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
- 5.8 Retirement
- 5.1 Course of Employment
- 6.1 Calculation of Average Weekly Wage
- 6.2 Total Disability
- 6.3 Partial Disability
- 6.4 Amputation or Loss of Use (Permanent Partial Disability based upon the Schedule)
- 6.5 Disfigurement/Scarring
- 6.6 Loss of Sight
- 6.7 Loss of Hearing
- 6.8 Penalties
- 6.9 Interest
- 6.10 Costs
- 6.11 Counsel Fees
- 6.12 Death Benefits
- 6.13 Medical Benefits
- 6.14 Refusal of Medical Treatment
- 7 SUBROGATION OR CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
10 LITIGATION AND APPEAL
- 10.1 Workers’ Compensation Judge Proceedings
- 10.2 Workers’ Compensation Appeal Board (Industrial Claim Appeals Office)
- 10.3 Commonwealth Court and Supreme Court (Colorado Court of Appeals)
- 11 SETTLEMENT
- 12 INSURANCE
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.
C.R.S. §8-41-202 provids that every person, or corporation owning any real property or improvements thereon and contracts out any work done on and to said property to any contractor, subcontractor, or person who hires or uses employees in the doing of such work shall be deemed to be an employer under the terms of the Act. The on and to provision addresses what work the injured party was performing on property. Krol v. CF & I Steel, 307 P.3d 1116 (Colo. App. 2013).
Where the actual employer, the next statutory employer up the line of contact, or ultimate statutory employer is insured all three may be held liable for claimant’s work-related injuries. Hernandez v. MDR Roofing, Inc., W.C. No. 4-850-627 (ICAO February 27, 2013 & September 20, 2013) reversed on other grounds.
However, the Supreme Court held in Herriott v. Stevenson, 473 P.2d 720 (Colo. 1970) that only one employer can be liable under the Act.
In Read v. Industrial Claim Appeals Office, ____P.2d____ (Colo. App. October 18, 2012) (NSOP), settlement with insured ultimate statutory employer defeated claims with uninsured employer and other statutory employer up the chain from 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 actual employer, the next statutory employer up the line of contact, or ultimate statutory employer is insured all three may be held liable for claimant’s work-related injuries. Hernandez v. MDR Roofing, Inc., W.C. No. 4-850-627 (ICAO February 27, 2013 & September 20, 2013) reversed on other grounds.
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.
Effective June 5, 2013, a buyer of goods is not a statutory employer when a worker is injured when delivering goods to the buyer. C.R.S. §8-41-401(1)(a)(II) & (III).
Monell v. Cherokee River, Inc., 347 P.3d 1179 (Colo. App. 2015) Statutory employers are entitled to immunity from tort. The District Court was not specifically required to apply the “regular business test” as defined by its total business operation.
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).
An insurer has no contractual or statutory obligation to notify the non-insured holder of a certificate of insurance upon cancellation of the insurance policy. Pinnacol Assurance v. Hoff, 375 P.3d1214 (Colo. 2016).
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.
EmployeeC.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" 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" 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 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.
In Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994), the Colorado Supreme Court held that if services are volunteered without any expectation of compensation in return, an employer providing some gratuitous benefits will not convert to a volunteer into an employee.
Volunteer Police C.R.S. §8-40-202(1)(a)(I)(A) provides that posse, several types of volunteers, including volunteer firefighters, volunteer rescue, disaster and ambulance teams are employees. However, the provision of the statute that allows the governing bodies the choice to deem volunteer police as employees subject to the Workers’ Compensation Act, or not, was determined to be a unconstitutional denial of equal protection in Pepper v. Industrial Claim Appeals Office, 131 P.3d 1137 (Colo. App. 2005).
Borrowed EmployeeC.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)
Independent ContractorAn 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:
- mandate the individual work only for the person for whom services are performed;
- establish a quality standard;
- pay at a salary or hourly rate instead of a fixed fee;
- terminate the work of the provider unless the provider violates the contract terms;
- provide more than minimal training;
- provide tools or benefits, except materials or equipment;
- dictate time of performance; except a completion schedule and range of mutually agreeable hours;
- pay the service provider personally instead of making checks payable to the trade or business name of the person; and
- 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.
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).
The ALJ should consider the totality of the circumstances rather than just the 9 statutory factors listed in the independent contractor portion of the unemployment statute. Industrial Claim Appeals Office v. Softrock, 325 P.3d 560 (Colo. 2014). Claims were brought to determine whether employer owed taxes for unemployment insurance which is not owed for independent contractors. The focus was on the question of whether the person was customarily engaged in an independent trade, occupation, profession, or business related to the services performed.
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.
General RuleThe 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. § 8-41-102.
The 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.
No Exception Recognized
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.
JURISDICTION AND LIMITATIONS OF ACTIONS
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, unless:
The 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.
In Youngquist v. Miner, 390 P.3d 389 (Colo. 2017) the Supreme Court held that Colorado did not have sufficient minimum contacts with Colorado to exercise personal jurisdiction over an out of state employer who hired a Colorado resident who applied for an online job with employer, and was interviewed and hired by telephone while in residing in Colorado. Within two days after leaving Colorado for his new job, Claimant was injured. The Supreme Court noted that it was simply “random and fortuitous” that the employer contacted claimant while he was in Colorado. The employer did not specifically recruit Colorado residents, did not physically send a representative to Colorado, nor did the employer have a physical business location in Colorado.
In Turner v. Sunrise Transport, W.C. 4-981-338 (ICAO August 23, 2017), Claimant was an over the road truck driver hired in British Columbia. His employer’s company headquarters is in British Columbia, Canada. Claimant was injured while making a delivery in Colorado and sought Colorado workers’ compensation benefits. Respondents argued Colorado lacked jurisdiction. The ALJ found only 6.2% of Claimant’s work was performed in Colorado, which was insubstantial so as to create jurisdiction, and dismissed the claim. For Colorado jurisdiction, a substantial portion of the work must be done in the state and, in addition, it must be shown there was either an injury occurring in the state or a contract of hire in the state. United States Fidelity Co. v. Industrial Commission, 61 P.2d 1033 (1936).
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.
Notice of Injury
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).
Statute of Limitations
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.
In Harman-Bergstedt, Inc. v. Loofbourrow, 320 P.3d 327 (Colo. 2014) the Colorado Supreme Court held that the determination of Maximum Medical Improvement has no statutory significance with regard to injuries resulting in the loss of no more than three days or shifts of work time, Loofbourrow's award of temporary total disability benefits was not barred by her failure to first seek a Division-sponsored independent medical examination. In other words, a Final Admission does not close a claim where there has been no admission for indemnity benefits. See also, Kazazian v. Vail Resorts, W.C. No. 4-915-969 (ICAO April 24, 2017).
Trujillo v. Elwood Staffing and Zurich Am. Ins. Co., W.C. 4-957-118 June 22, 2017) dealt with the question of when a medical-only claim can close and what impact a DIME opinion has on this type of claim. Here, Respondents filed a Final Admission of Liability admitting for no lost time and no permanent impairment based on DIME report. Because the DIME opinion on MMI had no impact, ICAO held that (1) Claimant’s claim was not closed, (2) the FAL was premature, and (3) the FAL did not preclude the Claimant from requesting further medical benefits. ICAO held that Claimant would need to prove the reasonableness, necessity, and relatedness of any disputed medical benefit in the future, but would not have to prove a worsening of condition to formally reopen the claim in order to get the medical treatment.
Special Rules for Death Claims
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.
Occupational Disease Death Claims
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.
Occupational Disease Claims
The two-year statute of limitations apply 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. Such claims 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).
Extension of Limitation Period
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.
For claims in existence on or after July 1, 2013, after notice of an injury, if respondents initially fail to furnish reasonable, necessary and related medical treatment following an admission or determination of compensability, respondents must reimburse claimant, insurer or government program for the cost of treatment provided upon a later determination of compensability or admission of liability.
The injured worker is entitled to reimbursement of the full amount paid regardless of fee schedule. The insurer or employer may seek reimbursement from the medical providers for any amount in excess of fee schedule. C.R.S. §8-42-101(6).
Once an admission has been filed an employer may not unilaterally withdraw it, but must continue making payments consistent with the admitted liability until an order is obtained allowing modification or revocation in whole or in part. Insurer need only place withdrawal of admission into issue, at which point the burden is upon the claimant to prove the injury is compensable. Pacesetter Corporation v. Collett, 33 P. 3d 1230 (Colo. App. 2001).
However, after August 5, 2009, the party that seeks to modify an issue determined by admission or order bears the burden of proof for any such modification. C.R.S. §8-43-201.
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).
In Richard Hutchinson v. Pine Country, Inc., W.C. No. 4-972-492 (ICAO July 29, 2016), Respondents were required to pay one third of the cost of medical and temporary disability benefits because claimant’s knee arthritis and need for a total knee replacement was equally caused by three factors including genetics, age/weight, and work tasks. C.R.S. §8-42-104(3), which states that medical and temporary disability benefits shall not be reduced based on a previous injury, did not apply, because the occupational disease of osteoarthritis did not involve a “previous injury.” Instead, the disability was the aggravation of the arthritis, which was equally attributed to the three different factors.
Aggravation of Preexisting Conditions, 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. Industrial Claim Appeals Office, 09CA0264 (Colo. App. January 14, 2010) (NSOP).
Types of Injuries
Accident Not Required
(1)Accident" means an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesignated 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:
- 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;
- the baseline test establishes that the employee was not infected at the time of exposure;
- the employee complies with the medical procedures paid for by the employer in the 24 months after the exposure; and
- 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).
C.R.S. §8-41-209, creates a presumption that disability, death or impairment suffered by a firefighter which results in certain types of cancer, is considered an occupational disease. The presumption applies to firefighters with 5 or more years of employment who underwent a physical exam that failed to reveal substantial evidence that the condition preexisted employment. The employer may overcome the presumption by a preponderance of the evidence of the evidence. Applicable to all claims filed on or after May 17, 2007. Insurers are required to report the number of claims and costs to the legislature.
The presumption in C.R.S. §8-41-209 relieves a qualifying claimant firefighter of the burden to prove his cancer was caused by firefighting. An employer may rebut that presumption by establishing the absence of either general or specific causation. The Supreme Court concluded that the claimant’s cancer did now occur on the job because the known or typical firefighting exposures did not cause the type of cancer at issue, and the claimant was not exposed to the specific causes of this type of cancer such as ionizing radiation from an atomic blast. City of Littleton v. Industrial Claim Appeals Office, 370 P.3d 157 (Colo. 2016).
In this companion case, the Colorado Supreme Court remanded the case to the ALJ for reconsideration of whether the City of Englewood overcame the presumption in the statute in light of the Court’s decision announced in the City of Littleton case. Industrial Claim Appeals Office v. Town of Castle Rock, 370 P.3d 151 (Colo. 2016).
Volunteer firefighting and days training to become a firefighter count when determining what constitutes employment for purposes of calculating the five-year time period under the firefighter cancer presumption statute. City and County of Denver v. Industrial Claim Appeals Office, 328 P.3d 313 (Colo. 2014).
In Vitwar v. City of Colorado Springs, W.C. No. 4-832-507-06 (ICAO July 19, 2017) Claimant met the requirements of the firefighter cancer presumption statute C.R.S. 8-41-209. Those requirements are the following: Claimant has been a firefighter for five or more years; he suffered an onset of a specific condition listed; and that there was no evidence showing he had melanoma when Respondents hired him. Under the firefighter cancer presumption statute, C.R.S. 8-41-209. Employers have the burden, by preponderance of the evidence, to prove that a firefighter’s cancer is not related to their employment after the Claimant has met the enumerated requirements of the statute.
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).
Effective January 1, 2015, C.R.S. §§29-5-301 & 29-5-302 provide employer paid benefits for eligible firefighters who suffer heart attack and circulatory malfunctions for purposes of employer policies and benefits, but the rule will not affect the determination as to whether the heart or circulatory malfunction was compensable under the Workers’ Compensation Act. Benefits awarded under the Workers’ Compensation Act will offset benefits awarded under the new provision. This does not include hypertension or angina. C.R.S. §29-5-302(10).
Psychological injuries are compensable under the Colorado Workers’ Compensation Act. Three separate categories of such injuries are recognized:
- Physical stimulus causing psychic injury (physical/mental injuries);
- Psychological stimulus causing psychic injury (mental/mental injuries); and
- 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) 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:
- The mental impairment must be supported by the testimony of a licensed physician or psychologist.
- 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;
- 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;
- 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;
- 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
- 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.
- Cases where the injured worker is subject to an attempt to cause serious bodily injury through the use of deadly force.
- Cases where the worker visually witnesses the death or immediate aftermath of one or more people due to a violent event.
- Cases where the worker repeatedly witnesses the serious bodily injury of one or more people as a result of an intentional act or accident, and
- Only applies to a diagnosis of PTSD.
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.
Previous case law indicated that, "an occupational disease is present if employment conditions act upon an employee's pre-existing weakness or hypersensitivity so as to produce a disabling condition which would not have existed absent the employment conditions." Masdin v. Gardner-Denver-Cooper Indus., Inc., 689 P.2d 714, 717 (Colo. App. 1984). Masdin recognized that occupational diseases may have both work-related and non-work-related causes, and that an employer may therefore be liable for only a portion of a claimant's occupational disease. Masdin apportionment was adopted by the Colorado Supreme Court in Anderson v. Brinkhoff, 859 P.2d 819, 825 (Colo. 1993).
After Anderson, was decided the legislature amended the apportionment statute to prohibit apportionment in certain circumstances. The current version of the statute provides "An employee's temporary total disability, temporary partial disability, or medical benefits shall not be reduced based on a previous injury." § 8-42-104(3).
In Richard Hutchison v. Industrial Claim Appeals Office, 2017 COA 79 16CA1375(Colo. App. June 1, 2017) the court properly apportioned that only one-third of Claimant’s injury was work related. Claimant was diagnosed with osteoarthritis in his bilateral knees. The ALJ adopted the apportionment opinions of Respondents’ medical expert and attributed one-third of the cause of Claimant’s bilateral arthritis to work-related factors. The occupational disease at issue here was "characterized as the aggravation of osteoarthritis." In other words, because the claimant's knee condition was one ongoing disease with many causes, both work- and non-work- related, there was no separate "previous injury" as anticipated by section 8-42-104(3); it was instead one "injury" with multiple causes and not a "previous injury" because there was no onset of the occupational disease that occurred "before in time." The Panel therefore concluded that section 8-42-104(3)'s prohibition against apportionment for a "previous injury" did not apply.
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 (ICAO, 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 was sufficient to support an 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.
- Chronic respiratory disease;
- Pneumoconiosis, including but not limited to Coal worker’s lung, Asbestosis, Silicosis, and Berylliosis;
- Nervous system diseases;
- Blood borne infectious, contagious diseases.
A stress claim analyzed as an 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.
EXCLUSIONS AND DEFENSES
Course of Employment
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. 1994). 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).
The Supreme Court held that an unexplained fall satisfies the arising out of employment requirement C.R.S. §8-41-301(1)(c). If the fall would not have occurred, but for, the facts and obligations of the employment that place the claimant in a position where she was injured. Under the, but for, test all risks that cause injury to employees can be placed in three well-established, overarching categories: (1) employment risks, which are directly tied to the work itself; (2) personal risks, which are inherently personal or private to the employee; and (3) neutral risks, which are neither, employment related nor, personal. The court found that because the precise mechanism of claimant’s unexplained fall was neither occupational, nor personal, by definition, such default is a neutral risk, and is compensable. City of Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014).
Miles v. City and County of Denver, W.C. No. 4-961-742 (ICAO December 15, 2015) Personal risks are only compensable if there is a special hazard contributing to the injury. Degenerative arthritis is a personal risk. Stepping forward and hearing a pop in knee was not a special hazard.
The Court of Appeals found a compensable injury when claimant testified his right knee popped when he stood up from a kneeling position at work. The Court of Appeals determined that the injury fell into the neutral risk category, and, but for, the claimant’s employment the injury would not have occurred. Sanchez v. Industrial Claim Appeals Office, 15CA1481 (Colo. App. 2016) (NSOP).
Engaged in the Furtherance of Employer’s Business
“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.
Not in Furtherance of Employer’s BusinessExercise 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:
- Whether injury occurred during working hours;
- Whether injury occurred on Employer’s premises;
- Whether employer initiated employee’s exercise program;
- Whether employer exerted direction or control over exercise program; and
- 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:
- whether the recreational activity occurred during working hours;
- whether it was held on or off employer’s premises;
- whether employee participation was required or encouraged;
- whether the activity was financially sponsored by the employer;
- whether the activity was initiated by the employer; and
- whether the employer received tangible benefits from the activity.
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:
- the extent and seriousness of the deviation;
- the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved in abandonment of duty;
- the extent to which the practice of horseplay had become an accepted part of the employment; and
- 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, 62 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).
No Fixed Place of Work ExceptionThe course of employment for a stationary employee is narrower, while that of a traveling employee is broader.
Transportation Included in Employment ExceptionUnder 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:
- whether the travel occurred during working hours;
- whether the travel was on or off employer premises;
- whether the travel was contemplated by the employment contract; and
- whether the obligations or conditions of the employment created a zone of special danger.
- a journey assigned by employer;
- where travel confers benefit on employer beyond arrival at work; and
- where travel is inducement to employment.
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 its 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).
Barnes v. City and County of Denver Police Department, W.C. 5-003-724-04 (ICAO August 25, 2017), a police officer was injured when he crashed his work issued motorcycle traveling from work, to his home, following the end of a work shift. Despite the “going and coming” rule the injury was compensable because Claimant’s travel was “contemplated by the employment contract” and there was a substantial mutual benefit for claimant’s use of the motorcycle after work.
Special Missions, Assignments, or Circumstances Exception
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. Hirst, 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).
Premises and Parking Lot CasesIn 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).
Courts have previously recognized that the time limits of employment embrace a reasonable interval before and after official working hours when an employee is on the employer’s property. In Gallegos v. King Soopers, W.C. No. 4-875-758 (ICAO April 11, 2013).
In Pueblo County v. Industrial Claim Appeals Office, 2017 COA 74, 16CA1388 (Colo. App. May 18, 2017) Union meeting was a mutual benefit to the employer and employee. Thus, the injuries claimant sustained in the parking lot after leaving the union meeting were compensable.
Related to EmploymentAn 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 Injury or Death
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).
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.
Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
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.
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.
Community Corrections is not considered confinement in jail for purposes of entitlement to indemnity benefits. City and County of Denver v. Industrial Claim Appeals Office, 98 P.3d 969 (Colo. 2004).
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.
C.R.S. §42-4-1301(6)(a)(IV) establishes a permissible inference that a driver of a motor vehicle is under the influence of drugs when blood sample reveals 5 nanograms or more of delta 9 tetrahydrocannabinol (THC) per milliliter of blood.
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.
Employee’s Violation of Positive Orders of Employer
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.
ALJ’s Order finding claimant willfully violated safety rule on tying off despite his testimony that he forgot or was simply careless was upheld on appeal. Perez v. Brand Energy Solutions, W.C. No. 4-883-479 (ICAO July 23, 2013).
C.R. S. §8-42-112(3) requires an Admission of Liability include an employer’s statement listing the specific facts on which a 50% reduction is taken for an alleged failure to use safety devise, obey a safety rule or where employee misled the employer concerning the employee’s physical ability to perform the job and was subsequently injured as a result.
C.R.S. §8-42-112(4), (5), & (6) establish right to expedited hearing if Application is filed within 45 days after Admission is filed taking a 50% reduction. The Director is required to set the hearing within 60 days of the date of the Application.
In Shaikh v. Colorado Springs Transportation and Old Republic Ins. Co., W.C. No. 4-968-013 (ICAO April 15, 2016). Claimant was not wearing her safety belt when she was involved in a motor vehicle accident. Respondents offered no persuasive evidence that Claimant would not have sustained the same injuries had she been wearing her safety belt. Thus, Respondents were not entitled to reduce Claimant’s compensation by 50%.
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, W. C. No. 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. 1994), 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).
There is nothing in the Workers’ Compensation Act in Colorado precluding compensation in the case of military activities or sabotage.
Where the evidence indicates the claimant decided to permanently remove himself from the labor market, regardless of the injury, no temporary disability benefits are payable. Conversely, a voluntary retirement does not necessarily preclude an award of temporary disability benefits. State Compensation Insurance Authority v. Industrial Commission, 786 P. 2d 423 (Colo. App. 1989).
Thus, if the worker is disabled at the time of a voluntary retirement, and the decision to retire is prompted by the disability, disability benefits may be awarded. Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo. App. 1986).
But see, El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo. App. 1993) In 1987, Claimant sustained injuries in a work-related automobile accident. She returned to work on a part-time basis, but in March 1989, she voluntarily retired from her employment. The claimant’s retirement severed the causal connection between her wage loss and the compensable injury and claimant's temporary partial disability benefits were terminated from the date of retirement. See, Donn v. Industrial Claim Appeals Office, (Colo. App. No. 90CA0840, April 11, 1991) (not selected for official publication). However, in December 1991, claimant filed a petition to reopen, alleging that her back condition had worsened. The ALJ found that claimant's back condition had deteriorated significantly by January 1990, and cited medical evidence that claimant's back condition precluded work. When claimant was only partially disabled, her voluntary retirement was an intervening event because she was still capable of working part-time. However, once claimant became totally disabled, retirement no longer had the effect of an intervening act.
Proof of Voluntary Retirement
The burden is upon the claimant to prove a direct causal relationship between the industrial disability and the permanent retirement from all employment. Monaco v. Hewlitt Packard, W.C. No. 4-120-069 (November 10, 1993); Cook v. University of Colorado, W.C. No. 3-723-139 (December 24, 1987); cf. Safeway Stores, Inc. v. Husson, 732 P.2d 1244 (Colo. App. 1986).
In Ecke v City of Washington, W.C. No. 5-002-020 (ICAO May 5, 2017), Claimant was injured at work the day before his planned retirement. Claimant sought TTD benefits between his date of injury and the date he reached MMI. Respondents asserted the wage loss was related to claimant’s volition act of his retirement and not the work injury pursuant to 8-42-103(g) and 8-42-105(4)(a). His voluntary resignation defeated his claim for TTD as the resignation precluded the employer from the opportunity to offer modified duty.
Calculation of Average Weekly Wage
C.R.S. §8-42-102 provides the basis upon which to compute the average weekly wage. In general, a monthly wage is multiplied times twelve and divided by fifty-two, and an hourly rate is multiplied by not less than eight hours or, less than five days.
There are specific discussions in this statute concerning how employee’s average weekly wage is calculated when service is rendered on a per diem basis or when claimant is paid by the mile, piece work, tonnage, or commission.
Per Diem is included in the definition of average weekly wage. Young v. Industrial Claim Appeals Office, 969 P.2d 735 (Colo. App. 1998).
C.R. S. §8-40-201(19)(c) states that no per diem payment shall be considered wages under this section unless it is also considered wages for federal income tax purposes.
Reasonable value of rent, board, housing and lodging are part of per diem. Sneath v. Express Messenger, 881 P.2d 453 (Colo. App. 1994).
When the above methods of computing the average weekly wage will not fairly compute the wage, the Division has the discretion to compute the average weekly wage in such other matter and by such other method as will, in the opinion of the Director based upon the facts presented fairly, determine such employee’s average weekly wage. C.R.S. §8-42-102(4).
For an extreme example, See, Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo. App. 2001), where the Court affirmed average weekly wage for permanent partial disability based upon subsequent full time employment as nurse rather, than part time work for Pizza Hut.
Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). This case allows for a higher weekly wage to be enforced by the Administrative Law Judge for subsequent periods of disability. For example, a claimant who has been injured and has been determined to have an average weekly wage at the time of his injury and then subsequently returns to work may have his average weekly wage increased for subsequent periods of disability.
The July 1, 2010, statutory changes clarifies that the phrase “at the time of injury” in subsection (2) of C.R.S. §8-42-102, refers to the wage on the date of accident for purposes of determining the worker’s average weekly wage. This clarification does not alter the discretion of the Division or Director to fairly determine a worker’s average weekly wage. C.R.S §8-42-102(5)(a) and (b).
Other employment may be considered when computing average weekly wage. The leading case in this area is St. Mary’s Church and Mission v. Industrial Commission, 735 P.2d 902 (Colo. App. 1986), cert. denied 753 P.2d 769 (Colo. 1988). Claimant held a total of five-part time housekeeping jobs, but earned only $40 per week from the job in which she was injured. The Court of Appeals affirmed the average weekly wage based upon the total weekly wages from all five jobs.
In Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988) where claimant’s injury rendered her unable to perform her duties in two dissimilar jobs, the Court determined it was appropriate to calculate claimant’s average weekly wage based upon both employments.
In Phillips-Zalal v. King Soopers, Inc., W.C. 5-000-569 (ICAO April 26, 2017), ALJs have wide-discretion to compute a Claimant’s AWW. The ALJ was not precluded from calculating Claimant’s AWW using her concurrent employment wages, despite the fact that Claimant suffered no lost time and no lost wages from her concurrent employment.
Where claimant was employed as a ramp handler and concurrently as a service writer as of the date of injury, there was no abuse of discretion in not including the higher paying wages as a service writer when the injury had no effect on his preinjury and post injury higher paying job as a service writer. Mason v. UPS, W.C. No. 4-637-934 (ICAO August 1, 2006).
Employer provided health insurance is one of the “advantages” contemplated by the provisions of C.R.S. §8-42-201. The value of such benefits should be included in the calculation of the claimant’s average weekly wage, if the health insurance is discontinued while an employee is disabled. The value of those benefits is the replacement cost regardless of actual purchase. Industrial Claim Appeals Office v. Ray, 145 P.3d 661 (Colo. 2006).
Replacement costs may be the reasonable value of the health insurance at the time of the injury.
Due to the Federally mandated COBRA Subsidy employees that were involuntarily terminated between September 1, 2008 and December 31, 2009, were eligible to receive a subsidized rate on their COBRA, provided they have no access to other health plan eligibility. The claimant pays 35% of the COBRA rate for the plans they were on. The employer pays the other 65% for up to 15 months. Thus, only 35% of the COBRA costs are added to the AWW for the first 15 months. This is again true regardless of actual purchase.
