8-41-301. Conditions of recovery - definitions.
Statute text
(1) The right to the compensation provided for in articles 40 to 47 of this title, in lieu of any other liability to any person for any personal injury or death resulting therefrom, shall obtain in all cases where the following conditions occur:
(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;
(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of the employee's employment;
(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment and is not intentionally self-inflicted.
(2) (a) A claim of mental impairment must be proven by evidence supported by the testimony of a licensed psychiatrist or psychologist. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. The mental impairment that is the basis of the claim must have arisen primarily from the claimant's then occupation and place of employment in order to be compensable.
(a.5) Repealed.
(b) (I) Notwithstanding any other provision of articles 40 to 47 of this title 8, where a claim is by reason of mental impairment, a claimant is limited to thirty-six weeks of medical impairment benefits, which shall be in an amount not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage, inclusive of any temporary disability benefits; except that this limitation shall not apply to any victim of a crime of violence, without regard to the intent of the perpetrator of the crime, nor to the victim of a physical injury or occupational disease that causes neurological brain damage.
(II) Nothing in this section limits the determination of the percentage of impairment pursuant to section 8-42-107 (8) for the purposes of establishing the applicable cap on benefits pursuant to section 8-42-107.5.
(c) The claim of mental impairment cannot be based, in whole or in part, upon facts and circumstances that are common to all fields of employment.
(d) The mental impairment which is the basis of the claim must be, in and of itself, either sufficient to render the employee temporarily or permanently disabled from pursuing the occupation from which the claim arose or to require medical or psychological treatment.
(3) As used in this section:
(a) "Mental impairment" means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event. "Mental impairment" also includes a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability.
(b) (I) "Psychologically traumatic event" means an event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.
(II) "Psychologically traumatic event" also includes an event that is within a worker's usual experience only when the worker is diagnosed with post-traumatic stress disorder by a licensed psychiatrist or psychologist after the worker experienced exposure to one or more of the following events:
(A) The worker is the subject of an attempt by another person to cause the worker serious bodily injury or death through the use of deadly force, and the worker reasonably believes the worker is the subject of the attempt;
(B) The worker visually or audibly, or both visually and audibly, witnesses a death, or the immediate aftermath of the death, of one or more people as the result of a violent event; or
(C) The worker repeatedly and either visually or audibly, or both visually and audibly, witnesses the serious bodily injury, or the immediate aftermath of the serious bodily injury, of one or more people as the result of the intentional act of another person or an accident.
(c) "Serious bodily injury" means bodily injury that, either at the time of the actual injury or a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body.
History
Source: L. 90: Entire article R&RE, p. 479, 1, effective July 1. L. 91: (2) amended, p. 1294, 7, effective July 1. L. 99: (2)(a) and (2)(b) amended and (2)(a.5) added, p. 299, 2, effective July 1. L. 2006: (2)(b) amended, p. 98, 1, effective July 1. L. 2009: (2)(b) amended, (SB 09-243), ch. 269, p. 1222, 1, effective July 1. L. 2017: (2)(a) amended and (3) added, (HB 17-1229), ch. 328, p. 1756, 1, effective July 1, 2018; (2)(a.5)(II) added by revision, (HB 17-1229), pp. 1756, 1757, 1, 2. L. 2020: (3)(b)(II)(B) and (3)(b)(II)(C) amended, (SB 20-026), ch. 142, p. 619, 1, effective September 14. L. 2023: (2)(b) amended, (HB 23-1076), ch. 370, p. 2222, 1, effective August 7.
Annotations
Editor's note: (1) This section is similar to former 8-52-102 as it existed prior to 1990.
(2) Subsection (2)(a.5)(II) provided for the repeal of subsection (2)(a.5), effective July 1, 2018. (See L. 2017, pp. 1756, 1757.)
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Course of Employment.
