When a Colorado employee is injured while acting within the course and scope of his or her employment and is, the employee must notify his or her employer. The employer then provides notice of the injury to the insurance carrier. If the employee misses more than three days from work, the insurance carrier must issue either an admission of liability or a notice of contest.
A notice of contest is a denial of benefits and may require the employee to submit additional information. Even a determination that the employee is eligible for temporary or permanent disability benefits is not necessarily final; the employer may still seek to have benefits terminated or modified in the future.
Termination of Temporary Disability Benefits
Temporary disability benefits can be terminated by the insurance company for several reasons.
The employer or employer’s insurer selects the authorized treating physician (” ATP“), who is paid by the insurance carrier. If the employer has a qualified on-site health care facility, the employer may designate the entire facility as the ATP. The employee also has the ability to request a different treating doctor, but there are time restrictions governing this right. It usually has to be done within 90 days of the injury and before the injured worker reaches maximum medical improvement.
The various grounds for terminating temporary disability benefits are listed below.
If an ATP issues a report stating that the employee has reached maximum medical improvement (MMI), temporary benefits will terminate. This is true even if the employee cannot return to work. However, if the employee is still suffering from work-related injuries, he or she may be eligible for permanent partial or total disability benefits.
Ability to Return to Regular Employment
The ATP may also issue a report stating that the employee can return to his or her regular position, in which case the employee is no longer eligible for temporary benefits. Eligibility will terminate even if the employee’s position with the employer is no longer available.
Actual Return to Employment
Temporary benefits will also terminate if the employee returns to work at the pre-injury wages. Temporary partial disability benefits may be available if the employee returns to work at a lower wage.
Offer of Modified Employment
The employer may provide the employee with an offer of modified employment, along with a statement issued by an ATP that the offered work is within the employee’s physical restrictions. In most cases, the offer must be in writing. The employee then has three business days in which to return to work, after which time temporary benefits will terminate.
If the employee, having been advised that a failure to appear will result in suspension of benefits, nevertheless fails to appear at a scheduled medical appointment with an ATP, temporary benefits can terminate.
Termination for Fault
The employee’s right to temporary benefits will be revoked if the employee is terminated for fault. This means that if the workers wage loss is the result of termination for which he is responsible, the right to temporary disability benefits end. There is considerable controversy about what constitutes termination for fault. Sometimes, after an employee is injured, the employer will terminated him for something that occurred 6 months before the injury. This is obviously just an excused to get rid of an injured work without having to pay him for his lost wages. Cases like this frequently go to hearing.
If the employee’s injury is caused by the failure to follow an employer’s safety rule, temporary benefits can be reduced by 50 percent. The insurance carrier does not need to go to hearing for an order allowing it to take this reduction. If the employee contests this reduction, he can set it for hearing where it will be the respondent’s burden to prove that the employee violated a safety rule. It is considered strange by most claimants’ attorneys that the respondents can take a reduction for a safety rule violation but if taken to hearing, it is their burden to prove the violation took place.
These criteria apply to claims arising after July 1, 1991 and vary slightly from prior conditions for termination.
Reduction in Permanent Disability and Death Benefits
Permanent total disability benefits are paid at a rate of 66 2/3 percent of the pre-injury wage, up to a set maximum, for the life of the injured worker. These benefits are subject to a reduction for social security disability, retirement and survivor benefits paid to the worker or his dependents. The employee may be subject to a 50 percent reduction in benefits for the following:
If the employee willfully failed either to use employer-provided safety devices or obey any reasonable safety rule
If the employee misled the employer regarding the employee’s physical ability to perform the job and was thereafter injured as a result of such physical inability
If it is shown that intoxication by alcohol or illegal drugs was the cause the worker’s injury
Death benefits are paid to dependant spouses for life or until remarriage.
Injured workers may also have legal claims against third parties. For example, an employee cannot sue his employer for negligence that causes an injury. However, if a third party, not the employer or a co-employee, causes the injury, the injured worker may be able to sue the third party in a negligence suit. In that case, the employer and workers compensation insurance carrier can join in the suit to recover what they have paid in benefits from the third party. A workers’ compensation attorney can help evaluate any potential negligence claims and also help protect the injured worker’s financial interests. Concerns about income and financial stability can be overwhelming at a time when the need to focus on healing and minimizing pain is critical. A skilled lawyer can advise injured workers regarding their rights to compensation.