Loffland Bros. Co. v. Industrial Claim Appeals Panel

space and a office had shared respondent respondent had seen the who

psychologist BROTHERS COMPANY LOFFLAND during time. National Union Fire Insurance and Petitioners, Company, also aggravating factors were Certain board; hearing namely, by the considered neglect of client continuing pattern of PANEL INDUSTRIAL CLAIM APPEALS and the vulner- was established affairs that COLORADO; Di OF the STATE OF ability of the clients. See Standards for rector, Labor, Department 9.22(c) Division of Lawyer Sanctions Imposing § Employment, (h). mitigation, the considered board of Labor and State of disciplinary Burwell, any prior Colorado; Respon respondent’s lack and Kriss he problems emotional record and the dents. Impos- ABA experiencing. Standards for No. 88SC154. 9.32(a) (c). Lawyer Sanctions § found, pursuant to board Colorado, Supreme Court facts, respondent stipulation En Banc. Responsi- Professional the Code of violated March 1989. cooperate with bility and failed to matter. Committee the Collier Grievance Rehearing April Denied 1989. engaged respondent found that the It also misconduct, neglect legal mat- in serious him, and virtual abandon-

ters entrusted

ment of his clients. findings of the hear- agree with However, exercising inde-

ing board. appro- arriving at the

pendent judgment discipline, People v.

priate see level con-

Brown, respondent’s pat-

clude that view offenses, misconduct, multiple

tern of clients, and his fail- vulnerability of his fashion, timely in a

ure to make restitution is sixty-day suspension

the recommended sanction. appropriate

not an suspension

Accordingly, we order practice respondent from the of law commencing thirty months period of six opinion. of this C.R.C.

days after the date 241.21(a). is conditioned

P. Reinstatement 241.22(c) and compliance with C.R.C.P. health exami-

(e), undergoing a mental profes- health by a licensed mental

nation respondent is also ordered

sional. days $2,449.81 ninety within

pay costs of of this the date of the announcement

from Supreme Court Grievance

opinion Street,

Committee, Suite 600 Seventeenth Denver, S, Colorado right re-open his

“his to case for bene- excepting fits whatsoever medical bene- provided agreement. fits” for in the De- waiver, spite hearing al- officer reopening of claim lowed the Burwell’s accordance with the in Padil- “[i]n la.

n Appeals The Industrial Claim af- Panel firmed the officer’s and decision appli- held that no of a retroactive cation of was Bur- Padilla raised since petition reopen to well’s filed was after appeal, decision in Padilla. On the court appeals of concluded that the was at issue since the settle- Levine, & D. Blackman Lawrence Black- agreement whereby purport- ment Burwell man, Denver, petitioners. for edly right his waived to his claim Woodard, Gen., Atty. Charles B. Duane prior into was entered to our decision Howe, Gen., Deputy Atty. Chief Richard H. Padilla. The court of nevertheless Forman, Gen., Steiner, Sol. Michael J. Asst. concluded Padilla was to be Gen., Denver, Atty. respondents for Indus. retroactively, and it affirmed the order Appeals Panel Claim and Director Appeals the Industrial Claim We Panel. Labor. Div. of also conclude our decision in Padilla Withers, Rice, P.C., Seidman & Christo- applied retroactively, should be for but Seidman, Junction, pher respon- Grand somewhat different reasons on than relied Kriss dent Burwell. appeals. Accordingly, the court judgment now affirm the court Denver, Tochtrop, Paul for amicus curiae appeals. Lawyers Colorado Defense Ass’n. LOHR, Justice. I. granted opin to certiorari review Kriss suffered volt- high Burwell severe Appeals ion the Colorado Court of age legs upper burns to electrical his Brothers Co. v.

