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 January 18, 2024
2024COA8
No. 22CA2120, Wolven v. del Rosario Velez — Torts — Personal Injury; Creditors and Debtors — Health-care Provider Liens — Assignment — Not Admissible as Evidence
In this personal injury action, the defendant appeals the trial
court’s decision to exclude evidence of the plaintiff’s health-care
provider lien from trial per section 38-27.5-103(2), C.R.S. 2023,
arguing that because the lien was amended to comply with the
statute shortly before trial, it did not meet the statutory
requirements. A division of the court of appeals concludes, as a
matter of first impression, that so long as a health-care provider
lien agreement conforms with the statute when it is created or
amended, it must be excluded from trial per section 38-27.5-103(2).
The division also holds that the trial court’s admission of the
plaintiff’s expert testimony concerning an “impairment rating,” as calculated using the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (5th ed. 2001), was proper, and
it agrees with another division of this court’s decision to admit such
evidence in Herrera v. Lerma, 2018 COA 141. The division also
holds that the trial court properly denied defendant’s request for a
limiting instruction informing the jury how impairment ratings
differ in personal injury and worker’s compensation cases.
Therefore, it affirms. COLORADO COURT OF APPEALS 2024COA8
Court of Appeals No. 22CA2120 Jefferson County District Court No. 21CV30399 Honorable Russell Klein, Judge
Cory Wolven,
Plaintiff-Appellee,
v.
Jeanmadi del Rosario Velez,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Schutz and Berger*, JJ., concur
Announced January 18, 2024
Cheney Galluzzi & Howard, LLC, Timothy C. Galluzzi, Kevin B. Cheney, Denver, Colorado, for Plaintiff-Appellee
Baker & Hostetler LLP, Casie D. Collignon, Keeley O. Cronin, Matthew T. Schock, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023. ¶1 Defendant, Jeanmadi del Rosario Velez, appeals the trial
court’s order of judgment and jury verdict against her and in favor
of plaintiff, Cory Wolven, awarding Wolven $1,953,443.00 in
damages. We affirm and remand with directions.
I. Background
¶2 On September 26, 2019, Velez failed to stop at a stop sign in
Wheat Ridge, Colorado, and collided with Wolven’s vehicle. After
the accident, Wolven was diagnosed with several long-term spinal
and neck injuries that she attributes to the crash. Wolven sued
Velez for these injuries on April 8, 2021, and a jury found in
Wolven’s favor on October 13, 2022.
¶3 The jury awarded Wolven $450,264.00 for noneconomic and
injury losses, $500,000.00 for economic losses, and $1,003,179.00
for physical impairments, for a total award of $1,953,443.00.1
1 The trial court totaled the jury verdict as $1,954,443.00, but by
our calculation the jury’s verdict totals $1,953,443.00. Wolven also mistakenly stated that the jury verdict was for $1,945,443.00 in her October 18, 2022, “Motion to Tax Interest and Enter Judgment,” a figure the trial court then mistakenly used in its order granting the motion. We note below that this issue needs to be corrected on remand.
1 Velez now challenges the jury’s verdict and the trial court’s order
entering judgment against her.
¶4 On appeal, Velez raises three issues for review. First, Velez
contends that the trial court erred when it allowed Wolven’s expert
to testify about Wolven’s 8% “whole person permanent impairment
rating,” calculated using the American Medical Association (AMA)
Guides to the Evaluation of Permanent Impairment (5th ed. 2001)
(AMA Guides). Velez contends that the AMA Guides’ use is
improper here because section 8-42-107(8)(b.5)(I)(A), (b.5)(II), C.R.S.
2023, requires the third edition of the AMA Guides to be used in
Colorado workers’ compensation cases, and that the AMA Guides
are irrelevant and therefore inadmissible in cases outside the
worker’s compensation context.
¶5 Second, Velez contends that the trial court should have issued
a limiting instruction informing the jury how impairment ratings
are calculated, or about their use in workers’ compensation cases,
and that without such an instruction the jury could not reliably
calculate Wolven’s damages.
¶6 Third, Velez contends that the trial court erred by retroactively
applying section 38-27.5-103(2), C.R.S. 2023, to exclude evidence of
2 Wolven’s health-care provider lien from trial, despite the lien’s
pretrial amendment to conform with the statute.
