Colorado Workers’ Compensation Claim Handling Guidelines
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
5 EXCLUSIONS AND DEFENSES
5.1 Course of Employment
- 5.1.1 Engaged in the Furtherance of Employer’s Business
- 5.1.2 Not in Furtherance of Employer’s Business
- 5.1.3 Traveling Employees
- 5.1.4 Commuting
- 5.1.5 Premises and Parking Lot Cases
- 5.2 Related to Employment
- 5.3 Intentionally Self-Inflicted Injury or Death
- 5.4 Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
- 5.5 Employee’s Violation of Positive Orders of Employer
- 5.6 Personal Animosity
- 5.7 Hostile Attacks
- 5.1 Course of Employment
C.R.S. § 8-40-203 (1) "Employer" means: The state, and every county, city, town, and irrigation, drainage, and school district and all other taxing districts therein, and all public institutions and administrative boards thereof without regard to the number of persons in the service of any such public employer, and every person, association of persons, firm, and private corporation, including any public service corporation, personal representative, assignee, trustee, or receiver, who has one or more persons engaged in the same business or employment, except as otherwise expressly provided in the Act, in service under any contract of hire, express or implied.C.R.S. § 8-40-302 (2) The Act is not intended to apply to employees of eleemosynary, charitable, fraternal, religious, or social employers who are elected or appointed to serve in an advisory capacity and receive an annual salary or an amount not in excess of seven hundred fifty dollars and are not otherwise subject to the "Workers' Compensation Act of Colorado".
Nor, is the Act intended to apply to employers of: casual farm and ranch labor or employers of persons who do casual maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the place of business, trade, or profession of the employer if such employers have no other employees subject to the Act, and if such employments are casual and are not within the course of the trade, business, or profession of said employers, and if the amounts expended for wages paid do not exceed the sum of two thousand dollars for any calendar year C.R.S. § 8-40-302 (3).The Act is not intended to apply to employers of persons who do domestic work or maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the private home of the employer if such employers have no other employees subject to the Act and if such employments are not within the course of the trade, business, or profession of said employers. This exemption shall not apply to such employers if the persons who perform the work are regularly employed by such employers on a full-time basis. "full-time" means work performed for forty hours or more a week or on five days or more a week C.R.S. § 8-40-302 (4). Any employer excluded under this section may elect to accept the provisions of the Act by purchasing and keeping in force a policy of workers' compensation insurance covering said employees. Any working general partner or sole proprietor actively engaged in the business may elect to be included by endorsement as an employee of the insured and shall be entitled to elect coverage regardless of whether such working general partner or sole proprietor employs any other person under any contract of hire.
The Act is intended to apply to officers of agricultural corporations; but effective July 1, 1977, any such agricultural corporation may elect to reject the provisions of the Act.Any employer, as defined in section 8-40-203, who enters into a bona fide cooperative education or student internship program sponsored by an educational institution for the purpose of providing on-the-job training for students shall be deemed an employer of such students.
Any person, company, or corporation operating, engaging in, or conducting any business by leasing or contracting out any part or all of the work thereof to a lessee, sub-lessee, contractor, or subcontractor, irrespective of the number of employees engaged in such work shall be construed to be a statutory employer. C.R.S. § 8-41-401. Finlay v. Storage Technology Corporation, 764 P.2d 62 (Colo. 1989), M & M Management Company v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo. App. 1999).The intent of the C.R.S. § 8-41-401 is to make contractors and lessors statutory employers, generally liable for payment of workers’ compensation benefits to an injured worker when the direct employer has failed to provide or maintain insurance coverage.
The concept was developed in the context of building or property owners who contract out work to be done on property and the contractor in turn hires or uses employees or subcontractors in performing such work, the owner shall therefore, be deemed a statutory employer C.R.S. § 8-41-401. The concept has however, expanded well beyond the context of a building developer.An exception to statutory employer liability occurs when the person working for such lessee, sub-lessee, contractor, or subcontractor is working as a general partner or the sole proprietor of such lessee, sub-lessee, contractor, or subcontractor. If, they are not covered under a policy of workers’ compensation insurance, no statutory employer relationship shall be found.
Likewise, if a corporate officer or member as defined in C.R.S. § 8-41-202 working for such lessee, sub-lessee, contractor, or subcontractor has executed and filed an election to reject coverage under C.R.S. § 8-41-202, he or she shall not be deemed to be a statutory employer.An owner/statutory employer may recover costs of insurance from the contractor who failed to obtain workers’ compensation by withholding or deducting the same from the contract price. C.R.S.§ 8-41-401(1).
If a contractor or subcontractor carries appropriate insurance, the owner/statutory employer remains immune from liability compensation or from third-party suit even though the direct employer has insurance. C.R.S. § 8-41-401(2). Frank M. Hall v. Newsom, 125 P.3d 444 (Colo. 2005).Where the direct employer of the claimant is not insured for workers’ compensation, and where neither the next statutory employers up the line of contracting, nor the ultimate statutory employer is insured, all three may be held liable for claimant’s work-related injuries.Hernandez v. MDR Roofing, Inc., 4-850-627 (Feb. 27, 2013 & Sept. 20, 2013).
The Colorado Court of Appeals, in Humphrey v. Whole Foods Market, 250 P.3d 706 (Colo. App. 2010), upheld dismissal of negligence suit brought by a merchandiser against the grocery store where he was injured, concluding, the "statutory employer" provisions of the Workers' Compensation Act of Colorado granted Whole Foods complete immunity from suit.A person, company, or corporation who contracts with a landowner or lessee of a farm or ranch to perform a specific farming or ranching operation must provide workers’ compensation insurance under the contract. Failure to do so may make the person, company or corporation guilty of a misdemeanor subject to liability and reasonable attorney’s fees.
The statutory employer provisions do not apply to a licensed real estate broker and sales agents who are not treated as employees for federal income tax purposes.Statutory employer liability may attach to an employee of a condominium who was injured while cleaning after the departure of a renter as the owner of a qualified residence is not exempt from the Act if he conducts business within the residence. Thornbury v. Allen, 39 P.3d 1195 (Colo. App. 2001).
