v. ICAO

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 27, 2020

2020COA131

No. 19CA1783, SkyWest v. ICAO — Labor and Industry —
Workers’ Compensation — Scope of Employment — Personal
Deviation — Limitation on Payments Due to Use of Controlled
Substances

In this workers’ compensation case, a division of the court of

appeals determines that the Industrial Claim Appeals Office (Panel)

did not err by reversing the decision of an administrative law judge

(ALJ) regarding whether a decedent had returned to the course and

scope of employment from a personal deviation at the time of his

fatal accident. The ALJ found that decedent’s deviation from travel

status had not ended because he was intoxicated and had neither

returned to nor appeared to be en route to his hotel. But the Panel

held, based upon the ALJ’s factual findings, that decedent’s

deviation ended when he attempted to return to a coworker’s hotel.
The division affirms the Panel’s decision ruling the claim

compensable.

The division also determines, as a matter of first impression,

that preservation of a second blood sample is required to limit a

claimant’s benefits due to an injured worker’s intoxication under

section 8-42-112.5, C.R.S. 2019. As relevant, that statute imposes

a 50% reduction in nonmedical benefits if the work-related accident

resulted from the presence in the worker’s system of a blood alcohol

level exceeding 0.10 percent. Because a second sample of

decedent’s blood had not been preserved as mandated by section 8-

42-112.5, the Panel determined that the employer could not take

advantage of the 50% reduction in benefits. The division affirms

this ruling as well.
COLORADO COURT OF APPEALS 2020COA131

Court of Appeals No. 19CA1783
Industrial Claim Appeals Office of the State of Colorado
WC No. 5-079-980

SkyWest Airlines, Inc. and Indemnity Insurance Company of North America,

Petitioners,

v.

Industrial Claim Appeals Office of the State of Colorado, Luis Ordonez Gamez,
Alayan Ordonez, Evan Ordonez, minor child, and Elija Ordonez, minor child,

Respondents.

ORDER AFFIRMED

Division VII
Opinion by JUDGE BROWN
Fox and Rothenberg*, JJ., concur

Announced August 27, 2020

Lee & Brown LLC, Joshua D. Brown, William M. Sterck, Kristi M. Robarge,
Denver, Colorado, for Petitioners SkyWest Airlines, Inc. and Indemnity
Insurance Company of North America

No Appearance for Respondent Industrial Claim Appeals Office

The Sawaya Law Firm, Katherine McClure, Denver, for Respondents Luis
Ordonez Gamez, Alayan Ordonez, Evan Ordonez, and Elija Ordonez

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 In this workers’ compensation case, we must determine

whether the Industrial Claim Appeals Office (Panel) erred by

reversing the decision of an administrative law judge (ALJ)

regarding whether a decedent had returned to the course and scope

of employment from a personal deviation at the time of his fatal

accident. The ALJ found that decedent’s deviation from travel

status had not ended because he was intoxicated and had neither

returned to nor appeared to be en route to his hotel. But the Panel

concluded, based on the ALJ’s factual findings, that decedent’s

deviation ended when he attempted to return to a coworker’s hotel.

We affirm the Panel’s decision ruling the claim compensable.

¶2 We must also determine, as a matter of first impression,

whether preservation of a second blood sample is required to limit a

claimant’s benefits due to an injured worker’s intoxication under

section 8-42-112.5, C.R.S. 2019. As relevant here, that statute

imposes a 50% reduction in nonmedical benefits if the work-related

accident resulted from the presence in the worker’s system of a

blood alcohol level exceeding 0.10 percent. Because a second

sample of decedent’s blood had not been preserved as mandated by

section 8-42-112.5, the Panel determined that the employer could

1
not take advantage of the 50% reduction in benefits. We affirm this

ruling as well.

I. Background

¶3 Decedent, Luis Ordonez-Gamez, worked as a pilot for

employer, SkyWest Airlines, Inc.1 He lived in California with his

wife and two young children. In January and February 2018, he

came to Denver for flight training. While training in Denver,

decedent stayed at the SpringHill Suites, located at the

southwestern intersection of 68th Avenue and Tower Road.

