What happens if a loved one is hurt or passes away while at work? What benefits are available for the family? Does this analysis change if the employer is arguing that the employee is at fault for his/her own injury or death? The following is a brief overview of the Worker’s Compensation Act of Colorado (“WCA”) and how benefits can be affected by the actions of the employee.
WORKER’S COMPENSATION ACT OF COLORADO (“WCA”)
The WCA is codified in Articles 40 to 47 of Title 8 of the Colorado Revised Statutes. Before continuing with a worker’s compensation analysis, please refer to the “Definitions” section of the statute and confirm that the parties involved meet the required definition of “employer” and “employee.”
With respect to employer liability, the WCA specifically abolishes all common law rights and remedies in an employee action against an employer (who has otherwise complied with the requirements of the WCA) for injuries except as provided in the Act. This includes liability for the “death of or personal injury to any employee,” except as provided in the Act. C.R.S. § 8-41-102, Ward v. Denver & R.G.W.R.R., 119 F. Supp. 112 (D. Colo. 1954) (and others). Colorado case law does not foreclose the possibility of suit for intentional torts. Additionally, the WCA states that if an employee who has been hired or is regularly employed in the state of Colorado is injured in an “accident” or as a result of an “occupational disease” arising out of and in the course of such employment outside the state, compensation shall be determined in accordance with Colorado law. C.R.S. § 8-41-204.
“Accident” is defined under the WCA as: an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause or, the cause, being known, an unprecedented consequence of it. “Accident”, “injury”, or “injuries” includes disability or death resulting from accident or occupational disease as defined in subsection (14) of this section. C.R.S. § 8-40-201(1).
“Occupational Disease” means a disease 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 a 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).
The right to compensation provided for under the WCA, in lieu of any other liability to any person for any personal injury or death resulting therefrom, shall obtain in all cases where the following conditions occur:
(1) Where, at the time of the injury, both the employer and employee are subject to the provisions of the WCA and the employer has complied with the provisions thereof regarding insurance;
(2) Where, at the time of the injury, the employee is performing services arising out of and in the course of the employee’s employment;
(3) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment and is not intentionally self-inflicted.
C.R.S. § 8-41-301.
Caselaw has addressed the “arising out of and in the course of” employment as meaning that there must be a nexus between the claimant’s injury and his/her conditions of employment. There is no requirement that the conditions of employment be the direct cause of the event that caused the injury. Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989). Furthermore,
[a]n activity ‘arises out of and in the course of employment’ when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a specific benefit on the employer.
City of Boulder v. Streeb, 706 P.2d 786, 791 (Colo. 1985) (NOTE: this case dealt with “arising out of and in the course of” employment as required by C.R.S. § 8-52-102(1)(c), which has since been repealed. However, identical language is present in the current version of C.R.S. § 8-41-301(1)(b) and (c)); See generally City and County of Denver School District No. 1 v. Industrial Commission, 581 P.2d 1162 (Colo. 1978) (injuries sustained by school counselor while driving to restaurant for lunch arose out of and in the course of employment where school cafeteria was closed and counselor was required to return to the school later in the day for a teachers’ meeting).
REDUCTION OF BENEFITS FOR ACTIONS OF EMPLOYEE
Specifically C.R.S. § 8-42-112 states that compensation shall be reduced by 50% (1) where injury is caused by willful failure of the employee to use safety devices provided by the employer, (2) where injury results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee; OR (3) Where the employee willfully misleads the employer concerning employee’s physical ability to perform the job, and the employee is then injured on the job as a result of said physical ability.
C.R.S. § 8-42-112.5 limits payment of benefits based on use of controlled substances, including alcohol (emphasis added):
(1) Nonmedical benefits otherwise payable to an injured worker are reduced fifty percent where the injury results from the presence in the worker’s system, during working hours, of controlled substances, as defined in section 18-18-102(5), C.R.S., that are not medically prescribed or of a blood alcohol level at or above 0.10 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests. A duplicate sample from any test conducted must be preserved and made available to the worker for purposes of a second test to be conducted at the worker’s expense. If the test indicates the presence of such substances or of alcohol at such level, it is presumed that the employee was intoxicated and that the injury was due to the intoxication. This presumption may be overcome by clear and convincing evidence.
(2) As used in this section, “nonmedical benefits” means all benefits provided for in articles 40 to 47 of this title other than disbursements for medical, surgical, nursing, and hospital services, apparatus, and supplies.
It should be noted that medical benefits remain payable in full, even if compensation is reduced by 50% because of intoxication. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo. App. 1995), affirming Wild West Radio, Inc. v. Industrial Claim Appeals Office, 886 P.2d 304 (Colo. App. 1994); Electric Mutual Liability Insurance Co. v. Industrial Commission, 391 P.2d 677 (Colo. 1964). There is no statutory or case law definition of “working hours.”
In determining whether to assess the 50-percent penalty for intoxication, the administrative law judge can consider not only medical records of the emergency room, but also records from a physician who reviews medical records and reaches an opinion as to whether alcohol played a role in the injury. In Ackerman v. Hilton’s Mechanical Men, Inc., a toxicologist reviewed emergency room records, along with a blood alcohol test taken shortly after the car accident, to determine the claimant’s probable blood-alcohol level at the time of the accident. Whether an accident is caused by an employee’s intoxication is a question of fact for the administrative law judge. The administrative law judge’s determination will be upheld by the appellate courts if it is supported by substantial evidence and plausible inferences from circumstantial evidence. 17 Colo. Prac., Workers’ Compensation Practice & Procedure § 9.34 (2d ed.)
DEATH BENEFITS
In case of death, dependents shall receive benefits “66 2/3% of the deceased employee’s average weekly wages, not to exceed a maximum of 91% of the state average weekly wage for accidents occurring on or after July 1, 1989, and not less than a minimum of 25% of the applicable maximum per week.” C.R.S. § 8-42-114. There may be additional statutes that apply and further review of the law is warranted depending on each situation. Further, it should be noted that federal death benefits will be deducted from the aggregate benefits payable for death under this section before the amount of compensation is reduced by 50% under what is now C.R.S. § 8-42-112 (above). Cline v. Industrial Commission, 599 P.2d 973 (Colo. 1979).
If you are seeking assistance in recovering benefits, please contact our firm at 303-688-3045 for a more detailed, personalized case review. Our team of experienced attorneys will gladly assist you!
