Few areas of law change so quickly, or affect employers and insurers as much as workers’ compensation. With the rising cost of doing business, it is imperative that our clients have years of experience on their side. Pollart Miller LLC's attorneys have extensive experience representing employers and insurers in all facets of the workers’ compensation system.

Effective defense of workers’ compensation claims requires a commitment to being up-to-date on this frequently shifting area of law. We review the latest changes affecting our clients, and are experts, both in and out of the courtroom. Our attorneys include a former judge and attorneys who have authored workers’ compensation legislation and whose published opinions have shaped the law. We have decades of experience representing a broad spectrum of clients, including those in the airline, grocery, retail, manufacturing, transportation, health care, and entertainment industries.

We stress an aggressive approach to defending claims, and to claim prevention. We partner with our clients to establish protocols which necessarily reduce the prospect of claims occurring, and reduce expenses if the claim becomes subject to litigation. The experts in our workers’ compensation department provide comprehensive services to our clients.

Compensability

Is an injury sustained during a recreation activity or social outing compensable in Colorado?

Participation in the activity must be voluntary

The key issue in determining compensability for an employee’s injury sustained while participating in a recreational or social activity in Colorado is whether the employee’s participation in the activity was voluntary.  It may seem like it would be simple to determine whether an activity is voluntary, but there can be disputes over what behavior is really voluntary.  

Factors to indicate voluntary participation

An employee’s participation is clearly not voluntary if the activity is mandatory.  When management requires an employee to attend a specific event or the event is considered part of their job duties, this would be viewed as mandatory, not voluntary participation.  

However, even if the event is not mandatory, there are many factors that could indicate an employee’s participation was still not voluntary.  These could include positive incentives, such as wages for attending or being offered a promotion, bonus, or other incentive for attending, or negative incentives, such as repercussions for not attending or intimidating employees to attend.  Some other factors to consider are whether management organized the activity, whether the activity was during working hours, whether work was being done, whether the employer chose the location and date for the activity, whether the employer derived some benefit from the activity, a large percentage of employees participated in the activity, and the activity was for employees only.  Another factor that could make participation not voluntary is an employee’s feeling of duty to attend, i.e. if the employer initiated, organized, sponsored, and paid for the activity, then an employee could feel they should attend even if they do not want to attend.

Examples of voluntary and non-voluntary participation

There have been many cases litigated in Colorado to determine whether an employee’s participation in a recreational activity was voluntary.  Here are a few examples where the court has found an employee’s participation to be voluntary:

  • An employee’s participation in a hockey game while attending a mandatory business conference was voluntary because the game was during a break time and organized by employees.
  • An employee’s participation in a camping trip was voluntary because the camping trip was planned during breaks, employees paid to attend and provided their own gear, few employees attended, only one manager attended, and there were no negative consequences if an employee did not participate.  The employee’s participation was voluntary even though the employer and a manager donated food for the trip, the trip was advertised as a way for employees to get to know each other, and the trip was organized and planned by a manager.
  • An employee’s participation in a softball team was voluntary because he was free to play for another team or stop playing, the employer did not initiate the recreational activity, the employer did not financially sponsor the team, the employer did not provide transportation to the games, the employer did not pay the employee to play on the team or reimburse him for any expenses incurred by playing on the team, and the practices and games were during non-working hours.  The employee’s participation was voluntary even though the employer provided bats and balls for the team and the employer’s name was advertised on the team’s jerseys.