C.R.S. §8-42-103(2) imposes an obligation on the part of the adjuster to within 15-days of notice of the termination of the fringe benefit, the cost of conversion of the fringe benefit and the effective date, to recalculate the average weekly wage, file an Amended Admission of Liability and begin payment of benefits at the adjusted rate, along with any interest, from the date of notice that a fringe benefit was terminated. Benefits and interest are payable from the date of termination of the fringe benefit. Effective July 1, 2013.
COBRA costs are not added to the Average Weekly Wage when claimant went on Medicaid. Whalen v. Exempla Healthcare, Inc., W.C. No. 4-779-033 (ICAO March 16, 2010).
Monies received by a claimant under a “wage dividend plan” should be included in the computation of average weekly wage. Simmonds v. Eastman Kodak Company, 781 P.2d 140 (Colo. App. 1989).
Claimant’s average weekly wage should not include amounts contributed by an employer to a non-vested retirement benefit. Russell v. Colorado Division of Employment, 786 P.2d 483 (Colo. App. 1989).
The value of group health insurance and supplemental life insurance provided by claimant’s employer should be included in the determination of average weekly wage. Murphy v. Ampex Corp., 703 P.2d 632 (Colo. App. 1985).
If claimant can be covered by spouse’s group health policy at no cost nothing would be added to average weekly wage. Osinski v. Humane Society of Pikes Peak Region, W.C. No. 4-378-187 (ICAO June 2000).
The Court of Appeals clarified this opinion holding that, the employee’s contribution, including amounts paid for dependent coverage, was included in average weekly wage calculation. Humane Society of Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001). When coverage is terminated by the employer the “cost of conversion to a similar or lesser” plan is included. The Court rejected contention that claimant actually had to obtain coverage for it to be included in AWW calculation.
In order for the employee's cost of health insurance to be added to her average weekly wage, there is no requirement that the employer ever made a contribution to the premiums; the fact that the employer is able to obtain a group insurance rate may itself represent a fringe benefit of employment not available to the general population. McMullin v. Belmar Medical Center, W.C. No. 4-496-203 (ICAO, December 20, 2002).
Restaurant Technologies, Inc. v. Industrial Claim Appeals Office, 15CA0231 (Colo. App. 2016) (NSOP) COBRA premium must be added to the Average Weekly Wage even when claimant did not elect COBRA coverage, even if the Employer would have continued to pay their portion of the cost had claimant elected to continue the coverage.
In Industrial Claim Appeals Office v. Ray, 145 P.3d 661 (Colo. 2006), Three workers' compensation claimants sought review of final orders of the Industrial Claim Appeals Office determining that the computation of their average weekly wage should not include the cost of health insurance, because they did not actually pay to continue coverage after their employment was terminated. After consolidating the three cases, the Supreme Court, held that claimants were not required to purchase continuing or converted health insurance under COBRA in order for the benefit of health insurance to be included in their average weekly wage.
A claimant’s benefits for permanent total disability are capped at the maximum rate that was in effect on the date of injury Benchmark/Elite, Inc. v. Simpson v. Industrial Claim Appeals Office, 232 P.3d 777(Colo. 2010)
Claimant's average weekly wage (AWW) could be recalculated to reflect her higher earnings from a subsequent employer and to include the cost of her group health insurance at the new employer. The cost of continuing health insurance coverage was to be included in AWW, despite claimant's decision not to purchase continuing coverage from employer. The court found the “default provision” of C.R.S.§8-42-102(2) provides the AWW should be calculated using the monthly weekly, daily, hourly or other remuneration received by the employee at the time of the injury, and C.R.S. §8-42-102(3) is the “discretionary exception” where the foregoing methods do not fairly compute the AWW. The discretionary exception is not tied to the date of injury. After upholding the AWW based upon the wages from a subsequent employer based upon the discretionary exception the court went on to conclude the decision would have been the same under the default provision because there can be multiple “injuries” (periods of disability) under one claim. Avalanche Industries, Inc. v. Clark, 198 P.3d 589 (Colo. 2008).
Average Weekly Wage based upon the loss of estimated future earning capacity of an injured worker had the worker secured employment in a separate field after the industrial injury, based upon vocational expert testimony was upheld in, Wheeler v. Archdiocese of Denver Management Corp., W. C. No. 4-669-708 (ICAO December 21, 2010).
The amounts an employee earns in tips which are actually reported to the Internal Revenue Service are included in calculating average weekly wage. C.R.S. §8-40-201(19). Petrafeck v. Industrial Commission, 554 P.2d 1097 (Colo. 1976).
FICA payments should not be included in the calculation of the average weekly wage. Gregory v. Crown Transportation, 776 P.2d 1163 (Colo. App. 1989), cert. denied, 785 P.2d 916 (1989).
Vested PERA contributions are considered a benefit included within the claimant’s average weekly wage. Floyd v. AMF Tuboscope, 817 P.2d 534 (Colo. App. 1990).
City of Lamar v. Koehn, 968 P.2d 164 (Colo. App. 1998). The cash value of employee contributions to a pension plan is not to be included in calculation of the claimant’s average weekly wage.
Minors under 21 years of age whose disability is temporary shall be determined as in the case of the disability of adults. However, where the disability is permanent or causes death the compensation shall be paid at the maximum rate at the time that permanency is determined; i.e., the maximum medical improvement date. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995).
Arkansas Valley Seeds, Inc. v. Fluck, 972 P.2d 695 (Colo. App. 1998). Computation of permanent medical impairment benefits for a minor is based upon the maximum temporary total disability rate at the time of the determination of permanent impairment for whole person injuries. (A minor’s scheduled impairment is paid at the scheduled injury rate.)
Total DisabilityTemporary Total Disability Benefits
C.R.S. §8-42-105 provides that an employee who cannot work at all for more than three regular working days or shifts, receives temporary total disability benefits in the amount of 66 2/3 of the employee’s average weekly wage, not to exceed a maximum of 91% of the state average weekly wage.
The workers’ compensation benefit amount is based upon a seven-day calendar week, Rule 5-11(A).
A claimant who is seasonally employed with a fixed term of employment may receive temporary disability benefits even though the season is over, if record establishes industrial disability contributed directly to post-injury wage loss. City of Aurora v. Dortch, 799 P.2d 461 (Colo. App. 1990). Examples would include employees of a lawn service, life guard or ski patrolman.
In the case of Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997), the Court found that a claimant was entitled to temporary total disability benefits even though a physician had not taken claimant off work. There the Court relied upon the claimant’s testimony to the effect that she was unable to work despite the fact that she had not sought medical treatment and had not been restricted from work by a physician.
When the attending physician provides a claimant with a written release to work, and the record contains no conflicting opinions from the attending physicians regarding claimant’s release to work, the use of the word “shall” in the statute is perceived to indicate a mandatory requirement, an Administrative Law Judge is required to terminate temporary total disability benefits pursuant to this statute. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).
In City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997), temporary total disability benefits were properly terminated when claimant reached maximum medical improvement, the occurrence of a further industrial injury more than three months later, whether viewed as a “worsening” of the original injury or not, could not revive the claimant’s right to temporary total disability benefits, because it was not the cause of any further restrictions. In other words, the worsened condition did not cause an additional temporary loss of wages; therefore, there was no entitlement to renewed temporary total disability benefits.
Claimant may not receive more than one temporary disability award for the same period of time. Atencio v. JBQ and Allen, Inc., W.C. No. 4-350-555 (ICAO June 2000).
Under the circumstance where claimant loses a whole day of work to attend medical appointments, he may be entitled to temporary total disability benefits to attend same. Boddy v. Sprint Express, W.C. No. 4-408-729 (ICAO September 2000).
Temporary Disability Benefits are payable every two weeks from the first payment of Temporary Disability regardless of any early payment. Jones v. Industrial Claim Appeals Office, 87 P.3d 259 (Colo. App. 2004).
Payment equals mailing. Jones v. Duckwall Alco Stores, Inc., W.C. No. 4-430-994(ICAO March 28, 2003).
Barnes v. City and County of Denver Police Department, W.C. 5-003-724-04 (ICAO August 25, 2017) involved wage continuation pursuant to C.R.S. §8-42-124(2). Claimant used sick time for the work injury. Once a claimant was charged earned sick leave, the employer was not allowed to reduce its liability for temporary disability benefits by claiming wage continuation. The employer must directly compensate claimant for temporary total disability benefits for time missed.
Firefighter used “trade time” with other firefighters to cover time off without wage loss consequently he received full wages and was not considered disabled under C.R.S. §4-42-103(1) even though he did not work and was on restrictions. Whitney v. West Metro Fire Protection District, W.C. No. 4-920-012 (ICAO August 27, 2014).
No reduction in Temporary Total Disability Benefits was allowed for severance pay. Petschl v. City of Montrose, W.C. No. 4-735-853 (ICAO April 17, 2014).
For all injuries occurring on or after July 1, 1999, where it is determined that a claimant is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury. C.R.S. § § 8-42-103(g) and 8-42-104.
However, this does not apply to termination of the employee for being responsible for the happening of the accident itself, as that would inject the element of fault into the cause of the original accident. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002).
C.R.S. §8-42-105(4), did not intend to preclude temporary disability benefits on a permanent basis when claimant who was responsible for his or her separation from employment and the separation is for causes within the employee's control, but unrelated to the industrial injury, later sustains a worsened condition. Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004).
Moreno v. Aspen Living Center, W.C. No. 4-676-020 (ICAO November 16, 2006) following termination for cause, the fact that the modified work the claimant was performing would have disappeared following her termination even if she had not been terminated does not reestablished claimant's right to temporary total disability. Where post termination wage loss is caused by a worsening of condition termination statute does not apply.
In any action where C.R.S. §8-42-105(4) is invoked, the respondent bears the burden to prove the claimant engaged in a volitional act within his or her control that lead to his or her ultimate termination, and where an illness not caused by the industrial injury results in an absence from work, and the claimant is terminated from employment as a result, the absence need not be viewed as the result of a volitional act. Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (ICAO, January 27, 2003).
Claimant an illegal alien was determined to be responsible for his termination due to providing false documentation at the time of hiring. Ruano v. Industrial Claim Appeals Office, 11CA0908 (Colo. App. December 29, 2011) (NSOP).
Bolerjack v. Water Edge Pond Service Specialist, LLC, W.C. No. 4-905-434 (ICAO July 29, 2014). Positive marijuana test two weeks after date of injury could be the basis for finding that termination was for violation of employer policy and denial of TTD benefits. C.R.S. §§8-42-103(1)(g) & 8-42-105(4).
Gilmore v. Industrial Claim Appeals Office, 187 P.3d 1129 (Colo. App. 2008) Claimant knew or should have known that a positive drug test for cannabis was a violation of employer’s drug free policy and would result in his termination. Claim for TTD was properly denied. Claimant admitted he smoked it 4 days before injury and the drug was provided by his supervisor.
Amendment to the Colorado Constitution Article XVIII §(14)(10)(b) provides: nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.
The use of medical marijuana in compliance with Colorado’s Medical Marijuana Amendment, Colorado Constitution Article XVIII §(14), but in violation of federal law, is a “unlawful activity” Thus, there was no unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” outside-of-work activities. C.R.S. §24-34-402.5(1). Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).
Furthermore, the fact that the claimant knows seasonal employment will end at a fixed point in time does not necessarily lead to the conclusion that he is responsible for the termination. Judd v. Antarctic Support Services, W.C. No. 4-457-362 (ICAO, September 30, 2003).
Termination from employment as a result of absences due to work-related injury is not a volitional act of the employee and will not result in disqualification for temporary disability benefits. Carpenter v. Kaiser Permanente, W.C. No. 4-740-802 (ICAO August 12, 2009).
Where claimant’s resignation was compelled by the need to care for a child, it was not the product of a volitional act within the meaning of the termination statutes. Smith v. Wal-Mart, W.C. No. 4-751-887 (ICAO December 9, 2008).
C.R.S. §8-42-105 (3) provides that temporary disability benefits shall continue until any one of the following first occurs:
- The employee reaches maximum medical improvement;
- The employee returns to regular or modified employment;
- The attending physician gives the employee a written release to return to regular employment; or
- The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.
If the employee was at fault for the termination from employment the Administrative Law Judge must then consider the totality of the circumstances to determine whether the employee’s work-related disability was the cause of his inability to find work.
In Ecke v City of Washington, W.C. No. 5-002-020 (ICAO May 5, 2017), Claimant was injured at work the day before his planned retirement. Claimant sought TTD benefits between his date of injury and the date he reached MMI. Respondents asserted the wage loss was related to claimant’s volition act of his retirement and not the work injury pursuant to 8-42-103(g) and 8-42-105(4)(a). His voluntary resignation defeated his claim for TTD as the resignation precluded the employer from the opportunity to offer modified duty.
If, the injury contributed in part to the wage loss, temporary disability benefits can be denied or terminated only if, one of the four statutory criteria set forth in C.R.S. §8-42-105 (3) is satisfied. PDM Molding. See also Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1994).
Black Roofing v. West, 967 P.2d 195 (Colo. App. 1998); PDM Molding standard in determining entitlement to temporary total disability benefits “does not require proof of a reasonable, but unsuccessful job search in order to establish that a post-termination wage loss is in some degree caused by the injury.”
Under Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997), two important questions were addressed concerning a physician’s return to work release to terminate temporary disability benefits.
- Although C.R.S. §8-42-105 (3)(c) states that temporary total disability benefits continue until the attending physician gives the employee a written release to return to work, the Court of Appeals held that the term “attending physician” includes only those physicians who are authorized to provide treatment, i.e., one within the chain of authorization; and
- More significantly, the return-to-work release was not effective unless and until it was delivered to the injured worker consistent with the purpose of the statute to place the claimant on notice that he must return to employment, contest the release, or suffer a loss of benefits.
C.R.S. §8-42-105(3) TTD terminates with full duty release from “the” attending Physician. Bestway, supra.
C.R.S. §8-42-105(3) which terminates TTD benefits based upon a full duty release, does not preclude the commencement of benefits if no benefits have been paid prior to the full duty release. Archuletta v. Industrial Claim Appeals Office, 2016 COA 66 (Colo. App. 2016).
While claimant may have multiple attending physicians, the release for claimant to return to regular employment is not effective unless it comes from “the attending physician.” Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). The identity of the attending physician is a question of fact for the ALJ. Id. Factors an ALJ may consider in determining the identity of the attending physician include the identity of the initial treating physicians, the length of time claimant treated with a particular physician, and whether a release to return to work was approved by the initial treating physicians. Begordis v. Caterpillar Services and Liberty Mutual, W.C. No. 4-780-377 (ICAO January 18, 2013).
In MacDougall v. Industrial Claim Appeals Office, 2016CA705 (December 15, 2016)(NSOP), the Court of Appeals held that respondents may terminate temporary disability benefits in reliance upon a physician’s assistant’s full-duty release as long as it contains the stamped signature of the claimant’s authorized treating physician. In Flake v. JE Dunn Construction, 4-997-403 (ICAO September 19, 2017) the physician’s assistant placed Claimant at MMI with no impairment, and the supervising physician agreed with the determination and countersigned the form WC164 agreeing with the PA. The countersignature of the ATP was sufficient to satisfy Rule 5-5.
For services performed by a nurse practitioner or physician assistant the authorized treating physician must counter sign reports related to inability to work, and return to restricted or regular duty Ruel 16-5(A)(6)(d).
Where claimant declined an offer of modified duty. The statue reduces the claimant’s Average Weekly Wage by the wage offered for the modified duty job. The portion of the wage loss that claimant would have sustained regardless of whether he showed up for work could not be construed as a resulting wage loss caused by the termination. Therefore, claimant was entitled to TPD he would have received had he worked modified duty job. Tarman v. U.S. Transport, W.C. No. 4-981-955 (ICAO June 2, 2016).
Where a treating physician’s report of ability to return to work was based upon medical non-compliance, this creates an internal conflict to be resolved by Administrative Law Judge. The remedy is suspension of temporary total disability under C.R.S. §8-42-105(2)(c) rather than termination under C.R.S. §8-42-105(3)(c). Imperial Headwear, Inc. v. Industrial Claim Appeals Office, 15 P.3d 295 (Colo. App. 2000).
Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo. App. 1997) made it clear that a carrier may not terminate temporary disability benefits because an injured worker had reached maximum medical improvement, unless it is in a position to be able to state a position on whether the worker had suffered any permanent impairment. Under Rule 6-1(A)(1) [previous Rule IV (G)(1) and previous Rule IX (C)(1)(a)], a Final Admission of Liability, which attempts to terminate temporary total disability benefits at maximum medical improvement, must also state a position on permanent medical impairment, so the admission must state both the basis for the permanent rating and the amount of permanent impairment benefits. We think the result would be the same under the current Rule 6-2(A) (1).
To terminate temporary total disability benefits, claimant must be at maximum medical improvement as to all components of industrial injury. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997) and Dowd v. V.F.W. Post 1247, W.C. No. 3-106-845 (ICAO May 14, 1998) (even non-disabling components).
When employers offer modified employment within claimant’s restrictions the burden shifts to claimant to prove offer was unreasonable, inappropriate or noncompliant, otherwise claimant loses temporary total disability benefits entitlement. Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo. App. 1998).
In Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo. App. 1997), an illegal alien lost his job with Respondent employer for reasons which were not his fault. Despite his illegal status, he later found part-time employment within his work restrictions. The employer argued claimant’s inability to find a new job was the result of his illegal status rather than his injuries based upon the Immigration Reform and Control Act of 1986, 8 U.S.C. § §1324a, et. seq., which prohibited employers from hiring illegal aliens. It further argued that this prohibition created a legal disability for illegal aliens which prevented them from working as a matter of law. Despite this, the Court of Appeals held, under a PDM Molding analysis (law prior to July 1, 1999) all claimants’ need to prove is that the injury contributed, in part, to the wage loss in order to establish entitlement to temporary total disability benefits. The Court of Appeals further noted that the Workers’ Compensation Act included both legal and illegal aliens.
In Enriquez v. Industrial Claim Appeals' Office, 05CA0283 (Colo. App. December 1, 2005) (NSOP), Claimant an illegal alien was terminated for failure to provide a valid social security number, was found responsible for his termination and not entitled to TTD.
Employee who refuses a written request to submit to medical examination may have his disability benefits suspended. However, once he attends examination the temporary benefits, including the suspended benefits, must be immediately restored even absent an Administrative Law Judge’s Order. Magnetic Engineering v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Temporary total disability benefits may not be unilaterally suspended without a hearing absent 100% compliance with former Rule IX(c), current Rule 6 allowing for unilateral termination. A & R Concrete Construction v. Lightner, 759 P.2d 831 (Colo. App. 1988).
Pursuant to Rule 6-8 temporary disability benefits may not be suspended modified or terminated, except pursuant to the requirements set forth in Rule 6, pursuant to an uncontested request to modify, terminate or suspend or an Order following a hearing.
If non-compliance is determined by the Director, the Director may order the insurer to continue payment until the rule is followed or hearing held and Order entered.
For injuries after July 1, 2010, refusal to accept an offer of modified employment by the claimant will not constitute responsibility for the termination in cases where the offer would require the claimant to travel more than 50 miles in one direction greater than the claimant’s preinjury travel; and a judge determines that the claimant’s rejection of the offer was reasonable considering the totality of the circumstances. C.R.S. §8-42-105 (4)(b)(I).
Fatin v. King Soopers, W. C. No. 4-465-221(ICAO February 15, 2007) Claimant sustained an admitted injury and was on modified duty when she sustained a second compensable injury. Claimant was then found responsible for her separation from employment. Subsequent to separation she was placed at maximum medical improvement for both injuries. Claimant had ongoing pain and filed a petition to reopen and claimant underwent surgery. Respondents voluntarily admitted for temporary disability benefits, following surgery. Subsequently, claimant was released to work at modified duty. Respondents filed a petition to terminate disability benefits once claimant reached her baseline condition. Respondents argued claimant’s wage loss was no longer caused by the physical limitations or restrictions, but rather from claimant’s termination from employment for which she was responsible. The Panel held that once temporary disability benefits were initiated. They could only be terminated based upon the occurrence of one of the conditions in C.R.S. §8-42-105(3) (a-d).
Rule 6-1 provides for termination of temporary disability benefits without need for a hearing by filing an admission, for claims arising from an injury which occur on or after July 1, 1991. The admission of liability form must be accompanied by:
- A medical report from an authorized treating physician stating the claimant has reached maximum medical improvement; provided such admission of liability shall state a position on permanent disability benefits. This paragraph shall not apply in cases where vocational rehabilitation has been offered and accepted; or
- A medical report from the authorized treating physician who has provided the primary care stating the claimant is able to return to regular employment; or
- A written report from an employer or the claimant stating that claimant has returned to work and setting forth the wages paid for the work to which the claimant has returned provided that such admission of liability shall admit for temporary partial disability benefits, if any; or
- A letter to the claimant or copy of a written offer delivered to the claimant with a signed certificate indicating service, containing both an offer of modified employment, setting forth duties, wages and hours and a statement from an authorized treating physician that the employment offered is within the claimant’s physical restrictions. A copy of the written inquiry to the treating physician shall be provided to the claimant by the insurer at the time the authorized treating physician is asked to provide a statement on the claimant’s capacity to perform the offered modified duty. The claimant is allowed a period of 3 business days to return to work in response to an offer of modified duty. The 3 business days runs from the date of receipt of the job offer. Such admission of liability shall admit for temporary partial disability benefits, if any, or
- A copy of a certified letter to the claimant or copy of a written notice. delivered to the claimant with a signed certificate of service, advising that temporary disability benefits will be suspended for failure to appear at a rescheduled medical appointment, with an authorized treating physician and a statement from the authorized treating physician documenting the claimant’s failure to appear; or
- A letter or death certificate advising of the death of the claimant with a statement by the insurer as to its liability for death benefits.
Pursuant to Rule 6-6, by filing an admission of liability form with the Division with a certified copy of a mittimus or other document issued by a criminal court which establishes that the claimant is confined in a jail, prison, or any department of corrections facility as a result of a criminal conviction; or
Pursuant to Rule 6-7, by filing an Admission of Liability with a copy of a document substantiating the claimant received money damages from a third-party claim arising from the worker's compensation injury and the amount of the award that may be offset pursuant to C.R.S.§8-41-203 and case law.
A temporary help contracting firm or temporary service employer’s insurance carrier may terminate temporary disability benefits as of July 1, 1996, by filing an admission of liability with the following:
- A copy of the initial offer of modified employment provided to the claimant, which clearly states that future offers need not be in writing;
- A description of the policy describing how future offers will be made;
- A statement that benefits shall be terminated if the claimant failed to timely respond to an offer of modified employment;
- A written statement from the employer representative giving the date, time and method of notification which forms the basis for the termination of temporary disability benefits;
- A statement from the attending physician that the employment offer is within the claimant’s restrictions.
The claimant is allowed at least 24 hours not including any part of a Saturday, Sunday or legal holiday within which to respond.
A failure to follow the exact requirements set forth in Rule 6 when suspending temporary total disability benefits may result in significant penalties of up to $1,000 per day for each day of the offense pursuant to C.R.S. §8-43-304.
Penalties were appropriate when letter attached to admission provided claimant is going to return to work when rule required report providing that claimant “has returned to work,” Guerin v. Board of Water Works of Pueblo, W.C. No. 4-432-175 (ICAO January 22, 2002).
If an insurer has suspended TTD benefits for failure to attend a rescheduled medical appointment, the insurer is required to automatically retroactively reinstate TTD payments once it learns that the claimant attended a rescheduled medical appointment or risk penalties, Sigala v. Atencio’s Market, 184 P.3d 40 (Colo. 2009).
C.R.S. §8-42-105(3)(c) requires that the attending physician's release to regular employment be physically delivered to the claimant order to affect a termination of benefits. Termination of TTD without such proof risks penalty exposure.
Where a claimant is injured and then moves out of state and the employer offers the claimant re-employment within her restrictions, the claimant is not entitled to temporary disability benefits when the claimant declines the job because the employer refuses to pay the claimant’s moving expenses to return to Colorado. The Court noted that the objective standard that the offered employment was reasonably available to claimant was met because there was no evidence that claimant lacked the financial resources to return to Colorado. This was particularly true since claimant found the financial resources to move to Chicago in the first place. Belanger v. Keystone Resorts, Inc., W.C. No. 4-250-115 (October 9, 1997).
Temporary disability benefits and permanent total disability benefits are subject to garnishment or wage assignments to enforce child support orders. See, In re the Marriage of Paulette Hamby, 954 P.2d 635 (Colo. App. 1997).
As of May 31, 2001, garnishment is also allowed as against permanent partial disability, any award, lump sum settlement, or indemnity portion of structured settlement C.R.S. §8-42-124(6) and §8-43-204.
C.R.S. §8-42-124(b) was amended on May 31, 2001, to apply to permanent partial disability benefits. The Court of Appeals held in American Compensation Insurance Co. v. McBride, 107 P.3d 973 (Colo. App. 2004) that the changes in the statutes were procedural and apply retrospectively to an award of permanent partial disability. Division of Child Support Enforcement v. Industrial Claim Appeals Office, 109 P.3d 1042 (Colo. App. 2004) held that C.R.S. §8-43-204(4) can be applied retroactively to lump sum settlements.
Borrayo v. Lefever, 159 P.3d 657 (Colo. 2006) the provisions of C.R.S. §8-42-124(1) did not preclude attachment of benefits received from workers compensation once they have been received by claimant and placed in his bank account. They were no longer due, and therefore, could be garnished or attached.
C.R.S. §8-42-124(1) was amended in 2006, to allow for the attachment of compensation or benefits for a judgment for a debt for fraudulently obtained public assistance, fraudulently obtained overpayments of public assistance, or excess public assistance paid for which recipient was ineligible. The statute makes an identical exception from the non-attachment of benefits to awards for permanent partial or permanent total disability.
In subsection (5) to C.R.S. §8-43-204 the statute now allows the attachment for judgments concerning public assistance benefits of all proceeds of any award, lump sum settlement and the indemnity portion of any structured settlement shall be subject to garnishment.
It can be argued that the attachment would apply to temporary as well as permanent benefits. Since, both kinds of benefits can be included in an admission of liability since the term award has been interpreted to include an admission of liability. Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo. App. 2004).