¶4 On February 14, 2018, decedent and his simulator partner,

Baylee Ladner, took the difficult Initial Maneuvers Validation test

from 6 p.m. to 10 p.m. After successfully completing the test,

decedent and Ladner had dinner and “a couple of beers” at a nearby

restaurant to celebrate. From the restaurant, they headed to a

different establishment to continue drinking and celebrating.

¶5 At approximately 2 a.m. on February 15, 2018, decedent and

Ladner stopped drinking alcohol, left the establishment, and

1SkyWest’s insurer, Indemnity Insurance Company of North
America, is aligned with the SkyWest’s interests in this
case. Therefore, we refer to the SkyWest and the insurer collectively
as “SkyWest.”

2
returned to Ladner’s hotel, the Fairfield Inn & Suites, located at the

southwestern corner of 69th Avenue and Tower Road, one block

north of and on the same side of Tower Road as the SpringHill

Suites where decedent was staying. When they arrived at the

Fairfield Inn, decedent approached the night desk attendant and

asked her “to make his room key again because it wasn’t working.”

The desk attendant informed decedent that the logo on his key

referenced the SpringHill Suites and that he “wasn’t at the right

hotel.” The desk attendant observed decedent “moving around a

lot” and surmised he was intoxicated because “[h]e smelled like

alcohol.” After being told his room key would not work there,

decedent proceeded to Ladner’s room in the Fairfield Inn.

¶6 At about 5:30 a.m., decedent returned to the Fairfield Inn’s

front lobby and spoke with the same desk attendant. He again

asked her for a new room key, and she reiterated that his key was

for the SpringHill Suites “about two buildings over” from the

Fairfield Inn. She testified that decedent still seemed inebriated

and was struggling to put a lid on his coffee cup. The desk

attendant turned to assist some other hotel guests and, after those

guests left, she noticed that decedent “was gone.”

3
¶7 A few minutes later, the desk attendant saw police lights

outside. Decedent had left the Fairfield Inn, attempted to cross

from the west side of Tower Road — where the Fairfield Inn, the

SpringHill Suites, and SkyWest’s training facility were located — to

the east side, and had been struck by a vehicle traveling

southbound on Tower Road. Decedent was transported to

University of Colorado Hospital, where he received six units of blood

and then had a blood sample taken which revealed a blood alcohol

content (BAC) of 0.209 g/100ml. The parties stipulated that

medical staff did not preserve a second blood sample. Decedent

died later that morning at the hospital.

¶8 Decedent’s widow, Alayan Ordonez, and children, Evan and

Elija Ordonez (claimants) filed a claim for survivor benefits under

the Workers’ Compensation Act of Colorado (Act), sections 8-42-114

and -115, C.R.S. 2019. The matter proceeded to hearing before the

ALJ in January 2019.

¶9 Based on the evidence, the ALJ found that

 decedent and Ladner “finished drinking” at

approximately 2 a.m. on February 15, 2018;

4
 decedent was intoxicated when he was struck on Tower

Road;

 because decedent was running away from his hotel and

from SkyWest’s training facility when he was struck, he

was not returning to his hotel or to work; and

 no “persuasive evidence” supported claimants’ contention

that decedent was simply confused when he attempted to

cross Tower Road.

Relying on these factual findings, the ALJ concluded that decedent

“was in a personal deviation at the time of the accident due to

hours of consuming alcohol” and had not returned to travel status

within the course and scope of his employment. The ALJ “denied

and dismissed” the claim, finding it noncompensable.

¶ 10 The Panel disagreed. It determined, based on the ALJ’s factual

findings, that “by the time decedent was involved in the collision,

his personal deviation had ended.” It noted that the ALJ found that

decedent had stopped drinking about four hours before the

accident, and that although he had not returned to his hotel room

“he nevertheless had returned to lodging in Ladner’s hotel room.”