Below are a few cases where the court has held that the employee’s participation in the recreational activity was not voluntary:

  • An employee’s participation in a company’s bowling party was not voluntary because the party was during working hours; it was held to boost low employee morale; the supervisor chose the location; the employer initiated, organized, sponsored, and paid for the party; and the employer mandated attendance.
  • An employee’s participation in set-up of a company picnic was not voluntary because he thought he was required to volunteer for at least one event-planning committee, the committee met during working hours, the employee was paid during the time he planned the event, and the employer paid for the event.  The employee’s participation was not voluntary even though the employee was not being paid during the set-up of the picnic, the set-up occurred on his day off of work, and attendance at the picnic was not mandatory.
  • An employee’s participation in a golfing outing was not voluntary because his supervisor planned the outing, the employee was intimated by his supervisor and he felt he needed to attend to stay in favor with his supervisor to obtain a promotion, the employee came in on his day off to discuss his evaluation, and his evaluation and business were discussed during the outing. The employee’s participation was not voluntary even though the employer did not pay for the golf outing and the employee was off the clock at the time.

Conclusion

The determination compensability for an injury sustained during a recreational or social activity is whether participation in the activity is voluntary.  All of the facts surrounding the organizing, planning, and execution of an activity will factor into a court’s decision whether an injured employee’s participation was truly voluntary or not.  

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

Is an injury sustained in a parking lot compensable in Colorado?

Compensability of parking lot injuries in general

Injuries sustained in a parking lot are generally held compensable in Colorado.  This is because parking lots are normally considered part of the employer’s premises.  Parking lots are usually owned and maintained by the employer or they are considered provided by the employer as a fringe benefit to the employee.  However, there are a few factors that could make an injury sustained in a parking lot a deviation from employment, and not a compensable injury.  There are also some potential defenses to consider that can limit or reduce liability.

Designated parking

One factor to consider is whether an employer provides a designated parking lot or garage for employees.  If an employer pays for employees to park in a certain lot or provides parking at a reduced rate in a certain area, this is a designated area for the employee to park.  Injuries sustained by employees in this parking lot would generally be compensable.  If an employee chooses to park in a different lot than the one designated or provided by the employer, then any injuries they sustain in that other lot would generally not be compensable.

Deviation from course and scope of employment

If the employee is not simply walking from their car into work but instead detours in the parking lot for a personal activity, this could be a deviation and sever liability for the injury.  The employee would need to be engaging in an activity that is for the employee’s sole benefit at the time of the injury.  For example, some cases have held that an employee showing a co-worker a dance move or an employee changing the oil in his car are performing distinctly personal tasks and injuries sustained while performing these tasks in the parking lot were not compensable claims.  

Another deviation could be a deviation in route to accomplish a personal task.  For example, if the employee chose to walk across the street to get coffee before coming into work and because of this the employee was injured while taking a different route, the employee might be on a deviation.  The issue would be whether this deviation was reasonable under the personal comfort doctrine (discussed below) or if a more reasonable option existed, i.e. closer coffee shop.  This is a fact specific analysis that will depend on how far the deviation was, whether the deviation was reasonable, credibility of the employee, etc.

There are exceptions to this standard for the personal comfort doctrine.  The personal comfort doctrine considers that employees must tend to general necessities of life while at work, i.e. eating and restroom breaks.  An employee injured in the parking lot because they walked back to their car to grab their lunch would be compensable despite the fact that the employee getting lunch from their car is for the employee’s sole benefit.  The personal comfort doctrine generally only applies to necessities and would not extend to non-necessity items, like an employee’s ipod.

Investigation of Claim

Determination of compensability of an injury sustained in a parking lot depends solely on the exact facts of the case.  Therefore, it is extremely important to document the exact position of the employee at the time of the injury, where they were coming from, where they were going, why they were coming and going, and if they were in the area they should have been.

    Here are some key questions that need to be addressed during the initial investigation of this injury:

  • Are employees directed by the employer to park in a specific area?
  • Is parking provided in a specific location for free or a reduced rate by the employer while parking elsewhere would cost employees more money?
  • If the employer designated specific parking, did the employee park elsewhere?
  • If there is not designated parking but multiple options, did employee elect to park further away from work for a personal reason or for lower priced parking?
  • Was the employee heading directly from the parking lot into work or did they take another route to accomplish a work task or a personal task?
  • Why was the employee walking to or from the parking lot?  
  • If the employee was going to get something from their car, were they getting a personal item or a work-related item?

