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8-40-201. Definitions.

Text

As used in articles 40 to 47 of this title 8, unless the context otherwise requires:

(1) Accident means an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause or, the cause, being known, an unprecedented consequence of it.

(2) Accident, injury, or injuries includes disability or death resulting from accident or occupational disease as defined in subsection (14) of this section.

(2.5) Repealed.

(3) Board means the board of directors of Pinnacol Assurance.

(3.4) Chief executive officer means the chief executive officer of Pinnacol Assurance.

(3.5) Repealed.

(3.6) Claimant means a person who either:

(a) Receives benefits under articles 40 to 47 of this title; or

(b) Has or asserts, in any administrative or judicial forum or in any communication with the director, the division, or an employer, insurer, or self-insured employer, a right to receive such benefits.

(4) Division means the division of workers compensation in the department of labor and employment.

(5) Director means the director of the division of workers compensation.

(6) Employee has the meaning set forth in section 8-40-202 and the scope of such term is set forth in section 8-40-301.

(7) Employer has the meaning set forth in section 8-40-203 and the scope of such term is set forth in section 8-40-302.

(8) Employment means any trade, occupation, job, position, or process of manufacture or any method of carrying on any trade, occupation, job, position, or process of manufacture in which any person may be engaged; except that it shall not include participation in a ridesharing arrangement, as defined in section 39-22-509 (1)(a)(II), C.R.S., and participation in such a ridesharing arrangement shall not affect the wages paid to or hours or conditions of employment of an employee; nor shall it include the employees participation in a voluntary recreational activity or program, regardless of whether the employer promoted, sponsored, or supported the recreational activity or program.

(9) Examiner means one of the industrial claim appeals examiners appointed to the industrial claim appeals panel in the industrial claim appeals office.

(10) Executive director means the executive director of the department of labor and employment.

(11) (Deleted by amendment, L. 2002, p. 1882, 27, effective July 1, 2002.)

(11.5) Maximum medical improvement means a point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. The requirement for future medical maintenance which will not significantly improve the condition or the possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of maximum medical improvement. The possibility of improvement or deterioration resulting from the passage of time alone shall not affect a finding of maximum medical improvement.

(12) Mediation means a process through which parties involved in a dispute concerning matters arising under articles 40 to 47 of this title meet with a mediator to discuss such matter or matters, defining and articulating the issues and their positions on such issues, with a goal of resolving such dispute or disputes.

(13) Mediator means an individual who is trained to assist disputants in reaching a mutually acceptable resolution of their disputes through the identification and evaluation of alternatives.

(13.5) Repealed.

(14) Occupational disease means a disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.

(15) Order means and includes any decision, finding and award, direction, rule, regulation, or other determination arrived at by the director or an administrative law judge.

(15.5) [Editors note: This version of subsection (15.5) is effective until January 1, 2022.] Overpayment means money received by a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles. For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits under said articles.

(15.5) [Editors note: This version of subsection (15.5) is effective January 1, 2022.] Overpayment means money received by a claimant that:

 

(a) (I) Is the result of fraud;

(II) Is the result of an error due only to miscalculation, omission, or clerical error asserted in a new admission of liability filed within thirty days of the erroneous admission of liability;

(III) Is paid in error or inadvertently in excess of an admission or order that exists at the time that the benefits are paid to a claimant; or

(IV) Results in duplicate benefits because of offsets that reduce disability or death benefits payable under articles 40 to 47 of this title 8. Duplicate benefits include any wages earned by a claimant in the same or other employment while a claimant is also receiving temporary disability benefits.

(b) For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits under articles 40 to 47 of this title 8.

(c) Nothing in this subsection (15.5):

(I) Prevents an insurance carrier or an employer from receiving a credit against permanent disability benefits for temporary disability benefits paid beyond the initial date of maximum medical improvement assigned by an authorized treating physician or the final date of maximum medical improvement established by any other means, whichever is later and to the extent that permanent disability benefits remain unpaid at the time of the filing of a final admission of liability; or

(II) Affects the power of the director or administrative law judges to determine overpayments and require repayment of overpayments pursuant to sections 8-42-113.5 and 8-43-207 (1)(q).

(16) Panel means the industrial claim appeals panel that conducts administrative appellate review pursuant to articles 40 to 47 of this title.

 

(16.5) (a) Permanent total disability means the employee is unable to earn any wages in the same or other employment. Except as provided in paragraph (b) of this subsection (16.5), the burden of proof shall be on the employee to prove that the employee is unable to earn any wages in the same or other employment.

