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 

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.
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

¶ 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. 
2

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 
3

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 
4

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. 
5

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 
6

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 
7

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 crossexamination of Velez’s expert witness, Dr. Gretchen Brunworth. 

Wolven’s counsel revisited Dr. Brunworth’s testimony that she 
8

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. 
9

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).
10

¶ 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. 
11

¶ 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 
12

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. 
13

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 
14

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. 
15

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).
16

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 
17

determined under either numbered paragraph 

1 or 2 above.

2. Analysis 

¶ 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 
18

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 
19

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 
20

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. 
21

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,
22

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. 

1. Relevant Facts 

¶ 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 
23

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 

2. Analysis

¶ 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). 
24

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 
25

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 
26

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, 
27

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. 
28

creation of health-care provider liens. Section 38-27.5-104(1) notes 

that the required disclosures must be provided “[b]efore a healthcare 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 
29

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 
30

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.