Posted by John Abraham on Jun 04, 2018 in Firm Newsletters
There are a few defenses often overlooked when investigating a workers’ compensation claim and deciding whether to admit liability. Some of those defenses include safety rule violations, willful misleading of the Employer regarding the claimant’s physical abilities, and intoxication defenses. These defenses should always be considered as part of a checklist when determining compensability and benefits owed to the claimant. Each defense can reduce compensation to the claimant by up to 50% and can be taken immediately upon the filing of the initial filing the admission with the Division. It is important to note the distinctions with each defense as they must be noted in the remarks section of the admission when filing with the Division.
Safety Rule Violations
Section 8-42-112(1), C.R.S. provides as follows; “The compensation provided for in articles 40 to 47 of this title shall be reduced fifty percent:
(a) Where injury is caused by the willful failure of the employee to use safety devices provided by the employer;
(b) Where injury results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee”
The key phrase to keep in mind with regard to safety rule violations and/or safety devices is the use of the word “willful.” The word has been defined by the Supreme Court as “deliberate intent.” The claimant must have known the rule communicated by the Employer and deliberately chose not to follow the Rule or use the safety device. Negligence on the part of the claimant is not enough to allow safety rule violation. However, intent can be inferred by the ALJ where the facts lead the trier of fact to consider that the claimant knew of the Rule and specifically chose not to follow it. The burden of proof regarding safety rule violations is always on the Respondents to prove in court. If successful, the safety rule violation is a 50% reduction that applies to all indemnity throughout the life of the claim.
Misleading the Employer regarding the claimant’s physical abilities
Section 8-42-112(1)(d), C.R.S. provides as follows; “Where the employee willfully misleads an employer concerning the employee’s physical ability to perform the job, and the employee is subsequently injured on the job as a result of the physical ability about which the employee willfully misled the employer. Notwithstanding any other provisions of articles 40 to 47 of this title, the provisions of this paragraph (d) shall apply in addition to any other penalty that may be imposed under section 8-43-402.”
Again, in order for the Employer to take a 50% reduction in benefits pursuant to this statute, the Employer must prove that the claimant willfully mislead the Employer regarding the claimant’s physical abilities to perform the job. Should proof and documentation exist regarding the claimant’s intent to deceive the Employer, the ALJ can make the inference that the claimant’s actions were deliberate in order to obtain employment with the Employer or seek a position in which the claimant could not perform the job functions.
Given the current state of the law and the legalization of marijuana within Colorado, Respondents must always consider the intoxication defense when analyzing defenses in a claim. Although marijuana is legal, the Employer still retains the right to prohibit the employee from using marijuana or other controlled substances in the workplace. Section 8-42-112.5, C.R.S, indicates as follows,
(1) “Non-medical benefits otherwise payable to an injured worker are reduced fifty percent where the injury results from the presence in the worker’s system, during working hours, of controlled substances, as defined in section 18-18-102 (5), C.R.S., that are not medically prescribed or of a blood alcohol level at or above 0.10 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests. A duplicate sample from any test conducted must be preserved and made available to the worker for purposes of a second test to be conducted at the worker’s expense. If the test indicates the presence of such substances or of alcohol at such level, it is presumed that the employee was intoxicated and that the injury was due to the intoxication. This presumption may be overcome by clear and convincing evidence.
(2) As used in this section, “non-medical benefits” means all benefits provided for in articles 40 to 47 of this title other than disbursements for medical, surgical, nursing, and hospital services, apparatus, and supplies”
The key aspects of the statute to remember are “during working hours” and “clear and convincing evidence.” These two aspects of the statute may prove problematic for both the claimant and Respondents in court. First, it is Respondents’ burden to demonstrate that the claimant was intoxicated during working hours. Most commonly, drug testing aids the Employer in confirming this first aspect of the statute. Whether it is alcohol, marijuana, or otherwise, the drug test administered shortly after the alleged injury can help aid the Employer in determining the level of intoxication that is present. Next comes the shifting burden to the claimant to demonstrate by clear and convincing evidence that he/she was not intoxicated at the time of the incident. This is the highest burden to prove in workers’ compensation claims and usually comes with little success on the claimant’s part at hearing. Similar to the other acts reducing compensation, up to 50% can be taken against indemnity benefits for the life of the claim.
Keeping these defenses in mind will help reduce exposure for Respondents in an effective way. Should the defenses be challenged, it is important to remember that each one involves specific findings of fact that must be made by an ALJ at hearing. Should you have any questions regarding each of the defenses, please contact us for guidance prior to filing the initial admission on the claim.