The questions above will help determine whether the employee was engaged in a deviation that is not covered by the personal comfort doctrine or whether they are performing a distinctly personal tasks for their sole benefit.  This could result in a viable defense to what was otherwise a compensable injury.

Potential Reduction in Liability

Respondents may also be able to limit or reduce their liability for an injury sustained in a parking lot if the parking lot is owned or maintained by a third-party and the injury is the result of that third-party’s negligence.  Examples include a third-party owner failing to repair potholes or defects that resulted in an employee tripping and falling or a third-party snow removal company failing to properly apply ice melt that resulted in an employee slipping and falling.  If the employer does not own and maintain the parking lot and the injury is the result of negligence on the part of a third-party, there is potential for a subrogation claim.  Respondents might still be liable for workers’ compensation benefits but they may be able to recoup at least a portion of the benefits they pay against the third-party.  This issue should be investigated right away because detailed documentation of the parking lot hazard will be essential to maintain the claim against the third-party.

Conclusion

The determination compensability for an injury sustained in a parking lot is fact specific.  Clear documentation and an initial through investigation of the facts will be crucial to successfully defend an injury if it involved a deviation or personal task.  

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

When is a mental claim by itself compensable in Colorado?

Compensability of mental claims

There is specific law in Colorado governing when a mental claim, i.e. anxiety, depression, etc., without a physical injury constitutes a compensable injury.  For a stand-alone mental injury to exist, there must be “a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.” C.R.S 8-41-301(2)(a).  Colorado law further clarifies that a workers’ usual experience includes disciplinary action, work evaluations, job transfers, lay-off, demotion, promotion, termination, or retirement.  A claim for a mental injury cannot be based in part on facts that are common to all fields of employment.

Examples of compensable and non-compensable mental claims

There have been many cases litigated in Colorado to determine whether an alleged traumatic event is outside a worker’s usual experience and would evoke significant symptoms of distress in another worker in similar circumstances.  Here are a few examples where the court has found an alleged traumatic event was a compensable mental claim:

  • A salesman’s claim for anxiety disorder and panic due to unreasonable travel demands, high sales quotas, intimidation tactics, un-uniform application of goals and policies, and singling out of claimant by management for treatment that was different from treatment given to other salespeople.
  • A vice-president’s suicide due to working repetitive 17 hours days with extensive travel, including flying between Japan and the US every two weeks, that caused extreme emotional distress, fatigue, and insomnia from jet lag.
  • An office worker’s claim of aggravation of bipolar disorder due to harassment and retaliation after testifying on behalf of a co-worker, who had brought sexual harassment suit against the employer.
  • A fireman’s claim for PTSD due to failing to resuscitate a small boy, who was well known to the fireman because the boy frequently played around the firehouse where the fireman was stationed.

Below are some cases where the court has held that an alleged traumatic event did not constitute a compensable claim:

  • A psychiatric nurse’s claim for depression and anxiety due to alleged patient abuse.
  • A retail manager’s claim for panic attacks resulting from stress due to increased responsibilities, a job transfer, performance issues, evaluations, and write-ups.
  • An executive’s claim for anxiety and depression due to poor job performance based on language barriers.
  • A secretary’s claims for depression and anxiety due to increased work load and death of a co-worker.

Conclusion

Therefore, for a claim for mental injury alone to be compensable, the injury must arise out of:

  1. A psychologically traumatic event
  2. The event is outside a worker’s usual experience
  3. The event would evoke significant symptoms of distress in another worker in similar circumstances
  4. The event does not arise out of normal employment events, like disciplinary actions, lay-offs, termination, etc.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

Temporary Disability

Permanent Partial Disability

Permanent Total Disability

Medical Benefits

Should housekeeping, lawn care, and snow removal services be paid for in Colorado?

