Colorado Workers’ Compensation Court Settlements
INTRODUCTION TO COLORADO WORKERS' COMPENSATION SETTLEMENTS AND AWARDS
The Colorado Workers Compensation Act provides a comprehensive system of benefits for injured employees covered by the law. The hurt worker and his or her employer must both be covered and subject to the provisions of the law and, if covered, the benefits available to the injured worker are the only benefits that worker can receive for his or her injury. The Colorado Workers’ Compensation system is quite complex and deadlines to apply for benefits are harsh. One misstep could result in a workers’ benefits being limited or could even result in the worker receiving no benefits at all.
The following is a brief discussion of who qualifies for benefits and the benefits that are available under the law. Any worker injured by an accident on his or her job should contact a Colorado workers’ compensation attorney for a complete evaluation of his or her case.
WORKERS AND INJURIES COVERED BY THE COLORADO WORKERS' COMPENSATION SYSTEM
Generally any employee working or hired in Colorado is covered by the Workers’ Compensation Act. However, said individual must be performing services for another individual or company under a contact of hire, either express or implied, and being compensation for his or her work. This would include part-time and seasonal work. The following additional provisions apply to coverage under the act.
INDEPENDENT CONTRACTORS ARE NOT COVERED BY THE WORKER’S COMP LAW
Generally independent contractors are not covered under the Colorado Workers’ Compensation Law. Who is or is not an independent contractor under the Act can be a complicated analysis. A written agreement between the parties that states that an individual is not an employee and is instead an independent contractor can be helpful to the analysis but is not necessarily dispositive of the question.
Injury must arise out of an in the course and scope of the employee’ work
Certainly an injury must be work-related. It must occur during the time and at a place designated for the employee’s work. Even if an injury occurs during work hours it cannot be caused while the employee is engaged in a personal task or mission. However—injuries that occur while preparing for work or leaving the workplace, even if the worker is not technically ‘clocked-in’, are usually covered by the Colorado Act.
Although not specifically directed to do a particular task—as long as the task is in furtherance of the employer’s business or trade, it will be covered by the law.
Idiopathic or injuries without a known cause are not covered by the Colorado Workers’ Compensation Law
Just because any injury occurs while a worker is being paid or is on the clock, and likewise occurs on the employer’s work premises, does not automatically make it covered by law. Injuries or medical conditions that are personal to the employee, or are without an identifiable cause, are not covered by the Colorado Workers’ Compensation Law. Examples would be fainting on the job, heart attacks and/or strokes not precipitation by an individual’s work, or caused by a seizure disorder.
Who is an independent contractor under Colorado Work Comp Law
An individual who is performing services for another and being paid by the hour for this usually qualifies as an employee and is not deemed an independent contractor. On the other hand, if the worker is being paid by the job, is not required to work any set schedule, and is not subject to supervision or control by the employer usually will be found by the Colorado Workers’ Court to be a contractor. Additionally, if the worker is performing a specialized service and uses his or her skillset and experience, uses his or her own tools or equipment and holds himself or herself out to and performs similar work for others would appear to be a contractor and not a direct employee of the one he or she is performing work for. Generally one advertising his or her services to others and who actually performs or makes himself or herself available to work for others is probably a contractor and not an employee under Colorado law. Finally, an employee usually has taxes taken out of his paycheck where a contractor generally does not and is paid by a 1099.
MEDICAL, HOSPITAL AND SURGICAL BENEFITS AVAILABLE UNDER COLORADO WORKERS' COMPENSATION LAW
A worker covered by the Colorado Workers’ Compensation Act is entitled to receive, at the expense of his or her employer, medical, hospital, surgical and other medical benefits both at the time of the injury and thereafter, to cure and relieve the worker of the effects of his or her injury. There is not either a dollar amount or time limit on the extent and amount of medical benefits available under the Colorado Workers’ Compensation Act.
Colorado Employer’s Have The Right To Choose Worker’s Treating Physician
In Colorado an injured worker’s employer has the right, if not the obligation, to select an authorized treating doctor for an injured worker. If the employer does not select a treating doctor pursuant to the statute, or in the case of emergency treatment, the worker can choose his or her treating doctor—all to be paid for by his or her employer. Any physician or specialist a worker’s authorized treating doctor refers the worker to likewise becomes a treating physician, and such treatment rendered by this doctor will be paid for by the hurt worker’s employer and/or such employer’s workers’ compensation insurance carrier.
Injured Worker Has Right To Choose His Or Her Own Doctor Upon Proper Application To Do So
An injured worker can change his or her treating doctor from the one chosen by his or her employer if a proper and timely request is made following his or her injury—or if such a change of physician is approved by the worker’s employer and/or its workers’ compensation insurance company. In all other cases a change of doctor can only be made by an Order from the Colorado Workers’ Compensation Court.
