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Workers' Compensation in Colorado

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Denise Iannotti

on 23 January 2015

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Transcript of Workers' Compensation in Colorado

Workers' Compensation in Colorado

Presented by Lee + Kinder, LLC

What Makes an Injury Compensable?
Reporting and Procedural Issues

1. Notice Requirements
2. Selecting ATPs: Designated Provider List
3. Reaching MMI
4. Hearing Issues
5. Claim Closure
6. Reopening

What is an "industrial injury?"
(1) Injuries that are traceable to a particular time, place, cause.
Employee has the burden to prove that the injury or occupational disease “arose out of”, “occurred within the course and scope” of employment, and proximately caused need for treatment.
Map of the Mountain
: What makes an injury compensable?

: Benefits Under Workers' Compensation

: Reporting and Procedural Issues

What if an employee decides to do a few runs during a lunch break and breaks a leg? Is it Compensable?
Injury “
arises out of
” employment if its origin is “sufficiently related” to job duties.
Includes activities “reasonably incidental” to employment (short breaks, toileting, etc.)

Injury occurs in the “
course and scope
” of employment if activity:
Provides employer with some tangible benefit.
Occurs within a reasonable time interval before, during, or after official working hours
On employer’s premises.
Engaged in preparatory acts of employment.

Examples of injuries traceable to a particular time, place, cause:
Ski Instructor is teaching a ski lesson and a child hits him in the head with a ski pole causing a head injury.
Employee is serving food, trips on carpet, and injures her knee.
Employee is operating a ski lift and injures his back when he is hit by the moving chair.
Examples of Occupational Diseases:
Employee develops carpal tunnel syndrome in his wrist after repetitively scanning objects for customers who are checking out.
Employee develops spinal pathology (degenerative disc disease) related to her job duties of having to repetitively lift ski equipment for customers.
A pre-existing medical condition will not preclude compensability!!!
Employee must prove this by a
of the evidence!
The employee only needs to prove that the employment accelerated, aggravated, or combined with a pre-existing condition to cause the current need for treatment.
(2) Occupational diseases that are brought about by exposure to harmful substances or employment conditions over time.
Judicially created rules
(1) "
Going to and from work rule
": Injury while traveling to or from work is generally NOT compensable. However, this rule is slowly deteriorating!
Judicially created rules continued...
Injuries sustained in parking lots
: Generally compensable regardless of ownership.

Unexplained falls:
Old rule
: Not compensable unless associated with circumstances of employment.
New rule
: compensable if the fall would not have occurred “but for” the conditions of employment.

Injuries during recreational activities
: Generally not compensable regardless of whether employer sponsored/promoted the activity.

: May be substantial deviation from employment or safety rule violation.

Benefits Provided Under Work Comp.
Reasonable, Necessary, and Related Medical Treatment

Respondents must pay for medical treatment and non-medical services reasonably necessary to “cure and relieve” effects of the industrial injury.

Employee has the burden to prove that any particular treatment in controversy is reasonable, necessary, and related to work injury.

Respondents can pay medical benefits and still contest the compensability of a claim.

Treatment of non-work related conditions may be reasonably necessary when required to achieve optimum treatment of the industrial injury.

Wage Loss Benefits
1. Temporary Total Disability (TTD)
2. Temporary Partial Disability (TPD)
3. Permanent Partial Disability (PPD)
4. Permanent Total Disability (PTD)
Paid every 2 weeks at 2/3 of the average weekly wage (AWW).
Can stop TTD payments when:
Employee reaches Maximum Medical Improvement (MMI)
Employee returns to work
Physician releases employee to regular work
Employee is released to modified work and employee fails to accept a written offer of modified duty
Employer can suspend TTD benefits if employee fails to appear at 2 consecutive appointments.
TTD Benefits
TPD Benefits
When EE returns to modified work and earns less than the pre-injury AWW, employer must pay TPD benefits.
TPD Benefits must be paid at least once every 2 weeks.
TPD benefits calculated as 2/3 of the difference between actual wages earned and pre-injury AWW.
Total of TPD benefits subject to state max. rate.

PPD Benefits
Permanent disability is based on the “impairment” assessed by the ATP. When the ATP determines that the employee is at MMI, the ATP assigns an impairment rating

Scheduled injuries (eyes, ears, nose, and extremities)
PPD = scheduled weekly rate (based on date of injury) x # of weeks for the specific body part x % of impairment to that body part

Whole person injuries (truncal and head injuries)
PPD = TTD rate (2/3 AWW) x 400 weeks x % impairment x age factor
PTD Benefits
Employee must prove that he or she is "unable to earn wages in the same or other employment."

PTD benefits are paid at the TTD rate for the life of the employee.

PTD benefits are terminated if employee refuses an offer of employment or refuses and offer of vocational rehabilitation.
Important Rules that May Reduce Benefits
1. Safety Rule Violations
2. Termination for Cause

Safety Rule Violation may result in a 50% reduction in indemnity benefits!
Respondents must prove that the employee's actions were:
failure to use safety devices provided by the employer;
failure to obey a reasonable safety rule adopted by the employer; or
The employee
misled the employer concerning the employee's physical ability to perform the job.
The safety rule needs to be generally published in a safety manual and be regularly enforced.
If the evidence suggests that the employer never really enforced the particular safety rule or policy, the assertion of a safety rule violation may fail.
Drug Use!!!
Drug use may result in a 50% reduction in indemnity benefits.
Any drug or alcohol test MUST have TWO samples!!!
If employee tests positive for drugs after the work injury, there is a rebuttable presumption that the employee was intoxicated at the time of the injury and the injury was caused by such intoxication.
Termination for Cause
Employer is not liable for TTD benefits when a temporarily disabled employee is "
" for termination.
To be "responsible" for termination, the employee must exercise
some degree of control
over the cause for termination.