¶7 We reject these contentions, remand for correction of the
judgment amount consistent with this opinion, and otherwise
affirm.
II. Preservation
¶8 “[I]ssues not raised in or decided by a lower court will not be
addressed for the first time on appeal.” Melat, Pressman & Higbie,
L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18. To preserve an
issue for appeal, an appellant, during trial, must raise it in a
manner specific enough that it “draws the [trial] court’s attention to
the asserted error.” People v. McFee, 2016 COA 97, ¶ 31. Velez’s
first two contentions were preserved by specific objections, and the
third by a pretrial motion.
III. Standard of Review
¶9 We review a trial court’s decision to admit or exclude evidence
for an abuse of discretion. Hall v. Frankel, 190 P.3d 852, 858 (Colo.
App. 2008). We will only overturn the judgment of the trial court as
an abuse of its discretion if the decision was “manifestly arbitrary,
unreasonable, or unfair.” Id.; see also People v. Destro, 215 P.3d
3 1147, 1152 (Colo. App. 2008) (“A trial court has broad discretion to
determine the admissibility of expert testimony pursuant to CRE
702, and we will not overturn its ruling absent an abuse of that
discretion.”). “Whether the court misapplied the law in making
evidentiary rulings is reviewed de novo.” Bd. of Cnty. Comm’rs v.
DPG Farms, LLC, 2017 COA 83, ¶ 34.
¶ 10 We also review de novo whether a trial court’s jury
instructions correctly informed the jury of the law. Day v. Johnson,
255 P.3d 1064, 1067 (Colo. 2011). If the trial court’s instructions
were an accurate statement of the law, “we review a trial court’s
decision to give a particular jury instruction for an abuse of
discretion.” Id. “[A] trial court has broad discretion to determine
the form and style of jury instructions.” Id. Thus, a trial court only
abuses its discretion when deciding whether to provide a particular
jury instruction when the ruling is “manifestly arbitrary,
unreasonable, or unfair.” Id.
4 IV. Analysis
A. The Trial Court Properly Admitted the Impairment Rating Evidence Based on the AMA Guides
¶ 11 Velez’s first argument is that the trial court erred by admitting
Wolven’s expert’s testimony concerning Wolven’s “whole person
permanent impairment” rating, derived from the AMA Guides,
because the AMA Guides’ impairment ratings are only relevant in
the workers’ compensation context. To this end, Velez asks that we
decline to follow another division of this court’s holding on this
issue in Herrera v. Lerma, 2018 COA 141. Because we find the
reasoning in Herrera persuasive, we reject Velez’s contention.
1. Relevant Facts
¶ 12 After he was admitted as an expert in “physical medicine and
rehabilitation,” Dr. Lee Moorer testified about the AMA Guides’
impairment rating for Wolven. Because Wolven hired him to
conduct an independent medical evaluation, Dr. Moorer testified
extensively about the examinations he performed. This included,
for example, reviewing Wolven’s medical history and her medical
imaging results, assessing her neck’s possible range of motion,
assessing Wolven for damaged spinal ligaments and conducting
5 orthopedic ligament testing, and verifying that Wolven was not
“faking” her injuries.
¶ 13 Dr. Moorer’s examinations led him to conclude that Wolven
had suffered various injuries, including a torn alar ligament, spinal
disc bulges and herniations, and cervical facet injuries. Dr.
Moorer’s diagnosis was for “cervical instability,” damage to cervical
ligaments, and “cervicogenic headaches.” He also concluded that
Wolven would suffer a “permanent impairment” and would not
return to her “pre-crash health status.”
¶ 14 When Wolven’s counsel asked whether there were
“standardized guidelines” for measuring permanent impairment, Dr.
Moorer then provided testimony on the AMA Guides’ impairment
ratings, over Velez’s objection. Dr. Moorer testified that the AMA
Guides are released by the AMA and routinely updated, and that he
used the fifth edition of the AMA Guides to conclude that Wolven
had an 8% “whole person permanent impairment,” based on her
“pain and loss of range of motion.”
¶ 15 On cross-examination, Velez’s counsel inquired about the
impairment rating and how it was calculated. This included asking
Dr. Moorer to explain that the AMA Guides are typically used in
6 workers’ compensation cases, which are administrative
proceedings. Velez’s counsel then discussed at length Dr. Moorer’s
examinations, the medical imaging he reviewed, and his
expectations for Wolven’s future care. Velez’s counsel also asked if
most doctors use the third edition of the AMA Guides in workers’
compensation cases, and Dr. Moorer said that, at least when he
was doing workers’ compensation cases, he believed this was
correct.