Medical Treatment Reimbursed Under Colorado Workers’ Compensation Fee Schedule
Colorado law provides a comprehensive Workers’ Compensation Fee Schedule under which medical, hospital and surgical treatment is to be reimbursed to the rendering provider. Obviously the amount reimbursed will be less than the amount a provider customarily charges or would like to charge. It is illegal for a Colorado medical provider to charge, bill or collect from the injured worker the deficiency between the provider’s usual charge and the amount reimbursed under the Colorado Fee Schedule.
A worker is fully responsible for medical expenses related to unauthorized treatment or treatment not approved by either the employer or the Colorado Workers’ Compensation Court. Again emergency medical treatment never needs to be authorized or pre-approved and will be paid for by the worker’s employer and/or its workers’ compensation insurance carrier.
Reimbursement For Travel, Mileage, Prescriptions And Other Out-Of-Pocket Medical Expenses
Under Colorado Law an injured worker is entitled to be reimbursed for prescriptions written by, mileage traveled to, tolls and other expenses, related to authorized medical treatment.
COLORADO WORKERS' COMPENSATION TEMPORARY TOTAL DISABILITY SETTLEMENTS
For those workers whose injuries are severe enough to prevent them from performing their normal job, or an alternative duty position offered to them by their employer, weekly wage loss benefits are available to them for the duration of such total disability. These wage-loss benefits, under the Colorado Workers’ Compensation System, are called ‘Temporary Total Disability Benefits” or simply “TTD”.
Amount Of Temporary Total Disability Benefits Under Colorado Work Comp Law
Temporary Total Disability Benefits under the Colorado Workers’ Compensation Act are paid at two-thirds, or sixty-six and two-thirds percent, of the workers’ average weekly wage at the time the worker was injured, up to a maximum weekly amount, which changes (usually upward) every July 1st. A hurt worker’s average weekly wage is generally computed by dividing that employee’s earnings for the full fifty-two (52) week period prior to his or her injury by fifty-two (or for the period of time the worker actually worked for the employer if he or she was not employed by said employer for a full fifty-two week period).
The current maximum weekly TTD check in Colorado is $987.84. To qualify for this maximum weekly Temporary Total Disability cash benefit an injured worker must have an average weekly wage of at least $1,481.76.
Three-day waiting period for Temporary Total Disability Benefits Under Colorado Workers’ Compensation Act
Like most states—Colorado has a waiting period during which no TTD benefits are paid. In Colorado that waiting period is three days. If, however, an injured worker’s period of temporary disability lasts longer than two weeks that waiting period is waived and benefits are paid back to the date the hurt employee started missing work.
Duration Of Temporary Total Disability Benefits Under Colorado Workers’ Compensation Law
Unlike most other states—there is no maximum time limit or duration of Temporary Total Disability Benefits under Colorado Work Compensation Law. However, as described more fully below, there is a cap or maximum limit on the amount of combined benefits paid for both TTD and Permanent Partial Disability Benefits. Once this cap is reached by an injured worker from receiving Temporary Total Disability Benefits alone, no Permanent Partial Disability benefits will be payable on the claim. However, the injured worker can continue to receive Temporary Total Disability benefits until otherwise terminated pursuant to law.
Subject to the above caps, a hurt worker’s TTD check will terminate when his or her treating physician (or a Division of Labor Independent Medical Examiner) places the worker at Maximum Medical Improvement—defined under Colorado Law as that point of time when the injured worker reaches a plateau in his or her condition and that no further medical treatment, or the simple passage of time, would be expected to improve the worker’s medical condition or functioning.
Qualifying For A Temporary Total Disability Benefits Under Colorado Workers’ Compensation Law
If a worker has been determined by his or her Authorized Treating Physician (or a Division of Labor Independent Medical Examiner) of being capable of performing his or her usual occupation, he or she will not be entitled to a Temporary Total Disability Check. Likewise, an injured worker who is deemed capable of performing the full range of all work, or is otherwise without any activity or work restrictions from his or her treating doctor (i.e. is released or deemed to be capable of full duty work) he or she is not entitled to a TTD check. Under the Colorado Workers’ Compensation Act, a hurt worker can qualify for a Temporary Total Disability Check in one of two ways:
If an injured worker’s authorized treating doctor (or a Division of Workers’ Compensation Independent Medical Examiner) deems the worker ‘TTD’ on not capable of performing any work activity whatsoever—that worker will receive a Temporary Total Disability check for the period of his or her total disability. This usually occurs after and while a worker is recovering from surgery or otherwise recovering from a catastrophic injury.
Hurt Worker’s Treating Doctor Gives Worker Restrictions And Employer Is Unable Or Unwilling To Provide Light-Duty Work
In the most typical situation an injured worker’s authorized treating doctor (or a Division Independent Medical Examiner) gives the worker temporary work and/or activity restrictions which prevent that worker from performing his or her previous job. If the injured worker’s employer provides the worker with alternative work within these restrictions, the worker’s TTD benefit will terminate, or he or she will not qualify for a Temporary Total Disability check, regardless of whether the worker accepts such alternative work assignment. Disputes can arise, however, as to whether a proper offer of light duty was offered, whether the offered work was indeed within the worker’s restrictions and, finally, whether or not the restrictions given were appropriate for the injured worker’s medical condition.
