Transcript
2012
Colorado
Workers’ Compensation Act
Colorado Department of
Labor and Employment
Division of Workers’ Compensation
John Hickenlooper, Governor
Ellen Golombek, Executive Director
Paul Tauriello, Director
An index to the Act prepared by the Division of Workers’
Compensation can be found at the end of this document.
The Rules of Procedure
can be purchased from:
LexisNexis Matthew Bender & Co., Inc.
1275 Broadway
Albany, NY 12204
Phone: (800) 223-1940
Fax: (800) 544-6572
[email protected]
Copies of the Workers’ Compensation Act
can be obtained from:
Division of Workers’ Compensation
633 17th Street
Denver, CO 80202-3660
303.318.8700
http://colorado.gov/cdle/dwc/
This portion of the Colorado Revised Statutes, reprinted with the permission of the Committee
on Legal Services in accordance with section 2-5-118, C.R.S., is an unofficial publication of
Colorado Revised Statutes.
Reference should always be made to the official set of statutes published and enacted pursuant to
article 5 of title 2, Colorado Revised Statutes, on questions involving legal interpretations or
when litigation is involved.
Table of Contents
ARTICLE 14.5 - Cost Containment ................................................................................................1
ARTICLE 40 - General Provisions..................................................................................................2
ARTICLE 41 - Coverage and Liability ...........................................................................................9
ARTICLE 42 – Benefits ...............................................................................................................17
ARTICLE 43 - Procedure .............................................................................................................32
ARTICLE 44 - Insurance..............................................................................................................54
ARTICLE 45 - Pinnacol Assurance..............................................................................................62
ARTICLE 46 - Specific Insurance Funds.....................................................................................68
ARTICLE 47 - Administration .....................................................................................................73
ARTICLE 55 - Workers' Compensation Classification Appeals Board.......................................76
1
TITLE 8
LABOR AND INDUSTRY
Workers' Compensation Cost Containment
ARTICLE 14.5
Cost Containment
8-14.5-101. Short title. This article shall be known
and may be cited as the "Workers' Compensation Cost
Containment Act".
8-14.5-102. Legislative declaration. The general
assembly hereby finds and declares that any adjustments to
premiums for workers' compensation insurance be granted on
the basis of equity, rate adequacy, fairness, and insurer
compliance with Colorado insurance rating laws. The
general assembly further finds and declares that
notwithstanding the granting of different rates to insureds for
their experience modification, participation in return-to-work
programs, and premium volume discounts not exceeding
fifteen percent, any other premium adjustments should be
principally weighted in a manner primarily encouraging the
adoption and successful implementation by insureds of
effective workplace safety programs mainly encompassing
risk management and medical cost containment procedures.
8-14.5-103. Definitions. As used in this article,
unless the context otherwise requires:
(1) "Approved program" means a cost containment
or risk management program approved by the board.
(2) "Board" means the workers' compensation cost
containment board established pursuant to section 8-14.5104.
(3) "Certified program" means a cost containment
or risk management program which has been implemented
for a period of at least one year and certified by the board.
(3.5) "Commissioner"
means
the
insurance
commissioner, appointed pursuant to section 10-1-104,
C.R.S.
(4) "Department" means the department of labor
and employment.
(5) "Director" means the director of the division.
(6) "Division" means the division of workers'
compensation in the department of labor and employment.
(7) "High risk employer" means any employer
classified in the upper ten percent of the insurance rate
schedule in the Colorado workers' compensation insurance
system.
(8) "Managed care" shall have the meaning set forth
in section 8-42-101 (3.6) (p) (I) (B).
(9) "Workplace safety program" means those
programs offered by insurance carriers authorized to do
business in this state for purposes of workers' compensation
insurance policies and implemented by employers to promote
cost containment and risk management of workplace safety
hazards.
8-14.5-104. Creation of board. (1) There is hereby
created in the division the workers' compensation cost
containment board, to be composed of seven members: The
commissioner of insurance, the chief executive officer of
Pinnacol Assurance, and five members appointed by the
governor and confirmed by the senate. Appointed members
of the board shall be chosen among the following: Employers
or their designated representatives engaged in businesses
having workers' compensation insurance rates in the upper
five percent of the rate schedule, actuaries or executives with
risk management experience in the insurance industry, or
employers who have demonstrated good risk management
experience with respect to their workers' compensation
insurance.
(2) The board shall exercise its powers and perform
its functions under the department and the director of the
division as if the same were transferred to the department by
a type 2 transfer, as such transfer is defined in the
"Administrative Organization Act of 1968", article 1 of title
24, C.R.S.
(3) The appointed members of the board shall serve
for terms of three years and may be reappointed; except that,
of the members first appointed, two shall serve for terms of
three years; two shall serve for terms of two years, and one
shall serve for a term of one year. The chief executive officer
of Pinnacol Assurance and the commissioner of insurance
shall serve continuously.
(4) Members of the board shall receive no
compensation but shall be reimbursed for actual and
necessary traveling and subsistence expenses incurred in the
performance of their official duties as members of the board.
8-14.5-105. Powers
and
duties
of
the
board. (1) The board shall have the following powers and
duties:
(a) To establish model cost containment and risk
management programs for selected classifications in the
upper ten percent of the insurance rate schedule under the
Colorado workers' compensation insurance program;
(b) To adopt standards for the approval of particular
cost containment and risk management programs submitted
by community, technical, or junior colleges or by employers
in those selected high risk classifications;
(c) To receive, evaluate, and certify cost
containment and risk management programs implemented by
community, technical, or junior colleges or by employers in
those selected high risk classifications for a period of at least
one year;
(d) To promote cost containment and risk
management training by community, technical, or junior
colleges, employers, groups of employers, or trade
associations;
(e) To review annually the classifications in the
upper ten percent of the insurance rate schedule under the
Colorado workers' compensation insurance program for
inclusion in the cost containment program;
(f) To set the qualifications for technical personnel
to assist community, technical, and junior colleges and
employers in establishing risk management and cost
containment programs;
(g) To disseminate information regarding the types
of workers' compensation insurance policies available;
(h) To adopt such rules and regulations as may be
necessary to carry out the purposes of this article.
2
8-14.5-106. Duties of the director. (1) The
director shall have the following powers and duties:
(a) To provide technical advice to the board;
(b) To provide technical advice and assistance to
community, technical, or junior colleges, employers, groups
of employers, or trade associations with respect to the
development and implementation of cost containment and
risk management programs;
(c) To publish, as may be appropriate, documents
relating to the development and implementation of cost
containment and risk management programs;
(d) To maintain records of all proceedings of the
board, including the evaluation of proposals for cost
containment and risk management programs submitted by
employers and by community, technical, or junior colleges;
(e) To maintain records of all employers and
community, technical, or junior colleges with certified
programs.
8-14.5-107. Cost containment certification. Any
employer complying with an approved program for at least
one year may present evidence of such compliance to the
board and petition the board to certify its program. The
names of such certified employers shall be made available on
a periodic basis to bona fide insurance carriers on file with
the division.
8-14.5-107.5. Workplace safety programs - study
by commissioner - (1) The commissioner shall undertake a
full study of current workplace safety, risk management, and
cost containment programs offered by insurers, including
Pinnacol Assurance, a review and analysis of the various
incentives used by insurers to obtain policyholder
participation, including any premium adjustment programs in
use, and shall evaluate other possible programs and
incentives that could be used by insurers to expand workplace
safety programs and reward policyholder participation. The
commissioner shall consult with the Colorado department of
labor and employment in conducting the study. Such study,
review and analysis, and evaluation shall include but not be
limited to the following:
(a) Whether or not by a date certain, all insurers
including Pinnacol Assurance issuing workers' compensation
insurance policies in this state shall offer all insureds in the
ten most populous counties a managed care plan featuring a
designated medical provider;
(b) Whether or not by a date certain, if it is in the
best interest of employers and employees, all insurers
including Pinnacol Assurance issuing workers' compensation
insurance policies in this state shall offer to all or some
selected classes of insureds some type of basic workplace
safety program;
(c) Whether or not the board or the commissioner
should continue providing certification of workplace safety
programs or whether such certification should be provided by
insurers for insureds;
(d) Whether or not by July 1, 1995, the
commissioner should promulgate regulations concerning the
granting of premium adjustments for an insured's
participation and implementation of a basic workplace safety
program or managed care program;
(e) The participation by insureds in existing
workplace safety programs offered by insurers and the
methods by which insurers offer such programs;
(f) Insurer compliance with deductible provisions;
(g) Insurer compliance with the provisions of part 4
of article 4 of title 10, C.R.S., regarding the current design
and use of any premium adjustment, rate deviation, premium
discount, retro-rate, scheduled adjustment, or other type of
financial plan and their effect on the fairness and
reasonableness of rates for those insureds not qualifying for
experience or schedule rating;
(h) The efficacy of reducing the premium dollar
volume needed for an insured to become experience rated;
(i) A cost benefit analysis of implementation of
workplace safety programs.
(2) (a) Repealed.
(b) Insurers shall make all necessary information
and records pertaining to workplace safety programs of such
insurers available to the commissioner in carrying out the
study required by subsection (1) of this section. The
reasonable costs of such study shall be borne by insurers,
including Pinnacol Assurance, as determined by the
commissioner based on the total cost of such study.
8-14.5-108. Cost containment fund - creation. All
moneys collected for cost containment pursuant to section 814.5-109 or 8-44-112 (1) (b) (III) shall be transmitted to the
state treasurer who shall credit the same to the cost
containment fund, which fund is hereby created. All moneys
credited to said fund and all interest earned thereon shall be
subject to appropriation by the general assembly to pay the
direct and indirect costs of the cost containment program, and
said moneys shall remain in such fund for such purposes and
shall not revert to the general fund or any other fund.
8-14.5-109. Grants-in-aid
cooperative
agreements. The division may receive grants-in-aid from any
agency of the United States and may cooperate and enter into
agreements with any agency of the United States, any agency
of any other state, and any other agency of this state or its
political subdivisions, for the purpose of carrying out the
provisions of this article.
8-14.5-110. Repeal of article. (Repealed)
ARTICLE 40
General Provisions
PART 1
SHORT TITLE - LEGISLATIVE DECLARATION
8-40-101. Short title. Articles 40 to 47 of this title
shall be known and may be cited as the "Workers'
Compensation Act of Colorado".
8-40-102. Legislative declaration. (1) It is the
intent of the general assembly that the "Workers'
Compensation Act of Colorado" be interpreted so as to assure
the quick and efficient delivery of disability and medical
benefits to injured workers at a reasonable cost to employers,
without the necessity of any litigation, recognizing that the
workers' compensation system in Colorado is based on a
mutual renunciation of common law rights and defenses by
employers and employees alike.
3
(2) The general assembly hereby finds that the
determination of whether an individual is an employee for
purposes of the "Workers' Compensation Act of Colorado" is
subject to a great deal of speculation and litigation. It is the
intent of the general assembly to provide an easily
ascertainable standard for determining whether an individual
is an employee. In order to further this objective, the test for
determining whether an individual is an employee for the
purposes of the "Workers' Compensation Act of Colorado"
shall be based on the nine criteria found in section 8-40-202
(2) (b) (II) which shall supersede the common law. The fact
that an individual performs services exclusively or primarily
for another shall not be conclusive evidence that the
individual is an employee.
PART 2
DEFINITIONS
8-40-201. Definitions - repeal. As used in articles
40 to 47 of this title, unless the context otherwise requires:
(1) "Accident" means an unforeseen event occurring
without the will or design of the person whose mere act
causes it; an unexpected, unusual, or undesigned occurrence;
or the effect of an unknown cause or, the cause, being known,
an unprecedented consequence of it.
(2) "Accident", "injury", or "injuries" includes
disability or death resulting from accident or occupational
disease as defined in subsection (14) of this section.
(2.5) (a) "Adverse action" means that the director,
pursuant to part 5 of article 43 of this title or section 8-42-101
(3.6), has retroactively denied payment of fees, recommended
a change in treating physician, or excluded a health care
provider from the workers' compensation system by revoking
the accreditation of any such health care provider under
section 8-42-101 (3.6).
(b) (I) This subsection (2.5) is repealed, effective
July 1, 2014.
(II) Prior to such repeal, the accreditation process
created by section 8-42-101 (3.5) and (3.6) shall be reviewed
as provided for in section 24-34-104, C.R.S.
(3) "Board" means the board of directors of
Pinnacol Assurance.
(3.4) "Chief executive officer" means the chief
executive officer of Pinnacol Assurance.
(3.5) Repealed.
(3.6) "Claimant" means a person who either:
(a) Receives benefits under articles 40 to 47 of this
title; or
(b) Has or asserts, in any administrative or judicial
forum or in any communication with the director, the
division, or an employer, insurer, or self-insured employer, a
right to receive such benefits.
(4) "Division" means the division of workers'
compensation in the department of labor and employment.
(5) "Director" means the director of the division of
workers' compensation.
(6) "Employee" has the meaning set forth in section
8-40-202 and the scope of such term is set forth in section 840-301.
(7) "Employer" has the meaning set forth in section
8-40-203 and the scope of such term is set forth in section 840-302.
(8) "Employment" means any trade, occupation,
job, position, or process of manufacture or any method of
carrying on any trade, occupation, job, position, or process of
manufacture in which any person may be engaged; except
that it shall not include participation in a ridesharing
arrangement, as defined in section 39-22-509 (1) (a) (II),
C.R.S., and participation in such a ridesharing arrangement
shall not affect the wages paid to or hours or conditions of
employment of an employee; nor shall it include the
employee's participation in a voluntary recreational activity
or program, regardless of whether the employer promoted,
sponsored, or supported the recreational activity or program.
(9) "Examiner" means one of the industrial claim
appeals examiners appointed to the industrial claim appeals
panel in the industrial claim appeals office.
(10) "Executive director" means the executive
director of the department of labor and employment.
(11) (Deleted by amendment, L. 2002, p. 1882, §
27, effective July 1, 2002.)
(11.5) "Maximum medical improvement" means a
point in time when any medically determinable physical or
mental impairment as a result of injury has become stable and
when no further treatment is reasonably expected to improve
the condition.
The requirement for future medical
maintenance which will not significantly improve the
condition or the possibility of improvement or deterioration
resulting from the passage of time shall not affect a finding of
maximum medical improvement.
The possibility of
improvement or deterioration resulting from the passage of
time alone shall not affect a finding of maximum medical
improvement.
(12) "Mediation" means a process through which
parties involved in a dispute concerning matters arising under
articles 40 to 47 of this title meet with a mediator to discuss
such matter or matters, defining and articulating the issues
and their positions on such issues, with a goal of resolving
such dispute or disputes.
(13) "Mediator" means an individual who is trained
to assist disputants in reaching a mutually acceptable
resolution of their disputes through the identification and
evaluation of alternatives.
(13.5) (a) "Medical treatment guidelines" means a
system of evaluation and treatment guidelines for high cost or
high frequency categories of occupational injury and disease
that will assure appropriate medical care at a reasonable cost.
(b) (I) This subsection (13.5) is repealed, effective
July 1, 2014.
(II) Prior to such repeal, the accreditation process
created by section 8-42-101 (3.5) and (3.6) shall be reviewed
as provided for in section 24-34-104, C.R.S.
(14) "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
4
which the worker would have been equally exposed outside
of the employment.
(15) "Order" means and includes any decision,
finding and award, direction, rule, regulation, or other
determination arrived at by the director or an administrative
law judge.
(15.5) "Overpayment" means money received by a
claimant that exceeds the amount that should have been paid,
or which the claimant was not entitled to receive, or which
results in duplicate benefits because of offsets that reduce
disability or death benefits payable under said articles. For
an overpayment to result, it is not necessary that the
overpayment exist at the time the claimant received disability
or death benefits under said articles.
(16) "Panel" means the industrial claim appeals
panel that conducts administrative appellate review pursuant
to articles 40 to 47 of this title.
(16.5) (a) "Permanent total disability" means the
employee is unable to earn any wages in the same or other
employment. Except as provided in paragraph (b) of this
subsection (16.5), 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.
(b) Total loss of or total loss of use of both hands,
or both arms, or both feet, or both legs, or both eyes, or any
two thereof shall create a rebuttable presumption of
permanent total disability. "Total loss of use" shall be a
medical determination, based upon objective findings, made
by an independent medical examiner who is a level II
accredited physician in the appropriate field.
(17) "Place of employment" means every place
whether indoors, outdoors, or underground and the premises,
workplaces, works, and plants appertaining thereto or used in
connection therewith where either temporarily or
permanently any industry, trade, or business is carried on; or
where any process or operation directly or indirectly relating
to any industry, trade, or business is carried on; or where any
person is directly or indirectly employed by another for direct
or indirect gain or profit.
(18) "State" includes any state or territory of the
United States, the District of Columbia, and any province of
Canada.
(18.5) "Temporary help contracting firm" means
any person who is in the business of employing individuals
and, for compensation from a third party, providing those
individuals to perform work for the third party, under the
supervision of the third party.
(19) (a) "Wages" shall be construed to mean the
money rate at which the services rendered are recompensed
under the contract of hire in force at the time of the injury,
either express or implied.
(b) The term "wages" includes the amount of the
employee's cost of continuing the employer's group health
insurance plan and, upon termination of the continuation, the
employee's cost of conversion to a similar or lesser insurance
plan, and gratuities reported to the federal internal revenue
service by or for the worker for purposes of filing federal
income tax returns and the reasonable value of board, rent,
housing, and lodging received from the employer, the
reasonable value of which shall be fixed and determined from
the facts by the division in each particular case, but does not
include any similar advantage or fringe benefit not
specifically enumerated in this subsection (19). If, after the
injury, the employer continues to pay any advantage or fringe
benefit specifically enumerated in this subsection (19),
including the cost of health insurance coverage or the cost of
the conversion of health insurance coverage, that advantage
or benefit shall not be included in the determination of the
employee's wages so long as the employer continues to make
payment. Medicaid and other indigent health care programs
are not health insurance plans for the purposes of this section.
(c) No per diem payment shall be considered wages
under this subsection (19) unless it is also considered wages
for federal income tax purposes.
8-40-202. Employee. (1) "Employee" means:
(a) (I) (A) Every person in the service of the state,
or of any county, city, town, or irrigation, drainage, or school
district or any other taxing district therein, or of any public
institution or administrative board thereof under any
appointment or contract of hire, express or implied; and every
elective official of the state, or of any county, city, town, or
irrigation, drainage, or school district or any other taxing
district therein, or of any public institution or administrative
board thereof; and every member of the military forces of the
state of Colorado while engaged in active service on behalf of
the state under orders from competent authority. Police
officers and firefighters who are regularly employed shall be
deemed employees within the meaning of this paragraph (a),
as shall also sheriffs and deputy sheriffs, regularly employed,
and all persons called to serve upon any posse in pursuance
of the provisions of section 30-10-516, C.R.S., during the
period of their service upon such posse, and all members of
volunteer fire departments, including any person receiving a
retirement pension under section 31-30-1122, C.R.S., who
serves as an active volunteer firefighter of a fire department
subsequent to retirement pursuant to section 31-30-1132,
C.R.S., or any person ordered by the chief or a designee of
the chief's at the scene of an emergency or during the period
of an emergency to become a member of that department for
the duration of an emergency, and to perform the duties of a
firefighter, and only if the person who is so ordered reports
any claim within ten days of the cessation of the emergency,
volunteer rescue teams or groups, volunteer disaster teams,
volunteer ambulance teams or groups, and volunteer search
teams in any county, city, town, municipality, or legally
organized fire protection district or ambulance district in the
state of Colorado, and all members of the civil air patrol,
Colorado wing, while said persons are actually performing
duties as volunteer firefighters or as members of such
volunteer rescue teams or groups, volunteer disaster teams,
volunteer ambulance teams or groups, or volunteer search
teams or as members of the civil air patrol, Colorado wing,
and while engaged in organized drills, practice, or training
necessary or proper for the performance of such duties.
Members of volunteer police departments, volunteer police
reserves, and volunteer police teams or groups in any county,
city, town, or municipality, while actually performing duties
as volunteer police officers, may be deemed employees
within the meaning of this paragraph (a) at the option of the
governing body of such county or municipality.
5
(B) Notwithstanding the provisions of subsubparagraph (A) of this subparagraph (I), any elected or
appointed official of any county, city, town, or irrigation,
drainage, or school district or taxing district who receives no
compensation for service rendered as such an official, other
than reimbursement of actual expenses, may be deemed not
to be an employee within the meaning of this paragraph (a) at
the option of the governing body of such county, city, town,
or district. The option to exclude such officials as employees
within the meaning of this paragraph (a) may be exercised as
to any category of officials or as to any combination of
categories of officials. Any such option may be exercised for
any policy year by the filing of a statement with the division
not less than forty-five days before the start of the policy year
for which the option is to be exercised. If such a statement is
in effect as to any category of such uncompensated officials,
no official in said category shall be deemed an employee
within the meaning of this paragraph (a). The governing body
shall notify each official of such action promptly at the time
such election to exclude is exercised.
(II) The rate of compensation of such persons
accidentally injured, or, if killed, the rate of compensation for
their dependents, while serving upon such posse or as
volunteer firefighters or as members of such volunteer police
departments, volunteer police reserves, or volunteer police
teams or groups or as members of such volunteer rescue
teams or groups, volunteer disaster teams, volunteer
ambulance teams or groups, or volunteer search teams or as
members of the civil air patrol, Colorado wing, and of every
nonsalaried person in the service of the state, or of any
county, city, town, or irrigation, drainage, or school district
therein, or of any public institution or administrative board
thereof under any appointment or contract of hire, express or
implied, including nonsalaried elective officials of the state,
and of all members of the military forces of the state of
Colorado shall be at the maximum rate provided by articles
40 to 47 of this title; except that this subparagraph (II) shall
apply to an official described in sub-subparagraph (B) of
subparagraph (I) of this paragraph (a) only if no statement
exercising the option to exclude such official as an employee
within the meaning of this paragraph (a) is in effect.
(III) Any person who, as part of a rehabilitation
program of the social services department of any county or
city and county, is placed with a private employer for the
purpose of training or learning trades or occupations shall be
deemed while so engaged to be an employee of such private
employer. Any person who receives a work experience
assignment to a position in any department or agency of any
county or municipality, in any school district, in the office of
any state agency or political subdivision thereof, or in any
private for profit or any nonprofit agency pursuant to the
provisions of part 7 of article 2 of title 26, C.R.S., shall be
deemed while so assigned to be an employee of the respective
department, agency, office, political subdivision, private for
profit or nonprofit agency, or school district to which said
person is assigned or, if so negotiated between the county and
the entity to which the person is assigned, of the county
arranging the work experience assignment. Any person who
receives a work experience assignment to a position in any
federal office or agency pursuant to part 7 of article 2 of title
26, C.R.S., shall be deemed while so assigned to be an
employee of the county arranging the work experience
assignment. The rate of compensation for such persons if
accidentally injured or, if killed, for their dependents shall be
based upon the wages normally paid in the community in
which they reside for the type of work in which they are
engaged at the time of such injury or death; except that, if any
such person is a minor, compensation to such minor for
permanent disability, if any, or death benefits to such minor's
dependents shall be paid at the maximum rate of
compensation payable under articles 40 to 47 of this title at
the time of the determination of such disability or of such
death.
(IV) Except as provided in section 8-40-301
(3) and section 8-40-302 (7) (a), any person who may at any
time be receiving training under any work or job training or
rehabilitation program sponsored by any department, board,
commission, or institution of the state of Colorado or of any
county, city and county, city, town, school district, or private
or parochial school or college and who, as part of any such
work or job training or rehabilitation program of any
department, board, commission, or institution of the state of
Colorado or of any county, city and county, city, town, school
district, or private or parochial school or college, is placed
with any employer for the purpose of training or learning
trades or occupations shall be deemed while so engaged to be
an employee of the respective department, board,
commission, or institution of the state of Colorado or of the
county, city and county, city, town, school district, or private
or parochial school or college sponsoring such training or
rehabilitation program unless the following conditions are
met, in which case the placed person shall be deemed an
employee of the employer with whom he or she is placed:
(A) The sponsoring entity and the employer agree
that the employer shall cover the placed person under the
employer's workers' compensation insurance;
(B) The employer does in fact insure and keep
insured its liability for workers' compensation as provided in
articles 40 to 47 of this title and does in fact cover the placed
person under such insurance; and
(C) With respect to agreements between sponsoring
entities and employers entered into after April 1, 1991, the
employer has been provided with notice of the provisions of
this subparagraph (IV) and of subparagraphs (V) and (VI) of
this paragraph (a).
(V) In the event a person placed with an employer
is deemed an employee of the employer pursuant to
subparagraph (IV) of this paragraph (a), the sponsoring entity
shall not be subject to any liability for or on account of the
death of or personal injury to the person so placed. In the
event such person is deemed an employee of the sponsoring
entity pursuant to the said subparagraph (IV), the employer
shall not be subject to any liability for or on account of the
death of or personal injury to the person and shall not be
required to carry workers' compensation insurance or to pay
premiums for workers' compensation insurance with respect
to the person.
(VI) The rate of compensation for a person placed
pursuant to subparagraph (IV) of this paragraph (a) if
accidentally injured or, if killed, for dependents of such
6
person shall be based upon the wages normally paid in the
community in which such person resides or in the community
where said work or job training or rehabilitation program is
being conducted for the type of work in which the person is
engaged at the time of such injury or death, as determined by
the director; except that, if any such person is a minor,
compensation for such minor for permanent disability, if any,
or death benefits to such minor's dependents shall be paid at
the maximum rate of compensation payable under articles 40
to 47 of this title at the time of the determination of such
disability or death.
(b) Every person in the service of any person,
association of persons, firm, or private corporation, including
any public service corporation, personal representative,
assignee, trustee, or receiver, under any contract of hire,
express or implied, including aliens and also including
minors, whether lawfully or unlawfully employed, who for
the purpose of articles 40 to 47 of this title are considered the
same and have the same power of contracting with respect to
their employment as adult employees, but not including any
persons who are expressly excluded from articles 40 to 47 of
this title or whose employment is but casual and not in the
usual course of the trade, business, profession, or occupation
of the employer. The following persons shall also be deemed
employees and entitled to benefits at the maximum rate
provided by said articles, and, in the event of injury or death,
their dependents shall likewise be entitled to such maximum
benefits, if and when the association, team, group, or
organization to which they belong has elected to become
subject to articles 40 to 47 of this title and has insured its
liability under said articles: All members of privately
organized volunteer fire departments, volunteer rescue teams
or groups, volunteer disaster teams, volunteer ambulance
teams or groups, and volunteer search teams and
organizations while performing their respective duties as
members of such privately organized volunteer fire
departments, volunteer rescue teams or groups, volunteer
disaster teams, volunteer ambulance teams or groups, and
volunteer search teams and organizations and while engaged
in organized drills, practice, or training necessary or proper
for the performance or their respective duties.
(2) (a) Notwithstanding any other provision of this
section, any individual who performs services for pay for
another shall be deemed to be an employee, irrespective of
whether the common-law relationship of master and servant
exists, 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. For purposes of this section, the degree of control
exercised by the person for whom the service is performed
over the performance of the service or over the individual
performing the service shall not be considered if such control
is exercised pursuant to the requirements of any state or
federal statute or regulation.
(b) (I) To prove that an individual is engaged in an
independent trade, occupation, profession, or business and is
free from control and direction in the performance of the
service, the individual and the person for whom services are
performed may show by a preponderance of the evidence that
the conditions set forth in paragraph (a) of this subsection (2)
have been satisfied.
The parties may also prove
independence through a written document.
(II) To prove independence it must be shown that
the person for whom services are performed does not:
(A) Require the individual to work exclusively for
the person for whom services are performed; except that the
individual may choose to work exclusively for such person
for a finite period of time specified in the document;
(B) Establish a quality standard for the individual;
except that the person may provide plans and specifications
regarding the work but cannot oversee the actual work or
instruct the individual as to how the work will be performed;
(C) Pay a salary or at an hourly rate instead of at a
fixed or contract rate;
(D) Terminate the work of the service provider
during the contract period unless such service provider
violates the terms of the contract or fails to produce a result
that meets the specifications of the contract;
(E) Provide more than minimal training for the
individual;
(F) Provide tools or benefits to the individual;
except that materials and equipment may be supplied;
(G) Dictate the time of performance; except that a
completion schedule and a range of negotiated and mutually
agreeable work hours may be established;
(H) Pay the service provider personally instead of
making checks payable to the trade or business name of such
service provider; and
(I) Combine the business operations of the person
for whom service is provided in any way with the business
operations of the service provider instead of maintaining all
such operations separately and distinctly.
(III) A document may satisfy the requirements of
this paragraph (b) if such document demonstrates by a
preponderance of the evidence the existence of the factors
listed in subparagraph (II) of this paragraph (b) as are
appropriate to the parties' situation. The existence of any one
of these factors is not conclusive evidence that the individual
is an employee.
(IV) If the parties use a written document pursuant
to this paragraph (b), such document must be signed by both
parties and may be the contract for performance of service or
a separate document. Such document shall create a rebuttable
presumption of an independent contractor relationship
between the parties where such document contains a
disclosure, in type which is larger than the other provisions in
the document or in bold-faced or underlined type, that the
independent contractor is not entitled to workers'
compensation benefits and that the independent contractor is
obligated to pay federal and state income tax on any moneys
earned pursuant to the contract relationship. All signatures
on any such document must be duly notarized.
(V) If the parties use a written document pursuant to
this paragraph (b) and one of the parties is a professional
whose license to practice a particular occupation under the
laws of the state of Colorado requires such professional to
exercise a supervisory function with regard to an entire
project such supervisory role shall not affect such
7
professional's status as part of the independent contractor
relationship.
(c) Nothing in this section shall be construed to
conflict with section 8-40-301 or to relieve any obligations
imposed pursuant thereto.
(d) Nothing in this section shall be construed to
remove the claimant's burden of proving the existence of an
employer-employee relationship for purposes of receiving
benefits pursuant to articles 40 to 47 of this title.
(e) (I) Notwithstanding any other provision of this
section, a written agreement between a nonprofit youth sports
organization and a coach, specifying that the coach is an
independent contractor and not an employee of the nonprofit
youth sports organization and otherwise satisfying the
requirements of this paragraph (e), shall be conclusive
evidence that the relationship between the nonprofit youth
sports organization and the coach is an independent
contractor relationship rather than an employment
relationship and that the nonprofit youth sports organization
is not obligated to secure compensation for the coach in
accordance with the "Workers' Compensation Act of
Colorado".
(II)
The written agreement shall contain a
disclosure, in bold-faced, underlined, or large type, in a
conspicuous location, and acknowledged by the parties by
signature, initials, or other means demonstrating that the
parties have read and understand the disclosure, indicating
that the coach:
(A) Is an independent contractor and not an
employee of the nonprofit youth sports organization;
(B) Is not entitled to workers' compensation benefits
in connection with his or her contract with the nonprofit
youth sports organization; and
(C) Is obligated to pay federal and state income tax
on any moneys paid pursuant to the contract for coaching
services and that the nonprofit youth sports organization will
not withhold any amounts from the coach for purposes of
satisfying the coach's income tax liability.
(III) A written agreement between a nonprofit youth
sports organization and a coach in accordance with this
paragraph (e) shall not be conclusive evidence of an
independent contractor relationship for purposes of any civil
action instituted by a third party.
(IV) As used in this paragraph (e), "nonprofit youth
sports organization" means an organization that is exempt
from federal taxation under section 501 (c) (3) of the federal
"Internal Revenue Code of 1986", as amended, and is
primarily engaged in conducting organized sports programs
for persons under twenty-one years of age.
(3) Notwithstanding any other provision of this
section, "employee" includes a person who participates in a
property tax work-off program established pursuant to article
3.7 of title 39, C.R.S.
8-40-203. Employer. (1) "Employer" means:
(a) 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. All such public
employers shall be at all times subject to the compensation
provisions of articles 40 to 47 of this title.
(b) 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
articles 40 to 47 of this title, in service under any contract of
hire, express or implied.
(c) Repealed.
PART 3
SCOPE AND APPLICABILITY
8-40-301. Scope
of
term
"employee".
(1) "Employee" excludes any person employed by a
passenger tramway area operator, as defined in section 25-5702 (1), C.R.S., 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.
(2) "Employee" excludes any person who is a
licensed real estate sales agent or a licensed real estate broker
associated with another real estate broker if:
(a) Substantially all of the sales agent's or
associated broker's remuneration from real estate brokerage is
derived from real estate commissions; and
(b) The services of the sales agent or associated
broker are performed under a written contract specifying that
the sales agent or associated broker is an independent
contractor; and
(c) Such contract provides that the sales agent or
associated broker shall not be treated as an employee for
federal income tax purposes.
(3) (a) Notwithstanding the provisions of section 840-202 (1) (a) (IV), "employee" excludes any person who is
confined to a city or county jail or any department of
corrections facility as 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; except that "employee" includes an inmate of a
department of corrections facility or a city, county, or city
and county jail who is 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", 18 U.S.C. sec.
1761 (c). For the purposes of articles 40 to 47 of this title, an
inmate participating in a program certified by the federal
prison industry enhancement certification program is an
employee of that certified program, which certified program
shall carry workers' compensation insurance pursuant to
articles 40 to 47 of this title. No inmate participating in a
certified program shall be deemed to be an employee of the
state, city, county, or city and county that owns, operates, or
contracts for the operation of the facility or jail in which the
inmate is incarcerated.
8
(b) The provisions of paragraph (a) of this
subsection (3) do not apply to an inmate who is working for
a private employer under a contract of hire wherein the
private employer is required to maintain workers'
compensation insurance for its employees pursuant to articles
40 to 47 of this title. Such inmate shall be an employee of
such private employer for purposes of articles 40 to 47 of this
title.
(c) The provisions of paragraph (a) of this
subsection (3) do not apply to an inmate working for a joint
venture established pursuant to the provisions of section 1724-119 or 17-24-121, C.R.S. Such inmate shall be an
employee of such joint venture for purposes of articles 40 to
47 of this title.
(d) The provisions of paragraph (a) of this
subsection (3) do not apply to an inmate working for a
private person or entity pursuant to the provisions of section
17-24-122, C.R.S. Such inmate shall be an employee of such
private person or entity for purposes of articles 40 to 47 of
this title.
(4) "Employee" excludes any person who
volunteers time or services for a ski area operator, as defined
in section 33-44-103 (7), C.R.S., or for a ski area sponsored
program or activity, notwithstanding the fact that such person
may receive noncash remuneration for such person or such
person's designee in conjunction with such person's status as
a volunteer. No contract of hire, express or implied, is
created between any volunteer pursuant to this section and a
ski area operator. Notice shall be given to such volunteer in
writing that the volunteering of time or services under this
subsection (4) does not constitute employment for purposes
of the "Workers' Compensation Act of Colorado" and that
such person is not entitled to benefits pursuant to said act.
(5) "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.
(6) 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.
(7) Persons who provide host home services as part
of residential services and supports, as described in section
27-10.5-104 (1) (f), C.R.S., for an eligible person, as defined
in section 25.5-6-403 (2) (a), C.R.S., pursuant to the "Homeand Community-based Services for Persons with
Developmental Disabilities Act", part 4 of article 6 of title
25.5, C.R.S., and pursuant to a contract with a community
centered board designated pursuant to section 27-10.5-105,
C.R.S., or a contract with a service agency as defined in
section 27-10.5-102 (28), C.R.S., shall not be considered
employees of the community centered board or the service
agency.
(8) For the purposes of articles 40 to 47 of this title,
"employee" excludes any person who performs services for
more than one employer at a race meet as defined by section
12-60-102 (22), C.R.S., or at a horse track as defined by
section 12-60-102 (11).
(9) Notwithstanding any other provision of this
section, "employee" includes a person who participates in a
property tax work-off program established pursuant to article
3.7 of title 39, C.R.S.
8-40-302. Scope of term "employer".
(1) Repealed.
(2) Articles 40 to 47 of this title are 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".
(3) Articles 40 to 47 of this title are not 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 said articles 40 to 47, if such
employments are casual and are not within the course of the
trade, business, or profession of said employers, if the
amounts expended for wages paid by the employers to casual
persons employed to do 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 do not exceed the sum of two thousand dollars for
any calendar year, and if the amounts expended for wages by
the employer of casual farm and ranch labor do not exceed
the sum of two thousand dollars for any calendar year.
(4) Articles 40 to 47 of this title are 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 said articles 40 to 47 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. For
purposes of this subsection (4), "full-time" means work
performed for forty hours or more a week or on five days or
more a week.
(5) (a) Any employer excluded under this section
may elect to accept the provisions of articles 40 to 47 of this
title by purchasing and keeping in force a policy of workers'
compensation insurance covering said employees.
(b) Notwithstanding any other provision of articles
40 to 47 of this title, 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.
(6) Articles 40 to 47 of this title are intended to
apply to officers of agricultural corporations; but effective
July 1, 1977, any such agricultural corporation may elect to
reject the provisions of articles 40 to 47 of this title for any or
all of said officers.
9
(7) (a) Any employer, as defined in section 8-40203, 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 for the
purposes of workers' compensation and liability insurance
pursuant to articles 40 to 47 of this title.
(b) If the student placed in an on-the-job training
program does not receive any pay or remuneration from the
employer, the educational institution sponsoring the student
in the cooperative education or student internship program
shall insure the student through the institution's workers'
compensation and liability insurance or enter into
negotiations with the employer for the purpose of arriving at
a reasonable level of compensation to the employer for the
employer's expense of providing workers' compensation and
liability insurance while such student is participating in onthe-job training with said employer. This paragraph (b) shall
not apply to a student teacher participating in a program
authorized pursuant to article 62 of title 22, C.R.S.
(c) As used in this subsection (7), "cooperative
education or student internship program" means a program
sponsored by an educational institution in which a student is
taught through a coordinated combination of specialized inthe-school instruction provided through an educational
institution by qualified teachers and on-the-job training
provided through a local business, agency, or organization or
any governmental agency in cooperation with the educational
institution.
ARTICLE 41
Coverage and Liability
PART 1
ABROGATION OF DEFENSE
8-41-101. Assumption of risk - negligence of
employee or fellow servant. (1) In 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, in which recovery is sought
upon the ground of want of ordinary care of the employer, or
of the officer, agent, or servant of the employer, it shall not
be a defense:
(a) That the employee, either expressly or
impliedly, assumed the risk of the hazard complained of as
due to the employer's negligence;
(b) That the injury or death was caused, in whole or
in part, by the want of ordinary care of a fellow servant;
(c) That the injury or death was caused, in whole or
in part, by the want of ordinary care of the injured employee
where such want of care was not willful.
8-41-102. Liability of employer complying. An
employer who has complied with the provisions of articles 40
to 47 of this title, including the provisions relating to
insurance, shall not be subject to the provisions of section 841-101; 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.
8-41-103. Availability of common-law defenses. If
an employer has complied with the provisions of articles 40
to 47 of this title, including the provisions thereof relating to
insurance, and an action is brought against such employer or
such employer's insurance carrier to recover damages for
personal injuries or death sustained by an employee who has
elected not to come under said articles, such employer and
such employer's insurance carrier shall have all the defenses
to the action which they would have had if said articles and
part 2 of article 2 of this title had not been enacted.
8-41-104. Acceptance as surrender of other
remedies. An election under the provisions of section 8-40302 (5) and in compliance with the provisions of articles 40
to 47 of this title, including the provisions for insurance, shall
be construed to be a surrender by the employer, such
employer's insurance carrier, and the employee of their rights
to any method, form, or amount of compensation or
determination thereof or to any cause of action, action at law,
suit in equity, or statutory or common-law right, remedy, or
proceeding for or on account of such personal injuries or
death of such employee other than as provided in said
articles, and shall be an acceptance of all the provisions of
said articles, and shall bind the employee personally, and, for
compensation for such employee's death, the employee's
personal representatives, surviving spouse, and next of kin, as
well as the employer, such employer's insurance carrier, and
those conducting their business during bankruptcy or
insolvency.
PART 2
COVERAGE
8-41-201. Not
applicable
to
common
carriers. The provisions of articles 40 to 47 of this title shall
not apply to common carriers by railroad but shall apply to all
other employers as defined in said articles engaged in
intrastate or interstate commerce, or both, except those
employers, other than the Colorado division of civil air
patrol, for whom a rule of liability is established by the laws
of the United States.
8-41-202. Rejection of coverage by corporate
officers and others. (1) Notwithstanding any provisions of
articles 40 to 47 of this title to the contrary, a corporate
officer of a corporation or a member of a limited liability
company may elect to reject the provisions of articles 40 to
47 of this title. 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.
Such notice shall become effective the day following receipt
of said notice by the insurer or the division.
10
(2) A corporate officer's or member's election to
reject the provisions of articles 40 to 47 of this title shall
continue in effect so long as the corporation's or company's
insurance policy is in effect or until said officer or member,
by written notice to the insurer, revokes the election to reject
said provisions.
(3) Nothing in this section shall be construed to
limit the responsibility of corporations or limited liability
companies to provide coverage for their employees as
required under articles 40 to 47 of this title. An election to
reject coverage pursuant to this section may not be made a
condition of employment.
(4) For the purposes of this section:
(a) "Corporate officer" means the chairperson of the
board, president, vice-president, secretary, or treasurer who is
an owner of at least ten percent of the stock of the corporation
and who controls, supervises, or manages the business affairs
of the corporation, as attested to by the secretary of the
corporation at the time of the election.
(b) "Member" means an owner of at least ten
percent of the membership interest of the limited liability
company at all times and who controls, supervises, or
manages the business affairs of the limited liability company.
8-41-203. Negligence of stranger - remedies subrogation - actions - compromise.
(1) (a) If any
employee entitled to compensation under articles 40 to 47 of
this title is injured or killed by the negligence or wrong of
another not in the same employ, such injured employee or, in
case of death, such employee's dependents, may take
compensation under said articles and may also pursue a
remedy against the other person to recover any damages in
excess of the compensation available under said articles.
(b) The payment of compensation pursuant to
articles 40 to 47 of this title shall operate as and be an
assignment of the cause of action against such other person to
Pinnacol Assurance, the medical disaster insurance fund, the
major medical insurance fund, or the subsequent injury fund,
if compensation is payable from said funds, and otherwise to
the person, association, corporation, or insurance carrier
liable for the payment of such compensation. Said insurance
carrier shall not be entitled to recover any sum in excess of
the amount of compensation for which said carrier is liable
under said articles to the injured employee, but to that extent
said carrier shall be subrogated to the rights of the injured
employee against said third party causing the injury. If the
injured employee proceeds against such other person, then
Pinnacol Assurance, the medical disaster insurance fund, the
major medical insurance fund, the subsequent injury fund, or
such other person, association, corporation, or insurance
carrier, as the case may be, shall contribute only the
deficiency, if any, between the amount of the recovery
against such other person actually collected and the
compensation provided by said articles in such case.
(c) The right of subrogation provided by this section
shall apply to and include all compensation and all medical,
hospital, dental, funeral, and other benefits and expenses to
which the employee or, if the employee is deceased, the
employee's dependents are entitled under the provisions of
said articles, including parts 2 and 3 of article 46 of this title,
or for which the employee's employer or insurance carrier is
liable or has assumed liability.
(d) The assigned and subrogated cause of action
provided by this section, together with the right to recover
future benefits:
(I) Shall extend to all moneys collected from the
third party causing the injury for all:
(A) Economic damages; and
(B) Physical impairment and disfigurement
damages; except that, to the extent the trier of fact makes a
separate award for disfigurement damages, the right of the
beneficiary of the assigned interest to recover from such
disfigurement damages shall be limited to the amount the
beneficiary of the assigned interest paid, or is obligated to
pay, in disfigurement damages pursuant to articles 40 to 47 of
this title; and
(II) Shall not extend to moneys collected for
noneconomic damages awarded for pain and suffering,
inconvenience, emotional stress, or impairment of quality of
life.
(e) (I) Except
as
otherwise
provided
in
subparagraph (II) of this paragraph (e), the amount of the
assigned and subrogated cause of action shall be reduced by
an amount equal to the reasonable attorney fees and costs
paid by the injured employee or, if the employee is deceased,
the employee's dependents, in pursuing the recovery of the
assigned and subrogated cause of action and the collection of
such recovery.
(II) If the beneficiary of the assigned and
subrogated cause of action elects to independently pursue
such assigned cause of action, any recovery by such
beneficiary shall not be reduced by any attorney fees and
costs incurred by the employee. If the beneficiary of the
assigned and subrogated cause of action elects to intervene
within ninety days after receiving the notice required by
paragraph (c) of subsection (4) of this section, any recovery
by such beneficiary shall not be reduced by any attorney fees
and costs incurred by the employee. If such beneficiary
elects to intervene after the expiration of such ninety-day
period, the court may reduce the beneficiary's recovery by a
reasonable amount for any attorney fees and costs incurred by
the employee after the end of such ninety-day period and
before receiving notice that the beneficiary intends to
intervene.
(f) Nothing in this section shall be construed as
limiting in any way the right of the injured employee to take
compensation under articles 40 to 47 of this title and also
proceed against the third party causing the injury to recover
any damages in excess of the subrogation rights described in
this section.
(2) Such a cause of action assigned to Pinnacol
Assurance may be prosecuted or compromised by it. A
compromise of any such cause of action by the employee or,
if the employee is deceased, the employee's dependents at an
amount less than the compensation provided for by articles
40 to 47 of this title shall be made only with the written
approval of the chief executive officer of Pinnacol Assurance,
if the deficiency of compensation would be payable from the
Pinnacol Assurance fund, and otherwise with the written
approval of the person, association, corporation, or insurance
11
carrier liable to pay the same. Such written approval shall not
be unreasonably withheld. Failure to obtain such written
approval shall entitle the party responsible for paying
workers' compensation benefits to be reimbursed for all
benefits paid from, and offset any future liability under
articles 40 to 47 of this title against, the entire proceeds
recovered without any credit for reasonable attorney fees and
costs as provided in paragraph (e) of subsection (1) of this
section. If such approval is not obtained, the employee or, if
the employee is deceased, the employee's 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.
(3) If an employee is killed by the negligence or
wrong of another not in the same employ and the dependents
of such employee who are entitled to compensation under
articles 40 to 47 of this title are minors, the decision to pursue
or compromise any claim against a third party shall be made
by such minor or shall be made on the minor's behalf by a
parent of such minor or by the minor's next friend or duly
appointed guardian, as the director of the division of workers'
compensation may determine by rule in each case. Once
such decision is made, the person who made the decision
shall also bear the responsibility to provide all notices
required by this section.
(4) (a) (I) If the employee or, if the employee is deceased,
the employee's dependents make a demand upon or a request
of a person or entity not in the same employ as the employee
to seek recovery for damages arising from actions of such
other person or entity, the employee or dependents shall also
give written notice, within ten days, to the division of
workers' compensation and to all parties who may be
responsible for paying benefits to the employee or dependents
under articles 40 to 47 of this title.
(II) If the party responsible for paying workers'
compensation benefits under articles 40 to 47 of this title to
the employee or, if the employee is deceased, the employee's
dependents, makes a demand upon or a request of a person or
entity not in the same employ as the employee to seek
recovery for damages arising from actions of the other person
or entity, the party responsible for paying the workers'
compensation benefits shall also give written notice, within
ten days, to the division of workers' compensation and to the
employee or, if the employee is deceased, to the employee's
dependents.
(III) The notice requirements of this paragraph (a)
shall not apply to demands or requests seeking the recovery
of medical payments only, and not seeking the recovery of
any other type of damage or loss.
(b) The notice required by this subsection (4) shall
contain the following:
(I) A description of the claim;
(II) The names and addresses of any and all other
persons believed to be negligent;
(III) The name and address of any attorney
representing the employee or dependents;
(IV) The name and address of any attorney
representing other persons believed to be negligent; and
(V) The name, address, and telephone number of
the insurance company or third-party administrator.
(c) (I) Except as provided in subparagraph (II) of
this paragraph (c), at least twenty days before commencing a
lawsuit or arbitration proceeding to recover damages arising
from actions of another person or entity, the party initiating
such lawsuit or arbitration shall give written notice to all
parties who may be responsible for paying benefits to the
employee or dependents under articles 40 to 47 of this title
and to the employee or, if the employee is deceased, the
employee's dependents. Such notice shall contain all of the
information set out in paragraph (b) of this subsection (4) and
shall be accompanied by a draft copy of the complaint.
(II) If any applicable statutory limitation period
would expire before such twenty days have passed, the party
initiating such lawsuit or arbitration may file or serve the
complaint, or otherwise act to toll the running of such
limitation period, before such twenty days have passed. The
party initiating the lawsuit or arbitration shall provide the
notice required by subparagraph (I) of this paragraph (c)
within twenty days after commencing such action.
(d) If the employee or dependents fail to provide the
written notice required pursuant to subparagraph (I) of
paragraph (a) of this subsection (4):
(I) The party responsible for paying workers'
compensation benefits shall be entitled to reimbursement
from all moneys collected from the third party for all
economic damages and for all physical impairment and
disfigurement damages, without any credit for reasonable
attorney fees as provided in paragraph (e) of subsection (1) of
this section. If the trier of fact makes a separate award for
disfigurement damages, reimbursement from such
disfigurement damage award shall be limited to the amount
the party paying workers' compensation benefits paid, or is
obligated to pay, in disfigurement damages pursuant to
articles 40 to 47 of this title. Such rights shall not extend to
moneys collected for noneconomic damages awarded for pain
and suffering, inconvenience, emotional stress, or impairment
of quality of life.
(II) 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.
(e) If the party responsible for paying workers'
compensation benefits under articles 40 to 47 of this title fails
to provide the written notice required pursuant to
subparagraph (II) of paragraph (a) of this subsection (4), the
amount of the claim shall be reduced by fifty dollars for each
day such notice was not given to the employee or, if the
employee is deceased, the employee's dependents, in an
amount not to exceed twenty percent of the amount of the
total assigned interest at the time such notice should have
been given. The failure to provide such notice shall be a
reassignment of a portion of the claim to the employee or, if
the employee is deceased, the employee's dependents, in an
amount equal to the penalty.
12
8-41-204. Injury outside of state - benefits in
accordance with state law. If an employee who has been
hired or is regularly employed in this state receives personal
injuries in an accident or an occupational disease arising out
of and in the course of such employment outside of this state,
the employee, or such employee's dependents in case of
death, shall be entitled to compensation according to the law
of this state. This provision shall apply only to those injuries
received by the employee within six months after leaving this
state, unless, prior to the expiration of such six-month period,
the employer has filed with the division notice that the
employer has elected to extend such coverage for a greater
period of time.
8-41-205. Waiver of compensation by employee approval required - exception. No waiver of compensation
or medical benefits by an employee for aggravation of any
preexisting condition or disease shall be allowed under
articles 40 to 47 of this title. This section, however, shall not
invalidate any such waiver so filed and approved prior to
March 1, 1977, under the provisions of the "Colorado
Occupational Disease Disability Act", which was repealed
effective September 1, 1975.
8-41-206. Disability beginning five years after
injury. Any disability beginning more than five years after
the date of injury shall be conclusively presumed not to be
due to the injury, except in cases of disability or death
resulting from exposure to radioactive materials, substances,
or machines or to fissionable materials, or any type of
malignancy caused thereby, or from poisoning by uranium or
its compounds, or from asbestosis, silicosis, or anthracosis.
8-41-207. Death after two years. In case death
occurs more than two years after the date of receiving any
injury, such death shall be prima facie presumed not to be due
to such injury; such presumption shall not apply in cases of
silicosis, asbestosis, anthracosis, or disability or death
resulting from exposure to radioactive materials, substances,
or machines or to fissionable materials, or any type of
malignancy caused thereby, or from poisoning by uranium or
its compounds. In all other cases, such presumption may be
rebutted by competent evidence.
8-41-208. Coverage for job-related exposure to
or contraction of hepatitis C. (1) The exposure to or
contraction of hepatitis C by a firefighter, emergency services
provider, or peace officer, as described in section 16-2.5-101,
C.R.S., shall be presumed to be within the course and scope
of employment if the following conditions are satisfied:
(a) A baseline test shall be provided by the
employer, or if insured, by the insurer, to be performed
within five days after the employee reports the on-the-job
exposure. The employee must report the exposure within two
days after the employee knew or reasonably should have
known of the exposure;
(b) The baseline test establishes that the employee
was not infected with hepatitis C at the time of the on-the-job
exposure;
(c) The employee complies with reasonable and
necessary medical procedures set forth in section 8-42-101
(1) (c);
(d) The employee is determined to have hepatitis C
within twenty-four months after the on-the-job exposure to
the known or possible source.
(2) The exposure to or contraction of hepatitis C by a
firefighter, emergency services provider, or peace officer, as
described in section 16-2.5-101, C.R.S., shall not be deemed
to be within the course and scope of employment if an
employer or insurer shows by a preponderance of the
evidence that such exposure or contraction did not occur on
the job.
8-41-209. Coverage for occupational diseases
contracted by firefighters - repeal. (1) Death, disability, or
impairment of health of a firefighter of any political
subdivision who has completed five or more years of
employment as a firefighter, caused by cancer of the brain,
skin, digestive system, hematological system, or
genitourinary system and resulting from his or her
employment as a firefighter, shall be considered an
occupational disease.
(2) Any condition or impairment of health described
in subsection (1) of this section:
(a) Shall be presumed to result from a firefighter's
employment if, at the time of becoming a firefighter or
thereafter, the firefighter underwent a physical examination
that failed to reveal substantial evidence of such condition or
impairment of health that preexisted his or her employment
as a firefighter; and
(b) Shall not be deemed to result from the
firefighter's employment if the firefighter's employer or
insurer shows by a preponderance of the medical evidence
that such condition or impairment did not occur on the job.
(3) (a) On or before March 1, 2009, the division,
within existing resources and in conjunction with insurance
carriers providing workers' compensation insurance in
Colorado and with employers, if self-insured, shall prepare
and deliver a report to the business affairs and labor
committee of the house of representatives and the business,
labor, and technology committee of the senate, or any
successor committees, regarding the number of claims
allowed pursuant to this section and the costs associated with
those claims.
(b) This subsection (3) is repealed, effective March
1, 2009.
8-41-210. Coverage for property tax work-off
program participants. Notwithstanding any provision of
law to the contrary, a governmental entity or private nonprofit
or for-profit entity that has a contract with a governmental
entity that is self-insured under articles 40 to 47 of this title
may purchase workers' compensation insurance from any
insurer authorized to transact the business of workers'
compensation insurance in this state for the express purpose
of covering participants in the property tax work-off program
established pursuant to article 3.7 of title 39, C.R.S.
13
PART 3
LIABILITY
8-41-301. Conditions of recovery. (1) The right to
the compensation provided for in articles 40 to 47 of this title,
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:
(a) Where, at the time of the injury, both employer
and employee are subject to the provisions of said articles and
where the employer has complied with the provisions thereof
regarding insurance;
(b) Where, at the time of the injury, the employee is
performing service arising out of and in the course of the
employee's employment;
(c) 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.
(2) (a) A claim of mental impairment must be
proven by evidence supported by the testimony of a licensed
physician or psychologist. For purposes of this subsection
(2), "mental impairment" means a recognized, permanent
disability arising from an accidental injury arising out of and
in the course of employment when the accidental injury
involves no physical injury and consists of a psychologically
traumatic event that is generally outside of a worker's usual
experience and would evoke significant symptoms of distress
in a worker in similar circumstances. A mental impairment
shall not be considered to arise out of and in the course of
employment if it results from a disciplinary action, work
evaluation, job transfer, lay-off, demotion, promotion,
termination, retirement, or similar action taken in good faith
by the employer. The mental impairment that is the basis of
the claim shall have arisen primarily from the claimant's then
occupation and place of employment in order to be
compensable.
(a.5) For purposes of this subsection (2), "mental
impairment" also includes a disability arising from an
accidental physical injury that leads to a recognized
permanent psychological disability.
(b) Notwithstanding any other provision of articles
40 to 47 of this title, where a claim is by reason of mental
impairment, the claimant shall be limited to twelve weeks of
medical impairment benefits, which shall be in an amount not
less than one hundred fifty dollars per week and not more
than fifty percent of the state average weekly wage, inclusive
of any temporary disability benefits; except that this
limitation shall not apply to any victim of a crime of violence,
without regard to the intent of the perpetrator of the crime,
nor to the victim of a physical injury or occupational disease
that causes neurological brain damage; and nothing in this
section shall limit the determination of the percentage of
impairment pursuant to section 8-42-107 (8) for the purposes
of establishing the applicable cap on benefits pursuant to
section 8-42-107.5.
(c) The claim of mental impairment cannot be
based, in whole or in part, upon facts and circumstances that
are common to all fields of employment.
(d) The mental impairment which is the basis of the
claim must be, in and of itself, 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.
8-41-302. Scope of terms - "accident" - "injury"
- "occupational disease". (1) "Accident", "injury", and
"occupational disease" shall not be construed to include
disability or death caused by or resulting from mental or
emotional stress unless it is shown by competent evidence
that such mental or emotional stress is proximately caused
solely by hazards to which the worker would not have been
equally exposed outside the employment.
(2) "Accident", "injury", and "occupational disease"
shall not be construed to include disability or death caused by
heart attack unless it is shown by competent evidence that
such heart attack was proximately caused by an unusual
exertion arising out of and within the course of the
employment.
8-41-303. Loaning
employer
liable
for
compensation. Where an employer, who has accepted the
provisions of articles 40 to 47 of this title and has complied
therewith, loans the service of any of the employer's
employees who have accepted the provisions of said articles
to any third person, the employer shall be liable for any
compensation thereafter for any injuries or death of said
employee as provided in said articles, unless it appears from
the evidence in said case that said loaning constitutes a new
contract of hire, express or implied, between the employee
whose services were loaned and the person to whom the
employee was loaned.
8-41-304. Last
employer
liable
exception. (1) Where compensation is payable for an
occupational disease, the employer in whose employment the
employee was last injuriously exposed to the hazards of such
disease and suffered a substantial permanent aggravation
thereof and the insurance carrier, if any, on the risk when
such employee was last so exposed under such employer
shall alone be liable therefor, without right to contribution
from any prior employer or insurance carrier. In the case of
silicosis, asbestosis, or anthracosis, the only employer and
insurance carrier liable shall be the last employer in whose
employment the employee was last exposed to harmful
quantities of silicon dioxide (SiO2) dust, asbestos dust, or
coal dust on each of at least sixty days or more and the
insurance carrier, if any, on the risk when the employee was
last so exposed under such employer.
(2) In any case where an employee of an employer
becomes disabled from silicosis, asbestosis, anthracosis, or
poisoning or disease caused by exposure to radioactive
materials, substances, or machines or to fissionable materials,
or any type of malignancy caused thereby, or in the event
death results from silicosis, asbestosis, anthracosis, or
poisoning or disease caused by exposure to radioactive
materials, substances, or machines or to fissionable materials,
or any type of malignancy caused thereby, and, if such
employee has been injuriously exposed to such diseases while
in the employ of another employer during the employee's
lifetime, the last employer or that employer's insurance
carrier, if any, shall be liable for compensation and medical
14
benefits as provided by articles 40 to 47 of this title, including
funeral expenses and death benefits.
PART 4
CONTRACTORS AND LESSEES
8-41-401. Lessor
contractor-out
deemed
employer - liability - recovery. (1) (a) Any person,
company, or corporation operating or engaged in or
conducting any business by leasing or contracting out any
part or all of the work thereof to any lessee, sublessee,
contractor, or subcontractor, irrespective of the number of
employees engaged in such work, shall be construed to be an
employer as defined in articles 40 to 47 of this title and shall
be liable as provided in said articles to pay compensation for
injury or death resulting therefrom to said lessees, sublessees,
contractors, and subcontractors and their employees or
employees' dependents, except as otherwise provided in
subsection (3) of this section.
(a.5) The general assembly hereby finds and
determines that the decision of the Colorado court of appeals
in the case of Newsom v. Frank M. Hall & Co., No.
02CA1375 (February 26, 2004), in which the court held that
an independent contractor may be an entity other than a
natural person, did not accurately reflect the intent of the
general assembly when it passed Senate Bill 93-132 and
Senate Bill 95-072. The general assembly hereby declares
that the term "individual", as used in this section and in
section 8-40-202, means a natural person.
(b) The employer, before commencing said work,
shall insure and keep insured against all liability as provided
in said articles, and such lessee, sublessee, contractor, or
subcontractor, as well as any employee thereof, shall be
deemed employees as defined in said articles. The employer
shall be entitled to recover the cost of such insurance from
said lessee, sublessee, contractor, or subcontractor and may
withhold and deduct the same from the contract price or any
royalties or other money due, owing, or to become due said
lessee, sublessee, contractor, or subcontractor.
(2) If said lessee, sublessee, contractor, or
subcontractor is also an employer in the doing of such work
and, before commencing such work, insures and keeps
insured its liability for compensation as provided in articles
40 to 47 of this title, neither said lessee, sublessee, contractor,
or subcontractor, its employees, or its insurer shall have any
right of contribution or action of any kind, including actions
under section 8-41-203, against the person, company, or
corporation operating or engaged in or conducting any
business by leasing or contracting out any part or all of the
work thereof, or against its employees, servants, or agents.
