24CA1440 Fottrell v ICAO 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1440 Industrial Claim Appeals Office of the State of Colorado WC No. 5-185-128
Brian Fottrell,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Amerwest Constructors, Inc., and Argonaut Insurance Company,
Respondents.
ORDER AFFIRMED
Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Brian Fottrell, Pro Se
No Appearance for Respondent Industrial Claim Appeals Office
Condit Csajaghy, LLC, Christopher Condit, Denver, Colorado, for Respondents Amerwest Constructors, Inc., and Argonaut Insurance Company ¶1 In this worker’s compensation case, Brian Fottrell appeals the
final order issued by the Industrial Claim Appeals Office (Panel)
affirming the decision of an administrative law judge (ALJ) that
Fottrell failed to prove that he sustained a compensable injury. We
affirm the Panel’s order.
I. Background
¶2 The following facts are undisputed. In February 2021, Fottrell
performed carpentry work for SML Construction as part of SML’s
subcontract with Amerwest Constructors, Inc. (Amerwest).
Approximately eight months later, Fottrell filed a claim for worker’s
compensation benefits, naming Amerwest as his employer as
defined under the Colorado Workers’ Compensation Act. Fottrell’s
claim indicated that he suffered an injury at work in February 2021
but didn’t identify the injury.
¶3 Amerwest engaged Dr. J. Tashof Bernton to perform an
independent medical examination (IME) and determine, among
other things, the nature of Fottrell’s claimed injury and whether it
arose out of the course and scope of his employment in February
2021. Dr. Bernton reviewed Fottrell’s medical records, as well as
letters from his February 2021 work supervisors. Dr. Bernton also
1 met with Fottrell and discussed his medical history and his
recollection of the work incident allegedly precipitating his injury.
¶4 Fottrell told Dr. Bernton that he worked as a door installer
and fell on his right elbow while performing this work in February
2021. In a written statement authored before the examination,
Fottrell indicated that he fell and landed on his elbow and also
“[w]renched [his] neck.” Dr. Bernton noted that these descriptions
were absent from Fottrell’s initial claim.
¶5 Dr. Bernton issued a report documenting his medical findings
and conclusions. He diagnosed Fottrell with “degenerative disc
disease at multiple levels.” Regarding causation, Dr. Bernton
concluded that Fottrell suffered no “acute or structural injury” in
February 2021, but that it was unclear whether he suffered any
occupational injury. After receiving and reviewing additional
medical records, including records from Fottrell’s chiropractor, Dr.
Bernton produced a supplemental report. In that report, Dr.
Bernton noted that Fottrell had seen his chiropractor the day before
his alleged accident for cervical pain that had gradually onset over
the course of a month. Dr. Bernton concluded that Fottrell “did not
have an occupational injury.”
2 ¶6 At an evidentiary hearing on Fottrell’s claim, Fottrell offered —
and the ALJ admitted — into evidence Dr. Bernton’s first and
supplemental reports, as well as various medical records. Dr.
Bernton, Fottrell, and one of Fottrell’s former co-workers testified at
the hearing.
¶7 In an order issued after the hearing, the ALJ found Dr.
Bernton’s findings and opinions “as expressed in his reports and
testimony to be credible and persuasive.” Though the former co-
worker testified that Fottrell fell on the alleged date of injury, he
also testified that he didn’t see the injury. The ALJ gave little
weight to the co-worker’s testimony and noted that, to the extent it
conflicted with the medical records or Fottrell’s own statements in
his initial claim, the co-worker’s testimony wasn’t credible. The ALJ
also noted “the inconsistency of [Fottrell’s] allegations.” According
to the ALJ, Fottrell “made no reference to having fallen at the time
of his alleged injury” and failed to mention previous related medical
complaints to Dr. Bernton.
¶8 Additionally, the ALJ noted that “other possible incidents near
the time of his accident[,]” as reported by the work supervisors and
referenced in Dr. Bernton’s report, “cast additional doubt” on the
3 cause of Fottrell’s pain. As a result, the ALJ concluded that Fottrell
failed to prove by a preponderance of the evidence that he sustained
a work injury in February 2021. The ALJ also denied Fottrell’s
other claim regarding a subcontractor, which is not at issue in this
appeal. Fottrell appealed the ALJ’s order to the Panel, which
affirmed.
II. Standard of Review and Legal Principles
¶9 A work-related injury may be compensable if it arises out of
the course and scope of the injured worker’s employment. § 8-41-
301(1)(b), C.R.S. 2024. “For an injury to occur in the course of
employment, the claimant must demonstrate that the injury
occurred within the time and place limits of his employment and
during an activity that had some connection with his work-related
functions.” Madden v. Mountain W. Fabricators, 977 P.2d 861, 863
(Colo. 1999) (internal quotations omitted). To establish that an
injury arose out of employment, “the claimant must show a causal
connection between the employment and injury such that the injury
has its origins in the employee’s work-related functions and is
sufficiently related to those functions to be considered part of the
employment contract.” Id.