The Panel rejected the ALJ’s determination that because of

5
decedent’s “high level of intoxication,” he could not have been

“within the course and scope [of his] . . . position as a commercial

airline pilot.” Citing Wild West Radio, Inc. v. Industrial Claim

Appeals Office, 905 P.2d 6 (Colo. App. 1995), the Panel noted that

intoxication alone does not preclude compensation.

¶ 11 Finally, the Panel ruled that, to the extent the ALJ admitted

toxicology results establishing that decedent’s BAC was 0.209 just

before his death to reduce claimants’ benefits under section 8-42-

112.5, she erred. The Panel observed that, under the express

language of section 8-42-112.5(1), a second blood sample “must be

preserved.” Because a second sample was not preserved, the

toxicology results could not be used to reduce claimants’ benefits

under the statute.

II. Deviation from Travel Status

¶ 12 SkyWest first argues that the Panel was bound by the ALJ’s

factual findings, particularly the ALJ’s determination that

decedent’s personal deviation had not yet ended when the accident

occurred. By reaching a different conclusion, it contends, the Panel

improperly disregarded these findings, reweighed the evidence, and

drew its own inferences from the facts. We disagree.

6
A. General Principles of Compensability

¶ 13 To receive workers’ compensation benefits, an injured worker

must establish, by a preponderance of the evidence, that he has

sustained a compensable injury or death “proximately caused by an

injury . . . arising out of and in the course of the employee’s

employment . . . .” § 8-41-301(1)(c), C.R.S. 2019; see Faulkner v.

Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000).

An injury “arises out of” employment when it has its origin in an

employee’s work-related functions and is sufficiently related to

those functions to be considered part of the employee’s employment

contract. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001).

An injury occurs “in the course of” employment when it takes place

within the time and place limits of the employment relationship and

during an activity connected with the employee’s job-related

functions. Id.

B. Law Governing Travel Status

¶ 14 Injuries occurring while an employee is away from home or

work for a business purpose may arise out of and be within the

course of employment and thus be covered under the Act. As

relevant here, under the “travel status” doctrine, “if the employee’s

7
job duties require travel[,] . . . that travel is considered to be a part

of the job, and any injury occurring during such travel will be

compensable.” Mountain W. Fabricators v. Madden, 958 P.2d 482,

484 (Colo. App. 1997), aff’d, 977 P.2d 861 (Colo. 1999). And “if the

employee is sent away from home for an extended period to attend

upon the employer’s business, the employee will be considered to be

in the course and scope of employment during virtually all of such

period.” Id. (citing Alexander Film Co. v. Indus. Comm’n, 136 Colo.

486, 492-93, 319 P.2d 1074, 1078 (1957), which affirmed an award

to an employee who died after being struck by a motor vehicle as he

crossed the road separating the restaurant where he dined from his

motel). The risks associated with the necessities of eating, sleeping,

and ministering to personal needs away from home are considered

incidental to and within the scope of a traveling employee’s

employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 12 (Colo.

App. 1995); Staff Adm’rs, Inc. v. Indus. Claim Appeals Office, 958

P.2d 509, 511 (Colo. App. 1997), aff’d sub nom. Staff Adm’rs, Inc. v.

Reynolds, 977 P.2d 866 (Colo. 1999).

¶ 15 A traveling employee’s injuries are not compensable, however,

if the injury occurred while the employee was engaged in a

8
“personal deviation.” See Hirst, 905 P.2d at 11 (“An employee

whose work requires travel away from the employer’s premises is

held to be within the course and scope of employment continuously

during the trip, except when the employee makes a distinct

departure on a personal errand.”); Wild W. Radio, 905 P.2d at 8

(“Generally, workers’ compensation coverage of an employee away

from home at the direction of the employer does not extend to

injuries which occur while the employee makes a distinct departure

on a personal errand.”). When considering whether an employee

was engaged in a personal deviation, “the issue is whether the

activity giving rise to the injury constituted a deviation from

employment so substantial as to remove it from the employment

relationship.” Hirst, 905 P.2d at 12. “However, when the

employee’s personal errand is concluded, the deviation ends and

the employee is again covered for workers’ compensation.” Wild W.