(3) Notwithstanding any provision of this section or
section 8-41-402 to the contrary, any individual who is
excluded from the definition of employee pursuant to section
8-40-202 (2), or a working general partner or sole proprietor
who is not covered under a policy of workers' compensation
insurance, or a corporate officer or member of a limited
liability company who executes and files an election to reject
coverage under section 8-41-202 (1) 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 section 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.
(4) (a) Notwithstanding any provision of this
section to the contrary, any person, company, or corporation
who contracts with a landowner or lessee of a farm or ranch
to perform a specified farming or ranching operation shall,
prior to entering into such contract, provide for and maintain,
for the period of such contract, workers' compensation
coverage pursuant to articles 40 to 47 of this title covering all
the employees and laborers to be utilized under such contract.
Proof of such coverage on forms or certificates issued by the
insurer shall be provided to the person, company, or
corporation contracting for the labor prior to performing such
contract.
(b) Any person, company, or corporation
contracting with a landowner or lessee of a farm or ranch to
provide a specified farming or ranching operation who fails
to provide coverage pursuant to subsection (1) of this section
or who fails to maintain such coverage for the term of the
contract is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by imprisonment in the county jail
for not more than sixty days, or by a fine of not more than
five hundred dollars, or by both such fine and imprisonment.
(c) Notwithstanding any provision of this section to
the contrary, no person, company, or corporation contracting
with a landowner or lessee of a farm or ranch operation to
perform a specified farming or ranching operation nor any
employee of such person, company, or corporation required
to be covered by workers' compensation pursuant to this
subsection (4) shall have any right of contribution from, or
any action of any kind, including actions under section 8-41203, against, the person, company, or corporation contracting
to have such agricultural labor performed.
(d) (I) If any person, company, or corporation
contracting to provide labor to perform specified farming or
ranching operations and required to provide workers'
compensation coverage pursuant to articles 40 to 47 of this
title fails to provide such coverage and the person, company,
or corporation for whom the labor is provided incurs any
liability thereby, the person, company, or corporation
providing the labor shall be subject to a cause of action for
said liability and for reasonable attorney fees.
(II) If the person, company, or corporation for
whom the labor for the performance of a specified farming or
ranching operation is provided is sued by the injured
employee, said person, company, or corporation may join the
person, company, or corporation providing the labor as a
third-party defendant in lieu of filing an independent action.
(5) The provisions of this section shall not apply to
licensed real estate brokers and licensed real estate sales
agents, as regulated in article 61 of title 12, C.R.S., who are
excluded from the definition of employee pursuant to section
8-40-301 (2).
15
(6) Notwithstanding any provision of this section to
the contrary, any person, company, or corporation operating a
commercial vehicle as defined in section 42-4-235 (1) (a),
C.R.S., who holds oneself or itself out as an independent
contractor only to perform for-hire transportation, including
loading and unloading, and who contracts to perform a
specific transportation job, transportation task, or
transportation delivery for another person, company, or
corporation is not entering into an employee and employer
relationship for purposes of workers' compensation coverage
pursuant to articles 40 to 47 of this title. Nothing in this
subsection (6) shall be construed to prohibit a determination
that an individual is excluded from the definition of employee
pursuant to section 8-40-202 (2) if such individual is
operating a commercial vehicle as defined in section 42-4235 (1) (a), C.R.S.
(7) This section shall not apply to any person
excluded from the definition of "employee" pursuant to
section 8-40-301 (5) or (7).
8-41-402. Repairs to real property - exception for
liability of occupant of residential real property. (1) Every
person, company, or corporation owning any real property or
improvements thereon and contracting 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
articles 40 to 47 of this title. Every such contractor,
subcontractor, or person, as well as such contractor's,
subcontractor's, and person's employees, shall be deemed to
be an employee, and such employer shall be liable as
provided in said articles to pay compensation for injury or
death resulting therefrom to said contractor, subcontractor, or
person and said employees or employees' dependents and,
before commencing said work, shall insure and keep insured
all liability as provided in said articles. Such employer shall
be entitled to recover the cost of such insurance from said
contractor, subcontractor, or person and may withhold and
deduct the same from the contract price or any royalties or
other money due, owing, or to become due to said contractor,
subcontractor, or person. Articles 40 to 47 of this title shall
not apply to the owner or occupant, or both, of residential real
property which meets the definition of a "qualified residence"
under section 163 (h) (4) (A) of the federal "Internal Revenue
Code of 1986", as amended, who contracts out any work
done to the property, unless the person performing the work
is otherwise an employee of the owner or occupant, or both,
of the property.
(2) If said contractor, subcontractor, or person doing
or undertaking to do any work for an owner of property, as
provided in subsection (1) of this section, is also an employer
in the doing of such work and, before commencing such
work, insures and keeps insured all liability for compensation
as provided in articles 40 to 47 of this title, neither said
contractor, subcontractor, or person nor any employees or
insurers thereof shall have any right of contribution or action
of any kind, including actions under section 8-41-203, against
the person, company, or corporation owning real property and
improvements thereon which contracts out work done on said
property, or against its employees, servants, or agents.
(3) (Deleted by amendment, L. 91, p. 1295, § 9,
effective July 1, 1991.)
8-41-403. Exemption of certain lessors of real
property. (1) The provisions of this part 4 shall not apply to
any lessor or sublessor of real property who rents or leases
real property to any lessee or sublessee for the purpose of
conducting the business of such lessee or sublessee, whether
as a franchise holder, independent agent, or consignee or in
any other separate capacity and whether or not such person is
an employer, as defined in section 8-40-203, but in no event
where such lessee or sublessee is an employee, as defined in
section 8-40-202.
(2) No such lessee or sublessee, or any employee or
insurer thereof, shall have any right of contribution from or
action against such lessor or sublessor under articles 40 to 47
of this title.
(3) The provisions of this part 4 shall not apply to
any lessor or sublessor of real property who leases or rents
real property to any lessee or sublessee for the purpose of
conducting any agricultural production business of such
lessee or sublessee, and no such lessee or sublessee, or any
employee or insurer thereof, shall have any right of
contribution from or action against such lessor or sublessor
under articles 40 to 47 of this title.
8-41-404. Construction work - proof of coverage
required - violation - penalty - definitions. (1) (a) Except
as otherwise provided in subsection (4) of this section, every
person performing construction work on a construction site
shall be covered by workers' compensation insurance, and a
person who contracts for the performance of construction
work on a construction site shall either provide, pursuant to
articles 40 to 47 of this title, workers' compensation coverage
for, or require proof of workers' compensation coverage from,
every person with whom he or she has a direct contract to
perform construction work on the construction site.
(b) A site owner, general contractor, or other person
who is not a direct party to a contract for construction work
shall not be held liable under subsection (3) of this section
solely as a result of the person's ownership interest or general
supervisory role in a construction project.
(c) Any person who contracts for the performance
of construction work on a construction site and who exercises
due diligence by either providing workers' compensation
coverage as required by this section or requiring proof of
workers' compensation coverage as required by this section
from every person with whom he or she has a direct contract
to perform construction work on the construction site shall
not be liable under subsection (3) of this section.
(2) If the parties to a contract that includes
construction work agree that part of the contract price shall be
withheld to cover workers' compensation premiums for
coverage required under this section, the premiums shall be
calculated based only on that portion of the contract price that
represents the labor portion of the contract.
(3) A violation of subsection (1) of this section is
punishable by an administrative fine imposed pursuant to
section 8-43-409 (1) (b). The division shall transmit revenues
collected through the imposition of fines pursuant to this
section to the state treasurer, who shall credit them to the
workers' compensation cash fund created in section 8-44-112
16
(7). Such revenues shall be appropriated to the division for
the purpose of enforcing this section.
(4) (a) This section shall not apply to:
(I) An owner or occupant, or both, of residential
real property that meets the definition of a "qualified
residence" under section 163 (h) (4) (A) of the federal
"Internal Revenue Code of 1986", as amended, who contracts
out any work done to the real property, unless the person
performing the work is otherwise an employee of the owner
or occupant, or both, of the real property;
(II) An owner or occupant of real property who
hires a person or persons specifically to do routine repair and
maintenance on the real property of such owner or occupant;
(III) An independent contractor, who is a natural
person, who has formed a corporation pursuant to section 7102-103, C.R.S., or a limited liability company pursuant to
section 7-80-203, C.R.S., and who has rejected workers'
compensation coverage pursuant to section 8-41-202;
(IV) Corporate officers and members of a limited
liability company who have rejected workers' compensation
coverage pursuant to section 8-41-202;
(V) A partner in a partnership who has filed a
certificate of limited partnership pursuant to section 7-62201, C.R.S., a partnership registration statement pursuant to
section 7-60-144 or 7-64-1002, C.R.S., or a statement of trade
name pursuant to section 7-71-103, C.R.S., and has filed with
the division a form, approved by the director, rejecting
workers' compensation; or
(VI) A sole proprietor who has filed a statement of
trade name pursuant to section 7-71-103, C.R.S., and has
filed with the division a form, approved by the director,
rejecting workers' compensation.
(b) Nothing in this section shall be construed to
limit the responsibility of corporations, limited liability
companies, partnerships, or sole proprietorships to provide
coverage for their employees as required under articles 40 to
47 of this title.
(5) As used in this section:
(a) "Construction site" means a location where a
structure that is attached or will be attached to real property is
constructed, altered, or remodeled.
(b) "Construction work" includes all or any part of
the construction, alteration, or remodeling of a structure.
"Construction work" does not include surveying, engineering,
examination, or inspection of a construction site or the
delivery of materials to a construction site.
(c) "Proof of workers' compensation coverage"
includes a certificate or other written confirmation, issued by
the insurer or authorized agent of the insurer, of the existence
of workers' compensation coverage in force during the period
of the performance of construction work on the construction
site.
PART 5
DEPENDENCY
8-41-501. Persons
presumed
wholly
dependent. (1) For the purposes of articles 40 to 47 of this
title, the following described persons shall be presumed to be
wholly dependent (however, such presumption may be
rebutted by competent evidence):
(a) Widow or widower, unless it is shown that she
or he was voluntarily separated and living apart from the
spouse at the time of the injury or death or was not dependent
in whole or in part on the deceased for support;
(a.5) A person who is designated in a designated
beneficiary agreement for purposes of receiving workers'
compensation benefits in accordance with the provisions of
article 22 of title 15, C.R.S., unless it is shown that the
designated beneficiary was voluntarily separated and living
apart from the other designated beneficiary at the time of the
injury or death or was not dependent in whole or in part on
the deceased for support;
(b) Minor children of the deceased under the age of
eighteen years, including posthumous or legally adopted
children;
(c) Minor children of the deceased who are eighteen
years or over and under the age of twenty-one years if it is
shown that:
(I) At the time of the decedent's death they were
actually dependent upon the deceased for support; and
(II) Either at the time of the decedent's death or at
the time they attained the age of eighteen years they were
engaged in courses of study as full-time students at any
accredited school. The period of presumed dependency of
such persons shall continue until they attain the age of
twenty-one years or until they cease to be engaged in courses
of study as full-time students at an accredited school,
whichever occurs first.
8-41-502. Other
dependents
temporary
dependency. Except as otherwise provided in section 8-41501 (1) (c), a child eighteen years of age or over and a
mother, father, grandmother, grandfather, sister, brother, or
grandchild who was wholly or partially supported by the
deceased employee at the time of death and for a reasonable
period of time immediately prior thereto is considered an
actual dependent.
To be entitled to compensation, such
dependents, except as provided in section 8-41-501 (1) (c),
must prove that they were incapable of or actually disabled
from earning their own living. If said incapacity or disability
is temporary only, compensation shall be paid only during the
period of such temporary incapacity or disability.
8-41-503. Dependency and extent determined how. (1) Dependents and the extent of their dependency
shall be determined as of the date of the injury to the injured
employee, and the right to death benefits shall become fixed
as of said date irrespective of any subsequent change in
conditions except as provided in section 8-41-501 (1) (c).
Death benefits shall be directly payable to the dependents
entitled thereto or to such person legally entitled thereto as
the director may designate.
(2) In case an employee or claimant entitled to
compensation dies leaving dependents, any accrued and
17
unpaid portion of the compensation or benefits up to the time
of the death of such employee or claimant shall be paid to
such dependents as may be ordered by the director and not to
the legal representative as such of said decedent. In case the
injured employee or claimant leaves no dependents, the
director may order the application of any accrued and unpaid
benefits up to the time of the death of such employee or
claimant paid upon the expenses of the last sickness or
funeral of such decedent, the preference in such payment to
be to funeral expenses.
(3) In case an injured employee or dependent of a
deceased employee entitled to benefits under articles 40 to 47
of this title is declared incompetent or insane, any benefits
accrued or to accrue may be paid to the conservator of the
estate, if any, or to any dependents, or to the party or
institution having custody of the person of such injured
employee or dependent of a deceased employee as may be
ordered by the director in the director's discretion.
8-41-504. Action by injured employee dependents not parties in interest. No dependent of an
injured employee, during the life of the employee, shall be
deemed a party in interest to any proceeding by said
employee for the enforcement of any claim for compensation
nor with respect to any settlement thereof by said employee.
8-41-505. Illegitimate minor children. Illegitimate
minor children of a deceased putative father shall be entitled
to compensation in the same respect as a legitimate minor
child of said decedent when it is proved to the satisfaction of
the director that the father, during his lifetime, has
acknowledged said children to be his and has regularly
contributed to their support and maintenance for a reasonable
period of time prior to his death.
ARTICLE 42
Benefits
8-42-101. Employer must furnish medical aid approval of plan - fee schedule - contracting for treatment
- no recovery from employee - medical treatment
guidelines - accreditation of physicians - rules - repeal
(1) (a) Every employer, regardless of said
employer's method of insurance, shall furnish such medical,
surgical, dental, nursing, and hospital treatment, medical,
hospital, and surgical supplies, crutches, and apparatus 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 from the effects of the injury.
(b) In all cases where the injury results in the loss of
a member or part of the employee's body, loss of teeth, loss
of vision or hearing, or damage to an existing prosthetic
device, the employer shall furnish within the limits of the
medical benefits provided in paragraph (a) of this subsection
(1) artificial members, glasses, hearing aids, braces, and other
external prosthetic devices, including dentures, which are
reasonably required to replace or improve the function of
each member or part of the body or prosthetic device so
affected or to improve the employee's vision or hearing. The
employee may petition the division for a replacement of any
artificial member, glasses, hearing aid, brace, or other
external prosthetic device, including dentures, upon grounds
that the employee has undergone an anatomical change since
the previous device was furnished or for other good cause
shown, that the anatomical change or good cause is directly
related to and caused by the injury, and that the replacement
is necessary to improve the function of each member or part
of the body so affected or to relieve pain and discomfort.
Implants or devices necessary to regulate the operation of, or
to replace, with implantable devices, internal organs or
structures of the body may be replaced when the authorized
treating physician deems it necessary. Every employer
subject to the terms and provisions of articles 40 to 47 of this
title must insure against liability for the medical, surgical, and
hospital expenses provided for in this article, unless
permission is given by the director to such employer to
operate under a medical plan, as set forth in subsection (2) of
this section.
(c) In any case in which a firefighter, emergency
medical services provider, or peace officer, as described in
section 16-2.5-101, C.R.S., is exposed during the course and
within the scope of employment to a known or possible
source of hepatitis C, the employer, or if insured, the insurer,
shall, at their expense, provide for baseline testing within the
period of time specified in section 8-41-208 (1) (a) to
determine whether the employee was free of hepatitis C at the
time of the on-the-job exposure. The employer, or if insured,
the insurer, shall pay for all reasonable and necessary medical
procedures and treatment for exposure to hepatitis C during
the period of time set forth in section 8-41-208 (1) (d).
(2) Every such plan, which is agreed to between the
employer and employee, for the furnishing of medical,
surgical, and hospital treatment, whether or not the employee
is to pay any part of the expense of such treatment, before
being put into effect, shall receive the approval of the
director. The director has full power to formulate the terms
and conditions under which any such plan may operate and
the essentials thereof, and at any time the director may order
modifications or changes in any such plan or withdraw prior
approval thereof. No plan shall be approved by the director
which relieves the employer from the burden of assuming and
paying for any part of the medical, surgical, and hospital
services and supplies required.
(3) (a) (I) The director shall establish a schedule
fixing the fees for which all surgical, hospital, dental,
nursing, vocational rehabilitation, and medical services,
whether related to treatment or not, pertaining to injured
employees under this section shall be compensated. It is
unlawful, void, and unenforceable as a debt for any
physician, chiropractor, hospital, person, expert witness,
reviewer, evaluator, or institution to contract with, bill, or
charge any party for services, rendered in connection with
injuries coming within the purview of this article or an
applicable fee schedule, which are or may be in excess of said
fee schedule unless such charges are approved by the
director. Fee schedules shall be reviewed on or before July 1
of each year by the director, and appropriate health care
practitioners shall be given a reasonable opportunity to be
heard as required pursuant to section 24-4-103, C.R.S., prior
to fixing the fees, impairment rating guidelines, which shall
be based on the revised third edition of the "American
Medical Association Guides to the Evaluation of Permanent
18
Impairment", in effect as of July 1, 1991, and medical
treatment guidelines and utilization standards. Fee schedules
established pursuant to this subparagraph (I) shall take effect
on January 1. The director shall promulgate rules concerning
reporting requirements, penalties for failure to report
correctly or in a timely manner, utilization control
requirements for services provided under this section, and the
accreditation process in subsection (3.6) of this section. The
fee schedule shall apply to all surgical, hospital, dental,
nursing, vocational rehabilitation, and medical services and to
expert witness, 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.
(II) Notwithstanding
the
provisions
of
subparagraph (I) of this paragraph (a) the fees set forth in the
schedule established pursuant to subparagraph (I) of this
paragraph (a) shall be those fees in effect immediately prior
to July 1, 1991, and such fees shall remain in effect until July
1, 1995.
(III) Notwithstanding
the
provisions
of
subparagraph (I) of this paragraph (a), until the impairment
rating guidelines and medical treatment guidelines and
utilization standards required by subparagraph (I) of this
paragraph (a) and subsection (3.5) of this section are adopted
and level I accreditation is received, compensation for fees
for chiropractic treatments shall not be made more than
ninety days after the first of such treatments nor after the
twelfth such treatment, whichever first occurs, unless the
chiropractor has received level I accreditation.
(b) Medical treatment guidelines and utilization
standards, developed by the director, shall be used by health
care practitioners for compliance with this section.
(3.5) (a) (I) "Physician" means, for the purposes of
the level I and level II accreditation programs, a physician
licensed under the "Colorado Medical Practice Act". For the
purposes of level I accreditation only and not level II
accreditation, "physician" means a dentist licensed under the
"Dental Practice Law of Colorado", a podiatrist licensed
under the provisions of article 32 of title 12, C.R.S., and a
chiropractor licensed under the provisions of article 33 of title
12, C.R.S. No physician shall be deemed to be accredited
under either level I or level II solely by reason of being
licensed.
(II) The director shall promulgate rules establishing
a system for the determination of medical treatment
guidelines and utilization standards and medical impairment
rating guidelines for impairment ratings as a percent of the
whole person or affected body part based on the revised third
edition of the "American Medical Association Guides to the
Evaluation of Permanent Impairment", in effect as of July 1,
1991.
(b) A medical impairment rating system shall be
maintained by the director.
(c) (I) This subsection (3.5) is repealed, effective
July 1, 2014.
(II) Prior to such repeal the accreditation process
created by this subsection (3.5) and subsection (3.6) of this
section shall be reviewed as provided for in section
24-34-104, C.R.S.
(3.6) The two-tier accreditation system shall
comprise the following programs:
(a) (I) A program establishing the accreditation
requirements for physicians providing primary care to
patients who have, as a result of their injury, been unable to
return to work for more than three working days, referred to
in this section as "time-loss injuries", which program shall be
voluntary except in the case of chiropractors, for whom it
shall be mandatory, and which shall be known as level I
accreditation; and
(II) A program establishing the accreditation
requirements for physicians providing impairment evaluation
of injured workers, which program shall be known as level II
accreditation.
(b) A physician who provides impairment
evaluation of injured workers shall complete and must have
received accreditation under the level II accreditation
program.
However, the authorized treating physician
providing 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. The facility where a
physician provides such services cannot be accredited.
(c) Both the level I and level II accreditation
programs shall be implemented and available to physicians.
All physicians who are required to be accredited shall
complete the level II accreditation program or programs.
(d) The level I and level II accreditation programs
shall operate in such a manner that the costs thereof shall be
fully met by registration fees paid by the physicians. The
registration fee for level I accreditation shall not exceed two
hundred fifty dollars, and the registration fee for level II
accreditation shall not exceed four hundred dollars. The
registration fee for each program shall cover the cost of all
accreditation course work and materials.
(e) The accreditation system shall be established so
as to provide physicians with an understanding of the
administrative, legal, and medical roles and in such a manner
that accreditation is accessible to every licensed physician,
with consideration of specialty and geographic diversity.
(f) Initial accreditation shall be for a three-year
period and may be renewed for successive three-year periods.
The director by regulation may determine any additional
training program required prior to accreditation renewal.
(g) The director shall, upon good cause shown,
revoke the accreditation of any physician who violates the
provisions of this subsection (3.6) or any rule promulgated by
the director pursuant to this subsection (3.6), following a
hearing on the merits before an administrative law judge,
subject to review by the industrial claim appeals office and
the court of appeals, in accordance with all applicable
provisions of article 43 of this title.
(h) If a physician whose accreditation has been
revoked submits a claim for payment for services rendered
subsequent to such revocation, the physician shall be
considered in violation of section 10-1-128, C.R.S., and
neither an insurance carrier nor a self-insured employer shall
be under any obligation to pay such claim.
19
(i) A physician who provides treatment for nontime
loss injuries need not be accredited to be reimbursed for the
costs of such treatment pursuant to the provisions of the
"Workers' Compensation Act of Colorado".
(j) (Deleted by amendment, L. 96, p. 151, § 2,
effective July 1, 1996.)
(k) The division shall make available to insurers,
claimants, and employers a list of all accredited physicians
and a list of all physicians whose accreditation has been
revoked. Such lists shall be updated on a monthly basis.
(l) The registration fees collected pursuant to
paragraph (d) of this subsection (3.6) shall be transmitted to
the state treasurer, who shall credit the same to the physicians
accreditation program cash fund, which is hereby created in
the state treasury. Moneys in the physicians accreditation
program cash fund are hereby continuously appropriated for
the payment of the direct costs of providing the level I and
level II accreditation courses and materials.
(m) All administrative costs associated with the
level I and level II accreditation programs shall be paid out of
the workers' compensation cash fund in accordance with
appropriations made pursuant to section 8-44-112 (7).
(n) The director shall contract with the medical
school of the university of Colorado for the services of a
medical director to advise the director on issues of
accreditation, impairment rating guidelines, medical
treatment guidelines and utilization standards, and case
management and to consult with the director on peer review
activities as specified in this subsection (3.6) and section
8-43-501. Such medical director shall be a medical doctor
licensed to practice in this state with experience in
occupational medicine. The director may contract with an
appropriate private organization which meets the definition of
a utilization and quality control peer review organization as
set forth in 42 U.S.C. sec. 1320c-1 (1) (A) or (1) (B), to
conduct peer review activities under this subsection (3.6) and
section 8-43-501 and to recommend whether or not adverse
action is warranted.
(o) Except as provided in this subsection (3.6),
neither an insurance carrier nor a self-insured employer or
injured worker shall be liable for costs incurred for an
impairment evaluation rendered by a physician where there is
a determination of permanent medical impairment if such
physician is not level II accredited pursuant to the provisions
of this subsection (3.6).
(p) (I) For purposes of this paragraph (p):
(A) "Case management" means a system developed
by the insurance carrier in which the carrier shall assign a
person knowledgeable in workers' compensation health care
to communicate with the employer, employee, and treating
physician to assure that appropriate and timely medical care
is being provided.
(B) "Managed care" means the provision of medical
services through a recognized organization authorized under
the provisions of parts 1, 3, and 4 of article 16 of title 10,
C.R.S., or a network of medical providers accredited to
practice workers' compensation under this subsection (3.6).
(II) Every employer or its insurance carrier shall
offer at least managed care or medical case management in
the counties of Denver, Adams, Jefferson, Arapahoe,
Douglas, Boulder, Larimer, Weld, El Paso, Pueblo, and Mesa
and shall offer medical case management in all other counties
of the state.
(q) The division is authorized to accept moneys
from any governmental unit as well as grants, gifts, and
donations from individuals, private organizations, and
foundations; except that no grant, gift, or donation may be
accepted by the division if it is subject to conditions which
are inconsistent with this article or any other laws of this state
or which require expenditures from the workers'
compensation cash fund which have not been approved by
the general assembly. All moneys accepted by the division
shall be transmitted to the state treasurer for credit to the
workers' compensation cash fund.
(r) (I) This subsection (3.6) is repealed, effective
July 1, 2014.
(II) Prior to such repeal the accreditation process
created by subsection (3.5) of this section and this subsection
(3.6) shall be reviewed as provided for in section 24-34-104,
C.R.S.
(3.7) On and after July 1, 1991, all physical
impairment ratings used under articles 40 to 47 of this title
shall be based on the revised third edition of the "American
Medical Association Guides to the Evaluation of Permanent
Impairment", in effect as of July 1, 1991. For purposes of
determining levels of medical impairment pursuant to articles
40 to 47 of this title a physician shall not render a medical
impairment rating based on chronic pain without anatomic or
physiologic correlation. Anatomic correlation must be based
on objective findings.
(4) Once there has been an admission of liability or
the entry of a final order finding that an employer or
insurance carrier is liable for the payment of an employee's
medical costs or fees, a medical provider shall under no
circumstances seek to recover such costs or fees from the
employee.
(5) If any party files an application for hearing on
whether the claimant is entitled to medical maintenance
benefits recommended by an authorized treating physician
that are unpaid and contested, and any requested medical
maintenance benefit is admitted fewer than twenty days
before the hearing or ordered after application for hearing is
filed, the court shall award the claimant all reasonable costs
incurred in pursuing the medical benefit. Such costs do not
include attorney fees.
8-42-102. Basis of compensation - "wages"
defined - average weekly wage. (1) The average weekly
wage of an injured employee shall be taken as the basis upon
which to compute compensation payments.
(2) Average weekly wages for the purpose of
computing benefits provided in articles 40 to 47 of this title,
except as provided in this section, shall be calculated upon
the monthly, weekly, daily, hourly, or other remuneration
which the injured or deceased employee was receiving at the
time of the injury, and in the following manner; except that
any portion of such remuneration representing a per diem
payment shall be excluded from the calculation unless such
payment is considered wages for federal income tax
purposes:
20
(a) Where the employee is being paid by the month
for services under a contract of hire, the weekly wage shall be
determined by multiplying the monthly wage or salary at the
time of the accident by twelve and dividing by fifty-two.
(b) Where the employee is being paid by the week
for services under a contract of hire, said weekly
remuneration at the time of the injury shall be deemed to be
the weekly wage for the purposes of articles 40 to 47 of this
title.
(c) Where the employee is rendering service on a
per diem basis, the weekly wage shall be determined by
multiplying the daily wage by the number of days and
fractions of days in the week during which the employee
under a contract of hire was working at the time of the injury
or would have worked if the injury had not intervened.
(d) Where the employee is being paid by the hour,
the weekly wage shall be determined by multiplying the
hourly rate by the number of hours in a day during which the
employee was working at the time of the injury or would
have worked if the injury had not intervened, to determine the
daily wage; then the weekly wage shall be determined from
said daily wage in the manner set forth in paragraph (c) of
this subsection (2).
(e) Where the employee is paid on a piecework,
tonnage, commission, or basis other than a monthly, weekly,
daily, or hourly wage and where the employment is but
casual and in the usual course of the trade, business,
profession, or occupation of his employer, the total amount
earned by the injured or killed employee in the twelve months
preceding the injury shall be computed, which sum shall be
divided by the number of pay periods the injured person was
employed during the twelve months immediately preceding
the injury, and the result thus ascertained shall be considered
the average wage of said employee per pay period.
(f) Where the employee is being paid by the mile,
the weekly wage shall be determined by multiplying the rate
per mile by the average number of miles per day the
employee drove in the service of the employer in the sixty
working days immediately preceding the date of the injury, to
arrive at a daily wage; then the weekly wage shall be
determined from the said daily wage in the manner set forth
in paragraph (c) of this subsection (2). If, on the date of the
injury, the employee has worked for the employer less than
sixty days, the average daily wage shall be based on the
average miles driven per working day during such period.
(3) Where the foregoing methods of computing the
average weekly wage of the employee, by reason of the
nature of the employment or the fact that the injured
employee has not worked a sufficient length of time to enable
earnings to be fairly computed thereunder or has been ill or
has been self-employed or for any other reason, will not fairly
compute the average weekly wage, the division, in each
particular case, may compute the average weekly wage of
said employee in such other manner 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.
(4) Where an employee is a minor and the disability
is temporary, the average weekly wage of such minor shall be
determined by the division as in cases of disability of adults.
Where the disability of such minor is permanent or if benefits
under articles 40 to 47 of this title accrue because of the death
of such minor, compensation to said minor or death benefits
to said minor's dependents shall be paid at the maximum rate
of compensation payable under said articles at the time of the
determination of such permanency or of such death.
(5) (a) The general assembly hereby finds that the
phrase "at the time of injury" in subsection (2) of this section
refers to the date of the employee's accident. When
subsection (2) of this section is used to determine a worker's
average weekly wage, the wage on the date of the accident
shall be used.
(b) Nothing in this subsection (5) alters the
discretion of the division or the director to fairly determine a
worker's average weekly wage in accordance with subsection
(3) of this section.
8-42-103. Disability indemnity payable as wages period of disability. (1) If the injury or occupational disease
causes disability, a disability indemnity shall be payable as
wages pursuant to section 8-42-105 (2) (a) subject to the
following limitations:
(a) If the period of disability does not last longer
than three days from the day the employee leaves work as a
result of the injury, no disability indemnity shall be
recoverable except the disbursement provided in articles 40 to
47 of this title for medical, surgical, nursing, and hospital
services, apparatus, and supplies, nor in any case unless the
division has actual knowledge of the injury or is notified
thereof within the period specified in said articles.
(b) If the period of disability lasts longer than two
weeks from the day the injured employee leaves work as the
result of the injury, disability indemnity shall be recoverable
from the day the injured employee leaves work.
(c) (I) In cases where it is determined that periodic
disability benefits granted by the federal "Old-Age,
Survivors, and Disability Insurance Amendments of 1965",
Pub.L. 89-97, are payable to an individual and the
individual's dependents, the aggregate benefits payable for
temporary total disability, temporary partial disability, and
permanent total disability pursuant to this section shall be
reduced, but not below zero, by an amount equal as nearly as
practical to one-half the federal periodic benefits; but, if the
federal "Old-age, Survivors, and Disability Insurance
Amendments of 1965", Pub.L. 89-97, is amended to provide
for a reduction of an individual's disability benefits
thereunder because of compensation benefits payable under
articles 40 to 47 of this title, the reduction of compensation
benefits provided in said articles shall be decreased by an
amount equal to the federal reduction. Upon request of the
insurer or employer, the employee shall apply for such
federal periodic disability benefits and respond to requests
from the insurer or employer as to the status of such
application. Failure to comply with this section constitutes
cause for suspension of benefits.
(II) In cases where it is determined that periodic
benefits granted by the federal old-age, survivors, and
disability insurance act or employer-paid retirement benefits
are payable to an individual and the individual's dependents,
the aggregate benefits payable for permanent total disability
pursuant to this section shall be reduced, but not below zero:
21
(A) By an amount equal as nearly as practical to
one-half such federal benefits; except that this reduction for
the periodic benefits granted by the federal old-age,
survivors, and disability insurance act shall not exceed the
reduction specified in subparagraph (I) of this paragraph (c)
for the periodic disability benefits payable to an individual;
(B) By an amount determined as a percentage of the
employer-paid retirement benefits, said percentage to be
determined by a weighted average of the employer's
contributions during the period of covered employment
divided by the total contributions during the period of
covered employment; except that in permanent total disability
cases all contributions made by the employer pursuant to a
collective bargaining agreement with the employee's
representative shall be considered to have been made by the
employee.
(II.5) In cases where an employer does not
participate in federal old-age, survivors, and disability
insurance, and it is determined that employer-paid retirement
benefits are payable to an individual and the individual's
dependents, the aggregate benefits payable for permanent
total disability pursuant to this section shall be reduced, but
not below zero by an amount determined as a percentage of
the employer-paid retirement benefits, said percentage to be
determined by a weighted average of the employer's
contributions during the period of covered employment
divided by the total contributions during the period of
covered employment.
(III) Notwithstanding sub-subparagraph (A) of
subparagraph (II) of this paragraph (c), if the federal "OldAge, Survivors, and Disability Insurance Amendments of
1965", Pub.L. 89-97, is amended to provide for a reduction of
an individual's periodic benefits thereunder because of
compensation benefits payable under articles 40 to 47 of this
title, the reduction of compensation benefits provided in said
articles shall be decreased by an amount equal to the federal
reduction.
(IV) The provisions of subparagraphs (II) and (III)
of this paragraph (c) shall apply only if the injury on which
the award for permanent total disability was based occurred
after the claimant reached forty-five years of age.
(d) (I) In cases where it is determined that periodic
disability benefits are payable to an employee under a
pension or disability plan financed in whole or in part by the
employer, hereinafter called "employer pension or disability
plan", the aggregate benefits payable for temporary total
disability, temporary partial disability, and permanent total
disability pursuant to this section shall be reduced, but not
below zero, by an amount equal as nearly as practical to the
employer pension or disability plan benefits, with the
following limitations:
(A) Where the employee has contributed to the
employer pension or disability plan, benefits shall be reduced
under this section only in an amount proportional to the
employer's percentage of total contributions to the employer
pension or disability plan.
(B) Where the employer pension or disability plan
provides by its terms that benefits are precluded thereunder in
whole or in part if benefits are awarded under articles 40 to
47 of this title, the reduction provided in this paragraph (d)
shall not be applicable to the extent of the amount so
precluded.
(II) Upon request of the insurer or employer, the
employee shall apply for such periodic disability benefits and
respond to requests from the insurer or employer as to the
status of such application. Failure to comply with this section
shall be cause for suspension of benefits.
(III) The provisions of this paragraph (d) shall apply
to a disability pension paid pursuant to article 30.5 or 31 of
title 31, C.R.S.; except that said reduction shall not reduce the
combined weekly disability benefits below a sum equal to
one hundred percent of the state average weekly wage as
defined in section 8-47-106 and applicable to the year in
which the weekly disability benefits are being paid.
(IV) If the disability benefits awarded pursuant to
articles 40 to 47 of this title are paid in a lump sum pursuant
to section 8-43-406, the weekly benefit attributed to such
workers' compensation benefits, for the purpose of
calculating the combined weekly disability benefit specified
in subparagraph (III) of this paragraph (d), shall be calculated
by assuming that the employee is receiving the weekly
disability benefits payments such employee would have
received had such weekly disability payments not been
reduced and paid as a lump sum.
(e) In cases where it is determined that periodic
disability benefits are payable to an individual and said
individual's dependents pursuant to a workers' compensation
act of another state or of the federal government, the
aggregate benefits payable for temporary total disability,
temporary partial disability, permanent partial disability, and
permanent total disability pursuant to this section shall be
reduced, but not below zero, by an amount equal to the
benefits payable pursuant to such other workers'
compensation act.
(f) In cases where it is determined that
unemployment compensation benefits are payable to an
employee, the aggregate benefits payable for permanent total
disability pursuant to this section shall be reduced, but not
below zero, by an amount equal as nearly as practical to such
unemployment compensation benefits. In cases where it is
determined that unemployment insurance benefits are payable
to an employee, compensation for temporary disability shall
be reduced, but not below zero, by the amount of
unemployment insurance benefits received, unless the
unemployment insurance amount has already been reduced
by the temporary disability benefit amount and except that
temporary total disability shall not be reduced by
unemployment insurance benefits received pursuant to
section 8-73-112.
(g) In cases where it is determined that a
temporarily disabled employee is responsible for termination
of employment, the resulting wage loss shall not be
attributable to the on-the-job injury.
8-42-104. Effect
of
previous
injury
or
compensation. (1) The fact that an employee has suffered a
previous disability or impairment or received compensation
therefor shall not preclude compensation for a later injury or
for death, but, in determining compensation benefits payable
for the later injury or death, the employee's average weekly
earnings at the time of the later injury shall be used in
22
determining the compensation payable to the employee or
such employee's dependents. Notwithstanding any other
provision of articles 40 to 47 of this title, no claimant may
receive concurrent permanent total disability awards from
injuries occurring in this state or any other state.
(2) (Deleted by amendment, L. 2008, p. 1676, § 2,
effective July 1, 2008.)
(3) An employee's temporary total disability,
temporary partial disability, or medical benefits shall not be
reduced based on a previous injury.
(4) An employee's recovery of permanent total
disability shall not be reduced when the disability is the result
of work-related injury or work-related injury combined with
genetic, congenital, or similar conditions; except that this
subsection (4) shall not apply to reductions in recovery or
apportionments allowed pursuant to the Colorado supreme
court's decision in the case denominated Anderson v.
Brinkhoff, 859 P.2d 819 (Colo. 1993).
(5) In cases of permanent medical impairment, the
employee's award or settlement shall be reduced:
(a) When an employee has suffered more than one
permanent medical impairment to the same body part and has
received an award or settlement under the "Workers'
Compensation Act of Colorado" or a similar act from another
state. The permanent medical impairment rating applicable
to the previous injury to the same body part, established by
award or settlement, shall be deducted from the permanent
medical impairment rating for the subsequent injury to the
same body part.
(b) When an employee has a nonwork-related
previous permanent medical impairment to the same body
part that has been identified, treated, and, at the time of the
subsequent compensable injury, is independently disabling.
The percentage of the nonwork-related permanent medical
impairment existing at the time of the subsequent injury to
the same body part shall be deducted from the permanent
medical impairment rating for the subsequent compensable
injury.
(6) Nothing in this section shall be construed to
preclude employers or insurers from seeking contribution or
reimbursement, as permitted by law, from other employers or
insurers for benefits paid to or for an injured employee as
long as the employee's benefits are not reduced or otherwise
affected by such contribution or reimbursement.
8-42-105. Temporary total disability. (1) In case
of temporary total disability of more than three regular
working days' duration, the employee shall receive sixty-six
and two-thirds percent of said employee's average weekly
wages so long as such disability is total, not to exceed a
maximum of ninety-one percent of the state average weekly
wage per week. Except where vocational rehabilitation is
offered and accepted as provided in section 8-42-111 (3),
temporary total disability payments shall cease upon the
occurrence of any of the events enumerated in subsection (3)
of this section. If vocational rehabilitation is offered and
accepted, any party may at any time terminate vocational
rehabilitation upon fourteen days' written notice to the other
parties and the director. For purposes of this section,
termination of vocational rehabilitation shall be the same as if
vocational rehabilitation had never been offered and
accepted, and the employer or insurance carrier shall not be
entitled to recover any temporary total disability benefits paid
during the period that vocational rehabilitation was provided.
(2) (a) The first installment of compensation shall
be paid no later than the date that liability for the claim is
admitted by the insurance carrier or self-insured employer. If
the insurance carrier or self-insured employer denies liability
for the claim, the claimant may request an expedited hearing
on the issue of compensability if the application is filed
within forty-five days after the date of mailing of the notice
of contest. The director shall set any such expedited matter
for hearing within forty days after the date of the application,
when the issue is liability for the disease or injury. The time
schedule for such an expedited hearing is subject to the
extensions set forth in section 8-43-209. If a claimant elects
not to request an expedited hearing pursuant to this paragraph
(a), the time schedule for hearing the matter shall be as set
forth in section 8-43-209. Compensation shall be paid at
least once every two weeks, except where the director
determines that payment in installments should be made at
some other interval. The director may by rule convert
monthly benefit schedules to weekly or other periodic
schedules.
(b) Temporary disability compensation is not due
and payable for any period of time for which the insurer or
self-insured employer has requested from the employee's
attending physician verification of the employee's inability to
work resulting from the claimed injury or disease and the
physician cannot verify the employee's inability to work,
unless the employee has been unable to receive treatment for
reasons beyond the employee's control. Failure of the
physician to submit such verification, through no fault of the
employee, shall not affect the payment of temporary
disability compensation under this section.
(c) If an employee fails to appear at an appointment
with the employee's attending physician, the insurer or selfinsured employer shall notify the employee by certified mail
that temporary disability benefits may be suspended after the
employee fails to appear at a rescheduled appointment. If the
employee fails to appear at a rescheduled appointment, the
insurer or self-insured employer may, without a prior hearing,
suspend payment of temporary disability benefits to the
employee until the employee appears at a subsequent
rescheduled appointment.
(d) If the insurer or self-insured employer has
requested and failed to receive from the employee's attending
physician verification of the employee's inability to work
resulting from the claimed injury or disease, medical services
provided by the attending physician are not compensable
until the attending physician submits such verification.
(3) Temporary total disability benefits shall
continue until the first occurrence of any one of the
following:
(a) The employee reaches maximum medical
improvement;
(b) The employee returns to regular or modified
employment;
(c) The attending physician gives the employee a
written release to return to regular employment; or
23
(d) (I) 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.
(II) In the case of employment by a temporary help
contracting firm, once the employee has received one written
offer of modified employment meeting the requirements of
subparagraph (III) of this paragraph (d), the employee shall
be deemed to be on notice that modified employment is
available. Subsequent offers of modified employment need
not be in writing so long as the job requirements of such
modified employment are within the restrictions given the
employee by the employee's attending physician and the
employee is allowed a period of at least twenty-four hours,
not including any part of a Saturday, Sunday, or legal
holiday, within which to respond to any such offer.
(III) A written offer of modified employment under
subparagraph (II) of this paragraph (d) shall clearly state:
(A) That future offers of employment need not be in
writing;
(B) The policy of the temporary help contracting
firm regarding how and when employees are expected to
learn of such future offers; and
(C) That benefits under this section will be
terminated if an employee fails to respond to an offer of
modified employment.
(4) (a) In cases where it is determined that a
temporarily disabled employee is responsible for termination
of employment, the resulting wage loss shall not be
attributable to the on-the-job injury.
(b) The claimant's refusal to accept an offer of
modified employment under either of the following
conditions does not constitute responsibility for termination:
(I) The offer of modified employment would
require the claimant to travel a distance of greater than fifty
miles one way more than the claimant's preinjury commute;
or
(II) An administrative law judge determines that the
claimant's rejection of the offer of modified employment was
reasonable considering the totality of the claimant's
circumstances, including accounting for:
(A) The consequences of the industrial injury;
(B) The financial hardship that would be imposed
on the claimant in order to accept the offer of modified
employment; or
(C) Any other reasons that would, in the opinion of
the administrative law judge, make it impracticable for the
claimant to accept the offer of modified employment.
(c) The circumstances described in paragraph (b) of
this subsection (4) are not exhaustive.
8-42-106. Temporary partial disability. (1) In
case of temporary partial disability, the employee shall
receive sixty-six and two-thirds percent 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, not to
exceed a maximum of ninety-one percent of the state average
weekly wage per week.
(2) Temporary partial disability payments shall
continue until the first occurrence of either one of the
following:
(a) The employee reaches maximum medical
improvement; or
(b) (I) 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.
(II) In the case of employment by a temporary help
contracting firm, once the employee has received one written
offer of modified employment meeting the requirements of
subparagraph (III) of this paragraph (b), the employee shall
be deemed to be on notice that modified employment is
available. Subsequent offers of modified employment need
not be in writing so long as the job requirements of such
modified employment are within the restrictions given the
employee by the employee's attending physician and the
employee is allowed a period of at least twenty-four hours,
not including any part of a Saturday, Sunday, or legal
holiday, within which to respond to any such offer.
(III) A written offer of modified employment under
subparagraph (II) of this paragraph (b) shall clearly state:
(A) That future offers of employment need not be in
writing;
(B) The policy of the temporary help contracting
firm regarding how and when employees are expected to
learn of such future offers; and
(C)
That benefits under this section will be
terminated if an employee fails to respond to an offer of
modified employment.
8-42-107. Permanent partial disability benefits schedule - medical impairment benefits - how
determined. (1) Benefits available. (a) When an injury
results in permanent medical impairment, and the employee
has an injury or injuries enumerated in the schedule set forth
in subsection (2) of this section, the employee shall be limited
to medical impairment benefits as specified in subsection (2)
of this section.
(b) When an injury results in permanent medical
impairment and the employee has an injury or injuries not on
the schedule specified in subsection (2) of this section, the
employee shall be limited to medical impairment benefits as
specified in subsection (8) of this section.
(2) Scheduled injuries. In case an injury results in
a loss set forth in the following schedule, the injured
employee, in addition to compensation to be paid for
temporary disability, shall receive compensation for the
period as specified:
24
(a) The loss of an arm at the shoulder
(a.5) The loss of an arm above the hand including
the wrist
(b) (Deleted by amendment, L. 94, p. 2002, § 4,
effective July 1, 1994.)
(c) The loss of a hand below the wrist
(d) The loss of a thumb and the metacarpal bone
thereof
(e) The loss of a thumb at the proximal joint
(f) The loss of a thumb at the second or distal
joint
(g) The loss of an index finger and the
metacarpal bone thereof
(h) The loss of an index finger at the proximal
joint
(i) Loss of an index finger at the second joint.
(j) Loss of an index finger at the distal joint
(k) Loss of a second finger and the metacarpal
bone thereof
(l) Loss of a middle finger at the proximal joint
(m) Loss of a middle finger at the second joint
(n) Loss of a middle finger at the distal joint
(o) Loss of a third or ring finger and the
metacarpal bone thereof
(p) Loss of a ring finger at the proximal joint
(q) Loss of a ring finger at the second joint
(r) Loss of a ring finger at the distal joint
(s) Loss of a little finger and the metacarpal bone
thereof
(t) Loss of a little finger at the proximal joint
(u) Loss of a little finger at the second joint
(v) Loss of a little finger at the distal joint
(w) Loss of a leg at the hip joint or so near
thereto as to preclude the use of an artificial limb
(w.5) The loss of a leg above the foot including
the ankle
(x) (Deleted by amendment, L. 94, p. 2002, § 4,
effective July 1, 1994.)
(y) The loss of a foot below the ankle
(z) The loss of a great toe with the metatarsal
bone thereof
(aa) The loss of a great toe at the proximal joint
(bb) The loss of a great toe at the second or distal
joint
(cc) The loss of any other toe with the metatarsal
bone thereof
(dd) The loss of any other toe at the proximal
joint
(ee) The loss of any other toe at the second or
distal joint
(ff) The loss of a tooth
(gg) Total blindness of one eye
(hh) Total deafness of both ears
(ii) Total deafness of one ear
(jj) Where worker prior to injury has suffered a
total loss of hearing in one ear, and as a result of
the accident loses total hearing in remaining ear
208 weeks
208 weeks
104 weeks
50 weeks
35 weeks
18 weeks
26 weeks
18 weeks
13 weeks
9 weeks
18 weeks
13 weeks
9 weeks
5 weeks
11 weeks
7 weeks
7 weeks
4 weeks
13 weeks
9 weeks
9 weeks
4 weeks
208 weeks
208 weeks
104 weeks
26 weeks
18 weeks
9 weeks
11 weeks
4 weeks
4 weeks
6 weeks
104 weeks
139 weeks
35 weeks
139 weeks
(3) Temporary disability terminates as to injuries
coming under any provision of this section upon the
occurrence of any of the events enumerated in section 8-42105 (3).
(4) For the purpose of this schedule, permanent and
complete paralysis of any member as the proximate result of
accidental injury shall be deemed equivalent to the loss
thereof.
(5) 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.
(6) (a) The amounts specified in subsections (1) to
(5) of this section shall be at the compensation rate of one
hundred seventy-six dollars per week.
(b) On July 1, 2000, and on each succeeding July 1
thereafter, the compensation rate established in this
subsection (6) shall be modified for claims arising on and
after such date by the same percentage increase or decrease as
the state average weekly wage as determined by the director
when the director establishes the state average weekly wage
pursuant to section 8-47-106.
(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.
(b) (I) The general assembly finds, determines, and
declares that the rating organization that studied the impact of
the changes in Senate Bill 91-218, enacted at the first regular
session of the fifty-eighth general assembly, assumed that
scheduled injuries would remain on the schedule and
nonscheduled injuries would be compensated as medical
impairment benefits. Therefore, the general assembly finds,
determines, and declares that the purpose of changing the
provisions of subparagraph (II) of this paragraph (b), as
amended by House Bill 99-1157, enacted at the first regular
session of the sixty-second general assembly, is to clarify that
scheduled injuries shall be compensated as provided on the
schedule and nonscheduled injuries shall be compensated as
medical impairment benefits, and that, when an injured
worker sustains both scheduled and nonscheduled injuries,
the losses shall be compensated on the schedule for scheduled
injuries and the nonscheduled injuries shall be compensated
as medical impairment benefits. The general assembly
further determines and declares that mental or emotional
stress shall be compensated pursuant to section 8-41-301 (2)
and shall not be combined with a scheduled or a
nonscheduled injury.
(II) Except as provided in subsection (8) of this
section, where an injury causes the loss of, loss of use of, or
partial loss of use of any member specified in the foregoing
schedule, the amount of permanent partial disability shall be
the proportionate share of the amount stated in the above
25
schedule for the total loss of a member, and such amount
shall be in addition to compensation for temporary disability.
Where an injury causes a loss set forth in the schedule in
subsection (2) of this section and a loss set forth for medical
impairment benefits in subsection (8) of this section, the loss
set forth in the schedule found in said subsection (2) shall be
compensated solely on the basis of such schedule and the loss
set forth in said subsection (8) shall be compensated solely on
the basis for such medical impairment benefits specified in
said subsection (8).
(III) Mental or emotional stress shall be
compensated pursuant to section 8-41-301 (2) and shall not
be combined with a scheduled or a nonscheduled injury,
except for the purposes of calculating a claimant's impairment
rating to determine the applicable cap for benefits pursuant to
section 8-42-107.5
(8) Medical impairment benefits - determination
of
MMI
for
scheduled
and
nonscheduled
injuries. (a) When an injury results in permanent medical
impairment not set forth in the schedule in subsection (2) of
this section, the employee shall be limited to medical
impairment benefits calculated as provided in this subsection
(8). The procedures for determination of maximum medical
improvement set forth in paragraph (b) of this subsection (8)
shall be available in cases of injuries set forth in the schedule
in subsection (2) of this section and also in cases of injuries
that are not set forth in said schedule.
(b) (I) An authorized treating physician shall make
a determination as to when the injured employee reaches
maximum medical improvement as defined in section 8-40201 (11.5).
(II) If either party disputes a determination by an
authorized treating physician on the question of whether the
injured worker has or has not reached maximum medical
improvement, an independent medical examiner may be
selected in accordance with section 8-42-107.2; except that, if
an authorized treating physician has not determined that the
employee has reached maximum medical improvement, the
employer or insurer may only request the selection of an
independent medical examiner if all of the following
conditions are met:
(A) At least eighteen months have passed since the
date of injury;
(B) A party has requested in writing that an
authorized treating physician determine whether the
employee has reached maximum medical improvement;
(C) Such authorized treating physician has not
determined that the employee has reached maximum medical
improvement; and
(D) A physician other than such authorized treating
physician has determined that the employee has reached
maximum medical improvement.
(III) The finding of an independent medical
examiner in a dispute arising under subparagraph (II) of this
paragraph (b) shall be overcome only by clear and convincing
evidence. A hearing on this matter shall not take place until
the finding of the independent medical examiner has been
filed with the division.
(b.5) When an authorized treating physician
providing primary care who is not accredited under the level
II accreditation program pursuant to section 8-42-101 (3.5)
makes a determination that an employee has reached
maximum medical improvement, the following procedures
shall apply:
(I) (A) If the employee is not a state resident upon
reaching maximum medical improvement, such physician
shall, within twenty days after the determination of maximum
medical improvement, determine whether the employee has
sustained any permanent impairment. If the employee has
sustained any permanent impairment, such physician shall
conduct such tests as are required by the revised third edition
of the "American Medical Association Guides to the
Evaluation of Permanent Impairment" to determine such
employee's medical impairment rating and shall transmit to
the self-insured employer or insurer all test results and all
relevant medical information.
(B) However, if the employee chooses not to have
the authorized treating physician perform such tests, or if the
information is not transmitted in a timely manner, the
self-insured employer or insurer shall arrange and pay for the
employee to return to Colorado for examination, testing, and
rating, at the expense of the self-insured employer or insurer.
If the employee refuses to return to Colorado for
examination, no permanent disability benefits shall be
awarded.
(C) The self-insured employer or insurer shall,
within twenty days after receipt of the medical information
described in sub-subparagraph (A) of this subparagraph (I),
appoint a level II accredited physician to determine the
employee's medical impairment rating. If the employee was
treated by an authorized level II accredited physician in
Colorado for the same injury for which a medical impairment
rating is being sought, the self-insured employer or insurer
shall request such physician to determine the claimant's
medical impairment rating. At the same time as such rating is
transmitted to the self-insured employer or insurer, the level
II physician shall transmit a copy of the same to the
authorized treating physician and the employee.
(D) If the employee, insurer, or self-insured
employer disputes a medical impairment rating, including a
finding that there is no medical impairment, made pursuant to
sub-subparagraph (A) of this subparagraph (I), the parties to
the dispute may select an independent medical examiner in
accordance with section 8-42-107.2 to review the rating. The
cost of such independent medical examination shall be borne
by the requesting party. The finding of such independent
medical examiner shall be overcome only by clear and
convincing evidence. Any review by an independent medical
examiner shall be based on the employee's written medical
records only, without further examination, unless a party to
the dispute requests that such review include a physical
examination by the independent medical examiner. Except
when the provisions of section 8-42-107.2 (5) (b) apply, the
party requesting a physical examination shall pay all
additional costs, including, if applicable, the reasonable cost
of returning the employee to Colorado.
(II) If the employee is a state resident, such
physician shall, within twenty days after the determination of
maximum medical improvement, determine whether the
employee has sustained any permanent impairment. If the
26
employee has sustained any permanent impairment, such
physician shall refer such employee to a level II accredited
physician for a medical impairment rating, which shall be
based on the revised third edition of the "American Medical
Association Guides to the Evaluation of Permanent
Impairment". If the referral is not timely made by the
authorized treating physician, the insurer or self-insured
employer shall refer the employee to a level II accredited
physician within forty days after the determination of
maximum medical improvement. If the employee, insurer, or
self-insured employer disputes the finding regarding
permanent medical impairment, including a finding that there
is no permanent medical impairment, the parties to the
dispute may select an independent medical examiner in
accordance with section 8-42-107.2. The finding of any such
independent medical examiner shall be overcome only by
clear and convincing evidence.
(c) When the injured employee's date of maximum
medical improvement has been determined pursuant to
paragraph (b) of this subsection (8), and there is a
determination that permanent medical impairment has
resulted from the injury, the authorized treating physician
shall determine a medical impairment rating as a percentage
of the whole person based on the revised third edition of the
"American Medical Association Guides to the Evaluation of
Permanent Impairment", in effect as of July 1, 1991. Except
for a determination by the authorized treating physician
providing primary care that no permanent medical
impairment has resulted from the injury, any physician who
determines a medical impairment rating shall have received
accreditation under the level II accreditation program
pursuant to section 8-42-101. For purposes of determining
levels of medical impairment, the physician shall not render a
medical impairment rating based on chronic pain without
anatomic or physiologic correlation. Anatomic correlation
must be based on objective findings. If either party disputes
the authorized treating physician's finding of medical
impairment, including a finding that there is no permanent
medical impairment, the parties may select an independent
medical examiner in accordance with section 8-42-107.2.
The finding of such independent medical examiner shall be
overcome only by clear and convincing evidence. A hearing
on this matter shall not take place until the finding of the
independent medical examiner has been filed with the
division.
(c.5) When an injury results in the total loss or total
loss of use of an arm at the shoulder, a forearm at the elbow,
a hand at the wrist, a leg at the hip or so near thereto as to
preclude the use of an artificial limb, the loss of a leg at or
above the knee where the stump remains sufficient to permit
the use of an artificial limb, a foot at the ankle, an eye, or a
combination of any such losses, the benefits for such loss
shall be determined pursuant to this subsection (8).
(d) Medical impairment benefits shall be determined
by multiplying the medical impairment rating determined
pursuant to paragraph (c) of this subsection (8) by the age
factor determined pursuant to paragraph (e) of this subsection
(8) and by four hundred weeks and shall be calculated at the
temporary total disability rate specified in section 8-42-105.
Up to ten thousand dollars of the total amount of any such
award or scheduled award shall be automatically paid in a
lump sum less the discount as calculated in section 8-43-406
upon the injured employee's written request to the employer
or, if insured, to the employer's insurance carrier. The
remaining periodic payments of any such award, after
subtracting the total amount of the lump sum requested by the
employee without subtracting the discount calculated in
section 8-43-406, shall be paid at the temporary total
disability rate but not less than one hundred fifty dollars per
week and not more than fifty percent of the state average
weekly wage, beginning on the date of maximum medical
improvement.
(e) The age factor for use in calculating medical
impairment benefits pursuant to this subsection (8) is as
follows:
AGE
FACTOR
AGE
FACTOR
20 or younger 1.80
40
1.40
21
1.78
41
1.38
22
1.76
42
1.36
23
1.74
43
1.34
24
1.72
44
1.32
25
1.70
45
1.30
26
1.68
46
1.28
27
1.66
47
1.26
28
1.64
48
1.24
29
1.62
49
1.22
30
1.60
50
1.20
31
1.58
51
1.18
32
1.56
52
1.16
33
1.54
53
1.14
34
1.52
54
1.12
35
1.50
55
1.10
36
1.48
56
1.08
37
1.46
57
1.06
38
1.44
58
1.04
39
1.42
59
1.02
60 or older
1.00
(f) In all claims in which an authorized treating
physician recommends medical benefits after maximum
27
medical improvement, and there is no contrary medical
opinion in the record, the employer shall, in a final admission
of liability, admit liability for related reasonable and
necessary medical benefits by an authorized treating
physician.
8-42-107.2. Selection of independent medical
examiner - procedure - time - applicability. (1) This
section governs the selection of an independent medical
examiner, also referred to in this section as an "IME", to
resolve disputes arising under section 8-42-107.
(2) (a) (I) Except as otherwise provided in
subparagraph (II) of this paragraph (a), the time for selection
of an IME commences as follows, depending on which party
initiates the dispute:
(A) For the claimant, the time for selection of an
IME commences with the date of mailing of a final admission
of liability by the insurer or self-insured employer that
includes an impairment rating issued in accordance with
section 8-42-107.
(B) For the insurer or self-insured employer, the
time for selection of an IME commences with the date on
which the disputed finding or determination is mailed or
physically delivered to the insurer or self-insured employer.
(II) If, as of the date on which the time for selection
of an IME would otherwise commence, a medical condition
is not yet ratable because of a provision in the medical
treatment guidelines or in the revised third edition of the
"American Medical Association Guides to the Evaluation of
Permanent Impairment", the time for selection of an IME
shall commence on the date on which an impairment rating is
mailed or physically delivered.
(b) If any party disputes a finding or determination
of the authorized treating physician, such party shall request
the selection of an IME. The requesting party shall notify all
other parties in writing of the request, on a form prescribed
by the division by rule, and shall propose one or more
acceptable candidates for the purpose of entering into
negotiations for the selection of an IME. Such notice and
proposal is effective upon mailing via United States mail,
first-class postage paid, addressed to the division and to the
last-known address of each of the other parties. Unless such
notice and proposal are given within thirty days after the date
of mailing of the final admission of liability or the date of
mailing or delivery of the disputed finding or determination,
as applicable pursuant to paragraph (a) of this subsection (2),
the authorized treating physician's findings and
determinations shall be binding on all parties and on the
division.
(c) If the insurer or self-insured employer requests
an IME and the examination is conducted before the insurer
or self-insured employer admits liability pursuant to section
8-43-203 (2) (b), the claimant may not request a second
independent medical examination on that issue but may
appeal the IME's decision, as set forth in section 8-43-203 (2)
(b) (II).
(3) (a) Upon receiving the requesting party's notice
and proposal pursuant to subsection (2) of this section, the
other parties have until the end of the thirtieth day after the
date of mailing of such notice and proposal within which to
negotiate and select an IME. If the parties agree on an IME
on or before such thirtieth day, the requesting party shall
promptly notify the IME in writing that he or she has been
selected. If, within such time, the parties are unable to agree
or the requesting party receives no response to the notice and
proposal, the insurer or self-insured employer shall give
written notice of such fact to the division within thirty days
via United States mail, first-class postage paid. The division
shall then, within ten days after receiving such written notice,
select three physicians by a revolving selection process
established by the division from the list of physicians
maintained by the division. The division shall administer the
list in such fashion as to ensure that the names of candidates
to serve as IME in each pending case remain confidential
until the IME is selected. The director of the division shall
promulgate rules to implement the process of selecting a
panel of three physicians from which the parties may select a
physician to conduct a division independent medical
examination. The selection of a physician panel shall be
based on various factors, including, but not limited to, the
designation by rule of the fields of specialization authorized
to perform independent medical examinations for conditions
listed under each medical treatment guideline and measures
to prevent the over-utilization of physicians or specialists.