(b) Total loss of or total loss of use of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof shall create a rebuttable presumption of permanent total disability. Total loss of use shall be a medical determination, based upon objective findings, made by an independent medical examiner who is a level II accredited physician in the appropriate field.

(17) Place of employment means every place whether indoors, outdoors, or underground and the premises, workplaces, works, and plants appertaining thereto or used in connection therewith where either temporarily or permanently any industry, trade, or business is carried on; or where any process or operation directly or indirectly relating to any industry, trade, or business is carried on; or where any person is directly or indirectly employed by another for direct or indirect gain or profit.

(18) State includes any state or territory of the United States, the District of Columbia, and any province of Canada.

(18.5) Temporary help contracting firm means any person who is in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party, under the supervision of the third party.

 

(19) (a) Wages shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.

(b) The term wages includes the amount of the employees cost of continuing the employers group health insurance plan and, upon termination of the continuation, the employees cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but does not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of health insurance coverage, that advantage or benefit shall not be included in the determination of the employees wages so long as the employer continues to make payment. Medicaid and other indigent health- care programs are not health insurance plans for the purposes of this section.

(c) No per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes.

History

History.
Source: L. 90: Entire article R&RE, p. 469, 1, effective July 1; (6) and (7) amended, p. 1843, 28, effective July 1. L. 91: (2.5), (3.5), (11.5), (13.5), and (16.5) added and (4), (5), (8), (12), (15), and (19) amended, p. 1292, 4, effective July 1. L. 94: (19) amended, p. 1285, 1, effective May 22; (16.5) amended, p. 2000, 1, effective July 1. L. 95: (2.5) and (3.5) amended, p. 12, 1, effective March 9. L. 96: (2.5) amended, p. 151, 1, effective July 1; (18.5) added, p. 827, 1, effective July 1. L. 97: (3.6) and (15.5) added, p. 112, 1, effective July 1. L. 98: (13.5) amended, p. 168, 1, effective April 6. L. 2002: (3) and (11) amended and (3.4) added, p. 1882, 27, effective July 1. L. 2003: (2.5) and (13.5) amended, p. 917, 1, effective July 1. L. 2004: (8) amended, p. 904, 26, effective May 21. L. 2010: (19)(b) amended,(SB 10-187), ch. 310, p. 1456, 1, effective July 1. L. 2021: IP and (15.5) amended,(HB 21-1207), ch. 149, p. 869, 1, effective January 1, 2022.

Annotations

Editors note: (1) The provisions of this section are similar to provisions of several former sections as they existed prior to 1990. For a detailed comparison, see the comparative tables located in the back of the index.

(2) Subsection (3.5)(b)(I) provided for the repeal of subsection (3.5), effective July 1, 1996. (See L. 95, p. 12.)

(3) Subsection (3.4) was originally numbered as (3.5) in House Bill 02-1135 but has been renumbered on revision for ease of location.

(4) Subsections (2.5)(b)(I) and (13.5)(b)(I) provided for the repeal of subsections (2.5) and (13.5), respectively, effective July 1, 2014. (See L. 2003, p. 917.)

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

II. ACCIDENT AND INJURIES.

III. EMPLOYMENT.

IV. OCCUPATIONAL DISEASE.

V. ORDER.

VI. OVERPAYMENT.

VII. PERMANENT TOTAL DISABILITY.

VIII. PLACE OF EMPLOYMENT.

IX. STATE.

X. WAGES.

A. Generally.

B. Computation of Average Weekly Wage.

C. Computation.

I. GENERAL CONSIDERATION.

Law reviews. For article, Independent Contractors and the Colorado Workers Compensation Act -- Parts I and II, see 22 Colo. Law. 545 and 1281 (1993). For article, Anderson v. Brinkoff: Finally, a Meaningful Definition of Occupational Disease, see 23 Colo. Law. 383 (1994). For article, Update on Colorado Appellate Decisions in Workers Compensation Law, see 33 Colo. Law. 83 (April 2004). For article, Overview of General Liability, Workers Compensation, and Employment Law Issues in K-12 Educational Institutions, see 44 Colo. Law. 25 (Oct. 2015).

Annotators note. (1) Since 8-40-201 is similar to 8-41-102, 8-41-103, 8-41-108, and 8-46-201 as they existed prior to the 1990 repeal and reenactment of the Workers Compensation Act of Colorado, articles 40 to 47 of title 8, relevant cases construing those provisions have been included in the annotations to this section.

