judge (ALJ) found that claimant proved she suffered functional impairment to the whole person and that employer failed to overcome the DIME physician's whole person impairment rating. Accordingly, the ALJ awarded benefits based on that whole person rating. The ALJ also assessed a penalty against employer, concluding that employer's "refusal" to file a final admission or application for hearing following the issuance of the DIME report was unreasonable and constituted a violation of § 8-42-107.2, C.R.8.2002, and Rule IV(N)(6). The Panel affirmed.

I.

In 1998 the General Assembly added § 8-42-107.2(4), C.R.S.2002, to the Act and mandated that, within thirty days after the mailing of the DIME physician's report, the insurer or self-insured employer shall either file an admission of liability or request a hearing to contest the DIME report. See Colo. Sess. Laws 1998, ch. 813 at 1428-29 (effective Aug. 5, 1998); see also Rule IV(N)(6). The General Assembly's requirement is clear; an insurer or a self-insured employer must respond to a DIME physician's report and elect either to admit or to contest the report.

Rule IV(N)(6) also requires a self-insured employer either to admit liability or to file an application for hearing within thirty days after the date of mailing of the DIME report determining medical impairment.

Neither the statute nor the rule contains any qualification that would limit this obligation.

IL.

Employer asserts that it was not obligated to respond to the DIME report because claimant was not entitled to a DIME. Employer argues that, because the treating physician described a scheduled injury rather than an injury to the whole person, claimant was not entitled to a DIME regarding the impairment rating. Employer contends that it was entitled to presume that the treating physician's finding of a scheduled impairment controlled. Based on this argument, employer asserts that its receipt of the DIME report created no obligation to file an admission or an application for a hearing. We disagree.

The determination whether a claimant sustained a scheduled or nonscheduled injury is a question of fact for the ALJ, not the rating physician. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App.1996). Precisely for this reason, § 8-42-107.2(4) and Rule IV(N)(6) require employers to respond and either admit liability or initiate the process by which such questions can be addressed.

When claimant objected to employer's admission, she explicitly put employer on notice that she was challenging both the MMI determination and the impairment rating. When employer received the DIME report, it was required under the Act and the rule to respond and either admit that the DIME report was valid or request a hearing at which it could raise its objections to the report. See § 8-42-107.2(4); Rule IV(N)(6). We can find no basis in the Act or the rule to conclude that, because employer was confident that the DIME examination should not have been authorized, it could ignore the mandatory response provisions of § 8-42-107.2(4) and Rule IV(N)(6) or could avoid the DIME findings until claimant initiated action to enforee them. To the contrary, employer should have requested a hearing to contest the DIME report. We, therefore, conclude that employer was obligated to respond to the DIME report notwithstanding employer's stated belief that claimant was not entitled to the DIME.

IIL.

Employer also asserts that, because it responded to and. admitted the treating physician's finding of a scheduled injury, it was not required to respond, admit, or request a hearing with regard to the DIME report's finding of a nonscheduled impairment. Essentially, employer contends that its first response to the treating physician's impairment rating satisfied § 8-42-107.2(4) and Rule IV(N)(6) and that it was entitled to rely on its conclusion that the DIME report's impairment finding was a nullity. We disagree.

Employer attempts to distinguish Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App.1999). Contrary to employer's argument, at least one aspect of the holding in Human Resource applies here.

There, the insurer received three medical impairment reports issued by different physi-clans. One report contained an impairment rating regarding the claimant's knees. The other two contained a whole person impairment arising from psychological problems. A division of this court concluded that the insurer's response to the first report did not satisfy the requirements of the rule and that the insurer was obligated to respond to each of the reports.

Here, employer admitted the treating physician's scheduled impairment rating. Claimant challenged the treating physician's findings regarding both MMI and the impairment rating. The DIME report concurred with the treating physician regarding MMI, but disagreed with the treating physician's impairment rating. Employer has acknowledged that the challenge to the MMI determination was proper, yet it responded to neither aspect of the DIME report. As in Human Resource, employer's admission of the treating physician's impairment rating did not satisfy or eliminate its statutory and regulatory obligations to respond to the DIME report. We conclude that employer was required to respond to the DIME report notwithstanding its admission of liability regarding the treating physician's scheduled impairment rating.

IV.

Employer also asserts that, before imposing a penalty under the Act, the ALJ was required to find that its refusal to obey the rule and its violation of the Act were unreasonable. Employer also contends that the record is insufficient to support the ALJ's finding that employer's violation was objectively unreasonable. We conclude that there was sufficient evidence to support that finding. Consequently, we do not reach the question of whether violation of the Act and disobedience of the rule must be unreasonable before a penalty must be imposed.

Section 8-43-804(1), C.R.S.2002, states that an insurer or self-insured employer who "violates any provision" of articles 40 to 47 of title 8 "shall ... be punished by a fine of not more than five hundred dollars per day for each such offense." Section 8-48-304(1) also requires punishment when an insurer or self-insured employer "fails, neglects or refuses" to obey a lawful order of the director.

Employer admitted that it failed to respond to the DIME report. There was no evidence to the contrary. Thus, the ALJ properly found that employer failed to respond to the report.

Regardless of how strongly employer believed in its objection to the DIME report, the Act and the rule unequivocally mandated that employer file a response. Employer could have stated its objections to the DIME in that response. The ALJ considered employer's rationale for not responding to the DIME report and concluded that it was not reasonable. The ALJ found that employer violated the Act and refused to obey the rule. These findings were supported by sufficient evidence, and we are, therefore, bound by them. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App.1995).

Because the ALJ applied a test of unreasonableness and her finding was supported by sufficient evidence, we need not and do not resolve whether, before penalties are imposed, a test of unreasonableness must be applied in all cases in which an insurer or self-insured employer violates the Act or fails or refuses to obey an order or rule of the director.

Vv.

Finally, employer argues that the ALJ could not properly impose a penalty if its conduct was predicated on a rational argument based in law or fact. We disagree.

Employer cites Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App.1997), to support this contention. In Hewuse, a division of this court applied the test of reasonableness to an insurer's failure timely to obey a rule of the Department of Labor and Employment.

The Hewuse division referenced Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496 (Colo.App.1994). In Tozer, the claimant alleged that the employer, through its adjuster, acted in bad faith when it appealed the ALJ's order. The division evaluated whether the appeal was frivolous. It decided that the adjuster's appeal of the ALJ's order was not frivolous because it was predicated on a rational argument based in law or fact. Tozer, supra, 883 P.2d at 499. Although the Hewuse division referenced Tozer, it did not apply the same standard to reach its deci-gion.

The burden of proving that employer did not have a rational argument for failing to respond would be a higher burden than proving that employer neglected to act as a reasonable employer would have acted in response to the DIME report and the statutory and regulatory mandates. Because § 8-43-304(1) does not limit penalties to frivolous or irrational violations of the Act or disobedience of the rules and because neither He-wuse nor Tozer applied such a standard for failing to respond to a DIME report, we conclude that the ALJ was not required to apply a "rational argument" standard.

The order of the Panel is affirmed.

Judge NEY and Judge MARQUEZ concur.