Similarly, while only the indemnity portion of a structured settlement can be garnished the provision allows attachment to all proceeds of a lump sum settlement.
Partial DisabilityTemporary Partial Disability Benefits When an employee is only partially disabled, temporary partial disability benefits are calculated by determining 66 and ⅔ of the difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of the temporary partial disability, C.R.S. §8-42-106.
The temporary partial disability benefits cease in accordance with C.R.S. §8-42-106 and the Rules of Procedure pertaining to termination of temporary total disability benefits. See Rule 6.
Temporary Partial Disability benefits are required to be paid at least once every two weeks. C.R.S. §8-42-106(1).
Permanent Partial Disability Benefits
The Colorado Division of Workers’ Compensation trains and accredits the doctors who are involved in workers compensation claims. They are required to utilize the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Third Edition Revised to evaluate an injured worker’s permanent impairment.
The Guides set forth the method for rating the impairment and provide a method for both determining the percentage of impairment to a particular body part, but then also, a method to determine how much the impairment effects the whole person. This concept is called “converting” the impairment to a whole person rating. The Division trains the accredited physicians when they rate an injured worker to provide both the scheduled and the whole person rating.
In Colorado, we are the only state in the Union to use the American Medical Association (AMA) Guides Third Edition Revised to evaluate permanent impairment, rather than the Forth, Fifth or current Sixth Editions. It is probable that there would be more consistency in the ratings with using the Fifth or Sixth Edition. This would have the potential to reduce litigation, the inconsistency in the ratings assigned by different physician evaluating the same injury, the necessity for Division Independent Medical Evaluations to challenge ratings and litigation. This would likely bring down the costs of workers compensation claims.
Pursuant to C.R.S. §8-42-107.5, no claimant whose rating is twenty-five percent (25%) or less receives more than $60,000 in combined temporary total disability benefits and permanent partial disability benefits. If the rating is greater than 25%, the claimant is limited to $120,000 in combined temporary total disability benefits and permanent partial disability benefits. For injuries occurring after January 1, 2006, the caps were raised to $75,000 and $150,000, respectively.
For injuries sustained after January 1, 2012, the cap for combined temporary and permanent partial disability benefits shall be adjusted to the state average weekly wage. The caps have increased every year since the amendment above $75,000 and $150,000. After July 1, 2012, the caps are adjusted upward by the Director every July 1.
Prior to July 1, 2009, mental impairment ratings may not be combined with another impairment rating to push the impairment rating above 25% for purposes of avoiding the statutory benefit caps. Debra Dillard v. Industrial Claim Appeals Office, 134 P.3d 407(Colo. 2006).
However, for claims filed on or after July 1, 2009, the mental impairment rating may be combined with schedule and non-scheduled rating for the purpose of determining the applicable cap.
For purposes of determining whether the $60,000 ($75,000) cap has been reached the scheduled disability must be converted to whole person. Shank v. Dent Wizard, W.C. No. 4-497-494 (ICAO September 19, 2003).
Respondents are not entitled to count against the statutory benefit cap amounts of TTD which were not paid due to claimant's incarceration. Bruce Williams v. Timothy R. Kunau, W.C. No. 4-300-974 (ICAO August 7, 2003).
To determine if the cap on benefits has been reached when Social Security Disability benefits have been awarded, the full amount of compensation benefits, without regard to deduction for Social Security are totaled and compared to the cap. Flores v. Industrial Claim Appeals Office, 11CA1696 (Colo. App. 2012) (NSOP) Grandestaff v. United Airlines, W.C. No. 4-717-644 (ICAO June 29, 2012).
When claimant had already reached the $120,000. ($150,000.) cap and suffered a worsening of condition, Respondents were still required to initiate temporary disability benefits, as the statutory caps are not applicable until claimant reaches MMI. Kelley v. Sema Construction, W.C. No. 4-520-988 (ICAO January 19, 2007).
Until the claimant attains maximum medical improvement, application of the $60,000 ($75,000) cap is premature. Murphy v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo. App. 1995). See also, Bowers v. North American Property, W.C. No. 4-154-629 (ICAO May 20, 1999). The same reasoning applicable to $120,000 ($150,000) cap.
Respondents have a right to petition to terminate ongoing TTD benefits when a claimant reaches the statutory cap of $75,000 when PPD benefits previously have been paid. Addington v. United Airlines, W. C. No. 4-732-201 (November 9, 2010).
Under Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo. App. 1997), the Court held that rehabilitation maintenance benefits (benefits made after MMI during a vocational training program) were subject to the $60,000 ($75,000) and $120,000 ($150,000) caps for combined permanent partial and temporary disability benefits.
Where other work related permanent impairment exists in addition to mental impairment, a combined whole body permanent impairment rating may be determined by the authorized treating physician.
Mountain City Meat v. Industrial Claim Appeals Office, 919 P.2d 246 (Colo. 1996) held that when claimant suffers an injury on the schedule and an injury not on the schedule the scheduled and non-scheduled injury must be combined and paid as a whole person impairment. This only applies to injuries occurring prior to July 1, 1999.
For injuries occurring on or after July 1, 1999, scheduled injuries shall be compensated as provided on the schedule and non-scheduled injuries shall be compensated as medical impairment benefits, and when an injured worker sustains both scheduled and non-scheduled injuries, the losses shall be compensated on the schedule for scheduled injuries and the non-scheduled injuries shall be compensated as medical impairment benefits.
For injuries on or after July 1, 1999, mental or emotional stress shall be compensated pursuant to C.R.S. § 8-41-301(2) and shall not be combined with a scheduled or non-scheduled injury, C.R.S. § 8-42-107(7)(b)(III).
However, for claims filed after July 1, 2009, the mental impairment rating may be combined with schedule and non-scheduled rating for the purpose of determining the applicable cap.
The first $10,000.00 of a Permanent Partial Disability or Permanent Total Disability award shall be paid automatically in lump sum, whenever a worker makes a written request. The carrier shall issue payment within ten business days from the date of mailing of the request by the claimant, Rule 5-10.
C.R.S. §8-43-406(2) limited the aggregate of all lump sums to not more than $26,292. Ch. 62, sec. 1, 1990 Colo. Sess. Laws 515. Effective July 1, 1991, an amendment increased the maximum aggregate amount to $37,560. Ch. 219, sec. 41, 1991 Colo. Sess. Laws 1326. The amendment, effective May 30, 2007, increased the maximum aggregate amount to $60,000. January 1, 2006, it increased to $75,000.
Beginning January 1, 2012, and thereafter, on July 1, of each year, the Director will adjust the lump sum limits by the percentage increase or decrease of the state AWW. For lump sum requests on claims with dates of injury on or after January 1, 2014, the aggregate lump sum will be determined by the lump sum limit in effect as of the date of the request.
An employee who was injured in 1990, awarded permanent and total disability (“PTD”) benefits in 2002, and received a lump sum payment in 2007, is entitled to and additional lump sum payment under a 2009 amendment to C.R.S. §8-43-406, which increased the maximum aggregate lump sum an employee may receive. This is applicable to all claims without regard to the date of injury. Specialty Restaurants Corp. v. Nelson, 231 P.3d 393 (Colo. 2010).
Due to the Specialty Restaurants case, new legislation was passed for dates of injury prior to January 1, 2014, pursuant to C.R.S. §8-43-406(2) & (3), the aggregate of all lump sums to a claimant or a sole dependent must not exceed $80,868.10. If the claimant is one of multiple dependents, the aggregate of all lump sums granted to that claimant must be the proportionate share of an amount not to exceed $161,734.15. The Director or ALJ will determine the proportionate share. It is the position of the Director that for injuries on or after January 1, 2014, that the lump sum will increase every year.
Carrier practices will be watching to make sure lump sums are paid on time.
Simmons v. Colorado Carpet Cleaning, W.C. No. 4-366-740 (ICAO April 10, 2006) By filing lump sum application (not the first $10,000.) the claimant accepted the Final Admission and waived his right to additional benefits and to contest causation and MMI. Such election closes issues of permanent partial disability.
Regardless of the date of injury claimant may get full lump sum and not waive his right to pursue Permanent Total Disability under C.R.S. §8-43-406(2).
Any injury which has been enumerated on the schedule limits an employee to “permanent medical impairment benefits” as specified in C.R.S. §8-42-107(2). Scheduled injuries include injuries to eyes, ears, and extremities.
To calculate scheduled impairment, the scheduled impairment rating is multiplied by the number of weeks listed on the scheduled injuries table and by the weekly rate in effect as of the date of injury which is annually determined by the Director.
For injuries after July 1, 2010, the loss of an eye by enucleation, was removed from the schedule and replaced with the loss of a tooth and it is assigned a 6-week value.
Any injury or amputation located between any two joints mentioned in the schedule, requires that the loss be estimated at the nearest proximal joint for injuries before July 1, 1999.
Compensation for scheduled injuries incurred prior to July 1, 1999, are paid at the weekly rate of $150.00. For injuries on or after July 1, 1999, the rate shall be determined by the Director as of July 1 every year.
Where an injury causes the partial loss of use of any member specified in the schedule, the award of permanent medical impairment benefits must be in the proportionate share of the loss stated in the schedule for the total loss of the member. C.R.S. §8-42-107(7) (b).
Partially amputated finger is a “stump” within the meaning of C.R.S. § 8-42-108(2). Claimant was not limited to the level of the wrist. Leffler v. Industrial Claim Appeals Office, 09CA2299 (Colo. App. August 19, 2010).
A worker with an injury specified in the schedule is not entitled to a conversion by the physician to a whole person disability rating. The injury is limited to the percentage of the loss of use of the member specified in the schedule, unless the “situs” of the functional impairment affects the “whole person.” Shoulder injuries creates these unique disputes.
There is no absolute right to a Division IME in cases involving only schedule injuries. However, where there is a legitimate dispute as to whether injury is scheduled or non-scheduled, the claimant is entitled to Division IME before permanency hearing. Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo. App. 2000).
Rule 12-4(C) & (D) requires that when a physician determines physical impairment they must provide both the scheduled and the converted whole person ratings and that ratings round up to whole numbers.
Pursuant to Rule 5-7(C), where scheduled and non-scheduled injuries both result in permanent impairment the impairment and scheduled impairment benefits shall be paid concurrently.
For the purpose of the schedule, permanent and complete paralysis of any member as the proximate result of accidental injury shall be deemed equivalent to the loss thereof.
If amputation is made between any two joints mentioned in this schedule, except amputation between the knee and the hip joint, the resulting loss shall be estimated as if the amputation had been made at the joint nearest thereto. If any portion of the bone of the distal joint of any finger, thumb, or toe is amputated, the amount paid therefor shall be the amount allowed for amputation at said distal joint.
C.R.S. §8-42-107 (7) (a) When an injured employee sustains two or more injuries coming under this schedule, the disabilities specified in subsections (1) to (5) of this section shall be added, and the injured employee shall receive the sum total thereof; except that, where the injury results in the loss or partial loss of use of the index finger and thumb of the same hand or of more than two digits of any one hand or foot, the disability, in the discretion of the director, may be compensated on the basis of the partial loss of use of said hand or foot, measured respectively from the wrist or ankle.
C.R.S. §8-42-107(2) provides:
|208 weeks||Loss of an arm at the shoulder|
|208 weeks||Loss of an arm above the hand including the wrist|
|104 weeks||Loss of a hand below the wrist|
|50 weeks||Loss of a thumb at the metacarpal bone thereof|
|35 weeks||Loss of a thumb at the proximal joint|
|18 weeks||Loss of a thumb at the second or distal joint|
|13 weeks||Loss of an index finger at the second joint|
|9 weeks||Loss of an index finger at the distal joint|
|18 weeks||Loss of a second finger and the metacarpal bone thereof|
|13 weeks||Loss of a middle finger at the proximal joint|
|9 weeks||Loss of a middle finger at the second joint|
|5 weeks||Loss of a middle finger at the distal joint|
|11 weeks||Loss of a third/ring finger and the metacarpal bone thereof|
|7 weeks||Loss of a ring finger at the proximal joint|
|4 weeks||Loss of a ring finger at the distal joint|
|13 weeks||Loss of a little finger and the metacarpal bone thereof|
|9 weeks||Loss of a little finger at the proximal joint|
|9 weeks||Loss of a little finger at the second joint|
|4 weeks||Loss of a little finger at the distal joint|
|208 weeks||Loss of a leg at the hip or joint or so near thereto as to preclude the use of an artificial limb|
|208 weeks||Loss of a leg above the foot including the ankle|
|104 weeks||Loss of a foot below the ankle|
|26 weeks||Loss of a great toe with the metatarsal bone thereof|
|18 weeks||Loss of a great toe at the proximal joint|
|9 weeks||Loss of a great toe at the second or distal joint|
|11 weeks||Loss of any other toe with the metatarsal bone thereof|
|4 weeks||Loss of any other toe at the proximal joint|
|4 weeks||Loss of any other toe at the second or distal joint|
|6 weeks||Loss of a tooth|
|104 weeks||Total Blindness of one eye|
|139 weeks||Total deafness of both ears|
|35 weeks||Total deafness of one ear|
|139 weeks||Where worker prior to injury has suffered a total loss of hearing in one ear, and as a result of the accidents loses total hearing in remaining ear.|
When the injury results in “whole person” loss, the claimant is paid pursuant to the following formula: 400 weeks x age factor x temporary total disability benefits rate x percentage of impairment.
An injury that initially appears to be on the schedule may actually be a whole person injury, if the injury impairs the functional capacity of the claimant’s whole person. Strauch v. PSL Swedish Healthcare, 917 P.2d 366 (Colo. App. 1996).
In Walker v. Jim Fuoco Motor Company, 942 P.2d 1390 (Colo. App. 1997), the Court held that “injury” refers to the situs of the functional impairment: the part of the body that sustained the ultimate loss, and not necessarily the situs of the injury itself.
Functional impairment that is rated at 0% is not an injury pursuant to C.R.S. §8-42-107(8). Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo. App. 1997).
An impairment rating premised solely upon spinal range of motion deficit without an accompanying diagnosis based rating required by Table 53 of the AMA Guides in impermissible. Silva v. Corp. Serv. Group Holdings, Inc., W.C. No. 4-944-337 (ICAO February 23, 2016)
In Rojahn v. Monaco Rehabilitation, W.C. No. 4-955-695-02 (ICAO October 5, 2017), the AMA Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) specifically prohibit a rating for the cervical spine without a Table 53 diagnosis of the spine. Although there exists an exception to this rule where “severe shoulder pathology” is established and the claimant receives treatment of the cervical musculature. The statutes prohibit an impairment rating based on chronic pain “without anatomic or physiologic correlation.”
It is permissible to award permanent partial disability benefits based upon Table 53 of the AMA Guides even though the claimant did not experience six months of medically documented pain prior to being determined at maximum medical improvement. McLane Western, Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo. App. 1999).
In Wackenhut Corporation v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo. App. 2000), the Court held that the AMA Guides do not preclude a physician from determining that an injury primarily affected only one side of the back. Thus, despite prior injury to opposite side of same disk level no apportionment was made.
The determination whether a claimant sustained a scheduled or non-scheduled injury is a question of fact for the ALJ, not the rating physician. Hence, the employer has a duty to respond to a Division IME report by either filing an admission of liability or requesting a hearing when said report converts the scheduled impairment to whole person impairment. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo. App. 2003). The question involves the determination of the situs of the functional impairment.
In Kolar v. Industrial Claim Appeals Office, 122 P.3d 1075(Colo. App. 2005) the court held that former Rule XIX (G)(2) (current Rule 12-7(B)(6)) purporting to require bilateral schedule injuries related to cumulative trauma to be rated as a whole person in all circumstances is inconsistent with C.R.S. § 8-42-107(1)(a). Such injuries can only be compensated as a whole person when the functional impairment is not found on the schedule. The question is one of fact for the ALJ.
A sleep disorder is not a ratable impairment. Vargas v. Industrial Claim Appeals Office, _ P.3d _, (Colo. App. December 24, 2008) (NSOP).
Chronic pain may not be taken into consideration when rating absent objective findings of anatomic or physiological correlation pursuant to C.R.S. §8-42-101(3.7).
Maximum Medical Improvement
Maximum medical improvement means a point in time when any medically determinable physical or mental impairment as a result of the injury has become stable and when no further treatment is reasonably expected to improve the condition. C.R.S. §8-40-201(11.5).
Maximum medical improvement must in the first instance be determined by an authorized physician. Prior to July 1, 1996, maximum medical improvement had to be determined by the authorized treating physician providing the primary care. C.R.S. §8-42-107(8)(b)(I).
If either party disputes the authorized treating physician’s finding, the parties may select a Division independent examiner by mutual agreement.
If the parties are unable to mutually agree upon the selection of an independent medical examiner, the Division shall select an independent medical examiner from a list of independent medical examiners maintained by the Division.
However, an authorized treating physician can change his opinion regarding maximum medical improvement. An Administrative Law Judge may then resolve the matter without requiring an IME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996).
Where the record contains conflicting opinions from multiple authorized treating physicians, an Administrative Law Judge may resolve the conflict without requiring a Division IME (DIME). Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).
Where there are conflicts between the opinions of two or more authorized treating physicians the current version of C.R.S. §8-42-107(8) (b) (I) requires a DIME before anyone of those opinions can be challenged unless one of the opinions is ambiguous. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo. App. 2002).
The question of compensability is not entitled to special weight by the DIME, but the DIME’s opinion of causality must be overcome by clear and convincing evidence. Martinez v. Senior Resource Center, Inc., W.C. No. 4-748-216 (ICAO October 14, 2009).
Where the original ALJ found the claim compensable but determined that the claimant had not proven that his degenerative arthritis was work-related, and where a subsequent DIME physician gave the claimant an impairment rating for the arthritis, finding that it was related to the injury, a second ALJ could uphold the DIME opinion that the arthritis was a compensable component of the work-related injury. To hold otherwise would allow for the prelitigation of the MMI and impairment rating issues prior to the application of the DIME process. in the DIME process is inconsistent with the aim of the statute. The effect would be to actually increase litigation rather than avoiding it. Oretga v. JBS USA, W.C. No. 4-804-825 (ICAO June 27, 2013).
Pursuant to Rule 5-5 (D) (1), when a claimant is a state resident at the time of maximum medical improvement and the authorized treating physician is not Level II accredited, but has determined that claimant has reached maximum medical improvement with permanent impairment, the physician shall, within twenty days after the determination of maximum medical improvement, refer the claimant to a Level II physician for permanent impairment purposes. If the referral is not timely made the insurer shall refer the claimant to a Level II accredited physician within forty days after the determination of a maximum medical improvement for a rating. If, the authorized treating physician is Level II accredited, he or she shall determine the claimant’s permanent impairment within twenty days after the determination of maximum medical improvement.
Pursuant to Rule 5-5 (D) (2), where the claimant is not a state resident at the time he is determined to be at maximum medical improvement and has permanent impairment and his authorized treating physician providing the primary care is not Level II accredited, within twenty days after the determination of maximum medical improvement the physician shall conduct tests to evaluate impairment and shall transmit all tests and relevant medical information to the insurance carrier. Within twenty days of the receipt of the medical information, the carrier shall appoint a Level II accredited physician to determine the claimant’s impairment rating from the information transmitted. If, the claimant chooses not to have the treating physician conduct testing to evaluate impairment or if the information is not transmitted in a timely manner, the carrier shall arrange and pay for the claimant to return to Colorado for a rating. The carrier shall provide twenty days advanced written notice to the claimant of the date and time of the evaluation and a warning that refusal to attend the examination may result in loss of benefits. Such notification shall include information concerning travel and accommodation arrangements.
A finding of maximum medical improvement from an authorized treating physician is a prerequisite to either party seeking a DIME. The only exception is the 24-month Division IME.
If an authorized treating physician has not determined that the employee has reached maximum medical improvement, the employer or insurer may request that the Division select an IME physician if 24 months have passed from the date of injury for Division Independent Medical Examinations received by the Division on or after August 7, 2013.
In order to be eligible for a 24-month DIME when an authorized treating physician has not determined that the employee has reached Maximum Medical Improvement, the employer or insurer may request that the Division select an IME physician if the following conditions are met:
24 months have passed since the date of injury;
A party has requested in writing that an authorized treating physician determine whether the employee has reached Maximum Medical Improvement;
Such authorized treating physician has not determined that the employee has reached Maximum Medical Improvement;
A physician other than such authorized treating physician has determined that the employee has reached Maximum Medical Improvement.
The DIME Unit has 5 business days to review the DIME report prior to any action being taken by the parties.
If the report meets sufficiency standards and is complete the DIME Unit will issue an Notice of Receipt of the DIME and the process will be considered concluded.
If a deficiency is found by the DIME Unit, it will issue an Incomplete Notice and the physician will have 20 calendar days from the date of mailing the notice to revise the report. The DIME Unit will then have 5 business days to issue the Notice of Receipt of DIME Report-DIME Process is Concluded.
If, however, the deficiencies were not timely corrected The DIME Unit will issue a Notice of Receipt of the DIME report triggering the time period for the insurer to either admit consistent with the DIME report of file for a hearing to overcome the DIME. within 20 days.
The time limits for the insurer to act are now triggered by the Notice of Receipt not the mailing of the DIME report as it was previous to August 7, 2013.
If, the DIME indicates that the claimant is not at MMI, the insurer can file a General Admission and return the claimant to the authorized treating physician, or it may file an Application for Hearing to challenge that opinion.
The Final Admission of Liability must set forth the carrier’s position with regard to medical benefits after maximum medical improvement for all admissions filed after November 30, 1996.
In 1999, The DIME statute was amended indicating that the 30-day time limit for requesting a DIME applied to "all open cases with a date of injury on or after July 1, 1991." Thus, in all such cases, for injuries occurring on or after July 1, 1991 and before August 5, 1998 in which a final admission had been filed and objected to before September 1, 1999, claimants only had until October 1, 1999, to request a DIME. Lobato v. Industrial Claim Appeals Office, 105 P.3d 220 (Colo. 2005).
Effective March 31, 2010, The DIME examiner is prohibited from contacting any of the treating or examining physicians or requesting claimant undergo repeat testing when the results are valid and any disparity has been resolved. C.R.S. §8-42-107.2 (3)(d)(I).
The parties to a Division Independent Medical Evaluation (DIME) have the opportunity to request that a potential evaluating physician disclose any business, employment, financial or advisory relationships between the physician or any entity affiliated with the physician and the parties to the claim. C.R.S. §8-42-107.2(3.5)(a) & (b).
Worker’s Compensation Rule of Procedure 11, addresses Division sponsored independent medical examinations. In order to request a Division sponsored IME, a party must submit a Notice and Proposal within 30 days of the mailing or physical delivery of the authorized treater’s report regarding maximum medical improvement and permanent partial disability assessment for the carrier, or within thirty days of the date of mailing of the Final Admission of Liability for the claimant. C.R.S. §8-42-107.2.
The carrier shall notify the Division within thirty (30) calendar days of failure to agree upon a provider. Carrier shall use the failure to agree form for its notice. Carrier has thirty (30) days to submit said notice that parties are unable to agree. Even if it is claimant’s application, carrier shall file the form. The requesting party then has 30 days to file the application for the Division IME.
The time for filing a Notice and Proposal to Select an Independent Medical Examiner may begin running as of the date of receipt of the impairment rating, and not as of the date of the receipt of the impairment rating worksheets. Servantes v. Exempla, Inc., W. C. No. 4-779-285 (ICAO July 20, 2010).
The statutory period to request a DIME does not start to run until the attorney actually receives FAL, if it is sent to the wrong address. Stoewer v. Douglas Colony Group, Inc., W.C. No. 4-937-085 (ICAO January 21, 2016).
The Division shall, within 10 days issue a list of 3 randomly selected physicians to conduct the Division IME. The requesting party has seven (7) business days to strike one physician and the remaining party has five (5) business days from receipt of the first strike to strike one physician. The remaining physician shall conduct the examination. If, the Division is not notified of the selected doctor within 15 days the Division will strike one of the physicians.
Within five (5) business days after physician is selected, the requesting party may call the IME physician to make the appointment and then notify the Division and opposing party by telephone, and confirm in writing, of the date and time of the appointment. The date of the appointment must be no earlier than thirty-five calendar days and no later than fifty calendar days from the phone call requesting the appointment.
The medical records are prepared by Respondents and shall be sent to the IME doctor and opposing party fourteen calendar days prior to the examination. Supplemental records must be provided seven calendar days before the examination.
Medical bills, adjuster’s notes, surveillance tapes, admissions, denials, vocational rehabilitation reports, non-treating case management records, or commentaries to the IME physician shall not be submitted without written agreement of all parties, Order of an Administrative Law Judge, or prior permission of the Division. Medical depositions may be submitted as part of the medical records package only by written agreement of all parties or pursuant to an Order issued by the Director or an Administrative Law Judge.
The cost of the IME’s requested after December 1, 2001, is $675.00 for the doctor to review the first inch of medical records. For complex cases the physician may request additional payment pursuant to Rule 18-6(G) (3) no later than 3 days prior to the Division IME. Payment for the DIME is due at least 10 calendar days prior to the scheduled exam in the amount of $675. If not timely paid the fee is $775.
A claimant may file an application for indigent determination within 20 days of a Notice and Proposal. The selection of a physician will not be made until a determination of indigence is made. If claimant is determined to be indigent respondents shall pay for the DIME and claimant shall reimburse respondents costs for the DIME from any final order or settlement or respondents may take the reimbursement as an offset against permanent disability benefits.
With the exception of scheduling of the appointment and the examination itself, no communication with the DIME physician is allowed by any participant of the DIME procedure unless approved by the Director or ALJ. However, after acceptance of the report, communication may be had by written agreement, order, deposition or subpoena approved by an ALJ.
The initial cost of an independent medical examination under these procedures is borne by the requesting party.
Although, C.R.S. § 8-42-107(a)(c) establishes a presumption of regularity concerning a DIME physician’s impairment rating, once a party disputing the rating has come forward with “clear and convincing” evidence to rebut the presumption of regularity, the question becomes one of fact for the Administrative Law Judge’s resolution. Clear and convincing evidence is stronger than a mere preponderance and is evidence that is “highly probable” and free from serious or substantial doubt. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Opinions of the Division IME physician of causation and relatedness must be overcome by clear and convincing evidence. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998), but see, Cunningham Sprinklers Etc., Inc., W.C. No. 4-548-405 (ICAO May 17, 2007).
