Compensability – Knowing the Difference Between Incident and Injury

Jessica Grimes successful obtained a dismissal of claims for benefits by arguing that simply because a claimant sought medical care for an “incident” at work does not mean that the claimant had an “injury” under the Workers’ Compensation Act.

The claimant alleged a cervical and low back injury occurring in September 2017 that involved an unwitnessed fall. He received treatment and ultimately was discharged after just two days, with no need for specific medical treatment or lost time. During one of the approved appointments, the claimant disclosed a pre-injury recommendation for a cervical fusion that he did not pursue.

Approximately a year later in 2018, the claimant presented for care of worsening low back and cervical pain without a specific cause to his primary care doctor. This treatment resulted in recommendations for physical therapy, diagnostic treatment, and a surgical consultation. Ten days later, before the MRI requested by the primary care doctor could be performed, the claimant alleged a second work injury to his cervical spine and low back, again not witnessed. The claimant alleged a new claim and entitlement to treatment which was identical in nature to that recommended by his primary care doctor prior to the reported incident.

The two claims were consolidated for purposes of hearing – the claimant’s argument was that his need for treatment was related to one claim, the other claim, or both. Respondents argued that the claimant’s current presentation (whether in 2017 or 2018) was actually a natural progression of a prior workers’ compensation claim from 2002.

With regard to the September 2017 claim, the Administrative Law Judge (ALJ) found persuasive that the claimant did not receive any formal medical treatment (i.e. recommendations for medication, physical therapy, etc.) and merely attended two appointments. Further, the claimant did not lose time from work. Thus, the ALJ adopted Jessica’s defensive theory that an “incident” is not a compensable “injury”—even when the claimant is evaluated by a provider. Regarding the 2018 claim, the ALJ found there was insufficient evidence to prove that the claimant sustained an acute injury or an aggravation of a preexisting condition because the character and nature of the claimant’s treatment post-incident was identical to that proposed ten days prior to the incident.

Smith v. Qwest Corporation & XL Specialty Insurance, W.C, No 5-084-933 & 5-085-312-001 (February 20, 2019)

Claim Handling Tip: Remember that there is a difference between an “incident” and an “injury” under the Act. This is a nuanced difference, but an important one in Colorado which should be fully evaluated by counsel and argued appropriately at hearing.

Would you like to know more? Contact Jessica Grimes at or 877-259-5693.


From the March 2019 Newsletter