Workers' Compensation "Myths"

The Workers' Compensation Act protects employers from suits for liability by injured workers while limiting the injured worker’s benefits. Any "rights" arising under the Workers' Compensation Act are created by statute and problems arise most frequently when the employer fails to do some act which it is required to do under the law. These "rights" are then prosecuted at hearing before the Division of Administrative Hearings. You should retain counsel well prior to this point.

In 1998, we sent out a newsletter which addressed "myths" concerning Colorado's Workers' Compensation Act. These "myths" continue to be propagated today, and the discussion of these "myths" bears repeating. The following are frequently encountered work comp "myths":

By Neil D. O'Toole, Esq. and John A. Sbarbaro, Esq.

Benefits under the work comp system are set by a formula. Thus, I do not need an attorney.

This has never been the case. Workers' compensation law in Colorado has become more and more complex with each passing year. Because insurance carriers have attorneys advising them on how to limit benefits, the injured workers need an attorney early in the proceedings to protect their rights and to ensure receipt of all benefits due by law.

I hurt myself on the job and, therefore, cannot be fired.

Not so. In Colorado you can be terminated for any reason (except for race, sex, age, religion, national origin, or alienage) or no reason. Likewise, an individual cannot be fired because of a disability recognized under the Americans With Disabilities Act, if reasonable accommodations are available. This does not mean that individuals with a "disability" are automatically entitled to job restoration after a work comp injury. Rather, an employer is required only to make a "reasonable accommodation" for the employee. The employer does not have to create a separate position to accommodate this individual. Further, the individual must be able to perform all of the essential functions of the job. "Reasonable accommodations" may result in a salary being adjusted downward to take into account a change in a job position.

I hurt myself on the job and I am entitled to be retrained.

Not so. Retraining or vocational rehabilitation ceased being mandatory in 1987. Since that date an employer may, at its option, offer rehabilitation. This is done only very rarely, and within the complete discretion of the employer/carrier. It only occurs when the employer feels that the individual will not return to any work and, as a consequence, may be entitled to received benefits for his/her lifetime. Regardless, the injured worker has no "right" to demand rehabilitation benefits.

If I return to work the amount I receive for my permanent medical impairment and/or final settlement will be less. Or If I don't return to work, I will get more in a settlement.

Neither of these statements is true. Under the law in effect since July 1, 1991, the extent of medical impairment determines how much money is received by the permanently injured employee, using a formula which takes into account age and earnings at the time of the injury. Whether or not an individual returns to work does not affect the extent of impairment; and there is no additional payment to an individual because he/she is unable to return to work or is earning less money in a new job because of the work place injury. Conversely, an individual is not penalized with a reduction in medical impairment benefits if he/she returns to work or earns more money at a new job.

If I am hurt on the job and believe I cannot do my work there is no obligation for me to continue to work.

Wrong. If an individual is injured on the job and is given a release to return to either regular or modified duty, the individual should return to that work or risk losing the right to temporary disability benefits. Under those circumstances the individual has a high risk of being determined responsible for termination if he/she does not return to the offered position. If this occurs, the individual's entitlement to temporary disability benefits, which substitute for wage loss, is barred.

I am entitled to a second opinion.

No you are not, unless you pay for it. Under the law, the worker's compensation insurance carrier, and/or employer, has the right in the first instance to select the doctor. You have no "right" to a second opinion, although the carrier will occasionally allow a second opinion, particularly when surgery is recommended. Indeed, insurers frequently request a second opinion if surgery is recommended to ascertain whether costly surgery can be avoided. There is no law stopping a injured worker from paying to see any doctor for a second opinion, however, the insurance carrier has no obligation under the law to reimburse this expense. Thus, although you can request a second opinion, it is not a "right." Additionally, your health insurance will not pay for a second opinion in a workers' compensation matter.

No matter what happens, I will be entitled to future medical benefits for my work comp injury.

This is an incorrect statement of the law. On a Final Admission of Liability future medical benefits for maintenance purposes frequently are not admitted. Unless this Final Admission of Liability is objected to and the issue of maintenance medical benefits is set for hearing, the right to future medical benefits is closed. Further, after a case is closed a claim can not be reopened unless there is a showing of a medically documented worsening or change of condition within a certain period of time following and injury.