Midboe v. ICAO, 03CA159 (September 25, 2003): Claimant sustained an industrial injury in 2000. Claimant received temporary and permanent disability benefits, and he returned to work with employer. Before and after the injury, claimant received health and dental insurance as a benefit of employment. Claimant paid a portion of the premiums for both coverages, and employer paid the remaining portion. Due to a rate increase in 2002, claimant's overall monthly contribution to the premiums increased slightly.
  Claimant sought to include the cost of the

premiums to increase his average weekly wage (AWW). The administrative law judge (ALJ) agreed with claimant that his insurance cost should be included in the AWW calculation. However, the Industrial Claim Appeals Office (ICAO) reversed the ALJ, and held that, under C.R.S. § 8-40-201(19)(b), as long as the employer continued to pay any portion of the premium, claimant's AWW should not be increased by his contribution.
  The court of appeals affirmed the result reached by ICAO, but for other reasons. The court recognized that the Consolidat-

Jiminez v. ICAO, 02CA2283 (September 11, 2003): In a 2000 order, an ALJ found Pinnacol Assurance liable for temporary total disability (TTD) benefits and penalties for late payment of TTD benefits. Pinnacol filed a petition to review the ALJ's order, and alleged that the ALJ erred "in awarding penalties for alleged late payment of TTD and in awarding additional TTD." Pinnacol's brief in support of petition to review argued that the ALJ erred in assessing penalties, but did not address the award of TTD benefits. In October 2001, ICAO affirmed the ALJ's order without specifically addressing the award of TTD benefits. Pinnacol did not pay the TTD benefits until November 2001.
  In the meantime, claimant alleged that Pinnacol was liable for penalties for violating the ALJ's 2000 order and for filing a bad faith appeal on the TTD issue because Pinnacol did not include an argument regarding that issue in its brief. The ALJ found that claimant failed to prove Pinnacol violated the 2000 order or any statute

or rule and denied the claim for penalties.
  The court of appeals affirmed. The court disagreed with claimant's argument that Pinnacol's failure to argue the TTD issue in its brief constituted a violation of W.C.R.P. VII(D)(2), which states that a brief "shall" contain a statement of issues for review and arguments concerning the issues. The court noted that no statute requires a brief to be filed, and that C.R.S. § 8-43-301(4) provides that consideration of an appeal must continue after the briefs are filed or if the time for filing has run. Because filing a brief is optional, the court held that the formalities in W.C.R.P. VII(D)(2) apply only if a brief is filed, and filing a brief on some issues raised in a petition to review does not constitute waiver or abandonment of other issues that were raised in the petition, but not briefed.
  The court further held that Pinnacol's failure to address the TTD issue in its brief did not necessarily constitute a bad faith appeal. The court cited Pinnacol's

attorney's testimony that he did not brief the TTD issue because Pinnacol was more concerned about the penalty issue and did not want to detract from that by briefing the less persuasive TTD issue. The court concluded that the evidence did not compel a conclusion that there was a bad faith appeal as a matter of law.

The Colorado Supreme Court has granted certiorari in Mobley v. ICAO, 03SC179, and Davison v. ICAO, 03SC83, to address the issue of whether C.R.S. § 8-41-301(2)(a) requires a claimant to present expert medical or psychological testimony regarding whether the injury consists of a psychologically traumatic event that is generally outside a workers' usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. A decision is expected to be issued in late 2003 or early 2004.