Guide to Workplace Accident Cases & Suing your Employer in CO
Guide to Workplace Accident Cases & Suing your Employer in CO
What you need to know, plus what you and your company MUST do after the injury
Written by: Enjuris Editors
Suffering an injury on the job may be a shock, but you are not alone. So far this year, over 6,000 workers in Colorado have filed more than 15,000 workers’ compensation claims. It happens quite often, and it can happen to you. Here’s what you need to know.
When you are hurt on a Colorado company’s property or while engaged in company business, you may have the right to compensation for your injuries via workers’ compensation insurance policies your employer holds. However, this is not an automatic payment, and the insurance company might still deny benefits based on the specific circumstances of your case. If this happens, you should consult with an experienced worker’s compensation attorney.
Workers’ compensation is a statutory system that provides benefits to injured workers quickly, without requiring the employee to take legal action. It also protects employers by preventing employees from filing suit against them, in most cases (we’ll address this below).
It is a “no fault” system, meaning you can access the benefits even if you may have contributed to the cause of the accident without meaning to (contributory negligence).
Most employers purchase workers’ compensation insurance to cover workers’ compensation obligations. That insurance pays the benefits the employer would otherwise owe the injured employee.
Who is covered by worker’s comp insurance?
Generally, most people who are employed should be covered by workers’ compensation in Colorado.
All public and private employers in Colorado, with limited exceptions, must provide workers’ compensation coverage for their employees if one or more full or part-time persons are employed, including family members.
A person hired to perform services for pay is presumed by law to be an employee. This includes all persons elected or appointed to public sector service and all persons appointed or hired by private employers for remuneration.
Certain employment situations may not be covered by workers’ comp. The following is a partial list of occupations and/or individuals exempt from mandatory coverage under the Workers’ Compensation Act:
Certain casual maintenance or repair work performed for a business for under $2,000 per calendar year.
Licensed real estate agents and brokers working on commission.
Any person who volunteers time or services for a ski area.
Certain business owners.
Certain domestic work, maintenance or repair work for a private homeowner that is not done full time.
Drivers under a lease agreement with a common or contract carrier.
Federal employees and Railroad employees (covered under federal laws).
Certain corporate officers and members of LLCs.
Source: Colorado.gov Insurance Requirements for Employers. This is not an exhaustive list.
Report your injury to your employer immediately or as soon as possible. If you are mentally and physically able, you must tell your employer within 4 days of the injury in Colorado.
If your injury is not life or limb threatening, you should choose a physician specified by your employer.
What your company must do after a workplace injury
When you are hurt on the job, the Colorado Department of Labor and Employment says that your company should investigate the accident immediately. All relevant facts should be gathered and ready to share with the insurance company upon request.
Colorado state law requires your employer to tell the insurance company about your injury within 10 days, regardless of how minor. This is done by the filing of an Employer’s First Report of Injury form.
This does not necessarily mean that the company admits to the facts being reported about the incident. It is simply a statement that the employee is making an injury claim. If your employer is questioning whether your injury is work related, this should be included on the first report form.
Timely filing of this form is important because the company’s insurance company cannot potentially pay you compensation benefits, or for your bills, if it does not know about the injury.
If your employer’s insurance company does not file the form in a timely manner, it can be penalized.
Enjuris tip: Remember that you are required to notify your employer in writing within 4 working days of your workplace accident. If you do not do so, you may still get benefits, but you could be penalized.
What injuries are covered under workers’ compensation in Colorado?
Workers’ comp is very valuable if you are injured, but getting full benefits can be tough.
With few exceptions, no matter who caused the accident, work-related injuries in Colorado are covered by worker’s compensation. The most common workers’ comp injuries are:
Your benefits can be reduced if any of the following circumstances occurred:
You were using drugs or alcohol at the time of the accident.
You willfully did not use a safety device.
You willfully did not obey a reasonable, written and posted safety rule.
Worker’s compensation benefits overview
In Colorado, you are entitled to have your authorized medical expenses covered. Also, workers’ compensation will provide some reimbursement of the wages you have lost. Major benefits are:
Temporary total disability (TTD): When you are temporarily but totally disabled and cannot work.
Temporary partial disability (TPD): When you return to work with modified job duties and reduced hours and wages.
Permanent partial disability (PPD): If you have suffered permanent loss of function of a body part or a body system, from the injury. The doctor who treats you will award a percentage of permanent impairment. Your benefit amounts will be based upon that.
Permanent total disability (PTD): When you are totally and permanently disabled due to your workplace injury. For PTD, the amount you receive is determined by several factors and is based on an impairment rating system.
So, your employer will take care of you... right?
Most people like to think well of the company they work for. They gave you a nice turkey at Thanksgiving, after all, right? So, you may think that your company will do its best to help you with your injury, and take care of your medical bills and family needs.
Don’t be too sure.
Your company may be a great place under normal conditions. But an expensive workplace accident case isn’t an example of ‘normal conditions.’
Don’t be shocked if your company is mostly concerned with protecting itself when you are hurt. Tweet this
Workers comp is insurance. And insurance premiums go up for a business after making claims.
The first concern of a business is with profits and losses. If the company is public, it also answers to shareholders who are very sensitive to investment returns and losses. Don’t be shocked if your company is mostly concerned with protecting itself when you are hurt.