4 ¶ 10 Under section 8-43-308, C.R.S. 2024, we may not disturb
factual findings “supported by substantial evidence” and may only
set aside the Panel’s decision if (1) the factual findings aren’t
sufficient to permit appellate review; (2) conflicts in the evidence
aren’t resolved in the record; (3) the factual findings don’t support
the order; or (4) the award or denial of benefits isn’t supported by
applicable law.
¶ 11 Because Fottrell represents himself, we construe his
arguments liberally, giving effect to their substance rather than
form. People v. Bergerud, 223 P.3d 686, 696-97 (Colo. 2010).
III. Analysis
A. Admission of Dr. Bernton’s Reports
¶ 12 Fottrell appears to contend that, to the extent Dr. Bernton’s
IME reports paraphrased and relied on written statements from his
work supervisors, the reports constituted inadmissible hearsay
because neither supervisor testified at the hearing. By relying on
those reports, Fottrell argues, the ALJ contravened the rules of
evidence, the Rules of Workers’ Compensation Procedure, and
Fottrell’s right under the Sixth Amendment to the United States
Constitution to confront witnesses against him.
5 ¶ 13 Assuming without deciding that the ALJ erred in considering
the part of Dr. Bernton’s reports referencing the work supervisors’
statements, we conclude that Fottrell invited the error. See Hansen
v. State Farm Mut. Auto. Ins.
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24CA1440 Fottrell v ICAO 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1440 Industrial Claim Appeals Office of the State of Colorado WC No. 5-185-128
Brian Fottrell,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Amerwest Constructors, Inc., and Argonaut Insurance Company,
Respondents.
ORDER AFFIRMED
Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Brian Fottrell, Pro Se
No Appearance for Respondent Industrial Claim Appeals Office
Condit Csajaghy, LLC, Christopher Condit, Denver, Colorado, for Respondents Amerwest Constructors, Inc., and Argonaut Insurance Company ¶1 In this worker’s compensation case, Brian Fottrell appeals the
final order issued by the Industrial Claim Appeals Office (Panel)
affirming the decision of an administrative law judge (ALJ) that
Fottrell failed to prove that he sustained a compensable injury. We
affirm the Panel’s order.
I. Background
¶2 The following facts are undisputed. In February 2021, Fottrell
performed carpentry work for SML Construction as part of SML’s
subcontract with Amerwest Constructors, Inc. (Amerwest).
Approximately eight months later, Fottrell filed a claim for worker’s
compensation benefits, naming Amerwest as his employer as
defined under the Colorado Workers’ Compensation Act. Fottrell’s
claim indicated that he suffered an injury at work in February 2021
but didn’t identify the injury.
¶3 Amerwest engaged Dr. J. Tashof Bernton to perform an
independent medical examination (IME) and determine, among
other things, the nature of Fottrell’s claimed injury and whether it
arose out of the course and scope of his employment in February
2021. Dr. Bernton reviewed Fottrell’s medical records, as well as
letters from his February 2021 work supervisors. Dr. Bernton also
1 met with Fottrell and discussed his medical history and his
recollection of the work incident allegedly precipitating his injury.
¶4 Fottrell told Dr. Bernton that he worked as a door installer
and fell on his right elbow while performing this work in February
2021. In a written statement authored before the examination,
Fottrell indicated that he fell and landed on his elbow and also
“[w]renched [his] neck.” Dr. Bernton noted that these descriptions
were absent from Fottrell’s initial claim.
¶5 Dr. Bernton issued a report documenting his medical findings
and conclusions. He diagnosed Fottrell with “degenerative disc
disease at multiple levels.” Regarding causation, Dr. Bernton
concluded that Fottrell suffered no “acute or structural injury” in
February 2021, but that it was unclear whether he suffered any
occupational injury. After receiving and reviewing additional
medical records, including records from Fottrell’s chiropractor, Dr.
Bernton produced a supplemental report. In that report, Dr.
Bernton noted that Fottrell had seen his chiropractor the day before
his alleged accident for cervical pain that had gradually onset over
the course of a month. Dr. Bernton concluded that Fottrell “did not
have an occupational injury.”
2 ¶6 At an evidentiary hearing on Fottrell’s claim, Fottrell offered —
and the ALJ admitted — into evidence Dr. Bernton’s first and
supplemental reports, as well as various medical records. Dr.
Bernton, Fottrell, and one of Fottrell’s former co-workers testified at
the hearing.
¶7 In an order issued after the hearing, the ALJ found Dr.
Bernton’s findings and opinions “as expressed in his reports and
testimony to be credible and persuasive.” Though the former co-
worker testified that Fottrell fell on the alleged date of injury, he
also testified that he didn’t see the injury. The ALJ gave little
weight to the co-worker’s testimony and noted that, to the extent it
conflicted with the medical records or Fottrell’s own statements in
his initial claim, the co-worker’s testimony wasn’t credible. The ALJ
also noted “the inconsistency of [Fottrell’s] allegations.” According
to the ALJ, Fottrell “made no reference to having fallen at the time
of his alleged injury” and failed to mention previous related medical
complaints to Dr. Bernton.