II. ACCIDENT AND INJURIES.

Law reviews. For article, A Significant Change in the Colorado Workmens Compensation Act: Accidents, Injuries and Heart Attack, see 41 Den. L. Ctr. J. 189 (1964). For article, The Enterprise Liability Theory of Torts, see 47 U. Colo. L. Rev. 153 (1976).

The definition of accident under this section is an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury. T & Colo. Fuel & Iron Corp. v. Indus. Commn, 154 Colo. 240, 392 P.2d 174 (1964); Miceli v. State Comp. Ins. Fund, 157 Colo. 204, 401 P.2d 835 (1965).

Prior to this section, the workmens compensation statute did not contain any definition of the word accident. Indus. Commn v. Milka, 159 Colo. 114, 410 P.2d 181 (1966).

But an accident under the act had been interpreted to mean any unintended or unexpected loss or hurt apart from its cause. The term accidental injury was not then confined to a situation where the means or cause was an accident for it also included any injury which was itself an accident. Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965).

And this section is not intended to and does not alter the meaning of accident as that term came to be accepted by reason of court decisions. Denver-Golder Corp. v. Minikus, 159 Colo. 188, 410 P.2d 636 (1966); Indus. Commn v. Milka, 159 Colo. 114, 410 P.2d 181 (1966).

Thus, by this section, the general assembly has done nothing more than to adopt and to place into the act the courts determination of what is an accident. Indus. Commn v. Milka, 159 Colo. 114, 410 P.2d 181 (1966).

Since case law not overruled, demonstrative external violence need not be shown. The general assembly has not overruled the case law; therefore, it does not have to be shown that some demonstrative external violence was visited upon the body causing a wounding, breaking, tearing, puncturing or disruption of the continuity of the body of the injured employee or his bodily tissue. Indus. Commn v. Milka, 159 Colo. 114, 410 P.2d 181 (1966).

The former definitions of accident and injury in this section made them inseparably linked to trauma, but this traumatic connection was entirely eliminated in the 1965 amendment. For example, in the 1965 definition of accident there are the terms, an unforseen event, occurring without the will or design of the person whose mere act causes it and an unexpected, unusual, or undesigned occurrence. T & T Loveland Chinchilla Ranch v. Bourn, 173 Colo. 267, 477 P.2d 457 (1970).

Personal injury limited. Because personal injury is not defined by the workmens compensation act, it does not include damages which are based mainly on mental suffering and humiliation, and only peripherally on physical suffering and pain. Luna v. City & County of Denver, 537 F. Supp. 798 (D. Colo. 1982).

Courts distinguish between accident and injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).

In that accident is the cause and injury is the effect. It does not follow in every instance that the two occur simultaneously. At least, in many instances, the total or ultimate effect is not immediately apparent. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Indus. Commn v. Bysom, 166 Colo. 502, 444 P.2d 627 (1968); Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971).

And an injury takes place when one, as a reasonable man, should recognize the nature, seriousness, and probable compensable character of his injury. Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971).

Therefore, to interpret the act in such a way that a person who reasonably discovers his injury long after the accident and is entitled to compensation is not entitled to his medical expenses is absurd, and a defeat of the purpose of the act. Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971).

Series of traumatic events compensable. The fact that an injury results from a series of traumatic events does not prevent that injury from being compensable as proximately caused by accident. Martinez v. Indus. Commn, 40 Colo. App. 485, 580 P.2d 36 (1978).

The traditional test for distinguishing between accidental and occupational injuries is whether the injury can be traced to a particular time, place, and cause. Because the employees ulnar nerve entrapment injury resulted from the conditions of her employment, rather than a specific accident or trauma, the injury is an occupational disease within the meaning of subsection (14). Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993).

If one can prove that the injury was a result of work, then the date of injury is irrelevant for purposes of medical compensation. The injured worker is entitled to medical compensation regardless of date of injury if he or she can prove injury as a result of work. Wal-Mart Stores, Inc. v. Indus. Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).

A claimant suffering from an occupational disease is entitled to reasonably necessary medical benefits, even if the disease has not yet become disabling. Wal-Mart Stores, Inc. v. Indus. Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).

Applied in Eisnach v. Indus. Commn, 633 P.2d 502 (Colo. App. 1981); High v. Indus. Commn, 638 P.2d 818 (Colo. App. 1981); Stephen Equip. Co. v. Baca, 703 P.2d 1332 (Colo. App. 1985); City of Aurora v. Indus. Commn, 710 P.2d 1122 (Colo. App. 1985).