¶ 16 On redirect, in response to cross-examination about the AMA
Guides’ use in workers’ compensation cases, Wolven’s counsel
asked Dr. Moorer to read an excerpt of text to the jury. The excerpt
included an explanation by the AMA that the AMA Guides were
intended to be used as a tool for medical practitioners to “rate
impairment to assist adjudicators and others in determining the
financial compensation” awarded to injured individuals and that
they have applications in contexts outside of workers’
compensation, like personal injury cases.
¶ 17 The AMA Guides were later discussed during cross-
examination of Velez’s expert witness, Dr. Gretchen Brunworth.
Wolven’s counsel revisited Dr. Brunworth’s testimony that she
7 believed Wolven had a “good range of motion in her cervical spine,”
by probing the basis of this conclusion. Dr. Brunworth confirmed
that she had “eyeballed” Wolven’s possible range of motion and
could do so because of her professional experience, but she had not
used a specific tool (such as an “inclinometer”) to reach this
conclusion.
¶ 18 Wolven’s counsel then asked if she was aware that the AMA
Guides prefer inclinometers for range of motion testing because it
can be difficult to assign standardized values for a person’s
impairment. Dr. Brunworth responded that this was true, but she
was unsure how helpful the AMA Guides would be outside of
workers’ compensation cases. Dr. Brunworth later agreed with Dr.
Moorer’s prior testimony that, under the AMA Guides, Wolven had
an 8% permanent impairment rating.2
¶ 19 On redirect, Velez’s counsel also questioned Dr. Brunworth to
clarify that an impairment rating is used to derive a figure for
2 Wolven’s counsel asked Dr. Brunworth if she agreed that the 8%
impairment rating from the sixth edition of the AMA Guides was accurate, while Dr. Moorer testified that he used the fifth edition.
8 settlements in workers’ compensation cases, which do not include
compensation for pain and suffering.
2. Analysis
¶ 20 Herrera v. Lerma dealt with a very similar issue to the
contention in this case. 2018 COA 141. There, the plaintiff’s
vehicle was struck from behind, causing the plaintiff neck and back
pain, so the plaintiff filed a personal injury lawsuit. Id. at ¶¶ 2-4.
The plaintiff’s expert witness determined that the plaintiff had a
“permanent whole person impairment rating of 15%” based on the
fifth edition of the AMA Guides. Id. at ¶¶ 15-16.
¶ 21 The defense, much like in this case, argued the evidence
should have been excluded because impairment ratings are
irrelevant outside of workers’ compensation cases. Id. at ¶ 18. The
argument was grounded in the fact that, by statute, in workers’
compensation cases, treating physicians must base their physical
impairment ratings on testing required by the revised third edition
of the AMA Guides. § 8-42-107(8)(b.5)(I)(A), (b.5)(II); Am. Med.
Ass’n, Guides to the Evaluation of Permanent Impairment (3d ed.
1988).
9 ¶ 22 The Herrera trial court excluded the exact percentage of the
rating, fearing it might be irrelevant and overly prejudicial, but it
allowed the expert to testify that the plaintiff “had suffered
permanent impairment according to the AMA Guides.” Herrera,
¶ 16. On appeal, a division of this court held that, “[s]imply
because the workers’ compensation statute requires using the AMA
Guides in determining a workers’ compensation claimant’s medical
impairment rating doesn’t mean it necessarily excludes using an
impairment rating in other types of personal injury claims.” Id. at
¶ 18.
¶ 23 The division held that the expert’s testimony was relevant
because it “would’ve helped make the existence of plaintiff’s claim of
permanent medical impairment more probable by showing that a
physician using the objective AMA guidelines had concluded not
only that plaintiff was permanently impaired, but that the
impairment could be quantified into a scientifically determined
percentage.” Id. at ¶ 19. Put simply, because the evidence could
have given the jury a “a concrete percentage on which it could base
its verdict,” the evidence was relevant, and the division could not
discern how the evidence was irrelevant. Id. at ¶¶ 19-20.