The requesting party shall have the opportunity to strike one
of the three physicians from the list, followed by the
opposing party who shall then be given the opportunity to
strike one physician from the list. The remaining IME
physician shall be designated by the division to conduct the
IME. If one or neither party strikes a physician from the list,
the division shall select the physician to conduct the IME
from the remaining physicians on the list.
(b) Upon selection of the IME, the insurance carrier
shall provide to the IME and all other parties a complete copy
of all medical records in its possession pertaining to the
subject injury, postmarked or hand-delivered within fourteen
days prior to the independent medical examination. If the
insurance carrier or its representative fails to timely submit
such medical records, the claimant may request that the
division cancel the independent medical examination or the
claimant may submit all the medical records he or she has
available within ten days prior to the independent medical
examination, or as otherwise arranged by the division with
the IME. If the claimant submits medical records, the
defaulting party may supplement such records pursuant to
rules of the division. This paragraph (b) shall not be
construed to prohibit an independent medical examination
from being rescheduled.
(c) Any supplemental medical records shall be
prepared according to the rules of the division and shall be
submitted to the IME and all other parties no later than seven
days prior to the independent medical examination.
(d) (I) The IME shall neither contact any of the
authorized treating physicians or any examining or reviewing
physician nor request a claimant to undergo repeat testing
when the testing results were valid and the IME has resolved
any disparity in testing results.
(II) Subparagraph (I) of this paragraph (d), as
enacted by Senate Bill 09-168, enacted in 2009, is declared to
be procedural and was intended to and shall apply to all
28
workers' compensation claims, regardless of the date the
claim was filed.
(3.5) (a) Prior to making a determination to strike a
physician from the list of IME physicians provided by the
division in accordance with paragraph (a) of subsection (3) of
this section, a party may request and shall be entitled to
obtain and review a summary disclosure pertaining to any
business, financial, employment, or advisory relationship
between a listed physician, or any entity affiliated with the
physician, and the insurer, self-insured employer, or claimant
who is a party to the claim. The party shall not be required to
make its determination to strike a physician from the list until
he or she has received and has had a reasonable opportunity
to review the summary disclosure.
(b) The director shall adopt rules as necessary to
implement this subsection (3.5). At a minimum, the rules
shall:
(I) Require physicians to disclose the requested
business, financial, employment, or advisory relationship
information in a summarized format;
(II) Detail the form and manner in which the
summary disclosure is to be provided;
(III) Set parameters regarding the period within
which a requesting party is allowed to review the summary
disclosure prior to making a determination to strike a
physician from the list; and
(IV) Prohibit a physician who fails to disclose the
requested summarized information from conducting an
independent medical examination until he or she complies
with the request.
(4) Within thirty days after the date of the mailing
of the IME's report, the insurer or self-insured employer shall
either file its admission of liability pursuant to section 8-43203 or request a hearing before the division contesting one or
more of the IME's findings or determinations contained in
such report.
(5) (a) Except as provided in paragraph (b) of this
subsection (5), the requesting party shall advance the full cost
of the independent medical examination to the IME at least
ten days before the appointed time for the examination.
(b) A claimant who has established that he or she is indigent
shall receive an independent medical examination without
having to advance the cost to the independent medical
examiner.
The director of the division of workers'
compensation shall promulgate rules to establish a procedure
to determine indigence.
(6) This section was enacted by House Bill 981062, as enacted at the second regular session of the sixtyfirst general assembly, as a remedial statute and is procedural
in nature. The purpose of this section is to improve and
simplify remedies already existing for the enforcement of
rights and the redress of injuries under the workers'
compensation laws of Colorado. This section effected
procedures related to the selection of an IME and shall be
applicable to all open cases with a date of injury on or after
July 1, 1991, for which a division IME has not been
requested, pursuant to section 8-42-107.
8-42-107.5.
Limits on temporary disability
payments and permanent partial disability payments.
No claimant whose impairment rating is twenty-five percent
or less may receive more than seventy-five thousand dollars
from combined temporary disability payments and permanent
partial disability payments. No claimant whose impairment
rating is greater than twenty-five percent may receive more
than one hundred fifty thousand dollars from combined
temporary disability payments and permanent partial
disability payments. For the purposes of this section, any
mental impairment rating shall be combined with the physical
impairment rating to establish a claimant's impairment rating
for determining the applicable cap. For injuries sustained on
and after January 1, 2012, the director shall adjust these limits
on the amount of compensation for combined temporary
disability payments and permanent partial disability payments
on July 1, 2011, and each July 1 thereafter, by the percentage
of adjustment made by the director to the state average
weekly wage pursuant to section 8-47-106.
8-42-107.6. Premium dividend for employing
injured employees. The commissioner of insurance shall
include within the premium dividends specified in rules and
regulations promulgated pursuant to section 10-4-408 (5),
C.R.S., a premium dividend of up to ten percent if an
employer reemploys injured employees at their preinjury
wages including any wage increases to which such employees
would have been entitled had the employee not been injured.
The total amount of the premium dividend shall be
determined on a pro rata basis, taking into account the total
number of employees injured during the period of time the
insurance policy was in effect and the total number of injured
employees who have sustained permanent partial disability as
a result of their injuries and who have been rehired by such
employer.
8-42-108.
Disfigurement
additional
compensation. (1) If an employee is seriously, permanently
disfigured about the head, face, or parts of the body normally
exposed to public view, in addition to all other compensation
benefits provided in this article and except as provided in
subsection (2) of this section, the director may allow
compensation not to exceed four thousand dollars to the
employee who suffers such disfigurement.
(2) If an employee sustains any of the following
disfigurements, the director may allow up to eight thousand
dollars as compensation to the employee in addition to all
other compensation benefits provided in this article other than
compensation allowed under subsection (1) of this section:
(a) Extensive facial scars or facial burn scars;
(b) Extensive body scars or burn scars; or
(c) Stumps due to loss or partial loss of limbs.
(3) The director shall adjust the limits on the
amount of compensation for disfigurement specified in this
section on July 1, 2008, and each July 1 thereafter by the
percentage of adjustment made by the director to the state
average weekly wage pursuant to section 8-47-106.
8-42-109. Added compensation for additional
injuries. Where an injured employee sustains an injury
covered by sections 8-42-107, 8-42-108, and 8-46-101 but in
addition thereto receives other injuries which are sufficient in
their nature to alone cause temporary total disability, said
employee shall receive, in addition to the amounts specified
in said schedule, compensation for temporary total disability
29
as long as said disability is found to exist as a result of said
other injuries.
8-42-110. Permanent partial disability - how
determined. (Repealed)
8-42-111. Award
for
permanent
total
disability. (1) In cases of permanent total disability, the
award shall be sixty-six and two-thirds percent of the average
weekly wages of the injured employee and shall continue
until death of such person so totally disabled but not in excess
of the weekly maximum benefits specified in this article for
injuries causing temporary total disability.
(2) (Deleted by amendment, L. 91, p. 1313, § 19,
effective July 1, 1991.)
(3) A disabled employee capable of rehabilitation
which would enable the employee to earn any wages in the
same or other employment, who refuses an offer of
employment by the same or other employer or an offer of
vocational rehabilitation paid for by the employer shall not be
awarded permanent total disability.
(4) For injuries occurring on and after July 1, 1991,
and before July 1, 1994, the average weekly wage of injured
employees used for computing compensation paid for awards
pursuant to subsection (1) of this section shall be increased by
two percent per year effective July 1 of each year, and such
increased compensation shall be payable for the subsequent
twelve months.
(5) Repealed.
8-42-112. Acts
of
employees
reducing
compensation. (1) The compensation provided for in articles
40 to 47 of this title shall be reduced fifty percent:
(a) Where injury is caused by the willful failure of
the employee to use safety devices provided by the employer;
(b) 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
(c) (Deleted by amendment, L. 99, p. 581, § 2,
effective July 1, 1999.)
(d) 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. Notwithstanding
any other provisions of articles 40 to 47 of this title, the
provisions of this paragraph (d) shall apply in addition to any
other penalty that may be imposed under section 8-43-402.
(2) In the event the claimant or dependent is
receiving periodic disability benefits for which a reduction in
Colorado workers' compensation benefits has been made
pursuant to section 8-42-103, the fifty percent reduction
provided for in subsection (1) of this section shall be
computed according to the rate of benefits received by the
claimant or dependent after, and not before, such other
reduction has been made.
8-42-112.5. Limitation on payments - use of
controlled substances. (1) Nonmedical 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 not medically prescribed controlled
substances, as defined in section 12-22-303 (7), C.R.S., 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 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.
(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.
8-42-113. Limitations on payments to prisoners incentives to sheriffs and department of corrections. (1)
Notwithstanding any other provision of law to the contrary
except as provided in subsection (4) of this section, any
individual who is otherwise entitled to benefits under articles
40 to 47 of this title shall neither receive nor be entitled to
such benefits for any week following conviction during
which such individual is confined in a jail, prison, or any
department of corrections facility.
(1.5) (a) In the event the identifying information
transmitted to the department of labor and employment
pursuant to section 17-26-118.5 (2), C.R.S., results in the
termination of workers' compensation benefits pursuant to
subsection (1) of this section, the employer or the insurance
carrier, if any, shall pay to the sheriff a reward equal to ten
percent of one week's benefit to which the ineligible
individual would otherwise be eligible to receive.
(b) An individual who is ineligible pursuant to
subsection (1) of this section shall repay to the employer or
the insurance carrier, if any, any amounts received while not
eligible.
(2) After
such
individual's
release
from
confinement, the individual shall be restored to the same
position with respect to entitlement to benefits under articles
40 to 47 of this title as said individual would otherwise have
enjoyed at the point in time of such release from
confinement. However, except as provided in subsection (3)
of this section, said individual shall not be able to recover,
recoup, or otherwise be retroactively entitled to any of the
benefits to which the individual would have been entitled
without the limitation specified in subsection (1) of this
section.
(3) If upon appeal such conviction is overturned,
such individual shall be entitled to recover the benefits to
which such individual would have been entitled except for
the operation of subsection (1) of this section.
(4) This section shall not apply to benefits under
articles 40 to 47 of this title to which an inmate of a
department of corrections facility or a city, county, or city
and county jail is entitled for injury or occupational disease
arising out of and in the course of the inmate 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
30
Act of 1979", 18 U.S.C. sec. 1761 (c). The inmate shall be
entitled to benefits in accordance with section 8-40-301 (3)
(a).
8-42-113.5. Recovery of overpayments - notice
required. (1) If a claimant has received an award for the
payment of disability benefits or a death benefit under articles
40 to 47 of this title and also receives any payment, award, or
entitlement to benefits under the federal old-age, survivors,
and disability insurance act, an employer-paid retirement
benefit plan, or any other plan, program, or source for which
the original disability benefits or death benefit is required to
be reduced pursuant to said articles, but which were not
reflected in the calculation of such disability benefits or death
benefit:
(a) Within twenty calendar days after learning of
such payment, award, or entitlement, the claimant, or the
legal representative of a claimant who is a minor, shall give
written notice of the payment, award, or entitlement to the
employer or, if the employer is insured, to the employer's
insurer. If the claimant or legal representative gives such
notice, any overpayment that resulted from the failure to
make the appropriate reduction in the original calculation of
such disability benefits or death benefit shall be recovered by
the employer or insurer in installments at the same rate as, or
a lower rate than, the rate at which the overpayments were
made. Such recovery shall reduce the disability benefits or
death benefit payable after all other applicable reductions
have been made.
(b) If the claimant or legal representative of a
claimant who is a minor was receiving benefits in excess of
the amounts that should have been paid under articles 40 to
47 of this title and failed to give the notice required by
paragraph (a) of this subsection (1), the employer or insurer is
authorized to cease all disability or death benefit payments
immediately until the overpayments have been recovered in
full.
(b.5) (I) After the filing of a final admission of
liability, except in cases of fraud, any attempt to recover an
overpayment shall be asserted within one year after the time
the requestor knew of the existence of the overpayment.
(II) Subparagraph (I) of this paragraph (b.5), as
enacted by Senate Bill 09-168, enacted in 2009, is declared to
be procedural and was intended to and shall apply to all
workers' compensation claims, regardless of the date the
claim was filed.
(c) If for any reason recovery of overpayments as
contemplated in paragraph (a) or (b) of this subsection (1) is
not practicable, the employer or insurer is authorized to seek
an order for repayment.
(d) When an overpayment is repaid to the insurer,
the insurer shall credit the losses on the claim and report the
corrected losses to the insurance rating organization on the
next scheduled report for purposes of the employer's
experience modification.
8-42-114. Death benefits. In case of death, the
dependents of the deceased entitled thereto shall receive as
compensation or death benefits sixty-six and two-thirds
percent of the deceased employee's average weekly wages,
not to exceed a maximum of ninety-one percent of the state
average weekly wage per week for accidents occurring on or
after July 1, 1989, and not less than a minimum of twentyfive percent of the applicable maximum per week. In cases
where it is determined that periodic death benefits granted by
the federal old age, survivors, and disability insurance act or a
workers' compensation act of another state or of the federal
government are payable to an individual and the individual's
dependents, the aggregate benefits payable for death pursuant
to this section shall be reduced, but not below zero, by an
amount equal to fifty percent of such periodic benefits.
8-42-115. Death from injury - benefits. (1) In
case death proximately results from the injury, the benefits
shall be in the amount and to the persons following:
(a) If there are no dependents, compensation shall
be limited to the expenses provided for medical, hospital, and
funeral expense of the deceased, together with such sums as
may have accrued or been paid to the deceased during the
deceased's lifetime for disability, and any amount or payment
which is due under section 8-46-101.
(b) If there are wholly dependent persons at the time
of death, the payment shall be in accordance with the
provisions of section 8-42-114.
(c) If there are partially dependent persons at the
time of death, the payment shall not exceed sixty-six and
two-thirds percent of the average weekly wages, subject to
the limitations of articles 40 to 47 of this title as to maximum
and minimum weekly amounts, to continue for such period
after the date of death as is required to pay, at the weekly
rate, the total amount awarded by the director to be paid to
such partially dependent persons.
8-42-116. When death not proximate result benefits. (1) If death occurs to an injured employee, other
than as a proximate result of any injury, before disability
indemnity ceases and the deceased leaves persons wholly
dependent upon the deceased for support, death benefits shall
be as follows:
(a) Where the injury proximately caused permanent
total disability, the death benefit shall consist of the unpaid
and unaccrued portion of the permanent total disability
benefit which the employee would have received had the
employee lived until receiving compensation at the
employee's regular rate for a period of six years.
(b) Where the injury proximately caused permanent
partial disability, the death benefit shall consist of the unpaid
and unaccrued portion of the permanent partial disability
benefit which the employee would have received had he
lived.
8-42-117. Benefits to partial dependents. (1) If
death occurs to an injured employee, other than as a
proximate result of the injury, before disability indemnity
ceases and the deceased leaves persons partially dependent
upon the deceased for support, death benefits shall be as
follows:
(a) Where the injury proximately caused permanent
total disability, the death benefit shall consist of that
proportion of the unpaid and unaccrued portion of the
permanent total disability benefit which the employee would
have received had the employee lived until said employee
had received compensation at the employee's regular rate for
a period of six years as the amount devoted by the deceased
to the support of such persons for the year immediately prior
31
to the injury bears to the total income of the persons during
said year.
(b) Where the injury caused permanent partial
disability, the death benefit shall consist of that proportion of
the unpaid and unaccrued portion of the permanent partial
disability benefit which the employee would have received if
the employee had lived as the amount devoted by the
deceased to the support of such persons for the year
immediately prior to the injury bears to the total income of
the persons during said year.
8-42-118. Applicability of repeal of death
benefits to nonresident dependents. The repeal of section 850-114, as said section existed prior to July 1, 1983, shall not
affect the payments of death benefits which are being paid
before July 1, 1983.
8-42-119. Partial dependents - compensation.
Partial dependents shall be entitled to receive only that
portion of the benefits provided for those wholly dependent
which the average amount of the wages regularly contributed
by the deceased to such partial dependents at and for a
reasonable time immediately prior to the injury bore to the
total income of the dependents during the same time. The
director has power and discretion to determine the proper
elements to be considered as income of said dependents in
each particular case. Where there are persons both wholly
dependent and partially dependent, only those wholly
dependent shall be entitled to compensation.
8-42-120. Termination of right to benefits. Death
benefits shall be paid to a dependent widow or widower for
life or until remarriage, and, if there are no dependent
children, as defined in section 8-41-501 (1) (b) and (1) (c), at
the time of remarriage, a two-year lump-sum benefit without
discount, less any lump sums previously paid, shall be paid to
such widow or widower. Death benefits shall terminate upon
the happening of any of the following contingencies and shall
thereupon survive to the remaining dependents, if any: Upon
the death of any dependent; when a child or brother or sister
of the deceased reaches the age of eighteen years, except as
otherwise provided in sections 8-41-501 (1) (b) and (1) (c)
and 8-41-502; and upon the expiration of six years from the
date of the death of the injured employee in the case of partial
dependents.
8-42-121. Director to determine and apportion
benefits. Death benefits shall be paid to such one or more of
the dependents of the decedent, for the benefit of all the
dependents entitled to such compensation, as may be
determined by the director, who may apportion the benefits
among such dependents in such manner as the director may
deem just and equitable. Payment to a dependent subsequent
in right may be made, if the director deems it proper, which
payment shall operate to discharge all other claims therefor.
The dependents or persons to whom benefits are paid shall
apply the same to the use of the several beneficiaries thereof
according to their respective claims upon the decedent for
support in compliance with the finding and direction of the
director.
8-42-122. Minor dependents - safeguarding
payments. In all cases of death where the dependents are
minor children, it shall be sufficient for the surviving spouse
or a friend to make application and claim on behalf of the
minor children. The director, for the purpose of protecting
the rights and interests of any dependents whom the director
deems incapable of fully protecting their own interests, may
deposit the payments in any type of account in state or
national banks insured by the federal deposit insurance
corporation or its successor, savings and loan associations
that are insured by the federal deposit insurance corporation
or its successor, or credit unions that are insured by the
national credit union share insurance fund and may otherwise
provide for the manner and method of safeguarding the
payments due such dependents in such manner as the director
sees fit.
8-42-123. Burial expenses. When, as a proximate
result of an injury, death occurs to an injured employee, there
shall be paid in one lump sum within thirty days after death a
sum not to exceed seven thousand dollars for reasonable
funeral and burial expenses. Said sum may be paid to the
undertaker, cemetery, or any other person who has paid the
funeral and burial costs, if the director so orders. If the
employee leaves no dependents, compensation shall be
limited to said sum and the compensation, if any, which has
accrued to date of death and the medical, surgical, and
hospital expenses provided in articles 40 to 47 of this title. If
the deceased employee leaves dependents, said sum shall be
paid in addition to all other sums of compensation provided
for in this article.
8-42-124. Assignability and exemption of claims payment to employers - when. (1) Except for amounts due
under court-ordered support or for a judgment for a debt for
fraudulently obtained public assistance, fraudulently obtained
overpayments of public assistance, or excess public
assistance paid for which the recipient was ineligible, claims
for compensation or benefits due, or any proceeds thereof,
under articles 40 to 47 of this title shall not be assigned,
released, or commuted except as provided in said articles and
shall be exempt from all claims of creditors and from levy,
execution, and attachment or other remedy or recovery or
collection of a debt, which exemption may not be waived.
(2) The power given in any power of attorney or
other authority from any injured employee or the dependents
of any killed employee purporting to authorize any other
person to receive, be paid, or receipt for any compensation
benefits awarded any such claimant shall be wholly void and
illegal and of no force and effect; except that:
(a) Any employer who is subject to the provisions
of articles 40 to 47 of this title and who, by separate
agreement, working agreement, contract of hire, or any other
procedure, continues to pay a sum in excess of the temporary
total disability benefits prescribed by articles 40 to 47 of this
title to any employee temporarily disabled as a result of any
injury arising out of and in the course of such employee's
employment and has not charged the employee with any
earned vacation leave, sick leave, or other similar benefits
shall be reimbursed if insured by an insurance carrier or shall
take credit if self-insured to the extent of all moneys that such
employee may be eligible to receive as compensation or
benefits for temporary partial or temporary total disability
under the provisions of said articles, subject to the approval
of the director. If the employee is injured while under a fixed
duration contract of employment, all salary and wages paid
32
pursuant to that contract shall be prorated over the duration of
the contract in determining whether in any given week the
employer paid a sum in excess of the temporary total
disability benefit.
(b) This subsection (2) shall not apply to an attorney
licensed to practice law in this state and acting in accordance
with a power of attorney given by the claimant solely for the
purpose of distributing funds pursuant to an admission of
liability or an order of the division.
(3) Such payments shall be paid directly to the
employer during the period of time that such employer
continues to pay a sum in excess of the temporary total
disability benefits prescribed by articles 40 to 47 of this title
and has not charged any earned vacation leave, sick leave, or
other similar benefits to any employee so disabled and for so
long as such employee is eligible for temporary disability
benefits under the provisions of articles 40 to 47 of this title.
The payment of such moneys to an employer shall constitute
the payment of compensation or benefits to the employee in
accordance with the provisions of section 8-42-103.
(4) When the payment by an employer to any such
disabled employee is reduced to a sum equal to or less than
the temporary total disability benefits prescribed by articles
40 to 47 of this title, or when the employer has charged the
employee with any earned vacation leave, sick leave, or other
similar benefits for any reason, the rights of the employee to
receive direct payment of any award for temporary partial or
temporary total disability that said employee may be entitled
to on and after the effective date of such reduction shall be
reinstated in accordance with the provisions of articles 40 to
47 of this title.
(5) Any employer subject to the provisions of
articles 40 to 47 of this title and otherwise qualifying for
direct payment of employee benefits as provided in this
section shall notify the division and the insurance carrier of
such employer's eligibility to receive such moneys. The
director shall approve such direct payment after the filing of
such information by the employer as the director may require.
(6) Nothing in this section shall be construed to
limit in any way the right of any employee to full payment of
any award which may be granted to said employee for
permanent partial or permanent total disability under the
provisions of articles 40 to 47 of this title; except that benefits
for permanent total disability and permanent partial disability
shall be subject to wage assignment or income assignment as
wages pursuant to section 14-14-102 (9), C.R.S., and subject
to garnishment as earnings pursuant to section 13-54.5-101
(2) (b), C.R.S., and subject to administrative lien and
attachment pursuant to section 26-13-122, C.R.S., for
purposes of enforcement of court-ordered child support and
subject to garnishment as earnings pursuant to sections 1354-104 (1) (b) (IV) and 13-54.5-101 (2) (d), C.R.S., for
purposes of enforcement of a judgment for a debt for
fraudulently obtained public assistance, fraudulently obtained
overpayments of public assistance, or excess public
assistance paid for which the recipient was ineligible.
(7) Following an injury, any injured employee may
authorize in writing the continuation of any payroll deduction
which the employee had authorized or could have authorized
before the injury, which authorization shall be legal and may
be honored by the employer to the extent that proceeds of
compensation of claims are available to the employer or are
made available to the employer by the employer's insurance
carrier for this purpose until the authorization is revoked in
writing by the injured employee.
(8) If any employer who pays to an injured
employee a sum in excess of the temporary total disability
benefits prescribed by articles 40 to 47 of this title and who
has not charged the employee with any earned vacation leave,
sick leave, or other similar benefits seeks to have assigned the
compensation benefits otherwise due the injured employee as
provided in this section, the employer shall notify the
employee of said request at the same time the employer
makes the request of the director or insurance carrier or both.
8-42-125. Data
gathering
on
workers'
compensation system. The governor and the leader of the
opposing party in the house of representatives and the leader
of the opposing party in the senate shall contract with a
person or entity for obtaining information on the workers'
compensation system. The person or entity gathering the
information shall work solely at the unanimous direction of
the governor and the opposition leadership. Issues or topics
that will be subject to the information gathering process shall
be determined by unanimous decision of the governor and the
opposition leadership. The contractor for the gathering of the
information shall have complete access to all records of and
files in the division of workers' compensation and the office
of administrative courts. Such contractor shall guarantee that
any information gathered on any individual shall be kept
confidential.
ARTICLE 43
Procedure
PART 1
NOTICES AND REPORTS
8-43-101. Record of injuries - occupational
disease - reported to division - rules. (1) Every employer
shall keep a record of all injuries that result in fatality to, or
permanent physical impairment of, or lost time from work for
the injured employee in excess of three shifts or calendar
days and the contraction by an employee of an occupational
disease that has been listed by the director by rule. Within
ten days after notice or knowledge that an employee has
contracted such an occupational disease, or the occurrence of
a permanently physically impairing injury, or lost-time injury
to an employee, or immediately in the case of a fatality, the
employer shall, upon forms prescribed by the division for that
purpose, report said occupational disease, permanently
physically impairing injury, lost-time injury, or fatality to the
division. The report shall contain such information as shall
be required by the director.
(2) Unless exempted by the director pursuant to rule
because of a small number of filings or a showing of financial
hardship, beginning July 1, 2006, reports submitted pursuant
to this section shall be submitted in an electronic format as
determined by the director. Exposure to an injurious
substance as defined by the director by rule and injuries to
employees that result in no more than three days' or three
33
shifts' loss of time from work, or no permanent physical
impairment, or no fatality to the employee shall be reported
by the employer only to the insurer of said employer's
workers' compensation insurance liability, which injuries and
exposure the insurer shall report only by monthly summary
form to or as otherwise requested by the division.
8-43-102. Notice to employer of injury - notice to
employees of requirement - failure to report. (1) (a) Every
employee who sustains an injury resulting from an accident
shall notify said employee's employer in writing of the injury
within four days of the occurrence of the injury. If the
employee is physically or mentally unable to provide said
notice, the employee's foreman, superintendent, manager, or
any other person in charge who has notice of said injury shall
submit such written notice to the employer. Any other person
who has notice of said injury may submit a written notice to
the said person in charge or to the employer, and in that event
the injured employee shall be relieved of the obligation to
give such notice. Otherwise, if said employee fails to report
said injury in writing, said employee may lose up to one day's
compensation for each day's failure to so report. If, at the
time of said injury, the employer has failed to display the
notice specified in paragraph (b) of this subsection (1), the
time period allotted to the employee shall be tolled for the
duration of such failure.
(b) Every employer shall display at all times in a
prominent place on the workplace premises a printed card
with a minimum height of fourteen inches and a width of
eleven inches with each letter to be a minimum of one-half
inch in height, which shall read as follows:
WARNING
IF YOU ARE INJURED ON THE JOB,
WRITTEN
NOTICE OF
YOUR
INJURY MUST BE GIVEN TO YOUR
EMPLOYER
WITHIN
FOUR
WORKING DAYS AFTER THE
ACCIDENT,
PURSUANT
TO
SECTION 8-43-102 (1), COLORADO
REVISED STATUTES.
IF THE INJURY RESULTS FROM
YOUR USE OF ALCOHOL OR
CONTROLLED SUBSTANCES, YOUR
WORKERS'
COMPENSATION
DISABILITY BENEFITS MAY BE
REDUCED
BY
ONE-HALF
IN
ACCORDANCE WITH SECTION 8-42112.5,
COLORADO
REVISED
STATUTES.
(1.5) (a) Every employee of an employer who has
permission to be its own insurance carrier pursuant to section
8-44-201 or of an employer who participates in a public
entity self-insurance pool pursuant to section 8-44-204 who
sustains an injury resulting from an accident shall notify his
employer in writing of said injury within four working days
of the occurrence of the injury, unless the employer, or the
employee's foreman, superintendent, or manager has written
notice of said injury. If the employee is physically or
mentally unable to provide said notice, the employee's
foreman, superintendent, or manager, or any other person in
charge who has written notice of said injury, shall submit
such written notice to the employer. If said employee fails to
report said injury in writing, such employee may lose up to
one day's compensation for each day's failure to so report.
Any other person who has notice of said injury may submit a
written notice to the employer which report shall relieve the
injured employee from reporting the accident. Any employer
receiving written notice of an injury pursuant to this
subsection (1.5) shall affix thereon the date and time of
receipt of such notice and shall make a copy of such notice
available to the injured employee within two working days
following receipt of such notice.
(b) Every employer who has permission to be its
own insurance carrier pursuant to section 8-44-201 or who
participates in a public entity self-insurance pool pursuant to
section 8-44-204 shall display at all times in a prominent
place on the workplace premises a printed card with a
minimum height of fourteen inches and a width of eleven
inches with each letter to be a minimum of one-half inch in
height, which shall read as follows:
WARNING
IF YOU ARE INJURED ON THE JOB,
WRITTEN
NOTICE OF
YOUR
INJURY MUST BE GIVEN TO YOUR
EMPLOYER
WITHIN
FOUR
WORKING DAYS AFTER THE
ACCIDENT,
PURSUANT
TO
SECTION 8-43-102 (1.5), COLORADO
REVISED STATUTES.
IF THE INJURY RESULTS FROM
YOUR USE OF ALCOHOL OR
CONTROLLED SUBSTANCES, YOUR
WORKERS'
COMPENSATION
DISABILITY BENEFITS MAY BE
REDUCED
BY
ONE-HALF
IN
ACCORDANCE WITH SECTION 8-42112.5,
COLORADO
REVISED
STATUTES.
(2) Written notice of the contraction of an
occupational disease shall be given to the employer by the
affected employee or by someone on behalf of the affected
employee within thirty days after the first distinct
manifestation thereof. In the event of death from such
occupational disease, written notice thereof shall be given to
the employer within thirty days after such death. Failure to
give either of such notices shall be deemed waived unless
objection is made at a hearing on the claim prior to any award
or decision thereon. Actual knowledge by an employer in
whose employment an employee was last injuriously exposed
to an occupational disease of the contraction of such disease
by such employee and of exposure to the conditions causing
it shall be deemed notice of its contraction. If the notice
required in this section is not given as provided and within
34
the time fixed, the director may reduce the compensation that
would otherwise have been payable in such manner and to
such extent as the director deems just, reasonable, and proper
under the existing circumstances.
8-43-103. Notice of injury - time limit. (1) Notice
of an injury, for which compensation and benefits are
payable, shall be given by the employer to the division and
insurance carrier, unless the employer is self-insured, within
ten days after the injury, and, in case of the death of any
employee resulting from any such injury or any accident in
which three or more employees are injured, the employer
shall give immediate notice thereof to the director. If no such
notice is given by the employer, as required by articles 40 to
47 of this title, such notice may be given by any person. Any
notice required to be filed by an injured employee or, if
deceased, by said employee's dependents may be made and
filed by anyone on behalf of such claimant and shall be
considered as done by such claimant if not specifically
disclaimed or objected to by such claimant in writing filed
with the division within a reasonable time. Such notice shall
be in writing and upon forms prescribed by the division for
that purpose and served upon the division by delivering to, or
by mailing by registered mail two copies thereof addressed
to, the division at its office in Denver, Colorado. Upon
receipt of such notice from a claimant, the division shall
immediately mail one copy thereof to said employer or said
employer's agent or insurance carrier.
(2) The director and administrative law judges
employed by the office of administrative courts shall have
jurisdiction at all times to hear and determine and make
findings and awards on all cases of injury for which
compensation or benefits are provided by articles 40 to 47 of
this title. Except in cases of disability or death resulting from
exposure to radioactive materials, substances, or machines or
to fissionable materials, or any type of malignancy caused
thereby, or from poisoning by uranium or its compounds, or
from asbestosis, silicosis, and anthracosis, the right to
compensation and benefits provided by said articles shall be
barred unless, within two years after the injury or after death
resulting therefrom, a notice claiming compensation is filed
with the division. This limitation shall not apply to any
claimant to whom compensation has been paid or if it is
established to the satisfaction of the director within three
years after the injury or death that a reasonable excuse exists
for the failure to file such notice claiming compensation and
if the employer's rights have not been prejudiced thereby, and
the furnishing of medical, surgical, or hospital treatment by
the employer shall not be considered payment of
compensation or benefits within the meaning of this section;
but, in all cases in which the employer has been given notice
of an injury and fails, neglects, or refuses to report said injury
to the division as required by the provisions of said articles,
this statute of limitations shall not begin to run against the
claim of the injured employee or said employee's dependents
in the event of death until the required report has been filed
with the division.
(3) In cases of disability or death resulting from
exposure to radioactive materials, substances, or machines or
to fissionable materials, or any type of malignancy caused
thereby, or from poisoning by uranium or its compounds, or
from asbestosis, silicosis, or anthracosis, the right to
compensation and benefits shall be barred unless, within five
years after the commencement of disability or death, a notice
claiming compensation is filed with the division.
8-43-104. Electronic filings - rules.
(1) The
rejection for technical errors by the division of any document,
form, or notice that is filed electronically shall not affect the
validity of the notice to the claimant or any other party.
(2) The director may promulgate rules concerning
electronic filing of documents, forms, or notices in
accordance with article 4 of title 24, C.R.S. Such rules shall
be consistent with any policies, standards, and guidelines set
forth by the office of information technology, created in
section 24-37.5-103, C.R.S.
PART 2
SETTLEMENT AND HEARING PROCEDURES
8-43-201. Disputes arising under "Workers'
Compensation Act of Colorado". (1) The director and
administrative law judges employed by the office of
administrative courts in the department of personnel shall have
original jurisdiction to hear and decide all matters arising
under articles 40 to 47 of this title; except that the following
principles shall apply: A claimant in a workers' compensation
claim shall have the burden of proving entitlement to benefits
by a preponderance of the evidence; the facts in a workers'
compensation case shall not be interpreted liberally in favor of
either the rights of the injured worker or the rights of the
employer; a workers' compensation case shall be decided on
its merits; and a party seeking to modify an issue determined
by a general or final admission, a summary order, or a full
order shall bear the burden of proof for any such modification.
(2) The amendments made to subsection (1) of this
section by Senate Bill 09-168, enacted in 2009, are declared to
be procedural and were intended to and shall apply to all
workers' compensation claims, regardless of the date the claim
was filed.
8-43-202. Director may refer taking of evidence
in cases to appropriate officials of other states. The
director, after notice to the parties in interest, may refer the
taking of any evidence to any commission, court, or board
administering in another state the compensation laws thereof,
and such commission, court, or board of such other state,
after notifying the parties in interest of the time and place of
holding such hearing, shall hold hearings and take such
evidence in the same manner and by the officers as
authorized by the laws of such state, and all such proceedings
shall be certified and return thereof made as prescribed by the
director.
8-43-203. Notice concerning liability - notice to
claimant - rules. (1) (a) The employer or, if insured, the
employer's insurance carrier shall notify in writing the
division and the injured employee or, if deceased, the
decedent's dependents within twenty days after a report is, or
should have been, filed with the division pursuant to section
8-43-101, whether liability is admitted or contested; except
that, for the purpose of this section, any knowledge on the
part of the employer, if insured, is not knowledge on the part
of the insurance carrier. The employer or the employer's
35
insurance carrier may notify the division electronically.
Unless exempted by the director pursuant to rule because of a
small number of filings or a showing of financial hardship,
beginning July 1, 2006, all notices of contest shall be filed
electronically. The rejection of an electronically filed notice
by the division for a technical error shall not affect the
validity of the notice to the claimant. If the insurance carrier
or self-insured employer denies liability for the claim, the
claimant may request an expedited hearing on the issue of
compensability if the application therefor is filed within
forty-five days after the date of mailing of the notice of
contest. The director shall set any such expedited matter for
hearing within forty days after the date of the application,
when the issue is liability for the disease or injury. The time
schedule for such an expedited hearing is subject to the
extensions set forth in section 8-43-209.
(b) The written notice given pursuant to this
subsection (1) shall include a specific reference to the
claimant's obligations under section 8-42-113.5.
(1.5) (Deleted by amendment, L. 92, p. 1825, § 4,
effective April 29, 1992.)
(2) (a) If such notice is not filed as provided in
subsection (1) of this section, the employer or, if insured, the
employer's insurance carrier, as the case may be, may become
liable to the claimant, if the claimant is successful on the
claim for compensation, for up to one day's compensation for
each day's failure to so notify; except that the employer or, if
insured, the employer's insurance carrier shall not be liable
for more than the aggregate amount of three hundred sixtyfive days' compensation for failure to timely admit or deny
liability. Fifty percent of any penalty paid pursuant to this
subsection (2) shall be paid to the subsequent injury fund,
created in section 8-46-101, and fifty percent to the claimant.
(b) (I) If the employer or, if insured, the employer's
insurance carrier admits liability, such notice shall specify the
amount of compensation to be paid, to whom compensation
will be paid, the period for which compensation will be paid,
and the disability for which compensation will be paid, and
payment thereon shall be made immediately.
(II) (A) An admission of liability for final payment
of compensation shall include a statement that this is the final
admission by the workers' compensation insurance carrier in
the case, that the claimant may contest this admission if the
claimant feels entitled to more compensation, to whom the
claimant should provide written objection, and notice to the
claimant that the case will be automatically closed as to the
issues admitted in the final admission if the claimant does
not, within thirty days after the date of the final admission,
contest the final admission in writing and request a hearing
on any disputed issues that are ripe for hearing, including the
selection of an independent medical examiner pursuant to
section 8-42-107.2 if an independent medical examination
has not already been conducted. If an independent medical
examination is requested pursuant to section 8-42-107.2, the
claimant is not required to file a request for hearing on
disputed issues that are ripe for hearing until the division's
independent medical examination process is terminated for
any reason. Any issue for which a hearing or an application
for a hearing is pending at the time that the final admission of
liability is filed shall proceed to the hearing without the need
for the applicant to refile an application for hearing on the
issue. This information shall also be included in the
admission of liability for final payment of compensation.
The respondents shall have thirty days after the date of
mailing of the report from the division's independent medical
examiner to file a revised final admission or to file an
application for hearing. The claimant shall have thirty days
after the date respondents file the revised final admission or
application for hearing to file an application for hearing, or a
response to the respondents' application for hearing, as
applicable, on any disputed issues that are ripe for hearing.
The revised final admission shall contain the statement
required by this subparagraph (II), and the provisions relating
to contesting the revised final admission shall apply. When
the final admission is predicated upon medical reports, such
reports shall accompany the final admission.
(B) The amendments made to sub-subparagraph (A)
of this subparagraph (II) by Senate Bill 09-168, enacted in
2009, are declared to be procedural and were intended to and
shall apply to all workers' compensation claims, regardless of
the date the claim was filed.
(c) No penalty may be assessed under this
subsection (2) for failure to timely admit or deny liability if a
request for such penalty is filed more than seven years after
the alleged violation. The division shall retain original claim
records filed with the division for at least seven years after
closure of the case. Seven years after a case is closed, the
records may only be used for reopening a settlement on the
grounds of fraud or mutual mistake of material fact.
(d) Once a case is closed pursuant to this subsection
(2), the issues closed may only be reopened pursuant to
section 8-43-303. Upon proper showing in writing made
within said times fixed therefor, the director may extend the
time for filing such admission of liability or notice of contest,
but not exceeding ten days at any one time. Hearings may be
set to determine any matter, but, if any liability is admitted,
payments shall continue according to admitted liability.
(3) In addition to any other notice required by this
section, at the time that the employer or, if insured, the
employer's insurance carrier provides the notice required by
subsection (1) of this section, the employer or insurance
carrier shall provide to the claimant a brochure written in
easily understood language, in a form developed by the
director after consultation with employers, insurance carriers,
and representatives of injured workers, describing the claims
process and informing the claimant of his or her rights. If the
claimant has previously authorized the employer or, if
insured, the employer's insurance carrier to communicate
with the claimant through electronic transmission, the
brochure may be sent to the claimant electronically. The
brochure shall, at a minimum, contain the following
information:
(a) Who the claimant may contact with questions
concerning the claim, the claims process, and assistance with
the claim, including:
(I) The insurance carrier or employer;
(II) The division and the web site for the division;
(III) The office of administrative courts and the web
site for the office; and
36
(IV) An attorney hired at the expense of the
claimant.
(b) The claimant's right to receive medical care for
work-related injuries or occupational diseases paid for by the
employer or the employer's insurance carrier including:
(I) That most claimants have a right to choose from
a list of at least two different doctors;
(II) That most claimants have a right to change
doctors one time within ninety days after the injury and all
claimants have the right to request a change of doctor at other
times under certain other circumstances;
(III) The claimant's doctor's right to refer the
claimant to other medical providers and specialists to provide
the reasonable and necessary medical care that the claimant's
work-related injuries or illness require;
(IV) The claimant's right to discuss with his or her
doctor who should be present during a claimant's medical
appointment, and the right to refuse to have a nurse case
manager employed on the claimant's claim present at the
claimant's medical appointment;
(V) The claimant's right to see and have copies of
all of the claimant's medical records related to the medical
care the claimant received for his or her work-related injury
or illness;
(VI) The claimant's right to seek medical care and
medical opinions about the claimant's work-related injury at
the claimant's own expense;
(VII) The claimant's right to a medical examination
by a doctor chosen by the claimant or by the division at the
claimant's expense;
(VIII)
The claimant's right to a permanent
impairment evaluation after the claimant's treating doctors
determine that the claimant has reached maximum medical
improvement; and
(IX) The claimant's right to be informed whether
medical care after maximum medical improvement will be
provided and to receive reasonable continued medical care if
it is necessary to maintain maximum medical improvement;
(c) A description of the claimant's right to receive
benefit payments, including the claimant's right to receive:
(I) Wage replacement payments in the form of
temporary total disability payments or temporary partial
disability payments;
(II) Permanent impairment benefits if the claimant
is left with a permanent impairment as a result of a workrelated injury or disease;
(III)
Disfigurement payments for permanent
scarring or disfigurement caused by the claimant's workrelated injury or surgery required because of the claimant's
work-related injury; and
(IV) Mileage expenses for travel to and from workrelated medical care and to and from pharmacies to obtain
medical prescriptions for work-related medical care.
(d) A description of how the claims process works,
including:
(I) The claimant's right to file a claim for workers'
compensation with the division within two years after the
date of the claimant's injury or occupational disease;
(II) The claimant's right to receive a general
admission of liability or notice of contest once the claim has
been properly reported to the division;
(III)
The claimant's right to verify that the
claimant's average weekly wage payments for temporary total
disability have been properly calculated by the claimant's
employer or the employer's insurance carrier;
(IV) The claimant's right to prehearings and
hearings on disputed issues;
(V) The claimant's right to present evidence, testify,
introduce medical and other records, present witnesses, and
make arguments at any hearing;
(VI) The claimant's right to object to and request a
hearing on any final admission of liability within thirty days
after the mailing of the admission in order to retain certain
rights;
(VII) The claimant's right to challenge a finding of
an impairment rating or maximum medical improvement in a
final admission of liability within thirty days after the mailing
of the admission in order to retain certain rights;
(VIII) The claimant's right to pursue penalties for
violations of the law including late payment of benefits or
improper refusal to pay benefits;
(IX)
The claimant's right, subject to certain
requirements, to reopen a claim within six years after the date
of the injury or illness or within two years after the date of
the last receipt of medical or wage benefits; and
(X) A description of other rights conferred upon a
claimant pursuant to law or rule.
8-43-204. Settlements. (1) An injured employee
may settle all or part of any claim for compensation, benefits,
penalties, or interest. If such settlement provides by its terms
that the employee's claim or award shall not be reopened,
such settlement shall not be subject to being reopened under
any provisions of articles 40 to 47 of this title other than on
the ground of fraud or mutual mistake of material fact.
(2) Such a settlement shall be in writing and shall
be signed by a representative of the employer or insurer and
signed and sworn to by the injured employee. For claims that
have a settlement amount of seventy-five thousand dollars or
more, a written notice of the settlement agreement shall be
provided to the employer.
(3) The settlement shall be reviewed in person with
the injured employee and approved in writing by an
administrative law judge or the director of the division prior
to the finalization of such settlement. The settlement shall be
filed with the division as a part of the injured employee's
permanent record.
(4) If an employee owes child support and a
garnishment has been filed pursuant to section 13-54.5-101,
C.R.S., or the state child support enforcement agency has
filed a notice of administrative lien and attachment pursuant
to section 26-13-122, C.R.S., with the insurer or self-insured
employer, all proceeds of any award, lump sum settlement,
and the indemnity portion of any structured settlement shall
be subject to said garnishment or administrative lien and
attachment. Proceeds up to the amount of the garnishment or
administrative lien and attachment shall be paid as directed
on the notice to the obligee or to the state child support
37
enforcement agency on behalf of the obligee to whom
support is owed.
(5) If an employee owes a debt for which a writ is
issued as a result of a judgment for fraudulently obtained
public assistance, fraudulently obtained overpayments of
public assistance, or excess public assistance paid for which
the recipient was ineligible and a garnishment has been filed
pursuant to section 13-54-104 or 13-54.5-101, C.R.S., with
the insurer or self-insured employer, all proceeds of any
award, lump sum settlement, and the indemnity portion of
any structured settlement shall be subject to the garnishment.
Proceeds up to the amount of the garnishment shall be paid as
directed by the county department of social services
responsible for administering the state public assistance
programs.
(6) To aid in settlement, the director shall review
mortality tables from the United States government and
private industry and issue rules establishing a single life
expectancy table on July 1 in every even-numbered year,
commencing July 1, 2010. The director may adopt current
mortality tables used by medicare. Nothing in this subsection
(6) shall be construed to limit the use of rated ages.
(7) Any lump sum payable as a full or partial
settlement shall be paid to the claimant or the claimant's
attorney within fifteen calendar days after the date the
executed settlement order is received by the carrier or the
noninsured or self-insured employer.
8-43-205. Mediation. (1) Any party involved in a
claim arising under articles 40 to 47 of this title may request
mediation services by filing a request for mediation services
with the division.
However, mediation shall be entirely
voluntary and shall not be conducted without the consent of
all parties to the claim. If a request for mediation services is
made after an application for a hearing has been filed, the
administrative law judge hearing the dispute shall approve,
on motion of the parties, the submission of the dispute to
mediation prior to hearing the matter. An application for
mediation services shall be filed on a form prescribed by the
director. Upon receiving the application for mediation
services, the director shall cause a mediation conference to
occur within thirty days thereafter.
At a mediation
conference, the claimant may be represented by the claimant,
counsel, or any other agent of the claimant's choice.
Mediators need not be attorneys.
(2) Mediation proceedings conducted pursuant to
this section shall be considered to be settlement negotiations
and are confidential. No admission, representation, or
statement made in the course of such mediation proceedings
that is not otherwise subject to discovery or otherwise
obtainable under the procedures established in articles 40 to
47 of this title shall be admissible as evidence or subject to
discovery under said articles. No mediator who participates
in mediation proceedings conducted pursuant to this section
shall be compelled or permitted to testify about any matter
discussed or revealed during such proceedings in any other
proceeding under articles 40 to 47 of this title.
(3) The division shall develop a program to
implement the provisions of this section. Such program shall
be a simple, nonadversarial method for the mediation of
disputes arising under articles 40 to 47 of this title. Such
program shall provide for the use of neutral mediators and the
conduct of proceedings in an informal setting. The director
shall adopt rules and regulations to implement such program.
8-43-206. Settlement conference procedures.
(1) Any employee, insurer, or employer, if self-insured,
involved in a dispute arising under articles 40 to 47 of this
title may request settlement conference services from the
director or the office of administrative courts in the
department of personnel.
However, such settlement
procedures are optional and entirely voluntary, and no such
procedures shall be conducted without the consent of both
parties to the dispute.
(2) Settlement conferences shall be conducted by a
settlement conference officer who may be a prehearing
administrative law judge or an administrative law judge in the
office of administrative courts in the department of personnel
appointed pursuant to section 24-30-1003, C.R.S., and
assigned to hear disputes arising under articles 40 to 47 of
this title. The parties may agree on the selection of a
settlement conference officer; except that such officer shall
not be the administrative law judge who is regularly assigned
to hear the employee's case. If the parties fail to agree on the
selection of such officer, they may apply to the director or to
the office of administrative courts for the designation of a
settlement conference officer who shall not be the
administrative law judge who is regularly assigned to hear the
employee's case.
(3) Settlement conference proceedings conducted
pursuant to this section shall be considered to be settlement
negotiations and are confidential.
No admission,
representation, or statement made in the course of such
settlement conference proceedings that is not otherwise
subject to discovery or otherwise obtainable under the
procedures established in articles 40 to 47 of this title shall be
admissible as evidence or subject to discovery under said
articles. No settlement conference officer who participates in
settlement conference proceedings conducted pursuant to this
section shall be compelled or permitted to testify about any
matter discussed or revealed during such proceedings in any
other proceeding under articles 40 to 47 of this title.
(4) The executive director of the department of
personnel shall adopt rules and regulations to implement the
provisions of this section. Such rules and regulations shall be
consistent with the provisions of section 8-43-204.
(5) The director of the division of workers'
compensation shall adopt rules and regulations to implement
the provisions of this section. Such rules and regulations
shall be consistent with the provisions of section 8-43-204.
8-43-206.5. Right to binding arbitration for
resolution of disputes under articles 40 to 47. At any time
prior to a hearing, the parties may agree to submit any dispute
under articles 40 to 47 of this title to binding arbitration. Said
arbitration shall be by an administrative law judge of the
parties' choice or pursuant to arbitration procedures as
provided by the Colorado rules of civil procedure. Any
arbitration award pursuant to the provisions of this section
shall be binding upon the parties, and no other procedure
contained in this article shall be available to the parties for
the further review of such award.
38
8-43-207. Hearings. (1) Hearings shall be held to
determine any controversy concerning any issue arising under
articles 40 to 47 of this title. In connection with hearings, the
director and administrative law judges are empowered to:
(a) In the name of the division, issue subpoenas for
witnesses and documentary evidence which shall be served in
the same manner as subpoenas in the district court;
(b) Administer oaths;
(c) Make evidentiary rulings;
(d) Limit or exclude cumulative or repetitive proof
or examination;
(e) Upon written motion and for good cause shown,
permit parties to engage in discovery; except that permission
need not be sought if each party is represented by an attorney.
The director or administrative law judge may rule on
discovery matters and impose the sanctions provided in the
rules of civil procedure in the district courts for willful failure
to comply with permitted discovery.
(f) Upon written motion and for good cause shown,
conduct prehearing conferences for the settlement or
simplification of issues;
(g) Dispose of procedural requests upon written
motion or on written briefs or oral arguments as determined
appropriate;
(h) Control the course of the hearing and the
conduct of persons in the hearing room;
(i) Upon written motion and for good cause shown,
grant reasonable extensions of time for the taking of any
action contained in this article;
(j) Upon good cause shown, adjourn any hearing to
a later date for the taking of additional evidence;
(k) Issue orders;
(l) Appoint guardians ad litem, as appropriate, in
matters involving dependents' claims, and assess the
reasonable fees and costs, therefore, from one or more of the
parties;
(m) Determine the competency of witnesses who
testify in a workers' compensation hearing or proceeding and
the competency of parties that have entered into settlement
agreements pursuant to section 8-43-204. Such competency
determinations shall only be for the purpose of the particular
workers' compensation proceeding.
(n) Dismiss all issues in the case except as to
resolved issues and except as to benefits already received,
upon thirty days notice to all the parties, for failure to
prosecute the case unless good cause is shown why such
issues should not be dismissed. For purposes of this
paragraph (n), it shall be deemed a failure to prosecute if
there has been no activity by the parties in the case for a
period of at least six months.
(o) Set aside all or any part of any fee for medical
services rendered pursuant to articles 40 to 47 of this title if
an administrative law judge determines after a hearing that,
based upon a review of the medical necessity and
appropriateness of care provided pursuant to said articles, any
such fee is excessive or that the treatment rendered was not
necessary or appropriate under the circumstances. If all or
part of any fee for medical services is set aside pursuant to
this paragraph (o), the provider of any such services shall not
contract with, bill, or charge the claimant for such fees and
shall not attempt in any way to collect any such charges from
the claimant. No fee for medical services shall be set aside
pursuant to this paragraph (o) if the treatment was authorized
in writing by the insurer or employer.
(p) Impose the sanctions provided in the Colorado
rules of civil procedure, except for civil contempt pursuant to
rule 107 thereof, for willful failure to comply with any order
of an administrative law judge issued pursuant to articles 40
to 47 of this title;
(q) Require repayment of overpayments.
8-43-207.5. Prehearing conferences.
(1) Notwithstanding any provision of articles 40 to
47 of this title to the contrary, at any time not less than ten
days prior to the formal adjudication on the record of any
issue before the director or an administrative law judge in the
office of administrative courts, any party to a claim may
request a prehearing conference before a prehearing
administrative law judge in the division of workers'
compensation for the speedy resolution of or simplification of
any issues and to determine the general readiness of
remaining issues for formal adjudication on the record. The
issues addressed in such prehearing conference shall be
limited to: Ripeness of legal, but not factual, issues for
formal adjudication on the record before the director or an
administrative law judge in the office of administrative
courts; discovery matters; and evidentiary disputes. The
filing of an application for hearing with the office of
administrative courts shall not be a prerequisite to a request
for a prehearing conference under this section. The director
and the administrative law judges in the office of
administrative courts may also request a prehearing
conference under this section.
(2) "Prehearing administrative law judge" means a
qualified person appointed by the director pursuant to section
8-47-101 to preside over prehearing conferences pursuant to
this section, to approve settlements pursuant to section 8-43204, to conduct settlement conferences pursuant to section 843-206, and to conduct arbitrations pursuant to section 8-43206.5. Such prehearing administrative law judges shall have
authority to: Order any party to participate in a prehearing
conference; issue interlocutory orders; issue subpoenas in the
name of the division for production of documentary evidence
which shall be served in the same manner as subpoenas in the
district court; make evidentiary rulings; permit parties to
cause depositions to be taken; determine the competency of
any party to a claim to enter into a settlement agreement; and
strike the application for hearing of a party for failure to
comply with any provision of this section.
(3) An order entered by a prehearing administrative
law judge shall be an order of the director and binding on the
parties. Such an order shall be interlocutory. Prehearing
conferences need not be held on the record; however, any
party to a claim may request in advance that a record be made
of the prehearing conference, either taken verbatim by a court
reporter provided and paid for by the requesting party or
electronically recorded by the division.
(4) The director shall adopt rules and regulations as
may be necessary to implement the provisions of this section.
8-43-208. Investigations. (1) For the purpose of
making any investigation with regard to any matter
39
contemplated by the provisions of articles 40 to 47 of this
title, the director shall have power to appoint, with the
approval of the executive director by an order in writing, any
competent person as an agent whose duties shall be
prescribed in such order.
(2) (Deleted by amendment, L. 94, p. 1876, § 7,
effective June 1, 1994.)
(3) The director may conduct any number of such
investigations contemporaneously through different agents.
8-43-209.
Time schedule for hearings establishment. (1) Hearings shall commence within one
hundred days after the hearing is set pursuant to section 8-43211 (2). One extension of time to commence the hearing of
no more than sixty days shall be granted by an administrative
law judge upon agreement of the parties.
(2) One extension of time to commence the hearing
of no more than sixty days may be granted by an
administrative law judge upon written request by any party to
the case and for good cause shown, in the following cases:
When pulmonary lung disease, cancer, cardiovascular
disease, or stroke is alleged as the cause of the disability;
when the subsequent injury fund is a party; when permanent
total disability is alleged; upon agreement of the parties; or
when compensability of the injury is contested. In all other
cases, extensions of time to commence the hearing of no
more than twenty days may be granted by an administrative
law judge upon written request by any party to the case and
for good cause shown.
(3)
Once the hearing is commenced, the
administrative law judge may, for good cause shown,
continue the hearing to a date certain to take additional
testimony, to file an additional medical report, to file the
transcript of a deposition, or to file a position statement.
Except upon the agreement of all parties or for good cause
shown, a continuance to complete a hearing shall not exceed
thirty calendar days.
8-43-210. Evidence. Notwithstanding section 24-4105, C.R.S., the Colorado rules of evidence and requirements
of proof for civil nonjury cases in the district courts shall
apply in all hearings; except that medical and hospital
records, physicians' reports, vocational reports, and records of
the employer are admissible as evidence and can be filed in
the record as evidence without formal identification if
relevant to any issue in the case. Depositions may be
substituted for testimony upon good cause shown.
Convictions for alcohol-related offenses, pursuant to titles 18
and 42, C.R.S., the transcripts of proceedings leading to such
convictions, and the court files relating to such convictions
may be admissible in all hearings conducted under the
"Workers' Compensation Act of Colorado", articles 40 to 47
of this title, where such conviction resulted from the same
occurrence, accident, or injury occurring on the job that
forms the basis for the workers' compensation claim. All
relevant medical records, vocational reports, expert witness
reports, and employer records shall be exchanged with all
other parties at least twenty days prior to the hearing date.
8-43-211. Notice - request for hearing. (1) At
least thirty days prior to any hearing, the office of
administrative courts in the department of personnel shall
send written notice to all parties by regular or electronic mail
or by facsimile. The notice shall
(a) Give the time, date, and place of the hearing;
(b) Inform the parties that they must be prepared to
present their evidence concerning the issues to be heard;
(c) Inform the parties that they have the right to be
represented by an attorney or other person of their choice at
the hearing.
(2) Hearings shall be set by the office of
administrative courts in the department of personnel within
eighty to one hundred days after any of the following occur:
(a) The director sets any issue for hearing. The
director may expedite the hearing for good cause shown.
(b) Any party requests a hearing on issues ripe for
adjudication by filing a written request with the office of
administrative courts in the department of personnel on forms
provided by the office. The request shall be mailed to all
parties at the time they are filed with the office of
administrative courts. After the filing of the requests, the
office of administrative courts in the department of personnel
shall set the matter for hearing insofar as is practicable in the
order in which requests are received by the office of
administrative courts.
(c) Any party or the attorney of such party sends
notice to set a hearing on issues ripe for adjudication to
opposing parties or their attorneys. The director of the office
of administrative courts shall determine the place and time or
times during which settings can be made. At such setting, the
party requesting the setting shall submit a completed request
for hearing form. Any notice to set shall be mailed to
opposing parties at least ten days prior to the setting date.
(d) If any person requests a hearing or files a notice
to set a hearing on issues which are not ripe for adjudication
at the time such request or filing is made, such person shall
be assessed the reasonable attorney fees and costs of the
opposing party in preparing for such hearing or setting.
(e) Except in claims in which compensability is
contested or a hearing is requested in response to a final
admission of liability or to overcome a conclusion in a
division-sponsored independent medical examination, the
party filing an application for a hearing shall certify on the
application that the party attempted to resolve with the other
parties all issues listed in the application for a hearing.
8-43-212. Compulsion of testimony. When any
person upon whom a subpoena issued in the name of the
division has been served fails or refuses to appear, the party
who requested the subpoena may apply to the district court in
the county in which the person served resides for an order
compelling attendance before the division of the witness or
the production of the documents subpoenaed. Violation of
such an order shall be treated as contempt of the court issuing
the order.
8-43-213. Transcripts. (1) All testimony and
argument of all hearings held pursuant to section 8-43-207
concerning any issue arising under articles 40 to 47 of this
title shall either be taken verbatim by a hearing reporter or
shall be electronically recorded by the division.
(2) Any party in interest may order a transcript at
any time from a hearing reporter, a court reporter provided by
any party, or, if the hearing is recorded, from the division.
40
For purposes of a petition to review, a transcript shall be all
testimony taken that is relevant to the issue being appealed.
In the preparation of transcripts, hearing reporters shall give
preference to transcripts as part of the record in a petition to
review; except that all transcripts shall be prepared and filed
with the office of administrative courts within twenty-five
working days after the date they were ordered. Hearing
reporters shall be paid for transcripts and copies at the rate set
by the supreme court for reporters in courts of record. If a
court reporter is unable to meet the time limit specified in this
section, any party, at its own expense, or the administrative
law judge may contract with another court reporter to ensure
the timely preparation of transcripts.
(3) Upon a satisfactory showing to the director in
writing that a party petitioning to review is indigent and
unable to pay for the preparation of the transcript, the director
may order a transcript to be prepared at the division's
expense, and, if the transcript was prepared by a hearing
reporter, the division shall pay the hearing reporter the fee
therefor.
(4) When a transcript is ordered as part of the
record on a petition to review, the original of the transcript
shall be filed with the division where it shall be available to
all parties in interest.
8-43-214. Transcript certified - evidence. A
transcribed copy of the evidence and proceedings, or any
specific part thereof, of any investigation or hearing which
was prepared at the direction of the director shall be certified
by the hearing reporter, or the division if the hearing was
recorded, to be a true and correct transcript of the testimony
on the investigation or hearing of a particular witness, or a
specific part thereof, carefully compared to original notes or
to the original recording, and to be a correct statement of the
evidence and proceedings had on such investigation or
hearing. A transcribed copy which is so certified may be
received as evidence by the director, the panel, and any court
with the same effect as if the person who prepared the
transcript were present and testified to the facts so certified.
8-43-215. Orders. (1) No more than fifteen
working days after the conclusion of a hearing, the
administrative law judge or director shall issue a written
order allowing or denying said claim. Such written order
shall either be a summary order or a full order. A full order
shall contain specific findings of fact and conclusions of law.