When a claimant files a Petition to Reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof the ALJ has the authority to deny it. Justiniano v. Industrial Claim Appeals Office, 2016COA83 (Colo. App. 2016).
An ALJ did not have the authority to extend the jurisdictional time limit to either file a Final Admission of Liability or request a hearing absent “unique circumstances” exception which is used rarely and applies only when fundamental rights or values are at issue. State Farm Fire and Casualty Co. v. Industrial Claim Appeals Office, 12CA2591 (Colo. App. January 16, 2014)(NSOP).
Insurer cannot file a Final Admission of Liability to a schedule injury portion of treating physician’s rating and proceed to hearing on causation of whole person portion of injury without first undergoing Division IME. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998).
For claims filed after August 5, 2009, the claimant is not required to file an application for hearing on all ripe issues until after the Division Independent Medical Examination process is terminated for any reason. C.R.S. §8-43-203 (2) (b) (II) (A).
Rule 11-7, provides, when a DIME physician has been previously selected and a follow-up DIME is appropriate, the IME shall, to the extent possible, be scheduled with the original IME physician. A new Final Admission or Request to return to the DIME should be made within the time limits for to request a DIME. The request shall be on a prescribed Division form with a copy to the other parties.
Where DIME physician indicates the need for further information before he can complete his DIME, the cost of the appointment to complete the DIME is borne by the requesting party. Mandel v. Sears, W.C. No. 4-575-413 (ICAO March 29, 2007).
Sanco Industries v. Stefanski, 147 P.3d 5 (Colo. 2006) After a “not at MMI” opinion from the DIME after reaching MMI the second time the insurer must send claimant back to the original DIME physician in order to see if the DIME physician agrees claimant is at MMI.
Williams v. Kunau, 147 P.3d 33 (Colo. 2006), the Supreme Court held that once the Division examiner found a claimant was not at MMI, the Division IME process remained open for final resolution by the Division IME examiner. Consistent with the Director’s interpretive bulletin, the Court felt it was the better practice for the employer or insurer to return the claimant to the independent medical examiner for follow-up Division IME, rather than filing a Final Admission on the basis of a treating physician second finding of MMI. The court found that it would result in an undue financial burden on the claimant, if the claimant would be required to request and pay for each follow up Division IME. Thus, the cost for the return appointment to the DIME for MMI is borne by the respondents in all cases.
Where compensability is contested, and where the issue has not been resolved by the time claimant reaches MMI and the degree of impairment, the insurer is not required to file a Final Admission or request a DIME when MMI is found by the treater. Interpreting Rule 5-5 to require that the insurer either admit an impairment rating or obtain a DIME in a contested case leads to absurd results and is contrary to the principle that claimant bears the burden of proof to prove compensability. The question of compensability is one for the ALJ not the DIME in the first instance. The DIME opinion on the threshold issue of compensability has no special weight. Moore v. Cobb Mechanical Contractors, W.C. 4-599-920 (ICAO April 12, 2006).
However, the insurer waives the right to obtain a DIME in a contested case where an authorized treating physician determines the claimant to be at MMI and issues an impairment rating if the DIME is not requested at that point.
Penalties were not appropriate in a contested claim for Respondents failure to timely request a DIME, as Respondents did not have an obligation to request the DIME.
Moler v. Colorado Springs Winwater, W.C. No. 4-447-584 (ICAO February 8, 2006) although, the Act provides time limits for requesting DIME, there is no provision which establishes a jurisdictional time limit for when it must be completed.
Timely filing of a Notice and Proposal is a jurisdictional prerequisite to requesting a DIME. Pinon v. U-Haul d/b/a Americo Ind., W.C. No. 4-632-044 (ICAO April 25, 2007).
DIME proceedings are stayed during the pendency of a dispute over the DIME selection process. The Court of Appeals held that when an Application for Hearing challenging the DIME selection process is filed with the Office of Administrative Courts and the party serves the Division DIME Unit, the stay of DIME proceedings is automatic. Munoz v. Industrial Claim Appeals Office, No. 10CA0592 (ICAO May 12, 2011).
Services of the DIME physician conclude upon acceptance of the final DIME report by the Division. The final report includes impairment rating worksheets.
The legislature abolished the conclusive nature of an agreed upon DIME for injuries occurring on or after August 5, 1998. See, C.R.S. §8-42-107(8) (b) (II).
After an authorized treating physician has indicated maximum medical improvement, claimant must undergo a Division IME to challenge causal relatedness of a condition for which the insurer has not yet accepted liability, as it is a constructive challenge to maximum medical improvement. Chestnut v. University of Colorado, W.C. No. 4-255-498 (ICAO, December 13, 1996).
Division IME doctor’s opinion of causation need only be overcome by a preponderance of the evidence. Claimant bears the burden of proof. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Note, in this case neither party was attempting to overcome opinion of DIME. Causation was the only issue. However, relatedness of individual components of a compensable injury is the clear and convincing standard.
Vocational RehabilitationPrior to July 1, 1987, in cases were permanent total was alleged the carrier was required to offer mandatory vocational rehabilitation. However, the employee, the employer, and, if insured, the insurance carrier could by unanimous written agreement, waive vocational rehabilitation which was awarded pursuant to §8-49-101 as it existed prior to July 1, 1987, and become subject to the permanent partial disability provisions pursuant to section 8-42-110, as said section existed prior to July 1, 1991.
For claims filed on or after July 1, 1987, the carrier may offer voluntary vocational rehabilitation in order to better defend a claim for permanent total disability.
Refusal of offer of employment or vocational rehabilitation is a defense to permanent and total disability. C.R.S. §8-42-111 provides that a totally disabled employee capable of rehabilitation which would enable an employee to earn any wages in the same or other employment, who refuses any offer of employment or vocational rehabilitation paid for by the employer will not be awarded permanent total disability.
Larimer County v. Sinclair, 939 P.2d 515 (Colo. App. 1997) made it clear that when there is an offer and acceptance of vocational rehabilitation, the attainment of maximum medical improvement is irrelevant to claimant’s right to temporary total disability benefits.
A party may request a protective order preventing opposing counsel from attending a vocational evaluation. Stone v. King Soopers, W.C. No. 4-767-807, (October 23, 2012).
Return to Work with Loss of EarningsWhen an employee is only partially disabled, temporary partial disability benefits are calculated by determining 66 and ⅔ of the difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of the temporary partial disability, C.R.S. §8-42-106.
Earning Power Assessment (Permanent Total Disability)
Permanent total disability is defined in C.R.S. §8-40-201(16.5) as meaning that the employee is unable to earn any wages in the same or other employment.
The burden of proof shall be on the employee to prove that the employee is unable to earn any wages in the same or other employment unless the employee has suffered a total loss of use of both hands, both arms, both feet, both eyes, or any two thereof. In those cases, there is a rebuttable presumption of permanent total disability. “Total loss of use” is a medical determination made by an independent Level II accredited physician.
The test for earning “any wages” was the existence of employment that is reasonably available to claimant under his particular circumstances. Joslins Dry Goods v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo. App. 2001). This includes physical ability to sustain the employment. Even if claimant is working he can still be determined permanent and total if the ALJ finds it is not bona fide employment.
The Colorado Court of Appeals has held that any wages with regard to the definition of permanent total disability means any wages greater than zero. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995).
Permanent total disability determinations by an Administrative Law Judge must also consider “the general physical condition and mental training ability, former employment, and education of the injured employee.” Bestway Concrete v. Baumgartner, 908 P.2d 1194 (Colo. App. 1995).
“Hire-ability” is a human factor an Administrative Law Judge can consider for permanent total disability benefits determination. Chavez v. Southland Corp., W.C. No. 4-139-718 (September 4, 1998).
Spacecon Specialty Contractors, LLC v. Industrial Claim Appeals Office, 13CA1991 (Colo. App. Aug. 21, 2014) (NSOP) Whether claimant was legally able to work due to his immigration status was irrelevant to the determination of permanent total. Rather the question was whether his disability caused his inability to work in Mexico or the U.S.
The Supreme Court held that the determination of permanent total disability permits consideration of access to employment in the commutable labor market in the area where the claimant resides and other human factors relevant to claimant’s ability to earn wages, e.g., head injury, English as primary language, education. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
C.R.S. §8-42-111(5) (1994 Cum. Supp.) which cut off permanent total disability benefits at age 65 was determined to be unconstitutional as a violation of the equal protection requirements of the Fourteenth Amendment to the United States Constitution and the Colorado Constitution Article II, Section 25. Industrial Claim Appeals Office v. Romero, 912 P.2d 62 (Colo. 1996).
The two percent COLA yearly increase in claimant’s average weekly wage was not deemed unconstitutional by Romero. See C.R.S. §8-42-111. However, the COLA increase no longer applies to injuries which occurred on or after June 30, 1994.
The two percent COLA which applies to injuries incurred between July 1, 1991 and June 30, 1994. The temporary total disability rate could exceed the maximum temporary total disability benefits rate for the date of injury. Salazar v. Industrial Claim Appeals Office, 10 P.3d 666 (Colo. App. 2000).
There is no time limit within which to reopen a permanent total determination.
If a claimant previously determined permanently and totally disabled has returned to employment and has earned wages in excess of $4,000.00 in any given year or has participated in activities which indicate that claimant has the ability to return to employment, the employee’s permanent disability benefits can be reopened. However, the mere showing that claimant has earned $4000.00 in any given year does not necessarily cause the total disability award to be ended.
If the permanent total disability award is terminated at hearing, any subsequent permanent partial disability award for the same injury will be decreased by the amount of permanent total disability previously received.
The Subsequent Injury Fund has been eliminated for injuries occurring on or after July 1, 1993 or for occupational diseases occurring on or after April 1, 1994. See C.R.S. §8-46-104.
The Subsequent Injury Fund previously applied when employee had a previous industrial permanent partial disability and subsequently sustained another industrial injury that when combined rendered the claimant totally and permanently incapable of employment. The second employer was liable only for that portion attributable to the subsequent injury and the balance was paid from the Subsequent Injury Fund. The injury must have involved a combination of industrial injuries and no non-occupational factors.
Prior to July 1, 1997, in the cases of asbestos, silicosis, and anthracosis, the last employer paid the first $10,000.00 of the exposure and the Subsequent Injury Fund paid the balance. The Subsequent Injury Fund has been abolished and the $10,000.00 cap has been eliminated.
Employer Job Offer
An employer is not required to offer claimant a job within his restrictions. An offer of employment can be a defense to both temporary total and permanent total disability.
In Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo. App. 1997), the Supreme Court seemed to suggest that sheltered employment can bar a permanent total disability determination. As C.R.S. § 8-40-201(16.5)(a) provides, the claimant who is capable of earning any wages in the same or other employment cannot be permanently and totally disabled as long as the offer is bona fide offer, which is a factual determination.
In Lobb, supra the parties stipulated that claimant was not employable in the open labor market. The employer offered to re-employ claimant. Claimant argued the job was merely charity; the Court disagreed stating, while there was evidence that might have supported claimant’s argument that the offer was merely charitable, the Administrative Law Judge concluded that the re-employment offer was bona fide and claimant was denied permanent total disability benefits.
Hearings on the issue of Permanent Total Disability generally involve a battle of the parties’ respective vocational experts who have assessed the claimant’s ability to earn any wages in the same or other employment.
C.R.S § 8-43-404 (1) provides: upon written request of the employee's employer or the insurer carrying such risk, the employee shall from time to time submit to a vocational evaluation. . . (3) So long as the employee, after written request by the employer or insurer, refuses to submit to medical examination or vocational evaluation or in any way obstructs the same, all right to collect, or to begin or maintain any proceeding for the collection of, compensation shall be suspended.
Amputation or Loss of Use (Permanent Partial Disability based upon the Schedule)
Please see section above on partial disability based upon the schedule. Any injury which has been enumerated on the schedule limits an employee to “permanent medical impairment benefits” as specified in C.R.S. §8-42-107(2). Scheduled injuries include injuries to eyes, ears, and extremities.
C.R.S. §8-42-108 provides that if an employee is seriously and permanently disfigured about the head, face, or parts of the body normally exposed to public view, he is entitled to additional compensation up to $4000.00. However, awards can increase to $8,000. for extensive facial or body scars, burn scars or stumps resulting from the loss or partial loss of limbs.
Currentyly, the Director is required to adjust the maximum disfigurement award every July 1, by the same percentage of adjustment to the state average weekly wage.
For injuries occurring prior to July 1, 2007, the maximum award was $2,000.
Public view generally means a scar or disfigurement that would be visible in a swimsuit. Showers v. Twilite Jones, 732 P.2d 1230 (Colo. App. 1986).
According to OAC Rule 10, the disfigurement award may be based upon photographs submitted by the claimant. The claimant may submit photographs to the Administrative Law Judge on the claim. However, the photographs should be taken at least six months after the injury, last surgery or MMI. It is required that at least two photographs be submitted and the first photograph should depict the claimant's face. The second photograph should be a close up of the scar or scars.
A limp can constitute a disfigurement.
When the AMA Guides permit an additional whole person impairment for cosmetic deformities, these are different from disfigurement benefits under C.R.S. §8-42-108. See, Gonzales v. Advanced Components Systems, 949 P.2d 569 (Colo. 1997).
Loss of Sight
Total blindness in one eye is a schedule injury and worth 104 weeks at the scheduled injury rate in effect as of the date of injury.
When an employee has suffered a total loss of use of both hands, both arms, both feet, both eyes, or any two thereof. In that case, there is a rebuttable presumption of permanent total disability. “Total loss of use” is a medical determination made by an independent Level II accredited physician.
Loss of Hearing
Hearing loss is compensable under the Colorado Workers Compensation Act. The impairment determination relies upon the AMA Guides to the Evaluation of Permanent Impairment Third Edition Revised to establish the percentage of complete loss benefit weeks to which an employee may be entitled as a specific loss.
The maximum number of weeks for complete loss of hearing in one ear is 35; for both ears is 139 weeks. The 139 weeks applies also in this situation where the worker had previously suffered a total loss of hearing in one ear and as a result of the industrial injury losses hearing in the remaining ear.
PenaltiesPenalties can be imposed for up to $1,000. per day for violations on or after August 11, 2010, for any violation of the Act, Rules, or Orders for which there is no specific penalty pursuant to C.R.S. §8-43-304(1).
On or after August 11, 2010, the penalties must now be apportioned between the aggrieved party and the Workers’ Compensation Cash Fund at the discretion of the Director or ALJ. At least 50% must go to the aggrieved party.
On or after July 1, 2017, penalty money will now go to the Colorado Uninsured Employers Fund (CUE). The Director of the Division now has authority to settle uninsured Employer penalties for less than the minimum set forth by statute and limits those penalties to three years.
In Kilpatrick v. Employment Express Professionals, W. C. No. 4-804-152 (ICAO June 28, 2011), the Industrial Claim Appeals Office affirmed ALJ Mottram's award which increased the daily penalty from $350 per day prior to August 11, 2010, to $700 per day beginning August 11, 2010.
The carrier may cure the violation remedying the basis for the penalty, if it takes the appropriate action within twenty days from the date of mailing of such application for penalties. Following timely cure, the claimant must then prove by clear and convincing evidence that the carrier knew or should have known of such violation or no penalty shall be assessed.
A request for penalties under C.R.S. §8-43-304 shall be filed with the Director or Administrative Law Judge within one year after the date the requesting party knew or should have known of the facts giving rise to the penalty.
An Administrative Law Judge has jurisdiction to Order an employer to repay an insurer for benefits paid to a claimant based on a fraudulently reported claim by the employer. Fuentes v. Rivera Construction, W. C. No. 4-810-095 (ICAO January 18, 2011).
A claim brought more than one year after the claimant first knew of the alleged violation is barred even though each day is a separate offense. The claim must be made within one year of when claimant first became aware of the violation. Robey v. Jack Stern, W.C. No. 4-385-183 (ICAO March 25, 2002).
Carson v. Academy School District # 20, W.C. No. 4-439-660 (ICAO April 28, 2003) provides that no penalty is appropriate for "bad faith" claims adjusting. The request for the same is insufficient notification of the issue.
Insurers, their contractors, healthcare providers or their employees are prohibited from receiving financial incentives or bonuses based on: 1) claims admission or denial rates; 2) number of days to reach maximum medical improvement; 3) number of medical or diagnostic procedures or treatments approved; or 4) any other criteria that is intended to encourage violation of the Act. Violators will be subject to sanctions under Title 10 insurance regulations and/or fines in accordance with C.R.S. §8-43-304(1.5).
Whether to penalize a violation as a continuing or single violation is within the ALJ’s discretion. Heupel v. Academy School District, W.C. No. 4-721-564 (ICAO August 20, 2009)
Penalties of over $4,000 were imposed against respondents for "dictating medical care" because an adjuster canceled an EMG with the authorized treating physician and required claimant to have an EMG with a physician scheduled through One Call. Casillas v. Bemas Construction, Inc., W.C. No. 4-777-652 (ICAO May 24, 2010).
Penalties were upheld against the respondents for filing a Final Admission of Liability denying liability for a part of the condition which an authorized physician determined to be caused by the injury. Paint Connection Plus v. Industrial Claim Appeals Office, 240 P.3d 429 (Colo. App. 2010).
The endorsement of a penalty issue on an Application for Hearing is insufficient if it does not: 1) cite the particular rule which is claimed to have been violated, 2) state the dates the violation began and ended, and 3) indicate the specific grounds for the penalty. Lovett v. Stroup Insurance Services, 4-808-842 (August 30, 2013).
In the event that the carrier fails to timely admit or deny, a penalty of up to one day’s compensation for each day’s failure to timely admit or deny for a maximum of 365 days may be assessed. No penalty may be assessed for failure to timely admit or deny if such penalty is filed more than seven years after the alleged violation. C.R.S. §8-43-203.
Penalties can be reduced to a judgment.
Penalties cannot be considered in rate making.
Each day is a separate offense pursuant to C.R.S. §8-43-305.
In Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002) the court held that even if a violation is continuing the one year period of limitations still ran on all separate daily violations from the date the requesting party first knew or reasonably should have known of the violation.
Quintana v. Sunstrand Aviation Ops, W.C. No. 3-062-456 (ICAO March 20, 2007), The Industrial Claim Appeals Office upheld a penalty for one-day for violation of C.R.S. §8-43-304(1) when following a stipulation of the parties, respondents incorrectly listed the amount of the stipulated overpayment on their Final Admission, but the insurer paid the periodic benefits in the correct amount after the Final Admission was filed. The ALJ found there was only one violation, the day the incorrect Final Admission of Liability was filed.
The Director and Administrative Law Judges must report to the Division each time a penalty is imposed.
CCIA v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1995) held that “indifference” towards a claimant’s rights may result in penalties being assessed.
To impose penalties there must first be a violation of an order. If the first step is met, the violator must demonstrate their actions were objectively reasonable. Toliver v. Dawn Food Products, W.C. No. 4-776-400 (ICAO June 12, 2012).
C.R. S. §8-43-304(1) allows for penalties to be assessed for up to $1,000 per day against any insurer who violates any provision of the Workers’ Compensation Act. In order for an ALJ to order penalties for violation of a particular statute, the claimant must not only show that Respondents violated the provisions of the statute itself, but must also show that Respondents acted unreasonably.
Reves v. McCormick Excavation and Paving, LLC, W.C. No. 4-835-166, (ICAO January 2, 2013). This case further provides that “reasonableness” is a determination for the ALJ that must be based on a rational argument based in law or fact.
MacDougall v. Bridgestone Retail Tire Operations, W.C. No. 4-908-701 (ICAO April 12, 2016), Claimant requested penalties against Respondents on multiple grounds, including the fact that Respondents terminated TTD benefits based on a report by a physician’s assistant. Penalties were denied as they are not a matter of strict liability, and negligence is measured by an objective standard based on whether a reasonable insurer would have taken a particular action under the circumstances.
Per WCRP Rule 6-1(A)(1), an authorized treating physician must find MMI or release the claimant to full duty before Respondents may terminate TTD.
In Walling v. ASA Electric, Inc., W.C. No. 4-760-050 (ICAO December 10, 2013). Although, Respondents complied with all Rule 16 requirements to deny SlimGenics program, the ALJ determined the insurer violated Rule 16-10(F) by unreasonably denying the request for preauthorization. The adjuster testified she was aware of the case law holding that respondents could be liable for treatment of a non-occupational condition to achieve optimum treatment of a compensable injury. Penalties of $50 per day for a total of $10,450 were imposed.
In Richardson v. Pizza Hut, W.C. No. 4-560-586 (ICAO February 7, 2014) the ALJ imposed penalties under the general penalty provision rather than the eight percent penalty provision for late reimbursement of medical mileage. It was determined that penalties may not be imposed under the general penalty provision for violations of rule 16-11 citing Safeway, Inc. v. Industrial Claim Appeals Office, 186 P.3d 103 (Colo. App. 2008). Moreover, claimants are not treated as providers under Rule 16-11(A).
Order imposing penalty is not appealable until the amount of the penalty is determined. United Parcel Service v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo. App. 1999).
The Court of Appeals determined that a $90,000 penalty for a $412.40 bill was unconstitutionally excessive. Northern Telecom, Inc. v. Industrial Claim Appeals Office, _ P.3d (Colo. App. 2003). (NSOP)
Statute requires settlements be approved by Director or ALJ. Where designee clerk approved a partial settlement agreement, there could be no penalties for violating the Order. There is no authority holding that a clerk’s order is vested with the status of one entered by the Director or ALJ. Tadlock v. Gold Mine Casino, W.C. No. 4-200-716 (ICAO May 16, 2007).
W.C.R.P. Rule 7-2(A)(1) clearly states that approval of a settlement agreement does not constitute approval of an MSA, and therefore Respondents were not in violation of the Order, or subject to penalties, by failing to adequately fund the MSA. Pankratz v. Hancock Fabrics, W.C. No. 4-653-869 (ICAO March 25, 2011).
Ficco v. Owens Brothers Concrete Company, W.C. No. 4-546-868 (ICAO May 30, 2007) provides mileage reimbursements are due in 30 days or penalties may be imposed.
The case of Campion v. Barta Builders, 780 P.2d 23 (Colo. App. 1989) provides that an insured employer cannot be penalized for failure to timely admit or deny a claim as the statute does not provide for such penalty. This case was decided under the previous statute C.R.S. § 8-53-102(1)-(2); however, the statute was substantially identical.
However, See, ICAO decision of Montgomery v. Canac Kitchens U.S. Ltd., W.C. No. 4-356-555 (ICAO November 29, 1999) holds that employer should be penalized under the residual penalty provision of C.R.S. §8-43-103(2).
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 a specifically enumerated occupational disease. The Division shall be notified immediately of injuries that results in a fatality or an accident in which three or more employees are injured. Injuries must be reported to the Division within ten days after notice or knowledge by an employer that an employee has sustained a permanently physically impairing injury, or that an injury or occupational disease has resulted in lost time from work for the injured employee in excess of three shifts or calendar days. An employer who does not provide the required notice may be subject to penalties or other sanctions.
Insurer is subject to an 8% interest penalty for delay greater than thirty days or for “knowingly” stopping payment of medical benefits regardless of the circumstances under which insurer refused to pay. Sears v. Penrose Hospital, 942 P.2d 1345 (Colo. App. 1997).
No penalty is due if the insurer can prove the delay was the result of excusable neglect.
The Division has warned it will be issuing orders to show cause if a physician makes a prima facie case of late payment, wrongful denial or use of the wrong fee schedule.
Holliday v. Bestop, Inc., 997 P.2d 1212 (Colo. App. 1999), cert. granted May 15, 2000, 23 P.3d 700 (Colo. 2001). The issue was whether Court of Appeals erred in holding that any violation of any Order concerning medical benefits can only be penalized under C.R.S. §8-43-401(2), which imposes penalties for willfully delaying the “payment” of medical bills, rather than the general penalty statute, which imposes penalties for the violation of any “lawful order.” The Supreme Court held that C.R.S. §8-43-304 (1) provides for penalties for persons who fail, neglect, or refuse to obey a lawful Order of the Director or Panel even though this same conduct could be sanctioned by a different penalty section. The limiting language of “for which no penalty has specifically been provided” does not modify the above category. However, claimant failed to preserve this issue for appeal. Thus, the Court vacated the Order of the Court of Appeals and dismissed appeal.
The standard was changed from “willfully” to “knowingly” as of August 11, 2010.
Attorney cannot be penalized for advising client to violate court order to pay medical benefits even if malicious or willful as they had no duty to pay. Dworkin, Chambers & Williams v. Provo, 81 P.3d 1053 (Colo. 2003). Brand v. Etcetera, W.C. No. 4-586-030 (ICAO September 17, 2004) provides regardless of whether medical treatment was unauthorized, an employer may be penalized by failing to comply with prior rule XVI (k) (2) current Rule 16-10 by either contesting or paying the bill within 30 days.
The general penalty may be imposed for an insurer’s refusal to provide medical treatment in this case taxi vouchers. Pena v. Industrial Claim Appeals Office, 117 P.3d 84 (Colo. App. 2004)
An insurer is responsible for a ten percent penalty for willfully withholding permanent partial disability benefits for more than thirty days. C.R.S. §8-43-401 (2) (a).
Insurers can be penalized for not providing an injured worker with a letter from his treating physician which states that the physician’s earlier decision to place him at maximum medical improvement was incorrect. When CCIA received a letter on June 21, 1993, and was required by former Rule XI (B) (2) current Rule 5-4 to send the worker a copy within fifteen days, but did not, it was subject to penalties. See, Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo. App. 1997).
Penalties proper against insurer which was on notice of an additional component of injury which filed a Final Admission of Liability following receipt of physical rating, knowing there had been a referral for a psychological rating, as well, and not filing second admission reflecting psychological impairment rating. It is unclear from the opinion whether the causal relationship of the psychological component was being contested. Human Resources Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo. App. 1999).
Criminal penalties pursuant to C.R.S. §8-43-402, for willfully making false statements, related to a claim are a class five felony. If an individual is convicted he is required to forfeit his benefits.
