Frequently Asked Questions about Workmen’s Compensation
(Note: the following frequently asked questions about the Workers Comp system and answers provide generalized comment and information on the law and procedures in Colorado and may not apply in all fact situations. They are not a substitute for consultation with an experienced lawyer.)
1. Can I receive benefits under Workers Compensation?
You may receive Workers Compensation benefits if you are injured in the course and scope of your employment. It doesn’t matter how the accident happened, even if it is your fault unless you have clearly gone outside the scope of your job.
2. Are there rules regarding notifying the employer of an Injury?
There are many rules that affect a worker’s case. You are required to report an injury to your employer, in writing, within 4 days of the injury, or risk loss of benefits. The statute of limitations for filing a claim for benefits is two (2) years and you should respect this limit. However, in some special circumstances, the time period may be extended. For example, in a case where a worker is unaware immediately that he has been injured by his job, the limitation period may be extended.
In any event, notify the employer or supervisor as soon as you are aware of an on-the-job injury. You should also obtain the names and contact information of any witnesses to the accident in case your claim is challenged.
3. What medical benefits am I entitled to?
If injured in the scope of your employment, you are entitled to 100% coverage of your reasonable and necessary medical care, related to your on-the-job injury, without co-pays or limits, until you reach maximum medical improvement (MMI). If you are determined to be Permanently Totally Disabled, medical care continues.
4. Can I choose my own treating physician?
Generally, No. The employer has the right to name the initial treating physician, another reason why you need to notify the employer of your injury as soon as possible. In certain cases, such as an emergency or where the employer fails to name a physician, you can seek your own medical care. However, the employer or its insurer might refuse to pay for unauthorized medical care, so you should beware in this circumstance.
5. What type of temporary income benefits am I entitled to for my work-related injury?
A. Temporary Total Disability (TTD)
Temporary Total Disability generally is payable when, due to your injury, you are unable to perform your usual job while you are undergoing medical treatment unless your employer provides “light duty” work which your treating physician says you can perform. Initially, you do not receive temporary benefits for the first three days of disability, but after you are disabled for ten days, you are reimbursed for the first three days.
TTD is paid at the rate of two-thirds of your average weekly earnings, to a maximum amount that changes yearly.
You are not entitled to TTD if your employer provides medically approved light duty work at your normal average weekly wage. Caution: if you unreasonably refuse an offer of light duty, your employer may cut off your disability payments.
B. Temporary Partial Disability (TPD)
If you are able to work part-time, or at a lower rate of pay while you are treating, you are eligible for Temporary Partial Disability (TPD) payable at the rate of two-thirds of the money you have lost (the difference between what you make now and what you made before).
6. What permanent benefits are available to an injured worker?
A. Permanent Partial Disability (PPD)
Permanent partial disability is only determined after you have become medically permanent and stationary (reached maximum medical improvement or MMI) and are able to return to some form of work, even if it is not your customary occupation.
When your treating physician determines that you are at MMI, and believes that you have sustained some permanent physical impairment, he will arrange for you to receive an impairment rating under the Colorado statutory system.
The impairment rating will be converted to a monetary sum under formulas and charts within the Workers Compensation statute. This money (PPD) is then paid to you over time, bi-weekly, unless you request a lump sum payout. Lump sum payouts are subject to a discount for early payment using a 4% discount factor.
There is a cap on the total of the PPD and TTD/TPD paid to a worker of $60,000 for impairment ratings of 25% whole person or less, and $120,000 above 25%.
B. Permanent Total Disability (PTD)
An award of Permanent Total Disability is rare as it must be proven that you are incapable earning any wages at all. Certain conditions such as the loss of use of both arms or both legs or the loss of use of both eyes are presumed to be PTD. PTD is paid at the temporary disability rate for life, or until you are is no longer so impaired and are able to return to work.
C. Death Benefits
Death benefits are paid to the dependents of a worker who dies as a result of the work-related injuries. The calculation of death benefits is not covered here.
For injuries after 7/1/07, if you are seriously and permanently disfigured in areas of the body normally exposed to public view, you may receive compensation, at the discretion of an Administrative Law Judge, of up to $4,000, and up to $8,000 if you sustained disfigurement in the form of amputations, extensive facial scarring, or extensive body scarring or burns. These figures increase somewhat annually since 2007.
7. Can I appeal the impairment rating given by my treating physician?
Yes, there is a procedure for contesting the impairment rating by obtaining a Division Of Workers Compensation Independent Medical Examination. The exam must be arranged within a short period of time of obtaining the initial rating. The use of this procedure is not without risk, however, and an experienced attorney should review your rating, compensation file and medical file before this procedure is used.
8. Can I sue my employer for my injuries?
The workers’ compensation laws were created to encourage employers to carry insurance on their employees for injuries on the job. The trade-off given to the employer is that if it carries workers compensation insurance, it is immune from suit for injuries sustained by its employees. This immunity also extends to co-workers. There are some narrow exceptions for intentional, willful types of conduct by an employer resulting in injury.
9. What is a “Third Party” claim?
A typical workers compensation case consists of two parties. The injured worker and the employer. Workers Compensation is a “no fault” system which means that it does not matter how you got hurt at work so long as you were hurt at in the course of your job. However, if you are injured through the negligence of a “third party” (someone other then your employer and co-workers or yourself), then you may still have a claim against that third party based on that party’s fault. If the other party has caused you injury and caused your employer to have to pay for your medical care or pay you benefits, then the employer has also been damaged by the third party and also has a claim against that other person or entity.
For example, if you have an accident with another vehicle through the negligence of the driver of that other vehicle while you are working, you are entitled to workers compensation benefits. However, since you are also injured through the negligence of another driver who is not employed by your employer, (a “third party”), you and your employer may make a claim against that other driver. If that other driver is also driving in the course of her employment and he is working for a company, then you and your employer also have a claim against the company which employs the other driver.
In this case, the workers’ compensation case and the “third party” case are separate. The “third party” case is handled in civil court just like every other car accident case. But you must inform the Workers compensation insurance carrier if you believe that you have a third party claim.
While you can waive your rights under workers compensation and pursue the claim strictly as a negligence case, you would be giving up of the benefits which you could have through the workers’ compensation claim such as temporary disability and medical benefits. In most cases, it is preferable to take the workers’ compensation benefits while developing the negligence case.
The employer does, however, have a lien upon the third party case for the disability benefits paid to you. Therefore, the pursuit of the third party must generally include the participation of the employer who will want reimbursement of its lien. Usually, a deal is worked out between the injured worker and the employer to make it worthwhile for both parties to pursue the third-party defendant.
However, these third-party lien cases can be very complex legally, and the advice of counsel is essential in obtaining a proper result.