Employee is fired for being late, but evidence showed that she was late because her car broke down = not enough control over the cause for termination.

Employee is fired for being drunk at work = enough control over the cause for termination.
Termination for Cause Continued...
Termination is not a
bar to entitlement to temporary disability benefits.
If Employee has a worsening of symptoms resulting in additional disability, the employee may be entitled to additional benefits.

Employee voluntarily resigns to pursue another job. Claimant’s condition worsens and requires surgery that will prevent him from working. Although claimant voluntarily resigned, he is not barred from entitlement to benefits because subsequent disability arose from initial work injury.

Travel status:
If travel is part of the employment, the risks associated with travel are compensable.

Personal comfort doctrine
: Eating, resting, toileting, getting fresh air, etc. are incidental to employment and are considered compensable.

Quasi-course of employment doctrine
: Injury while employee is traveling to or from authorized treatment for work-related injury will give rise to a new WC claim.

Navigating the Act and the Rules of Procedure while understanding the effects of recent case law can be complex and fraught with complications.

We are here to help!
Courts have found that "special circumstances" may cause an injury sustained while traveling to be compensable.
Factors Include:
1. Travel during work hours
2. Travel at the direction of the employer
3. Conducting business while traveling
4. Travel between job assignments
5. Being paid mileage for the travel
Whole person ratings generally provide more compensation than scheduled ratings.
While Colorado legalized marijuana, employers can still raise the defense of termination for cause or intoxication after a positive drug test. However, marijuana can be detected in a person's system without them being "intoxicated." Thus, Respondents will have the extra burden of proving that the level of marijuana detected was enough to cause impairment.
Notice Requirements
The employee must provide the employer with written notice of an injury within
4 days
of the injury
Failure to timely report an injury may result in a loss of 1 day's compensation for each day's failure to report.
The W.C. claim must be filed within
2 years
of the injury .
Employer's First Report of Injury
must be filed with the Division of Workers' Compensation
within 10 days
of notice or knowledge that:
Employee contracted an enumerated occupational disease;
Employee sustained a permanently physically impairing injury;
The injury or occupational disease resulted in the employee missing more than 3 days of scheduled shifts or calendar work days; or
The employee made a claim for benefits that was denied.
The Employer's First Report of Injury must be
filed with the Division of Workers Compensation if the injury resulted in death or injuries to 3 or more employees.
Selecting ATP's: Designated Provider Lists
The Employer has the right in the first instance to select physicians to treat injured employees.
However, if the employer does not give the injured employee a list of designated providers at the time of the injury, the right of selection passes to the employee.
What should be included on the Designated Provider List?
A list of at least 4 physicians or practices where the injured employee can seek medical treatment.
At least 1 of the 4 designated physicians must be at a distinct location from the other 3.
Exception for Rural Areas
If there are
less than 4
physicians within
miles of the employer’s place of business who are willing to treat an injured worker, the employer may designate
1 physician instead of 4.

If there are
more than 3
, but
less than 9
physicians within
miles of the employer’s place of business who are willing to treat an injured worker, the employer may designate
2 physicians instead of 4
Employee can obtain a one-time change to the other listed provider within 90 days of an injury.
After 90 days, the ATP cannot be changed without the approval from Respondents or a Court Order.
Employee can request to change the ATP in writing . Respondents must either grant or refuse a written request within 20 days.
Changing the ATP
Reaching Maximum Medical Improvement (MMI)
The point when no further treatment is reasonably expected to improve the employee's medical condition and the condition has become stable.
Respondents can stop paying TTD and TPD after a Claimant reaches MMI.
MMI is generally determined by the ATP.
If an ATP refused to place an employee at MMI, Respondents can pursue a
24-month DIME.
The following must be met before 24-month DIME:
At least 24 months have passed since the date of injury.
Respondents sent the ATP a letter requesting an MMI determination.
The ATP opined that the employee is not at MMI.
A physician, other than the APT, determined that the employee was at MMI.
Hearing Issues
When to File Admission or Denial?
Respondents must file either an Admission of Liability or a Notice of Contest within 20 days of the First Report of Injury or the receipt of the Claim for Compensation
Office of Administrative Courts has jurisdiction.
Initiated by an Application for Hearing and Notice to Set
The Application must list all issues that the party intends to litigate and the witnesses.
Response to Application for Hearing is the other party's chance to endorse additional issues, defenses, and witnesses.
Hearings are set to commence between 80 and 120 days after an Application for Hearing.
Can get an additional 60-day extension granted by an ALJ.
After hearing of endorsed issues, ALJ issues either a Summary Order or Specific Findings of Fact, Conclusions of Law, and Order.
A party that wishes to seek review of a Summary Order must timely request a full order.
ALJ factual findings will not be disregarded unless they are clearly erroneous
Appeals of an ALJ’s Order are to ICAO. Appeal of ICAO is taken to Colorado Court of Appeals.
A party may petition for writ of certiorari to Colorado Supreme Court.

Claim Closure
A claim automatically closed after a Final Admission of Liability if the employee does not object within 30 days.
Where there is no legal activity in a claim for over 6 months, Respondents can file a Motion to Close for Failure to Prosecute.
If employee does not timely respond to an Order to Show Cause after a Motion to Close, the claim automatically closes.
Either party may petition to reopen a claim based on fraud, overpayment, clerical error, mutual mistake, or change of condition. Reopening for indemnity benefits is subject to a Statute of Limitations.
6 years after the date of injury; OR
2 years after the date the last indemnity benefit became due or payable.

An employee can reopen for medical benefits only by filing a Petition to Reopen within 2 years of the most recent medical appointment.

Full and Final Settlement may only be reopened upon a showing of fraud or mutual mistake of material fact.
Full transcript