III. EMPLOYMENT.

This section is to be construed in relation to 8-48-101. Betz v. Indus. Commn, 109 Colo. 385, 125 P.2d 958 (1942).

Determination of employment relationship depends upon facts in each case. Schultz v. Indus. Commn, 34 Colo. App. 122, 523 P.2d 164 (1974).

And determination must properly be made by commission rather than court, even though the facts are largely undisputed, because this matter is not within the courts scope of review. Schultz v. Indus. Commn, 34 Colo. App. 122, 523 P.2d 164 (1974).

One may be employee by virtue of the statute and not by common-law definition. An obligation to pay workmens compensation may, in proper cases, be imposed against an owner where the common-law relationship of employer and employee does not exist, in that one may be an employee by virtue of the statute, for the purpose of workmens compensation, when in fact he is not an employee by common-law definition. Finnerman v. McCormick, 499 F.2d 212 (10th Cir.), cert. denied, 419 U.S. 1049, 95 S. Ct. 624, 42 L. Ed. 2d 644 (1974).

Doubt resolved in claimants favor. Any reasonable doubt as to whether a compensable accidental injury or death arose out of and in the course of employment must be resolved in favor of the claimant. Conley v. Indus. Commn, 43 Colo. App. 10, 601 P.2d 648 (1979).

A company whose business is essentially that of processing, is within the meaning of process of manufacture or any method of carrying on any such trade or process of manufacture as used in this section. Betz v. Indus. Commn, 109 Colo. 385, 125 P.2d 958 (1942).

Harm or injury sustained by an employee while going to or from his work is not compensable, in the absence of special circumstances, and except in certain unusual circumstances. Berrys Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); J. C. Carlile Corp. v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967).

But injuries which occur to an employee while going to or from work may be compensable when it appears that at the time of such injuries he is engaged in doing an act, or performing a duty, which he is definitely charged with doing as a part of his contractual service, or under the express or implied direction of his employer. State Comp. Ins. Fund v. Keane, 160 Colo. 292, 417 P.2d 8 (1966); Berrys Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); J. C. Carlile v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967).

And an injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable, for when some advantage to the employer results from the employees conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment. Accordingly, an injury resulting from such an act arises out of, and in the course of, the employment; and this rule is applicable, even though the advantage to the employer is slight. Berrys Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967).

Thus, the test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Berrys Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967).

The test for whether reimbursed travel is within the course and scope of employment necessitates the following findings of fact: (1) The number of miles traveled; (2) the cost of driving the distance on a daily basis; (3) the extent to which the reimbursement covers actual travel costs; (4) the extent to which other employees travel to reach the job site; and (5) the difficulties of travel that provide a special benefit to the employer or poses an unusual risk to the employee. Sturgeon Elec. v. Indus. Claim Appeals Office, 129 P.3d 1057 (Colo. App. 2005).

Decedents death arises out of his employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects. Conley v. Indus. Commn, 43 Colo. App. 10, 601 P.2d 648 (1979).

Claim not barred by off-duty status. The fact that decedent police officer was off duty prior to the onset of the emergency does not bar a claim for compensation. Conley v. Indus. Commn, 43 Colo. App. 10, 601 P.2d 648 (1979).

Voluntary participation in recreational event held during nonwork hours and off of employers premises, with only benefit to employer being improvement of employee morale, held not to constitute compensable situation if injury to employee occurs. Wilson v. Scientific Software-Intercomp, 738 P.2d 400 (Colo. App. 1987).

Even if the employer promoted the event, subsection (8) requires that the claimants motive for participation be determined and that compensation be denied if participation in the activity was voluntary. Dover Elevator Co. v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).

An administrative law judge may consider evidence concerning whether an employer promoted, sponsored, or supported an activity because it is within the employers power to enlarge the scope of employment. Dover Elevator Co. v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).

Causation may be established in the absence of the time and place factors set forth in City and County of Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (1969), if there is a strong showing of the other factors. Dover Elevator Co. v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).

The fact that there was no evidence that anyone was punished for not having attended a party did not preclude a determination that attendance at the party was voluntary. Dover Elevator Co. v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).

The provision of this section providing that employment does not include participation in a ridesharing arrangement precludes a vicarious liability claim against the employer for injuries sustained by an employee in a car pooling arrangement. Smith v. Pinner, 891 F.2d 784 (10th Cir. 1989).

