     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


                                     23
  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


                                    24
  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


                                    25
  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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