If compensation benefits are granted, such written order shall
specify the amounts thereof, the disability for which
compensation benefits are granted, by whom and to whom
such benefits shall be paid, and the method and time of such
payments. A certificate of mailing and a copy of such written
order shall be served by regular or electronic mail or by
facsimile to each of the parties in interest or their
representatives, the original of which shall be a part of the
records in said case. If an administrative law judge has
issued a summary order, a party dissatisfied with the order
may make a written request for a full order within seven
working days after the date of mailing of the summary order.
The request shall be a prerequisite to review under section 843-301.
If a request for a full order is made, the
administrative law judge shall have ten working days after
receipt of the request to issue the order. A full order shall be
entered as the final award of the administrative law judge or
director subject to review as provided in this article.
(2) Repealed.
8-43-216. Frivolous claims for compensation repeal. (Repealed)
8-43-217. Claims management - legislative
declaration. The general assembly hereby finds, determines,
and declares that active management of workers'
compensation claims should be practiced in order to expedite
and simplify the processing of claims, reduce litigation, and
better serve the public.
8-43-218. Authority of director. (1) The director
shall have authority to appoint claims managers to review,
audit, and close cases, to educate, inform, and assist the
public as to the workers' compensation system, to promote
speedy and uncomplicated problem resolution of workers'
compensation matters, and to otherwise manage claims.
(2) The director may require any party to a workers'
compensation claim to attend, cooperate, and comply with the
efforts of claims managers in managing claims or complaints
received by the division.
(3) Any party willfully refusing to cooperate or
comply with claims management efforts of the division shall
be subject to the penalty provisions set forth in section 8-43304 and to the denial or vacation of a hearing date.
(4) Any violation of any provision of this section
shall be cause for the rejection of an application for hearing
or a response thereto until such time as the violation is cured.
8-43-219. Not a limitation on rights or
privileges. Nothing in section 8-43-217 or 8-43-218 shall be
construed to limit any party's rights or privileges as provided
by law.
8-43-220. Injured worker exit survey. (1) Upon
closure of a claim, each insurer shall survey the claimant or,
if deceased, the decedent's dependents regarding the
claimant's satisfaction with the insurer for claims that are
reported to the division pursuant to section 8-43-101. The
survey shall be conducted in a form and manner as prescribed
by the director. The director shall develop the form and
manner of the survey with input from insurers that provide
workers' compensation policies pursuant to articles 40 to 55
of this title, and with the least administrative burden as
possible. The survey shall include questions regarding
courtesy, promptness of medical care, promptness of
handling the claim, promptness of resolving the claim, and
overall satisfaction with the experience with the insurer. An
employer or an insurer shall not take disciplinary action or
otherwise retaliate against a claimant or his or her dependents
for completing the survey.
(2) The insurer shall report the survey results
annually to the division. The director shall post the results of
the surveys on the division's web site.
41
PART 3
REVIEW PROCEDURES
8-43-301. Petitions to review. (1) Any order,
corrected order, or supplemental order is final unless a
petition to review or appeal has been filed in accordance with
this article.
(2) Any party dissatisfied with an order that
requires any party to pay a penalty or benefits or denies a
claimant any benefit or penalty may file a petition to review
with the division, if the order was entered by the director, or
at the Denver office of the office of administrative courts in
the department of personnel, if the order was entered by an
administrative law judge, and serve the same by mail on all
the parties. The petition shall be filed within twenty days
after the date of the certificate of mailing of the order, and,
unless so filed, the order shall be final. The petition to review
may be filed by mail, and shall be deemed filed upon the date
of mailing, as determined by the certificate of mailing, if the
certificate of mailing indicates that the petition to review was
mailed to the division or to the Denver office of the office of
administrative courts in the department of personnel, as
appropriate. The petition to review shall be in writing and
shall set forth in detail the particular errors and objections of
the petitioner. A petitioner shall, at the same time, order any
transcript relied upon for the petition to review, arrange with
the hearing reporter to pay for the same, and notify opposing
parties of the transcript ordered. Opposing parties shall have
twenty days after the date of the certificate of mailing of the
petition to review to order any other transcript not ordered by
the petitioner and arrange with the hearing reporter to pay for
the same.
(3) If transcripts of hearings are ordered as part of
the record in a petition to review, the director or
administrative law judge cannot rule on the petition until the
transcripts are lodged with the division.
(4) When the record upon which a petition to
review has been filed is complete, the parties shall be notified
in writing. The petitioner shall have twenty days after the
date of the certificate of mailing of the notice to file a brief in
support of the petition. The opposing parties shall have
twenty days after the date of the certificate of mailing of the
petitioner's brief to file briefs in opposition thereto. After the
briefs are filed or the time for filing has run, the director or
administrative law judge shall have thirty days to enter a
supplemental order or transmit the file to the industrial claim
appeals office for review.
(5) In ruling on a petition to review, the director or
administrative law judge may issue a supplemental order
labeled as such limited to the matters raised in the petition to
review, and, as to those matters, the director or administrative
law judge may amend or alter the original order or set the
matter for further hearing. In any event, if it has not already
been done, the administrative law judge or director, following
a petition to review an order, shall make findings of fact and
conclusions of law necessary to support such order.
(6) A party dissatisfied with a supplemental order
may file a petition for review by the panel. The petition shall
be filed with the division if the supplemental order was issued
by the director, or at the office of the administrative courts in
the department of personnel if the supplemental order was
issued by an administrative law judge. The petition shall be
filed within twenty days after the date of the certificate of
mailing of the supplemental order. The petition shall be in
writing, shall set forth in detail the particular errors and
objections relied upon, and shall be accompanied by a brief in
support thereof. The petition and brief shall be mailed by
petitioner to all other parties at the time the petition is filed.
All parties, except the petitioner, shall be deemed opposing
parties and shall have twenty days after the date of the
certificate of mailing of the petition and brief to file with the
division or the office of administrative courts, as appropriate,
briefs in opposition to the petition.
(7) When any petition for review by the panel is
filed, the division or the office of administrative courts shall,
when all briefs are submitted to the division or office of
administrative courts or within fifteen days after the date
briefs were due, certify and transmit the record to the
industrial claim appeals office along with the petitions and
briefs. The division shall simultaneously send notice to the
parties including the date that the record has been transmitted
to the industrial claim appeals office.
(8) 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.
(9) The panel shall have the power to issue such
procedural orders as may be necessary to carry out its
appellate review under subsection (7) of this section,
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.
(10) 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
court of appeals.
(11) 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.
42
(12) 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.
(13) 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.
(14) The signature of an attorney on a petition to
review or brief in support thereof constitutes a certificate by
the attorney that such attorney has read the petition or brief;
that, to the best of the attorney's knowledge, information, or
belief formed after reasonable inquiry, it is well grounded in
fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper
purpose, such as to harass, cause delay, or unnecessarily
increase the cost of litigation. If a petition or brief is signed
in violation of this subsection (14), the director, the
administrative law judge, or the panel shall award reasonable
attorney fees and costs to the party incurring the fees and
costs as a result of the improper actions.
8-43-302. Corrected orders. (1) The director, an
administrative law judge, or the panel may issue a corrected
order:
(a) At any time within thirty days after the entry of
an order, to correct any clerical errors in the order. Clerical
errors are grammatical or computational errors.
(b) At any time within thirty days of the entry of an
order, to correct any errors caused by mistake or
inadvertence.
(2) Any order corrected for clerical error, mistake,
or inadvertence shall be labeled "corrected order" and mailed
by the division. Any corrected order may be appealed in the
manner provided in this article for any other order.
8-43-303. Reopening. (1) At any time within six
years after the date of injury, the director or an administrative
law judge may, after notice to all parties, review and reopen
any award on the ground of fraud, an overpayment, an error,
a mistake, or a change in condition, except for those
settlements entered into pursuant to section 8-43-204 in
which the claimant waived all right to reopen an award; but a
settlement may be reopened at any time on the ground of
fraud or mutual mistake of material fact. Upon a prima facie
showing that the claimant received overpayments, the award
shall be reopened solely as to overpayments and repayment
shall be ordered. In cases involving the circumstances
described in section 8-42-113.5, recovery of overpayments
shall be ordered in accordance with said section. If an award
is reopened on grounds of an error, a mistake, or a change in
condition, compensation and medical benefits previously
ordered may be ended, diminished, maintained, or increased.
No such reopening shall affect the earlier award as to moneys
already paid except in cases of fraud or overpayment. Any
order entered under this subsection (1) shall be subject to
review in the same manner as other orders.
(2) (a) At any time within two years after the date
the last temporary or permanent disability benefits or
dependent benefits excluding medical benefits become due or
payable, the director or an administrative law judge may,
after notice to all parties, review and reopen an award on the
ground of fraud, an overpayment, an error, a mistake, or a
change in condition, except for those settlements entered into
pursuant to section 8-43-204 in which the claimant waived all
right to reopen an award; but a settlement may be reopened at
any time on the ground of fraud or mutual mistake of material
fact. Upon a prima facie showing that the claimant received
overpayments, the award shall be reopened solely as to
overpayments and repayment shall be ordered. In cases
involving the circumstances described in section 8-42-113.5,
recovery of overpayments shall be ordered in accordance
with said section. If an award is reopened under this
paragraph (a) on grounds of an error, a mistake, or a change
in condition, compensation and medical benefits previously
ordered may be ended, diminished, maintained, or increased.
No such reopening shall affect the earlier award as to moneys
already paid except in cases of fraud or overpayment. Any
order entered under this paragraph (a) shall be subject to
review in the same manner as other orders.
(b) At any time within two years after the date the
last medical benefits become due and payable, the director or
an administrative law judge may, after notice to all parties,
review and reopen an award only as to medical benefits on
the ground of an error, a mistake, or a change in condition,
except for those settlements entered into pursuant to section
8-43-204 in which the claimant waived all right to reopen an
award; but a settlement may be reopened at any time on the
ground of fraud or mutual mistake of material fact. If an
award is reopened under this paragraph (b), medical benefits
previously ordered may be ended, diminished, maintained, or
increased. No such reopening shall affect the earlier award as
to moneys already paid. Any order entered under this
paragraph (b) shall be subject to review in the same manner
as other orders.
(3) In cases where a claimant is determined to be
permanently totally disabled, any such case may be reopened
at any time to determine if the claimant has returned to
employment. If the claimant has returned to employment and
is earning in excess of four thousand dollars per year or has
participated in activities which indicate that the claimant has
the ability to return to employment, such claimant's
permanent total disability award shall cease and the claimant
shall not be entitled to further permanent total disability
benefits as a result of the injury or occupational disease
which led to the original permanent total disability award.
Any subsequent permanent partial disability benefits awarded
for the same injury or occupational disease shall be decreased
by the amount of permanent total disability benefits
previously received by the employee.
43
(4) The party attempting to reopen an issue or claim
shall bear the burden of proof as to any issues sought to be
reopened.
8-43-304. Violations - penalty - offset for benefits
obtained through fraud. (1) Any employer or insurer, or
any officer or agent of either, or any employee, or any other
person who violates any provision of articles 40 to 47 of this
title, or does any act prohibited thereby, or fails or refuses to
perform any duty lawfully enjoined within the time
prescribed by the director or panel, for which no penalty has
been specifically provided, or fails, neglects, or refuses to
obey any lawful order made by the director or panel or any
judgment or decree made by any court as provided by said
articles shall be subject to such order being reduced to
judgment by a court of competent jurisdiction and shall also
be punished by a fine of not more than one thousand dollars
per day for each such offense, to be apportioned, in whole or
part, at the discretion of the director or administrative law
judge, between the aggrieved party and the workers'
compensation cash fund created in section 8-44-112 (7) (a);
except that the amount apportioned to the aggrieved party
shall be a minimum of fifty percent of any penalty assessed.
(1.5) (a) An insurer who knowingly or repeatedly
violates any provision of articles 40 to 47 of this title shall be
subject to a fine as determined by the director. If necessary,
the director may conduct a hearing or may refer the matter to
the office of administrative courts for the entry of findings of
fact. The director shall promulgate rules that specify, with
respect to an insurer's willful or repeated violations that are
subject to this subsection (1.5):
(A) The circumstances pursuant to which the
director may issue an order imposing a fine; and
(B) Criteria for determining the amount of the fine.
(II) If the division determines, as part of a
compliance audit of an insurer or self-insured pool, that an
injury or occupational disease was not reported to the
division within the time specified in sections 8-43-101 and 843-103 because the insurer or self-insured pool did not have
notice or knowledge of the injury, occupational disease, or
fatality within a period of time that would allow the
information to be reported to the division within the time
specified in sections 8-43-101 and 8-43-103, the director
shall not impose a fine for late reporting under this subsection
(1.5). The director may impose a fine under this subsection
(1.5) for late reporting under sections 8-43-101 and 8-43-103
as part of findings from a compliance audit if the director
finds that the late reporting constituted a knowing or repeated
pattern of noncompliance with the reporting requirements of
sections 8-43-101 and 8-43-103 and was not caused by the
insurer or self-insured pool's lack of notice or knowledge of
the injury, occupational disease, or fatality within a period of
time that would allow the information to be reported to the
division within the time specified in sections 8-43-101 and 843-103.
(b) Fines imposed pursuant to this subsection (1.5)
shall be transmitted to the state treasurer, who shall credit
seventy-five percent of such fines to the general fund and
twenty-five percent to the workers' compensation cash fund,
created in section 8-44-112.
(2) An insurer or self-insured employer may take a
credit or offset of previously paid workers' compensation
benefits or payments against any further workers'
compensation benefits or payments due a worker when the
worker admits to having obtained the previously paid benefits
or payments through fraud, or a civil judgment or criminal
conviction is entered against the worker for having obtained
the previously paid benefits through fraud. Benefits or
payments obtained through fraud by a worker shall not be
included in any data used for ratemaking or individual
employer rating or dividend calculations by any insurer or by
Pinnacol Assurance.
(3) The director and each administrative law judge
shall report to the division each time a penalty is imposed
pursuant to this section. Each such report shall include the
amount of the penalty, the name of the administrative law
judge awarding the penalty, if applicable, and the name of the
offending party.
(4) In any application for hearing for any penalty
pursuant to subsection (1) of this section, the applicant shall
state with specificity the grounds on which the penalty is
being asserted. After the date of mailing of such an
application, an alleged violator shall have twenty days to cure
the violation. If the violator cures the violation within such
twenty-day period, and the party seeking such penalty fails to
prove by clear and convincing evidence that the alleged
violator knew or reasonably should have known such person
was in violation, no penalty shall be assessed. The curing of
the violation within the twenty-day period shall not establish
that the violator knew or should have known that such person
was in violation.
(5) A request for penalties shall be filed with the
director or administrative law judge within one year after the
date that the requesting party first knew or reasonably should
have known the facts giving rise to a possible penalty.
8-43-304.5. Penalties in ratemaking. For purposes
of ratemaking under sections 10-4-401, 10-4-402, and 10-4403, C.R.S., insurers shall not include, nor shall the insurance
commissioner consider, any penalties paid under section 843-304 or any damages awarded in suits founded upon breach
of duty in handling a claim for compensation under section 841-102.
8-43-305. Each day separate offense. Every day
during which any employer or insurer, or officer or agent of
either, or any employee, or any other person fails to comply
with any lawful order of an administrative law judge, the
director, or the panel or fails to perform any duty imposed by
articles 40 to 47 of this title shall constitute a separate and
distinct violation thereof. In any action brought to enforce the
same or to enforce any penalty provided for in said articles,
such violation shall be considered cumulative and may be
joined in such action.
8-43-306. Collection of fines, penalties, and
overpayments. (1) A certified copy of any final order of the
director or an administrative law judge ordering the payment
of any penalty or repayment of overpayments pursuant to
articles 40 to 47 of this title may be filed with the clerk of the
district court of any county in this state at any time after the
period of time provided by articles 40 to 47 of this title for
appeal or seeking review of the order has passed without
44
appeal or review being sought or, if appeal or review is
sought, after the order has been finally affirmed and all
appellate remedies and all opportunities for review have been
exhausted. The party filing the order shall at the same time
file a certificate to the effect that the time for appeal or
review has passed without appeal or review being undertaken
or that the order has been finally affirmed with all appellate
remedies and all opportunities for review having been
exhausted. The clerk of the district court shall record the
order and the filing party's certificate in the judgment book of
said court and entry thereof made in the judgment docket, and
it shall thenceforth have all the effect of a judgment of the
district court, and execution may issue thereon out of said
court as in other cases. Any such order may be filed by and in
the name of the director or by and in the name of the party in
the worker's compensation action who was injured by the
violation of any provision of articles 40 to 47 of this title or
who was found to be entitled to repayment of overpayments
under said articles.
(2) All such penalties when collected shall be
payable to the division and transmitted through the state
treasurer for credit to the subsequent injury fund, created in
section 8-46-101.
8-43-307. Appeals
to
the
court
of
appeals. (1) The final order of the director or the panel shall
constitute the final order of the division. Any person in
interest, including Pinnacol Assurance, being dissatisfied
with any final order of the division, may commence an action
in the court of appeals against the industrial claim appeals
office as defendant to modify or vacate any such order on the
grounds set forth in section 8-43-308.
(2) All such actions shall have precedence over any
civil cause of a different nature pending in such court, and the
court of appeals shall always be deemed open for the trial
thereof, and such actions shall be tried and determined by the
court of appeals in the manner provided for other civil
actions.
(3) (Deleted by amendment, L. 95, p. 235, § 3,
effective April 17, 1995.)
(4) In any case before the court of appeals pursuant
to this section, the court may apply the sanctions of rule 38 of
the Colorado appellate rules if the court finds such
application to be appropriate.
8-43-308. Causes for setting aside award. Upon
hearing the action, the court of appeals may affirm or set
aside such 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 court of appeals.
8-43-309. Actions in court tried within thirty
days. Any such action commenced in the court of appeals to
set aside or modify any order shall be heard within thirty days
after issue shall be joined, unless continued on order of the
court for good cause shown. No continuance shall be for
longer than thirty days at one time.
8-43-310. Error
disregarded
unless
prejudicial. The appeal shall be upon the record returned to
the court by the industrial claim appeals office. Upon the
hearing of any such action, the court shall disregard any
irregularity or error of the director or the panel unless it
affirmatively appears that the party complaining was
damaged thereby.
8-43-311. Court record transmitted to industrial
claim appeals office - when. It is the duty of the clerk of the
court of appeals, without order of court or application of the
panel, to transmit the record in any case to the industrial
claim appeals office within twenty-five days after the order or
judgment of the court unless in the meantime further
appellate review is granted by the supreme court. If the
supreme court grants further appellate review, the clerk shall
return the record immediately upon receipt of remittitur from
the supreme court, unless the order of the supreme court
requires further action by the court of appeals, and then
within twenty-five days after such further action.
8-43-312. Court may remand case or order entry
of award. Upon setting aside of any order, the court may
recommit the controversy and remand the record in the case
for further hearing or proceedings by the director,
administrative law judge, or panel, or it may order entry of a
proper award upon the findings as the nature of the case shall
demand. In no event shall such order for award be for a
greater amount of compensation than allowed by articles 40
to 47 of this title, or in any manner conflict with the
provisions thereof.
8-43-313. Summary
review
by
supreme
court. Any affected party dissatisfied with the decision of the
court of appeals may seek review by writ of certiorari in the
supreme court. If the supreme court reviews the judgment of
the court of appeals, such review shall be limited to a
summary review of questions of law. Any such action shall
be advanced upon the calendar of the supreme court, and a
final decision shall be rendered within sixty days after the
date the supreme court grants further appellate review. The
director, an administrative law judge, the industrial claim
appeals office, or any other aggrieved party shall not be
required to file any undertaking or other security upon review
by the supreme court.
8-43-314. Fees - costs - duty of district attorneys
and attorney general. No fee shall be charged by the clerk
of any court for the performance of any official service
required by articles 40 to 47 of this title. On proceedings to
review any order or award, costs as between the parties shall
be allowed in the discretion of the court, but no costs shall be
taxed against said director or industrial claim appeals office.
In any action for the review of any order or award and upon
any review thereof by the supreme court, it is the duty of the
district attorney in the county wherein said action is pending,
or of the attorney general if requested by the director or
industrial claim appeals office, to appear on behalf of either
or both, whether any other party defendant should have
appeared or been represented in the action.
8-43-315. Witnesses and testimony - mileage fees - costs. The director or any agent, deputy, or
administrative law judge of the division has the power to
issue subpoenas to compel the attendance of witnesses or
45
parties and the production of books, papers, or records and to
administer oaths. Any person who serves a subpoena shall
receive the same fee as the sheriff. Each witness who is
subpoenaed on behalf of the director and who appears in
obedience thereto shall receive for attendance the fees and
mileage provided for witnesses in civil cases in the district
court, which shall be audited and paid from the state treasury
in the same manner as other expenses are audited and paid,
upon the presentation of a proper voucher approved by the
director. The director has the discretion to assess the cost of
attendance and mileage of witnesses subpoenaed by either
party to any proceeding against the other party to such
proceeding when, in the director's judgment, the necessity of
subpoenaing such witnesses arises out of the raising of any
incompetent, irrelevant, or sham issues by such other party.
8-43-316. Appearance by officer for closely held
corporation. An officer of a closely held Colorado
corporation as defined in section 13-1-127 (1) (a), C.R.S.,
may appear on behalf of any such corporation, which has
obtained coverage as required by articles 40 to 47 of this title
in proceedings authorized under the "Workers' Compensation
Act of Colorado", articles 40 to 47 of this title, where the
amount at issue does not exceed ten thousand dollars, except
in proceedings before the industrial claim appeals office
under this part 3, appeals to the court of appeals under section
8-43-307, and summary reviews by the supreme court under
section 8-43-313.
8-43-317. Service of documents. All documents
that are required to be exchanged under articles 40 to 47 of
this title shall be transmitted or served in the same manner or
by the same means to all required recipients.
PART 4
ENFORCEMENT AND PENALTIES
8-43-401. Attorney general, district attorney, or
attorney of division to act for director or office - penalties
for failure of insurer to pay benefits. (1) Upon the request
of the director or the industrial claim appeals office, the
district attorney of any district or any attorney-at-law
employed by the division shall institute and prosecute the
necessary actions or proceedings for the enforcement of any
of the provisions of articles 40 to 47 of this title, or any award
or order of the director, an administrative law judge, or the
industrial claim appeals office, or for the recovery of any
money due to Pinnacol Assurance, or any penalty provided in
said articles, and shall defend in like manner all suits, actions,
or proceedings brought against the director, an administrative
law judge, or the industrial claim appeals office.
(2) (a) After all appeals have been exhausted or in
cases where there have been no appeals, all insurers and selfinsured employers shall pay benefits within thirty days after
any benefits are due. If any insurer or self-insured employer
knowingly delays payment of medical benefits for more than
thirty days or knowingly stops payments, such insurer or selfinsured employer shall pay a penalty of eight percent of the
amount of wrongfully withheld benefits; except that no
penalty is due if the insurer or self-insured employer proves
that the delay was the result of excusable neglect. If any
insurer or self-insured employer willfully withholds
permanent partial disability benefits within thirty days of
when due, the insurer or self-insured employer shall pay a
penalty to the division of ten percent of the amount of such
benefits due. The penalties shall be apportioned, in whole or
part, at the discretion of the director or administrative law
judge, among the aggrieved party, the medical services
provider, and the workers' compensation cash fund created in
section 8-44-112 (7) (a).
(b) All moneys collected as penalties by the
division pursuant to this subsection (2) shall be transmitted to
the state treasurer who shall credit the same to the workers'
compensation cash fund created in section 8-44-112.
8-43-401.5. Financial incentives to deny or delay
claim or medical care - prohibition - bad faith - penalties.
(1) No insurer, employee or contractor of an insurer, selfinsured employer, employee or contractor of a self-insured
employer, health care provider, or employee or contractor of
a health care provider treating an injured worker under the
provisions of articles 40 to 47 of this title shall pay or receive
any form of financial remuneration that is based on any of the
following:
(a) The number of days to maximum medical
improvement;
(b) The rate of claims approval or denial;
(c) The number of medical procedures, diagnostic
procedures, or treatment appointments approved; or
(d) Any other criteria designed or intended to
encourage a violation of any provision of articles 40 to 47 of
this title.
(2) (a) Payment of remuneration in violation of this
section constitutes an unfair act or practice in the business of
insurance, and the insurer or self-insured employer who pays
or directs the payment of the remuneration shall be subject to
penalties in accordance with part 11 of article 3 of title 10,
C.R.S.
(b) In addition to, or as an alternative to, any
penalties imposed pursuant to paragraph (a) of this subsection
(2), an insurer or self-insured employer who is found to have
violated subsection (1) of this section may be subject to fines
as determined by the director pursuant to section 8-43-304
(1.5).
(3) Nothing in this section:
(a) Restricts or limits the ability of a claims adjuster
or employee or contracted claims personnel to investigate,
detect, or prevent fraud; or
(b) Limits the payment or receipt of financial
incentives for any other lawful purpose.
8-43-402. False statement - felony. If, for the
purpose of obtaining any order, benefit, award,
compensation, or payment under the provisions of articles 40
to 47 of this title, either for self-gain or for the benefit of any
other person, anyone willfully makes a false statement or
representation material to the claim, such person commits a
class 5 felony and shall be punished as provided in section
18-1-105, C.R.S., and shall forfeit all right to compensation
under said articles upon conviction of such offense.
8-43-403. Attorney fees. (1) 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 a permanent
46
disability award, either by admission or settlement. 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 or, subject to approval by the director, may
provide for a contingent fee not to exceed the limitations
imposed by this section. On unappealed contested cases, a
contingent fee exceeding twenty percent of the amount of
contested benefits shall be presumed to be unreasonable. At
the request of either an employee or the employee's attorney,
the director shall determine what portion of the benefits
awarded were contested, or the reasonableness of the fee
charged by such attorney, or both. At the request of the
employer or its insurance carrier or the attorney for either of
them, the director shall determine the reasonableness of the
fee charged by the attorney for the insurance carrier. No
request for determination of the reasonableness of fees shall
be considered by the director if received later than one
hundred eighty days after the issuance of the final order,
judgment, or opinion disposing of the last material issue in
the case and the expiration of any right to review or appeal
therefrom. In making this determination, the director shall
consider fees normally charged by attorneys for cases
requiring the same amount of time and skill and may decrease
or increase the fee payable to such attorney. If the director
finds that a review by the industrial claims appeals office or
an appeal to the court of appeals or to the supreme court was
perfected or if the director finds that such attorney reasonably
devoted an extraordinary amount of time to the case, the
director may award or approve a contingent fee or other fee
in a percentage or amount that exceeds twenty percent of the
amount of contested benefits.
In determining the
reasonableness of fees charged by an attorney for an
employer or employer's insurance carrier, the director shall
compare the fees of such attorney with the fees charged by
the claimant's attorney in the same case and shall not approve
an amount substantially greater than the reasonable amount
charged by the said claimant's attorney or, if the claimant did
not prevail, the reasonable amount the said claimant's
attorney would have charged had the claimant prevailed,
unless the director finds, based on a showing by the attorney
for the employer or carrier, that higher fees are objectively
justifiable. Legal costs not found reasonable shall not be
allowed as an expense in fixing premium rates by the
commissioner of insurance.
(2) Any attorney who represents any party in a
workers' compensation case shall provide the party with a
written fee agreement which sets forth, in full, the attorney's
specific fee arrangement, including the criteria upon which
the attorney bases his hourly or set fee and the circumstances
in which any modifications or adjustments to such fee will be
made, and specifying whether the client will be charged for
the attorney's expenses or advances made by the attorney on
behalf of the party, including without limitation costs of
copying, research, telephone calls, postage, and any other
expenses incident to the litigation which the attorney may be
ethically bound to undertake on behalf of the party pursuant
to law or pursuant to any court rule including the code of
professional responsibility as adopted by the supreme court of
Colorado. Contingent fee agreements shall be in conformity
with all applicable provisions of the said code or of rules of
the supreme court, and, in addition, such agreements shall set
forth the provisions of this section in easy to understand
language in at least ten-point bold-faced type. No such fee
agreement may be enforced against any party unless it
complies with the requirements of this section and is signed
by both parties.
Any attempt by an attorney who
intentionally does not comply with this section and who seeks
to enforce a fee agreement which does not comply with the
requirements of this section shall be presumed to be a
violation of the code of professional responsibility as adopted
by the supreme court of Colorado.
(3) Repealed.
8-43-404. Examination - refusal - personal
responsibility - physicians to testify and furnish results injured worker right to select treating physicians injured
worker right to third-party communications - definitions rules. (1) (a) If in case of injury the right to compensation
under articles 40 to 47 of this title exists in favor of an
employee, upon the written request of the employee's
employer or the insurer carrying such risk, the employee shall
from time to time submit to examination by a physician or
surgeon or to a vocational evaluation, which shall be
provided and paid for by the employer or insurer, and the
employee shall likewise submit to examination from time to
time by any regular physician selected and paid for by the
division.
(b) (I) At least three business days in advance of an
examination under paragraph (a) of this subsection (1), if
requested by the claimant, the employer or insurer shall pay
to the claimant the claimant's estimated expenses of attending
the examination, including transportation, mileage, food, and
hotel costs. Failure to provide payment in accordance with
this subparagraph (I) constitutes grounds for the claimant to
refuse to attend the examination.
(II) If an employer pays estimated expenses under
this paragraph (b) and the claimant does not attend the
examination, the employer or insurer may recover the costs
paid for the employee's expenses from future indemnity
benefits.
(2) (a) The employee shall be entitled to have a
physician, provided and paid for by the employee, present at
any such examination. If an employee is examined by a
chiropractor at the request of the employer, the employee
shall be entitled to have a chiropractor provided and paid for
by the employee present at any such examination. After any
examination conducted under this section, the examiner shall
prepare a written report giving a description of the
examination performed, the written documents or any other
materials reviewed, and all findings or conclusions of the
examiner. The employee shall be entitled to receive from the
examining physician or chiropractor a copy of any report that
the physician or chiropractor makes to the employer, insurer,
or division upon the examination, and the copy shall be
furnished to the employee at the same time it is furnished to
the employer, insurer, or division. The employee shall also
be entitled to receive reports from any physician selected by
the employer to treat the employee upon the same terms and
conditions and at the same time the reports are furnished by
the physician to the employer. All such examinations shall
be recorded in audio in their entirety and retained by the
47
examining physician until requested by any party. Prior to
commencing the audio recording, the examining physician
shall disclose to the employee the fact that the exam is being
recorded. If requested, an exact copy of the recording shall
be provided to the parties. Nothing in this subsection (2)
shall be construed to prevent any party to the claim from
making an audio recording of the examination. The division
shall promulgate rules regarding such recordings that shall
include provisions for the protection of the audio recordings
and the privacy of information contained in such recordings.
The employer shall be entitled to receive reports from any
physician or chiropractor selected by the employee to treat or
examine the employee in connection with such injury upon
the same terms and at the same time the reports are furnished
by the physician or chiropractor to the employee.
(b) The amendments made to paragraph (a) of this
subsection (2) by Senate Bill 09-168, enacted in 2009, are
declared to be procedural and were intended to and shall
apply to all workers' compensation claims, regardless of the
date the claim was filed.
(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. If the employee refuses to submit to such
examination after direction by the director or any agent,
referee, or administrative law judge of the division appointed
pursuant to section 8-43-208 (1) or in any way obstructs the
same, all right to weekly indemnity which accrues and
becomes payable during the period of such refusal or
obstruction shall be barred. If any employee persists in any
unsanitary or injurious practice which tends to imperil or
retard recovery or refuses to submit to such medical or
surgical treatment or vocational evaluation as is reasonably
essential to promote recovery, the director shall have the
discretion to reduce or suspend the compensation of any such
injured employee.
(4) Any physician or chiropractor who makes or is
present at any such examination may be required to testify as
to the results thereof. Any physician or chiropractor having
attended an employee in a professional capacity may be
required to testify before the division when it so directs. A
physician or chiropractor will not be required to disclose
confidential communications imparted to said physician or
chiropractor for the purpose of treatment and which are
unnecessary to a proper understanding of the case.
(5) (a) (I) (A) In all cases of injury, the employer or
insurer shall provide a list of at least two physicians or two
corporate medical providers or at least one physician and one
corporate medical provider, where available, in the first
instance, from which list an injured employee may select the
physician who attends said injured employee. The two
designated providers shall be at two distinct locations without
common ownership. If there are not two providers at two
distinct locations without common ownership within thirty
miles of each other, then an employer may designate two
providers at the same location or with shared ownership
interests. Upon request by an interested party to the workers'
compensation claim, a designated provider on the employer's
list shall provide a list of ownership interests and
employment relationships, if any, to the requesting party
within five days of the receipt of the request. If the services
of a physician are not tendered at the time of injury, the
employee shall have the right to select a physician or
chiropractor. For purposes of this section, "corporate medical
provider" means a medical organization in business as a sole
proprietorship, professional corporation, or partnership.
(B) If there are fewer than four physicians or
corporate medical providers within thirty miles of the
employer's place of business who are willing to treat an
injured employee, the employer or insurer may instead
designate one physician or one corporate medical provider,
and subparagraphs (III) and (IV) of this paragraph (a) shall
not apply. A physician is presumed willing to treat injured
workers unless he or she indicates to the employer or insurer
to the contrary.
(II) (A) If the employer is a health care provider or
a governmental entity that currently has its own occupational
health care provider system, the employer may designate
health care providers from within its own system and is not
required to provide an alternative physician or corporate
medical provider from outside its own system.
(B) If the employer has its own on-site health care
facility, the employer may designate such on-site health care
facility as the authorized treating physician, but the employer
shall comply with subparagraph (III) of this paragraph (a).
For purposes of this sub-subparagraph (B), "on-site health
care facility" means an entity that meets all applicable state
requirements to provide health care services on the
employer's premises.
(III) An employee may obtain a one-time change in
the designated authorized treating physician under this
section by providing notice that meets the following
requirements:
(A) The notice is provided within ninety days after
the date of the injury, but before the injured worker reaches
maximum medical improvement.
(B) The notice is in writing and submitted on a form
designated by the director. The notice provided in this
subparagraph (III) shall also simultaneously serve as a
request and authorization to the initially authorized treating
physician to release all relevant medical records to the newly
authorized treating physician.
(C) The notice is directed to the insurance carrier or
to the employer's authorized representative, if self-insured,
and to the initially authorized treating physician and is
deposited in the United States mail or hand-delivered to the
employer, who shall notify the insurance carrier, if necessary,
and the initially authorized treating physician.
(D) The new physician is on the employer's
designated list or provides medical services for a designated
corporate medical provider on the list.
(E) The transfer of medical care does not pose a
threat to the health or safety of the injured employee.
(F)
An insurance carrier, or an employer's
authorized representative if the employer is self-insured, shall
track how often injured employees change their authorized
treating physician pursuant to this subparagraph (III) and
shall report such information to the division upon request.
48
(IV) (A) When an injured employee changes his or
her designated authorized treating physician, the newly
authorized treating physician shall make a reasonable effort
to avoid any unnecessary duplication of medical services.
(B) The originally authorized treating physician
shall send all medical records in his or her possession
pertaining to the injured employee to the newly authorized
treating physician within seven calendar days after receiving
a request for medical records from the newly authorized
treating physician.
(C) The originally authorized treating physician
shall continue as the authorized treating physician for the
injured employee until the injured employee's initial visit
with the newly authorized treating physician, at which time
the treatment relationship with the initially authorized
treating physician shall terminate.
(D) The opinion of the originally authorized treating
physician regarding work restrictions and return to work shall
control unless and until such opinion is expressly modified by
the newly authorized treating physician.
(E) The newly authorized treating physician shall be
presumed to have consented to treat the injured employee
unless the newly authorized treating physician expressly
refuses in writing within five days after the date of the notice
to change authorized treating physicians. If the newly
authorized treating physician refuses to treat the injured
employee, the employee may return to the employer to
request an alternative authorized treating physician. If the
employer does not provide an alternative authorized treating
physician within five days after the employee's request, rules
established by the division shall control.
(V) If the authorized treating physician moves from
one facility to another, or from one corporate medical
provider to another, an injured employee may continue care
with the authorized treating physician, and the original
facility or corporate medical provider shall provide the
injured employee's medical records to the authorized treating
physician within seven days after receipt of a request for
medical records from the authorized treating physician.
(VI) In addition to the one-time change of physician
allowed in subparagraph (III) of this paragraph (a), upon
written request to the insurance carrier or to the employer's
authorized representative if self-insured, an injured employee
may procure written permission to have a personal physician
or chiropractor treat the employee. If permission is neither
granted nor refused within twenty days, the employer or
insurance carrier shall be deemed to have waived any
objection to the employee's request. Objection shall be in
writing and shall be deposited in the United States mail or
hand-delivered to the employee within twenty days. An
insurance carrier, or an employer's authorized representative
if self-insured, shall track how often an injured employee
requests to change his or her physician and how often such
change is granted or denied and shall report such information
to the division upon request. Upon the proper showing to the
division, the employee may procure the division's permission
at any time to have a physician of the employee's selection
treat the employee, and in any nonsurgical case the employee,
with such permission, in lieu of medical aid, may procure any
nonmedical treatment recognized by the laws of this state as
legal. The practitioner administering the treatment shall
receive fees under the medical provisions of articles 40 to 47
of this title as specified by the division.
(b) Any private insurer or self-insured employer
acting as its own insurance carrier as provided in section 844-201 providing workers' compensation coverage shall pay
for chiropractic care as provided in paragraph (a) of this
subsection (5).
(c) A treating physician shall not communicate with
the employer or insurer of an injured worker regarding that
injured worker unless:
(I)
The injured worker is present for the
communication; or
(II) The treating physician makes an accurate
written record of the communication, containing all relevant
and material information that was communicated, and
provides the injured worker access to the writing in the same
manner as medical records disclosures as required by director
rules.
(6) Application or prosecution of a claim for
benefits shall be a waiver of any privilege concerning
communications relating to all medical issues raised by the
claim, for the purposes of a utilization review conducted
pursuant to section 8-43-501.
(7) An employer or insurer shall not be liable for
treatment provided pursuant to article 41 of title 12, C.R.S.,
unless such treatment has been prescribed by an authorized
treating physician.
(8) Upon request by an employee who has not
reached maximum medical improvement and whose
authorized treating physician is not level II accredited, an
insurer or self-insured employer shall select a level II
accredited physician as the authorized treating physician.
(9) (a) Health care services provided shall be
deemed authorized if the claim is found to be compensable
when:
(I) Compensability of a claim is initially denied;
(II) The services of the physician selected by the
employer are not tendered at the time of the injury; and
(III) The injured worker is treated:
(A) At a public health facility in the state;
(B) At a public health facility within one hundred
fifty miles of the residence of the injured worker; or
(C) Through a publicly funded program.
(b) A claimant shall not be liable for payment for
treatment by the provider under this subsection (9) if the
treatment is reasonably needed and related to the injury.
8-43-405. Payment as discharge of liability conflicting claims. Payment of death benefits to one or more
dependents shall protect and discharge to that extent all
compensation under articles 40 to 47 of this title unless and
until any other person claiming to be a dependent has given
the division notice of said person's claim and until the
division has notified the employer or the employer's
insurance carrier of such claim. In such case, the director or
an administrative law judge shall determine the respective
rights of said rival claimants, and thereafter such death
benefits shall be paid to such dependents as the director or the
administrative law judge may find so entitled under the
provisions of said articles.
49
8-43-406. Compensation in lump sum. (1) At
any time after six months have elapsed from the date of
injury, the claimant may elect to take all or any part of the
compensation awarded in a lump sum by sending written
notice of the election and the amount of benefits requested to
the carrier or the noninsured or self-insured employer. The
carrier or self-insured employer shall file the calculation of
the lump sum due and notice that the lump sum has been paid
to the claimant within ten days after the election. When the
claimant is unrepresented, the director shall calculate
amounts to be paid based on the present worth of partial
payments, considering interest at four percent per annum, and
less a deduction for the contingency of death. The director
shall make the method of calculation of lump sums available
to all parties at all times, including posting the information on
the division's web site.
Neither the director nor an
administrative law judge shall in any way attempt to
condition the lump sum payment on the claimant waiving the
right to pursue permanent total disability benefits.
(2) The aggregate of all lump sums granted to a
claimant who has been awarded compensation shall not
exceed sixty thousand dollars.
8-43-407. Election
to
waive
vocational
rehabilitation benefits and become subject to permanent
partial disability provisions. In all cases arising under
articles 40 to 47 of this title prior to July 1, 1987, the
employee, the employer, and, if insured, the insurance carrier
may elect, upon unanimous agreement, in writing to waive
vocational rehabilitation which was awarded pursuant to
section 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. Such election shall be made in a form
prescribed by the director and shall not affect payments made
prior to the filing of such agreement. Failure to agree to the
options available under the provisions of this section shall not
be evidence of bad faith in any future litigation by either
party.
8-43-408. Default of employer - additional
liability. (1) In any case where the employer is subject to the
provisions of articles 40 to 47 of this title 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 effected 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 amounts of compensation or
benefits provided in said articles shall be increased fifty
percent.
(2) In all cases where compensation is awarded
under the terms of this section, the director or an
administrative law judge of the division shall compute and
require the employer to pay to a trustee designated by the
director or administrative law judge an amount equal to the
present value of all unpaid compensation or benefits
computed at the rate of four percent per annum; or, in lieu
thereof, such employer, within ten days after the date of such
order, shall file a bond with the director or administrative law
judge signed by two or more responsible sureties to be
approved by the director or by some surety company
authorized to do business within the state of Colorado. The
bond shall be in such form and amount as prescribed and
fixed by the director and shall guarantee the payment of the
compensation or benefits as awarded. The filing of any
appeal, including a petition for review, shall not relieve the
employer of the obligation under this subsection (2) to pay
the designated sum to a trustee or to file a bond with the
director or administrative law judge.
(3) A certified copy of any award of the director,
administrative law judge, or panel ordering the payment of
compensation entered in such case may be filed with the clerk
of the district court of any county in this state at any time
after the order of the administrative law judge awarding
compensation, and the same shall be recorded by said clerk in
the judgment book of said court and entry thereof made in the
judgment docket, and it shall thenceforth have all the effect
of a judgment of the district court, and execution may issue
thereon out of said court as in other cases. Upon the reversal,
setting aside, modification, or vacation of said order or award
and upon payment to the trustee or furnishing of bond in
accordance with the terms of this section, then, upon
certification thereof by the director, administrative law judge,
or panel, said record in the judgment book and the entry in
the judgment docket shall be vacated, and any execution
thereon shall be recalled.
(4) Any employer who fails to comply with a lawful
order or judgment issued pursuant to subsection (2) or (3) of
this section is liable to the employee, if injured, or, if killed,
said employee's dependents, in addition to the amount in the
order or judgment, for an amount equal to fifty percent of
such order or judgment or one thousand dollars, whichever is
greater, plus reasonable attorney fees incurred after entry of a
judgment or order.
8-43-409. Defaulting employers - penalties enjoined from continuing business - fines - procedure definition. (1) An employer subject to the terms and
provisions of articles 40 to 47 of this title who fails to insure
or to keep the insurance required by such articles in force,
allows the insurance to lapse, or fails to effect a renewal of
the insurance shall not continue business operations while
such default in effective insurance continues.
Upon
receiving information that an employer is in default of its
insurance obligations, the director shall investigate and, if
the information can be substantiated, shall notify the
employer of the opportunity to request a prehearing
conference on the issue of default. As part of the director's
investigation, the director may verify that all employees of
that employer are insured through the employer's workers'
compensation plan. The director may forward any workers'
compensation coverage issue to the employer's workers'
compensation carrier for further investigation by the carrier.
Thereafter, if necessary, the director may set the issue of the
employer's default for hearing in accordance with hearing
time schedule and procedures set forth in articles 40 to 47 of
this title and rules promulgated by the director. Upon a
finding that the employer is in default of its insurance
obligations, the director shall take either or both of the
following actions:
50
(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. For purposes of this subparagraph (II) only, if an
employer has been fined pursuant to subparagraph (I) of this
paragraph (b) and the director determines that substantially
the same people or entities were involved in forming a
subsequent employer, the initial violation referred to in
subparagraph (I) of this paragraph (b) shall be deemed to
have already occurred with regard to violations committed
by the subsequent employer.
(2) A cease-and-desist order issued or fine imposed
by the director under subsection (1) of this section shall
include specific findings of fact that reflect:
(a) The employer received notice of a hearing, when
applicable;
(b) The employer employs employees for whom it
must carry workers' compensation insurance under the
provisions of articles 40 to 47 of this title;
(c) The employer does not or did not have a policy
of workers' compensation insurance in effect; and
(d) The employer continues or continued to operate
its business in the absence of such coverage.
(3) Notwithstanding any other provision of articles
40 to 47 of this title, after the entry of a cease and desist order
and upon the request of the director, the attorney general shall
immediately institute proceedings for injunctive relief against
the employer in the district court of any county in this state
where such employer does business. In any such district court
proceeding, a certified copy of any cease and desist order
entered by the director in accordance with the provisions of
subsection (1) of this section based upon evidence in the
record shall be prima facie evidence of the facts found in
such record. Such injunctive relief may include the issuance
of a temporary restraining order under rule 65 of the
Colorado rules of civil procedure, which order shall enjoin
the employer from continuing its business operations until it
has procured the required insurance or has posted adequate
security with the court pending the procurement of such
insurance. The court, in its discretion, shall determine the
amount that shall constitute adequate security.
(4) The issuance of an order to cease and desist, the
imposition of a fine pursuant to subsection (1) of this section,
or the issuance of an order for injunctive relief against an
employer for failure to insure or to keep insurance in force as
required by articles 40 to 47 of this title shall be the penalty
for such failure within the meaning of section 8-43-304 (1)
and such penalty shall be in addition to the increase in
benefits that section 8-43-408 requires.
(5) The director or administrative law judge shall
report to the division each time a fine is imposed pursuant to
subsection (1) of this section. Each such report shall include
the amount of the fine and the name of the offending party.
(6) A certified copy of any final order of the
director ordering the payment of a fine imposed pursuant to
subsection (1) of this section may be filed with the clerk of
the district court of any county in this state at any time after
the period of time provided by articles 40 to 47 of this title
for appeal or seeking review of the order has passed without
appeal or review being sought or, if appeal or review is
sought, after the order has been finally affirmed and all
appellate remedies and all opportunities for review have been
exhausted. The party filing the order shall at the same time
file a certificate to the effect that the time for appeal or
review has passed without appeal or review being undertaken
or that the order has been finally affirmed with all appellate
remedies and all opportunities for review having been
exhausted. The clerk of the district court shall record the
order and the filing party's certificate in the judgment book of
the court and entry thereof made in the judgment docket, and
it shall thereafter have all the effect of and constitute a
judgment of the district court, and execution may issue
thereon from said court as in other cases. Any such order
may be filed by and in the name of the director.
(7) Fines collected pursuant to this section shall be
transmitted to the state treasurer, who shall credit twenty-five
percent of such fine to the workers' compensation cash fund,
created in section 8-44-112, which shall be used to offset the
premium surcharge. The state treasurer shall credit the
remainder of the fine to the general fund.
(8) For the purposes of this section, "construction
site" means a location where a structure that is attached or
will be attached to real property is constructed, altered, or
remodeled.
8-43-410. Right to compensation operates as lien
- interest on award. (1) The right of compensation granted
by articles 40 to 47 of this title and any awards made
thereunder shall have the same preference or lien without
limit of amount against the assets of the employer or the
employer's insurer or both as may be allowed by law for a
claim for unpaid wages for labor.
(2) Every employer or insurance carrier of an
employer shall pay interest 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. Upon
application and satisfactory showing to the director or
administrative law judge of the valid reasons therefor, said
director or administrative law judge, upon such terms or
conditions as the director or administrative law judge may
determine, may 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.
51
PART 5
UTILIZATION REVIEW PROCESS INDEPENDENT MEDICAL EXAMINATIONS
8-43-501. Utilization review process - legislative
declaration - cash fund. (1) The general assembly hereby
finds and determines that insurers and self-insured employers
should be required to pay for all medical services pursuant to
this article which may be reasonably needed at the time of an
injury or occupational disease to cure and relieve an
employee from the effects of an on-the-job injury. However,
insurers and self-insured employers should not be liable to
pay for care unrelated to a compensable injury or services
which are not reasonably necessary or not reasonably
appropriate according to accepted professional standards.
The general assembly, therefore, hereby declares that the
purpose of the utilization review process authorized in this
section is to provide a mechanism to review and remedy
services rendered pursuant to this article which may not be
reasonably necessary or reasonably appropriate according to
accepted professional standards.
(2) (a) An insurer, self-insured employer, or
claimant may request a review of services rendered pursuant
to this article by a health care provider. Requests for
utilization review shall be submitted on forms promulgated
by the director by rule. At the time of submission of a review
request, the requester shall pay the division a fee prescribed
by the director by rule. Such fee shall cover the division's
administrative costs and the costs of compensating utilization
review committee members. If a claimant is successful in a
utilization review case brought pursuant to this section, the
division shall reimburse the fee charged pursuant to this
paragraph (a) and assess it against the insurer or self-insured
employer. The state treasurer shall credit fees collected
pursuant to this section to the utilization review cash fund,
which fund is hereby created. Moneys in the utilization
review cash fund are continuously appropriated to the
division for the purpose of administering the utilization
review program and may not revert to the general fund at the
end of any fiscal year. The division shall mail to any
claimant, insurer, or self-insured employer a notice that a
case is to be reviewed and that the claimant may be examined
as a result of such review. The claimant, insurer, or selfinsured employer has thirty days from the date of mailing of
such notice to examine the medical records submitted by the
party who requested the review and may add medical records
to the utilization review file that the party believes may be
relevant to the utilization review. The division shall maintain
a special file for utilization review cases. Such file shall be
accessible only to interested parties in a utilization review
case and shall not otherwise be open to any person.
(b) Prior to submitting a request for a utilization
review pursuant to this section, an insurer, self-insured
employer, or claimant shall hire a licensed medical
professional to review the services rendered in the case. A
report of the review shall be submitted with all necessary
medical records, reports, and the request for utilization
review.
(c) A claimant may request a utilization review
pursuant to this section if the claimant has been refused a
request pursuant to section 8-43-404 (5) to have a personal
physician or chiropractor attend the claimant. A claimant
requesting a utilization review pursuant to this paragraph (c)
shall file the request on forms promulgated by the director by
rule and shall pay the fee required by paragraph (a) of this
subsection (2).
(d) For purposes of this section only, "medical
records" means documents and transcripts of information
obtained from a patient or his or her medical professional that
are related to the patient's medical diagnosis, treatment, and
care.
(e) When an insurer, self-insured employer, or
claimant requests utilization review, no other party shall
request a hearing pursuant to section 8-43-207 until the
utilization review proceedings have become final, if such
hearing request concerns issues about a change of physician
or whether treatment is medically necessary and appropriate.
(f) Once a utilization review proceeding has become
final and no longer subject to appeal, the final disposition of
the issues in such proceeding shall be binding on the parties
and preclude a contrary ruling on such issues in a subsequent
hearing under section 8-43-207 unless a preponderance of
evidence is shown.
(3) (a) The director, with input from the medical
director serving pursuant to section 8-42-101 (3.6) (n), shall
appoint members of utilization review committees for
purposes of this section and section 8-42-101 (3.6). The
director shall establish committees based on the different
areas of health care practice for which requests for utilization
review may be made. The director shall establish the
qualifications for members of the different committees and
the areas of health care practice in which each such
committee shall conduct requested utilization reviews. Cases
of requested utilization review shall be referred to committees
appointed pursuant to this subsection (3) by the director
based upon the areas of health care practice for which each
committee is appointed.
(b) Each committee established pursuant to
paragraph (a) of this subsection (3) shall be composed of
three members. Committee members shall be compensated
for their time by the division out of moneys in the utilization
review cash fund, created in paragraph (a) of subsection (2)
of this section. Any member of a committee appointed
pursuant to this subsection (3) shall be immune from criminal
liability and from suit in any civil action brought by any
person based upon an action of such a committee, if such
member acts in good faith within the scope of the function of
the committee, has made reasonable effort to obtain the facts
of the matter as to which action is taken, and acts in the
reasonable belief that the action taken is warranted by the
facts. The immunity provided by this paragraph (b) shall
extend to any person participating in good faith in any
investigative proceeding pursuant to this section.
(c) (I) For each case, a committee may recommend
by majority vote of such committee that no change be ordered
or that a change of provider be ordered.
(II) A committee may also, by unanimous vote,
recommend that the director order that payment for fees
charged for services in the case be retroactively denied.
52
(III) A committee may also, by unanimous vote,
recommend that the director order that a physician's
accreditation status under section 8-42-101 (3.6) be revoked.
(d) In preparing and issuing an order in any case,
the director shall review and give great weight to the reports
and recommendations of the committee.
(e) In appropriate cases pursuant to this section and
section 8-42-101 (3.6), the director may order that an insurer,
employer, or self-insured employer be permitted to deny
reimbursement to a provider for any medical care or services
rendered to a claimant; and such order may be effective for
up to three years. Bills for services rendered during the
effective period of any such order shall be unenforceable and
shall not result in any debt of the claimant. In deciding
whether to issue any such order, the director shall give great
weight to the fact that:
(I) The provider has, within any two-year period,
been the subject of two or more orders removing the provider
from the role of authorized treating physician; or
(II) The provider has, within any two-year period,
been the subject of two or more orders retroactively denying
the payment of the provider's fees; or
(III) The provider has, within any two-year period,
been the subject of two or more orders either retroactively
denying the payment of the provider's fees or removing the
provider from the role of authorized treating physician.
(4) If the director orders pursuant to subsection (3)
of this section that a change of provider be made in a case or
that the physician's accreditation status be revoked, the
claimant, insurer, or self-insured employer shall have seven
days from receipt of the director's order in which to agree
upon a level I provider. If the claimant, insurer, or selfinsured employer can not reach agreement within the seven
day time period, the director shall select three providers. A
new provider shall be chosen from the three providers so
selected by the party who was successful in the request for
review. If no appeal is filed, the successful party shall notify
the division of the name of the new provider within seven
days of the selection of the three potential providers. If the
new health care provider is not selected within such seven
days, the director shall select the provider.
(5) (a) Any party, including the health care
provider, may appeal to an administrative law judge for
review of an order specifying that no change occur or that a
change of provider be made with respect to a case. Such
review shall be limited to the record on appeal. The findings
of a utilization review committee regarding the change of
provider in a case shall be afforded great weight by the
administrative law judge in any proceeding. A party
disputing the finding of such utilization review committee
shall have the burden of overcoming the finding by clear and
convincing evidence.
(b) If the director has entered an order specifying
that the payment of fees in the case be retroactively denied, or
permitting an insurer, employer, or self-insured employer to
deny payments for medical services or care rendered pursuant
to subsection (3) (e) of this section, the health care provider
may request a de novo hearing before an administrative law
judge by filing an application for hearing within thirty days
from the date of the certificate of mailing of the order. In a
hearing held pursuant to this paragraph (b), the record upon
which the director based the order shall be admissible in
evidence. The findings of the utilization review committee
regarding the retroactive denial of payment of fees in a case
shall be afforded great weight by the administrative law judge
in any proceeding. A party disputing the finding of such
utilization review committee shall have the burden of
overcoming the finding by clear and convincing evidence.
(c) Any appeal filed pursuant to this subsection (5)
must be filed within forty days from the date of the certificate
of mailing of the director's order.
(d) Any party dissatisfied with an order entered by
an administrative law judge pursuant to paragraph (a) of this
subsection (5) may file a petition to review the order pursuant
to section 8-43-301.
(e) (Deleted by amendment, L. 91, p. 1326, § 43,
effective July 1, 1991.)
8-43-502. Independent medical examinations.
(1) The director shall maintain a list of physicians which
shall be known as the medical review panel. The director
shall utilize public and private resources as are available and
appropriate in determining standards and qualifications for
the medical review panel members. It shall be the duty of the
medical review panel to perform independent medical
examinations at the request of the director or an
administrative law judge.
(2) Any party to a workers' compensation
proceeding has the right to obtain an independent medical
examination with the physician selected by the director from
the medical review panel. The requesting party, when
submitting a request for the independent medical evaluation,
shall specify the professional specialty of the physician to be
selected by the director to perform the independent medical
examination. The director shall select, through a revolving
selection process established by the department, the physician
from the medical review panel to perform the examination.
The cost of such independent medical examination shall be
borne by the requesting party. In no instance shall the
independent examining physician become the authorized
treating physician.
(3) Whenever the director or an administrative law
judge deems it necessary to assist in resolving any issue of
medical fact or opinion, the director or administrative law
judge shall cause the employee to be examined by a physician
or physicians from the medical review panel. The director or
the administrative law judge shall have the authority and
discretion to charge the cost of such examination to the
employer or, if insured, the employer's insurance carrier.
Transportation expenses and all expenses necessary,
reasonable, and incidental to such examination shall be
included in the cost of such examination.
(4) Nothing in this section shall preclude any party
from obtaining an independent medical examination from a
physician who is not a member of the medical review panel.
(5) Upon written request of the employer, or if
insured, the insurer, the employee shall submit to a
reasonable number of independent medical examinations as
provided for in this section. The employee shall be entitled to
have a physician, provided and paid for by such employee,
present at any such independent medical examination. The
53
employee shall be entitled to receive from the independent
examining physician a copy of any report which said
physician makes to the employer, insurer, or the division.
Said copy shall be furnished to the employee at the same time
it is furnished to the employer, insurer, or division.
(6) Members of the medical review panel and any
person acting as a consultant, witness, or complainant shall
be immune from liability in any civil action brought against
said person for acts occurring while the person was acting as
a panel member, consultant, witness, or complainant,
respectively, if such person was acting in good faith within
the scope of the respective capacity, made a reasonable effort
to obtain the facts of the matter as to which action was taken,
and acted in the reasonable belief that the action taken by
such person was warranted by the facts.
(7) Any physician determining an impairment rating
on an injured worker pursuant to this title shall be immune
from civil liability in any action brought by any person based
on said impairment rating, absent the showing of malice or
bad faith on the part of the rating physician.
8-43-503. Utilization review of health care
providers. (1) The general assembly hereby finds and
determines that health care providers that provide medical
care or health care services that are not reasonably necessary
or not reasonably appropriate according to accepted
professional standards should not be allowed to provide such
services to workers' compensation claimants. The general
assembly, therefore, hereby declares that the purpose of the
utilization review process authorized in this section is to
provide a mechanism to review medical care or health care
services rendered pursuant to this article that may not be
reasonably necessary or reasonably appropriate according to
accepted professional standards and to provide a mechanism
to prevent such health care providers from providing medical
care or health care services.
(2) The provisions relating to the procedures for
utilization review found in section 8-43-501 (2), (3), (4), (5)
(a), (5) (c), and (5) (d) shall apply to utilization review under
this section. A unanimous vote by the committee created in
section 8-43-501 (3) shall be required for a recommendation
to the director that a health care provider not be allowed to
provide medical care or health care services to claimants.
(3) Employers, insurers, claimants, or their
representatives shall not dictate to any physician the type or
duration of treatment or degree of physical impairment.
Nothing in this subsection (3) shall be construed to abrogate
any managed care or cost containment measures authorized in
articles 40 to 47 of this title.
PART 6
PROVIDER REVIEW AND DISCLOSURE
8-43-601. Short title. This part 6 shall be known
and may be cited as the "Provider Review and Disclosure
Act".
8-43-602. Legislative declaration. The general
assembly finds, determines, and declares that insurer
performance programs are used in marketing, sales, and other
efforts, and, as such, may impact an employer's selection of
an authorized health care provider. To protect patients,
employers, and providers, and to avoid improper profiling, all
performance programs must be fair, objective, consistently
applied, and accord providers due process. Consistent with
these goals, performance programs should align incentives
not only with efficient operations, but also with costeffective, high-quality care.
Accordingly, the general
assembly finds that requiring minimum standards and full
disclosure of performance program data and methodologies
will help improve the quality and efficiency of health care
delivered to Colorado workers.
8-43-603. Definitions. As used in this part 6,
unless the context otherwise requires:
(1) "Insurer" means an entity that provides workers'
compensation insurance coverage required by article 44 of
this title, including any third-party insurer or self-insured
employer.
(2) "Methodology" means the method by which an
assessment or measurement is determined, including
algorithms or studies, evaluation of data, application of
guidelines, or performance measures.
(3) "Patient" means a person who qualifies for
health care benefits under articles 40 to 47 of this title.
(4) "Performance program" means any program,
system, or process through which an insurer rates or
recognizes the cost, efficiency, quality, or other assessment or
measurement of a provider's care, whether through awards,
payments, assignment, or characterization or representation
that is disclosed to patients, other providers, employers, or the
public.
(5) "Provider" means a physician licensed under the
"Colorado Medical Practice Act", article 36 of title 12,
C.R.S., or a clinic that provides health care pursuant to
articles 40 to 47 of this title.
