It’s an unfortunate reality: workplace injuries happen despite all your best efforts to stay safe on the job. An injury sustained in one’s workplace can be devastating; in the wake of such an accident, the injured party might find him/herself coping with both the pain of a physical injury and the stress of potential lost work and, ultimately, lost wages.
Fortunately, workers’ compensation insurance exists to ensure that financial hardship doesn’t cause added pain for an individual who is recovering from a workplace injury.
The State of Colorado requires all public and private employers, with limited exceptions, to provide workers’ compensation coverage for their employees if they employ one or more full or part-time employees, including family members.
Navigating the waters of workers’ compensation can be challenging in the best of situations and can seem near impossible when a particularly devastating injury, or a denied claim, makes the water even choppier.
The good news is the attorneys in Robinson & Henry, P.C.’s disability practice can help you get to calmer seas. During an initial consultation, we can answer your questions and talk about what to expect from the process as it relates to your unique situation. We’ve also compiled the information in this guide, which includes definitions to common terms, answers to frequently asked questions and tips for filing your claim, to help you get started with setting your course.
Workers’ Compensation: Workers’ compensation is a form of insurance that Colorado employers must provide for their employees. If an employee is injured on the job, or develops an occupational disease, workers’ compensation insurance pays for any medical expenses the employee incurs as a result of that injury or illness. Workers’ compensation insurance also pays for partial wage replacement when a sick or injured worker is unable to work and, in some cases, it may also provide permanent impairment benefits for those who qualify.
Temporary Disability: Temporary disability benefits become available when an employee is temporarily unable to work due an injury or illness sustained in the workplace. There are two types of temporary disability: temporary partial disability and temporary total disability.
Temporary total disability applies when a sick or injured worker is temporarily but totally disabled and unable to earn wages.
Temporary partial disability applies when a sick or injured worker:
- returns to work before receiving what is called maximum medical improvement (see definition below);
- is not released to usual duties or returns to modified duty with reduced wages or hours; or
- is earning less than the average weekly wage.
Permanent Partial Disability: A permanent partial disability is a permanent loss of function to a body part or body system. This is broken down into two categories: scheduled impairment and whole person impairment.
- Scheduled Impairment: Loss of function affecting the toes, feet, legs, fingers, hands, arms, eyes, vision or hearing. Compensation is based on a schedule of values, defined by the State of Colorado, related to each body part.
- Whole Person Impairment: Also called Non-Scheduled Impairment. Loss of function affecting a body part or system not included on the list of scheduled impairments.
Permanent Total Disability: Permanent total disability benefits become available when a sick or injured worker’s doctor declares that the worker is no longer able to work in any capacity due to a permanent and total disability.
Maximum Medical Improvement: When an injured worker has reached a state where his or her medical condition is stable and no additional treatment can further improve the condition, the treating physician will declare that the patient has reached maximum medical improvement. It can mean that the individual has fully recovered or that his/her medical condition has stabilized to the point that no major change or improvement can be expected.
Answered! Frequently Asked Questions About Workers’ Compensation
Question: I got hurt at work, but the accident was my fault. Does that make me ineligible to receive workers’ compensation benefits?
Answer: Not necessarily.
First, it’s important to understand that, even though you may feel like the accident was your fault or like you could have prevented it, workplace accidents are typically a result of errors on the part of both the employee and the employer. In short, it’s highly unlikely that you are entirely to blame for your accident.
Workers’ compensation in Colorado is a no-fault system. The system was designed this way, in part, so employees wouldn’t find themselves in the position of having to prove fault or liability in the event of a workplace accident. On the part of the employer, a no-fault system ensures that the employer won’t be sued by an employee who was injured on the job.
All of that said, there are some exceptions. Your claim could be denied or disputed and/or your benefits reduced in one of the following scenarios:
- If you violated an official company workplace safety rule;
- If you were under the influence of drugs or alcohol at the time of the accident or
- If the injury was self-inflicted.