¶8 Additionally, the ALJ noted that “other possible incidents near
the time of his accident[,]” as reported by the work supervisors and
referenced in Dr. Bernton’s report, “cast additional doubt” on the
3 cause of Fottrell’s pain. As a result, the ALJ concluded that Fottrell
failed to prove by a preponderance of the evidence that he sustained
a work injury in February 2021. The ALJ also denied Fottrell’s
other claim regarding a subcontractor, which is not at issue in this
appeal. Fottrell appealed the ALJ’s order to the Panel, which
affirmed.
II. Standard of Review and Legal Principles
¶9 A work-related injury may be compensable if it arises out of
the course and scope of the injured worker’s employment. § 8-41-
301(1)(b), C.R.S. 2024. “For an injury to occur in the course of
employment, the claimant must demonstrate that the injury
occurred within the time and place limits of his employment and
during an activity that had some connection with his work-related
functions.” Madden v. Mountain W. Fabricators, 977 P.2d 861, 863
(Colo. 1999) (internal quotations omitted). To establish that an
injury arose out of employment, “the claimant must show a causal
connection between the employment and injury such that the injury
has its origins in the employee’s work-related functions and is
sufficiently related to those functions to be considered part of the
employment contract.” Id.
4 ¶ 10 Under section 8-43-308, C.R.S. 2024, we may not disturb
factual findings “supported by substantial evidence” and may only
set aside the Panel’s decision if (1) the factual findings aren’t
sufficient to permit appellate review; (2) conflicts in the evidence
aren’t resolved in the record; (3) the factual findings don’t support
the order; or (4) the award or denial of benefits isn’t supported by
applicable law.
¶ 11 Because Fottrell represents himself, we construe his
arguments liberally, giving effect to their substance rather than
form. People v. Bergerud, 223 P.3d 686, 696-97 (Colo. 2010).
III. Analysis
A. Admission of Dr. Bernton’s Reports
¶ 12 Fottrell appears to contend that, to the extent Dr. Bernton’s
IME reports paraphrased and relied on written statements from his
work supervisors, the reports constituted inadmissible hearsay
because neither supervisor testified at the hearing. By relying on
those reports, Fottrell argues, the ALJ contravened the rules of
evidence, the Rules of Workers’ Compensation Procedure, and
Fottrell’s right under the Sixth Amendment to the United States
Constitution to confront witnesses against him.
5 ¶ 13 Assuming without deciding that the ALJ erred in considering
the part of Dr. Bernton’s reports referencing the work supervisors’
statements, we conclude that Fottrell invited the error. See Hansen
v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1385 (Colo. 1998)
(“[U]nder the doctrine of ‘invited error,’ a party may not later
complain where he or she has been the instrument for injecting
error in the case; instead, the party is expected to abide the
consequences of his or her acts.”). Indeed, at the hearing, Fottrell
tendered Dr. Bernton’s reports. Having prompted the ALJ to
consider the reports, he can’t now complain that the ALJ erred in
doing so.
¶ 14 Additionally, we perceive no violation of Rule 13 of the Office of
Administrative Courts’ Procedural Rules for Workers’ Compensation
Hearings. That rule states, “Only endorsed witnesses may testify in
a party’s case-in-chief.” Fottrell offers no explanation regarding
how the ALJ or the Panel violated this rule. Perceiving no obvious
basis for this argument and lacking any analysis to guide our
review, we decline to consider it further. See Taylor v. Taylor, 2016
COA 100, ¶ 13 (declining to address perfunctory, conclusory
arguments).
6 ¶ 15 We also aren’t persuaded by Fottrell’s argument that the ALJ
violated his right under the Sixth Amendment to the United States
Constitution to confront witnesses against him. The right to
confrontation under the Sixth Amendment applies only in criminal
cases; no similar right applies in the civil context. People in Interest
of V.M.R., 768 P.2d 1268, 1270 (Colo. App. 1989).
B. Crediting Dr. Bernton’s Reports
¶ 16 Fottrell also appears to contend that the ALJ erred by crediting
Dr. Bernton’s reports. Specifically, he asserts that the reports were
insufficient as a matter of law because they included no range of
motion observations.
¶ 17 We decline to consider this contention. We discern no obvious
legal support for this argument and Fottrell doesn’t cite support or
provide any analysis. See Vallagio at Inverness Residential Condo.
Ass’n, Inc. v. Metro. Homes, Inc., 2017 CO 69, ¶¶ 39-40 (we don’t
consider conclusory propositions devoid of legal citations or
analysis).
C. Audio Recordings
¶ 18 Finally, Fottrell appears to contend that the ALJ erred by
failing to provide the Panel with audio recordings of the hearing.
7 We reject this argument. Section 8-43-301(2)(b), C.R.S. 2024
expressly mandates that the party requesting review order a
transcript of the relevant hearing. The statute doesn’t require, or
even authorize, transmission of audio recordings to the Panel.
IV. Disposition
¶ 19 We affirm the Panel’s order.
JUDGE FREYRE and JUDGE SCHOCK concur.