In the context of workers compensation, the determination whether an accident occurred within the scope of employment depends on an examination of the totality of the circumstances, and if an employees travel is at the express or implied request of the employer, or if the travel confers a benefit on the employer beyond the sole fact of the employees arrival at work, then the travel is within the scope of employment. Capra v. Tucker, 857 P.2d 1346 (Colo. App. 1993).

Where the employer agrees to provide its employee with the means of transportation or to pay the employees cost of commuting to and from work, the scope of employment inferentially enlarges to include the employees transportation. Capra v. Tucker, 857 P.2d 1346 (Colo. App. 1993).

Where claimant worked full-time and there was no evidence that he was hired for the completion of single tasks, or on a per task basis, ALJ erred in concluding that he was not an actual employee. The relative nature of the work test, if applied, would show that the claimant was an actual employee under this section. Stampados v. Colo. D & S Enters., 833 P.2d 815 (Colo. App. 1992).

The term employment is applied in Loffland Brothers Co. v. Indus. Commn, 714 P.2d 509 (Colo. App. 1985).

IV. OCCUPATIONAL DISEASE.

Former section provided that an occupational disease would not be compensated as an accident. Colo. Fuel & Iron Corp. v. Indus. Commn, 162 Colo. 68, 424 P.2d 382 (1967).

Employment conditions acting on preexisting allergy or weakness in occupational disease. Where employment conditions act upon a claimants individual allergy, hypersensitivity, or preexisting weakness so as to disable him, he has a compensable occupational disease, provided other requirements for compensability have been met. Denver v. Hansen, 650 P.2d 1319 (Colo. App. 1982); IML Freight v. Indus. Commn, 676 P.2d 1205 (Colo. App. 1983).

As is condition acting on preexisting injury. Where, as a condition of his employment, claimant was required to wear safety shoes, which developed blistering on a foot on which he had previously suffered severe burns, this injury fits within the definition of occupational disease. CF & I Steel Corp. v. Indus. Commn, 650 P.2d 1332 (Colo. App. 1982).

Standard for disease. Disability benefits are not given only in those cases in which the disease is so overwhelming that it physically prevents a worker from attempting to perform his duties. Jefferson County Schs. v. Headrick, 734 P.2d 659 (Colo. App. 1986).

Under the definition of occupational disease, the statute does not invite a weighing of hazards to which a worker has been exposed in his lifetime in determining whether a particular disease is occupational, it operates to ensure that a disease results from an occupational hazard. Where there is no evidence that occupational exposure to a hazard is a necessary prerequisite to the development of the disease, a claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability. Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) (decided under law in effect prior to 1990 repeal and reenactment).

If any hazard encountered by a worker outside the workers employment setting was at least an equal contributor to the employees disease, no compensation can be awarded. Hall v. Indus. Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988); Cowin & Co. v. Medina, 860 P.2d 535 (Colo. App. 1992).

Therefore, if two or more causes contribute to a diseased condition, it is necessary to determine the extent to which the nonindustrial cause contributed to that condition. Cowin & Co. v. Medina, 860 P.2d 535 (Colo. App. 1992).

However, similar to the requirement that a tortfeasor assumes the burden of proving the ability to apportion responsibility between two or more causes of a disability, a disabled workers employer bears the burden of proving the extent to which a nonoccupational hazard has contributed to that workers disability. The failure to sustain this burden will render inapplicable the statutory exclusion from the general rule of compensation in this section. Cowin & Co. v. Medina, 860 P.2d 535 (Colo. App. 1992).

The fact that an occupational disease becomes acutely symptomatic does not ipso facto transform it into an accidental injury. Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993).

Occupational diseases are subject to a more rigorous test than occupational accidents/injuries before they can be found compensable. If the general assembly intended to subject occupational disease only to the arising out of test, there would be no need to include the language concerning hazards to which the worker would have been equally exposed outside of employment. Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) (decided under law in effect prior to 1990 repeal and reenactment).

The four-part test applied to determine whether an occupational disease is compensable amounts to a legislative declaration that it is necessary to limit the scope of occupational diseases to those diseases which result from working conditions which are characteristic of the vocation. It is this proof of causation that ensures that the Workers Compensation Act will not become a general health insurance act. Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) (decided under law in effect prior to 1990 repeal and reenactment).

Occupational exposure as a contributory factor in disability. When there is no evidence that occupational exposure was a necessary precondition to development of the disease with which the claimant is afflicted, the claimant has sustained an occupational disease only to the extent that the occupational exposure contributed to his overall disability. Masdin v. Gardner-Denver-Copper Indus., Inc., 689 P.2d 714 (Colo. App. 1984).