COLORADO WORKERS' COMPENSATION PERMANENT PARTIAL DISABILITY SETTLEMENTS
Not all injuries result in permanent injury. In Colorado, for those who do, the system provides the hurt worker with a Permanent Partial Disability cash settlement. The process for determining the amount of that impairment is quite complicated. However, the rules can generally be described as follows.
Determining The Nature & Extent Of Permanent Partial Disability Under Colorado Workers’ Comp Law
Once an injured worker reaches the point of Maximum Medical Improvement his or her permanent partial disability will be ripe for determination. Under Colorado Law Maximum Medical Improvement has been defined as that point in time when an injured worker’s medical condition has effectively plateaued and further active treatment or the simple passage of time would not be expected to improve that worker’s medical condition and/or level of functioning. Both the question of when, in fact, an injured worker reaches MMI and the amount of his or her permanent impairment will initially be determined by the injured worker’s authorized treating physician. Either the injured worker or his or her employer can dispute or otherwise challenge the treating doctor’s opinions on MMI or permanent impairment, or both, by utilizing the Colorado Division of Labor’s Independent Medical Examination process.
NOTE: In Colorado the amount of a worker’s permanent impairment can only be determined and rated by a treating physician (or Division of Labor Independent Examiner) who has received Level II training & accreditation from the Colorado Division of Workers’ Compensation.
In Colorado virtually all injuries will be evaluated using the American Medical Association Guide to the Evaluation of Permanent Impairment, Third Edition. For some types of injuries, the AMA Guides will be replaced, or even supplemented, by the Colorado Division of Labor Disability Guidelines.
It should be noted that in Colorado, like most other states, permanent disability is actually determined and defined as permanent partial impairment. As such, the Colorado Workers’ Compensation Court no longer considers vocational factors (i.e. education, occupation and previous work experience) when determining a workers’ permanent partial disability settlement. For example, for the same injury an accountant should receive the same disability rating as a concrete finisher. However, for whole person injuries (i.e. head and spine cases), an age factor is utilized in determining the amount of a given worker’s cash settlement—with younger workers receiving a higher cash settlement amount when compared to an older worker with the same whole body injury.
Calculating Whole Person Permanent Partial Disability Cash Settlements Under Colorado Law
In virtually all cases Permanent Partial Disability for serious whole body or whole person injuries (i.e. head and spine cases) is determined by utilizing the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, as described above. Under Colorado law whole body injuries are evaluated on a four-hundred (400) week schedule and an age factor is then applied. The final dollar amount of the cash settlement or award is determined by multiplying that figure by the worker’s TTD/PTD/PPD rate—which is generally determined as two-thirds of that worker’s average weekly wage subject to a statutory maximum. The following is the Age Factor Table used in Colorado to determine the final cash settlement amount.
Colorado Workers’ Compensation Whole Person Impairment Age Factor Table
|20 or younger||1.80||40||1.40|
|60 or older||1.00|
Once all the above numbers are determined or generated—the following equation is used to determine a given worker’s whole person impairment award or settlement:
TTD Rate x 400 Weeks x Age Factor x % Whole Person Impairment = Total Cash Permanent Settlement
Example: A thirty-two-year-old injured worker with a back surgery case has been determined by his treating doctor (or a Division of Labor Independent Medical Examiner) to have 25% whole person impairment rating. That same worker had pre-injury earnings which justify a $532 rate for Temporary Total Disability. His Final Permanent Partial Disability settlement would be $82,992 all as calculated as follows:
$532 rate x 400 weeks x 1.56 age factor x 25% impairment rating = $82,992 permanent disability cash award
As one can see, considering Colorado’s Workers’ Compensation Age Factor, older workers receive less in permanent partial disability benefits than do younger workers for a given level of whole body impairment. For example, an older fifty-seven-year-old worker with the same $532 TTD rate and similar 25% whole person rating would only receive $56,392 in PPD benefits.
$532 rate x 400 weeks x 1.06 age factor x 25% impairment rating = $56,392 permanent disability cash award
NOTICE & STATUTE OF LIMITATIONS REQUIREMENTS UNDER COLORADO WORKERS' COMPENSATION ACT
Under Colorado law an injured employee has certain notice and filing requirements to protect his or her right to receive benefits under the compensation act. These requirements can be summarized as follows:
Notice of Injury: Under Colorado Workers’ Compensation Law an injured worker, or someone on his or her behalf if the worker is physically or mentally unable, must give written notice of his or her injury within four (4) working days. If such statutory notice is not so given—the hurt worker could lose up to one day’s compensation for each day the required notice is not given.
Statute of Limitations: An injured worker has two-years to file a claim for compensation with the Colorado Division of Workers’ Compensation—unless indemnity benefits have been paid to that injured worker or in the case of excusable neglect.