Colorado Insurance Guaranty Association (CIGA) is statutorily immune from penalties. Mosley v. Asphalt Paving, W.C. No. 4-439-762 (ICAO December 19, 2003).
Self-insured employers are responsible for adjusting firms who willfully and unlawfully withhold payments of medical benefits. Thus, self-insured employers have primary responsibility for the claims of their employees, and may not escape responsibility by delegating the adjusting duties to third parties. See Ahlstrom v. Colorado Compensation Insurance Authority, W.C. No. 3-815-100 (January 26, 1998).
The penalty for not carrying workers’ compensation is to increase the disability benefits by fifty percent pursuant to C.R.S. §8-43-408. Moreover, the employer can be enjoined from doing business within the State of Colorado.
Effective July 1, 2017, the 50% penalty increasing indemnity benefits is eliminated but replaced with a 25% penalty payable to Colorado Uninsured Employers fund (CUE) for all uninsured cases and a second 25% penalty payable to CUE for failure to pay all benefits as ordered.
Claimant requested penalties for failure to carry worker’s compensation insurance. Claimant argued the employer’s contractual obligation to reimburse the insurer was considered a “deductable.” The Colorado Workers’ Compensation Act prohibits deductibles from exceeding $5,000. The ALJ determined that the contractual obligation was not a deductable because a deductable is defined as “the portion of the loss to be borne by the insured before the insurer becomes liable for payment.” Deanna Siefken v. The Home Depot, W.C. No. 4-740-549 (ICAO April 27, 2011).
Attorneys failure to update discovery is not a $500.00/day penalty, rather subject to discovery sanctions under C.R.C.P. Rule 37 and C.R.S. §8-43-215 unless the failure to comply with discovery was intentional, flagrant or deliberate even the discovery sanctions are not appropriate. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo. App. 2000), or if there is a court order to do so. Martinez v. Weicker Transfer, W.C. No. 3-782-459 (ICAO January 9, 2004).
C.R.S. §8-43-410 provides that interest shall be paid at the rate of eight percent per annum upon all sums not paid upon the date fixed by the award of the director or administrative law judge for the payment thereof or the date the employer or insurance carrier became aware of an injury, whichever date is later. The director or administrative law judge may determine to relieve such employer or insurer from the payment of interest after the date of the order therefor; and proof that payment of the amount fixed has been offered or tendered to the person designated by the award shall be such sufficient valid reason.
WCRP Rule 5-6 provides that benefits awarded by order are due on the date of the order. After all appeals have been exhausted or in cases where there have been no appeals, insurers shall pay benefits within thirty days of when the benefits are due. Any ongoing benefits shall be paid consistent with statute and rule.
When an adjuster required to recalculate the average weekly wage upon notice that a fringe benefit was terminated benefits and interest are payable from the date of termination of the fringe benefit.
Benefits awarded by Order are due on the date of the Order pursuant to Rule 5-6(A), however, according to Fuentez v. Hewlett Packard, W.C. No. 4-201-920 (December 18, 1998), interest is payable from the time benefits are due, not the date on which benefits are adjudicated.
In general, each party bears its own costs of litigation.
An indigent claimant may file an application for indigent determination within 20 days of a Notice and Proposal of a Division IME. The selection of a physician will not be made until a determination of indigence is made. If claimant is determined to be indigent Respondents shall pay for the DIME and claimant shall reimburse respondents costs for the DIME from any final order or settlement or respondents may take the reimbursement as an offset against permanent disability benefits.
The customary fee for an employee’s attorney is 20% of the benefits. The director may decide if a fee should be more or less. The fee should only apply to the disputed benefits and not be asserted against medical benefits. No contingent fee shall be applied to any medical benefits that have been previously incurred and will be paid to the claimant or directly to the medical care provider. In the event that medical benefits are the only contested issue, the fee agreement shall provide for reasonable fees calculated on a per-hour basis.
A party requesting attorney’s fees on an issue that is not ripe for adjudication must prove they have attempted to have the issue stricken by a prehearing law judge. The potential for imposition of attorney’s fees and costs of preparation remains if it can be shown that costs were incurred as the direct result of the listing. Fees and costs may only be imposed on attorneys. C.R.S. §8-43-211(2)(d).
Dependency is determined as of the date of injury, but the extent of the right to death benefits depends upon the dependency status as the time of the death.
C.R.S. §8-41-501 A spouse is presumed totally dependent unless: voluntarily separated at the time of the injury or death or; not dependent upon the deceased for support. The presumption is overcome only by showing a dependent receives no support from the deceased.
The dependents’ benefits are paid to a spouse for the life of the dependent, unless remarriage, at which point they receive a 2-year lump sum. However, for a spouse who is determined to be only a partial dependent the benefits only continue for six years.
A person who is in a “designated beneficiary agreement” for purposes of receiving workers’ compensation benefits is presumed wholly dependent, unless voluntarily separated and living apart at the time of death, and/or was not wholly or partially financially dependent upon the decedent.
C.R.S. §14-15-107 establishes that a partner to a civil union has the same rights as a spouse.
Children under 18 are presumed totally dependent including posthumous and adopted children.
Children 18-21 are dependents if they were actually dependent at the time of death and are enrolled as full-time students in an accredited school.
Death Benefits/Parents and Siblings
Mothers, fathers, grandparents, sisters, brothers, and grandchildren may be entitled to death benefits if they are financially supported by the deceased at the time of death, and can prove incapacity for self-support.
Death Benefits/Amounts of Benefits
Dependents are entitled to benefits “accrued and unpaid” at death. Estate of Huey v. J.C. Trucking, 837 P.2d 1218 (Colo. 1992). In that case Huey was entitled to unpaid medical expenses and temporary total disability benefits not reduced to a final award at the time of death.
The Rule of Independence provides that disability benefits awarded to a worker and death benefits awarded to the workers' dependents constitute separate and distinct claims involving distinct rights. Trudeau v. Umetco Minerals, W.C. No. 4-537-010 (ICAO January 19, 2005). Metro Glass & Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo. App. 1994).
Each Dependent may apply for and receive a separate $60,000. lump sum. Weaver v. Fed Ex Freight System Inc., W.C. No. 4-658-988 (Director’s Order August 27, 2010). Each dependent in a death claim is entitled to a lump sum of up to $60,000. Cobo v. Weatherford International, Inc., 4-861-933 (ICAO June 6, 2013).
After January 1, 2014, pursuant to C.R.S. §8-43-406, two or more dependents may only share in an amount equivalent to two times the amount of the aggregate amount of the lump sum available as of the date of application or injury, as applicable to that claim.
A work-related death pays dependents at the decedent’s temporary total disability benefits rate, but not less than 25% of the applicable maximum TTD rate.
The social security disability benefits received by the dependents are offset at a rate of 50%.
If the decedent was receiving permanent partial disability benefits the dependent receives a lump sum award in full pursuant to C.R.S. §8-42-116.
Effective February 1, 2000, funeral benefits increased from $4,000.00 to $7,000.00 maximum, C.R.S. §8-42-123.
Where claimant applied for a lump sum of his PPD award, before he died, and the check was sent and subsequently cashed by the estate this was not an overpayment. Cooper v. Industrial Claim Appeals Office, 109 P.3d 1056 (Colo. App. 2005).
For injuries occurring after February 1, 2000, if deceased employee is a minor with no dependents a $15,000 payment shall be made to the minor’s parents. If there are partially dependent persons, they are to be paid first with the balance to the parents, if no parents the payment is to the Subsequent Injury Fund.
Effective July 1, 2017, the amount payable in the case of no dependents is increased to $20,000 and requires an adjustment each year based upon the state AWW. Now it is payable to the Colorado Uninsured Employer’s fund.
Pursuant to C.R.S. §8-42-116 a death is presumed to be unrelated if more than two years after the injury.
If a decedent was receiving permanent total disability when he died not due to the injury, a dependent may receive full permanent total disability benefits for six years; partial dependents receive only a proportional share.
If the claimant had been awarded permanent partial disability and the death was unrelated, total dependents would receive the full award and partial dependents would receive a proportional share.
C.R.S. §8-42-101(1) (a) (1994 Cum. Supp.) states:
Every employer . . . shall furnish such medical (and nursing) . . . treatment . . . as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee of the effects of the injury.
Compensable expenses must be for medical or nursing treatment or incidental to obtaining such treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo. App. 1995).
Please note payment of medical benefits is not an admission of liability, Ferrell v. Bayfield School District, W.C. No. 3-056-192 (May 22, 1990). See also Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997).
If a dispute arises over whether a condition is causally related to an industrial injury the Respondents can still assert that the claimant did not establish the threshold requirement of a direct causal relationship between the symptoms and the need for treatment, See, Snyder v. Industrial Claim Appeals Office, id.
Employers, insurers, claimants, or their representatives shall not dictate to any physician the type or duration of treatment or degree of physical impairment. C.R.S. §8-43-503 (3) Violators of this statute may be subject to substantial penalties.
Treatment of non-industrial condition may be required when necessary to prepare claimant for treatment of compensable condition. Public Service Company of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo. App. 1999), a non-industrial bipolar disorder was required to be treated to increase chance of recovery for neck surgery.
However, this does not impose an obligation to pay for increased costs for treatment of an unrelated condition where the increased cost of treatment of the unrelated condition is due to the industrial injury. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo. App. March 14, 2002).
The mere fact respondents paid for certain medical treatment over an extended period of time, does not prevent respondents from challenging the reasonableness or necessity of treatment or its causality, regardless of the filing of a General Admission or an Order containing a general award for medical benefits. Ashburn v. LaPlata School District 9R, W.C. No. 3-062-779 (ICAO May 4, 2007).
Prescription for marijuana-derived medication Marinol was not prohibited by the Medical Treatment Guidelines. Armendariz v. Chief Masonry and Farmers Ins. Co., W.C. No. 4-710-674 (ICAO August 1, 2014).
Amendment 20 to the Colorado Constitution Article XVIII Section (14)(10)(a) & (b) provide: No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana. Nothing in this section shall require any employer to accommodate the medial use of marijuana in any work place.
The employer/insurer in the first instance has the right to select the physician who attends the injured pursuant to C.R.S. §8-43-404 (5)(a).
An injured worker may seek emergency medical care without first giving notice to the employer. However, once the emergency is over the employee must give notice to the employer before seeking ongoing medical attention. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).
The authorized treating physician must evaluate the injured worker within the first three visits to the physician’s office. Rule 16-5(A)(6)(e).
If the Respondents do not immediately designate a physician, the employee’s right to select their own physician becomes vested and it becomes too late for the employer to recapture its right of first selection. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987). This also applies where designated treater refuses to treat.
However, if the adjuster makes prompt efforts when claimant moved to a new location the right may not shift to claimant even if it is not a forthwith designation. Wesley v. King Soopers, W.C. No. 3-883-959 (ICAO February 2002).
Claimant provided notice sufficient to cause a conscientious manager to believe she might have a compensable work injury when she complained about her poor ergonomic work station, then went to personal physician and obtained a prescription for an ergonomic evaluation that she gave to her employer. At that point, the employer should have designated care to avoid waiver of the right of first selection. Miller v. Final Order Policy Studies, Inc., W.C. No. 4-766-877 (ICAO November 6, 2011).
An employee referred to a provider despite notice of contest is not free to select his own physician. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999).
A refusal to treat based on the doctor’s judgment that no further treatment is necessary, even if it is wrong, does not entitle the claimant to select a doctor. Bilyeu v. Industrial Claim Appeals Office, _ P.3d _ (Colo. App. 2002) (NSOP).
The employer is free to designate clinics or specific physicians. Andrade v. Industrial Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005).
Medical services shall be deemed authorized if the claim is found compensable, the claim was initially denied, the services of a physician were not tendered at the time of the injury and the injured worker treated at a public health facility or publicly funded program within this state or within 150 miles of claimant’s residence pursuant to C.R.S. §8-42-101(6).
When an authorized treating physician refers claimant to another medical care provider in the normal progression of authorized treatment and not on account of dissatisfaction or other personal reasons, the new physician becomes authorized without permission of Respondents. Greager v. Industrial Commission, W.C. No. 4-43-404, 701 P.2d 168 (Colo. App. 1985).
If an employer has appointed the services of a physician, the employee may not engage a doctor of his own selection and compel the employer to pay the services rendered by such physician without first obtaining authorization for change of physicians. Colorado Fuel and Iron Corp. v. Industrial Commissions, 269 P.2d 1070 (Colo. 1954).
Authorized treating physician’s opinion that disc herniation was not work related and that private treatment should be sought was a refusal to treat for non-medical reasons and triggered respondents’ duty to designate a provider willing to treat. Garcia v. McDonald’s Corp., W.C. No. 4-862-853 (ICAO June 19, 2014).
Refusal to offer treatment on a denied claim is a refusal to treat for non-medical reasons. Bolerjack v. Water Edge Pond Service Specialist, LLC, W.C. No. 4-905-434 (ICAO July 29, 2014).
Referral from attorney outside the chain of referral was not authorized. Johnson v. Hunter Douglas, Inc., W.C. No. 4-879-066 (ICAO April 29, 2014).
When claimant requested authorized treating physician to refer her to her primary care provider for continued care. The court concluded that the authorized treating physician was only required to exercise his independent judgment and concluded such judgment may take many forms, so long as the physician determines without undue outside influence that the referral is in the injured worker’s best interest. Sackett v. Industrial Claim Appeals Office, 15CA0786 (Colo. App. 2016) (NSOP).
Statement from authorized treating physician that claimant could seek treatment from a private physician in the case of denied medical care was found to bestow authorized status upon the private physician. Morin v. Ace Hardware, W.C. No. 4-906-748 (ICAO May 6, 2014).
In Portillo v. Shoco Oil-Samhill-Oil, Inc., W.C. 4-942-783 (ICAO May 1, 2017). Respondents initially referred claimant for an IME. However, a physician can become an authorized treating physician if they treat the Claimant and are not merely examining the Claimant in anticipation of litigation. Here, the IME physician scheduled additional appointments and treatments for Claimant and therefore, became an authorized treater.
Weaver v. Industrial Claim Appeals Office, 12CA2121 (Colo. App. August 29, 2013) (NSOP) An authorized treating physician may limit the scope of the referral.
C.R.S. §8-43-404(5)(a)(V) Authorization moves with “the” authorized provider to another corporate facility. Benton v. Lowe Enterprises, W.C. 4-903-810 (ICAO September 14, 2015). This does not apply to a non-physician medical provider such as a nurse practitioner. Daniels v. US Airways Group, Inc., W.C. No. 4-695-093 (ICAO June 5, 2013).
In Huston v. Allcable, Inc., W.C. No. 4-997-535 (ICAO October 5, 2016), the ALJ ordered a change of authorized treating physician pursuant to C.R.S. §8-43-404(5)(a)(VI). Citing recent statutory changes which compel Respondents to pay for a minimum of one appointment with the new ATP after a change of physician pursuant to C.R.S. §8-43-405(5)(a)(VI) since the change of physician statute now requires payment by Respondents, an order granting a change of physician is appealable.
Where an insurer refuses to pay for unauthorized treatment after proper notification, it cannot later claim the benefit of a reduction of the permanent disability rating without paying for the cost of the medical procedure. Wishbone Restaurant v. Moya, 424 P.2d 119 (Colo. 1967).
The rule in Wishbone has no application where the unauthorized expenses which the insurance carrier is to pay were for medical care during claimant’s period of temporary total disability before the claimant reached maximum medical improvement. In that situation, the insurer’s refusal to pay for unauthorized medical expenses does not entitle claimant to compensation for a higher degree of permanent disability than which the claimant actually suffered. Pickett v. Colorado State Hospital, 513 P.2d 228 (Colo. App. 1973).
Regardless of whether the carrier had been given permission by the Division to close its file, a claimant who subsequently consulted the physician to whom he was originally referred for further treatment, may be entitled to additional medical benefits where the physician performing the services was originally the authorized treating physician. Granite Construction Company v. Leonard, 568 P.2d 500 (Colo. App. 1977). (Please note that this case was decided before the rule pertaining to Respondents’ obligation to take a position on medical benefits following maximum medical improvement.)
An argument may be made that claimant is not entitled to seek medical treatment after maximum medical improvement in the event that medical benefits were effectively closed by way of an un-objected to Final Admission of Liability or court Order, especially if claimant precipitated closure by requesting settlement. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo. App. 1985).
Once a claimant has filed a petition to reopen, Respondents must designate an authorized treating physician or risk claimant being allowed to choose the designated physician, Twiggs v. Hoffman Structures, W.C. No. 4-430-471 (ICAO Dec. 11, 2001)
A treating physician is prohibited from communicating with the employer or insurer regarding the injured worker unless the injured worker is present or the physician makes an accurate record of the communication and makes it available to claimant. C.R.S. §8-43-404(5)(c).
A two-tiered physician accreditation system is established pursuant to the Workers’ Compensation Act. Level I accreditation applies to physicians who provide primary care to the injured worker who loses more than three days from work.
Level I accreditation is voluntary for licensed physicians but is mandatory for chiropractors.
An unaccredited physician cannot enforce payment for his services. C.R.S. § 8-42-101 (3.6) (a) (1).
Chiropractic treatment is limited. Unless a chiropractor has received Level I accreditation, the chiropractor cannot be paid for more than 12 treatments or treatments extending beyond 90 days after the first treatment whichever occurs first. C.R.S. § 8-42-101.
However, the effectiveness of this statute is practically moot as most chiropractors in the state have obtained Level I accreditation.
Pursuant to C.R.S. § 8-42-101(3.6)(b), a treating physician providing the primary care need not be Level II accredited to determine that no permanent medical impairment has resulted from the injury. Specialists who do not render primary care to injured workers and who do not perform impairment evaluations do not require accreditation.
A physician must have Level II accreditation in order to provide impairment ratings pursuant to C.R.S. §8-42-101 (3.6) (b).
A physician, who examines a claimant for the sole purpose of issuing an impairment rating, cannot be considered the claimant’s “treating” physician. Accordingly, a treating physician is one who renders services to cure and relieve the effects of claimant’s injury. Mungia v. Canam Industries, W.C. No. 4-154-268 (ICAO, December 16, 1994).
No physician or medical care provider may charge in excess of the fee schedule established by the Director of the Division of Workers’ Compensation. The employee cannot be held responsible for any amount in excess of the fee schedule and the insurance carrier should advise the provider that they are paying fee schedule and that the provider may not pursue the excess. C.R.S. § 8-42-101(3) (a) (I).
The fee schedule shall apply to all surgical, hospital, dental, nursing, vocational rehabilitation, and medical services, and expert witnesses, expert reviewer or expert evaluator services, whether related to treatment or not, provided after any final order, final admission, or full or partial settlement of the claim.
Upon written request to the insurance carrier or employer’s authorized representative, if self-insured, the employee may give written request to have a change of physician. The request must be completed on the Division form. If permission is neither granted nor refused within 20 days, any objection to the change is waived. C.R.S. §8-43-404(5)(a).
If claimant is permitted to change physicians the previously authorized physician will continue to provide treatment until the initial visit with the new physician at which point the authorization of the prior physician will terminate. C.R.S. §8-43-404(5)(a)(VI)(A).
The previously authorized physician is not prohibited from performing an examination at the request of the insurer. C.R.S. §8-43-404(5)(a)(VI)(C).
The opinion of the previously authorized physician of work restrictions and return to work controls unless expressly modified by the new authorized physician. C.R.S. §8-43-404(5)(a)(VI)(D). Upon written request to the insurance carrier or employer’s authorized representative, if self-insured, the employee may give written request to have a change of physician. The request must be completed on the Division form. If permission is neither granted nor refused within 20 days, any objection to the change is waived. C.R.S. §8-43-404(5)(a).
If claimant is permitted to change physicians the previously authorized physician will continue to provide treatment until the initial visit with the new physician at which point the authorization of the prior physician will terminate. C.R.S. §8-43-404(5)(a)(VI)(A).
The previously authorized physician is not prohibited from performing an examination at the request of the insurer. C.R.S. §8-43-404(5)(a)(VI)(C).
The opinion of the previously authorized treating physician of work restrictions and return to work controls unless expressly modified by the new authorized physician. C.R.S. §8-43-404(5)(a)(VI)(D).
In general, claimant may not request a change of physician after maximum medical improvement, except for maintenance care, Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995).
If, an application for hearing to change physicians is made before MMI, the ALJ has jurisdiction to consider the request even if MMI is proclaimed before the hearing is held. Ames v. Industrial Claim Appeals Office, 89 P.3d 477 (Colo. App. 2003).
However, a Division IME (DIME) is not a prerequisite to the Administrative Law Judge’s resolution of factual disputes concerning the authorized treating physician’s determination of maximum medical improvement or whether such physician issued a conflicting or ambiguous opinion. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996). Thus, an authorized treating physician can change his opinion regarding maximum medical improvement and the claimant is not required to undergo a DIME to challenge maximum medical improvement.
A statement by the claimant that a change of physicians had taken place is not a “request” and does not trigger employer’s duty to respond within 20 days pursuant C.R.S. § 8-43-404(5). Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000).
Beginning January 1, 2008, Employers must designate a choice of two authorized physicians or clinics, or combination thereof, or risk claimant being free to choose a new physician. Certain rural areas are excluded from this requirement. Claimant is allowed a one-time change of physician where: maximum medical improvement has not yet been attained, and the claimant requests the change within 90 days of the date of injury. Insurers are required to track and report to the Division how often injured workers change physicians.
Effective April 1, 2015, the number of providers on the designated provider list increased to at least 4 physicians, 4 corporate medical providers or a combination of both. At least 1 of the providers must be at a different location from the other 3 and have distinct ownership. C.R.S. §8-43-404(5)(a)(I)(A).
If, there are more than three, but less than nine physicians or corporate medical providers willing to treat injured workers within 30 miles of the employer’s place of business, the employer may designate two physicians, two corporate medical providers, or combination of both. The two physicians or corporate medical providers must be at two distinct locations without common ownership. If, there are not two providers at two distinct locations without common ownership within 30 miles of the employer’s place of business, the employer may designate two providers at the same location or with shared ownership interests.
In all cases, and upon request, a designated provider must provide a list of ownership interests and employment relationships, if any, to an interested party within five days of receipt of the request.
Under C.R.S. § 8-43-404 (5)(a), an ALJ's permission to change physicians is effective at the time the ALJ first enters an order authorizing the change. An ALJ may not grant retroactive change of physician. Warren v. The Lodge Casino, W.C. No. 4-643-889 (ICAO November 28, 2006)
Even though a designated provider list was given and the right of selection pass to claimant. The claimant chose Dr. Sacha and received extensive treatment from him for two years before requesting a change of physician. The ALJ determined that claimant had selected Dr. Sacha and the panel affirmed, noting that once the right of selection is exercised the claimant may not change physicians without permission from the insurer or the ALJ. Pavelko v. Southwest Heating and Cooling, LLC, W.C. No. 4-897-489, (ICAO September 4, 2015) Tidwell v. Spencer Technologies, W.C. No. 4-917-514 (ICAO March 2, 2014).
Pursuant to C.R.S. §8-43-404(10)(b), an employer may designate a new authorized physician within 15 calendar days following receipt of written notice from the injured employee or his legal representative that an authorized physician refused to provide medical treatment to the employee for non-medical reasons, when further treatment is necessary and there is no other authorized physician willing to provide treatment.
The claimant was not free to choose a new provider because of the Respondents’ prior noncompliance with providing a choice of physicians. Rather, the claimant was required to provide written notice, and only upon the employer’s failure to designate a new physician would claimant be free to select his own treater. Rivas v. Cemex, Inc., W.C. No. 4-975-918 (ICAO March 15, 2016).
An authorized treating physician who chooses to no longer treat an injured worker for non-medical reasons must notify the injured worker and insurer by certified mail return receipt requested within 3 business days, explain the reasons for refusal or discharge, and offer to transfer medical records to the new authorized treating physician upon receipt of signed authorization. C.R.S. §8-43-404(10)(a) effective July 1, 2014.
Pursuant to C.R.S. §8-43-206 (5) claimant selects a physician when he demonstrates by words or conduct that he has chosen a physician to treat the industrial injury by obtaining treatment from a particular doctor claimant demonstrated that he has made his selection. Loy v. Dillon Companies, W.C. No. 4-972-625 (ICAO February 19, 2016); Williams v. Halliburton Energy Services, W.C. No. 4-995-888 (ICAO October 28, 2016).
Continuing medical benefits may be ordered after maximum medical improvement where there is substantial evidence contained in the record that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease, or maintain the worker’s condition at maximum medical improvement. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
The ALJ cannot issue an order regarding medical care after MMI if a DIME is requested and not yet performed. Hubbard v. University Park Care Center, W.C. No. 4-907-314 (ICAO July 17, 2014).
Effective May 23, 2011, the insurance adjuster is required to admit to authorized, reasonable, necessary and related medical benefits after MMI where such benefits have been recommended by an ATP and there is no contrary medical opinion in the record. C.R.S. §8-42-107.
Effective July 1, 2010, the injured worker can be awarded all reasonable costs incurred for pursuing medical maintenance benefits recommended by an authorized treating physician if such benefits are admitted less than twenty days before a hearing or ordered after an application for hearing is filed. Such costs do not include attorney fees. C.R.S. §8-42-101(5).
Once an Administrative Law Judge determines that there is substantial evidence to support an award of Grover medicals, a general order for Grover medicals should be ordered, not limited in scope or duration. However, Respondents may still contest reasonableness and necessity of particular treatments or seek to reopen to show there is no longer evidence supporting the need for ongoing treatment. Traczyk v. Colorado Department of Highways, W.C. No. 3-052-418 (ICAO February 1992); Morey v. Ryan Glass, Inc., W.C. No.4-209-493 (ICAO May 1998).
The issue of Grover Medicals (maintenance medicals) was closed when claimant previously went to hearing on PPD and later applied for hearing on Grovers. The request for post MMI medical benefits was stricken as not timely. Hannah v. Print Expediters, Inc., 77 P.3d 863(Colo. App. 2003).
When claimant failed to request issue of Grover medicals be addressed at hearing, but ALJ “reserved other issues for future determination,” the issue of Grover’s was not waived. Hire Quest, LLC v. Industrial Claim Appeals Office, _ P.3d _ (Colo. App. September 15, 2011).