Radio, 905 P.2d at 8.

¶ 16 Whether an injured employee was in “travel status” or on a

“personal deviation” at the time of his injury is a question of fact the

ALJ decides. See Staff Adm’rs, Inc., 958 P.2d at 511; Wild W. Radio,

905 P.2d at 8. Although the burden of proof is on the employer to

9
show that the employee made a distinct departure from the scope of

employment while on travel status, the burden of proof is on the

claimant to show a return to the course and scope of employment.

Wild W. Radio, 905 P.2d at 8.

C. Standard of Review

¶ 17 We employ the same standard of review as the Panel.

Compare § 8-43-307(8), C.R.S. 2019, with § 8-43-308, C.R.S. 2019;

see also Miller v. Indus. Claim Appeals Office, 49 P.3d 334, 337

(Colo. App. 2001) (“The Panel and reviewing courts are bound to

apply the substantial evidence test in determining whether the

evidence supports the ALJ’s findings of fact.”); Metro Moving &

Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995) (“[T]he

evidentiary standard of proof applied by the ALJ is not the same as

the standard of review applied by the Panel and reviewing courts in

determining the correctness of the ALJ’s order. By statute, both the

Panel and reviewing courts must apply the substantial evidence test

in determining whether the evidence supports the ALJ’s findings of

fact.”). When an ALJ’s findings of fact are supported by substantial

evidence, we are bound by them, even when the evidence is

conflicting and would have supported a contrary result. See § 8-43-

10
308; Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App.

2001), superseded by statute as recognized by City of Brighton v.

Rodriguez, 2014 CO 7, ¶ 39 n.12. But we may set aside an ALJ’s

decision if, among other things, the “findings of fact do not support

the order” or the order “is not supported by applicable law.” § 8-43-

308. Thus, if the ALJ misconstrued or misapplied the law, we may

set the decision aside. Paint Connection Plus v. Indus. Claim

Appeals Office, 240 P.3d 429, 431 (Colo. App. 2010). And we review

de novo the application of law to undisputed facts. Hire Quest, LLC

v. Indus. Claim Appeals Office, 264 P.3d 632, 635 (Colo. App. 2011).

D. The Panel Properly Reversed the ALJ’s Order Denying Benefits

¶ 18 There appears to be no dispute between the parties that

decedent was in travel status while in Colorado or that he had

engaged in a personal deviation. Rather, the dispute is whether

decedent ended his deviation and returned to travel status before

his fatal accident. The question we must answer is whether the law

mandates an award of benefits based on the facts found by the ALJ.

We conclude that it does.

¶ 19 In Pat’s Power Tongs, Inc. v. Miller, 172 Colo. 541, 474 P.2d

613 (1970), the Colorado Supreme Court upheld the commission’s

11
finding that the claimants sustained compensable injuries. The

claimants were staying overnight in Denver while on a business

trip. They sustained injuries in a motor vehicle accident while

returning to their Denver hotel after a non-work-related dinner with

friends. Id. at 542, 474 P.2d at 614. The commission ruled that

the claimants’ deviation ceased the moment they commenced their

return to their lodging. See id. at 542-43, 474 P.2d at 614. The

supreme court affirmed the commission’s decision because the

claimants “had concluded their personal activities of the evening,

and . . . at the time they sustained their injuries they were

proceeding toward their lodging quarters for the night.” Id. at 543,

474 P.2d at 615 (citing Mohawk Rubber Co. v. Cribbs, 165 Colo.

526, 440 P.2d 785 (1968), which affirmed a commission finding

that the decedent had returned to the scope of employment from a

deviation when he died in a one-car accident heading in the

direction of his home, even though he was intoxicated and it was

unclear from where he was traveling).