Other exceptions may apply. The best way to know if there might be challenges to your claim as a result of how, or under what circumstances, an accident happened is to talk to a workers’ compensation attorney.
Question: How do I get started with a workers’ compensation claim?
Answer: The first two things you should do following a workplace accident are seek medical attention and inform your employer.
You have four working days from when the accident occurred to inform your employer in writing about your accident. That written statement should include information about when, where and how the accident occurred as well as a brief description of the resulting injury.
Your employer then has 10 days to submit a report of the injury to the insurer, formally called the Employer’s First Report of Injury.
In the event that your injury happened over a period of time, like in the case of carpal tunnel syndrome, then you should report it to your employer as soon as you realize you have a medical condition that was caused by your job.
Question: Can I receive treatment from my own doctor, or a doctor of my choosing, when seeking medical attention for a workplace illness or injury?
Answer: It depends.
Before seeking medical attention (unless it’s an emergency) ask your employer if they require treatment from a specific doctor or list of doctors. If the answer is yes, you should seek treatment from that doctor or a doctor on that list. That doctor then becomes your authorized treating physician for the purposes of this injury.
If, in that scenario, you choose to instead seek treatment from a doctor not on the list provided by your employer, you could end up paying out of pocket for your medical costs, even if you have health insurance.
If your employer doesn’t specify which doctor you should see, then you may seek treatment from a medical provider of your choice.
Question: How long will it take for my claim to be approved?
Answer: The insurer has 20 days from the date on the Employer’s First Report of Injury to provide you with their decision, in writing, to approve or deny your claim. The decision will come as either an Admission of Liability (approval) or a Notice of Contest (denial).
Question: My claim was denied. What do I do now?
Answer: The first thing you should do is contact the insurer to learn more about why they denied the claim. Their answer will help you determine what your next step should be. In some cases, the dispute may be easily resolved by clearing up a clerical error or submitting additional information.
If, once you learn more about the reason for your claim denial, you believe your claim has been incorrectly denied and there doesn’t appear to be an option for easy resolution, you may want to appeal the decision.
In Colorado, you must file an Application for Hearing within 45 days of the date of mailing on the Notice of Contest. There should be information on your Notice of Contest regarding deadlines for filing appeals and who to contact for information about mediation or a hearing. You can also contact the Colorado Division of Workers’ Compensation directly.
Ultimately, the appeal process can be lengthy and complicated, which is why you might want to hire a workers’ compensation attorney.
At your initial appeal hearing, you’ll submit evidence relating to your workers’ compensation claim, such as medical records, the results from a second medical examination and/or a time sheet showing that you were working at the time of the injury.
Question: Will I qualify for any wage replacement benefits?
Answer: You may be eligible for temporary disability benefits if you lose more than three shifts or three days of work due to your workplace illness or injury. If your claim is approved, benefits are paid starting from the fourth shift or fourth day you are unable to work. Benefits are paid every two weeks until you go back to regular or modified work or when your doctor determines you have reached maximum medical improvement.
Your first three days or shifts of missed work will be paid only if you are out of work for at least two weeks.
When you reach maximum medical improvement, you will be evaluated for a permanent disability to determine if you qualify for continued benefits.
The insurer will issue a Final Admission of Liability when all issues have been addressed, including temporary disability benefits, permanent impairment, disfigurement and medical benefits.
Question: How are workers’ compensation benefits calculated?
Answer: Benefits are equal to two-thirds of the average weekly wage you were receiving on the date of your injury, up to the maximum amount set by the State of Colorado. As of July 1, 2016, that amount is $939.82 per week.
Temporary partial disability benefits are paid if you’re able to work, but in a limited capacity which results in a reduction of wages. These benefits are two-thirds of the difference in your earnings, up to the same weekly maximum.
The average weekly wage includes gross wages or salary, commissions, overtime, tips and per diem payments (reported to the IRS), reasonable board, value of rent, housing and lodging and the employee’s cost of continuing the employer’s group health insurance plan.