Where limitations on post-MMI medical benefits are contained in a Final Admission, rather than an Order, the limitations are binding, unless objected to by the claimant within the time provided by C.R.S. §8-43-203(b) (II) and C.R.S. §8-42-107.2. Anderson v. SOS Staffing Services, W.C. No. 4-543-730 (ICAO July 14, 2006).
Every employer or its insurance carrier shall offer managed care or medical case management in the more populated counties of Denver, Adams, Jefferson, Arapahoe, Douglas, Boulder, Larimer, Weld, El Paso, Pueblo, Mesa. The medical case management shall be offered in all other counties of this state. (The Division has informally stated its position that the worker is not required to accept medical case management.) C.R.S. §8-42-101(3.6)(P)(vi).
In the event a claimant paid for authorized prescriptions the payer shall reimburse the injured worker for the amounts the worker actually paid within 30 days after receipt of the bill. Rule 18-6(P)(5).
With regard to payment of a medical bill, once the adjuster receives the bill, he or she must either:
Pay the bill in its entirety pursuant to the Colorado Fee Schedule, which requires the adjuster to send payment with claimant’s name, payers name, bill, and amount paid, and dates of service; or send a written denial notice within 30 days of receipt of the bill.
Providers must submit their bills within 120 days of service, but if extenuating circumstances apply, the bills may still be deemed authorized.
In the event an injured worker pays the provider directly, the adjuster is required to reimburse the injured worker within 30 days after receipt of the bill, and may seek reimbursement for any amount in excess of the Fee Schedule from the provider directly.
When a payer fails to make a timely payment of uncontested medical bills, the billing party is first required to resolve the matter with the payer, and then make seek assistance from the Division’s Carrier Practices Unit.
A bill can be denied for either:
- Non-Medical reasons, such as the claim is not compensable, the billed services are not related to the admitted injury, there is a coverage dispute, the provider is not authorized, a typographic, gender or date error, failure to submit any supporting documentation, or unrecognized Rule 18 MFS billing codes; or,
- Medical reasons, a denial for medical reasons must have written medical professional opinion from a licensed Colorado physician who is in the same or similar specialty as would typically manage the medical condition, procedure or treatment under review. The reviewing physician may contact the provider to expedite communication and timely processing of the payment or contested medical bill.
Upon receipt of the Employer’s First Report of Injury or Workers’ Claim for Compensation, the payer shall give written notice to the injured worker that the requirements for obtaining prior authorization for payment are available from the payer.
Upon receipt of the physician’s initial report the payer shall notify the provider of the procedures for obtaining prior authorization of the payment, unless the provider was already notified.
It shall be the responsibility of provider to obtain prior authorization when necessary and concurrently explain the medical necessity of the services requested and provide supporting medical records.
Payment may be denied where the prior authorization procedures are applicable, but not followed. However, if after the service was provided the payer agrees the service was reasonable and necessary, the payer must pay for the service.
Any unreasonable denial of prior authorization as determined by the Director or an Administrative Law Judge may subject the payer to penalties at the rate of up to $1,000 per day.
If the payer seeks to deny a prior authorization for payment of a requested service, the payer shall within seven (7) business days after receipt of the supporting medical documentation, including via facsimile; have the request reviewed by physician who holds a Colorado license in the same or similar specialty and who would typically manage patients with the medical condition under review; and furnish the provider and the parties with a written denial setting forth an explanation of the specific medical reasons for the denial, the name and professional credentials of the person performing the medical review, and a copy of his or her opinion, references to the specific medical treatment guidelines, if applicable, identification of the information to be most likely to influence reconsideration of the denial; and a certificate of mailing.
The denied party or provider shall have seven (7) business days after the date of the certificate of mailing to provide a written response (including a certificate of mailing).
The payer shall have seven (7) business days from the date of the certificate of mailing of the response to issue a final decision (including a certificate of mailing).
Urgent need for prior authorization of health care services as recommended in writing with the explanation of medical necessity by an authorized treating physician shall be deemed good cause for an expedited hearing; and in the absence of an expedited hearing, failure of the payer to timely comply with the time requirements of prior authorization requests shall be deemed authorization for payment of the treatment requested.
Where prior authorization is required by the rules, and where the treating physician never submitted anything other than brief prescription forms, The ALJ did not err in finding that the time period provided by prior Rules XVI (J) (1) and (2) was not triggered. Cross v. Microglide, Inc., W.C. No. 4-355-764(ICAO September 2, 2003). See, current Rule 16-10.
A short prescription note does not meet requirements of Rule XVI (l) (5). That requires requester to explain the medical necessity of the service and provide relevant supporting documentation. (Current Rule16-9(E). Gauvin v. Microfilm & Imaging of Durango, W.C. No. 4-570-204 (ICAO September 27, 2006).
Rule 16 does not divest the ALJ of jurisdiction over the issue of reasonableness and necessity of the treatment and does not require the insurer to pay for treatment indefinitely with no recourse to adjudicative procedures. Bekkouche v. Riviera Electric, W.C. No. 4-574-998 (ICAO May 10, 2007).
Respondents may deny prior authorization without the need for medical review when compensability of the claim has not been established. Flanagan v. Brookdale Senior Living, Inc., W.C. No. 4-948-599 (ICAO May 24, 2016).
WCRP 16-10 Request for Prior Authorization for medical services outside of the Medical Treatment Guidelines and the Fee Schedule requires the following:
- Upon receipt of the Employer’s First Report of Injury or Workers’ Compensation Claim for Compensation, the payer shall give written notice to the injured worker that the requirements for obtaining prior authorization for payment are available from the payer;
- Upon receipt of the physician’s initial report the payer shall notify the provider of the procedures for obtaining prior authorization of the payment, unless already notified; It shall be the responsibility of provider to obtain prior authorization when necessary and concurrently explain medical necessity of the services requested and provide supporting medical records.
- If the payer seeks to deny a prior authorization for payment of a requested service, the payer shall within seven (7) business days after receipt of the supporting medical documentation, including via facsimile irrespective as to who transmitted the request have the request reviewed by a physician or chiropractor who holds a Colorado license in the same or similar specialty and who would typically manage the condition, procedures, or treatment under review and the physicians or chiropractors performing the review shall be level I or Level II accredited; and
- Furnish the provider and the parties with a written denial setting forth an explanation of the specific medical reasons for the denial, the name and professional credentials of the person performing the medical review, and a copy of his or her opinion, references to the specific medical treatment guidelines, if applicable, identification of the information to be most likely to influence reconsideration of the denial; and a certificate of mailing.
- An insurer cannot deny on the basis of relatedness without a medical review as required by 16-11(A).
- The denied party or provider shall have seven (7) business days after the date of the certificate of mailing to provide a written response (including a certificate of mailing);
- The payer shall have seven (7) business days from the date of the certificate of mailing of the response to issue a final decision (including a certificate of mailing);
- January 1, 2017 to December 31, 2017, under the recent Rule 16-11(E): [f]ailure of the payer to timely comply in full with the requirements of section 16-11(A) or (B), shall be deemed authorization for payment of the requested treatment unless:
- A hearing is requested within the time prescribed for responding as set forth in section 16-11(A) or (B) and the requesting provider is notified accordingly. A request for hearing shall not relieve the payer from conducting a medical review of the requested treatment, as set forth in section 16-11(B); or
- The payer has scheduled an independent medical examination (IME) within the time prescribed for responding as set forth in section 16-11(B).” In short, filing an Application for Hearing by itself is no longer sufficient to contest the preauthorization request. If the carrier requests a hearing, the carrier must complete the medical review process within seven business days or actually schedule the injured worker for an Independent Medical Evaluation (“IME”) within seven business days.
Failure of the payor to timely comply in full with the requirements of Section 16-11(A)(B) or (C) shall be deemed authorization for payment of the requested treatment unless the payer has scheduled
- an IME and notified the requesting provider of the IME within the time frame prescribed for responding set forth in Section 16-11(B).
- The IME physician must occur within 30 days, or upon first available appointment, of the prior authorization request, not to exceed 60-day absent an order extending the deadline.
- The insurer shall respond to the prior authorization request within 5 business days of the receipt of the IME report.
- If, the injured worker does not attend or reschedules the IME, the payer may deny the prior authorization request pending completion of the IME.
The IME shall comply with Rules 8-8 to 8-13 as applicable.
- Urgent need for prior authorization of health care services as recommended in writing with the explanation of medical necessity by an authorized treating physician shall be deemed good cause for an expedited hearing; and
- In the absence of an expedited hearing, failure of the payer to timely comply with the time requirements of prior authorization requests shall be deemed authorization for payment of the treatment requested unless, a hearing is requested within the time limits for responding and the requesting provider is notified that request is being contested and the matter is going to hearing.
- Unreasonable delay or denial or prior authorization, as determined by the Director or an Administrative Law Judge, may subject the payer to penalties at the rate of up to $1,000 per day. Walling v. ASA Electric, Inc., W.C. No. 4-760-050 (ICAO December 10, 2013) Penalties were assessed although, Respondents complied with all Rule 16 requirements to deny SlimGenics program.
- Where prior authorization is required by the rules, and where the treating physician never submitted anything other than brief description forms, the ALJ did not err in finding that the time period provided by prior Rules XVI(J)(1) & (2) was not triggered. Cross v. Microglide, Inc., W.C. No. 4-355-764 (ICAO September 2, 2003). See, New Rule 16-10.
- A health care provider’s opinion that treatment should be denied cannot be used to support a denial of prior authorization if the opinion was obtained before the request for prior authorization was made. Welch v. American Association of Retired Person. W.C. No. 4-753-140 (ICAO March 23, 2012).
New provisions to Rule 16-9. Notification for Services inside of the Medical Treatment Guidelines and the Fee Schedule.
- January 1, 2017, the Colorado Division of Workers’ Compensation’s revised Rule 16 took effect. The most significant addition to Rule 16 was the incorporation of the “Notification” provision found in Rule 16-9. The Notification process was the Division’s response to concerns about expediting medical services to injured workers while guaranteeing that the medical providers would receive payment without a prior promise of payment from the insurance carrier.
- Rule 16-9(A) states “[t]he Notification process is for treatment consistent with the Medical Treatment Guidelines (MTG) that has an established value under the Medical Fee Schedule. Providers may, but are not required to, utilize the Notification process to ensure payment for medical treatment that falls within the purview of the Medical Treatment Guidelines. Therefore, lack of response from the payer within the time requirement set for thin section 16-9(D) shall deem the proposed treatment/service authorized for payment.”
- The language contained in Rule 16-9(B) emphasizes that a medical provider “may” obtain permission to provide a service within the Medical Treatment Guidelines verbally within normal business hours. The providers can obtain verbal confirmation and may make a request for written confirmation regarding payment of those services. If the provider wishes, the provider can submit a written Notification to the claim examiner. The provider must use the boilerplate Division form WC195, which is available online at the Division’s website. The provider must include on the form a statement as to why the services is medically necessary and cite the applicable MTG.
- After the payer receives the Notification the recipient has 5 business days from the receipt of the Notification to respond to the provider. The timing for the response to the provider differs from the current structure of Rule 16 whereby the carrier is permitted 7 business days from the date of the request to respond to the request for authorization. If the carrier does not respond to a verbal or written request in 5 business days, the requested service is deemed automatically authorized for payment.
- The carrier may either accept or deny the request for services. Similar to the current Rule 16 structure, the carrier always reserves the right to agree to pay for the requested services without a formal review of the requested services.
- The carrier may contest the services on the following grounds: “(1) for claims which have been reported to the Division, no Admission of Liability or final order finding he injury compensable has been issued; (2) proposed treatment is not related to the admitted injury; (3) provider submitting Notification is not an Authorized Treating Provider (ATP), or is proposing for treatment to be performed by a provider who is not eligible to be an ATP; (4) injured worker is not entitled to proposed treatment pursuant to statute or settlement; (5) medical records contain conflicting opinions among the ATPs regarding proposed treatment; and (6) proposed treatment falls outside the Medical Treatment Guidelines (see section 16-9(E).”
- If the carrier contests the Notification on the grounds that the treatment is not related to the industrial injury, the medical records contain conflicting opinions, or that the treatment falls outside of the MTG, the carrier must notify the provider. The carrier must then allow the provider to submit supporting documentation to justify the relatedness of the service. If the provider submits the requested supporting documentation, then the carrier must review the request consistent with the Rule 16-10 and 16-11 preauthorization rules within 7 business days. A party contesting the denial of a Notification request may file an Application for Hearing.
- The Division inserted a penalties provision in Rule 16-9(G). Under this new rule, if any medical provider or payer the carrier or TPA, misapply the Medical Treatment Guidelines in the Notification process, the respective party may be subject to penalties.
The carrier is required to reimburse the claimant for travel expenses incurred in traveling to and from medical appointments. Sigman Meat Company v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo. App. 1988).
The payer shall reimburse an injured worker for reasonable and necessary mileage expenses for travel to and from medical appointments and reasonable mileage to obtain prescribed medications. The reimbursement rate varies annually. Rule 18-6E.
The injured worker shall submit a statement to the payer showing the dates of travel and number of miles traveled, with receipts for any other reasonable and necessary travel expenses incurred.
WCRP 18-6(E) only requires reimbursement not advances for travel expenses incluing hotels, mileage and meals. Winter v. Industrial Claim Appeals Office, 12CA2437 (Colo. App. 2013) (NSOP).
Bunch v. Industrial Claim Appeals Office, 148 P. 3d 381 (Colo. App. 2006) Employer was not liable for medical treatment that occurred prior to the filing of claim. When the employer was not aware of facts which would lead a reasonable conscientious manager to recognize the decedent might have a compensable claim, the employer was not required to pay for several years of treatment received prior to the time that neither the employee or the employer or had knowledge of the nature, seriousness and probable compensable character of the injury.
To be compensable, expenses must be for medical or nursing treatment or incidental to obtaining such medical or nursing treatment. See, Industrial Commission v. Pacific Employer’s Insurance Company, 209 P.2d 908 (1949).
“Incidental to” is that which enables the claimant to obtain medical care or treatment. Alternatively, it must be relatively minor in comparison to the medical care and treatment needed by the claimant. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo. App. 1995). Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo. App. 1990).
Ontiveros v. Gallegos Corporation, W.C. No. 4-575-790 (ICAO July 12, 2006) Claimant requested attendant care services provided by family members at a maximum rate provided by the fee schedule. The ALJ awarded attendant care, but at a rate lower than fee schedule. Rule 16 - 4 provides “all payers shall use the fee schedule to determine the maximum allowable fees." The fee schedule amount for certified nurse assistants Rule 18 – 6(N) (2) is $31.67 for the first hour and $9.46 for each additional half-hour. Pursuant to the plain language of Rule 16-4 the ALJ was not compelled to compensate family member at a maximum rate for certified nurse assistant. The court supported a payment of $14. per hour.
Claimant submitted a request that approximately 6,000 hours of attendant care provided by mother over a 9-year period. Claimant did not secure prior authorization, as such, the authorization could not be granted retroactively. Rule 16-5A requires that a provider not on the list of recognized non-physician providers must obtain prior authorization. Leibold v. A-1 Relocation, Inc., W.C. NO. 4-304-437 (ICAO January 3, 2008).
While a prescription for home health care may not meet the requirements for prior authorization under Rule 16 it can still provide a basis for an ALJ to award home health care as reasonable, necessary and related to the industrial injury. Farber v. Washington Inventory Service, W.C. No. 4-615-836 (June 11, 2009).
In Robinson v. Compucredit Corp., W.C. No. 4-827-378 (ICAO July 15, 2016), respondents appealed a decision of the ALJ which held them liable for essential services of daily living for 28 hours per week. The Industrial Claim Appeals Office remanded and instructed the ALJ to make findings as to which activities were authorized and whether each activity either cured or relieved the effects of the injury or was incidental to obtaining medical treatment.
The term “apparatus” under the medical benefits statute refers to “medical” apparatus used for treatment to cure and relieve the effects of injury (snow is blower not an apparatus). ABC Disposal Services v. Fortier, 809 P.2d 1071 (Colo. App. 1990).
Robertson v. Vincam Staff Administrators, W. C. No. 4-389-907 (ICAO January 10, 2007) this case denied compensability for cell phone service. Claimant was permanently and totally disabled. His physician issued a prescription for a cell phone for medical emergency needs. The court found, for an apparatus to be a medical necessity it must provide therapeutic relief from the effects of an injury. The avoidance of the risk of serious injury in an emergency did not render the cell phone a medical necessity and was not sufficiently connected to the claimant physical condition.
Harrison v. Advanced Component Systems, W. C. No. 4-192-027 (ICAO November 3, 2006) Claimant a paraplegic was prescribed a van with a power lift to decrease the risk of skin shearing and back and shoulder injuries. He was further prescribed an electric wheelchair. Thus, a vehicle with the lift was required. The ALJ concluded that respondents were required to reimburse claimant for the cost of the vehicle and the power lift system for his wheelchair.
Claimant was awarded motorized wheelchair and a van to transport it where he was in less pain and distress when he used it. Further, without a method to transport the wheelchair, which would enable claimant to get to his medical appointments and complete personal errands, the wheelchair’s benefits could not be fully realized because claimant would be required to use his walker and his personal vehicle to get around the community or find a service capable of transporting him and his motorized wheelchair. Colorado Springs School v. ICAO, 12CA2465 (Colo. App. 10-03-2013(NSOP).
Other divisions of the Court of Appeals have reached contrary results. In Bogue v. SDI Corp., Inc., 931 P.2d 477 (Colo. App. 1996), and Cheyenne County Nursing Home, the facts precluded the ALJ from finding that claimant’s minivan constituted a medical apparatus.
In Nanez v. Mechanical & Piping, Inc. and Pinnacol Assurance, W.C. 4-922-618 (ICAO June 16, 2017) ICAO held that conservator and guardian services for a Claimant with a brain injury were not compensable under the WC Act because they were not medical in nature and did not enable access to medical services.
In order to render expenses incurred for housekeeping services compensable, the services must enable claimant to obtain medical care or treatment or alternatively, must be relatively minor in comparison to the medical care or treatment. Country Squire Kennels v. Tarshis, supra, Suetrack v. ICAO, 902 P.2d 854 (Colo. App. 1995).
In general, child care is not a compensable medical benefit pursuant to C.R.S. §8-42-101(1) (a). Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo. App. 1996).
However, child care can be a compensable benefit if the care is medical in nature in that it relieves the symptoms and effects of the injury and relates to physical needs. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo. App. 1997).
The carrier must furnish prosthetic devices including glasses, hearing aids, braces, and dentures and replace damaged but preexisting prosthesis. The employee may petition the Division for a replacement of such device upon the grounds that the employee has undergone an anatomical change since the original was furnished, and that the change is directly related to and caused by the injury, and that the replacement is necessary to improve function or relieve pain and discomfort. C.R.S. §8-42-101(1) (b).
Rule 16-1 providers shall submit their bills within 120 days or they may be denied. This does not apply to claimant’s mileage reimbursement. Safeway v. Industrial Claim Appeals Office, 186 P.3d 103 (Colo. App. 2008).
In Creagan v. Albertini Construction and Truck Insurance Exchange, W.C. No. 4-724-791 (ICAO December 21, 2012) the ALJ determined that claimant could not receive compensation for medical benefits he received prior to reporting an injury. The ALJ reasoned that an employer must have notice of the work-related injury unless a claimant’s symptoms would cause a reasonably conscientious manager to realize the compensable nature.
Upon request Respondents must provide advance payment of travel expenses at least 3 business days in advance of a Respondent Independent Medical Examinations (RIME), Failure to provide the advance constitutes grounds for refusal to attend the appointment. If, expenses are advanced and claimant fails to attend the appointment monies advanced may be deducted from future indemnity benefits. C.R.S. §8-43-404(1) (b).
Any physician or chiropractor who has examined or attended to an employee may be required to testify as to the results, but will not be required to disclose confidential communications which were imparted for the purpose of treatment. C.R.S. §8-43-404(4).
For claims filed on or after August 5, 2009, the examiner shall prepare a written report describing the examination performed, the documents or materials reviewed and all findings and conclusions.
For all claims the RIME examination shall be recorded, and the recording retained. Prior to the exam the physician shall tell the claimant the examination is being recorded. If requested an exact copy of the recording shall be provided to the parties.
Prior to commencing the RIME examination, the injured worker must review and sign a form issued by the Division that contains information regarding the independent medical examination process. This form may be presented by the examining physician or by the employer, insurer or third-party administrator any time prior to the examination. The injured worker shall sign the form. The RIME examination shall not take place unless the injured worker has signed the form. Refusing to sign the form shall constitute refusal to submit to the independent medical examination.
Immediately prior to the RIME examination, the examining physician shall verbally notify the injured worker that the examination will be audio recorded.
The RIME physician shall be compensated for conducting the examination pursuant to the medical fee schedule, Rule 18-6(G) (4)-Special Reports. In addition, the examining physician may add a $30 charge for all recorded examinations. The physician shall be entitled to charge $20.00 for each copy of the recording that is provided.
Regardless of who requests a copy, the first copy of the recording is provided only to the injured worker. If the injured worker makes the initial request for a copy of the recording, he/she shall be responsible for the cost of the copy. If the employer/insurer makes the initial request for a copy of the recording, it shall be responsible for the cost of the copy provided to the injured worker.
All requests for copies shall be made to the RIME examining physician, in writing, with a copy of the request to all other parties. The written request shall include the address to which the copy is to be provided along with payment of $20.
The respondent’s request shall instruct the RIME examining physician to provide a copy of the recording only to the injured worker and must also provide the address for the injured worker.
If claimant feels some information should remain confidential, he/she must raise that allegation in writing within fifteen (15) calendar days of the date the copy of the recording was provided. The written allegation along with the copy of the recording and a copy of the written medical report received by the injured worker must be provided to the Division’s Customer Service Unit. A copy of the written allegation shall also be provided to the examining physician and the employer/insurer. Within ten (10) days of the allegation being provided to the employer/insurer, the employer/insurer may file a response to the injured worker’s allegation.
Only medical information that is not discussed in the written report generated by the RIME physician as a result of the independent medical examination may be raised.
Raising medical issues contained in the report, or failing to provide sufficient detail shall result in a summary denial of the allegation by an ALJ.
If no timely allegation regarding confidential information is made, the employer/insurer may then request a copy of the recording by providing a written request to the RIME examining physician, explaining that no allegation was made by the injured worker and a copy of the recording may be released to the employer/insurer. A $20 payment to the examining physician shall be included with this request.
If the injured worker alleges that the recording contains confidential medical information the employer/insurer shall not request a copy of the recording until the allegation is resolved.
If an Administrative Law Judge determines that the recording contains confidential medical information, the Administrative Law Judge shall issue an order. The Administrative Law Judge shall then produce, or cause to be produced, a copy of the recording with the confidential medical information redacted. An order to redact information does not constitute a final decision as to the relevancy of that information in any future proceeding. The Administrative Law Judge will provide the original recording and the redacted recording to the Division’s Customer Service Unit. The Division will maintain the copy of the original and redacted recording until the claim is closed. Either party may obtain a copy of the redacted recording by providing a written request, along with payment of $10. to the Division.
The examining physician may destroy the recording twelve (12) months after the date the examining physician’s written report was issued.
If a dispute arises, such as, the RIME examination was not recorded, or if the recording is inaudible, the parties may file a motion with an Administrative Law Judge if they cannot agree on a resolution. Administrative Law Judge may fashion an appropriate remedy. Generally, the striking of the IME report will be the appropriate remedy. If the examining physician was responsible for the faulty or inaudible recording, the examining physician may be required to repeat the examination without additional payment. If another party was responsible for a faulty or inaudible recording that party may be required to pay for a repeat RIME examination.
Respondents are required to reimburse a claimant for lost wages sustained as a result of attending a Respondents’ IME at the rate of $75 per day. Claimant must prove that he would incur wage loss. Failure to pay constitutes grounds for not attending the IME. C.R.S. §8-43-404(1)(b)(I) effective July 1, 2014.
Refusal of Medical Treatment
Respondent Independent Medical Examinations (RIME), a claimant must submit, upon written request, to an examination by a physician, surgeon, or vocational evaluation paid for by the employer or by the Division. C.R.S. §8-43-404(1).
A claimant may have, at his own expense, his own physician or chiropractors, if the examination is by a chiropractor, attend the independent medical examination. All parties shall be entitled to receive reports from any physician or chiropractor who has examined or treated the employee in connection with the injury. C.R.S. §8-43-404(2).
If an employee persists in unsanitary or injurious practice or refuses to submit to surgical treatment or vocational rehabilitation that is reasonably essential to promote his recovery and rehabilitation, the Director has discretion to reduce or suspend claimant’s compensation. C.R.S. §8-43-404 (3).
Employer must show the surgery is calculated to affect a cure. Claimant not required to prove that the surgery proposed unusual risks, MGM Supply Co v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002).
Where refusal to submit to treatment had no impact on respondents’ liability for compensation there is no error in ALJ refusing to reduce compensation. Aranda v. Evarz, Inc, W.C. No. 4-628-418 (February 17, 2010).
SUBROGATION OR CREDIT
Negligence of a stranger, if an employee who is entitled to compensation under the Act is injured or killed by the negligence or wrong of another not in the same employ, the injured employee or the employee’s dependents may take compensation and may also recover damages in excess of compensation available under the act. If, the employee makes demand for damages from a negligent third party the claimant must give notice to the Division and to the workers' compensation carrier within ten days after the claimant gives notice to the third party that he may pursue a claim against a responsible third party. The notice must include a description of the claim; the name and address of all responsible third parties; the name and address of the attorney representing the claimant and of the attorney representing the third parties; and the name address and phone number of the insurance carrier or third-party administrator elect in writing whether to take compensation or pursue a remedy in tort against the other person. C.R.S. §8-41-203.
Payment of workers’ compensation benefits shall operate as and be an assignment of the cause of action against the third-party tort-feasor to the carrier to the extent of benefits paid.