V. ORDER.

Written authority from the division of labor for the employer to close its file is not equivalent to an order finally adjudicating the claim, especially since there was no request made of claimant to advise whether he agreed that his case was closed. Granite Constr. Co. v. Leonard, 40 Colo. App. 20, 568 P.2d 500 (1977).

Letter of director was not an order within the meaning of this section but instead gave rise to a controversy which was properly submitted to a hearing officer for resolution. Romans v. Hewitt Elec. Corp., 723 P.2d 161 (Colo. App. 1986).

Order includes a procedural rule. Crowell v. Indus. Claim Appeals Office, 2012 COA 30, 298 P.3d 1014.

VI. OVERPAYMENT.

The statutory definition of the term overpayment is clear and unambiguous. Simpson v. Indus. Claim Appeals Office, 219 P.3d 354 (Colo. App. 2009), revd on other grounds, 232 P.3d 777 (Colo. 2010).

There are three categories of possible overpayment included in the statutory definition of overpayment under subsection (15.5). The first category is for overpayments created when a claimant receives money that exceeds the amount that should have been paid. The second category is for money received that a claimant was not entitled to receive. The third category is for money received that results in duplicate benefits because of offsets that reduce disability or death benefits payable under articles 40 to 47 of this title. Simpson v. Indus. Claim Appeals Office, 219 P.3d 354 (Colo. App. 2009), revd on other grounds, 232 P.3d 777 (Colo. 2010).

The disjunctive or in subsection (15.5) plainly demarcates three different categories of overpayments, only one of which involves statutory setoff. The statutory phrase because of offsets that reduce disability or death benefits payable under said articles applies only to the third category of overpayments in subsection (15.5). Simpson v. Indus. Claim Appeals Office, 219 P.3d 354 (Colo. App. 2009), revd on other grounds, 232 P.3d 777 (Colo. 2010).

VII. PERMANENT TOTAL DISABILITY.

Classification for purposes of determining eligibility for permanent total disability is constitutional and does not violate equal protection guarantees. Lobb v. Indus. Claim Appeals Office, 948 P.2d 115 (Colo. App. 1997).

Position offered to claimant in which she would engage in a variety of activities and be compensated at a rate of $10 per hour, constituted employment within the meaning of subsection (8), making her ineligible for permanent total disability benefits. Administrative law judges finding that the offer was a bona fide offer of employment rather than a charitable offer from claimants former employer was supported by the record and is binding on appeal. Lobb v. Indus. Claim Appeals Office, 948 P.2d 115 (Colo. App. 1997).

Determination of permanent total disability is based on several factors, not just medical impairment. The 1991 amendment limiting determination of permanent partial disability to consideration of medical impairment does not limit determination of permanent total disability in the same manner. Thus, in determining permanent total disability, the ALJ was correct in considering claimants physical condition, employment history, and educational background. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo. App. 1995).

In making the determination whether a claimant is permanently and totally disabled, the ALJ may consider human factors such as education, ability, and former employment. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).

The determination of whether a claimant is permanently and totally disabled is a factual determination and thus, an ALJs resolution that is supported by substantial evidence is binding on review. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).

A claimant who would not be able to access the labor market in the area where the claimant lives, a reasonable commutable distance from home, is not capable of securing employment, was unable to earn any wages, and therefore was permanently and totally disabled. Brush Greenhouse Partners v. Godinez, 942 P.2d 1278 (Colo. App. 1996), affd sub nom. Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).

Access to or availability of employment in a claimants commutable labor market may be considered in determining a claimants eligibility for permanent total disability benefits. The crux of the inquiry is whether employment exists that is reasonably available to the claimant given his or her circumstances and can only be answered on a case-by-case basis. Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).

The legislative history of the 1991 amendment to subsection (16.5)(a) indicates that the new definition of permanent total disability was intended to tighten and restrict eligibility for permanent total disability benefits. There is no evidence that the legislature intended to go further by abolishing consideration of a claimants accessible labor market. Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).

VIII. PLACE OF EMPLOYMENT.

The place of employment under the workmens compensation act is not expressly limited to the state. Denver Truck Exch. v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957).

IX. STATE.

Law reviews. For note, The Conflicts Problem as Applied to Workmens Compensation in Colorado, see 22 Rocky Mt. L. Rev. 77 (1949).