Essential services must be medical in nature

For an essential service to be a compensable medical benefit, the requested service must be either medical in nature or incidental to obtaining such medical or nursing treatment. An essential service is “medical in nature” includes home services if reasonably needed to treat or cure and relieve the effects of the industrial injury. However, the essential services must directly treat the claimant’s physical condition and injury. It is the claimant’s burden to prove the essential services are reasonable and necessary to treat or cure and relieve the effects of the industrial injury and are to directly treat the injury.

Housekeeping, Lawn Care, and Snow Removal not medical

Services such as housekeeping, lawn care, and snow removal are not generally reasonable and necessary essential services. This is because these services are not necessary to treat or cure and relieve the claimant’s symptoms. Home essential services could be considered medically necessary if the care included bathing, changing bandages, administering medication, etc. The services could include some housekeeping; however, if the care is only to do household chores, it is not medically necessary. If a large portion of the care is to do housekeeping, the care may need to be evaluated to determine what costs should be paid by workers’ compensation and what portion of the services are related to the work injury.

Medical prescription for services

Even if a treating physician has written a prescription for the housekeeping, lawn care, and snow removal services, this does not make the services medical in nature. However, if a claimant is requesting essential services, a prescription from a treating physician is not required for a judge to find the services are medical in nature.

Conclusion

Housekeeping, lawn care, and snow removal are not generally considered a compensable medical benefit because these services are not medical in nature and not directly treating the claimant’s physical condition and injury.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

Wage Calculation

Should bonuses be included in an average weekly wage calculation in Colorado?

Wages in general

Wages could include earnings from the employer, possible earnings from concurrent employment, some bonuses, the cost of continuing health insurance, and certain fringe benefits. Bonuses are not a fringe benefit and it is a judge’s discretion to decide whether to include them in the calculation of an average weekly wage.

Inclusion of bonuses

If the claimant received bonus pay from the employer prior to the injury, discovery will need to be done to determine what the basis for the bonus pay. The bonus could be based on claimant’s sales or performance, a company profit sharing, an annual holiday bonus, etc. The reason for the bonus effects whether it should be included in the claimant’s average weekly wage calculation and how the calculation is done.

For bonuses to be considered wages, they must have a “reasonable, present day, cash equivalent value.” Also, the claimant must have access to the bonus on a day-to-day basis or an immediate expectation interest in receiving the benefit. It is the claimant’s burden to prove that the bonus should be included in the average weekly wage.

Some factors the court will consider are:

  • If the claimant were terminated at any time, would the claimant receive the amount of accrued bonus at that point or would the claimant receive the bonus when it is later issued?
  • Is the bonus guaranteed to be paid by the employer or could the employer choose to not pay any bonus?
  • Is the bonus based on performance in general and discretionary or is the bonus based on set goals that the claimant was on target to meet at the time of the injury?
  • Does the amount of the bonus greatly fluctuate or is it a set amount based on certain criteria?
  • What did the claimant earn as a bonus during other time periods?

If the bonus was not guaranteed, fluctuated, and there was no real expectation interest of claimant receiving the bonus, then it probably should not be voluntarily included. However, if the claimant was guaranteed the bonus, the claimant always earns this bonus, and the employer must pay the bonus if the claimant meets certain goals, the average weekly wage may need to be increased for the bonus.

Calculation of average weekly wage with bonus

A judge has wide discretion in determining the manner to calculate an average weekly wage. Respondents should argue that if a bonus is included in an average weekly wage, it should be included based on the period it was earned. For example, if a bonus is awarded quarterly, then the bonus would be divided by 13 weeks before being added to the average weekly wage or if the bonus is awarded annually, then the bonus should be divided by 52 weeks before being added to the average weekly wage. This ensures that the bonus is fairly distributed over the time period it was earned and an entire annual bonus is not accidently included in the possible 12 weeks of wages that were used to calculate the average weekly wage.