Loffland body employed while as a worker on oil Office, 754 Claim drilling rig with the Loffland Brothers App.1988), determine whether our deci drilling contractor, Company, a on June sion in Padilla v. Industrial incident, result Bur- 1981. As a of this is to leg right amputated well’s was below retroactive effect. we held surgical knee. additional opera- Several Director of that the the Division Labor required tions were to reconstruct left his statutory authority reopen any had the leg accomplish grafts skin necessi- claims, compensation whether injuries. tated the bum previously by adjudicatory pro resolved accident, After his tem- Burwell received ceedings byor agreements, settlement disability porary total benefits of $244.65 private agreement par that no between per employer’s insurer, his week from Na- abrogate reopen ties could the Director’s Company. tional Union Fire Insurance authority. Subsequent our decision Burwell also received medical and vocation- Burwell, respondent, Kriss al rehabilitation benefits from the Colorado petitioned the Director to his work Major beginning Medical Insurance Fund ground ers’ claim on continuing 1982 and into 1984. physical his condition had In his worsened. agreement, During entered into summer of Burwell thought our decision waived medical Burwell his condition had stabi- (1973).1 275, 276, 696 P.2d 25, 1984, 3 C.R.S. at entered Burwell On June lized. of his for settlement 279-80. stipulation into a reha- and vocational February petitioned Burwell On stipulation claims. benefits bilitation pursuant claim the Director to his Director of the Divi- approved by the 8-53-113, (1973 to section 3 C.R.S. & August 1984. Under sion of Labor claiming Supp.),2 physical that his condition Bur- stipulated agreement, the terms hearing pe- A on Burwell’s had worsened. $37,- payment of lump a sum received well 17, July on 1986. The hear- tition was held insurer ex- employer’s his 500 from physical ing officer found that Burwell’s any to addi- waiving his claim change for approval condition had since worsened partial, temporary past or future tional 13, agreement August stipulated total, partial, per- permanent temporary worsened condition includ- 1984. Burwell’s disability Burwell total benefits. manent stump foliculosis on the of his ed acute $4,000 Ma- from the Colorado also received right leg, scar tissue which had additional Fund in return for Insurance jor Medical removed, surgically progressive atro- to be right to rehabilita- waiving his vocational right leg made it difficult phy of the which maintenance bene- rehabilitation tion and worsening osteomyelitis prosthesis, to fit a agreement, Burwell part of the fits. As ankle, and a hammer toe condi- of the left re-open case right to his “his also waived by the contraction of the ten- excepting tion caused any whatsoever for benefits hearing agree- The officer provided” in the dons in his left toes.