Extraterritorial provisions reciprocal. The very inclusion of any province of Canada within the purview of this subdivision argues convincingly that the basic principle of the subdivision is the mutual recognition of extraterritorial provisions by voluntary reciprocal action of the various governing units contemplated by this subdivision; that the extraterritorial principle becomes applicable only to the extent that one state and then another enacts a similar reciprocal law. The fact that two neighboring states, Utah and Wyoming, have enacted simultaneously with this state very similar laws would seem to be persuasive in adopting this view. Frankel Carbon & Ribbon Co. v. Aaron, 113 Colo. 429, 158 P.2d 929 (1945).

Applied in State Comp. Ins. Fund v. Howington, 133 Colo. 583, 298 P.2d 963 (1956).

X. WAGES.

A. Generally.

Question whether subsection (19) is unconstitutional by virtue of preemption by federal legislation was properly a matter within the court of appeals jurisdiction, and was not a matter subject to review by the administrative law judge. Celebrity Custom Builders v. Indus. Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995).

Exclusion of fringe benefits of employment from definition of wages of employees in agricultural industry violates equal protection guarantees. Higgs v. Western Landscaping & Sprinkler Sys., Inc., 804 P.2d 161 (Colo. 1991).

Barring a claimant who is capable of earning wages in any amount from receiving permanent total disability benefits does not offend equal protection guarantees. Christie v. Coors Transp. Co., 919 P.2d 857 (Colo. App. 1995), affd, 933 P.2d 1330 (Colo. 1997).

The exclusion of per diem payments in the calculation of wages does not result in disparate calculation of wages, but rather, serves to differentiate between payments intended to reimburse the employee for expenses incurred as a result of his employment and those meant to provide economic advantage, and is not a violation of equal protection. Young v. Indus. Claim Appeals Office, 969 P.2d 735 (Colo. App. 1998).

Inclusion of cost of continuing health insurance in definition of wages does not require preemption of subsection (19) under federal Employee Retirement Income Security Act of 1974 (ERISA). Celebrity Custom Builders v. Indus. Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995).

Actual purchase of health insurance not required in order for cost of benefits to be included in calculating claimants average weekly wage. Avalanche Indus. v. Indus. Claim Appeals Office, 166 P.3d 147 (Colo. App. 2007), affd, 198 P.3d 589 (Colo. 2008).

ERISA does not preempt former 8-47-101 (1) and (2), as effective in May 1989, to the extent those subsections required that the value of ERISA-plan benefits be included in calculating an employees average weekly wage for workers compensation purposes. Hewlett-Packard Co. v. Diringer, 42 F. Supp. 2d 1038 (D. Colo. 1999).

Purpose of subsection (19) definition of wages (now found in subsection (19)(b)) is to calculate the money rate at which services are paid under the contract of hire in force at the time of injury, and to include any advantage or fringe benefit provided to the employee in lieu of wages. Celebrity Custom Builders v. Indus. Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995).

Non-cash benefits can comprise a substantial amount of a workers wages. Celebrity Custom Builders v. Indus. Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995); Young v. Indus. Claim Appeals Office, 969 P.2d 735 (Colo. App. 1998); Iler v. Indus. Claim Appeals Office, 207 P.3d 945 (Colo. App. 2009).

Subsection (19) contains no requirement that the employer provide any level of coverage for the employee. Celebrity Custom Builders v. Indus. Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995).

The term wages does not include employers FICA tax payments for the purpose of calculating a claimants average weekly wage even though employers PERA contributions are included as wages for the same purpose. Case finds that there are significant differences between such payments which justify such different treatment. Floyd v. AMF Tuboscope, Inc., 817 P.2d 534 (Colo. App. 1990).

The phrase any wages in subsection (16.5)(a) cannot encompass the pre-injury wage rate level referred to in subsection (19)(a). McKinney v. Indus. Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995).

Subsection (16.5)(a) and 8-43-303 (3) are distinguishable because they affect persons who are not similarly situated to each other. The purpose of subsection (16.5)(a) is to define permanent total disability for purposes of initially determining whether a claimant is eligible for permanent total disability benefits. In contrast, the purpose of 8-43-303 (3) is to set a standard which employers must meet before a case can be reopened to determine whether an employee who has already been awarded permanent total disability benefits should continue to receive such benefits. Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997).

Any wages means that a claimant is disqualified from permanent disability benefits if he or she is capable of earning wages in any amount. McKinney v. Indus. Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995); Christie v. Coors Transp. Co., 919 P.2d 857 (Colo. App. 1995), affd, 933 P.2d 1330 (Colo. 1997).

Employer cannot evade responsibility under Workers Compensation Act by labeling a portion of compensation as expense reimbursement where there is no rational or realistic relationship between the employees actual expenses and the amount claimed as reimbursement. Sneath v. Express Messenger, 881 P.2d 453 (Colo. App. 1994).