A finding that a policy had been cancelled must be supported by evidence that the notice of cancellation was sent to the Division. Gomez v. Hipolito Gonzales d/b/a/ H & G Framing, W.C. No. 4-449-330 (ICAO, Jan 28, 2002).A statutory employer is bound by the uninsured subcontractor’s failure to designate a doctor. Robins v. Randall Rowland, W.C. No. 4-491-607 (ICAO Jan 7, 2002).
Cowger v. Henderson Heavy Haul Trucking, Inc. 179 P.3d 116 (Colo. App. 2007) Subcontractor's employee, who sustained serious injuries as result of electric shock, brought action against contractor, alleging negligence and negligence per se. The District Court dismissed the action as being barred by the exclusivity provisions of Workers' Compensation Act. The Court of Appeals held that for a general contractor to qualify for immunity from tort under Workers' Compensation Act, it must prove it is a statutory employer. This was a question of fact as to whether general contractor was statutory employer as such it precluded summary judgment.
C.R.S. § 8-40-301 (1) provides: "Employee" excludes any person employed by a passenger tramway area operator, or other employer, while participating in recreational activity, who at such time is relieved of and is not performing any duties of employment, regardless of whether such person is utilizing, by discount or otherwise, a pass, ticket, license, permit, or other device as an emolument of employment."Employee" generally excludes any person who is a licensed real estate sales agent or a licensed real estate broker associated with another real estate broker C.R.S. § 8-40-301 (2).
"Employee" generally excludes an inmate and who, as a part of such confinement, is working, performing services, or participating in a training or rehabilitation or work release program; unless they are working, performing services, or participating in a training, rehabilitation, or work release program that has been certified by the federal prison industry enhancement certification program pursuant to the federal "Justice System Improvement Act of 1979." In which case they would be an employee of that certified program. These provisions do not apply to an inmate working for a private person or entity. Such inmate shall be an employee of such private person or entity.“Employee" excludes any person who volunteers time or services for a ski area operator, or for a ski area sponsored program or activity, notwithstanding the fact that such person may receive noncash remuneration. Notice shall be given to such volunteer in writing that the volunteering of time or services does not constitute employment.
"Employee" excludes any person who is working as a driver under a lease agreement pursuant to section 40-11.5-102, C.R.S, with a common carrier or contract carrier. Any person working as a driver with a common carrier or contract carrier as described in this section shall be eligible for and shall be offered workers' compensation insurance coverage by Pinnacol Assurance or similar coverage consistent with the requirements set forth in section 40 11.5 102 (5), C.R.S. Failure to offer the workers’ compensation coverage may cause the driver to become an employee.Persons who provide host home services as part of residential services and support, for an eligible person with developmental disabilities pursuant to a contract with a community-centered board designated with a service agency shall not be considered employees of the community-centered board or the service agency.
Any person who performs services for more than one employer at a race meet or at a horse track is not an employee.A person who participates in a property tax work-off program is an employee.
C.R.S. § 8-41-303 establishes that the loaning employer is liable for compensation. Where an employer, who has accepted and complied with the provisions of the Act, loans the service of any of the employer's employees to any third person, the employer shall be liable for any compensation thereafter, for any injuries or death of said employees, unless it appears from the evidence that the act of loaning constituted a new contract of hire, express or implied.A "loaned employee" is an employee loaned or hired out to another employer for some specific service or a particular transaction. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo. App. 1995). Under some circumstances, the worker is considered to be engaged in "dual employment." Evidence a worker has been "loaned" to another employer does not compel the conclusion that the worker was the "employee" of the borrowing employer for purposes of assigning liability for the worker's industrial injury. This is true because a "loaned employee" is not the same as an "employee." Continental Sales v. Stookesberry, 459 P.2d 566 (Colo.1969).
In Industrial Commission v. Lopez, 371 P.2d 269 (Colo. 1962), the court held that the employers, each of whom were subject to Workers' Compensation Act in its own operations, were also subject to Act with respect to their joint enterprise. The court held that the workers' compensation carrier was liable for injuries sustained by an employee of the joint enterprise by which the insured was engaged, although the insured had paid no premium on the employee's employment.An unlicensed cement contractor and the licensed contractor engaged as principals in a joint enterprise were jointly responsible under Workers' Compensation Act. Snyder v. Industrial Commission of Colorado, 335 P.2d 543 (Colo. 1959)
An independent contractor is statutorily defined in C.R.S. § 8-40-202(2)(a)
[A]ny individual who performs services for pay for another shall be deemed to be an employee . . . unless such individual is free from control and direction in the performance of the service, both under the contract for performance of service and, in fact, and such individual is customarily engaged in an independent trade, occupation, profession or business related to the service performed.Pursuant to C.R.S. § 8-40-202(2)(b), to prove that an individual is engaged in an independent trade, occupation, profession, or business and is free from control and direction, the person for whom the services are performed, one must show by a preponderance of the evidence that the conditions in C.R.S. § 8-40-202(a) are satisfied. The other alternative to proving an independent contractor relationship, pursuant to C.R.S. § 8-40-202(b) (II), is through a written document. The document must be signed by both parties and; demonstrate that the person for whom the services are provided does not:
1. mandate the individual work only for the person for whom services are performed;
2. establish a quality standard;
3. pay at a salary or hourly rate instead of a fixed fee;
4. terminate the work of the provider unless the provider violates the contract terms;
5. provide more than minimal training;
6. provide tools or benefits, except materials or equipment;
7. dictate time of performance; except a completion schedule and range of mutually agreeable hours;
8. pay the service provider personally instead of making checks payable to the trade or business name of the person; and
9. combine the business operations of the person for whom services are provided in any way with business operations of the provider instead of maintaining all such operations separately and distinctly. If such written document is used the document must contain a disclosure, in type, which is larger than the other sections of the document, or in bold face, or underlined, that the independent contractor is not entitled to workers’ compensation benefits and that the independent contractor is obligated to pay federal and state tax on the money earned pursuant to the contractual relationship.
The criteria for determining the independent contractor status of a claimant, as found in C.R.S. § 8-40-202(2) (b) (II), need not all be met to determine such status. Specifically, two of the nine criteria were not met here, but the Administrative Law Judge still found claimant was an independent contractor and the Court of Appeals upheld this finding. Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo. App. 1998)A person must be customarily engaged in an independent trade, occupation, profession or business related to the service performed in order to be excluded from the definition of employee. Allen v. America’s Best, W.C. No 4-776-542, (ICAO December 1, 2009).