10 ¶ 24 Furthermore, the Herrera division held that the evidence
would not have been overly prejudicial, in violation of CRE 403,
because the expert had testified about the purpose of the AMA
Guides, how the rating was determined, and which version of the
AMA Guides the expert used. Id. at ¶ 22. Additionally, the division
concluded that the use of the AMA Guides in workers’
compensation cases had “no bearing” on their use elsewhere and
that explaining — rather than introducing confusion about — how
the rating is calculated would only help the jury. Id. at ¶¶ 23-24.
As a result, the division found that the trial court had abused its
discretion by excluding the permanent impairment rating
percentage. Id. at ¶ 25.
¶ 25 We find the reasoning in Herrera persuasive and hold that the
impairment rating evidence based on the AMA Guides at issue here,
admitted through an expert, was relevant and not unfairly
prejudicial. CRE 403; see also Sovde v. Scott, 2017 COA 90, ¶ 24
(“Trial courts have broad discretion to admit or to exclude expert
testimony . . . .”). Further, while section 8-42-107(8)(b.5) does
require the use of the AMA Guides in workers’ compensation cases,
it does not prohibit the admission of AMA Guides evidence in cases
11 not involving workers’ compensation, nor does any other Colorado
statute.
¶ 26 The relevancy of the AMA Guides’ impairment rating is the
same here as it was in Herrera — the AMA Guides can provide a
jury with a standardized rating for an injured individual’s
impairment, as determined by a medical professional. Herrera,
¶ 19. Thus, the AMA Guides can provide additional concrete
information that may aid the jury’s factfinding, and we perceive no
reason why they might be irrelevant simply because a version of the
AMA Guides is used in workers’ compensation cases in Colorado.
¶ 27 This is particularly true where any disagreement about the
AMA Guides’ value, or an impairment calculation, can be contested
through direct and cross-examination, as well as additional expert
witnesses, to mitigate risks of prejudice. See Ross v. Colo. Nat’l
Bank of Denver, 170 Colo. 436, 446, 463 P.2d 882, 887 (1969) (“It is
fundamental that once a witness testifies as an expert, he subjects
himself to the most rigid kind of cross-examination, including
searching questions concerning his qualifications, the extent of his
knowledge, and the basis of his opinion.”). A jury is free to decide
for itself what weight to give an expert’s testimony. See Murray v.
12 Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 23. Indeed, the
court explicitly instructed the jury that it could accept or reject any
expert testimony.
¶ 28 Additionally, much like in Herrera, the jury here was
presented with multiple pieces of testimony that highlighted the
probative value of the AMA Guides evidence and provided context
for the impairment rating. This included what the AMA Guides are
and who creates them, their use in workers’ compensation cases,
and which version Wolven’s expert used. Furthermore, the jury
heard extensive direct and cross-examination testimony about the
medical examinations and imaging that informed Wolven’s expert’s
diagnoses and impairment rating decision, and his expert opinions.
¶ 29 The jury also learned how the AMA intended for the AMA
Guides to be used and their potential applicability to fields other
than workers’ compensation. Furthermore, Velez’s expert witness
also testified on cross-examination whether she thought the AMA
Guides might apply to issues outside of workers’ compensation.
And, had Velez wished, her counsel could have cross-examined
Wolven’s expert witness on the subject further. Or she could have
asked her own expert witness about the AMA Guides to further
13 highlight disagreements over their use. But she largely failed to do
so.
¶ 30 As a result, we find that the expert testimony concerning the
AMA Guides’ impairment rating at issue was relevant and its
probative value outweighed its risk of unfair prejudice, in
accordance with Herrera’s persuasive reasoning. See Herrera,
¶¶ 19-24; CRE 403. And the trial court did not abuse its discretion
by relying on binding precedent to admit the evidence. See Hall,
190 P.3d at 858; Scott, ¶ 24; C.A.R. 35(e) (Court of appeals
“[o]pinions designated for official publication must be followed as
precedent by all lower court judges in the state of Colorado.”).
B. The Trial Court Properly Refused Velez’s Proposed Jury Instruction
¶ 31 Velez next contends that the trial court erred by declining to
provide a limiting instruction “on how impairment ratings work —
specifically, how and why they are different in workers’
compensation cases than they would be in personal injury cases.”
We disagree.