medical benefits as of his ment. that because worsened concluded condition, statutory satisfied the Burwell 11,1985, announced our February On under reopening his case requirements v. Industrial Commis- decision Padilla Additionally, the hear- section 8-53-113. sion, (Colo.1985). In P.2d 273 696 provisions concluded that officer agreement that a settlement we concluded waiving ad- stipulated agreement Burwell’s and final” settle- purporting to be a “full right reopen his and the to ditional claims compensation any ment of and all workers’ effective, in accordance with case were any “preclud[ed] forever claims and which was holding in Padilla. Burwell arising out of additional claims” further temporary total disabili- additional awarded still accident at issue was the industrial Au- per week from ty of $244.65 benefits the Division of subject to the Director of 13, 1984, terminated accord- gust until authority reopen to statutory Labor’s Industrial Com- IX of the ance with Part limits of section 8-53- the time case within 8-53-113, (1973 Supp.); Ch. & 1984 applicable 3 C.R.S. statutory reopening provisions § 1. The 308, 8-53-113, 58, 5, Colo.Sess.Laws 1984 § several sec. been amended in Padilla have since 8-53-113, at 3B 310. § and are now codified times again provisions amend (1988 reopening were Supp.). The C.R.S. provide that in Padilla to after our decision ed would not to the Director's his settle- entered into 2. At the time Burwell pursu entered into apply "those settlements statutory reopening provi- agreement, the ment sion, 8-53-113, the claimant in which provided: ant to section 8-53-105 § award; right but a his waived years date of any six from the At time within any may reopened at time be years any injury within two after or at time material ground mutual mistake of of fraud or due becomes date the last 77, 8-53-113, (1986); Ch. sec. 3B C.R.S. § fact.” longer, payable, is the director whichever 355, 8-53-113, 356. 1985 Colo.Sess.Laws § may, all after notice to officer or a terms, to the By these amendments their own award on the parties, review apply reopening provisions to settlements error, mistake, change in ground or a of an date of the the effective entered into on or after compen- reopened, If an award is condition. amendments, April Ch. sec. previously or- and medical benefits sation en Because Burwell maintained, at 356. ended, diminished, Colo.Sess.Laws may be dered agreement on June his settlement tered into reopening affect shall No such or increased. approved Director on and it was already paid. moneys earlier award as to 13, 1984, August amendments shall be Any under this section order entered apply case reopening provisions do not to this subject as other review in the same manner not at issue here. and are orders. Rules, 1101-3, mission 7 C.C.R. at 17-18 der to review the determination of the was to be offset appeals court of that Padilla v. Industrial already amounts awarded Burwell (Colo.1985), stipulated agreement. under the should application. be retroactive Company The Loffland Brothers and Na- II. Company tional Union Fire Insurance ap- petitioners argue that under our de pealed this order to the Industrial Claim cision in Marinez v. Panel, Commis arguing part that Padil- sion, applied la should not retroactively be should not retroactively to set permit reopening of Burwell’s claim. tlement entered into panel did not rule on the retro- the date Padilla was decided. In Padilla, concluding active gave retroactive effect to our decision that no issue of retroactivity present- in Engelbrecht v. Accident & ed. It that Burwell had filed his reasoned Hartford Co., Indemnity (Colo.1984), 680 P.2d 231 petition reopen in February subse- which held cost-of-living increases in quent to our decision in and that federal security social disability benefits Padilla was the controlling at law “periodic are not disability benefits” and time for April settlements executed before trigger therefore do not deductions from appeals 1985. panel therefore af- state periodic dis firmed the officer’s order. ability payments benefit under section 8- employer sought and its insurer then 51-101(1)(c), (1986). 3B C.R.S. panel’s review decision the Colo- To holding Marinez, reach our Appeals. rado Court of ap- The court of considered the factors determining for peals retroactivity concluded that of give whether to effect retroactive to a civil principal Padilla was the governing decision that adopted in People in the petition whether Burnell’s C.A.K., Interest 652 P.2d 603 properly granted. been Loffland, 754 P.2d 1982). originally These factors were devel at 768-69. The appeals court of noted that oped by the United Supreme States Court key date for the issue was Huson, Chevron Oil Co. v. 404 U.S. petition not the date when the S.Ct. 30 L.Ed.2d 296 We filed, but rather the date when Bur- have described the Chevron factors and purportedly well right waived his to have they manner in which are to be reopened. his case at Id. 769. Because as follows: this latter date was to our decision in First, decision, if ap- it is not to be question of whether Burwell’s plied