The exclusion from employee status of leased drivers of common carriers under C.R.S. § 8-40-301(6) and C.R.S. § 40-11.5-102(5) takes effect only when the lease agreement offers claimant the opportunity to participate in a benefit plan that is “at least comparable” i.e. identical to the benefits available under the Colorado Workers’ Compensation Act. USF Distribution Services, Inc. v. Industrial Claim Appeals Office, 11 P.3d 529 (Colo. App. 2004).
C.R.S. § 8-41-401(3) which limits the amount of damages to $15,000.which a subcontractor can obtain under tort from a contractor, is constitutional. Snook v. Joyce Homes, Inc., 523 P.3d 1210 (Colo. App. Feb. 5, 2009).C.R.S. § 8-41-401(6) creates a narrow exemption for statutory employment status for independent contractors who contract for a single delivery. Luevano v. Transworks, LLC, W.C. No. 4-814-671 (ICAO January 5, 2011). Non-profit youth sports coaches can be exempted from having to have workers’ compensation by signing a written agreement. This applicable to injuries after April 15, 2010.
The Colorado Workers’ Compensation System enables injured workers to obtain compensation for work injuries without having to prove negligence against their employers. In exchange for this, the workers gave up the right to sue their employer at common law for pain and suffering, or damages.All employers are required to carry workers’ compensation insurance with extremely limited exceptions.
The injured worker’s “exclusive remedy” is to obtain benefits under the Workers’ Compensation Act. All other causes of action for work injuries against the employer or its carrier have been abolished pursuant to C.R.S. § 8-41-102The workers’ compensation exclusive remedy does not bar a claim of discrimination pursuant to Title VII of the Civil Rights Act of 1991 or for sexual harassment, See, Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001).
Thus, the question remains open as to whether claims for, sexual assaults, negligent or intentional infliction of emotional distress, invasion of privacy and violations of the Colorado Anti-Discrimination Act, C.R.S. § 24-34-301, are barred as to the employer by the exclusivity provisions of the Act, when they are not barred against the co-employee.In Schwindt v. Hershey Foods Corp., 81 P.3d 1144 (Colo. App. 2003) the Court held that the exclusivity rule did not apply to intentional torts committed by the employer, if the employer deliberately intended to cause the injury, and acted directly rather than constructively through an agent.
Employers may not require employees to waive compensation or medical benefits for any aggravation of any preexisting condition or disease. C.R.S. § 8-41-205.
Generally, the Colorado Workers’ Compensation Act applies to all injuries which occur within Colorado no matter where the contract of hire was made.
Pursuant to C.R.S. § 8-41-204 employees who are hired or regularly employed in Colorado, who receive an injury outside of Colorado receive compensation benefits under Colorado Law, unlessThe injury is received more than six (6) months after leaving Colorado; and the employer did not provide a written election to extend the coverage beyond six (6) months duration.
The employer must affirmatively agree to extend the coverage beyond the six (6) month time frame. Hathaway Lighting, Inc. v. Industrial Claim Appeals Office, 143 P.3d 1187 (Colo. App. 2006).The extraterritorial provision found in C.R.S. § 8-41-204 provides for compensation only, if claimant received injuries within six months after leaving Colorado. This refers to a physical departure. Claimant was a resident of Washington hired by a Colorado corporation to work on out-of-state projects was injured in Oregon, was not present in Colorado during the hiring process or between the date he was hired and the date he was injured. He was not entitled to benefits under the Colorado Act.
An injured employee has four working days to notify his employer in writing of the injury. C.R.S. § 8-43-102(1)(a).Failure to timely notify is not a bar to receiving benefits.
Colorado does not have the “discovery rule,” but see section on extension of limitations period below.
If any employee is unable to notify his employer due to his injury, written report of injury by any employee constitutes sufficient notice to the employer.An employee may lose one day’s compensation for each day’s failure to report, so long as the employer posts proper statutory notice at the work site pursuant to C.R.S. § 8-43-102(1). Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo. App. 1995). (However, this penalty is rarely imposed.)
The requirement that an employee provide notice to the employer in writing is mandatory. The Court in Postlewait drew a distinction between written notice and a claim for compensation. Thus, the filing of a claim for compensation may not toll the penalty against the employee. But see, Durrough v. Bridgestone, W.C. No. 4-277-896 (January 27, 1997).
In general, injuries and occupational disease claims, except as provided in the next paragraph, are barred unless a notice of entitlement is filed within two (2) years after an injury, disability or death; unless the claimant can present a “reasonable excuse” in which case the time limitation is extended to three (3) years. C.R.S. § 8-43-103(2).The tolling provision in C.R.S. § 8-43-103(2) states that where an employer has been given notice of an injury, or an occupational disease, and has failed to report the injury, the statute of limitations is tolled from beginning to end. See, Miller v. Industrial Claim Appeals Office, 985 P.2d 94 (Colo. App. 1999).
A disability beginning more than five years after the date of injury shall be conclusively presumed not due to the injury, except where disability or death resulted from exposure to radioactive materials, or from asbestosis, silicosis, or anthracosis pursuant to C.R.S. § 8-41-206.
An employer’s failure to notify the Division that the claimant had suffered a lost-time injury, tolls the statute of limitations on a claim for benefits. City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo. App. 1998).
Any death occurring more than two years after the date of injury shall be prima facie presumed not to be due to the injury. The presumption may be rebutted by competent evidence pursuant to C.R.S. § 8-41-207.
The presumption that the death is not related does not apply in cases of asbestosis, silicosis, anthracosis, or disability or death from radioactive materials. The presumption may be rebutted by competent evidence pursuant to C.R.S. § 8-41-207.
The two year statute of limitations for filing an occupational disease does not begin to run until the worker becomes disabled. City of Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo. App. 2004).The onset of the disability occurs when the occupational disease impairs the claimant's ability to perform his regular employment effectively. Different statute of limitations for injury or death claims resulting from exposure to radioactive materials, asbestosis, silicosis, or anthracosis, are barred unless a notice claiming entitlement to compensation is filed within five years after the commencement of disability or death pursuant to C.R.S. § 8-43-103(3).
