2005

MAY

Quinn v. Pioneer Sand, W.C. No. 4-590-561 (ICAO April 27, 2005):  Claimant, a truck driver, suffered serious injuries to his right hand.  Claimant was unable to drive, but the employer provided modified clerical work to Claimant, within his restrictions.  Claimant continued working modified duty.

  Soon after, Claimant was sent home by the employer because there was no more modified work within Claimant’s restrictions.  However, the employer told Claimant to check in every week to determine if more work became available. 

  Two (2) months later, Claimant moved out of state.  One (1) month after Claimant

Acts of the Employee that Reduce Compensation

by Royce W. Mueller

 

 

   During your initial stages of investigat-ing a claim, be sure to keep in mind several provisions of the Colorado Workers’ Compensation Act that allow you to reduce benefits if certain facts are present. 

   You can reduce compensation (all non-medical benefits) by 50%, under the following situations as provided for under C.R.S. §8-42-112(1):

   (a) If the injury was caused by claimant’s failure to use a safety device provided by the employer.  Safety devices can include obvious things, but also consider items like eye goggles, gloves, and steel-toed shoes.   

   (b) If the claimant was injured because she failed to obey a reasonable rule adopted by the employer for the safety of the employee. 

   For example, many employers who hire drivers have a rule that all employees must

“buckle up” while on company time.  Note that the rule can be written or oral. 

   (d) If the claimant misleads the employer about his physical ability to do the job, and is later injured as a result of that ability.  

   For instance, the claimant had major back surgery two years ago and failed to tell the new, current employer about permanent work restrictions which make it clear he should not do the job for which he was hired.

   These situations are usually very fact-specific, and all of them contemplate conduct that is “willful.”  That means the claimant violated the rule “with deliberate intent.” 

   In order to establish deliberate intent, you don’t need to show that the claimant specifically meant to break the rule.  You do have to show that, knowing the rule, he

intentionally performed the forbidden activity.

   You can also reduce all non-medical benefits by 50% if a claimant’s injury “results from the presence in the worker’s system, during working hours, of not medically prescribed controlled substances…or of a blood alcohol level at or above 0.10 percent…” 

   You don’t worry about the “willfulness” element here, because the Act also provides that if such a test is positive, then “…it shall be presumed that the employee was intoxicated and that the injury was due to such intoxication...” C.R.S. §8-42-112.5(1).

 

   Feel free to consult Clifton, Hook & Bovarnick, P.C., for assistance in dealing with any of these issues in your cases.

moved, the employer wrote Claimant and advised him work was available.  The employer’s letter stated if Claimant did not respond, the employer would assume Claimant  had voluntarily resigned.  The Claimant did not respond and he was terminated from employment.

   The ALJ found Claimant was terminated, not for failing to report to work, but when Claimant was initially sent home for lack of modified work.  Therefore, the employer was responsible for Claimant’s termination.  The ALJ found Claimant had no duty to remain in the state pending an offer of work from the employer.  The Industrial Claim Appeals Office affirmed.

Don’t Forget CHB

Workers’ Compensation

Seminar

   CHB will be hosting a workers’ compen-sation seminar on Thursday, May 26, 2005, from 8 a.m. to Noon at the Sheraton Hotel East, 6363 E. Hampden Ave., Denver, CO, 80222 (Hampden and I-25). 

   Attorneys from CHB will discuss current workers’ compensation issues, including: Medicare Set Aside Agreements, Interrela-tionship between Workers’ Compensation and Employment Law, and Recent Case Law and Legislative Enactments.

   Seating is limited, so please RSVP to Tara Salazar at 303-988-7692 or tsalazar@chbpc.com.

Claimant Has No Duty to Remain in State Pending Offer of Modified Employment