retroactively, must establish a new agreement effectively precluded reopen- a Second, rule of law. the merits of each ing of his claim did raise the issue of the weighed by case must be looking to the retroactive of Padilla. Id. purpose and question effect of the rule in appeals The court of then considered the retrospective whether operation will factors we used in Marinez v. Industrial or operation. Third, further retard its Commission, for inequity imposed appli- retroactive determining whether a decision should be weighed cation must be injustice to avoid given retroactive Utilizing effect. these hardship. factors, appeals the court of concluded that Marinez Commission, v. Industrial our decision in given Padilla should P.2d at (quoting 556-57 People in the In- Therefore, retroactive effect. it affirmed C.A.K., 607). terest 652 P.2d at the order of the Industrial Claim allowing Panel reopening of Burwell’s We noted in Marinez that “the claim. Loffland, 754 P.2d at 770. Loff of retroactivity arises when a land Brothers Company and National Un decision establishes a new rule of law.” ion Fire Insurance Company petitioned for 746 P.2d at 557. When a decision does not granted petition certiorari. We law, in or- establish a new rule of it is traditionally accorded to rector of Division Labor “with dis- effect retroactive reopen a case on the cretion to Director’s any analysis of the judicial decisions and all grounds specified own motion unnec- and third Chevron factors is second Id. provided.” the time limitations within n. essary. See 746 P.2d at 557 4. The discretion cases is vested present principles these Applying Director, only in the and not conclude that case, did not es- Supply id. Service (citing See Co. parties. rule of and therefore we a new law tablish Vallejos, v. 169 Colo. ap- judgment of the court of affirm the (1969); Corp. Colorado Fuel & Iron peals. 151 Colo. (1962)). concluded that A. reopening vested the Director assumed, pur- The court “strong legislative poli- was indicative of a that Padilla estab- analysis, its poses of goal achieving just cy” that the result P.2d at rule of law. 754 lished new litigants overrides interest accom- Therefore, appeals analysis the court of plishing dispute a final resolution their Chevron and third focused on the second cases. 696 P.2d However, an issue of re- factors. because at 278. troactivity not arise unless a decision does Next, great signifi we observed that no law, rule of we shall establishes new cance could be attributed to the terms Chevron first begin by analyzing the “compensation” used in and “award” as if threshold stan- factor to determine an intent section 8-53-119 to demonstrate application has dard for nonretroactive authority to to limit the Director’s Marinez, 746 P.2d at 557 & been met. See not settle only adjudicatory awards and apply only prospectively, n. 4. order noted, instance, agreements. ment We Padilla, petitioners urge apply us to provisions that various of principle a decision “must establish a new “compen the terms compensation act used law, by overruling past clear either interchangeably. sation” and “benefits” precedent litigants may on have re- which Additionally, previously had held that we lied, impres- by deciding or an issue of first authority possessed the to re the Director clearly fore- sion resolution was not whose resulting compen proceedings view the Chevron, 404 106, at 92 shadowed.” U.S. proceedings culminat whether these sation “ (citations omitted). To deter- at 355 S.Ct. ‘order,’ ‘decision,’ ‘judgment’ or ined principle Padilla established mine if a new P.2d at 278 ‘finding and award.’” 696 law, the nature of must first examine we Commis v. Industrial (quoting Brofman in Padilla. for our and basis 584, sion, 248, 253, 186 P.2d 117 Colo. 587 concluded, (1947)). Thus, at we would Padilla, “[i]t examined whether reading of section 8-53- a strained best be reopening provisions of the Workmen’s using suggest by the term 119 to Colorado, articles 40 Compensation Act of Assembly prohibit ‘award’ General (1986 54, 8, Supp.), title 3B C.R.S. & 1988 reopening any case Director from ed the by set- applicable to claims resolved were denying entry of an order closed claims agreements or to those tlement benefits, compensa expenses or claims for proceedings by adjudicatory be- resolved Instead, 278-79. tion.” 696 P.2d at fore a officer of Division authority extended to reopening Director’s following features of Labor. noted the agency ac by final “all cases terminated prior decisions in conclud- the act and our stipulated tion,” including approval of a applied to reopening provisions that the the overall be agreement, consistent with adjudicato- both Id. at 279. the act. purposes neficent First, provisions of the act ry awards. “inescapable” liberally in reached the Finally, favor are to be construed Padilla, 696 authority the Director had rights injured conclusion workers. requisite time Next, section all cases within we noted that P.2d at 277. regard 8-53-119 8-53-119, (1973), the Di- limits of section without vested C.R.S. to the manner which case re- B. stated that