Statutes of limitation do not begin to run until the claimant as a “reasonable person recognizes the nature, seriousness, and probable compensable character of the injury.” City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). (Consequently, a statute of limitations defense is often defeated by claimants.)An employer’s failure to notify the Division that the claimant had suffered a lost-time injury, tolls the statute of limitations on a claim for benefits. City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo. App. 1998).
The Colorado Workers’ Compensation Act provides compensation for any health or medical problem occurring in the course of employment; as well as compensation for traumatic injuries, cumulative trauma injuries, occupational diseases, aggravations of pre-existing injuries, and aggravations of pre-existing diseases, psychiatric or psychological claims including stress claims.
An injury is one which can be traced to a particular time, place and cause. Colorado Fuel and Iron Corp. v. Industrial Commission, 392 P.2d 174 (1964).Last injurious exposure rule is not applicable where prior condition resulted from accident. Brown v. AutoZone, Inc., W.C. No. 4-380-291 (ICAO September 2000).
The term "injury” in the Worker's Compensation Act, means a compensable injury, and an injury is not compensable where a claimant continues to work and to receive regular wages. C.R.S § 8-40-201 Colorado Springs v. Industrial Claim Appeals Office, 89 P.3d 504 (Colo. App. 2004).
Injury to prosthetic is a compensable workers compensation injury. American Appliances, Inc v. Industrial Claim Appeals Office, 166 P.3d. 267 (Colo. App. 2007).
C.R.S. § 8-40-201
1. "Accident" means an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause or, the cause, being known, an unprecedented consequence of it.
2. "Accident", "injury", or "injuries" includes disability or death resulting from accident or occupational disease.
The exposure to or contraction of Hepatitis C by a firefighter, emergency service provider or police officer is presumed to be within the course and scope of employment if:
1. baseline test is performed within five days of the reported exposure, which must be reported within two days of when the employee knew or should have known of the exposure;
2. the baseline test establishes that the employee was not infected at the time of exposure;
3. the employee complies with the medical procedures paid for by the employer in the 24 month after the exposure; and
4. The employee is determined to have hepatitis C within 24 months after the exposure to the known or possible source.
The employer may show by a preponderance of the evidence that such exposure did not happen on the job, then the presumption does not apply. Effective May 16, 2002.Evidence supported a finding that hepatitis C was caused by needle stick where physician opined it was the most probable cause considering the claimant's social and medical history. Manzanares v. Quality Uniform and Linen Supply, W.C. No. 4-268-197 (March 3, 1999).
Heart attacks must be causally related to an unusual exertion at work or to job related stress in order to be compensable pursuant to C.R.S. § 8-41-302(2).“Unusual exertion” requires that the work causing the heart attack must be different in nature from the employee’s usual work. Rather the employee’s activities near the time of the heart attack must be compared with his normal duties in order to determine if the former were unusual. Townley Hardware Company v. Industrial Commission, 636 P.2d 1341 (Colo. App. 1981). Although decided before the changes in the stress law, the dispositive issue in a heart attack case is whether the mental condition found in an injured employee proximately arises out of and is within the course of employment to satisfy the conditions of recovery under C.R.S. § 8-41-301. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
Psychological injuries are compensable under the Colorado Workers’ Compensation Act. Three separate categories of such injuries are recognized
1. Physical stimulus causing psychic injury (physical/mental injuries)
2. Psychological stimulus causing psychic injury (mental/mental injuries) and
3. Psychological stimulus causing physical injury (mental/physical injuries).
A post-injury or post traumatic psychological disability caused by a work related physical injury is compensable. Herberson v. Arch Coal Inc. W.C. No. 4-533-791 (ICAO January 8, 2004).The requirements of the mental impairment statute, C.R.S. § 8-41-301(2) (a) are not applicable unless the claimant is alleging a "permanent" recognized mental disability. In other words, claimant is not required to prove he has a permanent psychological disability in order to treat for a psychological component arising out of a physical injury. However, the 12 limitation on permanent impairment would apply.
C.R.S. § 8-41-301(2) (m) addresses “mental impairment benefits.” Major revisions were made to the compensability of stress claims on July 1, 1991.In general mental impairment benefits are limited to twelve weeks under the following conditions:
1.The mental impairment must be supported by the testimony of a licensed physician or psychologist.
2.The disability must arise from an accidental injury arising out of and in the course of employment when such accidental injury involved no physical injury;
3. It must consist of a psychologically traumatic event that is generally outside of a worker’s usual experience and would invoke significant symptoms of distress in a worker in similar circumstances;
4. This definition does not include mental impairment resulting from a disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or other similar action taken in good faith by the employer;
5. The mental impairment must arise primarily from the claimant’s then occupation and place of employment, and cannot be based upon facts and circumstances, common to all fields of employment; and
6. The mental impairment which is the basis of the claim must be either sufficient to render the employee temporarily or permanently disabled from pursuing the occupation from which the claim arose, or to require medical or psychological treatment.
It is not required that a physician or psychologist testify as to whether a psychologically traumatic event is generally outside a worker's usual experience, or would evoke significant distress in a similarly situated worker, a claimant may introduce other competent evidence to prove this element. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004).The “testimony” may be by way of report. Esser v. Industrial Claim Appeals Office, 30 P.3d 189 (Colo. 2001).
A physician determining mental impairment shall limit the rating to mental or behavioral impairments not likely to remit despite medical treatment under the AMA Guides; Complete a full psychiatric assessment following the AMA Guides including nationally accepted/validated psychiatric diagnosis and a history of impairment, stress disorders, treatment, etc.; and include a summary of the mental evaluation and worksheet/Division form WC-M3-PSYC in the report.
Apportionment is also appropriate when performing a mental impairment rating.The twelve week limitation does not apply if the mental impairment is the result of a crime of violence without regard to the intent of the perpetrator of the crime or to victims of an injury that causes neurological brain damage.