14 1. Relevant Facts
¶ 32 Velez never proffered a specific jury instruction to the trial
court detailing a proposed limiting instruction for the impairment
rating evidence from the AMA Guides. But, at trial, Velez’s counsel
noted for the court that “the physical impairment in a civil case is
not the same thing as a physical impairment in a workers’
compensation case.”
¶ 33 Thus, Velez’s counsel requested that the trial court explain in
a jury instruction that the trial court had taken judicial notice of
this, and that workers’ compensation cases “do not have a category
for noneconomic damages.”3 The fear, Velez’s counsel reasoned,
was that because workers’ compensation cases do not award
noneconomic pain and suffering damages, the jury would be
confused by the mention of pain and suffering damages in the same
instruction as physical impairment damages. Velez’s counsel also
requested that the trial court include a definition of “physical
3 “The [Workers’ Compensation] Act does not provide for
compensation for non-economic damages, such as pain and suffering.” Reliance Ins. Co. v. Blackford, 100 P.3d 578, 580 (Colo. App. 2004).
15 impairment,” but dropped this contention during trial. The trial
court denied both requests.
¶ 34 The accepted jury instructions did not define physical
impairment and the damages instruction was modeled on Colorado
Pattern Civil Jury Instruction 6:1, CJI-Civ. 6:1 (2023). It detailed:
Plaintiff, Cory Wolven, has the burden of proving, by a preponderance of the evidence, the nature and extent of her damages. If you find in favor of the plaintiff, you must determine the total dollar amount of plaintiff’s damages, if any, that were caused by the negligence of the defendant.
In determining such damages, you shall consider the following:
1. Any noneconomic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: physical and mental pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. In considering damages in this category, you shall not include actual damages for physical impairment, since these damages, if any, are to be included in a separate category.
2. Any economic losses or injuries which plaintiff has had to the present time, including: reasonable and necessary medical treatment expenses.
3. Any physical impairment. In considering damages in this category, you shall not include damages again for losses or injuries already
16 determined under either numbered paragraph 1 or 2 above.
¶ 35 “As long as the instruction properly informs the jury of the
law, a trial court has broad discretion to determine the form and
style of jury instructions.” Day, 255 P.3d at 1067.
¶ 36 In regard to defining physical impairment, note 9 to CJI-Civ.
6:1 explicitly states that “[t]he terms ‘physical impairment’ and
‘disfigurement’ are not expressly defined in section 13-21-102.5[,
C.R.S. 2023,] or in any appellate decision.” By our review, this
remains true. Indeed, the Colorado Supreme Court chose not to
provide a definition for “physical impairment” even when discussing
the term at length, albeit without making a point that this was a
conscious decision. See Pringle v. Valdez, 171 P.3d 624, 631 (Colo.
2007) (holding that physical impairment and disfigurement are a
separate category of damages from noneconomic damages, though
never defining physical impairment with any greater specificity);
Preston v. Dupont, 35 P.3d 433, 441 (Colo. 2001) (stating that
“[p]hysical impairment and disfigurement are often the most serious
17 and damaging consequences of a defendant’s negligence or
misconduct,” without defining the terms further).
¶ 37 Thus, the trial court did not inaccurately inform the jury of the
law by refusing to include an instruction defining physical
impairment, particularly given trial courts’ broad discretion
concerning jury instructions. See Day, 255 P.3d at 1067. And it
certainly did not abuse its discretion by refusing to define the terms
when our supreme court and legislature have declined to do so as
well. See id.
¶ 38 As for whether the trial court should have provided a limiting
instruction to the jury detailing how the AMA Guides calculate
impairment ratings, there is no CJI-Civ. instruction available that
could have informed the trial court on this issue, nor, again, did
Velez propose one of her own. Furthermore, we have identified no
authority that indicates the trial court needed to provide such an
instruction. To the contrary:
Despite a trial court’s discretion as to jury instructions’ form and style, we disfavor instructions emphasizing specific evidence. We have stated a trial court “has no duty to select all the salient points in the evidence, favorable and unfavorable, and specifically call them to the attention of the jurors,” because
18 such pointed instructions tend to confuse the jury and result in incorrect directives regarding evidentiary weight.
Krueger v. Ary, 205 P.3d 1150, 1157 (Colo. 2009) (quoting Lowe v.
People, 76 Colo. 603, 615, 234 P. 169, 174 (1925)).