solved. We Given the foundation and basis for our [although Compensation the Workmen’s above, decision as described express recognition Act contains no now examine whether that decision estab- lished principle a new cases in claims are law. first which resolved inquiry is whether Padilla settlement are be treated the same “overrul[ed] past precedent litigants clear on which may are manner as cases which resolved Chevron, have relied.” 404 U.S. at purposes of the reopening awards for S.Ct. at 355. Prior to hadwe provisions, prior several decisions of directly ruled on whether the Director’s suggest this court that such conclusion implied policy from the must be claims extended to claims based on settle- of the Act. structure agreements. ment litigants To the extent added). (emphasis 696 P.2d at 279 may past precedents, have relied on among Key these decisions were decision Padilla was consistent with the recognizing generally those “the set- precedents holding that the workers’ com- equivalent tlement of a claim is to an pensation liberally laws were to be con- (citing award.” Id. Harlan v. Industrial strued, that equiva- settlement of a claim is Commission, 167 Colo. 447 P.2d 1009 award, parties lent to an and that cannot (1968); Corp. Colorado Fuel & Iron v. by private agreement abrogate statutory Commission, 151 Colo. 379 requirements important public or policy (1962); v. Industrial expressed Brofman considerations in the statutes. Commission, 117 Colo. 186 P.2d 584 Thus, overrule, Padilla did not either ex- (1947); Independence Spice & Co. pressly by implication, any past prece- Coffee (1935); Taylor, v. 97 Colo. litigants may dents which have relied. London Guarantee & Accident Co. Next, we must determine whether Padil- Sauer, (1933)). 92 Colo. principle la established a “by new law Also, previously University we had held in deciding an issue impression of first whose Denver v. Industrial of Colo. resolution was not foreshadowed.” (1959), that, 335 P.2d in 292 the Chevron, 404 U.S. at 92 S.Ct. at 355. compensation context of agree- workers’ above, As noted Padilla did decide an issue ments, “parties by private cannot contract impression. Therefore, of first the focus abrogate statutory requirements or condi- inquiry of our is whether the resolution affecting public policy tions the of the reached in “clearly Padilla was foreshad- state.” Id. at 335 P.2d at 294.3 by prior owed” the statute and our deci- Therefore, purposes, upon based the struc- sions. ture, language compen- and of the workers’ petitioners urge us to reach the statutes, sation set forth in the statutes Marinez, same result as in where we held applying themselves and in our decisions Engelbrecht Accident & Hartford statutes, ultimately those concluded in Co., Indemnity authority Padilla that the of the Director principle established a new of law since the reopen to claims extends to cases resolved compensation workers’ statute itself did settlement as well as to explicitly not resolve the issue decided cases resolved administrative determina- Marinez, Engelbrecht. See 746 P.2d at tions; agree- and to the extent a settlement petitioners argue 557. The that since the purports ment abrogate to authority, statute here does not explicitly the resolve it is unenforceable. 696 P.2d at issue of the Director’s authority 279-81. claims agreements, resolved jurisdictions, circumstances, rely- changed 3. We also although observed that other on there was adopting on their own statutes and various authority contrary. some 696 rationales, had concluded that settled workers’ P.2d at 280. compensation reopened claims could be based contrast, By opinion our m rely had to on Padilla was petitioners the since and prior precedents squarely con- based statute, understanding of the then their cerning interpretation of the workers’ necessarily an issue whose decided laws, authority compensation foreshadowed. not resolution previously Director to review resolved that differences disagree. We believe We claims, agree- of settlement nature presented the situation exist between ments, agree- private and the effect of such that the instant case Marinez and statutory provisions public ments on and on this the same conclusion need not reach policy strength prior of these choices. as we did in Marinez. precedents, together language and with Engelbrecht noted that act, policy compensation of the workers’ impression con “inescapable an issue of first decided formed the basis of the con- by in clusion” reached interpretation relied on Padilla. trary Specifically, in Padilla we relied on our decisions disability compute periodic bene surers Director, par- and not the that the 8-51-101(1)(c),3B section C.R.S. fits under ties, claims,4 the discretion to that feder (1986). Engelbrecht held in interchangeable the choice of terms disability cost-of- security benefit al social “compensation” such as and “benefits” and “periodic disabili living increases were “order,” “decision,” “judgment,” such as require therefore did not ty and benefits” “finding and award” used in different corresponding reductions state workers’ dispositive provisions of the act was not section 8-51- under benefits therein,5 authority granted that the set 101(1)(c). opinion in A of our En review equivalent tlement of a claim is to an discloses that our decision there gelbrecht award,6 private agreements and that be general statutory exclusively on was based parties abrogate the stat cannot tween previous deci interpretation principles and utory provisions strong public policy purposes of discussing general sions compensation laws.7 More the workers’ Thus, in compensation laws. the workers’ over, prior opinions that a establish context there Marinez/Engelbrecht of a “final” award the context provide guid prior precedents no were compensation claim means regarding the status to ance to the insurers unless reo matter has been concluded given cost-of-living increases or what be many pened.8 light relevant from types of benefits would excluded on in taken to precedents relied language9 of 8-51-101(1)(c). gether policy with section authority the Di Vallejos, 8-53-113 vests Supply Colo. 4. Service Co. v. 9.Section officer) (1969); (or Corp. review and Colorado Fuel & Iron rector Because this 151 Colo. award. v. Industrial Director, see Service in the is vested 14, (1969), Co., Supply 452 P.2d 387 it 169 Colo. Commission, 117 Colo. 5. v. Industrial Brofman petitioners the could have is difficult to see how 248, (1947). 186 P.2d 584 right to re waiver of "his relied on Burwell’s Commission, authority open 167 Colo. his case" to waive the Director's v. 6. Harlan Industrial 413, (1968); (Emphasis reopen any Colorado Fuel & Iron add 447 P.2d 1009 case. to review and 18, Commission, Colo. Corp. 151 ed). misplaced v. Industrial appears especially This reliance (1962); P.2d 379 153 holding "parties light cannot our that Brofman in of 248, (1947); Commission, 117 Colo. 186 584 abrogate statutory require by private contract Spice Taylor, Independence Co. v. 97 & Coffee affecting public policy” ments or conditions 242, (1935); London Guaran- Colo. 48 P.2d 798 University laws. of 565, Sauer, Colo. 22 Co. v. 92 tee & Accident Denver, P.2d at 294. Colo. at 335 138 (1933). P.2d 624 rely interpre being on their Instead of forced statute, it seems instead tation of an unclear Commission, University Denver v. Industrial simply both petitioners misconstrued (1959). P.2d 292 138 Colo. 335 pre-Padilla the statute and the the clear terms of Corp. Com v. Industrial 8. Colorado Fuel & Iron reopening was decisions (1962); mission, 153 Gra 151 Colo. 379 P.2d vested in the Director. Yturralde, 137 Colo. den Coal Co. v. (1958). laws, 1985), given applica con should be retroactive the workers’ we clude our decision in Padilla was tion.