A Criminal conviction is not necessary to avoid the 12 week limitation for claims filed after July 1, 2006.C.R.S. § 8-41-301(2)(b) provides for a twelve week limitation on mental impairment, inclusive of any temporary disability benefits. However, the Colorado Supreme Court decision in City of Thornton v. Replogle, 888 P.2d 782 (Colo. App. 1995) held that the statutory scheme limits only permanent disability benefits paid for mental impairment to twelve weeks and does not limit temporary disability benefits paid for mental impairment. In addition, the employer is entitled to offset any temporary disability benefits paid exclusively for mental impairment against any award of permanent disability benefits for mental impairment.
In City of Loveland Police Department v. Industrial Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006),the Colorado Court of Appeals held that a claim for death benefits can be based on mental impairment. The expert testimony was sufficient to establish that a psychologically traumatic event led to police captain's suicide. The evidence was sufficient to establish that the issues police captain faced were unique and outside a police captain's usual experience; the stress experienced by the police captain was significant and would evoke significant symptoms of distress in a similarly situated worker; and the widow was entitled to death benefits, and was not limited to 12 weeks of medical impairment benefits.The twelve week limitation only applies to temporary disability benefits paid as a result of mental impairment. Ramos v. Sears, W.C. No. 4-467-734 (ICAO January 22, 2004).
Mental impairment benefits are payable in an amount not less than $150.00 per week and not more than 50% of the state average weekly wage.
Stress is widely recognized by medical authorities as a disease in its own right and has been implicated as the cause or partial cause of many other diseases and disabilities City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).Claimants may try to avoid the mental impairment stress statute restrictions by arguing there is a physical component to the injury, i.e., sleeplessness, irritable bowel syndrome, etc. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo. App. 1996).
Occupational disease is one which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as the proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment. C.R.S. § 8-40-201(14).Length of actual exposure is immaterial to the imposition of liability for an occupational disease. Union Carbide Corp. v. Industrial Commission, 581 P.2d 734 (1978). The test is whether the employer exposes the employee to a concentration of material or hazards which would be significant to cause the development of the disease in the event of a prolonged exposure, regardless of the actual length of time of exposure. Prior to the imposition of liability on one of multiple employers or insurers, the claimant must demonstrate a “substantial permanent aggravation.” C.R.S. § 8-41-304, Monfort v. Rangel, 867 P.2d 122 (Colo. App. 1993).
There is no right of contribution from a previous employer or insurer. For example, if an employee worked for Employer A for 15 years and was exposed to repetitive motion during that time, and then worked for Employer B for 8 days and was exposed to repetitive motion, Employer B is liable for the injury, so long as the concentration of the exposure with Employer B is sufficient. Except for silica, asbestos, or coal dust, this requires a minimum of 60 days of exposure.According to C.R.S. § 8-41-304, an employer in whose employ the claimant was last injuriously exposed and suffered a substantial permanent aggravation thereof is alone liable for benefits.
Pursuant to Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo. App. 1995) “substantial permanent aggravation” is not a factor to be considered in determining onset of disability.Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) provides that a claimant is entitled to recovery for an occupational disease only if hazards of employment caused, intensified, or aggravated, to some reasonable degree, disability for which compensation is sought. The claimant suffers from an occupational disease only to the extent that an occupational exposure contributed to the disability. For example, emphysema caused by smoking may be aggravated by a work place hazard making the aggravation of the emphysema compensable. Accordingly, a physician may arguably apportion non-occupational contributing factors under Anderson v. Brinkhoff.
The full responsibility rule applies in occupational disease claims. United Airlines v. Industrial Claim Appeals Office, 984 P.2d 660 (Colo. 1999). A previous occupational disability may not be apportioned out of permanent total disability where the date of injury is after July 1, 1993.When apportioning liability for an occupational disease, the issue is whether a non-occupational factor caused, accelerated, or intensified the claimant’s disability. The mere existence of preexisting degenerative disease may be insufficient to establish grounds for apportionment. Stewart v. King Soopers, W.C. No. 4-257-450 (ICAO November 20, 1996). However, see Robinson v. J.C. Penney, W.C. No. 4-151-232 (ICAO June 30, 1995), where walking and standing were found to be essential life functions which contributed to the hazards of the disease of osteoarthritis, thus providing for apportionment.
Please note, however, where there are two or more causes of the disease and there is no evidence that the occupational exposure is a necessary precondition to the development of the disease, liability is apportioned based upon the contribution of the employment hazard. Martin v. Finzer Business Systems, W.C. No. 4-114-464 (Industrial Claim Appeals Office, June 10, 1994).
Apportionment under Anderson v Brinkhoff is not appropriate where there are two separate and distinct diseases affecting the same body part resulting in a disability. Under those circumstances the occupational exposure becomes a necessary precondition to the development of the occupational disease despite the development of the non-occupational disease solely caused by a hazardous exposure outside the claimant’s employment. Thus, C.R.S. § 8-42-104(2), not Anderson, controls apportionment.This may affect not only permanent disability, but also medical and temporary disability benefits. Higgs v. Union Carbide Corp., W.C. No. 4-283-187 (ICAO March 17, 1997).
If medical expenses are incurred while more than one insurer is at risk, an Administrative Law Judge may divide the liability between the two insurers. Johnson v. Copper Mountain, Inc., W.C. No. 4-127-406 (ICAO December 9, 1993).Whenever there are two or more employers and/or carriers, the appropriate percentage of medical benefits are paid by the employer or carrier on the risk at the time the medical expense is incurred. Martinez v. Storage Technology, W.C. No. 4-175-875 (ICAO August 31, 1995).
When determining which of multiple employers is on the risk for purposes of paying medical benefits, the question is whether the claimant had a worsening of condition and, if so, whether the subsequent employment aggravated or accelerated the development of the disease.
Claimant need not establish a date of onset of the disease for medical benefits to become compensable even if disease has not yet become disabling. Testimony that claimant thought her neck pain was related to lifting at work sufficient to support award. Wal-Mart Stores, Inc v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).Where the issue is Temporary Disability Benefits, the date the claimant suffers the onset of disability is critical to assign liability for the disease with multiple respondents. Onset of disability refers to physical incapacity including reduced efficiency. Seylhouwer v. Robbins, W.C. Nos. 4-462-729 & 4-471-878 (ICAO May 20, 2003).