¶ 20 The ALJ distinguished this case from Pat’s Power Tongs

because decedent was not “proceeding toward” his “lodging

quarters” when he ran across Tower Road. See id. at 543, 474 P.2d

12
at 615. We are not convinced that this fact is dispositive. True,

decedent was not en route to his hotel and was, undisputedly,

heading away from his hotel at the time of the accident. But, the

ALJ also found, with ample record support, that before the accident

(1) decedent and Ladner had stopped drinking, left the

establishment where they were celebrating, and returned to

Ladner’s hotel; (2) decedent proceeded to Ladner’s room after he

was unable to obtain a room key from the night desk attendant;

and (3) decedent and Ladner did not consume more alcohol or

otherwise continue their celebratory activities upon reaching

Ladner’s room. To the contrary, the uncontroverted evidence

suggests the pair talked for a while and then fell asleep. In other

words, decedent had already returned to “lodging quarters for the

night” (even if it was his colleague’s room). The accident happened

hours later.

¶ 21 We agree with the Panel that, under Pat’s Power Tongs, these

findings mandate an award of benefits to claimants. Although

when a deviation ends is generally a question of fact for the ALJ’s

determination, see Wild W. Radio, 905 P.2d at 8, that determination

must be made within the bounds of existing case law. Applying

13
Pat’s Power Tongs to the facts of this case, we conclude that the

decedent’s deviation ended before his fatal accident.

¶ 22 SkyWest also contends that the ALJ correctly found that

decedent continued in his “personal deviation at the time of the

accident, due to hours of consuming alcohol.” But more than

twenty years ago, a division of this court rejected an employer’s

contention that its employee could not have ended her deviation

and returned to the scope of employment “until she attained

sobriety.” Wild W. Radio, 905 P.2d at 8. The division observed that

“the General Assembly has not evidenced an intent to preclude all

compensation for excessive levels of intoxication.” Id.

¶ 23 Despite multiple subsequent amendments to the Act, the

General Assembly has not incorporated a provision barring an

intoxicated worker from receiving benefits. And we lack authority to

read such a provision into the Act. See Kraus v. Artcraft Sign Co.,

710 P.2d 480, 482 (Colo. 1985) (“We have uniformly held that a

court should not read nonexistent provisions into the . . . Act.”).

¶ 24 We acknowledge that a division of this court held that “in

some circumstances the act of consuming alcohol, by itself, can

constitute a personal deviation sufficient to remove the claimant

14
from the scope of employment.” Pacesetter Corp., 33 P.3d at 1234.

But, notwithstanding the broad statement quoted, Pacesetter Corp.

is distinguishable on its facts because, “[b]ased upon the extent of

claimant’s intoxication and the circumstances of the accident,”

which included the claimant driving ninety miles per hour at the

time of the one-car accident, “the ALJ inferred that claimant

continued to drink after he left the motel.” Id. Based on this

inference, the ALJ determined, and the division agreed, that the

claimant failed to prove he had returned to the scope of his

employment at the time of the accident. Id.

¶ 25 Here, in contrast, the ALJ specifically found that decedent had

“finished drinking at approximately 2:00 a.m.” before returning to

Ladner’s hotel; the ALJ did not find that decedent continued

imbibing after he left Ladner’s hotel room hours later and tried to

cross the street on foot.

¶ 26 We therefore affirm the Panel’s decision reversing the ALJ’s

order denying and dismissing claimants’ claim for benefits.

III. Admissibility of Toxicology Results under Section 8-42-112.5

¶ 27 SkyWest contends that the Panel erred by (1) addressing the

admissibility of decedent’s toxicology results under section 8-42-

15
112.5 even though the ALJ did not address the issue in her final

order; and (2) concluding that an employer may only invoke the

50% intoxication penalty if there is a second blood sample

preserved for review. We disagree.