If your doctor determines you have reached maximum medical improvement, you will be evaluated for a permanent disability. If it is determined that you have a permanent disability that prevents you from working all together, you will be entitled to permanent total disability benefits. These benefits are calculated in the same way as temporary total disability benefits (two-thirds of your weekly salary at the time of your injury).
Permanent partial disability benefits are determined based on the type of partial disability, either scheduled loss or whole person impairment. Scheduled loss benefits apply in situations where, for example, you’ve had an amputation.
For these types of disabilities, Colorado provides a list, or schedule, of benefits that are not based on your previous wage but are, instead, a set rate distributed over a set period of time based on the specifics of your injury. So, for an amputation or a total loss of use of a listed body part, you will receive benefits in an amount and for a period of time stated in the schedule.
If your injured body part is not listed on Colorado’s benefits schedule, your doctor will assign you an impairment rating. That will be used by the insurance company, along with your age factor (which is based on how old you are at the time of maximum medical improvement), to calculate your whole person impairment benefit. Your impairment rating is then multiplied by your age factor and then by 400 weeks. You will receive two-thirds of your average weekly wage for the resulting number of weeks.
A workers’ compensation attorney can help you calculate your potential benefits.
Question: When do my benefits stop?
Answer: Temporary disability benefits end when:
- You return to work at your pre-injury wage.
- You are given a release to return to regular work by the authorized treating physician.
- You are given written release by the authorized treating physician to return to modified work.
- You fail to appear at a scheduled medical appointment with knowledge that absence will result in suspension of temporary disability benefits.
- Your authorized treating physician determines that you have reached maximum medical improvement.
- The insurer requests to modify, terminate or suspend benefits for reasons other than those listed above.
Permanent partial disability benefits are paid for the duration of the time assigned per the benefits schedule.
Permanent total disability benefits are paid for as long as you are disabled (potentially for life).
Question: Can I receive other benefits – unemployment or Social Security disability – in addition to workers’ compensation benefits?
Answer: You cannot receive unemployment benefits while receiving workers’ compensation benefits. In fact, attempting to file a claim for unemployment benefits while receiving or filing a claim for workers’ compensation benefits could jeopardize your workers’ compensation benefits.
Think about it this way: unemployment benefits are for those who are able to work, but are unable to find work, whereas workers’ compensation benefits are for those who have work, but are unable to work. Just as you can’t be simultaneously able and unable to work, you cannot simultaneously receive unemployment and workers’ compensation benefits.
The one exception is a scenario in which you have been separated from your job because of your workplace accident; even if you received temporary total disability compensation, you may be eligible to receive unemployment benefits after the end of the continuous disability period. Keep in mind, though that you still must be able to meet all other unemployment eligibility benefits, including being able to work and actively searching for employment.
You can continue to receive Social Security disability benefits following an award of workers’ compensation benefits, but your Social Security disability payments will be reduced. Essentially, the total amount of your benefits cannot exceed 80 percent of your average earnings when you were working.
3 Quick Tips for Filing a Successful Workers’ Compensation Claim
- Don’t miss the deadlines! By now you know that there are multiple deadlines when submitting a workers’ compensation claim, from informing your employer of your accident within four days of the accident to the 45 days you have to appeal a claim denial. These deadlines are not suggestions. It’s critical that you meet them because missing a deadline could result in your claim being denied.
- See a doctor. Even if you don’t think your injury is severe enough to require a visit to the doctor, you should go. It could get worse down the road, or you may have other injuries that haven’t yet presented symptoms. Injuries that aren’t reported in your claim may not be compensable. And when you’re telling your doctor about how you got hurt, don’t hold back on the details. You shouldn’t exaggerate about your pain levels or the accident, but you should provide as much detailed information as you can so it’s all well documented.
- Get it right the first time. Errors or missing information can result in delayed or denied claims. So, don’t submit your claim without first double-checking that all your information is accurate, there are no errors and you didn’t leave anything out.
If you have additional questions about workers’ compensation claims or would like a free consultation with an attorney, call 303-688-0944.