On December 7, 2001, MaryAnn Whiteside, Director of the Division of Workers' Compensation (DWC), adopted an emergency amendment to the Workers' Compensation Rules of Procedure (W.C.R.P.) in reaction to a Denver District Court ruling that C.R.S. §§ 8-42-107(8)(b)(II), 8-42-107(8)(c), 8-42-107.2(5) and W.C.R.P. XIV(L)(4) are unconstitutional as applied to indigent claimants who are unable to pay for Division-sponsored independent medical examinations (DIME).
In Smith v. Whiteside, 00CV9120, a class action lawsuit was brought by all current and future indigent workers' compensation claimants who have been or will be discharged from care by their employer-selected treating physicians because they have reached maximum medical improvement (MMI), and who wish to challenge either the date of MMI and/or the impairment rating. The plaintiffs alleged that the requirement to obtain a DIME and pay for it prevents indigent claimants from challenging either the date of MMI or the impairment rating in violation of the equal protection and/or due process clauses of the Fourteenth Amendment. The district court judge agreed, and granted plaintiffs' motion for summary judgment. The defendants have appealed the ruling to the Colorado Supreme Court.
Director Whiteside's emergency rule is W.C.R.P. XIV(P), which sets up a process for claimants to apply for indigent status. An administrative law judge (ALJ) will make a determination regarding the application based upon written submissions, unless there are genuine issues of disputed material fact to necessitate a hearing. If the ALJ holds that the claimant is indigent, the insurer or employer shall be required to pay for the DIME. The insurer or employer will be entitled to reimbursement once a final order is issued, an uncontested final admission is filed, or the claim is settled. The insurer or employer is also entitled to offset the DIME cost against permanent indemnity benefits.
A hearing regarding permanent adoption of the amendments to Rule XIV is scheduled for February 1, 2002 at the DWC offices at 1515 Arapahoe Street, Tower 2, 4th Floor, Denver, Colorado.

Heckman v. J.C. Penney Life Insurance Co., 00CA2225 (November 23, 2001): Heckman bought two accidental death policies from defendant. She drove her pickup truck on a forest service road, where it became wedged between two trees. She was injured, but the injuries did not leave her incapacitated and did not put her in a state of unconsciousness. She was not ejected from the vehicle. Instead, she voluntarily left the shelter of her truck, and exposed herself to the rigors of the cold outdoors. The coroner listed the immediate cause of her death as hypothermia, as a consequence of the vehicle being disabled in a remote area.
Plaintiffs sued insurer for breach of contract and bad faith breach of insurance contract, claiming that insurer owed an additional amount under the part of the policies that provide for benefits for losses incurred "in consequence of occupying a private passenger auto." The trial court granted defendant's motion for summary judgment.
The court of appeals affirmed, holding that as a matter of law, Heckman's auto accident was not the predominant cause of her death. She voluntarily exposed herself to the cold and did not try to walk back to town for help. Her voluntary exposure to unnecessary danger constituted an intervening, superseding cause of death. Because her own action was the predominant cause of her hypothermia and death, the court affirmed the summary judgment.