The workers’ compensation system in Colorado is generically referred to as a “no-fault” system. This is because the element of fault is not included in the determination of whether an individual sustained a compensable work injury. Generally, if an injury arises out of, and in the course of, employment an injured worker is eligible for 100% of available workers’ compensation benefits regardless of the cause of the injury. However, there are several instances where the insurance company can reduce the amount of non-medical benefits payable to an injured worker by 50% where the element of fault is introduced into the system.
An initial example is where a safety device is provided by the employer and the injury is caused by the employee’s failure to use the safety device. An example we see often is safety goggles. Where an employee, who intentionally takes off his/her safety googles while operating a tile cutter, sustains a work-related injury to his/her eye, the law may provide the insurance company the ability to reduce an injured workers’ non-medical benefits by 50%.
Along these same lines, where an injury results from an employee’s willful failure to obey a reasonable rule adopted by the employer for the safety of the employee, a 50% reduction in non-medical benefits may be taken by the insurance company. An example we frequently see involves rules that limit lifting, or require multiple co-workers while lifting heavier weights. To prevail in reducing non-medical benefits, the insurance company must show that the failure by the employee was “willful” and that the safety rule violation actually caused the injury.
The issue of a preexisting injury to the same body party injured while working is a common theme in workers’ compensation litigation. The law provides that an employer is liable for an injury that is caused, aggravated or accelerated by the work exposure. However, what happens when a worker with a preexisting back condition requiring permanent work restrictions obtains a new job with an employer and doesn’t inform the employer of his preexisting back condition? The Workers’ Compensation Act provides for a 50% reduction in non-medical benefits where an 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 employee’s physical inability. This offset has many layers and is usually subject to conflicting evidence. Again, the employee has to willfully mislead the employer which usually requires a representation that he can do a job in the face of information regarding the specific job requirements.
There can, also, be a reduction in non-medical benefits because of employee intoxication. An injured worker can lose 50% of his/her non-medical benefits if he/she was injured as a result of the presence in the worker’s system, during working hours, of a controlled substance without a prescription or a blood alcohol level over 0.1%. Here, there is no element of willful behavior and if duplicate samples are kept, there is a rebuttable presumption that the injury was caused by the intoxication.
With all these reductions, there are questions of fact and significant issues regarding the necessary evidence and burdens of proof that play an important role in whether the insurance company can properly assert the 50% offset so consult with an attorney. Additionally, nothing in the law summarized above allows for the insurance company to deny compensability, or reduce medical benefits, as a result of a safety device/safety rule/willful misrepresentation/intoxication defense.
If you or a family member have been injured in a work related accident and need assistance in addressing any of the above issues, or otherwise need representation in your workers’ compensation claim, please contact The Sawaya Law Firm at (303) GOOD-LAW. We will be happy to speak with you to see if we can help.