In determining the money rate at which the services are rendered pursuant to subsection (19), there must be included the value of the rate of accrual of the employees leave time. Meeker v. Provenant Health Partners, 929 P.2d 26 (Colo. App. 1996).

Pension contributions are excluded from the determination of claimants average weekly wage. City of Lamar v. Koehn, 968 P.2d 164 (Colo. App. 1998).

Panel correctly declined to include the value of claimants vacation and sick leave in determining claimants average weekly wage since the leave was subject to forfeiture after a specified maximum number of days had accrued and since the value of the claimants leave time was dependent upon actual usage and would decline if not used. City of Lamar v. Koehn, 968 P.2d 164 (Colo. App. 1998).

Income from an investment or from a personally operated business does not necessarily constitute wages. Because the general assembly did not intend to prohibit disabled persons from securing income other than wage income, claimant was not disqualified from receiving permanent total disability benefits simply because he received unspecified income from his investment in a bingo parlor and his former land scraper business. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo. App. 1995).

B. Computation of Average Weekly Wage.

A claimants average weekly wage is to be determined according to the contract of hire in force at the time of the injury. Drywall Prods. v. Constuble, 832 P.2d 957 (Colo. App. 1991).

Expense reimbursement of four cents per mile was not considered wages for federal income tax purposes and therefore could not be considered wages for purposes of computing a claimants average weekly wage. Ernie Baylog, Inc. v. Indus. Claim Appeals Office, 923 P.2d 361 (Colo. App. 1996).

The cost of medicare insurance benefits is included in an injured claimants average weekly wage once the continuation of the employers group health insurance plan is terminated. Schelly v. Indus. Claim Appeals Office, 961 P.2d 547 (Colo. App. 1997).

Average weekly wage includes both the employers and employees contribution to group health insurance premiums. Humane Socy of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001), affd, 145 P.3d 661 (Colo. 2006).

Claimant is not required to present proof that he or she actually purchased replacement coverage. The statute merely seeks to ensure that the claimant will have funds available to make the purchase. Humane Socy of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001); Ray v. Indus. Claim Appeals Office, 124 P.3d 891 (Colo. App. 2005).

Average weekly wage includes the cost of health insurance only when a claimant has continued the employers coverage at his or her own cost pursuant to COBRA or 10-16-108, and thereafter, when that coverage ends and the claimant has converted to other coverage. An employees contribution to his or her health care premium during the period of employment does not represent an amount included as wages for the purpose of calculating average weekly wages. Midboe v. Indus. Claim Appeals Office, 88 P.3d 643 (Colo. App. 2003).

An employee who has been terminated from employment, however, following an injury is not required to purchase a continuing policy and convert to an individual plan before that employee becomes entitled to have the cost of continuing the employers plan included in the average weekly wage. Subsection (19)(b) does not require proof that the claimant has actually purchased coverage. Humane Socy of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001); Ray v. Indus. Claim Appeals Office, 124 P.3d 891 (Colo. App. 2005).

Subsection (19)(b) states that the cost of converting to a similar or lesser insurance plan is included in the average weekly wage computation. When an employee converts to coverage comparable to or lesser than the employers plan, the cost to the employee of the converted insurance is added to the employees average weekly wage. Sears Roebuck & Co. v. Indus. Claim Appeals Office, 140 P.3d 336 (Colo. App. 2006).

The absence of comparable market forces does not preclude a claimant from proving a reasonable sum for room and board. Iler v. Indus. Claim Appeals Office, 207 P.3d 945 (Colo. App. 2009).

The mandate in subsection (19)(b) to include the cost of room and board does not require direct proof of actual cost or market value of the room and board, and it does not exclude replacement cost as a viable measure. Hence, claimants testimony, based on claimants expenses in Colorado, about the replacement value of food and lodging received while employed in Antarctica established a prima facie case and led to the reasonable inference that the room and board provided by the employer had some value. Iler v. Indus. Claim Appeals Office, 207 P.3d 945 (Colo. App. 2009).

C. Computation.

Increase in benefits was correctly applied retroactively. The case of Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App. 1991), did not establish a new rule of law in finding that the benefits for an occupational disease should be based on the claimants wages at the time the claimant became disabled rather than on wages at the time of the last injurious exposure. Subsequent Injury Fund v. Indus. Claim Appeals Office, 899 P.2d 220 (Colo. App. 1994).