A. The Panel Had Authority to Address the Issue

¶ 28 We first reject SkyWest’s contention that the Panel lacked

authority to determine the admissibility of the toxicology results

under section 8-42-112.5 because the ALJ did not specifically

address it in her final written order. Before the hearing, a

prehearing ALJ (PALJ) granted claimants’ motion to redact the

toxicology results from the adjuster’s notes, the medical records,

and the medical examiner’s report. The PALJ ruled that a second

blood sample — which the parties stipulated had not been

preserved — was “a prerequisite to reduce compensation under

[section] 8-42-112.5.” With no second sample, the PALJ ruled, the

toxicology results were inadmissible for the purpose of imposing the

50% statutory penalty.

¶ 29 From the bench at the start of the hearing, the ALJ reversed

and struck the PALJ’s evidentiary ruling. Thus, the ALJ ruled on

the evidence’s admissibility, which ruling is subject to review. The

16
ALJ did not address the issue in her later written order because it

was unnecessary for her to do so. Having found the claim

noncompensable, it was irrelevant whether benefits should be

reduced under the statute. In contrast, the Panel determined that

the claim was compensable based on the ALJ’s factual findings. It

therefore properly addressed the admissibility of the toxicology

results to reduce benefits under section 8-42-112.5.

B. The Toxicology Results Were Inadmissible

¶ 30 Turning to the admissibility of the evidence, SkyWest contends

that the toxicology results are admissible for purposes of reducing

benefits under section 8-42-112.5 even if a second blood sample is

unavailable. It argues that if the legislature “intended that

intoxication cannot be proven under any circumstance without a

second blood sample, [it] would have stated that in the statute.”

SkyWest acknowledges that without a second sample it was not

entitled to a presumption of intoxication but contends it could still

establish decedent’s intoxication for purposes of the 50% reduction

17
in benefits with other medical and nonmedical evidence.2 We

disagree.

1. Rules of Statutory Construction and Standard of Review

¶ 31 In analyzing a provision of the Act, “we interpret the statute

according to its plain and ordinary meaning.” Davison v. Indus.

Claim Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004). “[W]e give

effect to every word and render none superfluous because we ‘do

not presume that the legislature used language idly and with no

intent that meaning should be given to its language.’” Lombard v.

Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008)

(quoting Colo. Water Conservation Bd. v. Upper Gunnison River

Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)).

¶ 32 We review statutory construction de novo. Ray v. Indus. Claim

Appeals Office, 124 P.3d 891, 893 (Colo. App. 2005), aff’d, 145 P.3d

661 (Colo. 2006). Although we defer to the Panel’s reasonable

interpretations of the statute it administers, Sanco Indus. v.

Stefanski, 147 P.3d 5, 8 (Colo. 2006), we are “not bound by the

2To be clear, we do not address whether, in the absence of a second
sample, toxicology results nonetheless may be admitted for
purposes other than a 50% reduction in benefits under section 8-
42-112.5, C.R.S. 2019.

18
Panel’s interpretation” or its earlier decisions, United Airlines v.

Indus. Claim Appeals Office, 2013 COA 48, ¶ 7; see also Olivas-Soto

v. Indus. Claim Appeals Office, 143 P.3d 1178, 1180 (Colo. App.

2006). Still, “the Panel’s interpretation will be set aside only if it is

inconsistent with the clear language of the statute or with the

legislative intent.” Support, Inc. v. Indus. Claim Appeals Office, 968

P.2d 174, 175 (Colo. App. 1998).

2. The Panel Properly Interpreted Section 8-42-112.5

¶ 33 Section 8-42-112.5 penalizes workers who are injured while

intoxicated by reducing their benefits by 50% if certain conditions

are met. As relevant, the statute provides as follows:

(1) Nonmedical benefits otherwise payable to
an injured worker are reduced fifty percent
where the injury results from the presence in
the worker’s system, during working hours, of
. . . a blood alcohol level at or above 0.10
percent, or at or above an applicable lower
level as set forth by federal statute or
regulation, as evidenced by a forensic drug or
alcohol test conducted by a medical facility or
laboratory licensed or certified to conduct such
tests. A duplicate sample from any test
conducted must be preserved and made
available to the worker for purposes of a
second test to be conducted at the worker’s
expense. If the test indicates the presence of
such substances or of alcohol at such level, it
is presumed that the employee was intoxicated

19
and that the injury was due to the
intoxication. This presumption may be
overcome by clear and convincing evidence.