Rule 5-2 (B)(2) provides that an Employer’s First Report must be filed with the Division within ten days of notice or knowledge by an employer that an employee had contracted an occupational disease that falls into the following categories.
1. Chronic respiratory disease;
3. Pneumoconiosis, including but not limited to Coal worker’s lung, Asbestosis, Silicosis, and Berylliosis;
4. Nervous system diseases;
5. Blood borne infectious, contagious diseases.
A stress claim analyzed as a occupational disease as opposed to a singular, traceable injury has been recognized as compensable by the Court of Appeals in R. Lynn McCallum v. Dana’s Housekeeping, 940 P.2d 1022 (Colo. App. 1996).Rule 5-2 (F) requires insurers shall submit a monthly summary report to the Division for:Injuries to employees that result in no more than three days’ or three shifts’ loss of time from work, no permanent physical impairment, no fatality, or contraction of an occupational disease not listed in subsection (B) of the rule; and exposures to injurious substances, energy levels, or atmospheric conditions when the employer requires the use of methods or equipment designed to prevent such exposures and where such methods or equipment failed.
For a claim to be compensable an injury or occupational disease must occur in the “course and scope” of an employee’s employment” and “arise out of the employment.” See C.R.S. § 8-41-301(1)(b).A preexisting condition does not disqualify a claimant from receiving workers’ compensation benefits. If a work-related injury aggravates, accelerates, or combines with a preexisting condition, claimant is entitled to benefits. However, if a preexisting condition is the precipitating cause of an injury, the resulting disability is compensable if the conditions or circumstances of employment have contributed to the accident or injuries. Eckstine Electric Company v. ICAO, 09CA0264, slip opinion. (Colo. App. January 14, 2010) (NSOP). An assault or harassment of an employee may be compensable if it arises from an “inherent connection” with the employment such as a dispute over performance, pay, or termination. Rendon v. United Airlines, 881 P.2d 482 (Colo. App. 1984).
An assault may also be compensable if it arises from a “neutral force” such as from a random assault.A co-employee may not necessarily be immune from a tort claim if the matter did not arise out of the tort-feasor’s employment, for example if the conduct derives from matters personal to the employee or from a neutral force unrelated to employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). In other words, an assault may not be compensable if it stems from an “inherently private” dispute imported into the employment from the claimant’s domestic or private life. Popovich, supra.
Sexual assault by employer on employee may not necessarily “arise out of” employment. Stampher v. Hiteshew, 797 P.2d 784 (Colo. App. 1990).
“Arising out of” means an injury has its origin in the employee’s work-related functions, and is sufficiently related to those functions to fall under the contract of employment.
Exercise Program. Injury occurring during self-directed, off-duty home exercise program, out of claimant’s fear of losing job as police officer, was not compensable as the injury did not occur during working hours, did not occur on employer’s premises, and was not financially sponsored by the employer. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996).In order to determine whether an injury suffered by an employee who is engaging in an exercise program is compensable, the Court looks to the following factors:
1.Whether injury occurred during working hours;
2.Whether injury occurred on Employer’s premises;
3.Whether employer initiated employee’s exercise program;
4.Whether employer exerted direction or control over exercise program; and
5.Whether employer stood to benefit from exercise program. C.R.S. § 8-40-301(1) precludes compensation if the employee is “participating in a recreational activity” and “at such time is not performing any duties of employment.” “Employment” does not include an employee’s participation in voluntary recreational activity or program. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo. App. 2000).
Relevant factors for determining whether the recreational activity falls within the course and scope of employment include:
1. whether the recreational activity occurred during working hours;
2. whether it was held on or off employer’s premises;
3. whether employee participation was required or encouraged;
4. whether the activity was financially sponsored by the employer;
5. whether the activity was initiated by the employer; and
6. whether the employer received tangible benefits from the activity.
City and County of Denver v. Lee, 169 Colo. 208, 450 P.2d 352 (1969); Karlin v. Conard, 876 P.2d 64 (Colo. App. 1993). Courts may also consider other factors which indicate that the activity is sufficiently related to the employment to make it incidental to employment.An example of a company party claim was when a claimant injured right knee while bowling at a company Christmas party arranged by employer, where that attendance was mandatory and was to “boost morale.” An Administrative Law Judge had discretion to determine whether an activity by an employee is voluntary or part of the employee’s service to the employer. The injury was determined to be compensable. Dover Elevator Company v. Dickerson, 961 P.2d 1141 (Colo. App. 1998). Horseplay can be a complete bar to a workers’ compensation claim. However, when horseplay has become a regular incident of employment, as distinguished from an isolated act, it may constitute an insubstantial deviation from employment, and may therefore, not preclude an award of compensation to a participant who is injured in that context.
A four-part test is applied to analyze whether the initiation of, or participation in, horseplay is a deviation:
1. the extent and seriousness of the deviation;
2. the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved in abandonment of duty;
3. the extent to which the practice of horseplay had become an accepted part of the employment; and
4. the extent to which the nature of the employment may be expected to include some horseplay.
A claimant who was injured while performing a dance step during an unauthorized work break for the claimant’s sole benefit, does not arise out of the course and scope of employment. Kater v. Industrial Commission, 728 P.2d 746 (Colo. App.1986).The Court of Appeals held that when a claimant is presenting evidence in support of her workers' compensation claim, she is not performing an activity which is inherent in the employment contract. Hence, litigation stress was not recognized as compensable pursuant to the quasi-course of employment doctrine. Jarosinski v. Industrial Claim Appeals Office, 63 P.3d 1082 (Colo. App. 2002).
The general rule is that an employee away from home on a business trip for his employer is under continuous workers’ compensation coverage from the time he leaves until the time he returns.The leading travel status case is Continental Airlines v. Industrial Commission, 709 P.2d 953 (Colo. App. 1985). Claimant, a flight attendant, was in Australia on a scheduled layover. She was injured while leaving a retail store after concluding her personal errand to return to her hotel. The Court found that claimant had concluded her personal errand and therefore re-entered continuous workers’ compensation coverage. Factors indicative of travel status include whether the employee was compensated by the employer for transportation, lodging, and meals. However, the absence of one or more of these factors does not disqualify claimant from receiving workers’ compensation benefits or being found to be within travel status. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. 1995).