“clearly foreshadowed.”10 III. Any by petitioners reliance Because hold that did not we Padilla recognition in the express the lack of an law, establish a new rule of we do not compensation act that claims re analysis reach the of the second and third in by settlement are be treated solved by Chevron factors considered the court of manner as claims resolved the same However, appeals. analysis of the first misplaced light of the case- was awards factor us to the Chevron leads conclusion applied precedent In face of the law. applied that Padilla should be retroac- cannot reliance alone serve tively. Accordingly, judg- affirm the we demonstrate that this decision established appeals. ment court here, where, principle of law new point parties arguing for reliance have not ROVIRA, J., dissents and provisions any statutory decision or ed to ERICKSON, J., joins in the dissent. they support relied to their inter on which ROVIRA, Justice, dissenting: pretation. petitioners provid Nor have disagree ed of the extent to which I majority’s evidence with the conclusion employers may depended and insurers have that the rule of law established Padilla finality perceived Commission, of settle absolute v. Industrial 696 P.2d 273 in planning ment and conduct should be ef- retroactive Marinez, operations. their rule of fect. Padilla established new law Cf (burden proof on issue of impres- P.2d at 559 it of first because decided inequity party seeking is on nonretroactive clearly sion resolution fore- whose application). pur- I shadowed. also conclude that pose retroactively applying and effect of circumstances, conclude Under these holding may operation retard its presented that our resolution of the issue inequity imposed by applica- retroactive clearly foreshadowed Padilla was may impose injustice hardship. tion I policy, language precedents, statutory judgment the court would reverse the detailed and in Padilla.11 Because appeals Di- and remand the case to the foreshadowed, this resolution was rector of the Division of Labor to hear past did not and because Padilla overrule on the second and third factors evidence litigants may precedent on which have re in People set forth in In- lied, conclude that did not es C.A.K., (Colo.1982). terest of Thus, principle of law. no tablish new C.A.K., analysis adopted further of the Chevron factors is the standard for required. application 746 P.2d at 557 & retroactive of decisions in civil See necessary n. 4. The cases set forth the United Su- threshold condition States Huson, preme nonretroactive of Pa Court Chevron Oil Co. v. establish met, therefore 92 S.Ct. 30 L.Ed.2d 296 dilla has not been and we U.S. C.A.K., hold that our decision Padilla v. Indus we described the factors trial involved as follows: Shanks, 10. While the court of assumed that case.” In Ground Water Commission v. law, (Colo.1983), result in Padilla announced a new rule of it we stated that "[t]he entirely did note that "not that it was convinced responsibility determining rule whether a ‘clearly the by result was not foreshadowed' granted retrospective prospective law will be or opin- prior the decisions referred to in that application is an issue for the courts to resolve.” ion.” 754 P.2d at 769. Thus, accepted Id. at 849. even if we the amicus position ex- curiae’s 1985 amendments argument 11. We no of the find merit pressed legislative policy as to the retroactive amicus curiae that the 1985 amendments to the reopening provisions Padilla, any legislative such effect determina- expression legis- are "an binding upon tion would not be us. policy recognizing lative the fact that a new principle of law was established in the Padilla First, decision, if it not ap- “inescapable,” is to be as I did not then and do not now believe that plied conclusion retroactively, must establish a new was warranted. Second, rule of law. the merits of each Next, the holding conclusion that the weighed looking case must be clearly Padilla was not foreshadowed is purpose question and effect of the rule in evident from the fact that courts in other operation jurisdictions conflicting retrospective and whether will views issue at the time Padilla was decided. As operation. Third, or further retard its Padilla, set forth in agree courts some inequity imposed by appli- retroactive majority’s with the conclusion that “settled weighed cation must injustice be to avoid may claims be re- hardship. opened ground changed circum- C.A.K., majority 652 P.2d at 607. As the stances.” 696 P.2d at 280. correctly points out, of re- jurisdictions, however, Courts in other troactivity arises when a decision es- contrary “have reached conclusions.” Pa- a new rule of At tablishes law. 1224. For dilla, 696 P.2d at 280. law, a decision to establish a rule of new it I also believe that Marinez v. Industrial past precedent must either overrule clear sup- litigants may on which the relied or have ports my conclusion that Padilla estab- decide an impression first whose lished a new rule of law. resolution not clearly foreshadowed. court held that Engelbrecht v. Hartford Chevron, 404 U.S. at 92 S.Ct. at 355. Co., Indemnity Accident & (Colo.1984), applied retroactively. How- this court held that the statu- ever, reaching holding, the court tory authority of the Director of the Divi- Engelbrecht concluded that established a sion of Labor to claims new rule of law because it decided an issue cases resolved impression of first whose resolution was by adjudication, well as cases resolved clearly not foreshadowed. agreement and a settlement between the In Engelbrecht, we held that cost-of-liv parties abrogate authority. could not security increases to federal social dis majority in Padilla relied on the ability “periodic disability benefits were not purpose” “beneficient of the Workmen’s did require benefits” therefore cor Act, Compensation language of the re- responding reductions in state workers’ opening provisions, prior and the cases of compensation benefits under section 8-51- this court. 101(1)(c), 3B C.R.S. To reach this majority concludes that the resolu- conclusion, language examined presented tion of the issue in Padilla was the statute and determined that it was sub clearly foreshadowed. For the reasons ject interpretations. Therefore, to two forth, disagree. hereinafter set I looked to the intent of the General Assem intent, bly. To discern that we looked at First, the fact that Padilla was not clear- purposes Compensa of the Workmen’s ly language foreshadowed is shown namely, protect employees tion Act: who opinion majority quotes itself. The injuries, give injured suffer workers a portion opinion of the Padilla where the compensation, pre reliable source of and to prior court stated that “several decisions of vent double awards. Based on the lan suggest this court that such conclusion guage previous the statute decisions implied policy must from the and struc- act, discussing purposes held ture of the Act.” 696 P.2d at 279 reductions added). (emphasis I do not believe that the required benefits were not under section in Padilla was foreshad- 8-51-101(1)(c), (1986), 3B C.R.S. when cost suggest- merely owed where case law of-living increases were made in federal implied Although ed or the outcome. security disability social benefits. Padilla court characterized its conclusion its court Padilla based decision on the grounds: namely, language the