Colorado Compensation Insurance Authority v. Jorgensen, 992 P.2d 1156 (Colo. 2000), provides that insurer’s right to first dollar recovery does not extend to amounts allocated to non-economic and consortium claims. Settlement that attempts to entirely defeat legitimate subrogation rights can be set aside and subrogation may be allowed as against the entire net proceeds. An insurer has the right to ask a civil court to hold a hearing to determine the amounts allocated and to reapportion any settlement if the claimant circumvented the carrier’s rights through an uncommitted pursuit of economic claims.
Chavez v. Kelley Trucking, Inc., 10CA1720, (Colo. App. October 13, 2011) the Court held that claimants have no obligation to seek an insurer’s consent in order to settle with a third party for non-economic damages. The Court also held that claimants were not obligated to pursue all related causes of action jointly with their insurer.
The compensation carrier shall not be entitled to recover from the tort-feasor a sum in the excess of the amount of benefits paid to date, but may suspend payment of future benefits from monies recovered by claimant beyond the amount of the carrier’s existing lien. This is known as the carrier’s holiday or right of offset.
In the event that a government entity is the alleged tort-feasor a governmental immunity notice within 180 days is required or the suit will be barred.
The claimant shall also give written notice to the insurer 20 days before a third-party suit is filed unless the statute of limitations is about to expire. Failure to do so allows the workers' compensation carrier to recover its entire lien amount with no reduction for attorney's fees or costs to claimant, but only out of the economic damages or physical impairment and disfigurement damages. The claimant is not responsible for his attorney's fees on the lien amount.
In Harrison v. Pinnacol Assurance, _ P .3d _ (Colo. App. March 11, 2003) (NSOP), the court held that claimant has only two years from the date respondents filed a Final Admission asserting an offset pursuant to its subrogation rights against a third party to file a declaratory action requesting apportionment between economic and non-economic damages.
In July, 2003, the General Assembly added C.R.S §8-41-203(1)(d)(I)(B), to provide explicitly that for injuries occurring on or after that date, a workers' compensation insurer's subrogation rights extend to an employee's physical impairment and disfigurement damages. However, under Colorado common law, physical impairment and disfigurement have historically been considered an element of damage separate from the categories of economic and non-economic damages. C.R.S. §13-21-102.5, 2004, establishes three separate categories of damages: economic, non-economic, and physical impairment or disfigurement. Thus, for injuries occurring prior to July, 2003, the Court held in Colorado Compensation Insurance Authority v. Jones, 131 P.3d 1074 (Colo. App. 2005) that physical impairment and disfigurement were not intended to be included in the general category of economic damages subject to the insurers right of subrogation.
Schuster v. High Country Transportation, W.C. No. 4-431-875 (ICAO October 7, 2005) after claimant received third party settlement proceeds and hearing is set for offsets for the settlement amounts, the ALJ lacks jurisdiction to attempt apportionment. In the absence of apportionment reached by either agreement or the district court, the ALJ should properly permit offset for the entire settlement amount.
Where a claimant’s settlement with a third party is greater than the benefits paid by the workers’ compensation carrier, the subrogation statute C.R.S. §8-41-203(2) does not apply. Thus, a claimant does not need written approval from the carrier to settle a third-party claim. Charles Ross v. Colorado Cab Co. d/b/a Yellow Cab of Denver and Old Republic Insurance Company, ____ P.2d____ (Colo. App. 2012) (NSOP). However, in this case the Court also found that a respondent may be entitled to an offset for the entire settlement amount if the claimant fails to provide a basis for apportionment of settlement proceeds between economic and non-economic damages.
Rodriguez v. Ted’s Plumbing & Heating, W.C. No. 4-424-539 (ICAO August 24, 2006) Where claimant is not liable for payment to the health carrier, claimant lacks standing to assert health carrier’s claim for reimbursement in a workers’ compensation hearing.
C.R.S. §8-41-401(3) provides as follows: Notwithstanding any provision of this section or C.R.S. §8-41-402 to the contrary, any individual who is excluded from the definition of employee pursuant to C.R.S. §8-40-202(2), or a working general partner or sole proprietor who is not covered under a policy of workers’ compensation insurance…shall not have any cause of action of any kind under articles 40 to 47 of this title. Nothing in this section shall be construed to restrict the right of any such individual to elect to proceed against a third party in accordance with the provisions of C.R.S. §8-41-203. The total amount of damages recoverable pursuant to any cause of action resulting from a work-related injury brought by such individual that would otherwise have been compensable under articles 40 to 47 of this title shall not exceed fifteen thousand dollars, except in any cause of action brought against another not in the same employ.
Cavaleri v. Anderson, 298 P.3d 237 (Colo. App. 2012) provides where independent contractor did not have his own workers’ compensation insurance, he can maintain an action as against a homeowner where he suffered a work-related injury, but his recover is limited to $15,000.
Attorney’s FeesA basic rule of equity permits an apportionment of attorneys’ fees under circumstances where a party has been successful in creating a fund from which other passive beneficiaries derive monetary advantage. Where an injured employee's tort claim against a third party is settled for an amount greater than the insurer's subrogation claim for workers' compensation benefits, and the insurer has not actively participated in the tort litigation, a court may order the insurer to pay a reasonable share of the attorney fees and court costs incurred by the employee in the tort litigation. County Workers Compensation Pool v. Davis, 817 P.2d 521 (Colo. 1991).
The employee or dependents shall not be liable for any plaintiff's attorney fees for the third-party recovery on that portion of any recovery equal to the assigned and subrogated interest and are not subject to any action for refusal to pay such plaintiff's attorney fees resulting from the third-party case.
Motor Vehicle Accidents
Currently, subrogation arising out of a motor vehicle accident is no different than for any negligent third party.
Effective July 1, 2003, the Colorado Personal Injury Protection (PIP) statute expired, and was not re-enacted. As such, for all injuries involving a motor vehicle carrier with a policy of insurance written on or after July 1, 2003, the workers' compensation carrier may subrogate against 100% of the economic damages, physical impairment and disfigurement damages paid to the injured worker by a negligent third party. C.R.S. §8-41-203, as amended July 1, 2003.
Prior to July 1, 2003, the carrier could not recover PIP equivalent benefits from a tort-feasor in a work-related automobile accident. Tate v. Industrial Claim Appeals Office, 815 P.2d 15 (Colo. 1991).
In American Family Mut. Ins. Co. v. Ashour, 2017 COA 67, 16CA0822 Colo. App. May 18, 2017) the Court of Appeals held that a Claimant could recover underinsured motorist (UIM) benefits from his personal auto insurance policy in addition to WC benefits in cases where the incident was the result of a co-worker’s negligence. The fact that the co-worker was ultimately immune from suit under the WC Act did not impact the decision, because the policies behind the WC Act and the UIM coverage were not in conflict and Claimant was not trying to recover additional damages from the immune co-worker.
Health BenefitsEffective July 1, 2013, C.R.S. §8-42-101 (6)(a), and (6)(b) require that an injured worker or other payer be reimbursed for reasonable, necessary and related medical expenses when an employer fails to provide medical care after receiving notice of a claim that is later found to be compensable. In addition, an insurer or provider may not recover medical costs from an injured worker where the employer has furnished medical treatment except in the case of fraud. An insurer must reimburse an injured worker for the full amount paid. It may however, seek reimbursement from the medical provider for amounts paid in excess of the fee schedule.
Although decided prior to the above statutory change, Rodriquez v. Ted’s Plumbing & Heating, W.C. No. 4-424-539 (ICAO August 24, 2006) held where claimant is not liable for payment to the health carrier, claimant lacks standing to assert health carrier’s claim for reimbursement in a workers’ compensation hearing.
CreditsWhere a claimant is eligible to receive social security disability benefits, workers’ compensation disability benefits are reduced by one-half of the initial federal benefit rate. C.R.S. §8-42-103(1)(c)(I).
Respondents may reduce an injured claimant's Permanent Total Disability benefits when that injured claimant was receiving widow's or survivor's benefits from the Social Security Administration as a result of the death of the injured claimant's spouse. Hillery v. Three Aces, LLC, W. C. No. 4-755-808 (ICAO January 14, 2011).
Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo. App. 1998). Employer is obligated to expressly inform claimant of any credit or offset in the Final Admission of Liability. Notification of the credit in a previously filed General Admission of Liability does not adequately preserve the employer’s right to a reduction because it is the Final Admission of Liability which dispositively settles an employer’s liability when uncontested.
Upon re-opening of a claim, a carrier was allowed to take a retroactive social security disability offset. On review, the Court of Appeals held that an offset can be claimed at any time, even after closure of a claim. Jimenez v. Industrial Claim Appeals Office, 51 P.3d 1090 Colo. App. 2002).
Rule 6-5 allows an insurer to modify TTD to offset social security, disability, pension or similar benefits by filing an admission with documentation substantiating the offset and figures showing how the offset was calculated.
An employee must apply for social security disability benefits and indicate to the employer or insured the status of such application upon request. Failure to comply with such request shall cause suspension of benefits. C.R.S. §8-42-103(d) (II).
Where an employee becomes eligible for social security disability but fails to make application therefore, the employer can initially determine the entitlement and reduce the workers’ compensation disability benefits accordingly subject to a hearing and determination by the judge. Hurtado v. CF&I Steel Corp., 449 P.2d 819 (Colo. 1969).
When applying the SSDI offset to PPD for injuries prior to July 1, 2010, calculate the full PPD first, then divide by the weekly payout rate (no less that $150 or greater than ½ of the state max) then calculate the number of weeks it will take to pay. The deduction comes out of the payout rate. The deduction is the same, but the payout rate is less. Hurtado, supra.
For injuries occurring after July 1, 2010, the SSDI offset is eliminated as against PPD.
Previous to January 1, 2010, the SSDI Offset was calculated by determining number of weeks the permanent partial disability benefits would have been paid out (at the one half of the state maximum pay out rate), multiply that number of weeks by weekly offset amount, then subtract the total offset from the total amount of permanent partial disability benefits. Armijo v. Industrial Claim Appeals Office, 989 P.2d 198 (Colo. App. 1999).
There is a presumption that the condition for which an individual claimant is receiving social security disability benefits is the same condition which precipitates claimant’s entitlements to workers’ compensation so that the two benefits systems can concurrently exist. Arellano v. Director, Division of Labor, 590 P.2d 987 (Colo. App. 1979).
But see, U.S. West Communications, Inc. v. Industrial Claim Appeals Office, 978 P.2d 154 (Colo. App. 1999) respondents cannot take offset against both temporary and permanent disability benefits for different injuries, simultaneously.
Social security cost of living increases may not be deducted from workers’ compensation payments. Engelbrecht v. Hartford, 680 P.2d 231 (Colo. 1984); Martinez v. Industrial Commission, 746 P.2d 552 (Colo. 1987).
With respect to permanent total disability, in July of 1990 the Colorado Legislature amended C.R.S. §8-42-103 to provide that if an injury on which an award for permanent total disability was based upon occurred after claimant reached age 45 than the offset did not end at age 65. Otherwise, the offset ceases at age 65. See also, Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999).
Social Security retirement as opposed to Social Security Disability offset applies only to permanent total not permanent partial or temporary disability.
Where a claimant is entitled to periodic disability benefits under the provisions of a pension or disability plan financed in whole or in part by the employer, claimant’s benefits are reduced by an amount equal to the employer pension plan benefits. C.R.S. § 8-42-103(1) (d) (I); Scriven v. Industrial Claim Appeals Office, 736 P.2d 414 (Colo. App. 1987).
Disability Pension Offset should be based upon the amounts claimant was entitled to receive rather than a lesser amount actually received under an optional election. Gargano v. Coors Brewing Company, W.C. No. 3-832-252 (ICAO March 15, 2007).
Where an employer’s pension plan provides for reduction in employee’s benefits by the amount that the employee receives in workers’ compensation benefits, the reduction specified does not apply. Masdin v. Gardner-Denver-Cooper Industries, 689 P.2d 714 (Colo. App. 1984).
Periodic benefits payable under a health insurance plan may not be offset. Halliburton Services v. Robert Miller, 720 P.2d 571 (Colo. 1986).
If a claimant is receiving workers’ compensation benefits from another state, the benefits paid in Colorado are reduced by an amount equal to that which the claimant is receiving from the other state. C.R.S. §8-42-103 (1)(e).
C.R.S. §8-42-103 (1)(f) provides that unemployment benefits may be offset as against TTD, TPD and PTD benefits. The statute sustained a constitutional challenge in Pace Membership Warehouse v. Axelson, 938 P.2d 504 (Colo. 1997).
Attorney’s fees payable on a social security award may not be offset against workers’ compensation benefits. St. Vincent Hospital v. Alires, 778 P.2d 277 (Colo. App. 1989).
Respondents are not entitled to offset an award of Federal Workers’ Compensation benefits for a subsequent accident. Circle K Corp. v. Industrial Claim Appeals Office, 809 P.2d 1116 (Colo. App. 1981); but see C.R.S. §8-42-105(IV)(E).
An employee’s earned sick leave, vacation, and similar benefits may not be offset as against workers’ compensation benefits. Public Service Company of Colorado v. William B. Johnson, 789 P.2d 487 (Colo. App. 1990).
In Colorado Compensation Insurance Authority v. Baker, 955 P.2d 86 (Colo. App. 1998), the Court held that CCIA could not sue an injured worker or his attorney to recover an overpayment.
However, for injuries occurring after July 1, 1997, pursuant to C.R.S. §8-40-201 and C.R.S. §8-42-113.5, within twenty calendar days after learning of an award of Social Security Disability Benefit, or other source for which the original disability benefits are required to be reduced, the carrier shall receive written notice from the claimant or legal representative of the claimant. If, the claimant fails to give such notice, any overpayment that resulted from the failure to make the appropriate reduction in the original calculation, shall be recovered in installments at the same rate as or at a lower rate than the rate of the over payments were made. Such recovery shall reduce the disability or death benefits payable after all applicable reductions have been made.
Moreover, when a claim is reopened on the grounds of fraud upon a prima facie showing that claimant received an over payment the award may be reopened and overpayments can be recovered.
However, no reopening shall affect an earlier award as to moneys already paid except in the cases of fraud or overpayment. C.R.S. §8-43-303 (2) (a).
In Wolford v. Pinnacol Assurance, 107 P.3d 947 (Colo. 2005), claimant had been working when she filed statements she was not working, as a result she received TTD benefits to which she was not entitled. She then was prosecuted and plead to willfully making false statements to obtain workers' compensation benefits, under C.R.S. §8-43-402, The Supreme Court held she only forfeited right to TTD benefits, not medical or PPD benefits.
Where claimant for more than 20 days, failed to give notice of the receipt of wages while receiving temporary disability, under the language of C.R.S. §8-42-113.5(1)(b), the respondents were entitled to an Order immediately terminating all disability benefits until the overpayment was recovered in full. Reinwald v. TRC Companies, Inc., W.C. No. 4-622-388 (ICAO April 6, 2006)
Overpayment to claimant due to failing to pay child support satisfies the definition of overpayment within the meaning of the Act justifying order to decrease future indemnity to allow respondents to recover past due child support. Garrett v. Trinidad Drilling USA, Inc., W.C. No. 4-704-929 (ICAO January 16, 2008).
C.R.S. §4-40-201(15.5) defines overpayment as “money received by a claimant that exceeds the amount that should have been paid, for which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduced disability or death benefits payable under said articles.
There is an offset provided pursuant to C.R.S. §8-43-304(2) for benefits obtained through fraud.
C.R.S. §8-42-113.5(b.5) effective August 5, 2009, limits the time period to pursue recovery of an overpayment to one year after knowledge of the overpayment following the filing of a Final Admission, except in cases of fraud.
An Administrative Law Judge has jurisdiction to order an employer to repay an insurer for benefits paid to a claimant based on a fraudulently reported claim by the employer. Fuentes v. Rivera Construction, W.C. No. 4-810-095 (ICAO January 18, 2011).
Relying upon 1997, amendment to C.R.S. §4-40-201(15.5) It is not necessary that the overpayment exists at the time the claimant receives the benefit in order to reopen to recover retroactive overpayment. Haney v. Shaw, Stone & Webster, W.C. 4-796-763, (ICAO July 28, 2011).
The fact that FAL admitted for PPD does not result in a vested right to receive any specific amount of PPD benefits once the claimant initiated the DIME process. Marquez v. Americold Logistics, W.C. No. 4-896-504 (ICAO August 7, 2014).
TTD paid prior to MMI exceeding the cap is not an overpayment. United Airlines v. Industrial Claim Appeals Office, 312 P.3d 235 (Colo. App. 2013) However, the combination of PPD and TTD exceeding the cap found to be an overpayment. Danks v. Rayburn Enterprises, Inc., W.C. No. 4-770-978 (ICAO September 10, 2014).
Where claimant received an impairment rating from the authorized treating physician which employer admitted and paid, and then claimant requested a DIME evaluation which resulted in a lower impairment rating, an overpayment resulted pursuant to C.R.S. §8-40-201, and the employer may seek recovery of it from the claimant. Mattorano v. United Airlines, 4-861-379 (July 25, 2013).
Respondents who filed a Final Admission based upon a DIME could reopen based upon mistake when they later learned claimant had a prior rating to the same body part., Krauth v. Great West Life & Annuity, W.C. No. 4-744-278 (September 25, 2009).
The State of Colorado does not have any certifying organization with respect to those attorney’s that practice Workers’ Compensation law, either claimant or respondent work.
However, The Colorado Bar Association does have a Workers’ Compensation Section in which most of the Attorney’s practicing in the field belong. Once again, association with this specific section of the Colorado Bar Association is not mandatory.
Colorado does require Attorney’s to obtain 45 CLE credits total every three years. This is applicable to all areas of practice but once again it is very likely that Attorneys’ specializing in Workers’ Compensation practice will focus their tri-yearly CLE’s in the Workers’ Compensation realm.
There is no specialty designation or certification requirement in Colorado. However, any attorney, especially Respondent’s counsel, who dabbles in workers compensation in Colorado may risk malpractice.
Not applicable in Colorado.
Not applicable in Colorado.
Claims professionals in Colorado are not required to be licensed in the state in order to manage and adjuster claims. Additionally, there is no licensing or continuing education required.
LITIGATION AND APPEAL
Colorado Division of Workers’ Compensation (DOWC) is a part of the Department of Labor and Employment. The Division is led by the Director of Workers’ Compensation. The Colorado Division of Workers' Compensation is the state office responsible for administering the Colorado Workers' Compensation Act. In doing so, it recognizes the intent of the Colorado General Assembly to ensure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of litigation.
The Division does not pay benefits on a claim. Rather, employers purchase insurance coverage or, if qualified, are self-insured. No portion of this cost may be deducted from an employee's wages. As the agency overseeing workers' compensation in this state the Division establishes rules, procedures and programs to implement the statutes that govern workers' compensation.
Prehearing Conferences are generally handled by prehearing administrative law judges (PALJ) who are employed by the Division of Workers’ Compensation rather than the merits hearing judges who are employed by the Office of Administrative Courts. PALJs handle discovery, procedure matters and settlement conferences. They do not preside over merits hearings.
The Colorado Supreme Court held in Industrial Clams Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998). A Prehearing Administrative Law Judge does possess the jurisdiction to approve a settlement agreement, regardless of whether the claimant is acting pro se. As such, a Prehearing Administrative Law Judge’s Order approving a settlement agreement is final for purposes of review.
A hearing ALJ has jurisdiction to review the prehearing ALJ’s order. Daniels v. WCM Industries, W.C. No. 4-456-886 (ICAO, March 14, 2002). Direct appeal to the Industrial Claim Appeals Panel is not available and is interlocutory.
A prehearing order striking an application for hearing is interlocutory and is properly reviewable by an ALJ pursuant to an application for hearing. Anderson v. Labor Ready, W.C. No. 4-517-260 (ICAO September 9, 2009).
Under C.R.S. §8-43-207.5 (3) rulings of a prehearing ALJ are binding on all parties. No provision stays a Prehearing ALJ's interlocutory orders. A party wanting to appeal must seek a stay from the Prehearing A.L.J. Kennedy v. Industrial Claim Appeals Office, 100 P.3d 949 (Colo. App. 2004)
Workers’ Compensation Judge Proceedings
Office of Adjudication
The Office of Administrative Courts (OAC) is broken into 4 work units: 1) Operations - which handles the day to day operations of the Court; 2) Workers' Compensation - which is responsible for the adjudication of all Workers' Compensation Proceedings; 3) General Services - which is responsible for the adjudication of all non-Workers' Compensation proceedings and 4) Mediations - which is responsible for mediating matters prior to hearing.
Many hearings are conducted with an ALJ appearing by telephone. An ALJ may also appear at one of the regional offices (Denver, Colorado Springs and Grand Junction) or at various contracted locations throughout the state.
Appointment of Workers’ Compensation Judges
The Director of the Office of Administrative Courts shall appoint and assign administrative law judges to hear particular cases or classes of cases that come before the Office of Administrative Courts in a manner that, in the discretion of such director, is necessary and appropriate to provide services to each state agency.
Qualifications of WCJ
Any administrative law judge shall meet the same qualifications as a district court judge as provided in section 11 of article VI of the state constitution. — A nominee must be a qualified elector in the state and a resident of Colorado; licensed to practice law in Colorado for at least five years; and under the age of 72 at the time his or her name is submitted to the Governor. There is an exception, in small counties, for individuals who have graduated from high school or has attained the equivalent of a high school education. In theory this exception could apply, but not in practice in workers’ compensation.
Merits Hearings shall be held before the Office of Administrative Courts. An ALJ may determine any controversy concerning any issue arising under the Workers’ Compensation Act. In connection with hearings, the director and administrative law judges are empowered to among other things, issue subpoenas for witnesses and documentary evidence which shall be served in the same manner as subpoenas in the district court; Administer oaths; Make evidentiary rulings; issue orders, impose sanctions, and appoint guardians ad litem.
Applications for Hearing are to be filed with the Office of Administrative Courts on the prescribed forms. OAC has standard forms for the parties to use to apply for hearing, respond to the application for hearing, confirm selected hearing dates, cancel hearings, file Case Information Sheets, request full orders, petition to review, and request transcripts or audio recordings.
A non-expedited hearing shall be set at least 15 days but no more than 30 days from the date of filing the Application for Hearing. The applicant will obtain hearing dates within 80 to 120 days from the date the Application for Hearing is filed. A Response to an Application for Hearing or Notice of Entry of Appearance shall be filed no more than 15 days from the date of filing of the Application for Hearing. If an Entry of Appearance was filed, then a Response shall be due within 30 days of the date of the Application for Hearing.
OAC Rule 9 provides: expedited hearings for full contest claims may be held if Application for Hearing is filed within forty-five days after the Notice of Contest. Response is due within 10 days of the date of the Application for Hearing.
A copy of a medical record documenting the urgent need for prior authorization of healthcare services shall be attached to an Application for Expedited Hearing pursuant to OAC Rule 9-C.
CIS must apprise the ALJ whether an extension of time to commence the hearing has been previously granted.
Due process requires both the employer and the insurer to be given notice of the hearing. Such notice must affirmatively appear in the record, unless waived, or the proceedings are void. Allen v. U.S. Engineering Company, W.C. No. 4-945-671 (ICAO December 8, 2014).
Order served on attorney by ALJ to the email address “on file with the Division” which was not received was not proper service. Catlow v. Dairy Farmers of America, W.C. No. 4-66-133 (ICAO February 26, 2014).
In order to obtain attorney’s fees and costs the requesting Party must prove it attempted to have the unripe issue stricken by a PALJ. C.R.S. §8-43-211(2)(d).
Only endorsed witnesses may testify in case in chief. OAC Rule 13. After the dates of setting issues or witnesses not initially listed cannot be added without agreement of all parties or upon motion and order by an Administrative Law Judge for a good cause shown.
For the most part, fact witness such as the claimant, any corroborating witnesses, the respondent employer, and rebuttal witnesses testify live at hearings before workers’ compensation judges. Physicians may testify live or by report as long as the report is exchanged among the parties at least 20 days prior to the commencement of the hearing. Witnesses may also testify by phone. The parties by agreement or by Court Order may have witnesses testify by deposition and the transcripts of those depositions are admitted into evidence at subsequent hearings.
Hearings conducted through videoconferencing are not a violation of a party’s due process or equal protection of the laws rights. Schisler v. Walmart Stores, 4-872-358 (August 23, 2013).
The injured worker is known as the claimant. The employer and their insurer are known as the respondents. The insurance carrier is a party to the claim. Upon death of an injured worker his dependents may have a claim to death benefits. A physician that has been the subject of a Utilization Review can become a party. Anyone including attorneys, parties, adjusters or physicians who violate an order of an ALJ, the Act or the Rules can be held responsible for a penalty.
Subpoenas may be issued by attorneys of record for witnesses or documents for either hearing or depositions.
All reports without limitation including relevant medical, tax, vocational, and employment records should be exchanged with the opposing parties no later than twenty days prior to hearing. Failure to exchange may prevent introduction into evidence absent good cause shown. Alcohol-related convictions, court transcripts and court files arising from the same occurrence are admissible. C.R.S. §8-43-210.
Timely exchanged medical, tax, employment, and vocational reports may be utilized as evidence at hearing without foundation C.R.S.§ 8-43-210 Evidentiary depositions may be filed at or before the hearing.
The ALJ retains discretion for good cause to admit medical records that had not been timely exchanged pursuant to the 20-day rule set forth in C.R.S. § 8-43-210. Ortega v. Industrial Claim Appeals Office, 207 P.3d 895 (Colo. App. 2009). The Administrative Law Judge shall issue a written order within fifteen days after the conclusion of the hearing; if it was a summary order, a dissatisfied party may request a full order within seven working days after the date of mailing of the summary order. The prevailing party must prepare the proposed findings of fact, conclusions of law and order. The request for a full order shall be a prerequisite to review under C.R.S.§8-43-201. The Administrative Law Judge shall then have ten working days to issue the full order.
Where the presiding ALJ retires before issuing an order, a second ALJ may enter a valid order after reviewing the evidence and the digital recording of the testimony even if he had not been present at the original hearing. Bodensieck v. Industrial Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008).