¶ 39 Velez’s requested limiting instruction, to the degree we can
infer its contents, would likely have been the kind of instruction
that could improperly bring a jury’s attention to an evidentiary
issue and cause unnecessary confusion.
¶ 40 Velez’s main point on this issue, that workers’ compensation
cases do not allow noneconomic damages like pain and suffering,
was discussed only briefly during trial — particularly compared to
the direct and cross-examination testimony addressing how the
AMA Guides work and their use by Wolven’s expert, as discussed
above. Velez brought the damages contention up briefly with her
own expert witness, Dr. Brunworth, but only asked a single
question on the subject, and the jury declined to ask any questions.
And the point was briefly elaborated on during Velez’s closing
19 argument, highlighting how workers’ compensation cases utilize
impairment ratings differently.4
¶ 41 For the trial court to then issue a separate limiting instruction
detailing that the jury must consider that workers’ compensation
cases treat physical impairment damages differently than personal
injury cases do — invoking a wholly different field of law not before
the jury — would be irrelevant at best, and confusing at worst.
And, importantly, such an instruction could improperly direct
jurors to give more, or less, weight to the AMA Guides impairment
evidence introduced at trial. See Krueger, 205 P.3d at 1157. Had
Velez wished to further highlight her disagreements with the AMA
Guides evidence, the proper way to address this would have been
4 The main contention Velez raises on this point is that in workers’
compensation cases, a claimant needs to be at “maximum medical improvement” (MMI) before their permanent disability and a settlement can be determined. MGM Supply Co. v. Indus. Claim Appeals Off., 62 P.3d 1001, 1005 (Colo. App. 2002) (“MMI is . . . when any medically determinable physical or medical impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. . . . Evaluation for permanent disability cannot precede the determination that the claimant has reached MMI.”). Thus, Velez argues that a permanent impairment rating cannot be reliably calculated for Wolven where her MMI was not determined.
20 through direct and cross-examination and closing argument, rather
than a jury instruction.
¶ 42 Finally, precedent explicitly dictates that physical impairment
damages are a separate category of damages from noneconomic
ones — as expressed in the final accepted instructions. In Preston,
for example, the Colorado Supreme Court noted that, “[b]ecause
damages for these injuries are often the most important in making
the plaintiff whole, a separate category of damages for physical
impairment and disfigurement is necessary and important.” 35
P.3d at 441; see Pringle, 171 P.3d at 631 (“Our analysis of the
common law and principles underlying our discussion in Preston
that physical impairment and disfigurement constitute a separate
category of damages from noneconomic damages stands.”).
¶ 43 The trial court did not inaccurately convey the law to the jury
by refusing Velez’s requested limiting instruction — indeed it likely
avoided improperly confusing the jury and conformed with
precedent’s demand that physical impairment damages be a
separate damages category. See Krueger, 205 P.3d at 1157; Pringle,
171 P.3d at 631. Further, particularly given trial courts’ broad
discretion to determine the form and style of jury instructions,
21 along with the fact that the trial court’s accepted instruction
matched CJI-Civ. 6:1, the trial court did not abuse its discretion.
See Day, 255 P.3d at 1067.
C. The Trial Court Properly Excluded Evidence of Wolven’s Health-Care Provider Lien
¶ 44 Velez lastly contends that the trial court erred when it
excluded evidence of Wolven’s health-care provider lien from trial
per section 38-27.5-103(2). We disagree.
¶ 45 After Wolven’s car crash, she financed some of her medical
care provided by the Centento-Schultz Clinic through a health-care
provider lien with a company called Quantum Specialist Network
(QSN). Wolven granted QSN a lien on any favorable judgments or
settlements Wolven received in exchange for payment of her medical
expenses. It is unclear from the record before us exactly when the
original lien agreement between Wolven and QSN was finalized, but
Wolven began receiving treatment from the Centento-Schultz Clinic,
apparently billed to QSN, in March 2021.
¶ 46 On October 5, 2022, five days before Wolven’s October 10 trial
began, QSN and Wolven amended the lien agreement. The change
22 may have been made after QSN realized that it needed to amend the
agreement to satisfy the disclosure requirements in section 38-
27.5-104(1)(a)-(g), C.R.S. 2023, and to conform with the liability
requirements of section 38-27.5-105(4), C.R.S. 2023.5
¶ 47 Colorado’s “collateral source rule” originated in common law
but is now codified in statute. Ronquillo v. EcoClean Home Servs.,
Inc., 2021 CO 82, ¶ 13; § 13-21-111.6, C.R.S. 2023; § 10-1-
135(10)(a), C.R.S. 2023. The rule seeks to ensure that a tortfeasor
cannot attempt to reduce an injured party’s damages at trial by
using benefits the injured party receives from sources wholly
independent of a tortfeasor (i.e., collateral source benefits) to
remedy the tortfeasor’s harms against the injured party. Ronquillo,
¶ 13.