§ 8-42-112.5(1).

¶ 34 The PALJ interpreted the statute to require the preservation of

a second sample to admit information about decedent’s BAC for the

purpose of reducing benefits under the statute. The ALJ disagreed,

as her ruling from the bench reflects:

I disagree with [the PALJ] and find that the
presence of a second sample is only required if
the respondents are relying on [a] presumption
of intoxication. And that in that event, a
second test must be made available to the
claimant’s side, and then they’re able to rebut
the presumption by clear and convincing
evidence.

I don’t find that proof of intoxication is
governed generally by this statute, rather a
party can prove intoxication by a
preponderance of the evidence as they could
prove any other issue in any other claim, and
that the second sample is required only if
respondents try to avail themselves of a
presumption of intoxication at a blood alcohol
content level of .10 percent.

So I find the general rule of proving
intoxication is the larger rule, and that this
statute, 8-42-112.5, carves out an exception
when the responding parties are trying to rely
upon the presumption of intoxication. So I will

20
reverse and strike that portion of [the PALJ’s]
order.

¶ 35 SkyWest argues that the ALJ’s interpretation is correct but

admits that neither the supreme court nor any division of this court

has addressed this question. Indeed, we know of no appellate case

which has examined the ramifications of failing to preserve a

second blood sample in a workers’ compensation case. The Panel,

however, has addressed this issue on more than one occasion.

¶ 36 In Stohl v. Blue Mountain Ranch Boys Camp, W.C. No. 4-516-

764, 2005 WL 481322 (Colo. I.C.A.O. Feb. 25, 2005), for example,

the Panel explained that the legislature enacted the second sample

requirement

as a procedural protection against the possible
reduction of benefits from a false positive
result in the first blood sample testing. The
General Assembly determined that given the
magnitude of the evidentiary presumption
created by an initial test result showing 0.10
or greater blood alcohol level, the availability of
a second sample for the claimant to
independently test is a necessary safeguard to
the wrongful loss of benefits. (See
Respondents’ Brief in Support of the Petition to
Review, Exhibit C, House Committee on
Business Affairs & Labor Transcript on Senate
Bill 99-161, pp. 2, 4, 21, 29). Therefore, the
General Assembly conditioned application of
the penalty statute on the availability of a

21
second sample for use by the claimant to
contest the accuracy of the initial test.

Id. at *2 (emphasis added). As a result, the “preservation of a

second sample is a condition precedent to the evidentiary

presumption created by a 0.10 blood alcohol test from the first

sample which in turn is required to assert a penalty under § 8-42-

112.5.” Id.

¶ 37 Consistent with this pronouncement, in cases in which a

second sample was not available, the Panel has refused to reduce

benefits under the statute. See, e.g., Ray v. New World Van Lines,

W. C. No. 4-520-251, 2004 WL 2348543, at *7 (Colo. I.C.A.O. Oct.

12, 2004). The Panel’s interpretation is consistent with the

legislative intent reflected in the plain language of the statute. See

Sanco Indus., 147 P.3d at 8; Support, Inc., 968 P.2d at 175.

¶ 38 When certain conditions are met, section 8-42-112.5 creates a

presumption that a worker’s injury resulted from his intoxication.

The consequence of the presumption is that the injured worker’s

benefits are reduced by 50%. The presumption may only be

overcome by clear and convincing evidence to the contrary.