same amendments demonstrate that the General statute, reopening provision prior Assembly in the assumed that final settlements in court, compensation of this and the cases “beneficent cases would be binding, purpose” Compensation opposite of the a conclusion Workmen’s in Padilla. Act. only Assembly Not did the General

Other similarities as- between Padilla and sume that final binding, settlements were apparent reading are from a Engelbrecht companies, but also insurance self-insured our discussion of in Engelbrecht Mari- businesses, employees cases, of the were nez. both the issue before the opinion. same The workers’ impression. one of first court was Mari provisions since existed nez, 557; 746 P.2d at at 1226. both enactment of Compensation the Workmen’s cases, decision, operat to our insurers Act in a without decision that such according understanding ed to their of the binding were not final and un- requirements. statute’s In both cases the til Padilla was decided in 1985. uniform, prevalent, practice if not of insur contrary ers before the decision was I Because conclude not that Padilla was interpretation given to the statute clearly foreshadowed and was therefore a case, court. I believe that in this as in law, I new rule of must next examine the Marinez, we should find that a new rule of second and third factors in described C.A. law was established. analysis K. second factor re- quires weighing of the merits of Padilla Finally, I believe reaction of the Gen- by looking purpose effect Assembly amending eral the Workmen’s retrospective opera- rule decide whether Compensation Act months within two operation. tion will further or retard its abrogate decision to the Padilla deci- supports my sion conclusion that it was not opinion, The effect of the I Padilla majority foreshadowed. The dis- there, my ignores stated in dissent the fact point by stating misses this disputed that settlement of issues of liabili- responsibility determining ty injury the extent of not serves “[t]he granted claimant, whether a purpose rule law will be a useful employ- for the retrospective prospective application er, carrier, is and insurance but also allows an issue for the public courts to resolve.” efficient use resources. Thus, (Rovira, accepted posi- J., even if we dissenting). ... 696 P.2d at 282 expressed tion that the 1985 amendments Furthermore, majority legislative policy as to the retroactive opinion in part relied on the “beneficent Padilla, any legislative effect of such purposes” Compensation of the Workmen’s binding upon determination would not be reaching Act in its conclusion. us. 696 P.2d at 279. pur The “beneficent (quoting At 1228 n. 11 Ground poses” Water providing act include a reli Shanks, Comm’n injured able source of 1983)). workers, stability and the financial injured employees fund from which receive rejection argument miscon- “important” is benefits concern. Mari strues the effect of the 1985 amendments. nez, 746 P.2d at 558-59. These amendments should not be construed pronouncement by aas the General Assem- pointed As majority opinion, out bly is not to retroac- the Director of the Division of Labor and effect; tive is one for the the Industrial Claim Panel as- are, courts to resolve. These amendments applied retroactively sumed that Padilla however, strong indication that the Gen- this case. The issue of Assembly eral did not think the conclusion analyzed until the case reached the majority appeals. Therefore, reached Padilla correct- court of no evidence ly legislative reflected intent and regarding impact was clear- was heard the financial ly contrary, foreshadowed. On the these of retroactive of Padilla on the ERICKSON, providing say I am authorized to “important” concern of reliable J., joins me in this dissent. injured workers. source Accordingly, I case to would remand the Director of the of Labor for Division question decision on on this and a