Conclusion

If the claimant’s earnings prior to the injury included bonus pay, the average weekly wage calculation should not automatically include the bonus pay. Discovery will need to be done to determine why the bonus was paid, if the bonus was discretionary, and whether the claimant had access to this pay or a reasonable expectation interest of receiving this bonus pay.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

Should vacation and sick pay be included in an average weekly wage calculation in Colorado?

Wages in general

Wages could include earnings from the employer, possible earnings from concurrent employment, some bonuses, the cost of continuing health insurance, and certain fringe benefits. Vacation and sick leave can be considered earnings in some cases depending on the employer’s policies.

Inclusion of vacation and sick pay

A claimant’s vacation or sick leave should not be included in the calculation of average weekly wage if it is subject to forfeiture and not a cash equivalent. For the leave to be considered wages, they must have a “reasonable, present day, cash equivalent value.” On the contrary, average weekly wage would include vacation and sick leave if there is no cap or limit on it, it does not expire, and it has a cash equivalent.

Some factors the court will consider when determine whether the vacation and sick leave pay should be included in the average weekly wage include:

  • If the claimant were terminated at any time, would the claimant be paid for any vacation or sick leave that the claimant has accrued?
  • Does the vacation or sick leave expire or can the claimant roll over 100% every year?
  • If the claimant does not use the vacation or sick leave, is it paid out or is it forfeited?
  • Can the claimant request payment for the vacation or sick leave at any time?

If the vacation or sick leave has no limit, never expires, is not forfeited, and is paid to the claimant upon termination or at their request, then it should be included in the average weekly wage at the same rate it is accrued. For example, if a claimant earns 2 hours of vacation and 1 hour of sick leave per week, then the claimant’s average weekly wage should be increased by 3 hours of pay. However, if the vacation or sick leave is limited, expires each year, and is not paid upon termination or upon request, then the average weekly wage should not be increased for earning vacation and sick pay.

Conclusion

If the claimant accrues vacation or sick pay per pay period, then discovery needs to be done to determine if the average weekly wage should be increased to account for this fringe benefits. However, the average weekly wage should only be increased if the vacation or sick pay has no limit, never expires, is not forfeited, and is paid to the claimant upon termination or at their request.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

What constitutes a fringe benefit in Colorado?

Wages in general

Wages could include earnings from the employer, possible earnings from concurrent employment, some bonuses, the cost of continuing health insurance, and certain fringe benefits. Fringe benefits can include board, rent, housing, and lodging but the claimant must have received these benefits from the employer prior to the injury. A fringe benefit can be considered wages if the benefit has a “reasonable, present-day, cash equivalent value,” and the claimant has reasonable access to the benefit on a day-to-day basis or has an expectation interest in receiving the benefit under certain reasonable circumstances.

Value of fringe benefits

If the claimant received fringe benefits from the employer prior to the injury and the employer does not continue to provide the benefits after the injury, the claimant is most likely entitled to the “reasonable value” of these benefits.  The reasonable value of housing and board may be determined by many different factors. These could include replacement costs, pier diem rates, the employer’s costs, etc. The costs need to be based on the location where the services were provided though and not where the claimant is now located. For example, if the employer was providing housing to the claimant in Alaska, the claimant would be compensated for this amount and not the cost of housing in Denver. It is the claimant’s burden to prove that fringe benefits should be included in the average weekly wage and to provide a factual basis for calculating the value of the fringe benefits.

Conclusion

If the claimant was provided housing or other fringe benefits by the employer at the time of the injury and the employer stops providing this fringe benefit after the injury, the claimant may be entitled to an increase in average weekly wage for the reasonable value of the fringe benefits. Discovery will need to be done to determine what fringe benefits were provided and the reasonable value of these benefits.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

When should costs for health insurance should be added to the average weekly wage in Colorado?

Wages in general

Wages could include earnings from the employer, possible earnings from concurrent employment, some bonuses, the cost of continuing health insurance, and certain fringe benefits.