8-43-604. Performance programs. (1) All
performance programs shall include, at a minimum:
(a) A quality of care component that is satisfied by
using standard treatment guidelines promulgated by the
director pursuant to section 8-42-101 or evidence-based
administrative, operational, or clinical performance measures
that improve care;
(b) A clear representation of the weight given to the
quality of care component in comparison with other factors,
which weight shall be equal to or greater than any other
factor;
(c) If a performance program includes an employer
satisfaction element, a patient satisfaction element, which
shall be weighted equal to or greater than the employer
satisfaction element;
(d) Statistical analyses that are objective, accurate,
valid, reliable, and verifiable;
(e) A period of assessment of data, pertinent to the
performance program, which shall be updated at appropriate
intervals;
(f) If claims data are used, accurate claims data
appropriately attributed to the provider. When reasonably
available, the insurer shall use aggregated data from other
insurers to supplement its own claims data.
(g) The provider's responsibility for health care
decisions and the financial consequences of those decisions,
which shall be fairly and accurately attributed to the provider.
54
(2) Performance program results shall be reported to
each provider reviewed in the program and shall include
comparison of the provider's results to the results of the
provider's peers.
(3) Any disclosure to patients, other providers,
employers, or the public of the results of a performance
program shall be accompanied by a conspicuous disclaimer
written in bold-faced type stating that the information is
intended only as a guide, should not be the sole factor in
selecting a provider, has a risk of error, and should be
discussed with the provider.
8-43-605. Due process. (1) At least forty-five days
before disclosing the results of a performance program, an
insurer shall give a provider written notice of the availability
of the provider's individual result, specific instructions on
how the provider can access the result, and a description of
the implications to the provider. The written notice shall
describe the procedures by which the provider may request:
(a) The information required to be disclosed under
subsection (2) of this section; and
(b) An appeal of the result pursuant to subsection
(3) of this section.
(2) (a) Within ten business days after receiving a
request by or on behalf of a provider, an insurer shall
disclose, in a manner that is reasonably understandable and
that allows the provider to verify the data against his or her
records, the methodology and all data upon which a
provider's performance program result was calculated, with
sufficient detail to allow the provider to determine the effect
of the methodology on the data reviewed.
(b) An insurer shall not use the "Uniform Trade
Secrets Act", article 74 of title 7, C.R.S., to avoid compliance
with this section.
(3) Insurers shall establish procedures for providers
to appeal the results of a performance program. Such
procedures, in addition to the disclosures and the written
notice furnished, shall provide:
(a) A reasonable method by which the provider may
submit notice of the desire to appeal;
(b) The name, title, qualifications, and relationship
to the insurer of any person responsible for deciding the
appeal, who shall be authorized to uphold, modify, or reject
results or require additional action to ensure that results are
fair, reasonable, accurate, and comply with the requirements
of this part 6;
(c) An opportunity for a provider to submit or have
considered corrected data or other information relevant to the
results or the appropriateness of the methodology used. If
requested, a provider may appear at a face-to-face meeting
with those responsible for the appeal decision at a location
reasonably convenient to the provider or by teleconference.
The provider shall submit in writing any corrected data or
information in advance of the meeting.
(d) The provider's right to be assisted by a
representative, including an attorney;
(e) A detailed written decision regarding the appeal
that states the reasons for upholding, modifying, or rejecting
the appeal;
(f) Resolution of the appeal within forty-five days
after the date upon which the data and methodology are
disclosed unless otherwise agreed to by the parties to the
appeal; and
(g) A stay on the implementation, use, and
disclosure of and action upon the individual results of the
performance program until the appeal and any subsequent
hearing requested pursuant to section 8-43-207 has become
final.
8-43-606. Enforcement. (1) An insurer shall not
limit, by contract or other means, the right of a provider to
enforce this part 6.
(2) This part 6 may be enforced through a hearing
pursuant to section 8-43-207 or in a civil action, and any
remedies at law and in equity are available.
(3) A violation of this part 6 constitutes an unfair or
deceptive act or practice under part 11 of article 3 of title 10,
C.R.S.
8-43-607. Filing with director. At least thirty days
before implementing any new or amended performance
program, an insurer shall file a detailed description of the
performance program with the director.
ARTICLE 44
Insurance
PART 1
GENERAL PROVISIONS
8-44-101. Insurance
requirements.
(1) Any
employer subject to the provisions of articles 40 to 47 of this
title shall secure compensation for all employees in one or
more of the following ways, which shall be deemed to be
compliance with the insurance requirements of said articles:
(a) By insuring and keeping insured the payment of
such compensation in the Pinnacol Assurance fund;
(b) By insuring and keeping insured the payment of
such compensation with any stock or mutual corporation
authorized to transact the business of workers' compensation
insurance in this state. If insurance is effected in such stock
or mutual corporation, the employer or insurer shall forthwith
file with the division, in form prescribed by it, a notice
specifying the name of the insured and the insurer, the
business and place of business of the insured, the effective
and termination dates of the policy, and, when requested, a
copy of the contract or policy of insurance.
(c) By procuring a self-insurance permit from the
executive director as provided in section 8-44-201, except for
public entity pools as described in section 8-44-204 (3),
which shall procure self-insurance certificates of authority
from the commissioner of insurance as provided in section 844-204;
(d) By procuring a self-insurance certificate of
authority from the commissioner of insurance as provided in
section 8-44-205.
(2) It shall be unlawful, except as provided in
sections 8-41-401 and 8-41-402, for any employer, regardless
of the method of insurance, to require an employee to pay all
or any part of the cost of such insurance.
(3) (a) (I)
Except as otherwise provided in
subparagraph (II) of this paragraph (a), all public entities in
55
the state shall insure and keep insured the payment of
compensation by electing one of the methods provided in
subsection (1) of this section. A public entity having an
insured payroll of less than one million dollars annually shall
not be eligible for self-insurance; except that public entities
forming a pool pursuant to section 8-44-204 (3) shall be
eligible if the total of all the payrolls of the public entities in
the pool exceeds the required minimum.
(II)
Any public entity in the state that is
participating in the federal prison industry enhancement
certification program pursuant to the federal "Justice System
Improvement Act of 1979", 18 U.S.C. sec. 1761 (c), shall
insure and keep insured the payment of compensation by
electing one of the methods provided in subsection (1) of this
section; except that the method for insuring the participants
of such program need not be the same method selected by the
public entity pursuant to subparagraph (I) of this paragraph
(a).
(b) For purposes of this subsection (3), the
department of human services, by virtue of the self-insurance
program established pursuant to section 8-44-203, shall be
considered a public entity of the state.
8-44-102. Contract for insurance subject to
workers' compensation act. Every contract for the insurance
of compensation and benefits as provided in articles 40 to 47
of this title or against liability therefor shall be made subject to
all the provisions of said articles, and all provisions in such
contract for insurance inconsistent with the provisions of said
articles shall be void. Any contract of insurance issued under
said articles by any insurance carrier, including stock and
mutual corporations and Pinnacol Assurance, may include and
cover any liability of the employer on account of personal
injuries sustained by or death resulting therefrom to any
employee as such. No insurance carrier shall write any policy
of insurance covering the liability under said articles of any
employer doing business within the state of Colorado except
on a form that has been previously filed with and approved by
the commissioner of insurance, nor shall there be attached to
said policy or contract of insurance any endorsement, rider,
letter, or other document affecting such contract unless the
same has been filed with and the form thereof approved by the
commissioner of insurance. The commissioner of insurance
shall from time to time approve and prescribe a standard or
universal form, as nearly as possible, for every contract or
policy of insurance, endorsement, rider, letter, or other
document affecting such contract for use in insuring the
compensation provided for in said articles.
8-44-103. Insurers to file system of rating approval. Every insurance carrier authorized to transact
business in this state that insures employers against liability
for compensation under the provisions of articles 40 to 47 of
this title shall file with the commissioner of insurance its
classification of risks, any premiums relating thereto, and any
subsequent proposed classification of risks and premiums,
together with all rates and any systems of rating.
8-44-104. Cutting rates - rebates - penalty. Every
insurance carrier that writes compensation insurance shall
write insurance at the rates filed with the commissioner of
insurance. The cutting of rates, rebating, or any other method
whereby, directly or indirectly, any employer is given the
benefit of or obtains a rate lower than that approved by the
commissioner of insurance is prohibited. The commissioner
of insurance may suspend the license of any insurance carrier,
agent, or broker who violates any provision of this section.
Also, any insurance carrier, any employer, or any officer,
agent, or employee thereof who violates any provision of this
section is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by a fine of not more than one
hundred dollars for each such violation.
8-44-105. Provisions of policies - primary
liability - notice of injury. 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,
thereby discharging to the extent of such payment the
obligations of the employer to the employee; that, as between
the employee and the insurance carrier, notice or knowledge
of the occurrence of the injury on the part of the employer
shall be deemed notice or knowledge, as the case may be, on
the part of the insurance carrier; that jurisdiction of the
employer, for the purpose of articles 40 to 47 of this title,
shall be jurisdiction of the insurance carrier; and that the
insurance carrier, in all things, shall be bound by and subject
to the orders, findings, decisions, or awards rendered against
the employer under the provisions of said articles. Such
policy shall also provide that the employee shall have a first
lien upon any amount which becomes owing to the employer
from the insurance carrier, and the insurance carrier shall pay
the same directly to the employee or the employee's
dependents, thereby discharging to the extent of such
payment the obligation of the employer to the employee. 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.
8-44-106. Insurer violation - suspension or
revocation of license. If any insurance carrier intentionally,
knowingly, or willfully violates any of the provisions of
articles 40 to 47 of this title, the commissioner of insurance,
on the request of the director, shall suspend or revoke the
license or authority of such carrier to do a compensation
business in this state.
8-44-107. Right of insurer to examine books of
employer. Any insurance carrier operating under the workers'
compensation act may apply to the commissioner of
insurance for permission to examine any of the books,
payrolls, or other documents of any employer insured by such
carrier or of any contractor, subcontractor, lessee, sublessee,
or person covered by the employer's compensation insurance
to determine the amount of wage expenditure of such
employer or of any contractor, subcontractor, lessee,
sublessee, or person during any period that such insureds
were insured by the insurance carrier. The commissioner of
insurance may grant such carrier authority in writing to make
the investigation or may appoint any agents of the division of
insurance to conduct the investigation.
56
8-44-108. Repayments for misclassifications.
(1) Every insurance carrier authorized to transact business in
this state, including Pinnacol Assurance, which insures
employers against liability for compensation under the
provisions of articles 40 to 47 of this title, is authorized to
charge and collect any amount of money that should have
been included in premiums paid by an insured but were not
included in such premiums as a result of job
misclassification. Upon written request by the employer, the
issue of whether a job misclassification occurred shall be
determined in writing by the insurance company. The
employer's request shall be made within thirty working days
after the anniversary date of the policy or the date of receipt
by the employer of notice of a change in job classification.
The insurance company's determination shall be made within
thirty days after receipt of the employer's written request. An
employer may appeal any determination of an insurance
company made pursuant to this subsection (1) to the workers'
compensation classification appeals board, pursuant to
section 8-55-102.
If it is determined that a job
misclassification occurred and that such misclassification was
caused by the failure of the insured to provide accurate or
complete data in order to determine the proper classification
as requested by the insurance carrier, the repayment may be
collected during the term of the contract for such insurance
plus an additional reasonable time not to exceed twelve
months.
(2) Any employer who has purchased insurance
against liability for compensation under the provisions of
articles 40 to 47 of this title is authorized to recover any
amount of money which should not have been included in
premiums paid by the employer but which were included in
such premiums as a result of job misclassification. The
repayment may be collected during the term of the contract
for such insurance plus an additional reasonable time not to
exceed twelve months.
8-44-109. Notice of change in rate by
classification - notice of policyholder's right to appeal
classifications - notice of availability of medical case
management services. (1) Any insurance carrier authorized
to transact business in this state, including Pinnacol
Assurance, which insures employers against liability for
compensation under the provisions of articles 40 to 47 of this
title, shall supply information regarding a change in the rate
by classification to any insured employer, if such employer
has requested that such information be supplied. Such
information shall be supplied within thirty days following
release of such information to such insurer by the authorized
rating organization and following approval of such rate
change by the division of insurance. As soon as reasonably
possible after the division of insurance's approval of a change
in rate by classification, the authorized rating organization
shall disseminate notice of such approval and change in rate.
(2) Every insurance carrier authorized to transact
business in Colorado, including Pinnacol Assurance, which
insures employers against liability for compensation under
the provisions of articles 40 to 47 of this title, shall clearly
and conspicuously inform policyholders of their rights to
appeal employee classification designations, the procedures
to be used for such an appeal, and the types of medical case
management that the carrier has available to employees to
promote medical cost containment.
8-44-110. Notice of cancellation. Every insurance
carrier authorized to transact business in this state, including
Pinnacol Assurance, which insures employers against liability
for compensation under the provisions of articles 40 to 47 of
this title, shall notify any employer insured by the carrier or
Pinnacol Assurance, and any agent or representative of such
employer, if applicable, by certified mail of any cancellation
of such employer's insurance coverage. Such notice shall be
sent at least thirty days prior to the effective date of the
cancellation of the insurance. However, if the cancellation is
based on one or more of the following reasons, then such
notice may be sent less than thirty days prior to the effective
date of the cancellation of the insurance: Fraud, material
misrepresentation, nonpayment of premium, or any other
reason approved by the commissioner of insurance.
8-44-111. Workers' compensation insurance deductibles. (1) Any employer may agree, as a condition of
any contract for the insurance of compensation and benefits
as provided in articles 40 to 47 of this title or against liability
therefor, to pay an amount not to exceed five thousand dollars
per claim toward the total amount of any claim payable under
articles 40 to 47 of this title. The amount of premium to be
paid by an employer who agrees to pay such deductible shall
be reduced based upon such deductible in an amount
determined by the insurance carrier.
(1.5) Whenever any insurer, including Pinnacol
Assurance created in section 8-45-101, issues a workers'
compensation policy in this state, and annually thereafter, the
insurer must issue a policy including the deductible provision
if requested by the insured employer; except that the
commissioner shall promulgate rules establishing criteria to
allow the insurer to deny a deductible policy to an employer
based on financial inability to reimburse the insurer for the
deductible plan selected.
(2) The existence of an insurance contract with a
deductible or the fact of payment as a result of a deductible
shall not affect the requirement of an employer to report an
injury or death to the division as required in section 8-43-103
(1).
(3) The deductible amounts paid by any employer
under the provisions of this section shall be excluded from
consideration by insurance carriers authorized to transact
business in Colorado, including Pinnacol Assurance, which
insure employers against liability for compensation under the
provisions of articles 40 to 47 of this title, in establishing the
modification factors based upon experience used by such
insurance carriers to determine premiums.
(4) Every insurance carrier authorized to transact
business in Colorado, including Pinnacol Assurance, which
insures employers against liability for compensation under
the provisions of articles 40 to 47 of this title, shall clearly
and conspicuously inform policyholders of the availability of
the deductible option specified in subsection (1) of this
section.
8-44-112. Surcharge on workers' compensation
insurance premiums - funds. (1) (a) Notwithstanding the
provisions of sections 10-3-209 (1) (c) and 10-6-128 (3),
C.R.S., for the purpose of offsetting the direct and indirect
57
costs of the administration of the workers' compensation
system, every person, partnership, association, and
corporation, whether organized under the laws of this state or
of any other state or country, every mutual company or
association, every captive insurance company, and every
other insurance carrier, including Pinnacol Assurance,
insuring employers in this state against liability for personal
injury to their employees or death caused thereby under the
provisions of the "Workers' Compensation Act of Colorado"
shall, as provided in this section, pay a surcharge upon the
premiums received, whether in cash or not, in this state, or on
account of business done in this state, for such insurance in
this state, at a rate established by the director by rule, which
surcharge shall be reviewed and adjusted annually based
upon appropriations made for the direct and indirect costs of
the administration of the workers' compensation system, as
provided in subsection (7) of this section. Such insurance
carriers shall be credited with all cancelled or returned
premiums actually refunded during the year of such
insurance.
(b) (I) For the purpose of funding the direct and
indirect costs of the activities of the division related to the
"Workers' Compensation Cost Containment Act", article 14.5
of this title, there shall be added to the surcharge imposed
pursuant to paragraph (a) of this subsection (1) an increment
not to exceed three-hundredths of one percent upon the
premiums received, said surcharge to be reviewed and
adjusted annually and paid over to the division in the same
manner as specified in this section for the surcharge.
(II) Notwithstanding any other provisions of this
section, no employer acting as a self-insurer under the
provisions of the "Workers' Compensation Act of Colorado"
shall be subject to the increment added to the surcharge
pursuant to subparagraph (I) of this paragraph (b).
(III) All moneys collected pursuant to subparagraph
(I) of this paragraph (b) shall be transmitted to the state
treasurer, who shall credit the same to the cost containment
fund, created in section 8-14.5-108.
(2) Every such insurance carrier shall, on July 1,
1987, and semiannually thereafter, make a return, verified by
affidavits of its president and secretary, or other chief officers
or agents, to the division of workers' compensation, stating
the amount of all such premiums received and credits granted
during the period covered by such return. Every insurance
carrier required to make such return shall file the same with
the division within thirty days after the close of the period
covered thereby and shall, at the same time, pay to the
division of workers' compensation a surcharge ascertained as
provided in subsection (1) of this section, less return
premiums on cancelled policies.
(3) Every employer acting as a self-insurer under
the provisions of the "Workers' Compensation Act of
Colorado" shall, under oath, report to the division of workers'
compensation the business payroll in such form as may be
prescribed by the director and at the times in this section
provided for premium reports by insurance companies in
subsection (2) of this section. The division shall assess
against such payroll a surcharge for the purposes of this
section ascertained as provided in subsection (2) of this
section on the basic premiums chargeable against the same or
most similar industry or business taken from the manual
insurance rates, including any discount or experience
modification allowed, chargeable by the Pinnacol Assurance
fund, and, upon receipt of notice from the division of
workers' compensation of the surcharge so assessed, every
such self-insurer shall, within thirty days after the receipt of
such notice, pay to the division of workers' compensation the
surcharge so assessed.
(4) If any such insurance carrier or self-insurer fails
or refuses to make the return required by this article, the
director shall assess the surcharge against such insurance
carrier or self-insurer at the rate provided for in this section
on such amount of premium as the director may deem just,
and the proceedings thereof shall be the same as if the return
had been made.
(5) If any such insurance carrier or self-insurer
withdraws from business in this state before the surcharge
falls due as provided in this section, or fails or neglects to pay
such surcharge, the director shall at once proceed to collect
the same; and the director is authorized to employ such legal
processes as may be necessary for that purpose. Suit shall be
brought by the director in any of the courts of this state
having jurisdiction.
(6) The director, in the enforcement of this section,
shall have all of the powers granted to said director in the
"Workers' Compensation Act of Colorado", and any
insurance carrier or self-insurer violating any of the
provisions of this section, or failing to pay the surcharge
imposed in this section, is guilty of violation of said act and
subject to the penalties therein prescribed.
(7) (a) All moneys collected pursuant to this section
shall be transmitted to the state treasurer, who shall credit the
same to the workers' compensation cash fund, which fund is
hereby created. The moneys in the workers' compensation
cash fund shall be subject to annual appropriation by the
general assembly for the direct and indirect costs of the
administration of the "Workers' Compensation Act of
Colorado", articles 40 to 47 of this title. Any interest earned
on the investment or deposit of moneys in the workers'
compensation cash fund shall remain in the fund and shall not
revert to the general fund of the state at the end of any fiscal
year.
Notwithstanding any provision of paragraph (a) of this
subsection (7) to the contrary, on March 5, 2003, the state
treasurer shall deduct six million dollars from the workers'
compensation cash fund and transfer such sum to the general
fund.
(b) Notwithstanding any provision of paragraph (a) of
this subsection (7) to the contrary, on March 5, 2003, the state
treasurer shall deduct six million dollars from the workers'
compensation cash fund and transfer such sum to the general
fund.
(c) Notwithstanding any provision of paragraph (a)
of this subsection (7) to the contrary, on March 30, 2009, the
state treasurer shall deduct fifteen million seven hundred
thousand dollars from the workers' compensation cash fund
and transfer such sum to the general fund.
8-44-113. Data from insurance carriers and selfinsured employers related to workers' compensation -
58
studies
related
to
workers'
compensation
system. (Repealed)
8-44-114. Determination of premium. The amount
of the premium to be paid by an employer for a contract of
insurance of compensation and benefits as provided in
articles 40 to 47 of this title or against liability therefor shall
be on the basis of the annual expenditure of money by said
employer for the services of persons engaged in such
employer's employment; except that no portion of such
expenditure representing a per diem payment shall be
considered unless such payment is considered wages for
federal income tax purposes.
8-44-115. Calculation of premium - motor
vehicle accidents. (1) The amount by which an employer's
experience rating is modified, if at all, as the result of a motor
vehicle accident in which an employee is injured or killed
shall be reduced in accordance with this section if:
(a) The employee is entitled to benefits under
articles 40 to 47 of this title; and
(b) The accident was not caused, wholly or in part,
by the employee or the employer; and
(c) The use of a motor vehicle is not an integral part
of the employer's business, as determined under rules
promulgated by the commissioner of insurance under section
10-4-408 (5) (e), C.R.S.
(2) (a) Any modification of an employer's
experience rating resulting from an accident described in
subsection (1) of this section shall reflect the deduction of a
loss limitation, the amount of which shall be determined by
the commissioner of insurance under rules adopted pursuant
to section 10-4-408 (5) (e), C.R.S.
(b) All loss experience remaining after deduction of
the loss limitation referred to in paragraph (a) of this
subsection (2) shall be distributed among all workers'
compensation classifications in use in the state as determined
by the commissioner of insurance. For purposes of such
distribution, classifications of businesses of which use of a
motor vehicle is an integral part may be treated differently
from classifications of businesses of which use of a motor
vehicle is not an integral part.
(3) This section applies to all insurers, including
Pinnacol Assurance created in section 8-45-101, offering
workers' compensation insurance under articles 40 to 47 of
this title. The provisions of this section shall be disclosed to
all policyholders annually.
8-44-116. Reversionary interests in indemnity
benefits prohibited. No provision in a contract for insurance
regulated by this article or any contract ancillary to such a
contract, including specifically a contract setting up an
annuity for indemnity benefits, shall establish a reversionary
interest in the insurer for the indemnity benefits. Any such
provision is void and unenforceable as against public policy.
PART 2
SELF-INSUREDS
8-44-201. Employer as own insurance carrier revocation of permission. (1) The executive director has the
discretion to grant to any employer who has accepted the
provisions of articles 40 to 47 of this title permission to be its
own insurance carrier for the payment of the compensation
and benefits provided by said articles. Such permission may
be granted by the executive director after the filing by an
employer of such statement and the giving of such
information as may be required by the executive director.
The executive director has the sole power to prescribe the
rules, regulations, orders, terms, and conditions upon which
said permit shall be granted or continued. Permission for
self-insurance may be revoked at any time by the executive
director, and the employer, upon notice of revocation, shall
immediately insure otherwise all liability.
(2) Notwithstanding the provisions of subsection
(1) of this section, the executive director shall not prescribe
or apply security requirements in granting or continuing
permission for the self-insurance program of the department
of human services established pursuant to section 8-44-203
but shall provide instead for alternatives to such security
requirements including trust funds, surety bonds, excess
insurance, or other security acceptable to the executive
director. The alternative security requirements provided by
this subsection (2) shall apply only to claims arising on or
after July 1, 1985, and before July 1, 1990. The trust fund in
existence on May 24, 1990, pursuant to the trust agreement
between the department of human services, a third party
administrator, and the state treasurer, dated June 27, 1985,
shall remain in existence through June 30, 1990.
(3) Notwithstanding the provisions of subsection
(1) of this section, the executive director shall not prescribe
or apply security requirements in continuing permission for
an employer which is acting as its own insurance carrier on
July 1, 1986, which are in excess of those security
requirements in effect on July 1, 1986, unless there is a
substantial change in the economic condition or potential
liability of such employer.
(4) Notwithstanding the provisions of subsection (1)
of this section, the executive director shall not prescribe or
apply security requirements in granting or continuing
permission for a self-insurance program established by the
state pursuant to section 24-30-1510.7, C.R.S.
8-44-202. Workers' compensation self-insurance
fund - created. (1) The executive director shall establish and
collect such fees as the executive director determines are
necessary to administer this section, which fees shall not
supplant funding for any other function of the department of
labor and employment. The fees established pursuant to this
subsection (1) shall not exceed two thousand dollars for an
initial application or for an annual review of any employer
acting as a self-insurer under this section.
(2) The executive director shall transmit any
moneys received pursuant to subsection (1) of this section to
the state treasurer, who shall place such moneys in the
workers' compensation self-insurance fund, which fund is
hereby created.
The general assembly shall make
appropriations from such fund for the purposes of
administering this section.
8-44-203. Department of human services - selfinsurance program. The general assembly hereby finds and
declares that a program shall be established by the
department of human services and the department of labor
and employment to provide for a self-insurance program for
59
the department of human services, which shall apply only to
claims arising on or after July 1, 1985, and before July 1,
1990.
8-44-204. Public
entities
self-insurance
authorized for workers' compensation - pooled
insurance. (1) "Public entity", as used in this section, means
and includes any county, municipality, school district, and
any other type of district or authority organized pursuant to
law.
(2) A public entity may, after receiving permission
pursuant to section 8-44-101 (1) (c), act as its own insurance
carrier for compensation and benefits. Any public entity
other than a school district may establish and maintain an
insurance reserve fund for self-insurance purposes and may
include in the annual tax levy of the public entity such
amounts as are determined by its governing body to be
necessary for the uses and purposes of the insurance reserve
fund, subject to the limitations imposed by section 29-1-301,
C.R.S. School districts may establish and maintain an
insurance reserve fund in accordance with the provisions of
section 22-45-103 (1) (e), C.R.S., using moneys allocated
thereto pursuant to the provisions of section 22-54-105 (2),
C.R.S. In the event that a public entity has no annual tax levy,
it may appropriate from any unexpended balance in the
general fund such amounts as the governing body shall deem
necessary for the purposes and uses of the insurance reserve
fund.
(3) Public entities may cooperate with one another
to form a self-insurance pool to provide the insurance
coverage required by this article for the cooperating public
entities. Any such insurance pool shall be formed pursuant to
the provisions of part 2 of article 1 of title 29, C.R.S. The
provisions of articles 10.5 and 47 of title 11, C.R.S., shall
apply to moneys of such self-insurance pool.
(4) Any self-insurance pool authorized by
subsection (3) of this section shall not be construed to be an
insurance company nor otherwise subject to the provisions of
the laws of this state regulating insurance or insurance
companies; except that the pool shall comply with the
applicable provisions of sections 10-1-203 and 10-1-204 (1)
to (5) and (10), C.R.S.
(5) Prior to the formation of a self-insurance pool,
there shall be submitted to the commissioner of insurance a
complete written proposal of the pool's operation, including,
but not limited to, the administration, claims adjusting,
membership, plan for reinsurance, and capitalization of the
pool. The commissioner shall review the proposal within
thirty days after receipt to assure that proper insurance
techniques and procedures are included in the proposal. After
such review, the commissioner shall have the right to approve
or disapprove the proposal. If the commissioner approves the
proposal, the commissioner shall issue a certificate of
authority. The costs of such review shall be paid by the
public entities desiring to form such a pool.
(6) Each self-insurance pool for public entities
created in this state shall file, with the commissioner of
insurance on or before March 30 of each year, a written
report in a form prescribed by the commissioner, signed and
verified by its chief executive officer as to its condition.
(7) The commissioner of insurance, or any person
authorized by the commissioner of insurance, shall conduct
an insurance examination at least once a year to determine
that proper underwriting techniques and sound funding, loss
reserves, and claims procedures are being followed. This
examination shall be paid for by the self-insurance pool out
of its funds at the same rate as provided for foreign insurance
companies under section 10-1-204 (9), C.R.S.
(8) (a) The certificate of authority issued to a public
entity under this section may be revoked or suspended by the
commissioner of insurance for any of the following reasons:
(I) Insolvency or impairment;
(II) Refusal or failure to submit an annual report as
required by subsection (6) of this section;
(III) Failure to comply with the provisions of its
own ordinances, resolutions, contracts, or other conditions
relating to the self-insurance pool;
(IV) Failure to submit to examination or any legal
obligation relative thereto;
(V) Refusal to pay the cost of examination as
required by subsection (7) of this section;
(VI) Use of methods which, although not otherwise
specifically proscribed by law, nevertheless render the
operation of the self-insurance pool hazardous, or its
condition unsound, to the public;
(VII) Failure to otherwise comply with the law of
this state, if such failure renders the operation of the selfinsurance pool hazardous to the public.
(b) If the commissioner of insurance finds upon
examination, hearing, or other evidence that any participating
public entity has committed any of the acts specified in
paragraph (a) of this subsection (8) or any act otherwise
prohibited in this section, the commissioner may suspend or
revoke such certificate of authority if the commissioner
deems it in the best interest of the public. Notice of any
revocation shall be published in one or more daily
newspapers in Denver which have a general state circulation.
Before suspending or revoking any certificate of authority of
a public entity, the commissioner shall grant the public entity
fifteen days in which to show cause why such action should
not be taken.
(9) (a) Any self-insurance pool organized pursuant
to this section may invest in securities meeting the investment
requirements established in part 6 of article 75 of title 24,
C.R.S., and may also invest in membership claim deductibles
and in any other security or other investment authorized for
such pools by the commissioner of insurance.
(b) Any public entity which is a member of a selfinsurance pool which is organized pursuant to this section or
any instrumentality formed by two or more of such members
may invest in subordinated debentures issued by such selfinsurance pool.
(10) In addition to workers' compensation coverage
pursuant to subsection (3) of this section, a self-insurance
pool authorized by subsection (3) of this section may provide
property coverage pursuant to section 29-13-102, C.R.S., and
liability coverage pursuant to section 24-10-115.5, C.R.S.
8-44-205. Employers - self-insurance pools
authorized for workers' compensation. (1) "Employers",
as used in this section, means a bona fide trade or
60
professional association or two or more employers which are
engaged in the same or similar type of business or are
members of the same bona fide trade or professional
association.
(2) Employers may cooperate with one another to
form a self-insurance pool to provide the insurance coverage
required by this article for cooperating employers.
(3) Any self-insurance pool authorized by
subsection (2) of this section shall not be construed to be an
insurance company nor otherwise subject to the provisions of
the laws of this state regulating insurance or insurance
companies; except that the pool shall comply with the
applicable provisions of sections 10-1-203 and 10-1-204 (1)
to (5) and (10), C.R.S., and shall be subject to proceedings
authorized by part 5 of article 3 of title 10, C.R.S.
(4) Prior to the formation of a self-insurance pool,
there shall be submitted to the commissioner of insurance a
complete written proposal of the pool's operation, including,
but not limited to, the administration, claims adjusting,
membership, plan for reinsurance, capitalization of the pool,
and risk management programs. The commissioner shall
review the proposal within forty-five days after receipt to
assure that proper insurance techniques and procedures are
included in the proposal.
After such review, the
commissioner shall have the right to approve or disapprove
the proposal. If the commissioner of insurance has not
disapproved the proposal within ninety days of receipt of the
proposal, such proposal shall be deemed approved. If the
commissioner approves the proposal, the commissioner shall
issue a certificate of authority. The costs of such review shall
be paid by the employers desiring to form such a pool.
(5) Each self-insurance pool for employers created
in this state shall file with the commissioner of insurance, on
or before March 30 of each year, a written report in a form
prescribed by the commissioner, signed and verified by its
chief executive officer as to its condition.
(6) The commissioner of insurance, or the
commissioner's designee, shall conduct an insurance
examination at least once a year to determine that proper
underwriting techniques and sound funding, loss reserves,
and claims procedures are being followed. This examination
shall be paid for by the self-insurance pool out of its funds at
the same rate as provided for foreign insurance companies
under section 10-1-204 (9), C.R.S.
(7) (a) The certificate of authority issued to an
employer self-insurance pool under this section may be
revoked or suspended by the commissioner of insurance for
any of the following reasons:
(I) Insolvency or impairment;
(II) Refusal or failure to submit an annual report as
required by subsection (5) of this section;
(III) Failure to comply with the provisions of its
own rules, resolutions, contracts, or other conditions relating
to the self-insurance pool;
(IV) Failure to submit to examination or any legal
obligation relative thereto;
(V) Refusal to pay the cost of examination as
required by subsection (6) of this section;
(VI) Use of methods which, although not otherwise
specifically proscribed by law, nevertheless render the
operation of the self-insurance pool hazardous, or its
condition unsound, to the public;
(VII) Failure to otherwise comply with the law of
this state, if such failure renders the operation of the selfinsurance pool hazardous to the public.
(b) If the commissioner of insurance finds upon
examination, hearing, or other evidence that any participating
employer self-insurance pool has committed any of the acts
specified in paragraph (a) of this subsection (7) or any act
otherwise prohibited in this section, the commissioner may
suspend or revoke such certificate of authority if the
commissioner deems it in the best interest of the public.
Notice of any revocation shall be published in one or more
daily newspapers in Denver which have a general state
circulation. Before suspending or revoking any certificate of
authority of an employer self-insurance pool, the
commissioner shall grant the employer self-insurance pool
fifteen days in which to show cause why such action should
not be taken.
(8) The commissioner of insurance may supervise
or rehabilitate an employer self-insurance pool pursuant to
the provisions of parts 4 and 5 of article 3 of title 10, C.R.S.,
for any of the following reasons:
(a) Insolvency or impairment;
(b) Failure to comply with the provisions of its own
rules, resolutions, contracts, or other conditions relating to the
self-insurance pool;
(c) Failure to submit to examination or any legal
obligation relative thereto;
(d) Use of methods which, although not otherwise
specifically proscribed by law, nevertheless render the
operation of the self-insurance pool hazardous, or its
condition unsound, to the public;
(e) Failure to otherwise comply with the law of this
state, if such failure renders the operation of the selfinsurance pool hazardous to the public.
(9) The commissioner of insurance may promulgate
reasonable rules and regulations necessary to effectuate the
purposes of this section.
(10) Any self-insurance pool or any trust which
provides insurance coverage for purposes of articles 40 to 47
of this title which is in existence and is operating prior to July
10, 1987, is not subject to the requirements of this section and
may continue to operate such pool or trust as authorized by
law.
(11) Each self-insurance pool created under this
section shall establish a trust fund, on an annual basis, to
provide payment of the total workers' compensation loss cost
incurred by all pool members within each given year.
Aggregate excess insurance shall be provided by each selfinsurance pool to the statutory limit of coverage, attaching at
the maximum amount of each annual trust fund balance, or,
in lieu thereof, the commissioner of insurance shall set other
security standards which assure payment of workers'
compensation in the event that a self-insurance pool disbands
or defaults.
8-44-206. Guaranty
fund
and
immediate
payment fund. (1) The general assembly hereby finds and
declares that benefits awarded under articles 40 to 47 of this
title to claimants employed by self-insurers may be
61
unreasonably delayed or not paid at all if receipt of the
proceeds of the bond required of the self-insurer is delayed or
if the self-insurer declares bankruptcy or has insufficient
reserves to cover the claim. The general assembly further
finds and declares that the creation of an immediate payment
fund and a guaranty fund will assure prompt and complete
payment of benefits awarded to such claimants.
(2) Creation of special funds board - duties.
(a) For the purposes of carrying out this section, there is
hereby created a special funds board which shall exercise its
powers and perform its duties and functions as specified in
this subsection (2) under the department of labor and
employment as if the same were transferred to the department
by a type 2 transfer as such transfer is defined in the
"Administrative Organization Act of 1968", article 1 of title
24, C.R.S. Said board shall be composed of five members:
Four members who are managers or employees of selfinsured employers in good standing, two of whom shall
demonstrate knowledge of risk management and finance, and
the executive director.
(b) With the exception of the executive director, the
board members shall be appointed by the governor and
approved by the senate. The terms of the members of the
board first appointed shall be four years, three years, two
years, and one year, respectively. Thereafter, the term for
each appointed board member shall be four years. Members
of the board may be reappointed and the executive director
shall serve continuously.
(c) The members of the board shall receive no
compensation but shall be reimbursed for actual and
necessary traveling and subsistence expenses incurred in the
performance of their duties as members of the board.
(d) (I) The board shall determine the assessments to
be made pursuant to subsections (3) and (4) of this section
and shall determine the qualifications and requirements for
any claims administrators hired to adjust the claims of a selfinsurer who fails to meet his obligations with respect to
benefits awarded pursuant to articles 40 to 47 of this title.
(II) The board shall also participate, in an advisory
capacity only, in matters concerning the granting or
termination of self-insurance permits and the setting of
security requirements.
(3) Immediate payment fund - assessments creation of fund. (a) The board shall impose an assessment
upon each employer self-insured under section 8-44-201.
Assessments under this subsection (3) shall be based upon a
ratio equal to the self-insured employer's paid workers'
compensation medical and indemnity losses for the most
recent self-insurance permit year divided by the aggregate
sum of paid medical and indemnity losses by all self-insured
employers for that year. Such losses shall be determined on
July 1, 1990, for the most recently completed permit year,
and on the first day of July for each year thereafter until the
minimum fund balance has been reached. Contributions to
the fund shall not be assets of the self-insured employer.
(b) (I) All moneys received by the executive
director pursuant to this subsection (3) shall be deposited in
the state treasury in the immediate payment fund, which fund
is hereby created, and all moneys credited to such fund shall
be used solely for the administration and payment of benefits
to employees pursuant to this section. The general assembly
shall make annual appropriations out of such fund for the
administration of the fund. The moneys in such fund for the
payment of benefits are hereby continuously appropriated to
the department for payment of such benefits. Any moneys
not utilized in the fund shall not revert to the general fund.
(II) The minimum fund balance shall be three
hundred thousand dollars, to be assessed during the first three
years at the rate of one hundred thousand dollars annually.
Interest shall accrue to the fund to a maximum fund balance
of one million dollars. Thereafter, the fund balance shall be
maintained at one million dollars by refunding the excess
funds to each self-insured employer, on a pro rata basis,
based on that employer's contribution.
(4) Guaranty fund - assessments - creation of
fund. (a) When the board determines that existing security
held by an employer self-insured under section 8-44-201 is
insufficient to meet its existing liability for workers'
compensation benefits, the board shall impose an assessment
on each self-insured employer. The assessment shall be
based on a ratio which equals each self-insured employer's
paid workers' compensation medical and indemnity losses for
the most recent self-insurance permit year divided by the
aggregate sum of paid medical and indemnity losses by all
self-insured employers for that year. If necessary, the
executive director may direct the board to make an annual
assessment thereafter until such time as the present value of
the guaranty fund, created in paragraph (b) of this subsection
(4), equals the total liability for workers' compensation
benefits which are in excess of the security held by the
defaulting self-insured employers.
(b) (I) All moneys received by the executive
director pursuant to this subsection (4) shall be deposited in
the state treasury in the guaranty fund, which fund is hereby
created. Such moneys credited to the fund shall be used
solely for the administration and payment of benefits to
employees pursuant to this section. The general assembly
shall make annual appropriations out of such fund for the
administration of the fund. The moneys in such fund for the
payment of benefits are hereby continuously appropriated to
the department for payment of such benefits. Any moneys
not utilized in the fund shall not revert to the general fund.
(II) All interest shall accrue to the fund. No
amounts shall be refunded until all liability in excess of
security held by self-insured employers has been discharged
and until the dates imposing limitations on actions, as
specified in sections 8-43-103 and 8-43-303 have passed.
When those conditions have been met, the remaining moneys
in the fund shall be refunded to each self-insured employer,
on a pro rata basis, based on that employer's contribution.
(c) Public entities self-insuring under section 8-44201 shall be exempt from and shall not participate in this
subsection (4).
(5) The department shall select any claims
administrators required under this section based on the
qualifications and requirements established by the board. For
the purpose of contracting for such services, the department
shall not be subject to articles 101 to 114 of title 24, C.R.S.
62
ARTICLE 45
Pinnacol Assurance
8-45-101. Pinnacol Assurance - creation - powers
and duties. (1) There is hereby created Pinnacol Assurance,
which shall be a political subdivision of the state and shall
operate as a domestic mutual insurance company except as
otherwise provided by law. Pinnacol Assurance shall not be
an agency of state government, nor shall it be subject to
administrative direction by any state agency except as
provided in this article, and except for the purposes of the
"Colorado Governmental Immunity Act", article 10 of title 24,
C.R.S. Pinnacol Assurance shall not be dissolved except by
the general assembly. Section 10-12-411, C.R.S., shall not
apply to Pinnacol Assurance.
(2) (a) The powers of Pinnacol Assurance shall be
vested in the board of directors of Pinnacol Assurance, which
shall have nine members. The members of the board shall be
appointed by the governor with the consent of the senate. Of
the nine members, four shall be employers whose liability
under articles 40 to 47 of this title is insured by Pinnacol
Assurance with one of such employers to be a farmer or
rancher. Three of the nine members shall be employees of
employers whose liability under articles 40 to 47 of this title is
insured by Pinnacol Assurance. One of the nine members
shall be experienced in the management and operation of
insurance companies as defined in section 10-1-102 (6),
C.R.S. Such member shall not concurrently serve as an
owner, a shareholder, an officer, an employee, an agent of, or
in any other capacity with any business which competes with
Pinnacol Assurance. One of the nine members shall be
experienced in finance or investments, but shall not be an
employer whose liability under articles 40 to 47 of this title is
insured by Pinnacol Assurance. The term of office for each
such member shall be five years. The appointees may serve
on a temporary basis if the senate is not in session when they
are appointed until the senate is in session and is able to
confirm such appointments. Vacancies on the board shall be
filled by appointment of the governor for the remainder of any
unexpired terms. The board shall elect a chairman annually
from its membership.
(b) The members of the board who were serving as
of January 1, 2002, shall continue to serve until the
completion of each member's term. New members of the
board shall be appointed pursuant to paragraph (a) of this
subsection (2).
(c) The board shall have the powers, rights, and
duties as set forth in this article and otherwise provided by
law.
(3) Members of the board shall be compensated one
hundred forty dollars per diem plus their actual and necessary
expenses. Per diem compensation, not to exceed thirty days
in any calendar year, shall be paid only when the board is
transacting official business.
(4) On and after July 1, 2002, the powers, duties,
and functions formerly exercised by the Colorado
compensation insurance authority may be exercised by
Pinnacol Assurance.
(5) The board shall:
(a) (I) Appoint the chief executive officer of
Pinnacol Assurance who shall serve under contract and
appoint, hire, or delegate the authority to hire such other staff
as may be necessary to carry out the duties of Pinnacol
Assurance.
(II) If an executive officer of Pinnacol Assurance is
appointed pursuant to subparagraph (I) of this paragraph (a)
and such executive officer appoints, hires, or delegates duties
to any other staff necessary to carry out the duties of Pinnacol
Assurance, and the executive officer or other staff receives
total compensation, including bonuses or deferred
compensation, in an amount equal to or greater than one
hundred fifty thousand dollars annually, such compensation
information shall be a public record.
(b) Develop and approve an annual budget;
(c) Establish general policies and procedures for the
operation and administration of Pinnacol Assurance;
(d) (Deleted by amendment, L. 2002, p. 1865, § 1,
effective July 1, 2002.)
(e) Promulgate policies and procedures that
establish the basis by which employer premiums payable to
Pinnacol Assurance are determined. The board may establish
different rates for employers who meet the requirements
established by the board for any classification after
complying with the requirements of part 4 of article 4 of title
10, C.R.S., so long as those rates are not excessive,
inadequate, or unfairly discriminatory.
(f) Offer to provide workers' compensation
insurance and employer's liability insurance covering any
liability of Colorado employers on account of personal
injuries sustained by, or the death of, any employee. Nothing
in this article shall be interpreted to permit Pinnacol
Assurance to provide any other type of insurance or to
provide insurance to employers that are not Colorado
employers. Pinnacol Assurance shall not refuse to insure any
Colorado employer or cancel any insurance policy due to the
risk of loss or amount of premium, except as otherwise
provided in this title.
(g) Review
and
streamline
administrative
procedures;
(h) Oversee the operations and make necessary
personnel changes;
(i) Review the investigative procedures and
implement changes to expedite investigations;
(j) Review and recommend legislation pertaining to
workers' compensation in articles 40 to 47 of this title and to
clarify legal concepts related thereto;
(k) Review the method of calculation of the
experience modification factor with the object of providing
maximum incentives for job safety; and
(l) Establish general policies and procedures by rule
and regulation concerning medical care cost containment
practices under articles 40 to 47 of this title.
(m) Post the date, time, and location of each board
meeting on the Pinnacol Assurance web site at least seven
calendar days prior to the scheduled meeting.
(6) Article 4 of title 24, C.R.S., shall not apply to
the promulgation of any policies or procedures authorized by
subsection (5) of this section.
63
(7) Pinnacol Assurance may sell services, including
but not limited to medical bill processing, that are developed
pursuant to its powers under this article.
(8) Employees of Pinnacol Assurance shall be
exempt from the state personnel system but shall, by
acceptance of employment, be subject to the provisions of
article 51 of title 24, C.R.S. Pinnacol Assurance shall
provide for the deduction of employer and employee
contributions from salary and for payment to the association
of such deductions and for any other payments that would be
due from a state employer.
(9) Notwithstanding any provision of law to the
contrary, the claim files of injured employees, the policy files
of employers, and all business records relating to the
determination of rates that are not required to be disclosed by
any other insurance company shall not be subject to the
provisions of part 2 of article 72 of title 24, C.R.S.
(10) With respect to meetings of Pinnacol
Assurance, matters relating to the claim files of injured
employees and policy files of employers shall not be subject
to the provisions of part 4 of article 6 of title 24, C.R.S.
(11) Pinnacol Assurance may enter into
cooperative arrangements with any public or private entity for
the purpose of carrying out its powers, duties, and functions.
Nothing in this section shall require or be interpreted to
require an employer to provide health insurance coverage for
its employees.
(12) Notwithstanding the provisions of subsection
(1) of this section, upon the attainment of a reasonable
surplus as set forth in section 8-45-111, the "Colorado
Governmental Immunity Act", article 10 of title 24, C.R.S.,
shall not apply to Pinnacol Assurance.
(13) Any member of the board who owns at least
ten percent of an entity that enters into a contract with
Pinnacol Assurance shall disclose the board member's
ownership interest in the entity. This disclosure shall be a
public record.
8-45-102. Pinnacol Assurance fund created control of fund. (1) There is hereby created in the state
treasury a fund, to be known as the Pinnacol Assurance fund,
for the benefit of injured and the dependents of killed
employees, which shall be administered in accordance with
the provisions of this article by the board.
Such
administration shall be without liability on the part of the
state, beyond the amount of said fund, constituted as provided
in this article. The state shall have no liability for the
solvency or financial condition of the fund.
(2) The chief executive officer is vested with full
power and jurisdiction over the administration of Pinnacol
Assurance and may appoint such subordinate officers as may
be necessary for the efficient operation of Pinnacol Assurance
and may do and perform all things, whether specifically
designated in this article or in addition thereto, that are
necessary or convenient in the exercise of any power or
jurisdiction over Pinnacol Assurance in the administration
thereof under the provisions of this article as fully and
completely as the head of a private insurance company might
or could do, subject, however, to all the provisions of this
article and other applicable law.
(3) Control of all moneys in the Pinnacol Assurance
fund shall be transferred to the board, which shall administer
the fund and use such moneys for the purposes of this article.
(4) The Pinnacol Assurance fund shall be a
continuing fund and shall consist of all premiums received
and paid into said fund for compensation insurance, all
property and securities acquired by and through the use of
moneys belonging to said fund, and all interest earned upon
moneys belonging to said fund and deposited or invested.
Said fund shall be applicable to the payment of the salaries of
the employees of the fund and to its other operating expenses
and to the payment of losses sustained or liabilities incurred
under the contracts or policies of insurance issued by
Pinnacol Assurance in accordance with the provisions of
articles 40 to 47 of this title. All moneys in the fund
previously known as the Colorado compensation insurance
authority fund shall be transferred into the Pinnacol
Assurance fund on July 1, 2002.
(5) The moneys in the Pinnacol Assurance fund
shall be continuously available for the purposes of this article
and shall not be transferred to or revert to the general fund of
the state at the end of any fiscal year. All revenues, moneys,
and assets of Pinnacol Assurance belong solely to Pinnacol
Assurance. The state of Colorado has no claim to nor any
interest in such revenues, moneys, and assets and shall not
borrow, appropriate, or direct payments from such revenues,
moneys, and assets for any purpose.
8-45-103. Board to fix rates - chief executive
officer to administer rates - sue and be sued - contracts care of injured. (1) The board shall have full power and it is
its duty to fix and determine the rates to be charged by
Pinnacol Assurance for compensation insurance.
(2) The chief executive officer shall manage and
conduct all business and affairs in relation to the rates to be
charged by Pinnacol Assurance for compensation insurance
which shall be conducted in the name of Pinnacol Assurance,
and in that name, without any other name, title, or authority,
the chief executive officer may:
(a) (I) Sue and be sued in all the courts of this state,
or of any other state, or of the United States, and in actions
arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with Pinnacol
Assurance and the administration, management, or conduct of
the business or affairs relating thereto; and the chief
executive officer shall be authorized to employ counsel to
represent Pinnacol Assurance in any action.
(II) Nothing in this paragraph (a) shall be construed
to waive any provisions of the "Colorado Governmental
Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from
suit in federal court, guaranteed by the eleventh amendment
to the constitution of the United States.
(b) The chief executive officer shall not, nor shall
any officer or employee of Pinnacol Assurance, or entities or
parties with whom it contracts for services, be personally
liable in a private capacity for or on account of any act done
or omitted or contract or other obligation entered into or
undertaken in an official capacity in good faith and without
intent to defraud in connection with the administration,
64
management, or conduct of Pinnacol Assurance, its business,
or other affairs relating thereto.
(c) (Deleted by amendment, L. 2002, p. 1870, § 3,
effective July 1, 2002.)
8-45-104. Blanks furnished by state. (Repealed)
8-45-105. Places of employment classified amount of premiums. (1) The board may classify the places
of employment of employers insured by Pinnacol Assurance
into classes in accordance with the nature of the business in
which they are engaged and the probable hazard or risk of
injury to their employees. It shall determine the amount of
the premiums that such employers shall pay to Pinnacol
Assurance, and may prescribe in what manner such premiums
shall be paid, and may change the amount thereof both in
respect to any or all of such employers as circumstances may
require, and the condition of their respective plants,
establishments, or places of work in respect to the safety of
their employees may justify. All such premiums shall be
levied on a basis that shall be fair, equitable, and just as
among such employers.
(2) (Deleted by amendment, L. 2002, p. 1871, § 5,
effective July 1, 2002.)
8-45-106. Insurance at cost - board may impose
surcharges. (1) It is the duty of the board, in the exercise of
the powers and discretion conferred upon it by articles 40 to
47 of this title, ultimately to fix and maintain, for each class
of occupation, the lowest possible rates of premium
consistent with the maintenance of a solvent Pinnacol
Assurance fund, and the creation and maintenance of a
reasonable surplus after the payment of legitimate claims for
injury and death, that may be authorized to be paid from the
Pinnacol Assurance fund for the benefit of injured and
dependents of killed employees.
(2) The board may impose a premium surcharge,
not to exceed an additional fifty percent, for up to twelve
continuous months, as a condition precedent to insure or
reinsure an employer whose policy was canceled or
terminated by any insurer for reasons of fraud or intentional
misrepresentation of a material fact; except that, if an
employer disputes the imposition of such surcharge, the
employer may make a complaint to the commissioner of
insurance. If the commissioner of insurance determines that
the board, in imposing a premium surcharge, has engaged in
any conduct in violation of part 11 of article 3 of title 10,
C.R.S., the commissioner may take any action the
commissioner deems appropriate and authorized by law.
8-45-107. Basis
of
rates
reserve
surplus. (1) The rates shall be the percentage of the payroll
of any employer that, on the average, shall produce a
sufficient sum to:
(a) Carry all claims to maturity such that the rates
shall be based upon the reserve and not upon the assessment
plan;
(b) Produce a reasonable surplus as provided in
articles 40 to 47 of this title, cover the catastrophe hazard,
and ensure the payment to employees and their dependents of
the compensation provided in said articles.
(2) In determining the amount of reserve to be laid
aside to meet deferred payments according to awards, such
reserve may be ascertained by finding the present worth of
such deferred medical and indemnity payments calculated at
a rate of interest not higher than six percent per annum and
such calculations of disability indemnity benefits shall be
made according to a table of mortality not lower than the
American experience table of mortality and, in the discretion
of the board, by such other and further methods as will result
in the establishment of adequate reserves.
(3) The amounts raised for the Pinnacol Assurance
fund shall ultimately become neither more nor less than
necessary to make the fund self-supporting, which includes
the attainment and maintenance of an adequate surplus as
determined in accordance with section 8-45-111, and the
premiums or rates levied for such purpose shall be subject to
readjustment from time to time by the board as may become
necessary.
8-45-108. Intentional
misrepresentation
by
employer. (Repealed)
8-45-109. Rate schedules posted. (Repealed)
8-45-110. Board to keep accounts - readjustment
by board of rates. (Repealed)
8-45-111. Portions of premiums paid carried to
surplus. The board shall set aside such proportion as it may
deem necessary of the earned premiums paid into the
Pinnacol Assurance fund, as a contribution to the surplus of
the fund. No later than January 1, 2001, the board shall
submit a plan for approval by the commissioner of insurance
for the attainment of a reasonable surplus as determined in
accordance with section 10-3-201, C.R.S., or such surplus as
approved by the commissioner of insurance. All business
records related to such plan shall be disclosed by Pinnacol
Assurance to the same extent as similar records are disclosed
by the other insurance companies.
8-45-112. Amendment of rates - distribution to
policyholders. The board may amend at any time the rates
for any class. No contract of insurance between Pinnacol
Assurance and any employer shall be in effect until a policy
or binder has been actually issued by the board and the
premium therefor paid as and when required by this article.
Not less often than once a year the chief executive officer
shall tabulate the earned premiums paid by policyholders of
Pinnacol Assurance. Should the experience of the Pinnacol
Assurance fund show a credit balance and after payment of
all amounts that have fallen due because of operating
expenses, injury, or death, and after setting aside proper
reserves, the board shall distribute such credit balance to the
policyholders who have a balance to their credit in proportion
to the premium paid and losses incurred by each such
policyholder during the preceding insurance period. In the
event any such policyholder fails to renew a policy with
Pinnacol Assurance for the period following the period in
which said dividends were earned, said policyholder shall be
entitled to said credit dividend if such policy is terminated in
good standing.
In the event an employer actually
discontinues business, said employer's policy shall be
cancelled, and the dividend, if any, when ascertained, shall be
returned to the employer.
8-45-113. New policies issued - when. Pinnacol
Assurance shall not be required to issue a new policy of
insurance to an employer until all moneys due Pinnacol
Assurance have been paid, all premiums have been paid on
65
all cancelled policies, and the employer has complied with all
provisions of such cancelled policies.
8-45-114. Adjustment of premiums. (Repealed)
8-45-115. Determination of premium - payment
in advance - deductibles. (Repealed)
8-45-116. Reinsurance. (Repealed)
8-45-117. Regulation by commissioner of
insurance. (1) Pinnacol Assurance shall be subject to
regulation by the commissioner of insurance as provided in:
(a) Part 11 of article 3 of title 10, C.R.S., pertaining
to unfair competition and deceptive practices;
(b) Part 4 of article 4 of title 10, C.R.S., pertaining
to rate regulation; however, if the pure premium rates used by
Pinnacol Assurance are the national council on compensation
insurance rates previously approved by the commissioner of
insurance, Pinnacol Assurance may use different pure
premium rates for employers who meet the requirements
established by the board of directors after complying with the
requirements of part 4 of article 4 of title 10, C.R.S.,
concerning type II insurers;
(c) Sections 24-31-104.5, C.R.S.; 10-1-108 (7), 101-109, and 10-1-102, C.R.S., except subsections (3) and (6);
10-1-205, C.R.S., (1) to (6) and (8); 10-3-109, C.R.S., except
for the publication requirements; 10-3-118, C.R.S.; 10-3-128,
C.R.S.; 10-3-202, C.R.S.; 10-3-207, C.R.S.; 10-3-208,
C.R.S.; 10-3-231, C.R.S.; 10-3-239, C.R.S.; 10-3-701,
C.R.S.; and part 8 of article 3 of title 10, C.R.S., except as
these sections are inconsistent with the provisions of this
article.
(2) (Deleted by amendment, L. 97, p. 936, § 5,
effective May 21, 1997.)
(3) Nothing in this section shall be construed to
subject Pinnacol Assurance to any premium tax assessed
pursuant to title 10, C.R.S.
(4) The cost of examinations performed in
accordance with section 8-45-121 (4) shall be billed by the
commissioner to Pinnacol Assurance at prevailing hourly
rates based upon time records kept by the commissioner.
Any such payment received by the commissioner is hereby
appropriated to the division of insurance in addition to any
other funds appropriated for its normal operation.
(5) At such time as a reasonable surplus of the
Pinnacol Assurance fund is reached pursuant to section
8-45-111 or when Pinnacol Assurance fails to comply with
the plan to attain a reasonable surplus as set forth in section
8-45-111, Pinnacol Assurance shall be subject to regulation
by the commissioner of insurance as provided in section
10-1-205 (7) and part 4 of article 3 of title 10, C.R.S., to the
extent consistent with the provisions of this article.
(6) Notwithstanding the provisions of sections
8-45-102 (1) and 8-45-118, upon the attainment of a
reasonable surplus as set forth in section 8-45-111 and
verified by audit and examination performed in accordance
with section 8-45-121, all of the moneys in the Pinnacol
Assurance fund shall be transferred out of the state treasury
and into the custody of the board of Pinnacol Assurance. The
board shall thereafter control the investment of the fund
pursuant to the requirements set forth in part 2 of article 3 of
title 10, C.R.S.
(7) Notwithstanding the provisions of sections
8-45-102 (1) and 8-45-118, upon the transfer of the moneys
in the Pinnacol Assurance fund in accordance with subsection
(6) of this section, the board of Pinnacol Assurance shall
make all disbursements, and such disbursements shall not be
made upon state warrants.
(8) Notwithstanding the provisions of sections
8-45-102 (1) and 8-45-119, upon the transfer of the moneys
in the Pinnacol Assurance fund in accordance with subsection
(6) of this section, the state treasurer shall not be required to
give any bond as custodian of the Pinnacol Assurance fund.
(9) After the transfer of the moneys in the Pinnacol
Assurance fund in accordance with subsection (6) of this
section, if the commissioner of insurance places Pinnacol
Assurance under direct supervision pursuant to the provisions
of section 10-3-405, C.R.S., the moneys in the Pinnacol
Assurance fund may be transferred back to the custody of the
state treasury pursuant to sections 8-45-102 (1), 8-45-118,
and 8-45-119 and the state treasurer shall control the
investment of the fund pursuant to section 8-45-120. The
transfer of funds shall be under such conditions and within
such time period as the state treasurer and the commissioner
of insurance deem appropriate.
(10) Pinnacol Assurance shall not acquire or control
any other insurer. .
8-45-118. Treasurer custodian of fund disbursements. (1) The state treasurer shall be the custodian
of the Pinnacol Assurance fund, and all disbursements
therefrom shall be paid either by the state treasurer upon
warrants drawn in accordance with law upon vouchers issued
by the board upon order of the chief executive officer, or by
or under the direction of the chief executive officer in such
other manner as the state treasurer may approve. In every
case occurring in which a warrant has been drawn in
accordance with law against the state treasurer upon vouchers
issued by the board for payment of any sum of money from
the Pinnacol Assurance fund, or when another form of
payment has been made from such fund by or under the
direction of the chief executive officer, and the time within
which said warrant or other form of payment shall be
presented for payment in order to be valid has not been
stamped, printed, or written across the face thereof, or
otherwise specified, and a period of six months has elapsed
since the issuance of such warrant or other form of payment,
during which no person entitled thereto, or the proceeds
thereof, has presented the same to the state treasurer for
payment, or appeared to claim the funds so authorized to be
paid from the hands of the state treasurer or the chief
executive officer, such warrant or other form of payment may
in the discretion of the chief executive officer be posted for
cancellation, and thereafter cancelled and set aside.
(2) In every such case in which it is proposed to
cancel any such warrant, the chief executive officer shall
cause a notice to be drawn in duplicate, with a description of
said warrant containing the amount, number, date of issuance,
and name of payee, and shall cause one copy of said notice to
be posted in a conspicuous place that is open to the public in
the office of said board and one copy to be delivered to the
state treasurer. If, at the end of one month after the posting of
such notice and the delivery of a copy to the state treasurer,
66
such warrant is not presented for payment and no person
entitled to the proceeds thereof appears to claim the funds so
authorized to be paid in said warrant, said warrant may be
cancelled as provided in this section.
(3) (a) The state treasurer shall, upon the request of
the chief executive officer, transfer any such funds held to the
credit of or for the payment of such warrant back to the credit
of the Pinnacol Assurance fund. Except as otherwise provided
in paragraph (b) of this subsection (3), if at any time thereafter
application shall be made for the reissuance of such warrant,
the same may be reissued, if the claim that it represents
appears to be valid and still outstanding. Such reissued
warrant shall be made payable from the moneys on deposit in
the Pinnacol Assurance fund and shall be made payable to the
person entitled to the proceeds thereof.