evidence retroactivity analy-

the second factor

sis. inequity

The final consideration is the

resulting application. The from retroactive

majority question, does not reach this SOUTHEASTERN COLORADO WATER factor, the court of dismisses DISTRICT, CONSERVANCY stating: Complainant-Appellee, concerning is no the ex- evidence [TJhere agreements of kind at tent to which ASSOCIATES, TWIN LAKES INC. and being employed by par- issue here were O’Neill, Respondents-Appellants, Dennis compensation proceed- ties to workmen’s

ings prior nor is there estimate as to the number of claims that Trust, Mining Respondent, Cache Creek retrospective application of Padilla eligible reopening. for In- would make

deed, employer here has failed even Concerning Application for Water provide an of the additional estimate Rights of Dennis and Twin O’Neill application cost to it that the retroactive Associates, Inc. in Lake and Lakes require in this case. of Padilla would Chaffee Counties. evidence, Under this state of the there is simply concluding for no factual basis Dennis and Twin Lakes Associ- O’Neill Inc., ates, Applicants-Appellants. inequity that substantial would result application of from a retroactive Padilla. No. 87SA243. record, therefore, provides no rea- Colorado, Supreme Court ground limiting for that deci- sonable En Banc. applicability. sion’s Bros., March Loffland unfounded App.1988). This conclusion is above, because, pointed out the issue retroactivity of Padilla was not con

sidered the Director the Division or the Industrial Claim Pan

Labor retroactivity time the of Pa

el. first by the court of was considered was

dilla

appeals. Because the any level

was not considered at with function, opportu

fact-finding there was no present regarding any in

nity evidence

equity that caused the retroac would be Therefore, I

tive of Padilla. Director of

would remand the case to the

the Division of Labor evidence inequity caused the retroac application of Padilla.

tive respectfully

Accordingly, I dissent.

Case Details

Case Name: Loffland Bros. Co. v. Industrial Claim Appeals Panel

Court Name: Supreme Court of Colorado

Date Published: Mar 13, 1989

Citation: 770 P.2d 1221

Docket Number: 88SC154

Court Abbreviation: Colo.