Fottrell v. ICAO
24CA1440
Colo. Ct. App.Mar 20, 2025Background
- Brian Fottrell, a carpenter, claimed he suffered a workplace injury in February 2021 while working as a subcontractor for Amerwest Constructors, Inc.
- Fottrell filed for worker’s compensation benefits about eight months after the alleged injury.
- Dr. J. Tashof Bernton conducted an independent medical examination and found evidence of degenerative disc disease but no acute work-related injury; medical records also indicated pre-existing cervical pain prior to the alleged incident.
- At the administrative hearing, Dr. Bernton’s reports were admitted alongside testimony from Fottrell and a former co-worker.
- The Administrative Law Judge (ALJ) found Dr. Bernton’s opinions credible, noted inconsistencies in Fottrell’s claims, and found Fottrell failed to prove a compensable work injury.
- The Industrial Claim Appeals Office affirmed the ALJ’s denial of benefits, and Fottrell appealed to the Colorado Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of IME reports | Dr. Bernton’s reliance on supervisor statements was hearsay and inadmissible | Fottrell himself introduced reports, cannot object | Fottrell invited any error; no hearsay bar |
| Sixth Amendment right to confrontation | Reports violated right to confront witnesses | No such right in civil/admin proceedings | Sixth Amendment applies only in criminal cases |
| Credibility of medical report | IME reports insufficient for lacking range of motion observations | Reports are thorough, ALJ found them credible | Court found no basis to reject ALJ’s findings |
| Panel's review procedure | ALJ erred by not giving audio, not just transcript, to Panel | Statute requires written transcript only | No requirement to provide audio to Panel |
Key Cases Cited
- Madden v. Mountain W. Fabricators, 977 P.2d 861 (Colo. 1999) (work-related injuries compensable only if arising out of and in the course of employment)
- Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380 (Colo. 1998) (doctrine of invited error prevents party from complaining of errors they introduced)
- People v. Bergerud, 223 P.3d 686 (Colo. 2010) (self-represented litigants' arguments are construed liberally)
- People in Interest of V.M.R., 768 P.2d 1268 (Colo. App. 1989) (Sixth Amendment confrontation right applies only in criminal cases)