(b) For warrants issued on or after August 6, 2003,
the funds transferred pursuant to paragraph (a) of this
subsection (3) shall be subject to the provisions of the
"Unclaimed Property Act", article 13 of title 38, C.R.S., and
for purposes of this paragraph (b), Pinnacol Assurance shall be
considered an insurance company as defined in section
38-13-102 (6.5), C.R.S.
(4) Except as provided in section 8-45-117, the
powers and discretion granted in this section to the chief
executive officer and the state treasurer shall obtain in all
cases relating to the warrants or other forms of payment
drawn on the Pinnacol Assurance fund, anything to the
contrary in any statute notwithstanding.
8-45-119 State treasurer to give separate bond as
custodian. (1) The state treasurer shall give a separate and
additional bond in such amount as may be fixed by the board
with sureties to be approved by the governor, conditioned for
the faithful performance of the state treasurer's duties as
custodian of the Pinnacol Assurance fund, and as custodian of
all the bonds, warrants, investments, and moneys of, or
belonging to, said Pinnacol Assurance fund, subject to all
provisions of law governing bonds of the state treasurer. The
premium on said bond shall be paid out of the earnings of the
Pinnacol Assurance fund.
(2) The state treasurer shall give a separate and
additional bond in such amount as may be fixed by the
executive director of the department of labor and employment
with sureties to be approved by the governor, conditioned for
the faithful performance of the state treasurer's duties as
custodian of the funds under the jurisdiction of the director of
the division of workers' compensation, and as custodian of all
the bonds, warrants, investments, and moneys of, or
belonging to, the funds under the jurisdiction of the director
of the division of workers' compensation, subject to all
provisions of law governing bonds of the state treasurer. The
premium on said bond shall be paid out of the earnings of the
funds under the jurisdiction of the director of the division of
workers' compensation on a pro rata basis.
8-45-120. State
treasurer
to
invest
funds. (1) Except as provided in subsection (2) of this
section, the state treasurer, after consulting with the board of
directors or the board's designated committee as to the overall
direction of the portfolio, shall invest any portion of the
Pinnacol Assurance fund, including its surplus or reserves,
which is not needed for immediate use. Such moneys may be
invested in the types of investments authorized in sections
24-36-109, 24-36-112, and 24-36-113, C.R.S. Such moneys
may also be invested in common and preferred stock in the
same manner as a domestic insurance company pursuant to
section 10-3-226, C.R.S. The state treasurer shall determine
the appropriate percentage of the fund, not to exceed one
hundred percent of the surplus, to be invested in common and
preferred stock and the appropriate level of risk for such
investments. The state treasurer may make such investments
in the form of mutual funds and may contract with private
professional fund managers and employ portfolio managers.
(2) Subject to approval by the board, the chief
executive officer may authorize and direct the state treasurer
to invest a portion of the funds in the Pinnacol Assurance
fund for the purchase of real property, to house, contain, and
maintain the offices and operational facilities of Pinnacol
Assurance as may be deemed necessary to accommodate its
immediate and reasonably anticipated future needs. The
chief executive officer is authorized to purchase such real
property, buildings, and improvements thereon. Title to such
real property, buildings, and improvements thereon shall vest
in Pinnacol Assurance, and such assets shall be a part of the
Pinnacol Assurance fund. The chief executive officer may
lease or rent space not needed for the immediate requirements
of Pinnacol Assurance in such real property to other public
agencies or private businesses. Moneys received from such
rental or lease of space and moneys appropriated by the
general assembly for rental or lease of space in such real
property shall be deposited with the state treasurer for credit
to the Pinnacol Assurance fund. The chief executive officer
shall not sell or otherwise dispose of any property, buildings,
or improvements thereon so acquired, without consent of the
board, and the moneys received from such sale or disposition
shall be credited to the account of the Pinnacol Assurance
fund.
(3) Repealed.
8-45-121. Visitation of fund by commissioner of
insurance - annual audit - examination. (1) Pinnacol
Assurance shall be open to visitation by the commissioner of
insurance at all reasonable times, and the commissioner of
insurance shall require from the chief executive officer
reports as to the condition of Pinnacol Assurance, as required
by law to be made by other insurance carriers doing business
in this state insofar as applicable to Pinnacol Assurance.
(2) An annual financial audit and, in 2009, a
performance audit of Pinnacol Assurance shall be made as
soon as practicable by the state auditor, such audits to
include, but not be limited to, executive compensation,
premium rate structure, known loss reserves, incurred but
not reported losses, and injured workers' claims experience.
In conducting such audits, the state auditor may employ a
firm of auditors and actuaries, or both, with the necessary
specialized knowledge and experience. The cost of such
annual audit shall be paid from the operating funds of
Pinnacol Assurance. The state auditor shall report his or her
findings from such audits, along with any comments and
recommendations, to the governor, the general assembly,
the executive director of the department of labor and
employment, and the commissioner of insurance. The state
auditor shall have continuing authority to conduct
67
performance audits of Pinnacol Assurance as the state
auditor deems appropriate. The cost of performance audits
shall be paid from the operating funds of Pinnacol
Assurance.
(3) (Deleted by amendment, L. 2002, p. 1879, § 20,
effective July 1, 2002.)
(4) At least once every three years, the
commissioner of insurance shall conduct an examination of
said fund, such examination to be conducted in the same
manner as an examination of a private insurance carrier.
With respect to such examination, the provisions of section
10-1-204, C.R.S., shall be applicable. The commissioner of
insurance shall transmit a copy of the commissioner's
examination to the governor, the state auditor, the general
assembly, the executive director of the department of labor
and employment, and the chief executive officer.
8-45-122. Annual report. (1) The chief executive
officer of Pinnacol Assurance shall submit an annual report to
the governor; the business affairs and labor committee of the
house of representatives; the business, labor, and technology
committee of the senate; and the health and human services
committees of the house of representatives and the senate, or
their successor committees, reporting on the business
operations, resources, and liabilities of the Pinnacol
Assurance fund.
(2) The report required in subsection (1) of this
section shall include the following information for the
previous calendar year:
(a) The number of policies held by Pinnacol
Assurance;
(b) The total assets of Pinnacol Assurance;
(c) The amount of reserves;
(d) The amount of surplus;
(e) The number of claims filed;
(f) The number of claims admitted or contested
within the twenty-day period pursuant to section 8-43-203,
specifying the number of contested claims that are medical
only and those that are indemnity claims;
(g) The number of medical procedures denied;
(h)
The amount of total compensation each
executive officer or staff member receives, including bonuses
or deferred compensation;
(i) The amount spent on commissions;
(j) The amount paid to trade associations for
marketing fees;
(k) All information relating to bonus programs; and
(l) Any other information the chief executive officer
deems relevant to the report.
8-45-123. Change of names - direction to
revisor. The revisor of statutes is authorized to change all
references to the Colorado compensation insurance authority
in the "Workers' Compensation Act of Colorado" and
everywhere else a reference is contained in the Colorado
Revised Statutes to Pinnacol Assurance and to change all
references to the Colorado compensation insurance authority
fund in the "Workers' Compensation Act of Colorado" and
everywhere else a reference is contained in the Colorado
Revised Statutes to the Pinnacol Assurance fund. .
8-45-124. Review of cost-effectiveness of use of
national council on compensation insurance by the
authority. (Repealed)
8-45-125. Legislative interim committee on
operation of Pinnacol Assurance - creation - members study - report - repeal. (1) There is hereby created a
legislative interim committee to study issues related to
Pinnacol Assurance as set forth in subsection (3) of this
section.
(2) (a) The members of the interim committee shall
consist of the following sixteen members:
(I) Five members of the senate, three appointed by
the president of the senate and two appointed by the minority
leader of the senate;
(II) Five members of the house of representatives,
three appointed by the speaker of the house of representatives
and two appointed by the minority leader of the house of
representatives;
(III) The chief executive officer of Pinnacol
Assurance, or his or her designee;
(IV) A member of the board of directors of Pinnacol
Assurance designated by such board;
(V) The insurance commissioner or his or her
designee; and
(VI) Each of the following appointed jointly by the
president of the senate, minority leader of the senate, speaker
of the house of representatives, and minority leader of the
house of representatives:
(A) A policyholder insured by Pinnacol Assurance;
(B) An injured worker; and
(C) A member of the public who has knowledge of
the Colorado workers' compensation system.
(b) The chair of the interim committee shall be
appointed by the president of the senate from among the
members appointed under subparagraph (I) of paragraph (a)
of this subsection (2). The vice-chair of the interim
committee shall be appointed by the speaker of the house of
representatives from among the members appointed under
subparagraph (II) of paragraph (a) of this subsection (2).
(3) The interim committee shall study, make
recommendations, and report findings on all matters relating
to the operation of Pinnacol Assurance including, but not
limited to, both the feasibility of the continued operation and
the public policy implications of Pinnacol Assurance as a
division of state government or the feasibility and public
policy implications of selling Pinnacol Assurance to a willing
third-party buyer.
(4) In conducting its study, the interim committee is
authorized to utilize the provisions of sections 2-2-313 to 2-2315, C.R.S., and rule 33 of the joint rules of the senate and
house of representatives.
(5) The legislative council staff and the office of
legislative legal services shall assist the interim committee in
its activities.
(6) The interim committee shall report its findings
and recommendations to the legislative council during the
2009 interim by the date specified in the joint rules of the
senate and house of representatives.
68
(7) The interim committee created by this section is
subject to the provisions of section 2-3-303.3, C.R.S., with
respect to the conduct of additional interim studies.
(8) This section is repealed, effective July 1, 2011.
ARTICLE 46
Specific Insurance Funds
PART 1
SUBSEQUENT INJURY FUND
8-46-101. Subsequent injury fund. (1) (a) In a
case where an employee has previously sustained permanent
partial industrial disability and in a subsequent injury sustains
additional permanent partial industrial disability and it is
shown that the combined industrial disabilities render the
employee permanently and totally incapable of steady gainful
employment and incapable of rehabilitation to steady gainful
employment, then the employer in whose employ the
employee sustained such subsequent injury shall be liable
only for that portion of the employee's industrial disability
attributable to said subsequent injury, and the balance of
compensation due such employee on account of permanent
total disability shall be paid from the subsequent injury fund
as is provided in this section.
(b) (I) In addition to such compensation and after
the completion of the payments therefor, the employee shall
continue to receive compensation at said employee's
established compensation rate for permanent total disability
until death out of a special fund to be known as the
subsequent injury fund, hereby created for such purpose. The
subsequent injury fund shall be funded pursuant to the
provisions of section 8-46-102.
(II) The unrestricted year-end balance of the
subsequent injury fund, created pursuant to subparagraph (I)
of this paragraph (b), for the 1991-92 fiscal year shall
constitute a reserve, as defined in section 24-77-102 (12),
C.R.S., and, for purposes of section 24-77-103, C.R.S.:
(A) Any moneys credited to the subsequent injury
fund in any subsequent fiscal year shall be included in state
fiscal year spending, as defined in section 24-77-102 (17),
C.R.S.; and
(B) Any transfers or expenditures from the
subsequent injury fund in any subsequent fiscal year shall not
be included in state fiscal year spending, as defined in section
24-77-102 (17), C.R.S., for such fiscal year.
(1.5) Notwithstanding any provision of this section
to the contrary, on May 1, 2003, the state treasurer shall
deduct twenty million dollars from the subsequent injury fund
and transfer such sum to the general fund.
(1.7) Notwithstanding any provision of this section
to the contrary, on March 30, 2009, the state treasurer shall
deduct twenty-six million five hundred thousand dollars from
the subsequent injury fund and transfer such sum to the
general fund.
(2) If an employee entitled to additional benefits, as
provided in this section, obtains employment while receiving
compensation from the subsequent injury fund, such
employee shall be compensated out of said fund at the rate of
one-half of said employee's average weekly wage loss,
subject to the maximum and minimum provisions of the
workers' compensation act, during such period of
employment.
(3) In case payment is or has been made under the
provisions of this section and dependency later is shown or if
payment is made by mistake or inadvertence or under such
circumstances that justice requires a refund thereof, the
division is authorized to refund such payment to the employer
or, if insured, the employer's insurance carrier.
(4) (a) The sums provided for the subsequent injury
fund created by this section shall be used to pay the costs
related to the administration of the fund and to make such
compensation payments as may be required by the provisions
of articles 40 to 47 of this title.
(b) Moneys in the subsequent injury fund are
continuously appropriated to the division for the payment of
benefits as provided in this section and legal fees.
(5) The director shall administer and conduct all
matters involving the subsequent injury fund in the name of
the division, and, in that name and without any other name,
title, or authority, the director may:
(a) (I) Sue and be sued in all the courts of this state,
of any other state, or of the United States and in actions
arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with the
subsequent injury fund and the administration or conduct of
matters relating thereto, including the authority to employ
counsel to represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed
to waive any provisions of the "Colorado Governmental
Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from
suit in federal court, guaranteed by the eleventh amendment
to the constitution of the United States.
(b) Make and enter into contracts or obligations
relating to the subsequent injury fund as authorized or
permitted under the provisions of articles 40 to 47 of this title,
but neither the director nor any officer or employee of the
division shall be personally liable in any private capacity for
or on account of any act done or omitted or contract or other
obligation entered into or undertaken in an official capacity in
good faith and without intent to defraud in connection with
the administration or conduct of the subsequent injury fund,
its business, or other affairs relating thereto.
8-46-102. Funding for subsequent injury fund
and major medical insurance fund. (1)(a) For every
compensable injury resulting in death wherein there are no
persons either wholly or partially dependent upon the
deceased, the employer or the employer's insurance carrier, if
any, shall pay to the division the sum of fifteen thousand
dollars, not to exceed one hundred percent of the death
benefit, to be transmitted to the state treasurer, as custodian,
and credited by the state treasurer to the subsequent injury
fund. In the event that there are only partially dependent
persons dependent upon the deceased, the employer or the
employer's insurance carrier, if any, shall first pay such
benefits to such partial dependents and shall transmit the
balance of the sum of fifteen thousand dollars to the state
treasurer, as custodian, who shall credit the same to the
subsequent injury fund.
69
(b) In the event that the deceased is a minor with no
persons either wholly or partially dependent upon the
deceased, the employer or the employer’s insurance carrier, if
any, shall pay to the parents of the deceased the sum of
fifteen thousand dollars, not to exceed one hundred percent of
the death benefit. In the event that there are no surviving
parents, the employer or the employer’s insurance carrier, if
any, shall pay such benefits to the division, to be transmitted
to the state treasurer, as custodian, and credited by the state
treasurer to the subsequent injury fund. In the event that there
are persons only partially dependent upon the deceased, the
employer or the employer’s insurance carrier, if any, shall
first pay such benefits to such partially dependent persons
and shall pay the balance to the surviving parents of the
deceased, or in the event that there are no surviving parents,
the remaining balance shall be paid to the division, to be
transmitted to the state treasurer, as custodian, who shall
credit the same to the subsequent injury fund.
(2) (a) (I) Notwithstanding sections 10-3-209 (1) (c)
and 10-6-128 (3), C.R.S., for the purpose of funding the
financial liabilities of the subsequent injury fund pursuant to
this section and of the major medical insurance fund pursuant
to section 8-46-202, every person, partnership, association,
and corporation, whether organized under the laws of this
state or of any other state or country, every mutual company
or association, every captive insurance company, and every
other insurance carrier, including Pinnacol Assurance,
insuring employers in this state against liability for personal
injury to their employees or death caused thereby under the
provisions of articles 40 to 47 of this title shall, as provided in
this subsection (2), be levied a tax upon the premiums
received in this state, whether or not in cash, or on account of
business done in this state for such insurance in this state at a
rate determined by the director to generate sufficient revenue
for claim payments and direct and indirect costs of
administration that are anticipated to be submitted in the
following state fiscal year for which such funds are liable. In
determining the rate, the director shall, in addition to revenue
for claim payments and direct and indirect costs of
administration that are anticipated to be due in the following
state fiscal year, maintain a cash balance in both the major
medical insurance fund and the subsequent injury fund of an
amount of otherwise unrestricted revenues equal to
approximately one year's worth of claim payments and direct
and indirect administrative costs. Such insurance carriers
shall be credited with all cancelled or returned premiums
actually refunded during the year of such insurance.
(II) Repealed.
(b) Every such insurance carrier shall, on July 1,
1988, and semiannually thereafter, make a return, verified by
affidavits of its president and its secretary or by affidavits of
its other chief officers or agents, to the division, stating the
amount of all such premiums received and credits granted
during the period covered by such return. Every insurance
carrier required to make such return shall file the same with
the division within thirty days after the close of the period
covered thereby and shall, at the same time, pay to the
division a tax ascertained as provided in paragraph (a) of this
subsection (2), less return premiums on cancelled policies.
(c) Every employer acting as a self-insurer under
the provisions of articles 40 to 47 of this title shall, under
oath, report to the division the employer's payroll in such
form as may be prescribed by the director and at the times
specified for premium reports by insurance companies in
paragraph (b) of this subsection (2). The division shall assess
against such payroll a tax for the purposes of paragraph (b) of
this subsection (2) on the basic premiums chargeable against
the same or most similar industry or business taken from the
manual insurance rates, including any discount or experience
modification allowed, chargeable by Pinnacol Assurance,
and, upon receipt of notice from the division of the tax so
assessed, every such self-insurer shall, within thirty days after
the receipt of such notice, pay to the division the tax so
assessed.
(d) If any such insurance carrier or self-insurer fails
or refuses to make the return or report required by paragraph
(b) or (c) of this subsection (2), the director shall assess the
tax against such insurance carrier or self-insurer at the rate
provided for in this subsection (2) on such amount of
premium as the director may deem just, and the proceedings
thereof shall be the same as if the return had been made.
(e) If any such insurance carrier or self-insurer
withdraws from business in this state before the tax provided
for in this subsection (2) falls due as provided in this section,
or fails or neglects to pay such tax, the director shall proceed
at once to collect the same; and the director is authorized to
employ such legal processes as may be necessary for that
purpose. Suit shall be brought by the director in any of the
courts of this state having jurisdiction.
(f) The director, in the enforcement of this
subsection (2), shall have all of the powers granted in articles
40 to 47 of this title, and any insurance carrier or self-insurer
who violates any of the provisions of this subsection (2) or
fails to pay the tax thereby imposed is guilty of a violation of
said articles and shall be subject to the penalties therein
prescribed.
(g) All moneys collected pursuant to this subsection
(2) shall be transmitted to the state treasurer, as custodian,
who shall credit the same to the subsequent injury fund and to
the major medical insurance fund as determined by the
director in accordance with subsection (3) of this section.
Any interest earned on the investment or deposit of moneys
in said funds shall remain in the funds and shall not revert to
the general fund of the state at the end of any fiscal year.
(3) (a) As determined by the director, a portion of
the revenue received each year pursuant to subsection (2) of
this section shall be deposited into the subsequent injury
fund, established in section 8-46-101 (1) (b), and a portion
shall be deposited into the major medical insurance fund,
established in section 8-46-202 (1). In addition, the director
may move revenue between the funds when the director
determines that doing so is necessary. The director shall
continue to establish a surcharge rate pursuant to subsection
(2) of this section until the balance in both such funds is
sufficient to meet the future claim payments plus the amount
necessary to pay the direct and indirect costs of
administration of the funds, at which time the surcharge rate
established in paragraph (a) of subsection (2) of this section
shall be reduced to zero.
70
(b) For the purpose of determining the proper
allocation of the surcharge and making the estimates
contemplated in paragraph (a) of this subsection (3), the
director shall contract for the services of qualified private
actuaries.
8-46-103. State treasurer to invest funds. (1) The
state treasurer shall invest any portion of the subsequent
injury fund, including its surplus and reserves, which the
division determines is not needed for immediate use. All
interest earned upon such invested portion shall be credited to
the fund and used for the same purposes and in the same
manner as other moneys in the fund. Such moneys may be
invested in the types of investments authorized in sections
24-36-109, 24-36-112, and 24-36-113, C.R.S.
(2) Repealed.
8-46-104. Closure of fund. No cases shall be
accepted into the subsequent injury fund for injuries
occurring on or after July 1, 1993, or for occupational
diseases occurring on or after April 1, 1994. When all
payments have been made for all cases accepted into the
fund, any remaining balance shall revert to the general fund.
8-46-105. Calculation of premium - permanent
total
disability
employer
may
request
examination. (1) Effective July 1, 1993, in any case in
which an employee previously has sustained permanent
partial disability and, in a subsequent injury, sustains
additional permanent partial disability and it is shown that the
combined industrial disabilities render the employee
permanently and totally disabled, then the premiums of the
employer in whose employ the employee sustained such
subsequent injury shall be determined only on the basis of the
impairment rating for such subsequent injury and not on the
basis of the employee's permanent total disability. If such
employer disputes the impairment rating for the subsequent
injury, the employer shall request an independent medical
examination pursuant to the procedures set forth in section 842-107.2. The finding of the independent medical examiner
regarding the impairment rating may be overcome only by
clear and convincing evidence. The total cost of the
employee's permanent total disability shall not be considered
in determining the employer's premiums, but shall be
considered by the commissioner of insurance in setting rates.
(2) In any case in which an employee becomes
disabled by an occupational disease and the employer is
liable for benefits pursuant to section 8-41-304 (2), then the
premiums of the employer in whose employ the employee
became disabled shall be determined only on the basis of the
impairment rating for the portion of the occupational disease
attributable to such employer and not on the basis of the
combination of such portion and any prior impairment
resulting from such occupational disease. For the purposes of
premium calculations, if such employer disputes the
impairment rating for the occupational disease, the employer
shall request an independent medical examination pursuant to
the procedures set forth in section 8-42-107.2. The finding of
the independent medical examiner regarding the impairment
rating may be overcome only by clear and convincing
evidence. The total cost of the employee's occupational
disease shall not be considered in determining the employer's
premiums, but shall be considered by the commissioner of
insurance in setting rates.
8-46-106. Abatement of taxes - independent
review of fund. The funding provisions of section 8-46-102,
including the provisions relating to the assessment and
levying of taxes, shall cease to be effective when an
independent actuary, retained by the division for such
purpose, determines that the fund has sufficient resources to
pay benefits for injuries occurring prior to July 1, 1993, and
occupational diseases occurring prior to April 1, 1994.
8-46-107. Report to general assembly and
governor. (Repealed)
8-46-108. Legislative council study of subsequent
injury fund. (Repealed)
8-46-109. Legislative declaration - claims
management - transfer of portfolio. (1) The general
assembly finds and declares that the purpose of this section is
to provide for prompt, efficient, and fair settlement of all
pending claims and the closure of both the subsequent injury
fund and the major medical insurance fund as soon as is
practicable.
(2) As necessary to augment the division's regular
staff, the director shall contract for the services of qualified
specialists in the area of settlements, who shall, on the
director's behalf, negotiate for and enter into settlements of
claims of the subsequent injury fund and the major medical
insurance fund for present value whenever possible.
(3) Repealed
PART 2
COLORADO MAJOR MEDICAL
INSURANCE FUND ACT
8-46-201. Short title. This part 2 shall be known
and may be cited as the "Colorado Major Medical Insurance
Fund Act".
8-46-202. Major medical insurance fund - tax
imposed - returns. (1) (a) There is hereby established a
major medical insurance fund to defray medical, surgical,
dental, hospital, nursing, and drug expenses and expenses for
medical, hospital, and surgical supplies, crutches, apparatus,
and vocational rehabilitation, which shall include tuition,
fees, transportation, and weekly maintenance equivalent to
that which the employee would receive under section 8-42105 for the period of time that the employee is attending a
vocational rehabilitation course, which expenses are in excess
of those provided under the "Workers' Compensation Act of
Colorado"
for employees who have established their
entitlement to disability benefits under said act, whether
necessary to promote recovery, alleviate pain, or reduce
disability.
(b) The unrestricted year-end balance of the major
medical insurance fund, created pursuant to paragraph (a) of
this subsection (1), for the 1991-92 fiscal year shall constitute
a reserve, as defined in section 24-77-102 (12), C.R.S., and,
for purposes of section 24-77-103, C.R.S.:
(I) Any moneys credited to the major medical
insurance fund in any subsequent fiscal year shall be included
in state fiscal year spending, as defined in section 24-77-102
(17), C.R.S., for such fiscal year; and
71
(II) Any transfers or expenditures from the major
medical insurance fund in any subsequent fiscal year shall not
be included in state fiscal year spending, as defined in section
24-77-102 (17), C.R.S., for such fiscal year.
(c) Moneys in the major medical insurance fund are
continuously appropriated to the division for the payment of
benefits as provided in this section and legal fees.
(1.5) (a) Notwithstanding any provision of this
section to the contrary, on May 1, 2003, the state treasurer
shall deduct one hundred fifty million dollars from the major
medical insurance fund and transfer such sum to the general
fund.
(b) On July 1, 2003, the state controller shall
transfer ten million dollars from the general fund to the major
medical insurance fund.
(1.6) Notwithstanding any provision of this section
to the contrary, on March 30, 2009, the state treasurer shall
deduct sixty-nine million five hundred thousand dollars from
the major medical insurance fund and transfer such sum to
the general fund.
(1.7) Notwithstanding any provision of this section
to the contrary, on March 31, 2010, the state treasurer shall
deduct twenty-six million five hundred thousand dollars from
the major medical insurance fund and transfer such sum to
the general fund.
(1.8) Notwithstanding any provision of this section
to the contrary, on June 30, 2011, the state treasurer shall
deduct ten million dollars from the major medical insurance
fund and transfer such sum to the general fund.
(2) The director shall administer the major medical
insurance fund and is hereby given jurisdiction to enforce the
provisions of this article. The director shall administer and
conduct all matters involving the major medical insurance
fund in the name of the division, and, in that name and without
any other name, title, or authority, the director may:
(a) (I) Sue and be sued in all the courts of this state,
of any other state, or of the United States and in actions
arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with the major
medical insurance fund and the administration or conduct of
matters relating thereto, including the authority to employ
counsel to represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed
to waive any provisions of the "Colorado Governmental
Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from
suit in federal court, guaranteed by the eleventh amendment
to the constitution of the United States.
(b) Make and enter into contracts or obligations
relating to the major medical insurance fund as authorized or
permitted under the provisions of articles 40 to 47 of this title,
but neither the director nor any officer or employee of the
division shall be personally liable in any private capacity for
or on account of any act done or omitted or contract or other
obligation entered into or undertaken in an official capacity in
good faith and without intent to defraud in connection with
the administration or conduct of the major medical insurance
fund, its business, or other affairs relating thereto;
(c) Contract with physicians, surgeons, and
hospitals for medical and surgical treatment, services and
supplies, crutches and apparatus, and the care and nursing of
injured persons entitled to benefits from said fund and, in
addition, may contract for medical, surgical, hospital, and
nursing services and supplies in excess of the amount and
period otherwise limited in this article if said director
determines that the contracting of such extra medical,
surgical, hospital, and nursing services and supplies will
reduce the period of disability for which said fund would be
liable for the payment and compensation.
(3) to (5) Repealed.
8-46-203. Failure to make returns. (Repealed)
8-46-204. Use of funds limited. (Repealed)
8-46-205. Collection of taxes due. If any such
insurance carrier or self-insurer withdraws from business in
this state before the tax falls due as provided in this part 2, or
fails or neglects to pay such tax, the director shall at once
proceed to collect the same; and the director is authorized to
employ such legal processes as may be necessary for that
purpose. Suit shall be brought by the director in any of the
courts of this state having jurisdiction.
8-46-206. Enforcement powers - violations. The
director, in the enforcement of this article, shall have all of
the powers granted in the "Workers' Compensation Act of
Colorado", and any insurance carrier or self-insurer violating
any of the provisions of this article, or failing to pay the tax
imposed in this article, is guilty of violation of said act and
subject to the penalties therein prescribed.
8-46-207. Receipt and disbursement of moneys.
(Repealed)
8-46-208. Applications - awards. (1) Payments
from the major medical insurance fund shall be awarded by
the director only after an application therefor has been filed
by a claimant employee, the claimant's employer, or such
employer's insurance carrier, or one on their behalf, for
admission to the fund, in any case where the limits of liability
provided under section 8-42-101 have been exhausted.
(2) Following the filing of an application, the
director shall approve or disapprove the expenditure of
further sums of money from the major medical insurance
fund and in so doing may rely upon medical reports contained
in the case file if the director deems them adequate, or the
director may rely upon recommendations of the medical
director, appointed pursuant to section 8-1-103, or the
director may appoint a medical panel of not more than three
medical experts to see and examine the applicant, each of
whom shall render a report to the director, advising whether
or not such expenditure of further sums of money will
promote recovery, alleviate pain, or reduce disability,
suggesting the form and manner of such treatment or services
and suggesting the reasonable cost thereof. The director, in
every case in which an award is made from this fund, shall
review said case at such time as the total medical
expenditures, including those expended under section 8-42101, shall reach fifteen thousand dollars and at each ten
thousand dollars increment thereafter to determine and enter
an order regarding continuation or cessation of further
payments from said fund.
(3) The director shall award, and the state treasurer
shall pay from the major medical insurance fund, the
reasonable fees and expenses of the appointed members of
72
the medical panel when such procedure is used by the
director.
8-46-209. Credit for reduced disability - when. In
any determination of permanent disability, the employer or
the employer's insurance carrier shall receive any credit or
benefit for the reduction of disability of any claimant
employee under the "Workers' Compensation Act of
Colorado" directly attributable to a compensable accident or
disease when such reduction of disability is accomplished by
expenditures from the major medical insurance fund.
8-46-210. State treasurer to invest funds. (1) The
state treasurer shall invest any portion of the major medical
insurance fund, including its surplus and reserves, which the
director of the division of workers' compensation determines
is not needed for immediate use. All interest earned upon
such invested portion shall be credited to the fund and used
for the same purposes and in the same manner as other
moneys in the fund. Such moneys may be invested in the
types of investments authorized in sections 24-36-109, 24-36112, and 24-36-113, C.R.S.
(2) Repealed.
8-46-211. Abatement of tax - when. (Repealed)
8-46-212. Closure of fund. Effective July 1, 1981,
no further cases shall be accepted into the major medical
insurance fund for injuries or occupational diseases occurring
after that date, nor shall any cases be transferred from the
medical disaster insurance fund to the major medical
insurance fund.
PART 3
COLORADO MEDICAL DISASTER
INSURANCE FUND
8-46-301. Short title. This part 3 shall be known
and may be cited as the "Colorado Medical Disaster
Insurance Fund Act".
8-46-302. Medical disaster insurance fund - tax
imposed - returns. (1) There is hereby established a medical
disaster insurance fund to defray medical, surgical, hospital,
nursing, and drug expenses in excess of those provided under
the "Workers' Compensation Act of Colorado" for employees
who have established their entitlement to disability benefits
under said act, whether necessary to promote recovery,
alleviate pain, or reduce disability.
(2) The director shall administer the medical
disaster insurance fund and is hereby given jurisdiction to
enforce the provisions of this part 3. The director shall
approve or disapprove admissions to the Colorado medical
disaster insurance fund.
8-46-303. Use of funds limited. (1) All funds
received by the division under the provisions of this article
shall be used solely to pay the costs related to the
administration of the medical disaster insurance fund and to
defray the cost of medical, surgical, and hospital expenses
necessary to effect the recovery, alleviate pain, or reduce the
disability of employees who have established their
entitlement to disability benefits under the "Workers'
Compensation Act of Colorado" in accordance with and
subject to the provisions of such act.
(2) Moneys in the medical disaster insurance fund
are continuously appropriated to the division for the payment
of benefits as provided in this section and legal fees.
8-46-304. Enforcement powers - violations.
(1) The director, in the enforcement of this article, shall
have all of the powers granted in the "Workers'
Compensation Act of Colorado", articles 40 to 47 of this title,
and any insurance carrier or self-insurer violating any of the
provisions of this article is guilty of a violation of said act and
shall be subject to the penalties therein prescribed.
(2) The director shall administer and conduct all
matters involving the medical disaster insurance fund in the
name of the division, and, in that name and without any other
name, title, or authority, the director may:
(a) (I) Sue and be sued in all courts of this state, of
any other state, or of the United States and in actions arising
out of any act, deed, matter, or thing made, omitted, entered
into, done, or suffered in connection with the medical disaster
insurance fund and the administration or conduct of matters
relating thereto, including the authority to employ counsel to
represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed
to waive any provisions of the "Colorado Governmental
Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from
suit in federal court, guaranteed by the eleventh amendment
to the constitution of the United States.
(b) Make and enter into contracts or obligations
relating to the medical disaster insurance fund as authorized
or permitted under the provisions of articles 40 to 47 of this
title, but neither the director nor any officer or employee of
the division shall be personally liable in any private capacity
for or on account of any act done or omitted or contract or
other obligation entered into or undertaken in an official
capacity in good faith and without intent to defraud in
connection with the administration or conduct of the medical
disaster insurance fund, its business, or other affairs relating
thereto;
(c) Contract with physicians, surgeons, and
hospitals for medical and surgical treatment, services and
supplies, crutches and apparatus, and the care and nursing of
injured persons entitled to benefits from said fund and, in
addition, may contract for medical, surgical, hospital, and
nursing services and supplies in excess of the amount and
period otherwise limited in this article if said director
determines that the contracting of such extra medical,
surgical, hospital, and nursing services and supplies will
reduce the period of disability for which said fund would be
liable for the payment and compensation.
8-46-305. Receipt and disbursement of moneys.
All moneys collected by the division pursuant to the
provisions of this part 3 shall be transmitted to the state
treasurer who shall deposit the same to the credit of the
medical disaster insurance fund, and all disbursements
therefrom shall be paid by the state treasurer in accordance
with and subject to final awards of the director, as provided in
this article.
8-46-306. Applications - medical panel - awards limitations. (1) Payments from the medical disaster
insurance fund shall be awarded by the director only after an
73
application therefor has been filed by a claimant employee,
the claimant's employer, or such employer's insurance carrier,
or one on their behalf, and approved by the director for
admission to the fund, in any case where the limits of liability
provided under section 8-42-101 have been exhausted.
(2) The director shall, in every case where an
application for payments from the medical disaster insurance
fund is filed, immediately, after receipt of such application,
appoint a medical panel of three medical experts to see and
examine the applicant, each of whom shall render a report to
the director, advising whether or not the expenditure of
further sums of money will promote recovery, alleviate pain,
or reduce disability, suggesting the form and manner of
further treatment or services and suggesting the reasonable
cost thereof.
(3) The director, upon receipt of reports from each
of the medical experts appointed in accordance with
subsection (2) of this section, shall either deny the application
or award payments from the medical disaster insurance fund,
based upon such reports and as nearly as possible in
accordance with the majority opinion and suggestions of the
medical panel.
(4) In making payment awards from the medical
disaster insurance fund, the director shall be limited in any
one case to the sum of fifty-five thousand dollars, less any
amounts of money expended by the employer or the
employer's insurance carrier for medical, surgical, or hospital
services and the costs of any prosthetic devices, or the
reasonable value of any such services or devices furnished by
the employer or the employer's insurance carrier.
(5) The director shall award, and the state treasurer
shall pay from the medical disaster insurance fund, the
reasonable fees and expenses of the appointed members of
the medical panel.
8-46-307. Credit for reduced disability when. (1) In any determination of permanent disability, the
employer or the employer's insurance carrier shall receive no
credit or benefit for the reduction of disability of any claimant
employee under the "Workers' Compensation Act of
Colorado" directly attributable to a compensable accident or
disease when such reduction of disability is accomplished by
expenditures from the medical disaster insurance fund, unless
it shall have been determined by a preponderance of the
evidence:
(a) That the claimant employee had refused
hospital, surgical, and medical services under the "Workers'
Compensation Act of Colorado" necessary to reduce the
employee's disability voluntarily offered by the employer; or
(b) That the claimant employee had reached
maximum improvement as determined by the director prior to
the filing of the application for payments from the medical
disaster insurance fund.
8-46-308. State treasurer to invest funds. (1) The
state treasurer shall invest any portion of the medical disaster
insurance fund, including its surplus and reserves, which the
director determines is not needed for immediate use. All
interest earned upon such invested portion shall be credited to
the fund and used for the same purposes and in the same
manner as other moneys in the fund. Such moneys may be
invested in the types of investments authorized in sections
24-36-109, 24-36-112, and 24-36-113, C.R.S.
(2) Repealed.
8-46-309. Authority to utilize other revenue.
Revenues obtained from the tax imposed pursuant to section
8-46-102 (2) (a) may be used, in the discretion of the director,
for the purpose of paying the costs incurred pursuant to this
article.
ARTICLE 47
Administration
PART 1
DIRECTOR'S POWERS AND DUTIES
8-47-101. Division of workers' compensation creation - powers, duties, and functions - transfer of
functions and property - change of statutory
references. (1) There is hereby created the division of
workers' compensation in the department of labor and
employment. Pursuant to section 13 of article XII of the state
constitution, the executive director of the department of labor
and employment shall appoint the director of the division of
workers' compensation, and the director shall appoint such
employees as are necessary to carry out the duties and
exercise the powers conferred by law upon the division of
workers' compensation and the director.
(2) The director and the division of workers'
compensation shall enforce and administer the provisions of
the "Workers' Compensation Act of Colorado", articles 40 to
47 of this title, as provided in said articles and the provisions
of article 14.5 of this title.
(3) (a) The division of workers' compensation shall,
on and after July 1, 1991, execute, administer, perform, and
enforce the rights, powers, duties, functions, and obligations
vested in the division of labor prior to July 1, 1991,
concerning the duties and functions transferred to the division
of workers' compensation. On July 1, 1991, all employees of
the division of labor whose principal duties are concerned
with the duties and functions transferred to the division of
workers' compensation and whose employment in the
division of workers' compensation is deemed necessary by
the executive director of the department of labor and
employment to carry out the purposes of this article shall be
transferred to the division of workers' compensation and shall
become employees thereof. Such employees shall retain all
rights to the state personnel system and retirement benefits
under the laws of this state, and their services shall be
deemed to have been continuous. All transfers and any
abolishment of positions in the state personnel system shall
be made and processed in accordance with state personnel
system laws and rules and regulations.
(b) Repealed.
(c) Whenever the division of labor is referred to or
designated by any contract or other document in connection
with the duties and functions transferred to the division of
workers' compensation, such reference or designation shall be
deemed to apply to the division of workers' compensation.
All contracts entered into by the said division of labor prior to
July 1, 1991, in connection with the duties and functions
74
transferred to the division of workers' compensation are
hereby validated, with the division of workers' compensation
succeeding to all the rights and obligations of such contracts.
Any appropriations of funds from prior fiscal years open to
satisfy obligations incurred under such contracts are hereby
transferred and appropriated to the division of workers'
compensation for the payment of such obligations.
(d) (I) Repealed.
(II) Commencing in the 1992 legislative session and
at least every four years thereafter, the general assembly shall
provide for the conduct of a performance review by the state
auditor of the administrative law judges in the office of
administrative courts who hear cases under articles 40 to 47
of this title. The review shall include, but not be limited to,
the following topics: The time elapsed from the date of
hearing until decisions are rendered by the administrative law
judges; the time elapsed from the point at which the file is
complete and the case is ready for order until the decision is
rendered by the administrative law judges; the number of
decisions that are reversed upon appeal to the industrial claim
appeals panel and to the court of appeals respectively; the
workload or number of cases assigned to each administrative
law judge; and the public perception of the quality of the
performance of the office of administrative courts with
respect to matters arising under the "Workers' Compensation
Act of Colorado".
(4) Repealed.
(5) On and after July 1, 1991, when any provision
of articles 40 to 47 of this title refers to the division of labor
said law shall be construed as referring to the division of
workers' compensation.
(6) The revisor of statutes is authorized to change
all references to the director of the division of labor, and the
division of labor in articles 14.5 and 40 to 47 of this title to
refer to the director of the division of workers' compensation
and the division of workers' compensation.
8-47-102. Director to enforce orders. If any
person fails or refuses to comply with an order of the director,
or to obey any subpoena issued by the director or agents of
the division, or to furnish the statistics, data, and information
required to be furnished to the division by the provisions of
articles 40 to 47 of this title, or refuses to permit an
inspection as provided in said articles, or being in attendance
refuses to be sworn or examined, or to answer a question, or
to produce a book or paper when ordered to do so by the
director or any of the deputies, agents, or referees of the
division, the director may apply to the district court, upon
proof by affidavit of the facts, for an order, returnable in not
less than three days nor more than five days, directing such
person to show cause before the district court which made the
order why such person should not be committed to jail. Upon
the return of such order, the district court shall examine under
oath such person and give the person an opportunity to be
heard. If the court determines that the person has refused
without legal excuse in any one of the foregoing matters, it
may commit the offender to jail forthwith by warrant, there to
remain until the person submits to do the act which said
person was required to do or until said person is discharged
according to law.
8-47-103. Orders of director or appeals office validity. All orders of the director or industrial claim appeals
office shall be valid and in force and prima facie reasonable
and lawful until found otherwise in an action brought for that
purpose, pursuant to the provisions of articles 40 to 47 of this
title, or until altered or revoked by the director or industrial
claim appeals office, as the case may be.
8-47-104. Orders and awards - technical
objections. Substantial compliance with the requirements of
articles 40 to 47 of this title shall be sufficient to give effect
to the orders or awards of the director or industrial claim
appeals office, and they shall not be declared inoperative,
illegal, or void for any omission of a technical nature in
respect thereto.
8-47-105. Deposit on unpaid compensation or
benefits - trust fund - surplus. (1) The director has the
discretion, at any time, any provisions in articles 40 to 47 of
this title to the contrary notwithstanding, to compute and
require to be paid to the division, to be held by it in trust, an
amount equal to the present value of all unpaid compensation
or other benefits in any case computed at the rate of four
percent per annum. Such action may be taken after a finding
by the director as to the insolvency, the threatened
insolvency, or any other condition or danger which may
cause the loss of, or which has delayed or may impede,
hinder, or delay prompt payment of, compensation or benefits
by any insurance carrier or employer. The action and finding
of the director shall not be subject to review, and the director
shall not be required to give any notice of hearing or hold any
hearing prior to taking such action or making such finding.
(2) All moneys so paid in shall constitute a separate
trust fund in the office of the state treasurer, and, after any
such payment is so ordered, the employer or insurance carrier
shall thereupon be discharged from any further liability under
such award for which payment is made to the extent of the
payment made, and the payment of the award shall then be
assumed to the extent of payment made by the special trust
fund so created. If, for any reason, a beneficiary's right to the
compensation awarded and ordered paid into said special
trust fund ceases, lapses, or in any manner terminates by
virtue of the terms and provisions of articles 40 to 47 of this
title so that a surplus not surviving or accruing to any other
beneficiary remains in said trust fund of the amount ordered
paid into it on behalf of the beneficiary, the insurance carrier
or employer who has made said payment shall be entitled to a
refund of the present value of said surplus, if any, computed
at the rate of four percent per annum. The state treasurer shall
invest any portion of the special trust fund, including its
surplus and reserves, which the director determines is not
needed for immediate use.
8-47-106. State average weekly wage - method of
computation. The state average weekly wage shall be
established by the director annually on or before July 1 of
each year. The state average weekly wage shall be
determined from the average weekly earnings referenced in
section 8-73-102 (1), computed by the division in June on
the basis of the most recent available figures, and applicable
to the ensuing twelve months beginning July 1. Such state
average weekly wage shall automatically form the basis for
establishing maximum benefits under the "Workers'
75
Compensation Act of Colorado" as of 12:01 a.m., July 1,
1974, and at each succeeding time and date annually
thereafter.
8-47-107. Adoption of rules. The director has the
power to adopt reasonable and proper rules relative to the
administration of articles 40 to 47 of this title and proper
rules to govern proceedings and hearings of the division, and
the director has the discretion to amend the rules from time to
time. No such rule shall limit the jurisdiction of an
administrative law judge in the office of administrative courts
to hear and decide all matters arising under articles 40 to 47
of this title; except that in any matter where the director has
issued an order to enforce a provision of the "Workers'
Compensation Act of Colorado", an administrative law judge
in the office of administrative courts shall not hear and decide
the same matter while it is pending before the director. The
rules shall be promulgated in accordance with section 24-4103, C.R.S.
8-47-108. Workers' compensation study - report
to general assembly. (Repealed)
8-47-109. Report
to
general
assembly.
(Repealed)
8-47-110. Public officers to enforce orders furnish information. It is the duty of all officers and
employees of the state, counties, and municipalities, upon the
request of the director, to enforce in their respective
departments all lawful orders of the director insofar as the
same may be applicable and consistent with the general
duties of such officers and employees. It is also their duty to
make to the director such reports as the director may require
concerning matters within their knowledge pertaining to the
purposes of articles 40 to 47 of this title and to furnish the
director such facts, data, statistics, and information as, from
time to time, may come to them pertaining to the purposes of
said articles and the duties of the division thereunder, and
particularly all information coming to their knowledge
respecting the condition of all places of employment subject
to the provisions of said articles with regard to the health,
protection, and safety of employees and the hazard of risk of
such places of employment.
8-47-111. Division efforts to ensure employer
compliance with workers' compensation coverage
requirements - legislative declaration. (1) The general
assembly finds, determines, and declares that it is in the best
interests of the public to assure that all employers who fall
under the provisions of articles 40 to 47 of this title have in
effect current policies of insurance or self-insurance for
workers' compensation liability.
(2) In order to implement the declaration in
subsection (1) of this section, the division shall develop a
procedure for verifying whether or not all employers doing
business in the state of Colorado comply with the
requirements of article 44 of this title. This procedure must
include cross-referencing employer records of the division of
unemployment insurance and the division of workers'
compensation. Upon identifying employers that are not in
compliance with article 44 of this title, the division, with the
assistance and cooperation of the attorney general, shall use
all available means under articles 40 to 47 of this title to
ensure compliance. Every insurance carrier authorized to
transact business in this state, including Pinnacol Assurance,
which insures employers against liability for compensation
under the provisions of articles 40 to 47 of this title, shall
furnish the division, upon request, all information required by
it to accomplish the purposes of this section.
8-47-112. Division web site - procedures to file
complaints. The director shall clearly post on the division's
web site the procedure for an injured worker to follow to file
a complaint with the division regarding any issue over which
the director or his or her designee has authority to pursue,
settle, or enforce pursuant to articles 40 to 47 of this title.
PART 2
GENERAL POWERS
8-47-201. Information to division - blanks verification. Every employer receiving from the division any
blanks with directions to fill out the same or requests for
information required for the purposes of articles 40 to 47 of
this title shall properly fill out the blanks and furnish the
information so requested fully and correctly. The director
may require that any information requested by the division be
verified under oath and may fix the time within which said
information shall be returned.
8-47-202. Information furnished to division confidential use. Every employer shall furnish the division,
upon request, all information required by it to accomplish the
purposes of articles 40 to 47 of this title. The information
shall be for the confidential use of the division, unless
otherwise ordered by the director, and shall not be open to the
public nor used in any court or any action or proceeding
pending therein, unless the director is a party to such action
or proceeding.
8-47-203. Access
to
files,
records,
and
orders. (1) Notwithstanding the provisions of section 8-47202, the filing of a claim for compensation is deemed to be a
limited waiver of the doctor-patient privilege to persons who
are necessary to resolve the claim. Access to claim files
maintained by the division will be permitted only as follows:
(a) Workers' compensation claim files shall be
available for inspection upon request by the parties to the
claim, including the claimant, the employer, and the insurer
or their attorneys or other designated representatives. The
parties to a claim may review other claim files relating to the
said claimant.
(b) Persons who are not parties to a claim, or their
attorneys or designated representatives, and who wish to
inspect or obtain information from claim files may submit a
request to inspect a particular file, stating the purpose for
such inspection. The director may disallow such requests if
the purpose of the inspection is to further commercial
interests or to disseminate information to nonparties. Any
such request shall be considered and determined by the
division within seventy-two hours.
(c) (I) The director may permit access to other
governmental entities only as required for the performance
of their official duties and only if those official duties relate
to enforcement of provisions of articles 40 to 47 of this title;
except that the department of revenue may access results of
any inquiry made by the division to determine whether an
76
employer has any liability pursuant to articles 22 to 29 of
title 39, C.R.S.
As used in this subparagraph (I),
"enforcement" includes duties of governmental entities
involved in the administration of the provisions of articles
40 to 47 of this title or if such duties relate to the
enforcement of child support under section 26-13-122,
C.R.S. This provision is not intended to restrict the rights of
persons otherwise provided for in articles 40 to 47 of this
title to inspect and copy files.
(II) The general assembly intends that any contract,
agreement, or any other means to transfer information
between the department of labor and employment and any
other governmental entity related to access to claim files in
effect prior to May 27, 1997, shall be conformed to the
provisions of this paragraph (c), as amended, or terminated as
authorized by law.
(d) Persons entitled to review claim files may obtain
copies upon payment of the fee set by the division. Such
persons shall not disseminate information contained in those
files except as required to resolve the claim, or as permitted
by the director, or as permitted by law.
(e) Claimants may waive the protection of this
statute by executing a waiver for the release of information.
The waiver must be dated and will be effective for ninety
days thereafter.
(2) All orders entered by the director or an
administrative law judge pursuant to articles 40 to 47 of this
title shall be made available by the division for inspection or
copying for a fee reflecting actual costs; except that the name
and other identifying information concerning the claimant
and employer shall be excised.
8-47-203.3. Release of location information
concerning individuals with outstanding felony arrest
warrants. (1) Notwithstanding any provision of state law to
the contrary and to the extent allowable under federal law, at
the request of the Colorado bureau of investigation, the
division shall provide the bureau with information concerning
the location of any person whose name appears in the
division's records who is the subject of an outstanding felony
arrest warrant. Upon receipt of such information, it shall be
the responsibility of the bureau to provide appropriate law
enforcement agencies with location information obtained
from the division. Location information provided pursuant to
this section shall be used solely for law enforcement
purposes. The division and the bureau shall determine and
employ the most cost-effective method for obtaining and
providing location information pursuant to this section.
Neither the division nor its employees or agents shall be
liable in civil action for providing information in accordance
with the provisions of this subsection (1).
(2) As used in subsection (1) of this section, "law
enforcement agency" means any agency of the state or its
political subdivisions that is responsible for enforcing the
laws of this state. "Law enforcement agency" includes but is
not limited to any police department, sheriff's department,
district attorney's office, the office of the state attorney
general, and the Colorado bureau of investigation.
8-47-204. Employees of division - qualifications.
The executive director has the power to employ, pursuant to
section 13 of article XII of the state constitution, such
deputies, experts, statisticians, accountants, inspectors, clerks,
and other employees as may be necessary to carry out the
provisions of articles 40 to 47 of this title or to perform the
duties and exercise the powers conferred by law upon the
division.
8-47-205. Salaries of employees of division. All
deputies, statisticians, accountants, clerks, experts, and other
employees of the division shall receive such compensation as
may be fixed by law. The salaries so fixed shall be paid
monthly from the fund appropriated for the use of the
division after approval by the director.
8-47-206. Employees of division - bonds. Such
employees of the division as shall be directed by the director
shall furnish surety company bonds in such sum as may be
fixed by the director, the premiums therefor to be paid as
other expenses of the division are paid.
8-47-207. Collection of statistics. The director or
any agents of the division may enter into any place of
employment for the purpose of collecting facts and statistics,
examining the provisions made for the health, protection, and
safety of the employees, and bringing to the attention of
every employer any rule, order, or requirement of the
division, or any law, or any failure on the part of any
employer to comply therewith.
8-47-208. Records of employers open to
inspection of division. All books, records, and payrolls of
employers or of any contractor, subcontractor, lessee,
sublessee, or person showing or reflecting in any way upon
the amount of wage expenditure of such employers,
contractor, subcontractor, lessee, sublessee, or person and all
other facts, data, and statistics appertaining to the purposes of
this article shall always be open for inspection by the director
or any agents of the division for the purpose of ascertaining
the correctness of the reported wage expenditure, number of
persons employed, and such other information as may be
necessary for the uses and purposes of the division in the
administration of the "Workers' Compensation Act of
Colorado".
8-47-209. Expenses of division. All expenses
incurred by the division pursuant to the provisions of the
"Workers' Compensation Act of Colorado" shall be paid from
funds appropriated for the use of the division upon claims
therefor which shall be itemized and sworn to by the person
who incurred the same. The claims shall be allowed by the
director subject to the approval of the controller. The
traveling expenses of the director or of any employees of the
division, incurred while on business of the division outside of
the state of Colorado, shall be paid in the manner aforesaid,
but only when such expenses are authorized in advance by
the controller to be incurred by the division.
ARTICLE 55
Workers' Compensation Classification
Appeals Board
8-55-101. Workers' compensation classification
appeals board - creation. (1) There is hereby created, in the
division of insurance in the department of regulatory
agencies, the workers' compensation classification appeals
board. The board shall hear grievances brought by employers
77
against insurers and Pinnacol Assurance concerning the
calculation of experience modification factors and
classification assignment decisions. The board shall consist
of five voting members, each of whom shall be
knowledgeable about workers' compensation classification
and experience modification factors, and one nonvoting
member, as follows:
(a) Two members shall be either salaried employees
of an insurance company that issues workers' compensation
insurance policies in this state or representatives of Pinnacol
Assurance. Such two members shall not both represent
Pinnacol Assurance or the same insurance company. In
addition, one person shall be selected to serve as an alternate
member to represent the interests of the insurance industry or
Pinnacol Assurance. The alternate shall represent such
interests in the event the primary member recuses himself or
herself.
(b) One member, who shall be a nonvoting member,
shall be an employee of a workers' compensation rating
organization functioning under the provisions of section 104-408, C.R.S. The workers' compensation rating organization
shall serve as a technical resource for the board.
(c) Three members shall represent private
employers.
Each private employer member shall be
knowledgeable with respect to workers' compensation
insurance, rules, and classifications, and shall be familiar
with the business environment and community in this state.
No private employer member shall be an employee of an
insurance company, insurance broker, insurance agent, law
firm, actuary, Pinnacol Assurance, or any association of such
entities or persons. All private employer board memberships
shall be held in the name of an individual. At least one
private employer member shall represent the construction
industry.
(2) The private employer members and the
members representing insurers and Pinnacol Assurance shall
be appointed by the commissioner of insurance. The workers'
compensation rating organization representative shall be
appointed by the chief executive officer of such organization
or by another officer designated to make such appointment.
The commissioner may solicit a list of nominees from any
interested party before making such appointments. The
commissioner shall immediately notify the workers'
compensation rating organization concerning the identity of
any appointees.
(3) Each member shall serve one three-year term;
and, in addition:
(a) (Deleted by amendment, L. 2002, p.1889, § 46,
effective July 1, 2002.)
(b) A private employer member or member
representing the insurance industry or Pinnacol Assurance
may serve a second consecutive three-year term; and
(c) The member representing the workers'
compensation rating organization may be reappointed without
limitation.
(4) Any vacancy on the board shall be filled for the
unexpired term in the same manner as the original
appointment. The member appointed to fill such vacancy
shall be from the same category described in subsection (1) of
this section as the member vacating the position.
(5) Members of the board shall serve without
compensation, but their reasonable expenses incurred when
performing their duties as board members shall be reimbursed
from the workers' compensation cash fund created in section
8-44-112 (7). Such expenses shall be limited to travel, food,
and lodging expenses.
(6) Members of the board, in their capacity as
members, shall be immune from liability in all claims for
injury that lie in tort or could lie in tort, regardless of whether
that may be the type of action or the form of relief chosen by
the claimant.
8-55-102. Right to appeal - notice of appeal
procedures. An employer may appeal to the workers'
compensation classification appeals board any issue
concerning the calculation of experience modification factors
and classification assignment decisions under the workers'
compensation laws of this state, by filing written notice with
said board within thirty days after the employer has
exhausted all appeal review procedures provided by the
insurance company. Every insurance carrier authorized to
transact business in this state, including Pinnacol Assurance,
shall provide employers with a written copy or summary of
their appeal procedures, together with a written notice of the
availability of an appeal under this article, at the beginning of
each policy year and when notice is provided to the employer
of a change in experience modification factors or job
classification.
8-55-103. Hearings - conflicts of interest. (1) The
board shall commence each term on January 1 of each year
and shall terminate each term on December 31.
(2) At the beginning of each term the board shall
either in person or by teleconference:
(a) Elect a chair who shall be responsible for
conducting each hearing;
(b) Appoint the member representing the workers'
compensation rating organization as secretary; and
(c) Establish such organizational and procedural
rules as are deemed necessary.
(3) The board shall meet as needed and in
accordance with the following:
(a) The board shall schedule a hearing within thirty
days after receipt of an appeal.
(b) The board shall provide written notice of a
hearing to the appellant, the insurer, and the workers'
compensation rating organization within thirty days after
receipt of an appeal, but not less than ten days before the
hearing.
(c) A hearing shall be conducted only if a quorum
of the board is present, either in person or by teleconference.
A quorum shall consist of a simple majority of the voting
members, including at least two private sector members.
(d) Any decision of the board shall be by majority
vote of the voting members who are present at the hearing.
(e) A member's vote shall be cast only by such
member.
(f) If a board member has a conflict of interest with
respect to any matter scheduled for hearing before the board,
such member shall recuse himself or herself from any
discussion and decisions on said matter unless, after full
disclosure of the facts giving rise to such conflict, all parties
78
to the appeal agree to waive such conflict. For purposes of
this paragraph (f), a member shall be deemed to have a
conflict of interest if such member:
(I) Has a conflict that would call into question such
member's ability to render an unbiased decision; and
(II) Is associated with either party to the appeal. A
member is "associated" with a party to an appeal if:
(A) The member and the party to the appeal are
involved in a common business enterprise or are members of
a controlled group, as defined in section 1563(a) of the
federal "Internal Revenue Code of 1986", as amended; or
(B) The member has a familial relationship with the
party to the appeal.
(g) Notwithstanding the provisions of paragraph (f)
of this subsection (3), the member representing the workers'
compensation rating organization shall not be deemed to have
a conflict of interest with respect to any appeal based solely
on his or her affiliation with his or her organization.
(4) The secretary of the board shall carry out the
administrative functions of the board and shall be responsible
for providing notice of, preparing the agenda for, and
arranging the facilities for each hearing and meeting. The
secretary shall also prepare a memorandum after each hearing
that includes the vote of the board. Such memoranda shall be
signed by the chair of the board and, each month, the
secretary shall deliver copies of that month's memoranda to
the workers' compensation rating organization.
8-55-104. Review of board decisions. (1) A
decision of the board shall be final and not subject to appeal
unless the employer, insurance company, or Pinnacol
Assurance provides written notice to the office of the
commissioner of insurance, who shall determine whether a
job misclassification occurred, as required pursuant to section
8-44-108. An employer may hold disputed premium amounts
in abeyance from the date an appeal is filed pursuant to
section 8-55-102 until the later of:
(a) The date a final decision is made by the board
concerning such appeal; or
(b) The date of any written decision of the
commissioner of insurance issued pursuant to subsection (3)
of this section.
(2) Each employer, insurance company, or Pinnacol
Assurance, as the case may be, shall be advised of the right to
appeal to the office of the commissioner of insurance.
(3) An employer, insurance company, or Pinnacol
Assurance shall provide written notice of an appeal to the
commissioner of insurance within thirty days after the date of
the board's decision. The commissioner shall review any
decision of the board properly appealed pursuant to this
section and shall provide a written decision within thirty days
after the request for such review.
(4) Any employer that holds disputed premium
amounts in abeyance pursuant to subsection (1) of this
section and loses its appeal shall pay the disputed premium
amount plus interest at the rate of one percent of such
disputed amount per month. Such interest shall accrue from
the date of the premium rate increase to the date of payment.
8-55-105. Repeal of article. (1) This article is
repealed, effective July 1, 2021.
(2) Prior to said repeal, the workers' compensation
classification appeals board shall be reviewed as provided in
section 24-34-104, C.R.S.