¶ 48 The “pre-verdict evidentiary” component of the rule, as
relevant here and codified at section 10-1-135(10)(a), achieves this
5 H.B. 21-1300, which enacted sections 38-27.5-101 to -108, went
into effect on September 7, 2021. See Ch. 473, secs. 1-2, §§ 38- 27.5-101 to -108, 2021 Colo. Sess. Laws 3388-94 (bill went into effect ninety days after adjournment of the 2021 legislative session on June 8, 2021).
23 aim by requiring trial courts to exclude evidence of collateral source
benefits from trial. Ronquillo, ¶¶ 14, 18 (“By excluding collateral
source information entirely, the rule ensures that tortfeasors will
not escape liability simply because the injured party had the
foresight to obtain a benefits provider to offset the risk of
unexpected medical expenses.”).
¶ 49 In 2021, the Colorado legislature enacted sections 38-27.5-
101 to -108, C.R.S. 2023, creating new rules for health-care
provider liens. See Ch. 473, secs. 1, §§ 38-27.5-101 to -108, 2021
Colo. Sess. Laws 3388-94. Specifically, per section 38-27.5-103(2),
all evidence related to the “amount paid by an assignee,” “fact of the
assignment,” or “terms” of health-care provider liens created under
section 38-27.5-103(1) are excluded from discovery and trial, akin
to section 10-1-135(10)(a)’s exclusion of collateral source benefits, if
a health-care provider or its assignee provides certain disclosures
per section 38-27.5-104(1) before the lien is created and complies
with section 38-27.5-105(4). Health-care provider liens that comply
with the requirements of sections 38-27.5-104(1) and -105(4)
“necessarily provide a benefit” to an injured party, akin to collateral
24 source benefits, and therefore are excludable from trial per section
38-27.5-103(2). Ronquillo, ¶ 33.
¶ 50 Here, the questions are not whether the amended QSN lien
meets the requirements of section 38-27.5-105(4) and whether QSN
provided the proper disclosures per section 38-27.5-104(1).
Instead, the question is whether the amended QSN lien qualifies for
the protections afforded by section 38-27.5-103(2) — despite being
amended to comply with sections 38-27.5-104(1) and -105(4) just
five days ahead of trial.
¶ 51 The trial court excluded the amended QSN lien agreement
from trial, denying Velez’s pretrial motion, because it found that
section 38-27.5-103(2) effectively created a prospective rule of
admissibility, and that the amended lien agreement met the
statutory criteria. Thus, while the trial court had “some concerns”
about the lien’s last-minute amendment, because the amended lien
complied with the requirements of sections 38-27.5-104(1)
and -105(4), it was inadmissible at trial.
¶ 52 Velez contends that the trial court erred by granting the
statutory protections of section 38-27.5-103(2) because when the
original lien agreement was formed, it did not conform to the
25 disclosure requirements of section 38-27.5-104(1). Thus, Velez
says, the trial court should not have, in effect, retroactively applied
section 38-27.5-103(2). Wolven, in turn, contends that the
amended lien complied with the requirements of sections 38-27.5-
104(1) and -105(4) before it was created. Thus, even if created so
close to trial, it was inadmissible at trial per section 38-27.5-103(2).
We agree with Wolven and the trial court, and conclude that the
application of section 38-27.5-103(2)’s protections did not require a
retroactive application of the statute, and that evidence of the
amended QSN lien was properly excluded.
¶ 53 Whether the amended QSN lien agreement was properly
excluded at trial depends on whether it met the requirements of
sections 38-27.5-104(1) and -105(4), and was therefore excludable
under section 38-27.5-103(2). See Ronquillo, ¶ 33. The original lien
agreement is irrelevant because it was superseded by the amended
lien. The amended lien agreement explicitly detailed that it covered
any unpaid services Wolven had received from QSN providers and
any judgment or settlement arising from Wolven’s September 26,
26 2019, crash.6 See Phx. Power Partners, L.P. v. Colo. Pub. Utils
Comm’n, 952 P.2d 359, 364 (Colo. 1998) (novation, and
extinguishing an old contract and substituting a new one, need not
be explicit and “may be inferred from facts and circumstances” if
there was a previous valid contract and agreement to abide by a
new valid contract that extinguished the old agreement).