However, the presumption and the consequential reduction in

22
benefits apply only where (1) “the injury results from the presence

in the worker’s system, during working hours, of . . . a blood alcohol

level at or above 0.10 percent”; (2) the impermissible blood alcohol

level is “evidenced by a forensic drug or alcohol test conducted by a

medical facility or laboratory licensed or certified to conduct such

tests”; and (3) “[a] duplicate sample from any test conducted [is]

preserved and made available to the worker for purposes of a

second test to be conducted at the worker’s expense.” § 8-42-

112.5(1). When all these conditions are met and “the test indicates

the presence of . . . alcohol at such level, it is presumed that the

employee was intoxicated and that the injury was due to the

intoxication.” Id.

¶ 39 The legislature declared that a second sample “must be

preserved and made available to the worker for purposes of a

second test.” Id. SkyWest suggests that this sentence modifies only

the next two sentences which impose a presumption of intoxication

if “the test indicates” a blood alcohol level at or above 0.10 percent.

In other words, SkyWest argues that the absence of a second

sample may prohibit it from relying on a presumption that decedent

was intoxicated, but it does not prevent it from otherwise proving

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that decedent’s injury resulted from his intoxication such that his

benefits must be reduced by 50%. SkyWest’s argument is flawed

for two reasons.

¶ 40 First, we reject SkyWest’s contention that the second sample

requirement affects only the sentences that follow it in the statutory

subsection. On the contrary, the context establishes that the

legislature intended the second sample prerequisite to apply to the

entire statute. See Jefferson Cty. Bd. of Equalization v. Gerganoff,

241 P.3d 932, 935 (Colo. 2010) (“The language at issue must be

read in the context of the statute as a whole and the context of the

entire statutory scheme.”).

¶ 41 The first sentence of the statute authorizes a reduction in

benefits only when a “test conducted by a medical facility or

laboratory licensed or certified to conduct such tests” reflects a

blood alcohol level at or above 0.10 percent. § 8-42-112.5(1). The

very next sentence mandates that “[a] duplicate sample from any

test conducted must be preserved and made available to the worker

for purposes of a second test to be conducted at the worker’s

expense.” Id. (emphasis added). Thus, the plain language makes

clear that the duplicate sample “from any test conducted” refers to

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the “test conducted by a medical facility or laboratory,” which is

required by the first sentence to invoke the penalty in the first

instance. See id. The last two sentences of the subsection do not

refer to the second sample; rather, they refer to “the test” and the

presumption that flows from a test result showing an impermissible

level of alcohol in the worker’s system. Indeed, the statute does not

require that a second test be conducted on the second sample, or

that two separate test results be admitted, to invoke the

intoxication penalty.

¶ 42 Second, and more importantly, the presumption and the

penalty cannot be separated. When all conditions are met, the

statute creates a presumption that the worker’s injury resulted

from his intoxication and that his benefits must be reduced by 50%.

The worker can overcome that presumption by clear and convincing

evidence that something other than his intoxication caused the

injury. But the statute does not contemplate any other means for

an employer to secure a 50% reduction in benefits because of a

worker’s intoxication other than through the articulated

presumption (which requires proof of an impermissible level of

alcohol evidenced by a blood alcohol test conducted by a qualified

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medical facility or laboratory, which in turn requires a second

sample be preserved to ensure the test result is accurate). In other

words, the statute does not authorize a 50% reduction in benefits if

the employer is able to prove, by some means other than the

presumption, that the worker’s injury resulted from his

intoxication.

¶ 43 The Panel’s interpretation is entitled to deference. The Panel

considered the mandate for a second sample an independent

prerequisite to be satisfied before toxicology results could be

admitted to justify a 50% penalty against claimants’ benefits.

Because this interpretation is consistent with the statutory

language, we decline to set it aside. See Sanco Indus., 147 P.3d at

8; Support, Inc., 968 P.2d at 175.

¶ 44 We agree with the Panel that because a second sample was

not preserved, decedent’s toxicology results could not be admitted

for the purpose of imposing a 50% reduction in claimants’ benefits

under section 8-42-112.5.

IV. Conclusion

¶ 45 The Panel’s order is affirmed.

JUDGE FOX and JUDGE ROTHENBERG concur.

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