Can I sue my employer in Colorado?
So far we have covered only workers’ compensation for getting benefits for your workplace injuries. But there are other options.
There are accident situations where you could sue for damages that were caused by your injuries.
Workers' compensation statutes in most states, including Colorado, limit a worker's remedies for work-related injuries; thus, workers' compensation coverage is referred to as the "exclusive remedy" available to an injured worker.
The exclusive remedy provision is considered strong in Colorado. According to the American Bar Association If a court wishes to allow a tort action against an employer (i.e., for sexual harassment), it will make findings that the injury is not covered by workers' compensation.
An employer who chooses not to obtain required coverage will not be protected by the "exclusive remedy" provision.
If your employer does not carry workers' compensation but is supposed to under Colorado law, you could sue your employer to gain compensation to help with your workplace injuries.
If your Colorado employer intentionally causes your injuries
While some states do not allow an employee to sue for intentionally causing your injuries, Colorado does allow you to take legal action against an employer. This applies for exceptionally egregious conduct by your employer. Some examples are:
If you were hurt because your employer failed to provide safety gear at a construction site, you may be able to file a personal injury lawsuit against your employer.
A company owner engages in a physical altercation with the employee or the employer is found to be grossly negligent in hiring an employee who caused assault or injury.
Dual capacity allows a worker to sue an employer when the employer has a second legal relationship/affiliation which has harmed the worker. For example:
The employer owns the property which has dangerous conditions that harmed the employee.
A company doctor causes harm to an employee.
The company manufactures a product for public sale that injures the worker.
Suing a third party
There may be cases where another party, such as the manufacturer of a machine used in the course of your work, may be liable for your injuries.
Employers will usually stay out of the case if you decide to sue a third party, but they may also join you in bringing legal action. (If your employer knew that the product was broken or not working correctly, you could also possibly sue your employer.)
Additionally, if you were burned by a toxic chemical in your employer’s plant, you may be able to file a toxic tort lawsuit against the manufacturer of the chemical.
Wrongful termination in Colorado
If you are fired after filing a worker's compensation claim, you may have basis for a lawsuit. Colorado follows the legal doctrine of "employment-at-will", which states that, unless otherwise required in a contract, an employer is not required to give advance notice of termination. Additionally, the employer is not required to give a reason for the firing.
However, there is an exception called Violation of Public Policy, which, among other exceptions, states that an employee cannot be terminated for filing a worker's compensation claim or bringing or threatening a lawsuit.
Bad faith lawsuits against workers' compensation insurers
Workers’ compensation insurance carriers in Colorado are obligated to investigate an employee's claim, or pay the benefits he or she is entitled to under state law. If insurance companies do not perform this duty, or mislead the employee in any way, they are considered to be acting in “bad faith” and can be sued for both economic (medical costs/lost wages) and non-economic (pain and suffering) damages.
Colorado allows courts, rather than state administrative agencies, to consider claims of workers' compensation bad faith. In Colorado, the insurance carrier is directly and primarily liable to the employee. This means you can sue the insurance company when it takes the following actions:
Misleads an injured worker seeking compensation after a workplace injury.
Makes a claim decision contrary to what their own investigation reveals.
Does not investigate a workers' compensation claim in a timely matter or intentionally delays payment of benefits.
Contradicts its own established claim practices.
Hides or manipulates evidence.
Tries to dictate the type of medical care provided to an injured worker by medical personnel.
Cuts off benefits in violation of Colorado workers' compensation law
A case often cited in bad faith lawsuits is the Colorado Supreme Court’s decision in Travelers Insurance Co. v. Savio in 1985. In that case, the court ruled that the state’s workers’ compensation laws do not preclude an employee from bringing a common law tort action against a worker’s compensation insurance carrier for bad faith.
The employee in the case, William Savio, had fallen from a ladder while working as a journeyman electrician for his employer. He injured his right ankle in the fall and his doctor could not determine whether or not he would ever be able to work as an electrician again.
Savio sought vocational rehabilitation and training, which he claimed that his employer's workers' compensation insurance company, Travelers Insurance Co., "delayed and denied … without a reasonable basis, and at the time of delay or denial knew that there was no reasonable basis for that delay or denial."
The Colorado Supreme Court concluded that the Workmen's Compensation Act did not bar Savio's common law action against Travelers for bad faith processing of his workers' compensation claim.
You may or may not need an attorney for your workers’ compensation claim
Remember that workers’ compensation can be useful, but the amounts can be quite low and you don’t get paid for your pain and suffering. It’s smart to talk to an attorney who knows personal injury law and workers’ compensation law for Colorado.
There are times you need a lawyer for a workers’ comp case, and times you don’t. If you are needing a lawyer for your claim, it’s important to have a good attorney who is experienced in workers’ comp to rely on. He or she knows that many larger employers have HR directors, risk managers and others to ensure the company pays as little as possible when a worker is hurt in the workplace.
Also, you can be sure that your employer has a workers’ compensation insurance company well-staffed with attorneys to help keep ‘costs down.’ That means paying you as small of a claim as possible.
Even if you don’t intend to bring a lawsuit, a workers' comp attorney can help you with your claim.