¶ 54 The plain language of section 38-27.5-104(1) supports this
interpretation and is the only section in article 27.5 that provides
any, albeit limited, guidance on timing requirements for the
6 Even if the amended lien agreement was not explicit about taking
over any payments Wolven still owed for care resulting from the crash, the inherent inconsistency between two lien agreements covering judgments arising out of litigation for the same injury, with presumably contrasting repayment terms, would cause the amended lien agreement to implicitly supersede the original agreement. See In re Estate of Gadash, 2017 COA 54, ¶ 47 n.6 (“In order for a subsequent contract to implicitly supersede an earlier one, the two agreements must cover the same subject matter and be inconsistent with one another.”). That said, however, the record before us only provides the amended agreement and the disclosures associated with it to demonstrate it conforms to sections 38-27.5- 104(1) and -105(4), C.R.S. 2023, and we do not have the original agreement in the record before us to compare the agreements’ terms. See Schuster v. Zwicker, 659 P.2d 687, 690 (Colo. 1983) (“It is the obligation of the party asserting error in a judgment to present a record that discloses that error, for a judgment is presumed to be correct until the contrary affirmatively appears.”); LePage v. People, 2014 CO 13, ¶¶ 15-16.
27 creation of health-care provider liens. Section 38-27.5-104(1) notes
that the required disclosures must be provided “[b]efore a health-
care provider lien is created” for it to be compliant and entitled to
section 38-27.5-103(2)’s protections. But this occurred here —
before the amended QSN lien agreement was created, QSR gave
Wolven the disclosures required by section 38-27.5-104(1). Thus,
because the amended QSN lien complied with sections 38-27.5-
104(1) and -105(4), it was excludable from trial per section 38-27.5-
103(2). See Ronquillo, ¶ 33.
¶ 55 As a result, the trial court properly excluded evidence of the
amended lien agreement from trial in accordance with section 38-
27.5-103(2). We perceive no error, on de novo review, in the trial
court’s adherence to the plain language of the statute. See DPG
Farms, ¶ 34.
¶ 56 We, however, share the trial court’s concerns surrounding the
last-minute amendment of the QSN lien agreement ahead of trial.
Because section 38-27.5-104(1) and -105(4) compliant health-care
provider liens are required to be excluded from trial and discovery
per section 38-27.5-103(2), such last-minute changes could lead to
gamesmanship. In affirming the trial court’s decision to exclude
28 evidence of the amended QSN lien at trial, as required by statute,
we in no way endorse plaintiffs changing lien agreements to comply
with section 38-27.5-104(1) on the eve of trial. However, only the
legislature may provide more specific timing rules to determine
whether a health-care provider lien that has been amended to
conform with section 38-27.5-104(1) is admissible at trial. Dep’t of
Transp. v. City of Idaho Springs, 192 P.3d 490, 494 (Colo. App.
2008) (“Courts may not rewrite statutes to improve them.”). If a
health-care provider lien, before it is created, complies with sections
38-27.5-104(1) and -105(4), then it is protected by section 38-27.5-
103(2) and is excluded from discovery and trial.
V. Disposition
¶ 57 Because the trial court’s October 13, 2022, “Order Regarding
Verdict” mistakenly totals the jury’s verdict to be $1,954,443.00,
when by our calculation the award should in fact be for a total of
$1,953,443.00, we correct this mistake with this opinion and
remand to the trial court to recalculate Wolven’s damages award.
See Bell v. McCann, 535 P.2d 233, 235 (Colo. App. 1975) (not
published pursuant to C.A.R. 35(f)) (appellate court may correct
mathematical errors in trial court’s damages award when supported
29 by the record); see also C.R.C.P. 60(a) (trial court may correct
clerical errors in judgment on its own initiative or by motion from
the parties at any time).
¶ 58 We affirm the jury verdict and the judgment of the trial court
and remand the case with directions.
JUDGE SCHUTZ and JUDGE BERGER concur.