Commuting to and from work is generally not in the course of employment. This is commonly known as the “coming and going rule.” In general, going to and coming from work is not compensable.In the case of McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo. App. 1995), the Court of Appeals held that claimant was not entitled to temporary disability benefits when her treating physician released her to return to work, but restricted her night driving. Claimant’s job was at night. When she admitted that she was able to do the regular duties of her job, but argued that she was unable to get there because of her inability to drive to her job, the Court of Appeals held that since driving to and from work was outside of the course of employment, she was not entitled to temporary disability benefits. Under the quasi-course of employment doctrine, an injury occurring during travel to or from authorized medical treatment for an industrial injury is compensable. An employer is required to provide medical treatment, and an injured employee is required to submit to it, thus a trip to the doctor's office becomes an implied part of the employment contract, Excel Corp. v Industrial Claim Appeals Office, 860 P.2d 1393 (Colo. App. 1993). Under this rationale, a quasi-course of employment claim is not a new claim, but is a compensable consequence of the original injury, and the insurer on the risk at the time of the original injury is liable for benefits. Price Mine Services, Inc. v. Industrial Claim Appeals Office, 64 P.3d 936 (Colo. App. 2003).
Injuries sustained traveling to Division IME (DIME) are not compensable instead are part of the process of litigation. Ince v. Southwest Memorial Hospital, W.C. No. 4-535-488 (ICAO April 19, 2004)However, the quasi-course of employment doctrine does serve to make compensable injuries occurring to a claimant in an automobile accident on the way home from a respondents' vocational evaluation. Turner v. Industrial Claim Appeals Office, 111 P.3d 534 (Colo. App. 12/2/04).
The course of employment for a stationary employee is narrower, while that of a traveling employee is broader.
Under the case of Madden v. Mountain West Fabricators, 997 P.2d 861(Colo. 1999), the Court, relying on the general rule that traveling to and from work is not considered to be within the course and scope of the employment, found that an employee who traveled directly from his home to the job site, who provided his own transportation and received no travel pay to construction site 65 miles away was not within travel status. A four prong test was developed:
1. whether the travel occurred during working hours;
2. whether the travel was on or off employer premises;
3. whether the travel was contemplated by the employment contract; and
4. whether the obligations or conditions of the employment created a zone of special danger.
In evaluating the third prong of the Madden test, the Court looks to whether the travel was a substantial part of service to the employer. Examples include:
1. a journey assigned by employer;
2. where travel confers benefit on employer beyond arrival at work; and
3. where travel is inducement to employment.
However, compare Staff Administrators, Inc. v. Reynolds, 997 P.2d 866 (Colo. 1999). Travel was compensable when employees met at service station and car-pooled to job site 75 miles away.Compare, Sturgeon Electric v. Industrial Claim Appeals Office, 129 P.3d 1057 (Colo. App. 2005) Employer appealed from decision of the Industrial Claim Appeals Office determining that the consolidated claims filed by wife and son of deceased employee were compensable. The Court of Appeals held that case would be remanded for the determination of additional facts that bore on whether the $1.50 per hour premium, that employer paid employee, was in the nature of non-compensable work remuneration/fringe benefit or whether the travel payment was substantially related to the distance traveled and the actual costs incurred or a special inducement to the employment contract, so as to bring the travel into the work relationship. On remand the ALJ concluded that the employer’s motivation in offering the increased hourly premium in order to be able to recruit employees and because the mountain roads posed unusual risk to it’s travelers as evidenced by the road fatality rate supported a characterization that the incentive pay was a special inducement bringing the travel within the work relationship. Hafner v. Sturgeon Electric, W. C. Nos. 4-507-018 & 4-506-807(ICAO June 26, 2007).
There is an exception to the travel status rule if an employee is shown to have made a distinct departure on a personal errand. Once the errand is concluded the employee once again is covered under the Workers’ Compensation Act. Pat’s Power Tongs v. Miller, 474 P.2d 613 (Colo. 1970).Injury sustained while participating in voluntary recreational activity is not compensable even if in travel status. McLachlan v. Industrial Claim Appeals Office, 10CA1500 (Colo. App. May 05, 2011) (NSOP).
When considering the question of 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. Phillips Contracting, Inc., v. Hirst6, 905 P.2d 9 (Colo. 1995).Consumption of alcohol may under some circumstances constitute a deviation. Pacesetter Corporation v. Collett, 33 P.3d 1230 (Colo. App. 2001).
In Woodruff World Travel, Inc. v. Industrial Commission, 554 P.2d 705 (Colo. App. 1976) the landlord made the parking lot available to the tenant's employees. The Court of Appeals specifically noted that the parking privileges offered by the employer in Woodruff were a fringe benefit to the claimant, and the claimant was injured while in the act of enjoying that benefit which established the necessary causal connection.Walking toward building after lunch, falling while stepping onto the sidewalk outside of entrance in order to relieve co-worker found compensable, Pieper v. City of Greenwood Village, W.C. No. 4-675-476 (ICAO January 20, 2010).
Claimant's act of stepping off the curb to get a closer look at the motor scooter was an insignificant deviation and, therefore, did not remove that act from the employment relationship. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office supra. The claimant had left the building where she worked, and was in the process of traveling to her vehicle, which was located in the same parking lot where the motor scooter was located. Again, this parking lot was on the employer's premises and was maintained and controlled by the employer. Julie Blake v. Fort Lewis College, W.C. No. 4-835-527 (ICAO November 22, 2011).
An injury must occur “in the course of” employment to be compensable. “In the course of” refers to time, place, and activity at the time of the injury.
There must be a nexus between claimant’s injury and the conditions of employment. There is no requirement that the conditions of employment be the direct cause of the event that brought about the injury. The totality of the circumstances in each case must be considered in determining whether the injury arose out of and was in the course of employment.The positional risk doctrine: the injury may be connected with the employment, if the work responsibilities place the employee in a position to sustain injury, even though the direct cause of injury is not employment-related. Ramsdell v. Horn, 781 P.2d 150 (Colo. 1989).
Course and scope requirements can be met even where the employee is Injured while off work premises on a paid break or when the employee was no longer required to work.