I
INDEX TO WORKERS’ COMPENSATION ACT
A
ABROGATION OF DEFENSES ...................................................................... 8-41-101............................................................................................. 9
ACCEPTANCE OF ACT .................................................................................. 8-41-104............................................................................................. 9
ACCIDENT
arising out of employment................................................................................ 8-41-301(1)(b),(c) .............................................................................13
benefits (see BENEFITS)
definition .......................................................................................................... 8-40-201(1),(2) .................................................................................. 3
heart attack ....................................................................................................... 8-41-302(2) .......................................................................................13
report by employee........................................................................................... 8-43-102............................................................................................33
report by employer ........................................................................................... 8-43-101............................................................................................32
stress................................................................................................................. 8-41-302(1) .......................................................................................13
ACCREDITATION PROGRAM...................................................................... 8-42-101(3.6)(a)(I)(II) ......................................................................18
accessibility of program ................................................................................... 8-42-101(3.6)(e)................................................................................18
costs.................................................................................................................. 8-42-101(3.6)(d),(m)....................................................................18,19
facilities............................................................................................................ 8-42-101(3.6)(b) ...............................................................................18
list of accredited physicians.............................................................................. 8-42-101(3.6)(k) ...............................................................................19
physician defined.............................................................................................. 8-42-101(3.5)(a)(I)............................................................................18
Level I .......................................................................................................... 8-42-101(3.6)(a)(I)............................................................................18
Level II......................................................................................................... 8-42-101(3.6)(a)(II) ..........................................................................18
impairment ratings if not Level II accredited ........................................... 8-42-101(3.6)(o) ...............................................................................19
not level II accredited ............................................................................... 8-42-107(8)(b.5) ...............................................................................25
registration fees ................................................................................................ 8-42-101(3.6)(l) ................................................................................19
review of program ............................................................................................ 8-42-101(3.6)(r)(II)...........................................................................19
revocation of accreditation ............................................................................... 8-42-101(3.6)(g) ...............................................................................18
8-43-501(4) .......................................................................................52
time of accreditation......................................................................................... 8-42-101(3.6)(f) ................................................................................18
ACCRUED COMPENSATION ON DEATH .................................................. 8-41-503(2) .......................................................................................16
ACTIONS
abolished .......................................................................................................... 8-41-102............................................................................................. 9
ADMINISTRATIVE HEARINGS, DIVISION OF
(see Office of Administrative Courts) ............................................................... 24-30-1001
ADMINISTRATIVE LAW JUDGE
appeals from, to I.C.A.P. .................................................................................. 8-43-301(6) .......................................................................................41
appointment...................................................................................................... 24-30-1003
determine competency of witnesses & parties to settlement ............................ 8-43-207(1)(m) .................................................................................38
dismiss issues ................................................................................................... 8-43-207(1)(n) ..................................................................................38
guardians ad litem, appoint .............................................................................. 8-43-207(1)(l) ...................................................................................38
order of (see ORDER)
power and authority.......................................................................................... 8-43-207............................................................................................38
report on penalties imposed.............................................................................. 8-43-304(3) .......................................................................................43
require repayment of overpayments ................................................................. 8-43-207(q) .......................................................................................38
review by I.C.A.P............................................................................................. 8-43-301(6) .......................................................................................41
ADMISSION OF LIABILITY .......................................................................... 8-43-203(1) .......................................................................................34
contest final admission ..................................................................................... 8-43-203(2)(b)(II) .............................................................................35
filed after IME.................................................................................................. 8-42-107.2(4), 8-43-203(2)(b)(II) ................................................28,35
ADVERSE ACTION, defined ............................................................................ 8-40-201(2.5)(a)................................................................................. 3
AGRICULTURAL LABOR (see FARM AND RANCH LABOR)
AGGREIVED PARTY for apportionment of fines ............................................ 8-43-304(1)& 8-43-401(2)(a).......................................................43,45
ALCOHOL
conviction, evidence......................................................................................... 8-43-210............................................................................................39
reducing compensation..................................................................................... 8-42-112.5.........................................................................................29
ALIEN ................................................................................................................. 8-40-202(1)(b) ................................................................................... 6
AMA GUIDES
impairment rating guidelines............................................................................ 8-42-101(3)(a)(I)...............................................................................17
medical impairment ratings .............................................................................. 8-42-107(8)(c)...................................................................................26
physical impairment ratings ............................................................................. 8-42-101(3.7) ....................................................................................19
AMPUTATION .................................................................................................. 8-42-107............................................................................................23
ANNUITY ........................................................................................................... 8-44-116............................................................................................58
APPEAL
of utilization review process............................................................................. 8-43-501(5) .......................................................................................52
to Court of Appeals .......................................................................................... 8-43-307 thru 312 ............................................................................ 44
costs.............................................................................................................. 8-43-314............................................................................................44
error disregarded .......................................................................................... 8-43-310............................................................................................44
fees ............................................................................................................... 8-43-314............................................................................................44
II
grounds ........................................................................................................ 8-43-308 ...........................................................................................44
heard in 30 days ........................................................................................... 8-43-309 ...........................................................................................44
precedence ................................................................................................... 8-43-307(2).......................................................................................44
remand ......................................................................................................... 8-43-312 ...........................................................................................44
time for filing ............................................................................................... 8-43-301(10).....................................................................................41
when panel fails to act.................................................................................. 8-43-301(11).....................................................................................41
to director or administrative law judge......................................................... 8-43-301(2).......................................................................................41
briefs, time for filing .................................................................................... 8-43-301(4).......................................................................................41
petition to review, time for filing ................................................................. 8-43-301(2).......................................................................................41
supplemental orders ..................................................................................... 8-43-301(4),(5) .................................................................................41
transcript, ordering....................................................................................... 8-43-301(2).......................................................................................41
to Industrial Claim Appeals Panel................................................................ 8-43-301(6).......................................................................................41
briefs, time for filing .................................................................................... 8-43-301(6).......................................................................................41
order, time for entering ................................................................................ 8-43-301(8).......................................................................................41
petition for review........................................................................................ 8-43-301(6).......................................................................................41
power to alter findings ................................................................................. 8-43-301(8).......................................................................................41
procedural orders ......................................................................................... 8-43-301(9).......................................................................................41
record, transmittal ........................................................................................ 8-43-301(7).......................................................................................41
by division ................................................................................................... 8-43-301(7).......................................................................................41
by Court of Appeals ..................................................................................... 8-43-311 ...........................................................................................44
to Supreme Court ............................................................................................. 8-43-313 ...........................................................................................44
APPLICATION FOR HEARING
after IME.......................................................................................................... 8-42-107.2(4),8-43-203(2)(b)(II)................................................. 28,35
de novo utilization review................................................................................ 8-43-501(5)(b) ..................................................................................52
expedited hearing ............................................................................................. 8-42-105(2)(a), 8-43-203(1) ........................................................ 22,34
for penalty........................................................................................................ 8-43-304(4).......................................................................................43
rejection of ....................................................................................................... 8-43-218(4).......................................................................................40
request for mediation after ............................................................................... 8-43-205(1).......................................................................................37
APPOINTED OFFICIALS ............................................................................... 8-40-202(1)(a) ....................................................................................4
APPORTION BENEFITS
death................................................................................................................. 8-42-121 ...........................................................................................31
diseases ............................................................................................................ 8-41-304(2).......................................................................................13
permanent total ................................................................................................ 8-46-105 ...........................................................................................70
previous disability............................................................................................ 8-42-104(2).......................................................................................22
APPORTION PENALTIES .............................................................................. 8-43-304(1).......................................................................................43
ARBITRATION, right to ................................................................................... 8-43-206.5 ........................................................................................37
ARISING OUT OF EMPLOYMENT .............................................................. 8-41-301(1)(b),(c).............................................................................13
ARTIFICIAL LIMB.......................................................................................... 8-42-101(1)(b) ..................................................................................17
ASSIGNABILITY OF COMPENSATION...................................................... 8-42-124(1),(6) ............................................................................ 31,32
ASSUMPTION OF RISK.................................................................................. 8-41-101 .............................................................................................9
ATTACHMENT OF COMPENSATION ........................................................ 8-42-124(1),(6) ............................................................................ 31,32
ATTORNEY FEES............................................................................................ 8-43-403 ...........................................................................................45
assessment for setting issues not ripe for hearing ............................................ 8-43-211(2)(d) ..................................................................................39
contingent fees
determination of reasonableness .................................................................. 8-43-403(1).......................................................................................45
limits ............................................................................................................ 8-43-403(1).......................................................................................45
submission of fee agreement........................................................................ 8-43-403(2).......................................................................................46
frivolous appeal................................................................................................ 8-43-301(14).....................................................................................42
improper actions .............................................................................................. 8-43-301(14).....................................................................................42
no lien .............................................................................................................. 8-42-124 ...........................................................................................31
power of attorney, distributing funds ............................................................... 8-42-124(2)(b) ..................................................................................32
ATTORNEY GENERAL, acting for I.C.A.P. or director ................................. 8-43-401 ...........................................................................................45
AUTHORIZED TREATING PHYSICIAN (see TREATING PHYSICIAN)
AVERAGE WEEKLY WAGE
employee's........................................................................................................ 8-42-102(2).......................................................................................19
later injury........................................................................................................ 8-42-104(1).......................................................................................21
minor................................................................................................................ 8-42-102(4).......................................................................................20
state ................................................................................................................. 8-47-106 ...........................................................................................74
AWARD (see also ORDER)
administrative law judge issue ......................................................................... 8-43-207(1)(k) ..................................................................................38
defined ............................................................................................................. 8-40-201(15).......................................................................................4
director issue .................................................................................................... 8-43-207(1)(k) ..................................................................................38
error disregarded .............................................................................................. 8-43-310 ...........................................................................................44
garnishment or administrative lien................................................................... 8-43-204(4).......................................................................................36
notice ............................................................................................................... 8-43-215 ...........................................................................................40
technical omission............................................................................................ 8-47-104 ...........................................................................................74
III
BENEFICIARIES (See DEPENDENTS)
BENEFITS (see also COMPENSATION) ........................................................ 8-42-103............................................................................................20
amputation........................................................................................................ 8-42-107............................................................................................23
assignability...................................................................................................... 8-42-124,8-43-204 .......................................................................31,36
cap .................................................................................................................. 8-42-107.5.........................................................................................28
cease benefits to recover overpayments ........................................................... 8-42-113.5(1)(b) ...............................................................................30
claims ............................................................................................................... 8-43-103............................................................................................34
filing of by other than claimant .................................................................... 8-43-103............................................................................................34
nonassignable and exempt............................................................................ 8-42-124............................................................................................31
notice of........................................................................................................ 8-43-103............................................................................................34
conditions of recovery ...................................................................................... 8-41-301............................................................................................13
death (see DEATH BENEFITS)
disfigurement.................................................................................................... 8-42-108............................................................................................28
earnings
average weekly wage
how computed .......................................................................................... 8-42-102............................................................................................19
exceptional cases ...................................................................................... 8-42-102(3) .......................................................................................20
minor ........................................................................................................ 8-42-102(4) .......................................................................................20
previous injury.......................................................................................... 8-42-104............................................................................................21
board and lodging included .......................................................................... 8-40-201(19)(b) ................................................................................. 4
items excluded.............................................................................................. 8-40-201(19)(b) ................................................................................. 4
included........................................................................................................ 8-40-201(19)(b) ................................................................................. 4
wages, defined.............................................................................................. 8-40-201(19)(a).................................................................................. 4
first installment paid......................................................................................... 8-42-105(2) .......................................................................................22
fraud ................................................................................................................. 8-43-304(2) .......................................................................................43
incompetent ...................................................................................................... 8-41-503(3) .......................................................................................17
insanity of dependent ....................................................................................... 8-41-503(3) .......................................................................................17
limit .................................................................................................................. 8-42-107.5.........................................................................................28
lump sums ........................................................................................................ 8-43-406............................................................................................49
garnishment or administrative lien ............................................................... 8-43-204(4) .......................................................................................36
medical, surgical, hospital ................................................................................ 8-42-101............................................................................................17
after MMI ..................................................................................................... 8-42-107(8)(f) ...................................................................................26
nonmedical treatment ................................................................................... 8-43-404............................................................................................46
physician or surgeon examine ...................................................................... 8-43-404............................................................................................46
willful delay of payment............................................................................... 8-43-401(2) .......................................................................................45
overpayment, recovery of................................................................................. 8-42-113.5.........................................................................................30
permanent partial disability
age factor...................................................................................................... 8-42-107(8)(e)...................................................................................26
compensation rate modified ......................................................................... 8-42-107(6)(b) ..................................................................................24
determination of ........................................................................................... 8-42-107............................................................................................23
limit .............................................................................................................. 8-42-107.5.........................................................................................28
scheduled injuries......................................................................................... 8-42-107(2) .......................................................................................23
wage assignment .......................................................................................... 8-42-124(6) .......................................................................................32
willful delay of payment............................................................................... 8-43-401(2) .......................................................................................45
permanent total disability ................................................................................. 8-42-111............................................................................................29
award ceases................................................................................................. 8-43-303............................................................................................42
calculation of premium................................................................................. 8-46-105............................................................................................70
capable of rehabilitation ............................................................................... 8-42-111(3) .......................................................................................29
increases in compensation ............................................................................ 8-42-111(4) .......................................................................................29
paid for life................................................................................................... 8-42-111(1) .......................................................................................29
reopening...................................................................................................... 8-43-303(3) .......................................................................................42
refusal of work or voc rehab......................................................................... 8-42-111(3) .......................................................................................29
termination of (see Romero v. ICAO, 912 P2d 62)(Repealed).................... 8-42-111(5) .......................................................................................29
wage assignment .......................................................................................... 8-42-124(6) .......................................................................................32
prisoner repay if ineligible ............................................................................... 8-42-113(1.5)(b) ...............................................................................29
reduction
calculation .................................................................................................... 8-42-112(2) .......................................................................................29
controlled substance ..................................................................................... 8-42-112.5.........................................................................................29
intoxication................................................................................................... 8-42-112.5.........................................................................................29
misleads employer........................................................................................ 8-42-112(1)(d) ..................................................................................29
non-use of safety device ............................................................................... 8-42-112(1)(a)...................................................................................29
safety rule violation ...................................................................................... 8-42-112(1)(b) ..................................................................................29
unemployment benefits ................................................................................ 8-42-103(1)(f) ...................................................................................21
settlement ......................................................................................................... 8-43-204............................................................................................36
garnishment or administrative lien ............................................................... 8-43-204(4) .......................................................................................36
specific injuries ................................................................................................ 8-42-107............................................................................................23
IV
additional compensation for additional injuries ........................................... 8-42-109 ...........................................................................................28
amputation between joints ........................................................................... 8-42-107(5).......................................................................................24
dental treatment............................................................................................ 8-42-101(1)(a),(b).............................................................................17
disfigurement ............................................................................................... 8-42-108 ...........................................................................................28
paralysis ....................................................................................................... 8-42-107(4).......................................................................................24
permanent partial, in lieu of ......................................................................... 8-42-107(8).......................................................................................25
remain on schedule ...................................................................................... 8-42-107(7)(b) ..................................................................................24
two losses, added ......................................................................................... 8-42-107(7).......................................................................................24
weekly amounts, limits ................................................................................ 8-42-107(6).......................................................................................24
suspension for failure to apply for benefits ...................................................... 8-42-103(1)(c)(III)............................................................................21
teeth, injury to, dental benefits......................................................................... 8-42-101(1)(a),(b).............................................................................17
temporary partial disability .............................................................................. 8-42-106 ...........................................................................................23
ceases ........................................................................................................... 8-42-106(2).......................................................................................23
temporary total disability ................................................................................. 8-42-105 ...........................................................................................22
additional ..................................................................................................... 8-42-109 ...........................................................................................28
ceases ........................................................................................................... 8-42-105 ...........................................................................................22
limit.............................................................................................................. 8-42-107.5 ........................................................................................28
suspended, fail to appear at rescheduled appointment.................................. 8-42-105(2)(c) ..................................................................................22
termination for refusal to accept modified employment--exceptions ........... 8-42-105(4)(a)(b) &(c) .....................................................................23
time limits ........................................................................................................ 8-43-103 ...........................................................................................34
after appeals ................................................................................................. 8-43-401(2)(a) ..................................................................................45
dental treatment............................................................................................ 8-42-101(1)(a),(b).............................................................................17
disability indemnity ..................................................................................... 8-42-105 ...........................................................................................22
disability periods
commencement of .................................................................................... 8-42-103 ...........................................................................................20
new disability ........................................................................................... 8-41-206 ...........................................................................................12
schedule of specific.................................................................................. 8-42-107 ...........................................................................................23
trust fund for payments .................................................................................... 8-47-105 ...........................................................................................74
unpaid, deposit required, when ........................................................................ 8-47-105 ...........................................................................................74
waiting period .................................................................................................. 8-42-103(1)(b) ..................................................................................20
BOARD AND LODGING ................................................................................. 8-40-201(19).......................................................................................4
BOND, non-insured............................................................................................. 8-43-408(2).......................................................................................49
BOOKS, right to examine ................................................................................... 8-44-107, 8-47-208...................................................................... 55,76
BROCHURE describing claims process/rights................................................... 8-43-203(3).......................................................................................35
BURDEN
clear and convincing
finding of UR committee ............................................................................. 8-43-501(5).......................................................................................52
IME-MMI .................................................................................................... 8-42-107(8)(b),(b.5)..........................................................................25
IME-impairment rating ................................................................................ 8-42-107(8)(c),8-46-105.............................................................. 26,70
injury due to intoxication ............................................................................. 8-42-112.5 ........................................................................................29
knew of violation ......................................................................................... 8-43-304(4).......................................................................................43
of proof ........................................................................................................ 8-43-201 ...........................................................................................34
preponderance of evidence............................................................................... 8-40-202(2)(b) ....................................................................................6
conditions of independent trade ................................................................... 8-40-202(2)(b) ....................................................................................6
credit for reduced disability ......................................................................... 8-46-307 ...........................................................................................73
entitlement to benefits.................................................................................. 8-43-201 ...........................................................................................34
final disposition of U.R................................................................................ 8-43-501(2).......................................................................................51
BURIAL EXPENSES ........................................................................................ 8-42-123 ...........................................................................................31
C
CAP ON BENEFITS.......................................................................................... 8-42-107.5 ........................................................................................28
CARRIERS, common by railroad ...................................................................... 8-41-201 .............................................................................................9
CASE MANAGEMENT.................................................................................... 8-42-101(3.6)(p)(I)(A)......................................................................19
CASUAL LABOR.............................................................................................. 8-40-302(3),(4) ...................................................................................8
CEASE AND DESIST ....................................................................................... 8-43-409 ...........................................................................................49
CERTIORARI ................................................................................................... 8-43-313 ...........................................................................................44
CHANGE OF CONDITION ............................................................................. 8-43-303 ...........................................................................................42
CHANGE OF PHYSICIAN
one time ........................................................................................................... 8-43-404(5)(a)(III)............................................................................47
request in writing ............................................................................................. 8-43-404(5)(a)(VI) ...........................................................................48
CHILDREN, dependent...................................................................................... 8-41-501(1)(b),(c).............................................................................16
CHILD SUPPORT............................................................................................. 8-42-124(1),(6), 8-43-204(4) .................................................. 31,32,36
CHIROPRACTORS
accreditation..................................................................................................... 8-42-101(3.6)(a)(l)............................................................................18
treatment limits ................................................................................................ 8-42-101(3)(a)(lll) ............................................................................18
CLAIMANT, defined ......................................................................................... 8-40-201(3.6)......................................................................................3
V
CLAIMS MANAGEMENT
director to appoint managers ............................................................................ 8-43-218(1) .......................................................................................40
legislative declaration....................................................................................... 8-43-217............................................................................................40
penalty for failure to cooperate with................................................................. 8-43-218(3) .......................................................................................40
CLASSIFICATION
appeals board.................................................................................................... 8-55-101............................................................................................76
premiums.......................................................................................................... 8-44-103............................................................................................55
risks .................................................................................................................. 8-44-103, 8-45-105 ......................................................................55,64
CLEAR AND CONVINCING EVIDENCE
finding of UR committee.................................................................................. 8-43-501(5) .......................................................................................52
IME-MMI......................................................................................................... 8-42-107(8)(b),(b.5)..........................................................................25
IME- impairment rating.................................................................................... 8-42-107(8)(c), 8-46-105 .............................................................26,70
injury due to intoxication ................................................................................. 8-42-112.5.........................................................................................29
knew of violation.............................................................................................. 8-43-304(4) .......................................................................................43
CLOSE CASES .................................................................................................. 8-43-203(2) .......................................................................................35
COMMON CARRIERS
by railroad ........................................................................................................ 8-41-201............................................................................................. 9
coverage offered............................................................................................... 8-40-301(6) ........................................................................................ 8
employee excludes ........................................................................................... 8-40-301(5) ........................................................................................ 8
intrastate ........................................................................................................... 8-41-201............................................................................................. 9
interstate ........................................................................................................... 8-41-201............................................................................................. 9
statutory employment exclusion....................................................................... 8-41-401(7) .......................................................................................15
COMMON LAW DEFENSES .......................................................................... 8-41-103............................................................................................. 9
COMPENSATION ( see also BENEFITS) ....................................................... 8-42-101 thru 124 ....................................................................... 17-32
accrued at death................................................................................................ 8-41-503(2) .......................................................................................16
8-42-116............................................................................................30
acts of employee reducing................................................................................ 8-42-112............................................................................................29
failure to obey safety rules ........................................................................... 8-42-112(1)(b) ..................................................................................29
to use safety devices ..................................................................................... 8-42-112(1)(a)...................................................................................29
intoxication................................................................................................... 8-42-112.5.........................................................................................29
admission of denial of liability for ................................................................... 8-43-203............................................................................................34
time limits..................................................................................................... 8-43-203(1) .......................................................................................34
penalty .......................................................................................................... 8-43-203(2) .......................................................................................35
attachment, exempt from.................................................................................. 8-42-124(1) .......................................................................................31
attorney fees ..................................................................................................... 8-43-403............................................................................................45
assigned............................................................................................................ 8-42-124............................................................................................31
basis for wages ................................................................................................. 8-42-102............................................................................................19
conditions of recovery ...................................................................................... 8-41-301............................................................................................13
continued payment of wages, effect ................................................................. 8-42-124............................................................................................31
decrease for permanent total able to return to employment.............................. 8-43-303(3) .......................................................................................42
interest charged on ........................................................................................... 8-43-410(2) .......................................................................................50
levy, exempt from ............................................................................................ 8-42-124(1) .......................................................................................31
lien for .............................................................................................................. 8-43-410(1) .......................................................................................50
limit .................................................................................................................. 8-42-107.5.........................................................................................28
non-assignable.................................................................................................. 8-42-124(1) .......................................................................................31
notice................................................................................................................ 8-43-103............................................................................................34
offset, social security & pension plan............................................................... 8-42-103(1)(c),(d) ........................................................................20,21
offset for fraud.................................................................................................. 8-43-304(2) .......................................................................................43
overpayment, recovery of ................................................................................ 8-42-113.5.........................................................................................30
payment after appeals....................................................................................... 8-43-401(2)(a)...................................................................................45
power of attorney, distributing funds ............................................................... 8-42-124(2)(b) ..................................................................................32
power of attorney to collect, void..................................................................... 8-42-124(2) .......................................................................................31
previous disability or impairment..................................................................... 8-42-104(1) .......................................................................................21
rate (later injury)............................................................................................... 8-42-104............................................................................................21
release............................................................................................................... 8-42-124............................................................................................31
settlement ......................................................................................................... 8-43-204............................................................................................36
social security................................................................................................... 8-42-103(1)(c)...................................................................................20
temporary ......................................................................................................... 8-42-105, 8-42-106 ......................................................................22,23
time of payment................................................................................................ 8-42-105(2) .......................................................................................22
unaccrued, at death........................................................................................... 8-42-116, 8-42-117 ...........................................................................30
unemployment.................................................................................................. 8-42-103(1)(f) ...................................................................................21
unpaid, deposit required when.......................................................................... 8-47-105............................................................................................74
wages, basis of ................................................................................................. 8-42-102............................................................................................19
COMPETENCY OF WITNESSES AND PARTIES
TO SETTLEMENT........................................................................................ 8-43-207(1)(m) .................................................................................38
CONDITIONS OF RECOVERY, MENTAL IMPAIRMENT....................... 8-41-301(2) .......................................................................................13
CONSTRUCTION WORK
VI
applicability ..................................................................................................... 8-41-404(1),(4) ............................................................................ 15,16
definitions as used in section ........................................................................... 8-41-404(5).......................................................................................16
proof of coverage required............................................................................... 8-41-404(1).......................................................................................15
violations.......................................................................................................... 8-41-404(3).......................................................................................15
CONTEMPT ...................................................................................................... 8-47-102 ...........................................................................................74
CONTEST
expedited hearing ............................................................................................. 8-42-105, 8-43-203...................................................................... 22,34
notice of ........................................................................................................... 8-43-203 ...........................................................................................34
CONTRACTORS AND LESSEES................................................................... 8-41-401 thru 403 ........................................................................14-16
agricultural....................................................................................................... 8-41-403(3).......................................................................................15
exemption ........................................................................................................ 8-41-401 thru 403 ........................................................................14-15
for-hire transportation ...................................................................................... 8-41-401(6).......................................................................................15
owner insure, in default of real estate .............................................................. 8-41-401, 401(5), 402.................................................................. 14,15
right against defaulting contractor/lessee ......................................................... 8-41-401 thru 403 ....................................................................... 14-15
subcontractors and sublessees .......................................................................... 8-41-401, 8-41-402...................................................................... 14,15
CONTRACTOR, insurer may examine books of............................................... 8-44-107 ...........................................................................................55
CONTROLLED SUBSTANCES ...................................................................... 8-42-112.5 ........................................................................................29
CORPORATE OFFICERS............................................................................... 8-41-202 .............................................................................................9
COST CONTAINMENT, premium................................................................... 8-14.5-101 thru 109 .........................................................................1-2
surcharge on premiums .................................................................................... 8-44-112(1)(b) ..................................................................................57
COST OF LIVING, increase on permanent total............................................... 8-42-111(4).......................................................................................29
COSTS, court ...................................................................................................... 8-43-314 ...........................................................................................44
transcripts, fees for........................................................................................... 8-43-213 ...........................................................................................39
witnesses .......................................................................................................... 8-43-315 ...........................................................................................44
COURSE OF EMPLOYMENT ........................................................................ 8-41-301(1)(b),(c).............................................................................13
COURT OF APPEALS, review of I.C.A.P. decision ........................................ 8-43-301(10).....................................................................................41
CUSTODIAN, bond of ....................................................................................... 8-45-119 ...........................................................................................66
D
DAMAGES, if otherwise compensable............................................................... 8-41-401(3).......................................................................................14
DATA GATHERING ........................................................................................ 8-42-125 ...........................................................................................32
DEATH, accrued benefits-disposition................................................................. 8-41-503, 8-42-115(1)(a)............................................................. 16,30
after two years, presumption ............................................................................ 8-41-207 ...........................................................................................12
DEATH BENEFITS........................................................................................... 8-41-501 thru 505 ........................................................................16-17
8-42-114 thru 123 ........................................................................30-31
apportionment .................................................................................................. 8-42-121 ...........................................................................................31
burial expenses................................................................................................. 8-42-123 ...........................................................................................31
claims for, not assignable................................................................................. 8-42-124 ...........................................................................................31
death after two years ........................................................................................ 8-41-207 ...........................................................................................12
death not proximate result
compensation to whole dependent ............................................................... 8-42-116 ...........................................................................................30
partial dependent.......................................................................................... 8-42-117 ...........................................................................................30
permanent partial ......................................................................................... 8-42-116(1)(b) ..................................................................................30
8-42-117(1)(b) ..................................................................................31
permanent total ............................................................................................ 8-42-116(1)(a), 8-42-117(1)(a).........................................................30
death proximate result
no dependents .............................................................................................. 8-42-115(1)(a) ..................................................................................30
8-46-102(1)(a) ..................................................................................68
partial dependents ........................................................................................ 8-42-115(1)(c), 8-42-117, 8-46-102(1)(b) ................................... 30,69
whole dependents......................................................................................... 8-42-115(1)(b) ..................................................................................30
dependents (see DEPENDENTS)
exemption of .................................................................................................... 8-42-124 ...........................................................................................31
funeral benefits ................................................................................................ 8-42-123 ...........................................................................................31
lien on assets of employer and insurer ............................................................. 8-43-410 ...........................................................................................50
lump sum payment........................................................................................... 8-43-406(1).......................................................................................48
garnishment or administrative lien................................................................... 8-43-204(4).......................................................................................36
maximum, minimum........................................................................................ 8-42-114 ...........................................................................................30
minor, deceased ............................................................................................... 8-46-102(1)(b) ..................................................................................69
notice of ........................................................................................................... 8-43-103 ...........................................................................................34
time limit...................................................................................................... 8-43-103 ...........................................................................................34
overpayment, recovery of ................................................................................ 8-42-113.5 ........................................................................................30
payment of
conflicting claims......................................................................................... 8-43-205 ...........................................................................................37
discharge of liability .................................................................................... 8-43-405 ...........................................................................................48
minor dependents ......................................................................................... 8-42-122 ...........................................................................................31
non-resident, applicability of repeal............................................................. 8-42-118 ...........................................................................................31
parents.......................................................................................................... 8-46-102(1)(b) ..................................................................................68
VII
period of time ................................................................................................... 8-42-114............................................................................................30
remarriage ........................................................................................................ 8-42-120............................................................................................31
survival of shares to other dependents.............................................................. 8-42-120............................................................................................31
termination of rights ......................................................................................... 8-42-120............................................................................................31
minor ............................................................................................................ 8-42-120............................................................................................31
trust fund for payments..................................................................................... 8-47-105............................................................................................74
unpaid, deposit required, when......................................................................... 8-47-105............................................................................................74
weekly amount ................................................................................................. 8-42-114............................................................................................30
DEATHS, reported .............................................................................................. 8-43-103............................................................................................34
DEFENSES, abrogated ....................................................................................... 8-41-101............................................................................................. 9
DEFINITIONS
accident ............................................................................................................ 8-40-201(1) ........................................................................................ 3
adverse action................................................................................................... 8-40-201(2.5)(a)................................................................................. 3
case management.............................................................................................. 8-42-101(3.6)(p)(l)(A) ......................................................................19
claimant............................................................................................................ 8-40-201(3.6) ..................................................................................... 3
cost containment............................................................................................... 8-14.5-103.......................................................................................... 1
director ............................................................................................................. 8-40-201(5) ........................................................................................ 3
disease .............................................................................................................. 8-41-302............................................................................................13
8-40-201(14) ...................................................................................... 3
employee .......................................................................................................... 8-40-201(6) ........................................................................................ 3
8-40-202, 8-40-301 ..........................................................................4,7
employer
charitable, fraternal, religious....................................................................... 8-40-302(2) ........................................................................................ 8
city................................................................................................................ 8-40-203(1)(a).................................................................................... 7
corporation ................................................................................................... 8-40-203(1)(b) ................................................................................... 7
county........................................................................................................... 8-40-203(1)(a).................................................................................... 7
drainage district ............................................................................................ 8-40-203(1)(a).................................................................................... 7
farms and ranches......................................................................................... 8-40-302(3) ........................................................................................ 8
irrigation district........................................................................................... 8-40-203(1)(a).................................................................................... 7
private person ............................................................................................... 8-40-203(1)(b) ................................................................................... 7
public institutions ......................................................................................... 8-40-203(1)(a).................................................................................... 7
school district ............................................................................................... 8-40-203(1)(a).................................................................................... 7
state .............................................................................................................. 8-40-203(1)(a).................................................................................... 7
town.............................................................................................................. 8-40-203(1)(a).................................................................................... 7
employment...................................................................................................... 8-40-201(8) ........................................................................................ 3
for accreditation program ................................................................................. 8-42-101(3.5)(a)(l) ............................................................................18
heart attack ....................................................................................................... 8-41-302(2) .......................................................................................13
independent contractor ..................................................................................... 8-41-401(3) .......................................................................................14
Industrial Claim Appeals Panel ........................................................................ 8-40-201(16) ...................................................................................... 4
injury ................................................................................................................ 8-41-302............................................................................................13
managed care.................................................................................................... 8-42-101(3.6)(p)(l)(B) ......................................................................19
maximum improvement ................................................................................... 8-40-201(11.5) ................................................................................... 3
mediation.......................................................................................................... 8-40-201(12) ...................................................................................... 3
medical records for utilization review .............................................................. 8-43-501(2)(d) ..................................................................................51
medical treatment guidelines............................................................................ 8-40-201(13.5)(a)............................................................................... 3
8-42-101(3)(b) ..................................................................................18
mental impairment............................................................................................ 8-41-301(2) .......................................................................................13
non-medical benefits ........................................................................................ 8-42-112.5(2) ....................................................................................29
occupational disease......................................................................................... 8-41-302(2) .......................................................................................13
8-40-201(14) ...................................................................................... 3
order ................................................................................................................. 8-40-201(15) ...................................................................................... 4
overpayment..................................................................................................... 8-40-201(15.5) ................................................................................... 4
per diem............................................................................................................ 8-40-201(19)(c).................................................................................. 4
permanent total disability ................................................................................. 8-40-201(16.5) ................................................................................... 4
physician .......................................................................................................... 8-42-101(3.5)(a)(l) ............................................................................18
place of employment ........................................................................................ 8-40-201(17) ...................................................................................... 4
temporary help contracting firm ....................................................................... 8-40-201(18.5) ................................................................................... 4
wages................................................................................................................ 8-40-201(19) ...................................................................................... 4
DENTIST ............................................................................................................ 8-42-101(3.5)(a)(I)............................................................................18
DEPENDENCY
adopted children ............................................................................................... 8-41-501(1)(b) ..................................................................................16
determined as of date of accident ..................................................................... 8-41-503(1) .......................................................................................16
funeral benefits................................................................................................. 8-42-123............................................................................................31
posthumous children ........................................................................................ 8-41-501(1)(b) ..................................................................................16
illegitimate children.......................................................................................... 8-41-505............................................................................................17
DEPENDENTS
actual ................................................................................................................ 8-41-502............................................................................................16
VIII
brother.............................................................................................................. 8-41-502 ...........................................................................................16
children ............................................................................................................ 8-41-501(1)(b),(c).............................................................................16
adopted......................................................................................................... 8-41-501(1)(b),(c).............................................................................16
guardian ad litem.......................................................................................... 8-43-207(1)(l) ...................................................................................38
illegitimate ................................................................................................... 8-41-505 ...........................................................................................17
minor, safeguarding payments ..................................................................... 8-42-122 ...........................................................................................31
posthumous .................................................................................................. 8-41-501(1)(b) ..................................................................................16
designated beneficiary ..................................................................................... 8-41-501(1)(a.5) ...............................................................................16
compensation, rate and amount........................................................................ 8-42-114, 8-42-115...........................................................................30
determination of............................................................................................... 8-41-503 ...........................................................................................16
father................................................................................................................ 8-41-502 ...........................................................................................16
grandfather....................................................................................................... 8-41-502 ...........................................................................................16
grandmother ..................................................................................................... 8-41-502 ...........................................................................................16
minors .............................................................................................................. 8-41-501(1)(b),(c).............................................................................16
8-42-122 ...........................................................................................31
mother .............................................................................................................. 8-41-502 ...........................................................................................16
non-resident, applicability of appeal ................................................................ 8-42-118 ...........................................................................................31
partial ............................................................................................................... 8-42-119 ...........................................................................................31
parties of interest.............................................................................................. 8-41-504 ...........................................................................................17
presumed.......................................................................................................... 8-41-501 ...........................................................................................16
remarriage ........................................................................................................ 8-42-120 ...........................................................................................31
sister................................................................................................................. 8-41-502 ...........................................................................................16
student under 21............................................................................................... 8-41-501(1)(c) ..................................................................................16
termination....................................................................................................... 8-42-120 ...........................................................................................31
wholly dependent compensation ...................................................................... 8-41-501 ...........................................................................................16
DEPOSITIONS .................................................................................................. 8-43-207(1)(e) ..................................................................................38
for testimony .................................................................................................... 8-43-210 ...........................................................................................39
DIRECTOR, DIVISION OF WORKERS’ COMPENSATION
adopt rules........................................................................................................ 8-47-107 ...........................................................................................75
allow expenses ................................................................................................. 8-47-209 ...........................................................................................76
appoint utilization review committees ............................................................. 8-43-501(3)(a) ..................................................................................51
approve medical plan ....................................................................................... 8-42-101(2).......................................................................................17
approve settlements.......................................................................................... 8-43-204 ...........................................................................................36
approve salaries................................................................................................ 8-47-205 ...........................................................................................76
attorney fees allowed by .................................................................................. 8-43-403 ...........................................................................................45
collect data from carriers, self-insureds ........................................................... 8-44-113(Repealed) ..........................................................................57
collect statistics ................................................................................................ 8-47-207 ...........................................................................................76
compel attendance............................................................................................ 8-43-315 ...........................................................................................44
cost containment duties.................................................................................... 8-14.5-106 ..........................................................................................2
defined ............................................................................................................. 8-40-201(5).........................................................................................3
determine and apportion benefits ..................................................................... 8-42-121 ...........................................................................................31
district attorney to appear for appeal................................................................ 8-43-314 ...........................................................................................44
employer shall furnish information to.............................................................. 8-47-201 ...........................................................................................75
enforce act........................................................................................................ 8-47-101 ...........................................................................................73
enforcement of orders ...................................................................................... 8-43-401, 8-47-102...................................................................... 45,74
enter place of employment............................................................................... 8-47-207 ...........................................................................................76
establish time schedule for hearings................................................................. 8-43-209 ...........................................................................................39
examine provisions for health and safety ......................................................... 8-47-207 ...........................................................................................76
hearings (see HEARINGS)
impose fine, failure to insure............................................................................ 8-43-409(1)(b) ..................................................................................50
inspect records of employer ............................................................................. 8-47-208 ...........................................................................................76
investigations by .............................................................................................. 8-43-208 ...........................................................................................38
orders of, enforcement ..................................................................................... 8-47-102 ...........................................................................................74
application to district court .......................................................................... 8-47-102 ...........................................................................................74
commitment to jail ....................................................................................... 8-47-102 ...........................................................................................74
matters pending before the director.............................................................. 8-47-107 ...........................................................................................75
public officers to enforce ............................................................................. 8-47-103 ...........................................................................................74
prima facie valid .......................................................................................... 8-47-103 ...........................................................................................74
substantial compliance with Act .................................................................. 8-47-104 ...........................................................................................74
technical objections...................................................................................... 8-47-104 ...........................................................................................74
state average weekly wage............................................................................... 8-47-106 ...........................................................................................74
validity of orders.............................................................................................. 8-47-103 ...........................................................................................74
prima facie valid .......................................................................................... 8-47-103 ...........................................................................................74
technical objections...................................................................................... 8-47-104 ...........................................................................................74
DISABILITY (see also BENEFITS and COMPENSATION)
age factors, permanent partial .......................................................................... 8-42-107(8)(e) ..................................................................................26
claim for, time limit ......................................................................................... 8-43-103 ...........................................................................................34
IX
continued payment of wages, effect ................................................................. 8-42-124............................................................................................31
injuries, multiple .............................................................................................. 8-42-109, 8-46-101 ......................................................................28,68
paralysis ........................................................................................................... 8-42-107(4) .......................................................................................24
partial disability, temporary.............................................................................. 8-42-106............................................................................................23
periods of disability.......................................................................................... 8-42-107(1) .......................................................................................23
permanent partial.......................................................................................... 8-42-107............................................................................................23
presumption, after 5 years ............................................................................ 8-41-206............................................................................................12
specific disability, schedule.......................................................................... 8-42-107(2) .......................................................................................23
permanent total, defined ................................................................................... 8-40-201(16.5) ................................................................................... 4
previous............................................................................................................ 8-42-104............................................................................................21
subsequent injury.............................................................................................. 8-46-101............................................................................................68
total, permanent................................................................................................ 8-42-111............................................................................................29
temporary disability.......................................................................................... 8-42-105, 8-42-106 ......................................................................22,23
termination of ............................................................................................... 8-42-105(3), 8-42-106(2),8-42-107(3) ....................................22,23,24
what constitutes
disfigurement................................................................................................ 8-42-108............................................................................................28
specific ......................................................................................................... 8-42-107............................................................................................23
temporary total ............................................................................................. 8-42-105............................................................................................22
temporary partial .......................................................................................... 8-42-106............................................................................................23
subsequent injury.......................................................................................... 8-46-101............................................................................................68
permanent total............................................................................................. 8-42-111............................................................................................29
DISABILITY INSURANCE
offset ................................................................................................................ 8-42-103(1)(d) ..................................................................................21
notice to insurer................................................................................................ 8-42-113.5.........................................................................................30
DISCOVERY...................................................................................................... 8-43-207(1)(e)...................................................................................38
DISEASE, defined............................................................................................... 8-40-201(14) ...................................................................................... 3
last employer .................................................................................................... 8-41-304............................................................................................13
last exposure..................................................................................................... 8-41-304............................................................................................13
DISFIGUREMENT............................................................................................ 8-42-108............................................................................................28
DISTRICT ATTORNEY, act for director or I.C.A.P. ....................................... 8-43-401............................................................................................45
DIVISION IME .................................................................................................. 8-42-107.2.........................................................................................27
DIVISION OF WORKERS’ COMPENSATION (see also DIRECTOR)
creation............................................................................................................. 8-47-101, 24-1-121(3)(d) ..................................................................73
defined.............................................................................................................. 8-40-201(4) ........................................................................................ 3
duties ................................................................................................................ 8-47-101............................................................................................73
disputes submitted to........................................................................................ 8-43-201............................................................................................34
employees of
bonds ............................................................................................................ 8-47-206............................................................................................76
how appointed .............................................................................................. 8-47-204............................................................................................76
qualifications ................................................................................................ 8-47-204............................................................................................76
salaries.......................................................................................................... 8-47-205............................................................................................76
employer to file admission or denial ................................................................ 8-43-203............................................................................................34
employer shall furnish information .................................................................. 8-47-202............................................................................................75
expenses of....................................................................................................... 8-47-209............................................................................................76
files, access to................................................................................................... 8-42-125, 8-47-203 ......................................................................32,75
gifts, grants and donations................................................................................ 8-42-101(3.6)(q) ...............................................................................19
insurer to file admission or denial .................................................................... 8-43-203............................................................................................34
retain original claim records............................................................................. 8-43-203(2)(c)...................................................................................35
verify insurance compliance............................................................................. 8-47-111............................................................................................75
website, to file a complaint............................................................................... 8-47-112............................................................................................75
DOMESTIC EMPLOYEES .............................................................................. 8-40-302(4) ........................................................................................ 8
E
EARNINGS (see WAGES)
ELECTED OFFICIALS .................................................................................... 8-40-202(1)(a).................................................................................... 4
ELECTION OF REMEDIES ............................................................................ 8-41-203............................................................................................10
ELECTION TO ACCEPT COMPENSATION ............................................... 8-41-104............................................................................................. 9
EMOTIONAL STRESS..................................................................................... 8-41-301(2) .......................................................................................13
not combined.................................................................................................... 8-42-107(7)(b) ..................................................................................24
EMPLOYEE (see also EMPLOYER)
acceptance of Act, surrender of other remedies................................................ 8-41-104............................................................................................. 9
action by, dependents not parties in interest ..................................................... 8-41-504............................................................................................17
alien .................................................................................................................. 8-40-202(1)(b) ................................................................................... 6
casual................................................................................................................ 8-40-202(1)(b), 8-40-302 .................................................................6,8
compensation of, where employer not insured ................................................. 8-43-408............................................................................................49
contractor ......................................................................................................... 8-41-401(1),(2) .................................................................................14
deductions ........................................................................................................ 8-42-124(7) .......................................................................................32
X
defined ............................................................................................................. 8-40-201(6), 8-40-202, 8-40-301.................................................. 3,4,7
domestic employee........................................................................................... 8-40-302(4).........................................................................................8
driver, under P.U.C. lease agreement............................................................... 8-40-301(5).........................................................................................8
farm labor......................................................................................................... 8-40-302(3).........................................................................................8
horse track..........................................................................................................8-40-301(8)...........................................................................................8
host home services ........................................................................................... 8-40-301(7).........................................................................................8
incompetent...................................................................................................... 8-41-503(3).......................................................................................17
independent truck driver .................................................................................. 8-41-401(6).......................................................................................15
injured, submit to examination......................................................................... 8-43-404 ...........................................................................................46
injuries by third party, election ........................................................................ 8-41-203 ...........................................................................................10
inmate exception .............................................................................................. 8-40-301(3)(a) ....................................................................................7
interstate common carrier................................................................................. 8-41-201 .............................................................................................9
lessee................................................................................................................ 8-41-401, 8-41-403...................................................................... 14,15
loaned by employer.......................................................................................... 8-41-303 ...........................................................................................13
minors .............................................................................................................. 8-40-202(1)(a)(lll, lV) ........................................................................5
8-40-202(1)(b) ....................................................................................6
nonprofit youth sports organization ................................................................. 8-40-202(2)(e)(I) ................................................................................7
participation in recreational activity................................................................. 8-40-201(8).........................................................................................3
property tax work-off program......................................................................... 8-40-202(3), 8-40-301(9), 8-41-210 ........................................... 7,8,12
real estate, agent or broker ............................................................................... 8-40-301(2).........................................................................................7
race meet.............................................................................................................8-40-301(8)..........................................................................................8
report injury ..................................................................................................... 8-43-102 ...........................................................................................33
ski area volunteers............................................................................................ 8-40-301(4).........................................................................................8
volunteers......................................................................................................... 8-40-202(1)(a) ....................................................................................4
EMPLOYEES OF DIVISION OF WORKERS’ COMPENSATION ........... 8-47-204 ...........................................................................................76
salaries ............................................................................................................. 8-47-205 ...........................................................................................76
bonds................................................................................................................ 8-47-206 ...........................................................................................76
EMPLOYER (see also EMPLOYEE)
agricultural corporation officers....................................................................... 8-40-302(6).........................................................................................8
contractor ......................................................................................................... 8-41-401, 8-41-402...................................................................... 14,15
defined ............................................................................................................. 8-40-201(7), 8-40-203 .....................................................................3,7
display of notice............................................................................................... 8-43-102(1)(b), (1.5).........................................................................33
domestic employees ......................................................................................... 8-40-302(4).........................................................................................8
duty to offer case management or managed care ............................................. 8-42-101(3.6)(p)(ll) ..........................................................................19
farm or ranch.................................................................................................... 8-41-401(4).......................................................................................14
fine, no insurance ............................................................................................. 8-43-409(1)(b) ..................................................................................50
furnish information to division......................................................................... 8-47-202 ...........................................................................................75
director may fix time in which to ................................................................. 8-47-201 ...........................................................................................75
may require under oath ................................................................................ 8-47-201 ...........................................................................................75
homeowner ...................................................................................................... 8-40-302(4).........................................................................................8
independent contractor, defined ....................................................................... 8-40-202(2), 8-41-401(3)............................................................... 6,14
insurance, failure to obtain
enjoined from continuing business............................................................... 8-43-409 ...........................................................................................49
failure to pay judgment ................................................................................ 8-43-408(4).......................................................................................49
file bond ....................................................................................................... 8-43-408(2).......................................................................................49
fine ............................................................................................................... 8-43-409(1)(b) ..................................................................................50
judgment ...................................................................................................... 8-43-408(3).......................................................................................49
monetary penalty.......................................................................................... 8-43-409(1)(b) ..................................................................................50
penalty.......................................................................................................... 8-43-408(1).......................................................................................49
procedure ..................................................................................................... 8-43-408(2),(3) .................................................................................49
certified copy of order filed.......................................................................... 8-43-408(3).......................................................................................49
insurance requirements .................................................................................... 8-44-101 ...........................................................................................54
keep records of injuries.................................................................................... 8-43-101 ...........................................................................................32
lessee................................................................................................................ 8-41-401, 8-41-403...................................................................... 14,15
liability of......................................................................................................... 8-41-102 .............................................................................................9
loaned employee .......................................................................................... 8-41-303 ...........................................................................................13
loaning services............................................................................................ 8-41-303 ...........................................................................................13
loaning ............................................................................................................. 8-41-303 ...........................................................................................13
medical aid, etc. furnished by .......................................................................... 8-42-101 ...........................................................................................17
insurance liability for ................................................................................... 8-44-101 ...........................................................................................54
not insured (see FAILURE TO INSURE)
notice to, of injury............................................................................................ 8-43-102 ...........................................................................................33
notice to, of settlement ..................................................................................... 8-43-204(2).......................................................................................36
property owner contracting out ........................................................................ 8-41-402 ...........................................................................................15
liable for insurance....................................................................................... 8-41-402 ...........................................................................................15
exemptions of............................................................................................... 8-41-403 ...........................................................................................15
XI
records of, open to inspection........................................................................... 8-47-208............................................................................................76
self-insurance ................................................................................................... 8-44-201 thru 205 ....................................................................... 58-60
trade or professional association ...................................................................... 8-44-205............................................................................................59
EMPLOYMENT, defined .................................................................................. 8-40-201(8) ........................................................................................ 3
arising out of .................................................................................................... 8-41-301(1)(b) ..................................................................................13
termination of, resulting wage loss................................................................... 8-42-105(4) .......................................................................................23
ERROR, reopening for........................................................................................ 8-43-303............................................................................................42
EVIDENCE......................................................................................................... 8-43-210............................................................................................39
EXAMINATION, by physicians ........................................................................ 8-43-404............................................................................................46
EXCLUSIVE REMEDY.................................................................................... 8-41-104............................................................................................. 9
EXECUTIVE DIRECTOR, Dept. of Labor and Employment
appoint employees............................................................................................ 8-47-204............................................................................................76
fix bond for custodian of funds ........................................................................ 8-45-119(2) .......................................................................................66
EXPENSES OF DIVISION OF WORKERS’ COMPENSATION ................ 8-47-209............................................................................................76
EXTRATERRITORIAL PROVISIONS .......................................................... 8-40-201(18), 8-41-204..................................................................4,12
F
FALSE STATEMENT....................................................................................... 8-43-402............................................................................................45
willfully misleads employer ............................................................................. 8-42-112(1)(d) ..................................................................................29
FAILURE TO INSURE
compensation (50% penalty) ............................................................................ 8-43-408(1) .......................................................................................49
bond to secure .............................................................................................. 8-43-408(2) .......................................................................................49
deposit with trustee....................................................................................... 8-43-408(2) .......................................................................................49
failure to pay judgment................................................................................. 8-43-408(4) .......................................................................................49
procedure to secure judgment....................................................................... 8-43-408(3) .......................................................................................49
fine .................................................................................................................. 8-43-409(1)(b) ..................................................................................50
injunction against carrying on business............................................................ 8-43-409............................................................................................49
lien. .................................................................................................................. 8-43-410............................................................................................50
monetary penalty .............................................................................................. 8-43-409(1)(b) ..................................................................................50
FAILURE TO PROSECUTE............................................................................ 8-43-207(1)(n) ..................................................................................38
FAILURE TO REPORT INJURY.................................................................... 8-43-102(1)(a)...................................................................................33
FARM AND RANCH LABOR.......................................................................... 8-40-302(3) ........................................................................................ 8
FATALITY
employer report ................................................................................................ 8-43-101............................................................................................32
benefits ............................................................................................................. 8-41-501............................................................................................16
FEES
attorney............................................................................................................. 8-43-403............................................................................................45
chiropractic....................................................................................................... 8-42-101(3)(a)(lll).............................................................................18
expert witness, expert reviewer, expert evaluator............................................. 8-42-101(3)(a)(I)...............................................................................17
medical and hospital......................................................................................... 8-42-101(3) .......................................................................................17
freeze on....................................................................................................... 8-42-101(3)(a)(ll)..............................................................................18
set aside as excessive or unnecessary ........................................................... 8-43-207(1)(o) ..................................................................................38
transcripts ......................................................................................................... 8-43-213(2) .......................................................................................39
vocational rehabilitation ................................................................................... 8-42-101(3)(a)(I)...............................................................................17
witness.............................................................................................................. 8-43-315............................................................................................44
FELLOW SERVANT, negligence of................................................................. 8-42-101............................................................................................17
FILES, INSPECTION OF ................................................................................. 8-42-125, 8-47-203 ......................................................................32,75
FINAL ADMISSION ......................................................................................... 8-43-203(2) .......................................................................................35
FINES (see PENALTIES)
FINDINGS AND AWARD
action to set aside (see APPEAL)
administrative law judge’s................................................................................ 8-43-215............................................................................................40
final, when........................................................................................................ 8-43-215............................................................................................40
I.C.A.P.............................................................................................................. 8-43-301(8),(9),(10)..........................................................................41
FIREFIGHTERS
coverage for occupational diseases................................................................... 8-41-209............................................................................................12
FOR-HIRE TRANSPORTATION ................................................................... 8-41-401(6) .......................................................................................15
FRANCHISE HOLDER .................................................................................... 8-41-403(1) .......................................................................................15
FRAUD
offset benefits paid ........................................................................................... 8-43-304............................................................................................43
penalty.............................................................................................................. 8-43-402............................................................................................45
FUNERAL EXPENSES ..................................................................................... 8-42-123............................................................................................31
G
GARNISHMENT ............................................................................................... 8-42-124(1),(6), 8-43-204(4) ..................................................31,32,36
GENERAL PARTNER, coverage...................................................................... 8-40-302(5) ........................................................................................ 8
GLASSES............................................................................................................ 8-42-101(1)(b), 8-42-101(2) .............................................................17
GRATUITIES..................................................................................................... 8-40-201(19) ...................................................................................... 4
XII
GUARANTY FUND .......................................................................................... 8-44-206 ...........................................................................................60
GUARDIAN AD LITEM, appoint..................................................................... 8-43-207(1)(l) ...................................................................................38
H
HEALTH INSURANCE.................................................................................... 8-40-201(19).......................................................................................4
HEARINGS
adjournment of................................................................................................. 8-43-207(1)(j) ...................................................................................38
after IME report ............................................................................................... 8-42-107.2(4), 8-43-203(2).......................................................... 28,35
administrative law judge, conduct.................................................................... 8-43-207(1).......................................................................................38
order............................................................................................................. 8-43-215 ...........................................................................................40
review by I.C.A.P......................................................................................... 8-43-301(6-11) .................................................................................41
application of either party, on .......................................................................... 8-43-211(2)(b) ..................................................................................39
award, appeal ................................................................................................... 8-43-301 ...........................................................................................41
before whom held ............................................................................................ 8-43-202 ...........................................................................................34
commission of another state......................................................................... 8-43-202 ...........................................................................................34
conduct of ........................................................................................................ 8-43-207(1)(h) ..................................................................................38
continuance ...................................................................................................... 8-43-209(3).......................................................................................39
depositions ....................................................................................................... 8-43-207(1)(e) ..................................................................................38
director may hold ............................................................................................. 8-43-201 ...........................................................................................34
jurisdiction ................................................................................................... 8-43-103(2).......................................................................................34
during appeals .................................................................................................. 8-43-301(12).....................................................................................42
employer default insurance obligations............................................................ 8-43-409(1).......................................................................................49
evidence ........................................................................................................... 8-43-210 ...........................................................................................39
expedited.......................................................................................................... 8-42-105(2).......................................................................................22
8-43-203(1).......................................................................................34
8-43-211(2)(a) ..................................................................................39
extension of hearing date ................................................................................. 8-43-209(1),(2) .................................................................................39
false statement.................................................................................................. 8-43-402 ...........................................................................................45
issue ripe for adjudication ................................................................................ 8-43-211(2)(b) ..................................................................................39
including selection of an IME ...................................................................... 8-43-203(2).......................................................................................35
limit for hearing date........................................................................................ 8-43-209 ...........................................................................................39
notice of ........................................................................................................... 8-43-211(1).......................................................................................39
notice to set mailed .......................................................................................... 8-43-211(2)(c) ..................................................................................39
orders, time limit.............................................................................................. 8-43-215 ...........................................................................................40
reporters ........................................................................................................... 8-43-213(2).......................................................................................39
time for completion.......................................................................................... 8-43-215 ...........................................................................................40
time schedule establishment............................................................................. 8-43-209 ...........................................................................................39
transcript of proceedings.................................................................................. 8-43-213 ...........................................................................................39
time for filing ............................................................................................... 8-43-213(2).......................................................................................39
utilization review de novo................................................................................ 8-43-501(5).......................................................................................52
witness
failure to appear at ....................................................................................... 8-43-212 ...........................................................................................39
fees............................................................................................................... 8-43-315 ...........................................................................................44
HEART ATTACK ............................................................................................. 8-41-302(2).......................................................................................13
HEPATITIS C
Coverage for exposure, contraction ................................................................. 8-41-208 ...........................................................................................12
Baseline testing ................................................................................................ 8-41-208(1)(a),(b),8-42-101(1)(c) ............................................... 12,17
HOMEOWNER ................................................................................................. 8-40-302(4), 8-41-402 ................................................................... 8,15
HOSPITAL TREATMENT .............................................................................. 8-42-101(1).......................................................................................17
I
ILLEGITIMATE MINOR CHILDREN.......................................................... 8-41-505 ...........................................................................................17
IMMEDIATE PAYMENT FUND .................................................................... 8-44-206 ...........................................................................................60
IMMUNITY FROM SUIT ................................................................................ 8-41-104 .............................................................................................9
IMPAIRMENT RATINGS
basis ................................................................................................................. 8-42-101(3)(a)(l)...............................................................................17
not combined ................................................................................................... 8-42-107(7).......................................................................................24
not level II accredited....................................................................................... 8-42-107(8)(b.5) ...............................................................................25
who may provide ............................................................................................. 8-42-101(3.6)(a)(ll) ..........................................................................18
IMPLANTABLE DEVICE ............................................................................... 8-42-101(1)(b) ..................................................................................17
INCARCERATION
inmate as employee.......................................................................................... 8-40-301(3).........................................................................................7
limitation on payments..................................................................................... 8-42-113 ...........................................................................................29
INCOME ASSIGNMENT................................................................................. 8-42-124(6),8-43-204(4).............................................................. 32,36
INCOMPETENT CLAIMANT OR DEPENDENT ........................................ 8-41-503(3).......................................................................................17
INDEPENDENT CONTRACTOR, defined ..................................................... 8-40-202(2), 8-41-401(3)............................................................... 6,14
common carrier ................................................................................................ 8-40-301(5),(6) ...................................................................................8
XIII
nonprofit youth sports organization coach ....................................................... 8-40-202(2)(e)(I)................................................................................ 7
INDEPENDENT MEDICAL EXAMINATION (IME)
Division IME (DIME) .................................................................................... 8-42-107(8)(b),(b.5)..........................................................................25
after report file admission or request hearing (DIME) ................................. 8-42-107.2(4), 8-43-203(2) ..........................................................28,35
applicability (DIME) .................................................................................... 8-42-107.2(6) ....................................................................................28
contact with treating physician (DIME) ....................................................... 8-42-107.2(3)(d) ...............................................................................27
eighteen months to request IME to determine MMI..................................... 8-42-107(8)(b)(II) ...........................................................................25
payment for (DIME)..................................................................................... 8-42-107.2(5), 8-43-502(2) ..........................................................28,52
repeat testing (DIME)................................................................................... 8-42-107.2(3)(d) ...............................................................................27
selection of examiner (DIME)...................................................................... 8-42-107.2.........................................................................................27
request for disclosure of information by a listed examiner ...................... 8-42-107.2(3.5)(a) &(b) ....................................................................28
Non Division IME (NON-DIME) .................................................................. 8-43-404 (1-4), 8-43-502 .............................................................46,52
audio recording (NON-DIME) ..................................................................... 8-43-404(2) .......................................................................................46
written report (NON-DIME) ........................................................................ 8-43-404(2) .......................................................................................46
INDIVIDUAL EMPLOYER, coverage ............................................................. 8-44-102............................................................................................55
INDUSTRIAL CLAIM APPEALS PANEL
defined.............................................................................................................. 8-40-201(16) ...................................................................................... 4
examiner defined .............................................................................................. 8-40-201(9) ........................................................................................ 3
orders................................................................................................................ 8-47-103............................................................................................74
error disregarded .......................................................................................... 8-43-310............................................................................................44
extend time for entry .................................................................................... 8-43-301(9) .......................................................................................41
failure to issue timely order.......................................................................... 8-43-301(11) .....................................................................................41
prima facie reasonable and valid .................................................................. 8-47-103............................................................................................74
technical objections ...................................................................................... 8-47-104............................................................................................74
procedural orders.......................................................................................... 8-43-301(9) .......................................................................................41
sixty days to enter order ............................................................................... 8-43-301(8) .......................................................................................41
INFORMATION, employers must furnish......................................................... 8-47-102............................................................................................74
INJURIES
arising out of employment................................................................................ 8-41-301............................................................................................13