Inclusion of the cost of health insurance

If the claimant was enrolled in health insurance through the employer at the time of the injury, the claimant’s average weekly wage must include any additional costs the claimant incurs in continuing that coverage. If the employer continues to pay the costs for the claimant’s health insurance and the claimant does not incur any additional costs, then the average weekly wage should not be increased. However, if the employer stops paying premiums, the average weekly wage must be increased to cover the additional cost to the claimant.

If the claimant is terminated by the employer, the average weekly wage must be increased by the cost of continuing the employer’s health insurance or the cost of conversion to a similar or lesser insurance plan. This generally means that the average weekly wage is increased for the cost of COBRA. The equivalent COBRA plan should be for the same family members and same coverage as the claimant previously had with the employer, i.e. medical only for claimant only or medical, dental, and vision for claimant, spouse, and children.

The claimant is not required to actually elect the COBRA coverage and is entitled to the average weekly wage increase even if COBRA coverage is declined. However, if the claimant instead acquires health insurance through a subsequent employer or their spouse’s employer at a lower rate, the average weekly wage should be increased for this lower cost of health insurance, not increased to the higher COBRA rate. Likewise, if Claimant later becomes Medicare eligible, the average weekly wage should be modified for the cost of Medicare, not COBRA.

Conclusion

In most case, a claimant is usually only eligible for an increase in average weekly wage for the cost of the continuation of health insurance after termination. If a claimant is terminated following a work injury, a review should be done to see if the claimant was enrolled in health insurance and if the average weekly wage needs to be adjusted.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

Admissions and Filings

Other Issues

Should benefits in Colorado be reduced for injuries resulting from a safety rule violation?

Reduction for violation of safety rules in general

The Colorado Workers’ Compensation Act provides that compensation to claimants shall be reduced by 50% if the injury is the result of the claimant’s willful failure to obey a reasonable safety rule of the employer. Respondents are allowed to assert a safety rule violation when admitting for a compensable injury if they have a good faith basis for asserting the violation. If claimant challenges the assertion, it is Respondents burden to prove the claimant willfully violated the safety rule.

Proving a violation of safety rules

A safety rule violation can be considered “willful” if the claimant knows of the rule and deliberately performs the forbidden conduct. There is no requirement, however, that the respondent prove the claimant had the rule in mind and decided to break it. Willful conduct may be proven by circumstantial evidence including evidence of frequent warnings, the obviousness of the risk, and the extent of deliberation evidenced by claimant’s conduct.

A written safety rule is not required. Oral warnings and instructions have been held as sufficient in some cases. However, written safety rule violations are generally easier to prove because there is more proof that the claimant knew the rule. Also, when the rule is written, there may be training, manuals, or acknowledgements signed by the claimant showing they were aware of the rule. With an oral rule, this type of documentation is usually not present.

Likewise, a claimant may also be held responsible for violating a common sense safety rule. If a claimant acted completely careless or indifferent in their actions, there may be an argument that they violated a common sense safety rule. For example, a common sense safety rule could include keeping your hands out of a saw.

The employer also needs to consistently enforce the safety rule. If the safety rule is not enforced and the employer ignores constant violations, then the court could find the employer permitted the conduct.

Conclusion

If an injury is the result of a safety rule violation, through documentation and discovery needs to be completed. All documents proving training and receipt of the rules by the claimant need to be obtained from the employer. Statements also need to be obtained from the claimant and the management about the safety rule, the training, and the enforcement.

For further questions on this topic, please contact Attorney Ilene Feldmeier directly at 303-414-5425.

Attorneys Practicing in Workers' Compensation:


Pollart Miller LLC Newsletter Subscription
Email:
For Email Marketing you can trust
 

Contact Information

Pollart Miller LLC
5700 South Quebec Street
Suite 200
Greenwood Village, CO 80111
Contact Us

Toll Free (877) 259-5693
Facsimile (720) 488-9587