But see, Escobedo v. Midwest Drywall Company, Inc., W.C. No. 4-700-127 (ICAO July 13, 2007). Supervisors noticed defects in a scaffold. Claimant was directed not to use it until replacement parts could be obtained. He was told he could go home or wait for the parts. The scaffold was disassembled and the supervisors left. Claimant reassembled the scaffold, went to work on it and was subsequently injured. The supervisors’ specific directive limited claimant’s sphere of employment. Injury sustained when violating such directive was not compensable.
When claimant was injured during pre-employment agility test and claimant had successfully completed all other tests and requirements to be hired injury was compensable. Underwood v. SkyWest Airlines, Inc., W.C. No. 4-745-218 (ICAO December 1, 2008).A contrary result was reached denying compensability where employee was injured during a pre-employment physical, because no mutual agreement existed between the parties that created a mutual obligation." Lopez v. Industrial Claim Appeals Office, P.3d , 09CA2246 (September 16, 2010), (NSOP) citing Younger v. City & County of Denver, 810 P.2d 647, 653 (Colo. 1991).
Intentionally self-inflicted injuries are not compensable. Triad Painting Company v. Blair, 812 P.2d 638 (Colo. 1991). C.R.S. § 8-41-301(1)(c).But see, Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo. App. 1994) where suicide was caused by compensable injury. The industrial injury caused the mental condition that in turn caused the suicide.
Suicide caused by the denial of workers' compensation claim not compensable, Moore v. Industrial Claim Appeals Office, _ P.3d _(Colo. App. June 23, 2005) (NSOP).
An employee is not entitled to disability benefits during the period of time he is in jail or prison following a conviction. After the employee’s release from confinement, the employee is restored to the same position with respect to entitled benefits that the individual would otherwise have received at the point of time of such release. However, the person is not entitled to recover, recoup, or otherwise retroactively obtain any benefits that were denied during the period of confinement. If, on appeal, the conviction is overturned, the individual is entitled to recover benefits to which he or she would have been entitled except for the operation of this statute.
The carrier may file an admission of liability along with a certified copy of records reflecting the conviction and may unilaterally terminate temporary total disability benefits. Community Corrections is not confinement in jail. City and County of Denver v. Industrial Claim Appeals Office, W.C. No. 4-601-057(Colo. App. August 4, 2004).
The fact that an employee broke the law does not prove a safety violation unless the employer has a rule that prohibits the employee from breaking the law.
C.R.S. § 8-42-112 provides that Injuries resulting from the intoxication of the employee can reduce compensation by 50. Where the injury is the result of intoxication and the claimant has a blood alcohol level of .10 or higher, there is a presumption that the claimant was intoxicated and that the injury was due to the intoxication.
Effective July 1,1999, C.R.S. § 8-42-112.5 provides that non-medical benefits otherwise payable to an injured worker shall be reduced fifty percent where injury results from the presence in the worker’s system, during working hours, of non-medically prescribed controlled substances, or of a blood alcohol level at or above 0.10 percent. Duplicate sample from any test conducted shall 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 shall be presumed that the employee was intoxicated and that the injury was due to such intoxication. This presumption may be overcome by clear and convincing evidence.
C.R.S. § 8-42-112 provides that certain acts undertaken by the employee can reduce compensation by 50%. These acts include: an injury caused by the willful failure of an employee to use a safety device; and an injury resulting from an employee’s willful failure to obey any reasonable rule adopted by the employer for the employee’s safety.
There must be proof that the employer’s rule is “brought home to the employee” and is enforced. In other words the employer may not previously acquiesce in its violation.
The safety violation must be the cause of the injury.
Where the claimant is receiving periodic disability benefits for which a reduction is already being taken pursuant to C.R.S. § 8-42-103, for example SSDI, the fifty percent reduction provided for a safety violation shall be computed according to the rate of benefits received by the claimant after, and not before such other reduction has been made.
In order for this section to reduce compensation, the employee must have violated the safety rule with deliberate intent. If the employee had a plausible purpose to violate the rule, compensation will not be reduced. For example, where an employee removed a safety glove in order to operate equipment which was faulty, compensation was not reduced. City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App. 1990).
Because of the requirement that the violation be intentional and because the penalty so severely reduces the amount of claimant’s disability benefits safety violations are rarely imposed.
Medical benefits are not reduced under this section. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo. App. 1995).
Where the claimant admitted to violating a safety rule, the ALJ may nevertheless determine that the employer has not met its burden of proof if the ALJ finds that the claimant had inadequate knowledge as to whether or not she actually violated the rule. Bromirski v. Shiman Chu, 4-882-047 (August 21, 2013).
The burden of proof is upon the employer to show that the employee willfully violated the safety rule. Lori’s Family Dining v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995).
As of July 1, 1999, where the employee willfully misleads an employer concerning the employee’s physical ability to perform the job, and the employee is subsequently injured on the job as a result of the physical ability about which the employee willfully misled the employer, the fifty percent reduction is also applicable. This provision shall apply in addition to any other penalty that may be imposed under C.R.S. § 8-43-402 (safety violations) and C.R.S. § 8-42-112(1) (d)(fraud).
The reduction for safety violation may be applied retroactively after hearing despite previous general admission which did not take penalty. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000).
Respondents may assert safety violation penalty in the first instance and not risk penalties, but must pay according to their admission. Carr v. Pasco/SW, Inc., W.C. No. 4-751-083 (ICAO January 5, 2010).
An assault or harassment of an employee may be compensable if it arises from: an “inherent connection” with the employment such as a dispute over performance, pay, or termination. Rendon v. United Airlines, 881 P.2d 482 (Colo. App. 1984), or Those resulting from a “neutral force” such as from a random assault.
A co-employee may not necessarily be immune from a tort claim if the matter did not arise out of the tort-feasor’s employment, for example if the conduct derives from matters personal to the employee or from a neutral force unrelated to employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). In other words, an assault may not be compensable if it stems from an “inherently private” dispute imported into the employment from the claimant’s domestic or private life. Popovich, supra.
Sexual assault by employer on employee may not necessarily “arise out of” employment. Stampher v. Hiteshew, 797 P.2d 784 (Colo. App. 1990).