conditions of recovery for ................................................................................ 8-41-301............................................................................................13
defenses, abrogation of................................................................................. 8-41-101............................................................................................. 9
defenses, available when .............................................................................. 8-41-103............................................................................................. 9
employee submit to examination...................................................................... 8-43-404............................................................................................46
employer, keep record of.................................................................................. 8-43-101............................................................................................32
report to division, time limit......................................................................... 8-43-101............................................................................................32
deaths ....................................................................................................... 8-43-101, 103...............................................................................32,34
liability of employer ......................................................................................... 8-41-102............................................................................................. 9
contractor...................................................................................................... 8-41-401............................................................................................14
lessor ............................................................................................................ 8-41-401, 403...............................................................................14,15
owner............................................................................................................ 8-41-402............................................................................................15
loss of members, specific ................................................................................. 8-42-107............................................................................................23
negligence of third party, election .................................................................... 8-41-203............................................................................................10
subrogation of insurer................................................................................... 8-41-203............................................................................................10
reports of to division ........................................................................................ 8-43-101............................................................................................32
to employer................................................................................................... 8-43-102............................................................................................33
INJURIOUS PRACTICE .................................................................................. 8-43-404(3) .......................................................................................47
INJURY
defined.............................................................................................................. 8-40-201(1),(2) .................................................................................. 3
out of state ........................................................................................................ 8-41-204............................................................................................12
INJURY BENEFITS (see BENEFITS)
INMATE
benefit payment to............................................................................................ 8-42-113............................................................................................29
employee .......................................................................................................... 8-40-301(3) ........................................................................................ 7
inmate exception .............................................................................................. 8-40-301(3)(a) & 8-42-113(4)........................................................7,29
repay benefits if ineligible................................................................................ 8-42-113(1.5)(b) ...............................................................................29
INSANE OR INCOMPETENT
payments .......................................................................................................... 8-41-503(3) .......................................................................................17
determine competency of witnesses and parties ............................................... 8-43-207(1)(m) .................................................................................38
INSPECTION
books, payrolls, records.................................................................................... 8-47-208............................................................................................76
workers’ compensation files............................................................................. 8-42-125, 8-47-203 ......................................................................32,75
INSURANCE (see also FAILURE TO INSURE)
cancellation, notice of....................................................................................... 8-44-110............................................................................................56
Pinnacol Assurance
cancellation of policy ................................................................................... 8-45-101;8-45-112,113 ................................................................62,64
shall not refuse to insure............................................................................... 8-45-101(5)(f) ...................................................................................62
classification, notice of change in rate.............................................................. 8-44-109............................................................................................56
XIV
classification of risks filed with commissioner of insurance............................ 8-44-103 ...........................................................................................55
compensation exclusive remedy ...................................................................... 8-41-104 .............................................................................................9
contract for, subject to Act............................................................................... 8-44-102 ...........................................................................................55
form of, commissioner of insurance prescribe ............................................. 8-44-102 ...........................................................................................55
void when..................................................................................................... 8-44-102 ...........................................................................................55
credit losses, overpayment repaid .................................................................... 8-42-113.5 ........................................................................................30
cutting or rebating rates, prohibited ................................................................. 8-44-104 ...........................................................................................55
penalty.......................................................................................................... 8-44-104 ...........................................................................................55
deductibles ....................................................................................................... 8-44-111 ...........................................................................................56
employer, defaulting in, enjoined..................................................................... 8-43-409 ...........................................................................................49
compensation increased ............................................................................... 8-43-408 ...........................................................................................49
fine ............................................................................................................... 8-43-409(1)(b) ..................................................................................50
Federal Prison Industry Enhancement Certification Program .......................... 8-44-101(3)(a)(II) .............................................................................55
liability of lessor or contractor out ................................................................... 8-41-401 ...........................................................................................14
of owner contracting out .............................................................................. 8-41-402 ...........................................................................................15
medical aid....................................................................................................... 8-42-101 ...........................................................................................17
methods of
public entities pools ..................................................................................... 8-44-204 ...........................................................................................59
self-insurance ............................................................................................... 8-44-101 ...........................................................................................54
self-insurance pools ..................................................................................... 8-44-205 ...........................................................................................59
state authority............................................................................................... 8-44-101 ...........................................................................................54
stock or mutual companies........................................................................... 8-44-101 ...........................................................................................54
misclassifications, repayments for ................................................................... 8-44-108 ...........................................................................................56
non-insurance (see FAILURE TO INSURE)
overpayment repaid, credit losses .................................................................... 8-42-113.5 ........................................................................................30
policy
approve form................................................................................................ 8-44-102 ...........................................................................................55
cancellation .................................................................................................. 8-44-110 ...........................................................................................56
essential provisions ...................................................................................... 8-44-105 ...........................................................................................55
notice to division.......................................................................................... 8-44-101 ...........................................................................................54
subject to Act ............................................................................................... 8-44-102 ...........................................................................................55
premium dividend ............................................................................................ 8-42-107.6 ........................................................................................28
property tax work-off program......................................................................... 8-40-202(3), 8-40-301(9), 8-41-210 ........................................... 7,8,12
rates
approved by commissioner of insurance ...................................................... 8-44-104 ...........................................................................................55
cutting or rebating prohibited....................................................................... 8-44-104 ...........................................................................................55
data collections ............................................................................................ 8-44-113(Repealed) ..........................................................................57
not include penalties or damages ................................................................. 8-43-304.5 ........................................................................................43
system of filed.............................................................................................. 8-44-103 ...........................................................................................55
rebating prohibited ....................................................................................... 8-44-104 ...........................................................................................55
requirements .................................................................................................... 8-44-101 ...........................................................................................54
revisionary interests prohibited ........................................................................ 8-44-116 ...........................................................................................58
self-insurance ................................................................................................... 8-44-101, 8-44-201...................................................................... 54,58
self-insurance, notice of injury
to employer .................................................................................................. 8-43-102(1.5)....................................................................................33
self-insurance pools ......................................................................................... 8-44-205 ...........................................................................................59
self-insurance, public entities........................................................................... 8-44-204 ...........................................................................................59
surcharge on premiums .................................................................................... 8-44-112 ...........................................................................................56
uninsured (see FAILURE TO INSURE)
INSURER
cutting rates, penalty ........................................................................................ 8-44-104 ...........................................................................................55
deposits to secure future payments of
compensation ............................................................................................... 8-47-105 ...........................................................................................74
duty to offer case management
or managed care ........................................................................................... 8-42-101(3.6)(p)(ll) ..........................................................................19
file system of rating ......................................................................................... 8-44-103 ...........................................................................................55
insurance filed with division ............................................................................ 8-44-101 ...........................................................................................54
liability to employee ........................................................................................ 8-44-105 ...........................................................................................55
mutual liability company, may be .................................................................... 8-44-101 ...........................................................................................54
notice of injury to employer is notice to .......................................................... 8-44-105 ...........................................................................................55
rebates by, penalty ........................................................................................... 8-44-104 ...........................................................................................55
revocation of license ........................................................................................ 8-44-106 ...........................................................................................55
right to examine books of employer................................................................. 8-44-107 ...........................................................................................55
INTENT, legislative............................................................................................ 8-40-102 .............................................................................................2
INTENTIONALLY SELF-INFLICTED INJURIES ...................................... 8-41-301(1)(c) ..................................................................................13
INTEREST ......................................................................................................... 8-43-410 ...........................................................................................50
INTERPRETATION OF ACT ......................................................................... 8-43-201 ...........................................................................................34
XV
INTERSTATE COMMERCE (see COMMON CARRIERS)
INTOXICATION OF EMPLOYEE ................................................................. 8-42-112.5.........................................................................................29
INTRASTATE COMMERCE (see COMMON CARRIERS)
INVESTIGATIONS ........................................................................................... 8-43-208............................................................................................38
J
JAIL, payments to prisoners................................................................................ 8-42-113............................................................................................29
JOB OFFER, ends temporary disability ............................................................. 8-42-105(3) .......................................................................................22
JUDGMENT....................................................................................................... 8-43-408(3) .......................................................................................49
JURISDICTION, injury out of state................................................................... 8-41-204............................................................................................12
L
LAST INJURIOUS EXPOSURE ...................................................................... 8-41-304............................................................................................13
LEASING OUT (see CONTRACTORS AND LESSEES)
LEGISLATIVE DECLARATION
claims management .......................................................................................... 8-43-217............................................................................................40
cost containment............................................................................................... 8-14.5-102.......................................................................................... 1
employers have insurance in effect .................................................................. 8-47-111............................................................................................75
utilization review.............................................................................................. 8-43-501............................................................................................51
Workers’ Compensation Act ............................................................................ 8-40-102(1) ........................................................................................ 2
whether individual is employee........................................................................ 8-40-102(2) ........................................................................................ 3
LESSEE (see also CONTRACTORS AND LESSEES)
books and records, insurer may examine.......................................................... 8-44-107............................................................................................55
deemed employer, must insure, when .............................................................. 8-41-401............................................................................................14
LESSOR, statutory employer .............................................................................. 8-41-401............................................................................................14
LIEN AGAINST EMPLOYER OR INSURER ............................................... 8-43-410............................................................................................50
LIEN FOR ATTORNEY FEES, void and illegal.............................................. 8-42-124............................................................................................31
LIMITATIONS (see also TIME LIMITS)
claim for benefits.............................................................................................. 8-43-103............................................................................................34
LIMITED LIABILITY MEMBER................................................................... 8-41-202............................................................................................. 9
LOANING SERVICES...................................................................................... 8-41-303............................................................................................13
LUMP SUMS...................................................................................................... 8-43-406............................................................................................49
garnishment or administrative lien ................................................................... 8-43-204(4) .......................................................................................36
$10,000............................................................................................................. 8-42-107(8)(d) ..................................................................................26
may not be conditioned on waiver of permanent total benefits ........................ 8-43-406(1) .......................................................................................49
M
MAJOR MEDICAL INSURANCE FUND ...................................................... 8-46-201-212 .............................................................................. 70-72
MANAGED CARE, defined............................................................................... 8-42-101(3.6)(p) ...............................................................................19
MAXIMUM MEDICAL IMPROVEMENT, defined ...................................... 8-40-201(11.5) ................................................................................... 3
date determined by physician ........................................................................... 8-42-107(8)(b) ..................................................................................25
temporary total terminates................................................................................ 8-42-105(3)(a)...................................................................................22
temporary partial terminates............................................................................. 8-42-106(2)(a)...................................................................................23
independent medical examination .................................................................... 8-42-107(8) .......................................................................................25
medical benefits after MMI .............................................................................. 8-42-107(8)(f) ...................................................................................26
MEDIATION
application procedures...................................................................................... 8-43-205............................................................................................37
defined.............................................................................................................. 8-40-201(12) ...................................................................................... 3
representation of parties ................................................................................... 8-43-205(1) .......................................................................................37
time limit for conference .................................................................................. 8-43-205(1) .......................................................................................37
MEDIATORS ..................................................................................................... 8-40-201(13) ...................................................................................... 3
MEDICAL BENEFITS...................................................................................... 8-42-101............................................................................................17
after MMI ......................................................................................................... 8-42-107(8)(f) ...................................................................................26
apparatus .......................................................................................................... 8-42-101(1)(a)...................................................................................17
bill for payment for services after
loss of accreditation...................................................................................... 8-42-101(3.6)(h) ...............................................................................18
change of physician.......................................................................................... 8-43-404(5) .......................................................................................47
chiropractic treatments, limit............................................................................ 8-42-101(3)(a)(lll).............................................................................18
costs paid by claimant ...................................................................................... 8-42-101(4) .......................................................................................19
deemed authorized for services provided ......................................................... 8-43-404(9) .......................................................................................48
dictating care .................................................................................................... 8-43-503(3) .......................................................................................53
employee may change physicians..................................................................... 8-43-404(5) .......................................................................................47
employer furnish .............................................................................................. 8-42-101............................................................................................17
at time of injury ............................................................................................ 8-43-404(5) .......................................................................................47
examination rights, refusal ............................................................................... 8-43-404(3) .......................................................................................47
fees, set aside.................................................................................................... 8-43-207(1)(o) ..................................................................................38
fees, withheld ................................................................................................... 8-42-105(2)(d) ..................................................................................22
XVI
independent medical examination.................................................................... 8-42-107(8), 8-43-502(1)............................................................. 25,52
liability for authorized...................................................................................... 8-43-404(7).......................................................................................48
Major Medical Fund ........................................................................................ 8-46-201 thru 212 ........................................................................70-72
Medical Disaster Insurance Fund..................................................................... 8-46-301 thru 309 ........................................................................72-73
medical fees ..................................................................................................... 8-42-101(3).......................................................................................17
missed appointment ......................................................................................... 8-42-105(2)(c) ..................................................................................22
mutual plan of employer and employee ........................................................... 8-42-101(2).......................................................................................17
no recovery from employee ............................................................................. 8-42-101(4).......................................................................................19
privilege waived............................................................................................... 8-43-404(6).......................................................................................48
prosthetic device .............................................................................................. 8-42-101(1)(b) ..................................................................................17
reasonably needed............................................................................................ 8-42-101(1)(a) ..................................................................................17
refusal .............................................................................................................. 8-43-404(3).......................................................................................47
reopening ......................................................................................................... 8-43-303(2).......................................................................................42
reports, evidence .............................................................................................. 8-43-210 ...........................................................................................39
schedule of fees................................................................................................ 8-42-101(3).......................................................................................17
suspension of compensation............................................................................. 8-43-404(3).......................................................................................47
treatment guidelines ......................................................................................... 8-40-201(13.5)....................................................................................3
utilization review process................................................................................. 8-43-501 ...........................................................................................51
verification off work ........................................................................................ 8-42-105(2)(d) ..................................................................................22
waiver of privilege ........................................................................................... 8-47-203(1).......................................................................................75
willful delay of payment .................................................................................. 8-43-401(2).......................................................................................45
MEDICAL DIRECTOR
advises on appointment of utilization review committees................................ 8-43-501(3)(a) ..................................................................................51
appointment ..................................................................................................... 8-42-101(3.6)(n) ...............................................................................19
contracts for peer review.................................................................................. 8-42-101(3.6)(n) ...............................................................................19
duties................................................................................................................ 8-42-101(3.6)(n) ...............................................................................19
qualifications.................................................................................................... 8-42-101(3.6)(n) ...............................................................................19
MEDICAL DISASTER INSURANCE FUND................................................. 8-46-301 thru 309 ........................................................................72-73
MEDICAL IMPAIRMENT RATINGS (see IMPAIRMENT RATINGS)
MEDICAL TREATMENT GUIDELINES
defined ............................................................................................................. 8-40-201(13.5)(a) ...............................................................................3
8-42-101(3)(b) ..................................................................................18
MENTAL IMPAIRMENT
combined to determine cap .............................................................................. 8-41-301(2)(a) ..................................................................................13
8-42-107(7)(b)(III) ...........................................................................25
8-42-107.5 ........................................................................................28
conditions of recovery...................................................................................... 8-41-301(2).......................................................................................13
not combined with physical impairments......................................................... 8-42-107(7)(b) ..................................................................................24
MINORS
average weekly wage, children ........................................................................ 8-42-102(4).......................................................................................20
compensation rate ............................................................................................ 8-40-202(1)(a)(lll), 8-42-102(4) .................................................... 5,20
deceased, death benefits to............................................................................... 8-46-102(1)(b) ..................................................................................69
dependents
illegitimate ................................................................................................... 8-41-505 ...........................................................................................17
presumed...................................................................................................... 8-41-501(1)(b),(c).............................................................................16
employees ........................................................................................................ 8-40-202(1)(b) ....................................................................................6
safeguarding payments of ................................................................................ 8-42-122 ...........................................................................................31
students ............................................................................................................ 8-41-501(1)(c) ..................................................................................16
termination of benefits ..................................................................................... 8-42-120 ...........................................................................................31
MISTAKE, reopening claim............................................................................... 8-43-303 ...........................................................................................42
MORTALITY TABLES, setting reserves, use of.............................................. 8-45-107(2).......................................................................................64
MOTION ............................................................................................................ 8-43-207(1)(g) ..................................................................................38
MOTOR VEHICLE ACCIDENTS, calculation of premium ........................... 8-44-115 ...........................................................................................58
MUTUAL LIABILITY COMPANY ................................................................ 8-44-101(1)(b) ..................................................................................54
N
NEGLIGENCE
of employee ..................................................................................................... 8-41-101 .............................................................................................9
of stranger ........................................................................................................ 8-41-203 ...........................................................................................10
NON-INSURANCE (see FAILURE TO INSURE)
NON-MEDICAL BENEFITS, defined.............................................................. 8-42-112.5(2)....................................................................................29
NONRESIDENT DEPENDENT, applicability of appeal ................................. 8-42-118 ...........................................................................................31
NOTICE
by employee, to employer, of injury ................................................................ 8-43-102(1).......................................................................................33
by employer, to carrier, of injury ..................................................................... 8-43-103(1).......................................................................................34
of hearing ......................................................................................................... 8-43-211 ...........................................................................................39
of issuance of policy ........................................................................................ 8-44-101(1)(b) ..................................................................................54
XVII
of occupational disease..................................................................................... 8-43-102(2) .......................................................................................33
of request for IME ............................................................................................ 8-42-107.2(2)(b) ...............................................................................27
to employer of settlement ................................................................................. 8-43-204(2) .......................................................................................36
to set ................................................................................................................. 8-43-211(2) .......................................................................................39
NOTICE OF CONTEST.................................................................................... 8-43-203............................................................................................34
O
OCCUPATIONAL DISEASE
aggravation....................................................................................................... 8-41-304(1) .......................................................................................13
coverage for firefighters ................................................................................... 8-41-209............................................................................................12
definition .......................................................................................................... 8-40-201(14) ...................................................................................... 3
scope of term ................................................................................................... 8-41-302............................................................................................13
OFFENSES, penalty ........................................................................................... 8-43-304............................................................................................43
OFFICE OF ADMINISTRATIVE COURTS .................................................. 24-30-1001
OFFSET
age greater than 45 ........................................................................................... 8-42-103(1)(c)(lV) ............................................................................21
controlled substances........................................................................................ 8-42-112.5.........................................................................................29
disability plan ................................................................................................... 8-42-103(1)(d) ..................................................................................21
fraud ................................................................................................................. 8-43-304(2) .......................................................................................43
intoxication....................................................................................................... 8-42-112.5.........................................................................................29
payroll deductions ............................................................................................ 8-42-124(7) .......................................................................................32
retirement benefits............................................................................................ 8-42-103(1)(c)(ll)..............................................................................20
safety rule......................................................................................................... 8-42-112(1) .......................................................................................29
social security................................................................................................... 8-42-103(1)(c)...................................................................................20
unemployment benefits .................................................................................... 8-42-103(1)(f) ...................................................................................21
WC benefits other jurisdiction.......................................................................... 8-42-103(1)(e)...................................................................................21
ORDER
administrative law judge issue.......................................................................... 8-43-207(1)(k), 8-43-215 .............................................................38,40
corrected order ................................................................................................. 8-43-302............................................................................................42
defined.............................................................................................................. 8-40-201(15) ...................................................................................... 4
director issue .................................................................................................... 8-43-207(1)(k), 8-43-215 .............................................................38,40
final order, administrative law judge or director .............................................. 8-43-215............................................................................................40
Industrial Claim Appeals Office....................................................................... 8-43-301(8-11)..................................................................................41
not enforceable ................................................................................................. 8-43-301(12) .....................................................................................42
prehearing......................................................................................................... 8-43-207.5(3) ....................................................................................38
request for full order......................................................................................... 8-43-215............................................................................................40
time for issuing................................................................................................. 8-43-215............................................................................................40
written findings of fact ..................................................................................... 8-43-215............................................................................................40
OVERPAYMENT
collection of...................................................................................................... 8-43-306............................................................................................43
defined.............................................................................................................. 8-40-201(15.5) ................................................................................... 4
hearing.............................................................................................................. 8-43-207............................................................................................38
notice of claimant obligations .......................................................................... 8-43-203(1) .......................................................................................34
recovery of ....................................................................................................... 8-42-113.5.........................................................................................30
reopen for ......................................................................................................... 8-43-303............................................................................................42
OWNER, LEASING OR CONTRACTING
(see CONTRACTORS AND LESSEES)
P
PAIN, not render impairment rating based on ..................................................... 8-42-101(3.7) ....................................................................................19
PARALYSIS ....................................................................................................... 8-42-107(4) .......................................................................................24
PARENTS
deceased minor, death benefits to..................................................................... 8-46-102(1)(b) ..................................................................................69
PARTIAL DEPENDENTS ................................................................................ 8-42-119............................................................................................31
PARTIAL DISABILITY (see DISABILITY)
PARTY IN INTEREST, dependent of employee............................................... 8-41-504............................................................................................17
PAYROLLS OF EMPLOYER, examination by insurer, division..................... 8-44-107, 8-47-208 ......................................................................55,76
PENALTIES
admission, failure to file................................................................................... 8-43-203(2) .......................................................................................35
application for hearing...................................................................................... 8-43-304(4) .......................................................................................43
collection of...................................................................................................... 8-43-306............................................................................................43
each day separate offense ................................................................................. 8-43-305............................................................................................43
failure to cooperate with claims
management ................................................................................................. 8-43-218(3) .......................................................................................40
failure to insure ................................................................................................ 8-43-408............................................................................................49
fine for.......................................................................................................... 8-43-409(1)(b) ..................................................................................50
in rate making................................................................................................... 8-43-304.5.........................................................................................43
XVIII
injurious practice.............................................................................................. 8-43-404(3).......................................................................................47
injury, failure of employee to report ................................................................ 8-43-102 ...........................................................................................33
insure, failure to ............................................................................................... 8-43-408 ...........................................................................................49
judgment, failure to pay ................................................................................... 8-43-408 ...........................................................................................49
notice of contest, failure to file ........................................................................ 8-43-203(2).......................................................................................35
refusal of examination...................................................................................... 8-43-404(3).......................................................................................47
report on fine imposed ..................................................................................... 8-43-409(5).......................................................................................50
report on penalties imposed ............................................................................. 8-43-304(3).......................................................................................43
request for ........................................................................................................ 8-43-304(5).......................................................................................43
subpoena, failure to obey ................................................................................. 8-47-102 ...........................................................................................74
untimely payment after appeals ....................................................................... 8-43-401(2)(a) ..................................................................................45
violation of Act ................................................................................................ 8-43-304 ...........................................................................................43
willful or repeated violations ........................................................................... 8-43-304(1.5)....................................................................................43
PENSION PLAN, effect on compensation ......................................................... 8-42-103(1)(d) ..................................................................................21
PER DIEM computation..................................................................................... 8-42-102(2)(c) ..................................................................................20
defined ............................................................................................................. 8-40-201(19)(c) ..................................................................................4
premium........................................................................................................... 8-44-114 ...........................................................................................58
PERMANENT DISABILITY (see also BENEFITS and DISABILITY)
additional injury............................................................................................... 8-42-109 ...........................................................................................28
death................................................................................................................. 8-42-116,117 ....................................................................................30
minor................................................................................................................ 8-42-102(4).......................................................................................20
not combined ................................................................................................... 8-42-107(7).......................................................................................24
permanent partial disability
age factors .................................................................................................... 8-42-107(8)(e) ..................................................................................26
assignability ................................................................................................. 8-42-124(6).......................................................................................32
compensation rate modified ......................................................................... 8-42-107(6).......................................................................................24
determination of ........................................................................................... 8-42-107 ...........................................................................................23
limit.............................................................................................................. 8-42-107(6).......................................................................................24
scheduled injuries......................................................................................... 8-42-107(2).......................................................................................23
permanent total disability................................................................................. 8-42-111 ...........................................................................................29
age limit (see Romero v. ICAO 912 P2d 62) ............................................... 8-42-111(5).......................................................................................29
assignability ................................................................................................. 8-42-124(6).......................................................................................32
capable of rehabilitation............................................................................... 8-42-111(3).......................................................................................29
defined ......................................................................................................... 8-40-201(16.5)....................................................................................4
ends at age 65 (see Romero v. ICAO 912 P2d 62)...................................... 8-42-111(5).......................................................................................29
paid for life................................................................................................... 8-42-111(1).......................................................................................29
rebuttable presumption................................................................................. 8-40-201(16.5)(b) ...............................................................................4
reopening ..................................................................................................... 8-43-303(3).......................................................................................42
termination of (see Romero v. ICAO 912 P2d 62)...................................... 8-42-111 (1),(5) ........................................................................... 28,29
previous ........................................................................................................... 8-42-104(2).......................................................................................22
rate paid ........................................................................................................... 8-42-107(6).......................................................................................24
PETITION TO REVIEW(see also APPEAL)
briefs ................................................................................................................ 8-43-301(4).......................................................................................41
to Court of Appeals.......................................................................................... 8-43-301(10).....................................................................................41
supplemental order........................................................................................... 8-43-301(5).......................................................................................41
time to file........................................................................................................ 8-43-301(2).......................................................................................41
to I.C.A.P. ........................................................................................................ 8-43-301(6).......................................................................................41
PHYSICIANS
accreditation..................................................................................................... 8-42-101(3.6)....................................................................................18
attending, required to testify ............................................................................ 8-43-404(4).......................................................................................47
change of physician.......................................................................................... 8-43-404(5)(a)(III) to (VI)................................................................47
claims for routine loss injuries ......................................................................... 8-42-101(3.6)(a)(I) ...........................................................................18
claims for services, after revocation................................................................. 8-42-101(3.6)(h) ...............................................................................18
defined ............................................................................................................. 8-42-101(3.5)(a)(l)............................................................................18
list of accredited physicians ............................................................................. 8-42-101(3.6)(k) ...............................................................................19
revocation of accreditation............................................................................... 8-42-101(3.6)(g) ...............................................................................18
selection ........................................................................................................... 8-43-404(5)(a) & 8-43-404(5)(a)(I)(A), ..........................................47
PINNACOL ASSURANCE
annual report .................................................................................................... 8-45-122 ...........................................................................................67
audit and examination of.................................................................................. 8-45-121(2).......................................................................................66
board
defined ......................................................................................................... 8-40-201(3).........................................................................................3
fix rates ........................................................................................................ 8-45-103 ...........................................................................................63
members....................................................................................................... 8-45-101(2).......................................................................................62
powers, rights, duties ................................................................................... 8-45-101(2)(c), 8-45-101(5) .............................................................62
cancellation of policy ....................................................................................... 8-45-112, 113 ...................................................................................64
XIX
chief executive officer
contracts of insurance................................................................................... 8-45-103(2) .......................................................................................63
contracts of insurance....................................................................................... 8-44-101(1)(b) ..................................................................................54
8-44-102, 8-44-104 ...........................................................................55
8-45-103(2)(b) ..................................................................................63
custodian of, State Treasurer ............................................................................ 8-45-118............................................................................................65
invest funds .................................................................................................. 8-45-120............................................................................................66
defined.............................................................................................................. 8-45-102............................................................................................63
disbursements................................................................................................... 8-45-118............................................................................................65
employees......................................................................................................... 8-45-101(8) .......................................................................................63
established........................................................................................................ 8-45-102............................................................................................63
insurance at cost ............................................................................................... 8-45-106............................................................................................64
rates charged................................................................................................. 8-45-107............................................................................................64
investment of funds .......................................................................................... 8-45-120............................................................................................66
legislative interim committee ........................................................................... 8-45-125............................................................................................67
office and employees........................................................................................ 8-45-102............................................................................................63
on discontinuing business................................................................................. 8-45-112............................................................................................64
places of employment, classification of............................................................ 8-45-105............................................................................................64
policy, new ....................................................................................................... 8-45-113............................................................................................64
premiums
classification of employment........................................................................ 8-45-105............................................................................................64
manner of payment....................................................................................... 8-45-105............................................................................................64
rates, amendment of ..................................................................................... 8-45-112............................................................................................64
basis of ..................................................................................................... 8-45-107............................................................................................64
surcharge .................................................................................................. 8-45-106............................................................................................64
refuse to insure, shall not.................................................................................. 8-45-101(5)(f) ...................................................................................62
regulation by commissioner of insurance ......................................................... 8-45-117............................................................................................65
suits as to.......................................................................................................... 8-45-103............................................................................................63
surplus .............................................................................................................. 8-45-107............................................................................................64
amount of ..................................................................................................... 8-45-111............................................................................................64
credit balance to policyholder ...................................................................... 8-45-112............................................................................................64
plan for ......................................................................................................... 8-45-111............................................................................................64
portions of premiums set aside ..................................................................... 8-45-111............................................................................................64
transfer of moneys to board.......................................................................... 8-45-117(6) .......................................................................................65
PLACE OF EMPLOYMENT
classification..................................................................................................... 8-45-105............................................................................................64
defined.............................................................................................................. 8-40-201(17) ...................................................................................... 4
PODIATRIST..................................................................................................... 8-42-101(3.5)(a)................................................................................18
POLICY (see INSURANCE)
POSSES, sheriff’s................................................................................................ 8-40-202(1)(a).................................................................................... 4
POSTHUMOUS CHILDREN ........................................................................... 8-41-501(1)(b) ..................................................................................16
POWER OF ATTORNEY
distributing funds.............................................................................................. 8-42-124(2)(b) ..................................................................................32
void .................................................................................................................. 8-42-124(2) .......................................................................................31
PREHEARING CONFERENCES
administrative law judge, authority .................................................................. 8-43-207.5(2) ....................................................................................38
default of insurance obligation issue ................................................................ 8-43-409(1) .......................................................................................49
issues ................................................................................................................ 8-43-207.5(1) ....................................................................................38
order ................................................................................................................. 8-43-207.5(3) ....................................................................................38
procedure.......................................................................................................... 8-43-207.5(1) ....................................................................................38
record of ........................................................................................................... 8-43-207.5(3) ....................................................................................38
settlements........................................................................................................ 8-43-206............................................................................................37
PREMIUM COST CONTAINMENT (see also COST CONTAINMENT) ... 8-14.5-101 thru 109 ........................................................................ 1-2
surcharge on premiums .................................................................................... 8-44-112(1)(b) ..................................................................................57
PREMIUMS
approved by Commissioner.............................................................................. 8-44-104............................................................................................55
calculation for motor vehicle accidents ............................................................ 8-44-115............................................................................................58
calculation for permanent total disability ......................................................... 8-46-105............................................................................................70
classification, notice of change
in rate............................................................................................................ 8-44-109............................................................................................56
deductibles ....................................................................................................... 8-44-111............................................................................................56
misclassifications, repayments for.................................................................... 8-44-108............................................................................................56
per diem consideration ..................................................................................... 8-44-114............................................................................................58
surcharge .......................................................................................................... 8-44-112............................................................................................56
PREPONDERANCE OF EVIDENCE
conditions of independent trade........................................................................ 8-40-202(2)(b) ................................................................................... 6
credit for reduced disability.............................................................................. 8-46-307............................................................................................73
XX
entitlement to benefits...................................................................................... 8-43-201 ...........................................................................................34
final disposition of U.R.................................................................................... 8-43-501(2).......................................................................................51
PREVIOUS DISABILITY OR IMPAIRMENT
AFFECTING COMPENSATION ................................................................ 8-42-104 ...........................................................................................21
PRIMA FACIE
cease and desist order....................................................................................... 8-43-409(3).......................................................................................50
death after 2 years ............................................................................................ 8-41-207 ...........................................................................................12
orders ............................................................................................................... 8-47-103 ...........................................................................................74
employee.......................................................................................................... 8-40-301(3).........................................................................................7
limitations on payments ................................................................................... 8-42-113 ...........................................................................................29
repay benefits if ineligible................................................................................ 8-42-113(1.5)(b) ...............................................................................29
PROSTHETIC DEVICE
damage to......................................................................................................... 8-42-101(1)(b) ..................................................................................17
petition for additional device ........................................................................... 8-42-101(1)(b) ..................................................................................17
PROVIDER REVIEW AND DISCLOSURE ACT
legislative declaration ...................................................................................... 8-43-602 ...........................................................................................53
definitions ........................................................................................................ 8-43-603 ...........................................................................................53
performance programs ..................................................................................... 8-43-604 ...........................................................................................53
Q
QUALIFIED RESIDENCE............................................................................... 8-41-402(1).......................................................................................15
R
RADIOACTIVE MATERIALS
disabled from exposure to ................................................................................ 8-41-304(2).......................................................................................13
time limits ........................................................................................................ 8-41-206 ...........................................................................................12
RAILROADS ..................................................................................................... 8-41-201 .............................................................................................9
RATES OF INSURANCE (see also INSURANCE)
approved by commissioner of insurance .......................................................... 8-44-104 ...........................................................................................55
basis of for premiums of Pinnacol Assurance. ................................................. 8-45-107 ...........................................................................................64
not include penalties or damages ..................................................................... 8-43-304.5 ........................................................................................43
REAL ESTATE, agent or broker ....................................................................... 8-40-301(2), 8-41-401(5)............................................................... 7,14
REAL PROPERTY, repairs............................................................................... 8-41-402 ...........................................................................................15
REBATES........................................................................................................... 8-44-104 ...........................................................................................55
REBUTTABLE PRESUMPTION
independent contractor relationship ................................................................. 8-40-202(2).........................................................................................6
permanent total disability................................................................................. 8-40-201(16.5)(b) ...............................................................................4
RECORDS
access to workers’ compensation files ............................................................. 8-42-125, 8-47-203...................................................................... 32,75
employer .......................................................................................................... 8-44-107, 8-47-208...................................................................... 55,76
retention of claim records ................................................................................ 8-43-203(2)(c) ..................................................................................35
RECORDS OF PROCEEDINGS ..................................................................... 8-43-311 ...........................................................................................44
transcribed........................................................................................................ 8-43-213 ...........................................................................................39
RECOVERY OF OVERPAYMENT................................................................ 8-42-113.5 ........................................................................................30
collection of overpayment................................................................................ 8-43-306 ...........................................................................................43
hearing ............................................................................................................. 8-43-207 ...........................................................................................38
notice to claimant of obligations ...................................................................... 8-43-203 ...........................................................................................34
reopen award.................................................................................................... 8-43-303 ...........................................................................................42
RECREATIONAL ACTIVITY, of employee .................................................. 8-40-201(8), 8-40-301(1).................................................................3,7
REEMPLOYMENT OF WORKERS, premium dividend ............................... 8-42-107.6 ........................................................................................28
REFEREE (see ADMINISTRATIVE LAW JUDGE)
REHABILITATION (see VOCATIONAL REHABILITATION)
REJECTION OF ACT
agricultural corporations .................................................................................. 8-40-302(6).........................................................................................8
appointed official ............................................................................................. 8-40-202(1)(a)(l)(B) ...........................................................................5
corporate officers ............................................................................................. 8-41-202 .............................................................................................9
limited liability member................................................................................... 8-41-202 .............................................................................................9
RELEASE OF CLAIM...................................................................................... 8-42-124, 8-43-204...................................................................... 31,36
REMEDIES, surrender of................................................................................... 8-41-104 .............................................................................................9
REMARRIAGE ................................................................................................. 8-42-120 ...........................................................................................31
REOPEN............................................................................................................. 8-43-303 ...........................................................................................42
burden of proof ................................................................................................ 8-43-303(4).......................................................................................43
medical benefits ............................................................................................... 8-43-303(2)(b) ..................................................................................42
overpayments ................................................................................................... 8-43-303 ...........................................................................................42
permanent total ................................................................................................ 8-43-303(3).......................................................................................42
REPORTS
employee report injury to employer ................................................................. 8-43-102 ...........................................................................................33
XXI
employer report injury to division .................................................................... 8-43-101............................................................................................32
of physicians, etc., as evidence......................................................................... 8-43-210............................................................................................39
of penalties imposed......................................................................................... 8-43-304(3) .......................................................................................43
REQUIREMENT TO HAVE INSURANCE.................................................... 8-44-101............................................................................................54
REVIEW OF AWARD (see APPEAL and PETITION TO REVIEW)
RESIDENTIAL REAL PROPERTY................................................................ 8-41-402............................................................................................15
RESPONSE TO APPLICATION FOR HEARING
rejection of ....................................................................................................... 8-43-218(4) .......................................................................................40
RETIREMENT BENEFITS
offset ................................................................................................................ 8-42-103(1)(c)(ll)..............................................................................20
notice to insurer................................................................................................ 8-42-113.5.........................................................................................30
REVERSIONARY INTERESTS ...................................................................... 8-44-116............................................................................................58
REVOCATION
certificate of authority
public entity.................................................................................................. 8-44-204(8) .......................................................................................59
self-insurance pool ....................................................................................... 8-44-205(7) .......................................................................................60
corporate officer or member election to reject.................................................. 8-41-202(2) .......................................................................................10
license of insurer .............................................................................................. 8-44-106, 8-44-113(1)(c)(Repealed)............................................55,57
orders valid until .............................................................................................. 8-47-103............................................................................................74
payroll deduction.............................................................................................. 8-42-124(7) .......................................................................................32
physician accreditation ..................................................................................... 8-42-101(3.6)(g) ...............................................................................18
utilization review committee recommend..................................................... 8-43-501(3)(c)(III) ............................................................................51
self-insurance permit ........................................................................................ 8-44-201(1) .......................................................................................58
REWARD TO SHERIFF................................................................................... 8-42-113(1.5)(a)................................................................................29
RISKS, classification of ...................................................................................... 8-44-103............................................................................................55
RULES AND REGULATIONS
director adopts.................................................................................................. 8-47-107............................................................................................75
for collecting data............................................................................................. 8-44-113(1)(Repealed)......................................................................57
for medical treatment guidelines and
impairment ratings........................................................................................ 8-42-101(3.5)(a)(ll)...........................................................................18
S
SAFETY DEVICE, failure to use....................................................................... 8-42-112(1)(a)...................................................................................29
SAFETY RULE
reduction computed .......................................................................................... 8-42-112(2) .......................................................................................29
violation of ....................................................................................................... 8-42-112(1)(b) ..................................................................................29
SANCTIONS ...................................................................................................... 8-43-207(1)(p) ..................................................................................38
SCHEDULE OF SPECIFIC INJURIES .......................................................... 8-42-107(2) .......................................................................................23
not combined.................................................................................................... 8-42-107(7) .......................................................................................24
rate paid............................................................................................................ 8-42-107(6) .......................................................................................24
SECOND INJURY (see SUBSEQUENT INJURY FUND)
SELECTION OF AN IME ................................................................................ 8-42-107.2.........................................................................................27
procedural......................................................................................................... 8-42-107.2(6) ....................................................................................28
SELF-INFLICTED INJURIES......................................................................... 8-41-301(1)(c)...................................................................................13
SELF-INSURANCE (see INSURANCE)
SERVICE OF DOCUMENTS........................................................................... 8-43-317............................................................................................45
SERVICE OF PROCESS .................................................................................. 8-43-315............................................................................................44
SERVICES, loaning............................................................................................ 8-41-303............................................................................................13
SETTLEMENT .................................................................................................. 8-43-204............................................................................................36
competency determination ............................................................................... 8-43-207(1)(m) .................................................................................38
conference procedures...................................................................................... 8-43-206............................................................................................37
garnishment or administrative lien ................................................................... 8-43-204(4) .......................................................................................36
notice of, to employer....................................................................................... 8-43-204(2) .......................................................................................36
reopen, fraud or mutual mistake of material fact.............................................. 8-43-303............................................................................................42
use of mortality tables ...................................................................................... 8-43-204(6) .......................................................................................37
timely payment................................................................................................. 8-43-204(7) .......................................................................................37
SHERIFFS
as employees .................................................................................................... 8-40-202(1)(a)(l)(A) .......................................................................... 4
reward to .......................................................................................................... 8-42-113(1.5)(a)................................................................................29
serve subpoena ................................................................................................. 8-43-315............................................................................................44
SILICOSIS.......................................................................................................... 8-41-304............................................................................................13
SKI AREA VOLUNTEER ................................................................................ 8-40-301(4) ........................................................................................ 8
SOCIAL SECURITY BENEFITS
effect on compensation.................................................................................... 8-42-103(1)(c), 8-42-114 .............................................................20,30
notice to insurer................................................................................................ 8-42-113.5.........................................................................................30
SOLE PROPRIETOR, coverage ....................................................................... 8-40-302(5) ........................................................................................ 8
XXII
SPECIFIC FINDINGS ...................................................................................... 8-43-215 ...........................................................................................40
SPECIAL FUNDS BOARD, creation, duties .................................................... 8-44-206 (2)......................................................................................61
STATE AVERAGE WEEKLY WAGE ........................................................... 8-47-106 ...........................................................................................74
used to modify permanent disability rate ......................................................... 8-42-107(6)(b) ..................................................................................24
STATE COMPENSATION INSURANCE AUTHORITY
(see COLORADO COMPENSATION INSURANCE AUTHORITY)
STATE TREASURER, invest funds.................................................................. 8-45-120;8-46-103, 210, 308............................................. 66,69,72,73
STATUTE OF LIMITATIONS
claim within 2 years ......................................................................................... 8-43-103(2).......................................................................................34
death after 2 years ............................................................................................ 8-41-207 ...........................................................................................12
disability after 5 years...................................................................................... 8-41-206 ...........................................................................................12
exposure, 5 years.............................................................................................. 8-43-103(3).......................................................................................34
filing of penalty request ................................................................................... 8-43-203(2)(c) ..................................................................................35
reasonable excuse, 3 years ............................................................................... 8-43-103(2).......................................................................................34
reopen .............................................................................................................. 8-43-303 ...........................................................................................42
STATUTORY EMPLOYER............................................................................. 8-41-401 ...........................................................................................14
exclusion for independent contractor ............................................................... 8-41-401 ...........................................................................................14
STRESS (see MENTAL IMPAIRMENT)
STUDENT
dependent......................................................................................................... 8-41-501(1)(c) ..................................................................................16
intern program.................................................................................................. 8-40-302(7)(a) ....................................................................................9
SUBCONTRACTOR (see CONTRACTORS AND LESSEES)
SUBLESSEE (see CONTRACTORS AND LESSEES)
SUBPOENA
director issue .................................................................................................... 8-43-207(1)(a) ..................................................................................38
fee for service of .............................................................................................. 8-43-315 ...........................................................................................44
issuance of ....................................................................................................... 8-43-315 ...........................................................................................44
penalty for failure to appear ............................................................................. 8-43-312 ...........................................................................................44
service of.......................................................................................................... 8-43-315 ...........................................................................................44
witness fees and mileage.................................................................................. 8-43-315 ...........................................................................................44
SUBROGATION ............................................................................................... 8-41-203 ...........................................................................................10
SUBSEQUENT INJURY................................................................................... 8-42-104(2).......................................................................................22
SUBSEQUENT INJURY FUND
abatement of taxes............................................................................................ 8-46-106 ...........................................................................................70
certain occupational diseases ........................................................................... 8-41-304 ...........................................................................................13
closure of fund ................................................................................................. 8-46-104 ...........................................................................................70
death, payment to ............................................................................................. 8-46-102 ...........................................................................................68
effect of previous disability.............................................................................. 8-46-101 ...........................................................................................68
SUPPLEMENTAL ORDER ............................................................................. 8-43-301(5).......................................................................................41
SUPPORT PAYMENTS ................................................................................... 8-42-124(1),(6), 8-43-204(4) .................................................. 31,32,36
SUPREME COURT, review Court of Appeals decision ................................... 8-43-313 ...........................................................................................44
SURCHARGE
purpose ............................................................................................................ 8-44-112 ...........................................................................................56
report and payment timeframes ....................................................................... 8-44-112(2) thru (3)..........................................................................57
allocation to subsequent injury and major medical insurance funds ................ 8-46-102(2)(a)(I) ..............................................................................69
premium cost containment ............................................................................... 8-44-112(1)(b)(1) .............................................................................57
SURGEONS (see PHYSICIANS)
SURGICAL SUPPLIES .................................................................................... 8-42-101 ...........................................................................................17
SURRENDER OF REMEDIES ........................................................................ 8-41-104 .............................................................................................9
SURVEY upon closure of claim.......................................................................... 8-43-220 ...........................................................................................40
SUSPENSION OF LICENSE, insurer............................................................... 8-44-106 ...........................................................................................55
T
TECHNICALITIES, orders not void................................................................. 8-47-104 ...........................................................................................74
TEMPORARY DISABILITY ........................................................................... 8-42-103, 105 thru 106 ...........................................................20,22-23
(see also BENEFITS and DISABILITY)
TEMPORARY HELP CONTRACTING FIRM
definition.......................................................................................................... 8-40-201(18.5)....................................................................................4
termination of temporary total ......................................................................... 8-42-105(3)(d) ..................................................................................23
termination of temporary partial ...................................................................... 8-42-106(2)(b) ..................................................................................23
TERMINATION
death benefits ................................................................................................... 8-42-120 ...........................................................................................31
employment, resulting wage loss ..................................................................... 8-42-105(4).......................................................................................23
vocational rehabilitation................................................................................... 8-42-105(1).......................................................................................22
THIRD PERSON LIABILITY ......................................................................... 8-41-203 ...........................................................................................10
limit damages................................................................................................... 8-41-401(3).......................................................................................14
TIME LIMITS (see also TIME REQUIREMENTS)
XXIII
admit or contest liability................................................................................... 8-43-203(1) .......................................................................................34
appeal (see APPEAL)
C.C.I.A. cancellation of policy......................................................................... 8-45-113............................................................................................64
claim for compensation .................................................................................... 8-43-103(2) .......................................................................................34
compensation, commencement......................................................................... 8-42-103(1) .......................................................................................20
contest or admit liability................................................................................... 8-43-203(1) .......................................................................................34
cure violation.................................................................................................... 8-43-304(4) .......................................................................................43
death, after two years, presumption.................................................................. 8-41-207............................................................................................12
dependency, when rights determined ............................................................... 8-41-503............................................................................................16
dependent make claim ...................................................................................... 8-43-103(1) .......................................................................................34
disability after five years, presumption ............................................................ 8-41-206............................................................................................12
employee claim compensation ......................................................................... 8-43-103(2) .......................................................................................34
employee report injury ..................................................................................... 8-43-102(1) .......................................................................................33
employer, defaulting, file bond ........................................................................ 8-43-408(2) .......................................................................................49
report injury.................................................................................................. 8-43-101............................................................................................32
other information...................................................................................... 8-43-103............................................................................................34
failure to admit or contest................................................................................. 8-43-203(2) .......................................................................................35
filing of penalty request.................................................................................... 8-43-203(2)(c)...................................................................................35
injury
reported by employee ................................................................................... 8-43-102(1) .......................................................................................33
penalty ...................................................................................................... 8-43-102(1) .......................................................................................33
reported by employer.................................................................................... 8-43-101............................................................................................32
insurer, admit or contest liability...................................................................... 8-43-203(1) .......................................................................................34
file notice of insurance ................................................................................. 8-44-101(1)(b) ..................................................................................54
lump sums, application for ............................................................................... 8-43-406(1) .......................................................................................49
notice to insurer of award................................................................................. 8-42-113.5.........................................................................................30
request for penalties ......................................................................................... 8-43-304(5) .......................................................................................43
request selection of an IME.............................................................................. 8-42-107.2(2)(b) ...............................................................................27
waiting period, commencement of benefits...................................................... 8-42-103(1)(a),(b) .............................................................................20
TIME REQUIREMENTS (see also TIME LIMITS)
amendment of compensation rates ................................................................... 8-45-112............................................................................................64
information or reports from employer .............................................................. 8-47-201............................................................................................75
immediate
Court of Appeals transmit record ................................................................. 8-43-311............................................................................................44
employer notify director of fatal injury ........................................................ 8-43-103............................................................................................34
four days
employee report injury to employer ............................................................. 8-43-102(1) .......................................................................................33
five days
notice to parties of application for lump sum ............................................... 8-43-406............................................................................................49
upon showing to District Court of refusal to comply with
order or testify, show cause order returnable........................................... 8-47-102............................................................................................74
ten days
advance cost of IME..................................................................................... 8-42-107.2(5) ....................................................................................28
director may extend time for filing admission or denial............................... 8-43-203............................................................................................34
employers notify division of compensable injury......................................... 8-43-101, 8-43-103 ......................................................................32,34
non-insured employer’s bond for compensation filed .................................. 8-43-408(2) .......................................................................................49
notice to set mailed....................................................................................... 8-43-211(2)(c)...................................................................................39
fourteen days
terminate vocational rehabilitation ............................................................... 8-42-105(1) .......................................................................................22
fifteen days
division transmit record................................................................................ 8-43-301(7) .......................................................................................41
lump sum settlement payable ....................................................................... 8-43-204(7) .......................................................................................37
public entity show cause............................................................................... 8-44-204(8) .......................................................................................59
self-insured pools show cause ...................................................................... 8-44-205(7) .......................................................................................60
twenty days
admit or deny liability .................................................................................. 8-43-203(1) .......................................................................................34
admission for contested medical maintenance < 20 days before hearing ..... 8-42-101(5) .......................................................................................19
Court of Appeals action commenced............................................................ 8-43-301(10) .....................................................................................41
cure violation................................................................................................ 8-43-304(4) .......................................................................................43
determine permanent impairment................................................................. 8-42-107(8)(b.5)(I)(A) ......................................................................25
extension of hearing date.............................................................................. 8-43-209(2) .......................................................................................39
file briefs ...................................................................................................... 8-43-301(4),(6) .................................................................................41
first installment paid..................................................................................... 8-42-105(2)(a)...................................................................................22
notice to insurer of award ............................................................................. 8-42-113.5(1)(a)................................................................................30
petition to review.......................................................................................... 8-43-301(2) .......................................................................................41
request change of physician.......................................................................... 8-43-404(5) .......................................................................................47
XXIV
twenty-five days
Court of Appeals return I.C.A.P. records ..................................................... 8-43-311 ...........................................................................................44
filing of transcript ........................................................................................ 8-43-213(2).......................................................................................39
thirty days
after IME file admission or request hearing ................................................. 8-42-107.2(4)....................................................................................28
contest final admission................................................................................. 8-43-203(2)(b)(II).............................................................................35
corrected order ............................................................................................. 8-43-302 ...........................................................................................42
funeral benefits paid..................................................................................... 8-42-123 ...........................................................................................31
heard by Court of Appeals ........................................................................... 8-43-309 ...........................................................................................44
I.C.A.P. extend order entry .......................................................................... 8-43-301(9).......................................................................................41
negotiate selection of an IME ...................................................................... 8-42-107.2(3)....................................................................................27
notice of cancellation of policy .................................................................... 8-44-110 ...........................................................................................56
notice of cancellation of warrant.................................................................. 8-45-118(2).......................................................................................65
notice of failure to prosecute........................................................................ 8-43-207(1)(n) ..................................................................................38
notice of hearing .......................................................................................... 8-43-211(1).......................................................................................39
notice of occupational disease
or death from occupational disease .......................................................... 8-43-102(2).......................................................................................33
supplemental order....................................................................................... 8-43-301(4).......................................................................................41
mediation conference ................................................................................... 8-43-205(1).......................................................................................37
payment of benefits after appeals................................................................. 8-43-401(2)(a) ..................................................................................45
request selection of an IME.......................................................................... 8-42-107.2(2)(b) ...............................................................................27
written order................................................................................................. 8-43-215 ...........................................................................................40
forty days
set expedited hearing.................................................................................... 8-42-105(2)(a) ..................................................................................22
8-43-203(1).......................................................................................34
utilization review appeal .............................................................................. 8-43-501(5)(c) ..................................................................................52
forty-five days
request expedited hearing............................................................................. 8-42-105(2)(a) ..................................................................................22
8-43-203(1).......................................................................................34
sixty days
Industrial Claim Appeals Panel.................................................................... 8-43-301(8),(11) ...............................................................................41
Exposure to harmful quantities .................................................................... 8-41-304(1).......................................................................................13
extension hearing date in certain cases......................................................... 8-43-209 ...........................................................................................39
Supreme Court final decision....................................................................... 8-43-313 ...........................................................................................44
ninety days
chiropractic treatments................................................................................. 8-42-101(3)(a)(lll) ............................................................................18
waiver of release of information .................................................................. 8-47-203(1)(e) ..................................................................................76
eighty to one hundred days for hearings .......................................................... 8-43-209 ...........................................................................................39
one hundred twenty days
hearing completed........................................................................................ 8-43-215 ...........................................................................................40
six months
extraterritorial provisions apply
unless extended ........................................................................................ 8-41-204 ...........................................................................................12
failure to prosecute....................................................................................... 8-43-207(1)(n) ..................................................................................38
offer lump sum after..................................................................................... 8-43-406(1).......................................................................................49
unclaimed warrant canceled......................................................................... 8-45-118(1).......................................................................................65
eighteen months
request IME to determine MMI ................................................................... 8-42-107(8)(b)(II).............................................................................25
one year
manager tabulate earned premiums and losses............................................. 8-45-112 ...........................................................................................64
recovery of overpayment ............................................................................. 8-42-113.5 ........................................................................................30
request for penalties filed............................................................................. 8-43-304(5).......................................................................................43
two years
claim barred unless filed within ................................................................... 8-43-103(2).......................................................................................34
death, prima facie not due to injury.............................................................. 8-41-207 ...........................................................................................12
reopen after date of last payment ................................................................. 8-43-303(2)(a) ..................................................................................42
reopen after last medical benefit .................................................................. 8-43-303(2)(b) ..................................................................................42
three years
accreditation of physicians........................................................................... 8-42-101(3.6)(f)................................................................................18
fund audited ................................................................................................. 8-45-121(4).......................................................................................67
reasonable excuse or claim barred ............................................................... 8-43-103(2).......................................................................................34
five years
disability conclusively presumed not due to
accident, except radioactive materials...................................................... 8-41-206 ...........................................................................................12
notice claiming compensation for exposure ................................................. 8-43-103(3).......................................................................................34
six years
director reopen after date of injury............................................................... 8-43-303(1).......................................................................................42
XXV
permanent total – death not a proximate result............................................. 8-42-116(1)(a)...................................................................................30
termination of right to benefits, death........................................................... 8-42-120............................................................................................31
seven years
request for penalty filed................................................................................ 8-43-203(2)(c)...................................................................................35
retention of division claim records ............................................................... 8-43-203(2)(c)...................................................................................35
TIPS .................................................................................................................. 8-40-201(19) ...................................................................................... 4
TRAINING PROGRAM
as employer ...................................................................................................... 8-40-302(7)(b) ................................................................................... 9
of government, employee ................................................................................. 8-40-202(1)(a)(lll).............................................................................. 5
TRANSCRIPTS.................................................................................................. 8-43-213............................................................................................39
received in evidence when ............................................................................... 8-43-214............................................................................................40
TREASURER, invest funds................................................................................ 8-45-120;8-46-103, 210, 308 .............................................66,70,72,73
TREATING PHYSICIAN (AUTHORIZED)
change of physician
one time change............................................................................................ 8-43-404(5)(a)(III) ............................................................................47
request in writing.......................................................................................... 8-43-404(5)(a)(VI)............................................................................48
communication with employer ......................................................................... 8-43-404(5)(c)...................................................................................48
determine maximum medical improvement (MMI) ......................................... 8-42-107(8)(b)(I) ..............................................................................25
dispute maximum medical improvement determination by.............................. 8-42-107(8)(b)(II) .............................................................................25
determine medical impairment ......................................................................... 8-42-107(8)(c)...................................................................................26
determine no impairment.................................................................................. 8-42-101(3.6) & 8-42-107(8)(c)...................................................18,26
dispute medical impairment determination by.................................................. 8-42-107(8)(c)...................................................................................26
dispute non-determination of MMI by ............................................................. 8-42-107(8)(b)(II) .............................................................................25
insurer not liable for unauthorized treatment.................................................... 8-43-404(7) .......................................................................................48
moves to another facility .................................................................................. 8-43-404(5)(a)(V) .............................................................................48
recommend medical benefits after MMI .......................................................... 8-42-107(8)(f) ...................................................................................26
TRUCK DRIVERS ............................................................................................ 8-41-401(6) .......................................................................................15
TRUST FUND
minor dependents ............................................................................................. 8-42-122............................................................................................31
self-insured pools ............................................................................................. 8-44-205(11) .....................................................................................60
when unpaid compensation threatened............................................................. 8-47-105............................................................................................74
U
UNACCRUED COMPENSATION .................................................................. 8-42-116, 8-42-117 ...........................................................................30
UNEMPLOYMENT COMPENSATION OFFSET......................................... 8-42-103(1)(f) ...................................................................................21
UNINSURED (see FAILURE TO INSURE)
UTILIZATION REVIEW
administrative law judge give great weight ...................................................... 8-43-501(5) .......................................................................................52
appeal from....................................................................................................... 8-43-501(5) .......................................................................................52
committee recommendations............................................................................ 8-43-501(3)(c)...................................................................................51
de novo hearing ................................................................................................ 8-43-501(5) .......................................................................................52
director give great weight................................................................................. 8-43-501(3)(d) ..................................................................................52
fees, costs ......................................................................................................... 8-43-501(2)(a)...................................................................................51
medical record defined ..................................................................................... 8-43-501(2)(d) ..................................................................................51
new provider..................................................................................................... 8-43-501(4) .......................................................................................52
no hearing request until final............................................................................ 8-43-501(2)(e)...................................................................................51
provider removed for 3 years ........................................................................... 8-43-501(3)(e)...................................................................................52
purpose ............................................................................................................. 8-43-501(1), 8-43-503(1) .............................................................51,53
UTILIZATION REVIEW COMMITTEES
appeal from....................................................................................................... 8-43-501(5) .......................................................................................52
appointment to.................................................................................................. 8-43-501(3)(a)...................................................................................51
recommendations ............................................................................................. 8-43-501(3)(c)...................................................................................51
retroactive denial of payment ........................................................................... 8-43-501(3)(c)(ll)..............................................................................51
revocation of accreditation ............................................................................... 8-43-501(4) .......................................................................................52
V
VIOLATIONS OF ACT
defaulting employers ........................................................................................ 8-43-409............................................................................................49
each day separate offense ................................................................................. 8-43-305............................................................................................43
failure to timely admit or deny liability............................................................ 8-43-203(2)(a)...................................................................................35
failure to timely pay or challenge a medical billing ......................................... 8-43-401(2)(a)...................................................................................45
failure to timely pay permanent partial disability benefits ............................... 8-43-401(2)(a)...................................................................................45
financial incentives to deny or delay claim ...................................................... 8-43-401.5.........................................................................................45
repeated violation of the act ............................................................................. 8-43-304 (1.5) ...................................................................................43
construction work proof of coverage ............................................................... 8-41-404............................................................................................15
suspension or revocation of license of insurer ................................................. 8-44-106............................................................................................55
violation where no penalty specifically provided ............................................ 8-43-304............................................................................................43
XXVI
VOCATIONAL REHABILITATION
election to waive .............................................................................................. 8-43-407 ...........................................................................................49
evaluation......................................................................................................... 8-43-404(1),(3) ............................................................................ 46,47
refuse offer....................................................................................................... 8-42-111(3).......................................................................................29
report as evidence ............................................................................................ 8-43-210 ...........................................................................................39
termination....................................................................................................... 8-42-105 ...........................................................................................22
VOLUNTEER .................................................................................................... 8-40-202(1)(a)(I)(A)...........................................................................4
boards............................................................................................................... 8-40-302(2).........................................................................................8
compensation ................................................................................................... 8-40-202(1)(a)(II) ...............................................................................5
fire department................................................................................................. 8-40-202(1).........................................................................................4
rescue teams..................................................................................................... 8-40-202(1)(a)(I)(A)...........................................................................4
ski area ............................................................................................................. 8-40-301(4).........................................................................................8
W
WAITING PERIOD AFTER LEAVING WORK........................................... 8-42-103(1)(a),(b).............................................................................20
WAGES
“at the time of injury” ...................................................................................... 8-42-102(5)(a) ..................................................................................20
average weekly computation............................................................................ 8-42-102(2).......................................................................................19
assignment, attachment
8-42-124, 8-43-204(4) ................................................................. 31,36
defined ............................................................................................................. 8-40-201(19).......................................................................................4
hourly, computation ......................................................................................... 8-42-102(2)(d) ..................................................................................20
per diem, computation ..................................................................................... 8-42-102(2)(c) ..................................................................................20
per diem, defined ............................................................................................. 8-40-201(19)(c) ..................................................................................4
per mile, computation ...................................................................................... 8-42-102(2)(f)...................................................................................20
used as basis for computation .......................................................................... 8-42-102(1).......................................................................................19
weekly computation ......................................................................................... 8-42-102(2)(b) ..................................................................................20
other method ................................................................................................ 8-42-102(3).......................................................................................20
minors .......................................................................................................... 8-42-102(4).......................................................................................20
WAIVER
compensation ................................................................................................... 8-41-205 ...........................................................................................12
doctor-patient privilege .................................................................................... 8-47-203(1).......................................................................................75
medical issues raised by claim ......................................................................... 8-43-404(6).......................................................................................48
release of information ...................................................................................... 8-47-203(1)(e) ..................................................................................76
WARRANTS, state treasurer .............................................................................. 8-45-118 ...........................................................................................65
WIDOW OR WIDOWER, presumed wholly dependent .................................. 8-41-501 ...........................................................................................16
WITNESSES
costs assessed................................................................................................... 8-43-315 ...........................................................................................44
failure to appear ............................................................................................... 8-43-212 ...........................................................................................39
mileage............................................................................................................. 8-43-315 ...........................................................................................44
subpoena .......................................................................................................... 8-43-315 ...........................................................................................44
WORKER’S CLAIM......................................................................................... 8-43-103(1).......................................................................................34
WORKING PARTNER, coverage .................................................................... 8-44-102 ...........................................................................................55
WORK PLACE SAFETY STUDY................................................................... 8-14.5-107.5 .......................................................................................2
WORKERS’ COMPENSATION CASH FUND
accept monies................................................................................................... 8-42-101(3.6)(q) ...............................................................................19
creation ............................................................................................................ 8-44-112(7)(a) ..................................................................................57
construction work proof of coverage violation ................................................ 8-41-404(3).......................................................................................15
defaulting employers, fines collected .............................................................. 8-43-409(7).......................................................................................50
discretionary apportionment of fines................................................................ 8-43-304(1)& 8-43-401(2)(a) ...................................................... 43,45
repeated violations, fines imposed ................................................................... 8-43-304(1.5)(b) ...............................................................................43
WORKERS’ COMPENSATION CLASSIFICATION APPEALS BOARD
creation ............................................................................................................ 8-55-101(1).......................................................................................76
expenses........................................................................................................... 8-55-101(5).......................................................................................77
hearings............................................................................................................ 8-55-103 ...........................................................................................77
immunity.......................................................................................................... 8-55-101(6).......................................................................................77
notice of appeal procedures.............................................................................. 8-55-102 ...........................................................................................77
repeal ............................................................................................................... 8-55-105 ...........................................................................................78
review of board decisions ................................................................................ 8-55-104 ...........................................................................................78
secretary, duties ............................................................................................... 8-55-103(4).......................................................................................78
terms ................................................................................................................ 8-55-101(3).......................................................................................77
vacancy ............................................................................................................ 8-55-101(4).......................................................................................77