Colorado Workers Compensation Cases

The Colorado Supreme Court settles the issue of COBRA and average weekly wage.  Injured workers are entitled to an increase in their average weekly wage when they lose their insurance even if they don’t purchase the replacement insurance.

ICAO v. Ray, No. 05SC652

Prior to 2003, it was generally held that an injured worker’s average weekly wage was increased when he lost his insurance benefits as a result of not being able to work.  However, in Midboe v. Industrial Claim Appeals Office, 88 P.3d 642 (Colo.  App. 2003), the Colorado Court of Appeals ruled that the injured worker has to actually purchase replacement insurance in order for his average weekly wage and his temporary total disability to be increased.

This was seen by many to be an aberration and a real detriment to injured workers.  If an injured worker is unable to work and is only receiving two-thirds of his average weekly wage, how can he or she afford to purchase insurance?  Midboe was not appealed; however, several other cases followed that did go up to the Court of Appeals.  Three cases, ICAO v. Ray, ICAO v. Marsh and ICAO vs. Ashmore were consolidated and recently decided by the Colorado Supreme Court.
 
The Supreme Court ruled that the injured worker does not have to purchase replacement insurance in order to have the costs benefit added to his average weekly wage.  This means that the costs of lost insurance will be factored into the claimant’s average weekly wage.  In many cases, this will result in increase in temporary and permanent impairment benefits.

Termination because a contract expires is not "termination for cause" and does not end eligibility for temporary total disability benefits

James Judd vs. Antarctic Support Services, W.C. 4-457-361.

Mr. Judd, a mechanic, had a series of 7-month contracts working for his employer at the South Pole. He was injured during one of his contracts but continued to work until the end of that contract, whereupon he flew back to the United States for treatment of his injury. He returned and completed another contract and would have returned, but his injury required surgery and he was unable to meet the physical qualifications of the job. Mr. Judd sought temporary total disability benefits.

The employer argued that Mr. Judd was responsible for his own termination because he knew the job would end after 7 months when he signed the contract. Therefore, he was not entitled to temporary disability benefits pursuant to C.R.S. §8-42-103(1)(g) which holds that if a worker is responsible for his own termination, he cannot receive temporary total disability benefits. Mr. Eley represented Mr. Judd at hearing on the issue. The judge ruled in Mr. Judd's favor on the grounds that it was not Mr. Judd's fault that he was terminated.

The respondents appealed the matter to the Industrial Claims Appeals Office. The office ruled that "termination for cause" as defined in the workers compensation act, requires a "voluntary act" by the employee. In Mr. Judd's case, he had no choice on how long his contract would last. He would have returned to his job had he been able to. Therefore, the insurance carrier was ordered to pay Mr. Judd his temporary benefits for his lost wages.

Colorado supreme court rules that resigning or being terminated for cause does not forever bar an injured worker from receiving temporary disability benefits

Anderson v. Longmont Toyota, (Colo., Dec. 6, 2004)

On December 6, 2004, the Colorado Supreme Court issued its decision in Anderson v. Longmont Toyota and ruled that termination for cause, or even resignation, does not bar an injured worker from receiving temporary disability benefits (wage loss benefits) when the injured worker’s condition worsens and renders him unable to work.

The decision was a reversal of the Colorado Court of Appeals decision in the same case which interpreted the application of §8-42-105(4) C.R.S. That section of the Colorado Workers Compensation Act states:

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.

The Court of Appeals had previously ruled that this section of the Act “is to be construed as a permanent bar to receipt of temporary disability benefits when a claimant is responsible for his or her separation from employment and the separation is for causes within the employee's control, but unrelated to the industrial injury.” Longmont Toyota v. Industrial Claims Appeals Office, 85 P.3^rd 548 (Colo. App. 2003) at 551.

If the Court of Appeals decision stood it would have meant that an injured worker who resigns his employment would never be able to receive lost wages if his condition became worse, even if he had surgery. Indeed, these were the facts in Longmont Toyota. the claimant was injured while working for Longmont Toyota and later resigned his job and found employment elsewhere. Later, his condition worsened and he was unable to continue his employment. He applied for temporary total disability benefits but was denied because he had resigned from his previous employment.

The Supreme Court ruled that when an injured worker is terminated for cause or resigns employment, he is not entitled to temporary disability benefits. However, if the worker’s condition worsens and renders him unable to work, he can then be eligible for temporary disability benefits regardless of why he left work with his previous employer.

The Supreme Court’s decision was hailed as a victory for injured workers. If the lower court’s decision had not been overturned, injured workers would be at least hesitant to leave their employment for fear that their condition would worsen and they would then be ineligible to receive wage-loss benefits should they be unable to work.

Call the Eley Law Firm today at 866.458.6360 for a free case evaluation from a workers compensation attorney. You may also e-mail us or fill out the form on the Contact Us page of this website, and a representative from the office will be in touch with you shortly. We look forward to hearing from you and helping with your workers comp case!