In Jackson v. Select Comfort Corp., W.C. No. 4-914-418-03 (ICAO November 17, 2016), an ALJ found that a claimant failed to prove by a preponderance of the evidence that her lumbar condition was causally related to the admitted work injury. The claimant later received an impairment rating from a DIME physician for the lumbar condition. The respondents challenged the DIME’s impairment rating at hearing before a different ALJ. The ALJ found that the respondents failed to overcome the DIME’s impairment rating by clear and convincing evidence. The second ALJ’s finding, was up held, although both hearings involved the question of causation, the burdens of proof were different. Therefore, issue preclusion did not apply.
In Holcombe v. Fedex Corp., W.C. No. 4-824-259 (ICAO March 24, 2017). The first ALJ found that Claimant failed to meet his burden in proving by a preponderance of the evidence that surgery requested for Claimant’s left elbow was reasonable and necessary. Claimant subsequently underwent a DIME, which determined that he was not at MMI because the surgery for the left elbow was reasonable and necessary. Issue preclusion did not apply, as the issues were decided under differing burdens of proof. See Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006) and, regardless, the issue was not identical because the Claimant’s condition had changed between the first and second hearings.
Jones v. Regis Corporation, W.C. 4-976-657 (ICAO August 18, 2017), involved a contested neck injury. At hearing, Claimant admitted a prior neck injury, but testified her symptoms “completely resolved” before the work injury. An ALJ found the claim compensable and a Division IME assigned impairment. Respondents later discovered numerous medical records of Claimant for extensive prior treatment to the cervical spine. Respondents sought to reopen the Order on the basis of fraud/mistake and withdraw the admission. At the second hearing, the ALJ found Respondents proved, by the preponderance of the evidence, the previous Order was issued by mistake, and set aside the prior Order. Claimant appealed and argued the ALJ erred because Respondents had the burden to overcome the DIME opinion there was a work injury by clear and convincing evidence. In this case, Respondents had the burden to prove the injury did not occur in the course and scope of employment since they sought to modify an admission and set aside the prior Order. C.R.S. §8-41-201(1). The burden of proof remained preponderance of the evidence because it is the threshold requirement to prove before compensation is awarded.
For claims filed on or after August 5, 2009, a party seeking to modify an issue determined by a general or final admission, summary order or full order shall bear the burden of proof for any such modification. C.R.S. §8-43-201.
When the Director of the Division of Workers’ Compensation has issued an order to enforce a provision of the Workers’ Compensation Act, an ALJ in the Office of Administrative Courts shall not hear and decide the same.
The Director or ALJ have authority to order out-of-state parties to appear in person or by telephone for hearing or deposition upon good cause shown. Failure to comply may result in penalty exposure C.R.S. §8-43-315(2) & (3) effective July 1, 2014.
Written closing statements shall be at the discretion of the ALJ and shall not exceed 20 pages, in 12-point font, double spaced, except for good cause shown. OAC Rule 24.
An expedited hearing may be held on the issue of failure to provide a designated provider list if requested within 45 days of injured worker providing notice of injury to the employer or within 45 days of filing of the initial Admission. C.R.S. §8-43-404(5)(a)(I)(D).
Discovery Procedures are set forth in Rule 9-1. Discovery is limited to one set of written interrogatories which must be submitted no later than 40 days before hearing.
Depositions of a party may be taken upon written motion and order; Depositions of other witnesses may be taken upon written motion, order, and written notice to all parties. Parties may also agree on depositions and discovery; Each party is under a continuing duty to supplement interrogatory responses up to the date of hearing; Failure to comply with the discovery provisions may result in appropriate sanctions pursuant to statute and rule. Attorney's fees may be imposed for violation of a discovery order; Upon agreement of the parties or for good cause, an Administrative Law Judge may limit or allow additional discovery or modify time limits.
The insurer is required to provide a complete copy of the claim file within 15 days after the mailing of a written request by the injured worker/representative. This includes all medical records, pleadings, correspondence, investigation reports/files, witness statements, etc., and wage and fringe benefit information for the twelve months leading up to the date of injury and thereafter. If a privilege or other protection is claimed for any materials, the objections must be detailed in an accompanying privilege log. C.R.S. §8-43-203(4).
All documents required to be exchanged under the workers’ compensation statute be transmitted or served in the same manner or by the same means to all required recipients. C.R.S §8-43-317.
A party shall have 15 days from date of mailing to complete, sign and return release of medical and or other relevant information. If a written request for names and addresses of health care providers accompanies the medical release it shall be provided, as well, and is not considered discovery. A release requesting medical information from the health care providers who have treated the parts of the body or conditions alleged by the claimant to be related to the claim for during the period and five years before shall be considered reasonable.
Failure to comply with a discovery order shall be presumed willful.
Effective September 1, 2007, Rule 5-4(D) provides that requests for information regarding the Average Weekly Wage is not considered discovery, (this included COBRA costs) therefore like requests for medical releases and a 5-year medical history, permission need not be sought before seeking this information from an unrepresented claimant or respondent.
C.R.S. §8-43-207(1)(e) eliminates the requirement that parties agree to discovery where both sides are represented.
In McCormick v. Exempla Healthcare, W.C. No. 4-594-683-07 (ICAO April 1, 2014), the Court held in this matter that the ALJ is not precluded from reviewing the personnel files in camera merely because a PALJ previously ruled that such files were irrelevant. While orders of a Prehearing Administrative Law Judge (PALJ) are binding per C.R.S. §8-43-207.5(3), the statute does not confer exclusive jurisdiction to a PALJ to resolve disputes on evidentiary matters. Rather, an ALJ may consider and rule on a party’s request to reconsider a PALJ’s discovery ruling.
Averyt v. Wal-Mart, Inc., No. 11SA66 (Colo. November 7, 2011) holds a party need not automatically disclose, pursuant to C.R.C.P. 26(a)(1) public documents that are equally available to all parties.
Utilization Review is an alternative procedure to a “merits hearing” to review and remedy medical services provided which may or may not be reasonable, necessary or appropriate pursuant to C.R.S. §8-43-503. A panel of 3 physicians is appointed by the Division to serve a three-year term. They can address matters such as whether a provider should be removed as an authorized treating physician, whether further care is appropriate, and whether there should be a retroactive denial of payment.
In Williams v. Industrial Claim Appeals Office, 862 P.2d 1007 (Colo. App. 1993) it was held that a prior or subsequent ruling by an Administrative Law Judge at a compensability hearing concerning the same medical treatment over the same period of time precludes a contrary determination by the utilization review panel. Potential problems with “forum shopping” have been addressed in the rules which now preclude Applications for Hearing on issues for which Utilization Review has already been requested.
Payment for services must continue pending an Order. If a change in provider is ordered the Claimant has seven days to file for a change of provider. If not filed the Division will allow the successful party to choose from three suggested providers. If a claimant continues treatment with the provider during the appeal, the claimant may be liable for expenses if the Order is upheld. The appeal deadline is forty days in which to appeal and it is limited to a review of the record. However, retroactive denials of payment may go before an Administrative Law Judge at hearing.
Under Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo. App. 1993) the Court held that payment for care rendered by a physician, who became part of the legal chain of authorization pursuant to Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985), could not be denied as a matter of law. Accordingly, even after a doctor has been de-authorized by utilization review he can become re-authorized pursuant to the referral power of an authorized treating physician.
Absent retroactive denial of fees or revocation of a provider's accreditation, there is no due process right to a hearing before a change of provider may be ordered. Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo. App. 2005).
Referral from doctor during the pendency of medical utilization review appeal is not authorized. Kilwein v. Industrial Claim Appeals Office, 198 P.3d 1274 (Colo. App. 2008)
The ALJ’s are not charged with investigating the claims.
ALJs have the power to issue subpoenas for the personal appearances of witnesses or for the production of records. However, ALJs have no enforcement authority and if the recipient of a subpoena disregards the obligation to comply, enforcement only exists in the state district courts.
C.R.S. §8-43-208 allows for the Director to appoint, with the approval of the Executive Director by order in writing, any competent person as an agent whose duties shall be prescribed by such order, to make any investigation with regards to any matter contemplated by Workers Compensation Act. Practically speaking, this provision is not executed very often and not likely within any specific workers’ compensation claim. Primarily, this investigatory power is used in the area of investigating whether or not an employer is insured; see section on insurance coverage below.
Colorado does not have a “reasoned decision” requirement, but the ALJ’s have broad discretion to enter findings of fact based upon the evidence presented. The ALJ is the sole finder of fact, and is free to accept or reject the testimony of any witness in whole or in part. Unless unsupported by the evidence or premised upon a clear abuse of discretion the ALJ’s credibility determinations will be upheld on appeal.
ALJ is empowered to: resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to the expert testimony, and draw plausible inferences from the evidence.” See Kroupa v. Indus. Claim Appeals Office, 53, P.3d 1192, 1197 (Colo. App. 2002).
Arenas v. Indus. Claim Appeals Office, 8 P.3d 558. (Colo. App. 2000). The weight and credibility to be assigned evidence is at matter within the discretion of the ALJ. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
The same principles concerning credibility determinations that apply to lay witnesses apply to expert witnesses as well. See Burnham v. Grant, 134 P. 254 (Colo. App. 1913). The fact finder should consider, among other things, the consistency or inconsistency of the witness’ testimony and/or actions; a reasonable or unreasonableness (probability or improbability) of the witness’ testimony/or actions (this includes whether or not the expert opinions are adequately founded on appropriate research); motives of a witness; whether the testimony has been contradicted; and, bias, prejudice or interest. See Prudential Ins. Co. v. Cline, 98 Colo. 275, 57 P.2d 1205 (1936); CJI Civil, 3:16 (205). The fact finder should consider an expert witness’ special knowledge, training, experience or research (or lack thereof). See Young v. Burke, 139 Colo. 305, 338 P. 2d 284. (1959). Pursuant to §8-43-201, C.R.S. (2009) “A claimant in a workers’ compensation claim shall have the burden of proving entitlement to benefits by a preponderance of the evidence.” A preponderance of evidence is that quantum of evidence that makes a fact, or facts more reasonably probable or improbable than not. Page v. Clarke, 197 Colo. 306, 592 p.2d 792 (1979), People v. M.A., 104 P. 3d 273 (Colo. App. 2004); Hoster v. Weld County Bi-Products Inc., W.C. No. 4-483-341 (Indus. Claim Appeals Office (ICAO), March 20, 2002). Also see Ortiz v. Principi, 274 F.3d 1361 (D.C. Cir 2001) “preponderance” means “the existence of a contested fact is more probable than its nonexistence.” Indust. Claim Appeals Office v. Jones, 688 P.2d 1116 (Colo. 1984).
The ALJ’s order must contain the ALJ’s factual findings and will concern only evidence that is dispositive of the issues involved. The ALJ does not need to address every piece of evidence that might lead to a conflicting conclusion and can be said to have rejected evidence contrary to the findings of fact as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claims Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Workers’ Compensation Appeal Board (Industrial Claim Appeals Office)The Industrial Claim Appeals Office (ICAO) is the unit of the Colorado Department of Labor and Employment (CDLE) responsible for the review of both Unemployment Insurance decisions issued by Hearing Officers, and Workers' Compensation decisions issued by Administrative Law Judges (ALJs). ICAO consists of five Administrative Law Judges who consider appeals from those decisions. In most instances, the Panel reviews cases after a hearing has been held before a hearing officer or ALJ,
The Industrial Claim Appeals Panel is comprised of five Administrative Law Judges (ALJ) with at least six years of experience in the practice of law, which includes significant experience in Workers' Compensation and/or Unemployment Insurance law. Decisions of the Panel are considered by at least two Panel members.
The Panel does not hold hearings, but rather reviews the record created at the hearing held before the Workers' Compensation ALJs when benefits have been granted or denied. However, even when a hearing has not been held, the Panel does not hold hearings in the cases it considers. The final order of the Panel is the final action of the Colorado Division of Labor and Employment (CDLE).
Only questions of law can be altered, findings of fact are binding on review. The Panel is not permitted to alter the Hearing Officer or ALJ's decision based on new evidence submitted on appeal.
Clerical errors can be corrected by an Administrative Law Judge without motion within thirty days pursuant to C.R.S. §8-43-302.
After the conclusion of a hearing, parties have 10 working days from the date of mailing of the summary order to make a written request for a full order. C.R.S. §8-43-215(1) effective July 1, 2014. This is jurisdictional prerequisite to an appeal.
Petitions for review to ICAO, C.R.S. §8-43-301. Petitions must be mailed within twenty days from the date of the Order or the Court lacks jurisdiction to go any further with the claim. Petitioner must point out errors and order a transcript.
In Youngs v. Industrial Claim Appeals Office, 315 P.3d 50 (Colo. App. 2013) an interlocutory order could be timely appealed in connection with a second final order in in accordance with the 20-day statutory time limit for filing Petition to Review. A party petitioning to review must however, make explicit reference in writing to those objections of the petitioner.
As of August 4, 2009, a petition to review should be filed with the Division if the order was entered by the Director or the Denver office of the Office of Administrative Courts if the order was entered by an Administrative Law Judge.
C.A.R. 57, as amended on October 17, 2014, provides: 14 days after return of the record, the appellant shall file an opening brief. Within 7 days after service of the opening brief, the appellee shall file an answer brief. No other briefs will be permitted. Briefs may be reproduced by duplicating or copy process, in conformity with the provisions of C.A.R. 28 and 22. An ALJ should not grant an extension of time exceeding 10 business days for any opening or opposing brief on a Petition to Review, unless there is a showing of good cause and extenuating circumstances by the party requesting the extension. The order granting the extension of time may have an added provision that no additional extensions of time will be granted.
An Order becomes final if no appeal or after ICAO decision. C.R.S. § 8-43-215 (a).
Scope of Review of WCAB (Colorado Industrial Claim Appeals Office)
The Industrial Claim Appeals Office shall have sixty days after receipt of the certified record to enter its order. The Panel may issue a summary order affirming the order of the administrative law judge or director. The Panel may correct, set aside, or remand any order but only upon the following grounds: That the findings of fact are not sufficient to permit appellate review; that conflicts in the evidence are not resolved in the record; that the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law. If the findings of fact entered by the Director or Administrative Law Judge are supported by substantial evidence, they shall not be altered by the Panel (or Court of Appeals).
The substantial evidence test requires the Panel to view the evidence in a light most favorable to the prevailing party and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.d 411 (Colo. App. 1995). 8-43-301(8) C.R.S.
ICAO may not substitute their judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The Panel shall have the power to issue such procedural orders as may be necessary to carry out its appellate review, including but not limited to, orders concerning completion of the record and filing of briefs. In those cases where the parties file a stipulated motion requesting that consideration of the appeal be deferred pending ongoing settlement negotiations, the panel may extend the time for entry of its order up to a maximum of thirty days.
If the Panel has failed to enter its order within sixty days of the receipt of the certified record, the order of the director or administrative law judge shall be deemed the order of the Panel and final unless, within thirty days after the end of the sixty-day period, the petitioner commences an action for judicial review in the Court of Appeals. If the Panel has not acted on the sixtieth day, the Industrial Claim Appeals Office shall send a written notice to all parties stating that the parties have thirty days after the date of the certificate of mailing of the notice to commence such an action.
If a petition to review is filed, a hearing may be held and orders entered on any other issue in the case during the pendency of the petition to review. If the order which is under petition to review concerns compensability, orders entered on these later issues are final and appealable when entered, but not enforceable until the review of the order on compensability is completed.
If the order which is under petition to review does not concern compensability, but concerns the respective liability of two or more employers or insurance carriers, and the injury or illness was found compensable in a hearing held pursuant to section 8-43-215, the employer or insurance carrier found liable by the director or administrative law judge shall pay benefits in accordance with the order under review until the review process is completed, at which time it shall be reimbursed by the other employer or carrier if reimbursement is necessary to comply with the final order.
Original JurisdictionThe Colorado Industrial Claim Appeals Office does not have original jurisdiction.
Commonwealth Court and Supreme Court (Colorado Court of Appeals)The Colorado Court of Appeals is located in Denver and has 22 judges. The court sits in panels of three to hear cases. Assignments to these panels are made by the chief judge.
Although the 1991, amendments to the Act made appeals to the Colorado Court of Appeals discretionary requiring parties to petition for writ of certiorari, the Colorado Supreme Court has held that provision to be unconstitutional. Therefore, appeals from ICAO to the Court of Appeals are now a matter of right. Allison v. Industrial Claim Appeals Office, 884 P.2d 1113 (Colo. 1994) C.R.S. §8-43-307.
The parties have only twenty days from the mailing of the ICAO decision to appeal to the Colorado Court of Appeals as a matter of jurisdiction. See, Industrial Claim Appeals Office v. Zarlengo, 57 P.3d 736 (Colo. 2002).
The Panel's order shall be mailed to all parties of record. Any party dissatisfied with the panel's order shall have twenty days after the date of the certificate of mailing of such order to commence an action for judicial review in the Colorado Court of Appeals.
CAR 3.1, as amended on January 1, 2012, provides: 14 days after return of the record, the appellant shall file an opening brief. Within ten 14 days after service of the opening brief, the appellee shall file an answer brief. Within five 7 days after service of the answer brief, the appellant may file a reply brief. Briefs may be printed, typewritten, mimeographed, or otherwise reproduced in conformity with the provisions of C.A.R. 28.
Grounds for Review include:
- Insufficient findings of fact;
- Unresolved conflicts and evidence;
- Unsupported findings of fact;
- Order unsupported by the facts; and
- Order unsupported by the law.
The Supreme Court has Original Jurisdiction to determine the constitutionality of the Workers’ Compensation Act.
Petition for writ of certiorari to the Colorado Supreme Court is discretionary. C.R.S. §8-43-313 provides that the review is limited to a summary review of questions of law.
Mandatory mediation is no longer required in Colorado.
Mediation provisions are contained in C.R.S. §8-43-205 and Rule 9-2. Any party involved in a claim under the Act may request mediation by filing a request with the Division. Mediation is entirely voluntary and cannot be conducted without consent of all parties. This is rarely done in Colorado.
Arbitration provisions are contained in C.R.S. §8-43-206(5). Parties may agree to submit any dispute to binding arbitration. Arbitration may take place before an Administrative Law Judge of the parties’ choice or pursuant to arbitration procedures provided by the Colorado Rules of Civil Procedure (C.R.C.P. 109). Any arbitration award shall be binding upon the parties with no appellate review, absent fraud, mistake, or abuse of discretion. This is likely why it is also rarely done in Colorado.
Informal Settlement Conferences
Settlement conference provisions are contained in C.R.S. §8-43-206.
Settlement conferences are conducted by a Prehearing Administrative Law Judge at the Division of Workers’ Compensation. Settlement conferences are optional and entirely voluntary, and are scheduled only with consent of all parties. You can choose your prehearing settlement judge. A representative of the carrier should be present at the conference; however, access by telephone has been permitted particularly when a carrier is out of state. All discussions are to remain strictly confidential.
Compromise and Release
A workers’ compensation claim can be settled on a full and final basis. A Division form Uniform Settlement Agreement must be used for settlement of Workers’ Compensation cases.
All settlements must be approved by the Director of the Division of Workers’ Compensation or an Administrative Law Judge. An agreement that is not approved does not settle the claim.
Division of Workers’ Compensation as of July 1, 2014, requires the use of the Division approved form settlement agreement. Approved requests can be done by email and non-original signatures are permitted.
In the case of a represented claimant no hearing is required. However, in the event that the claimant is pro se a settlement approval hearing may be waived by the claimant in writing.
The workers compensation settlement cannot be made contingent on other agreements, including Medicare Set Aside arrangements. Although, other agreements can be made contingent on approval of the workers compensation settlement. The workers compensation agreement cannot contain language stating that other agreements or attachments are “incorporated” or “incorporated by reference” into the Uniform Settlement Agreement.
A settlement may be reopened only if based upon the ground of fraud or mutual mistake of material fact. See C.R.S. §8-43-303.
Settlement checks are required to be provided to claimant within 15 days of when the settlement order is received by respondents.
The Uniform Settlement Agreement is not required or appropriate for partial settlements or for death claims.
C.R.S. §8-44-116 provides that reversionary interests in indemnity benefits are prohibited. This includes a contract setting up an annuity for indemnity benefits that establishes a reversionary interest in the insurer for the indemnity benefits. Any such provision is void and unenforceable as against public policy
The “other written agreements” attached to a settlement agreement shall not be reviewed and approval of the settlement agreement does not constitute approval of any written agreement attached to the settlement agreement. W.C.R.P. 7-2. Examples of such attachments are MSA agreements and resignation letters/agreements.
W.C.R.P. Rule 7-2(A)(1) clearly states that approval of a settlement agreement does not constitute approval of an MSA, and therefore Respondents were not in violation of the Order, or subject to penalties, by failing to adequately fund the MSA. Pankratz v. Hancock Fabrics, W.C. No. 4-653-869 (ICAO March 25, 2011).
Parties requesting approval of a stipulation resolving one or more issues in dispute shall submit a motion for approval of joint stipulation to the Director or an ALJ and should not use the Division's prescribed form settlement agreement.
Absent an order approving a stipulation any agreement in workers’ compensation between the parties is unenforceable.
If a pro se claimant chooses to have a formal settlement advisement hearing, Colorado currently has a recommended pro-se settlement power point presentation on line. This can be viewed at http://www.colorado.gov/cs/Satellite/CDLE-WorkComp/CDLE/1251567141887. This presentation is recommended for the pro-se claimants prior to the formal settlement advisement with the Pre-hearing ALJ. The Pre-Hearing ALJ will ask if the video has been viewed. If not, the PALJ will then go to the link during the settlement advisement and have the claimant listen to the power point presentation.
Settlement agreements can be “partial” in that the parties may agree to leave medical benefits open. If this occurs, the parties still are required to use the Uniform Settlement Agreement but may acknowledge that they are keeping the medical benefits open in Paragraph 9 A of the agreement. W.C.R.P. 7-2 and C.R.S. §8-43-204.
With limited exceptions, every employer liable for workers’ compensation benefits in Colorado must obtain private workers’ compensation insurance or through Pinnacol Assurance the insurer of last resort, or qualify by law as a self-insurer.
A corporate officer of a corporation or a member of a limited liability company may elect to reject the provisions of the Act. If so elected, said corporate officer or member shall provide written notice on a form approved by the division through a rule promulgated by the director of such election to the worker's compensation insurer of the employing corporation or company, if any, by certified mail. If there is no workers' compensation insurance company, the notice shall be provided to the division by certified mail.
Public entitles are statutorily allowed to establish self-insurance pools.
An employer who has complied with the provisions of Act, including the provisions relating to insurance, shall not be subject an action to recover damages for a personal injury sustained by an employee while engaged in the line of duty, or for death resulting from personal injuries so sustained, nor shall such employer or the insurance carrier, if any, insuring the employer's liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.
General Rule Where Employer is Uninsured
In any case where the employer is subject to the provisions of the Act and at the time of an injury has not complied with the insurance provisions of said articles, or has allowed the required insurance to terminate, or has not affected a renewal thereof, the employee, if injured, or, if killed, the employee's dependents may claim the compensation and benefits provided in said articles, and in any such case the insured uninsured employer shall be subject to a 25% uninsured penalty payable to the Colorado Uninsured Employers Fund and a possible additional 25% penalty if the uninsured employer fails to pay for any benefits that are ordered.
The Director may set the issue of the employer's default for hearing, Upon a finding that the employer is in default of its insurance obligations, the director shall take either or both of the following actions: (a) Order the employer in default to cease and desist immediately from continuing its business operations during the period such default continues; (b) For every day that the employer fails or has failed to insure or to keep the insurance required by articles 40 to 47 of this title in force, allows or has allowed the insurance to lapse, or fails or has failed to effect a renewal of such coverage, impose a fine of: (I) Not more than two hundred fifty dollars for an initial violation; or (II) Not less than two hundred fifty dollars or more than five hundred dollars for a second and any subsequent violation on or after July 1, 2017, the Director has discretion to settle penalties for less than statutorily requested.
Damages by Action at Law Where Employer is Uninsured
Where an employer failed to carry the requisite workers’ compensation insurance an employee or the employee’s dependents may elect instead of pursuing workers’ compensation benefits to bring an action at law to recover damages for personal injury sustained in the course of his employment, or for death resulting from such injury.
Uninsured Employers Guaranty Fund
Colorado does have a newly created uninsured employers guaranty fund which was created on July 1, 2017. It will begin accepting claims for benefits in 2020. It is funded from penalty awards and from fatal cases with no dependents.
It does have a guaranty fund that pertains to self-insured employers which applies when funding of the bond is delayed or if the self-insurer declares bankruptcy or has insufficient reserves to cover the claim. The guaranty fund will assure prompt and complete payment of benefits.
Every contract insuring against liability for compensation or insurance policy evidencing the same shall contain a clause to the effect that the insurance carrier shall be directly and primarily liable to the employee and, in the event of death, to said employee's dependents to pay compensation, if any, for which the employer is liable. The policy shall not contain any provisions relieving the insurance carrier from payment when the employer becomes legally incapable or insolvent or is discharged in bankruptcy or otherwise during the period that the policy is in operation or the compensation remains owing. C.R.S. §8-44-105.
Thus, in the event that an insured has a self-insured retention (SIR) and files for bankruptcy the carrier must step in and pay immediately irrespective of whether the SIR has been exhausted.
The Colorado Insurance Guaranty Association (CIGA) is an entity created by Colorado statute to protect the public in the event of a failure of a property and/or casualty insurance company. In the event an insurance company becomes insolvent, the Colorado Insurance Guaranty Association will assume the processing of all covered claims in accordance with the applicable insurance policies and the applicable Colorado statutes. CIGA is part of a non-profit, state-based, statutorily-created system that pays certain covered claims of insolvent property and casualty insurance companies. By paying these claims, CIGA protects policy holders and claimants.
CIGA is statutorily immune from penalties. Mosley v. Asphalt Paving, W.C. No. 4-439-762 (ICAO December 19, 2003).
When an insurer becomes insolvent and the liquidation of its assets does not produce sufficient funds to pay claims, under C.R.S. § 10-4-511(4)(a)(I), a high net worth first party, insured must bear the loss. Colorado Insurance Guarantee Association v. Sunstate Equipment Company, LLC, 2016 COA64 (Colo. App. 2016) certiorari granted in part 16SC384 (Colo. October 31, 2016) on issue as to whether the Court of Appeals erred in not allowing employer from raising affirmative defense to recoupment claim contained in C.R.S. §10-4-517.