A. In General.
B. Employee Going to and from Work.
III. Proximate Cause.
IV. Evidence.
A. In General.
B. Sufficiency of Evidence.
C. Admissibility of Evidence.
D. Presumption against Suicide.
Law reviews. For article, "Employer's Liability for Occupational Diseases", see 16 Rocky Mt. L. Rev. 60 (1943). For article, "The Enterprise Liability Theory of Torts", see 47 U. Colo. L. Rev. 153 (1976). For article, "Erosion of the Exclusive Remedy in Workers' Compensation", see 31 Colo. Law. 83 (Dec. 2002). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Law", see 32 Colo. Law. 97 (June 2003). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Law", see 32 Colo. Law. 113 (Oct. 2003). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Law", see 33 Colo. Law. 83 (April 2004). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Law", see 34 Colo. Law. 95 (April 2005). For article, "A Primer on the Requirements for a Compensable Injury", see 44 Colo. Law. 45 (March 2015). For article, "Three Years after City of Brighton: Its Effect on the Compensability of Workers' Compensation Claims", see 46 Colo. Law. 47 (May 2017). For article, "Sticking Points--Part 2: A Survey of Remedies for Vaccination Injuries", see 50 Colo. Law. 32 (Nov. 2021).
Annotator's note. (1) Since 8-41-301 is similar to 8-52-102 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.
(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which vested the director of the division of labor with the power previously exercised by the industrial commission to enforce the workmen's compensation laws or were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission.
Subsection (2) does not violate equal protection because requiring verification of the mental component of a stress claim by a physician or psychologist is rationally related to the purpose of this section, which is to establish the proof requirements for compensability of a stress-related claim in order to avoid frivolous and fraudulent claims. Tomsha v. City of Colo. Springs, 856 P.2d 13 (Colo. App. 1992).
There is a rational basis for requiring physical injury or occurrence of a crime of violence during the course of employment as an additional proof of work-related causation. Colo. AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).
Purpose of the workmen's compensation act is to provide monetary relief to employees who, while performing services for the employer, suffer disability or death as a result of an accident or injury arising out of and in the course of their employment. This is a legitimate state purpose. Claimants In re Kohler v. Indus. Comm'n, 671 P.2d 1002 (Colo. App. 1983).
The legislative purpose in enacting subsection (2)(a) was to establish the requirements for compensability of a stress-related claim, and it was designed to prevent frivolous claims. Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
Any relief for alleged breach of contract for employer's failure to pay disability and medical benefits on a timely basis and to provide adequate medical treatment must be obtained exclusively through the workers' compensation scheme. Employee may not avoid the Workers' Compensation Act's exclusivity provisions merely by framing his claim as one for breach of contract. The damages employee sought are the very benefits provided by the act. McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42 (Colo. App. 1998).
If an injury comes within the coverage of the act, a common law action is barred even though a particular element of damages may not be provided as compensation. McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42 (Colo. App. 1998).
Trial court correctly determined it lacked jurisdiction over breach of contract claim since the act provides a comprehensive and exclusive remedy for that claim. McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42 (Colo. App. 1998).
Statutes of this character are to be liberally construed to the end that their beneficent purpose may be accomplished. Indus. Comm'n v. Aetna Life Ins. Co., 64 Colo. 480, 174 P. 589 (1918); Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953).
The workmen's compensation statute must be liberally construed to effectuate its humanitarian purpose of assisting injured workers. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
The workmen's compensation act is to be broadly and liberally construed to achieve its salutary purposes. Stewart v. United States, 716 F.2d 755 (10th Cir. 1982), cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).
However, rule of liberal construction does not lessen degree of proof. A claimant in a worker's compensation case has the burden of proving entitlement to benefits by a preponderance of the evidence and the court of appeals' statement that "any reasonable doubt as to whether a compensable injury arises out of and in the course of employment must be resolved in favor of a claimant" is an incorrect statement of the burden of proof because it creates a virtual presumption of compensability. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
But the intent is to make the industry responsible for industrial accidents only, and not those resulting from hazards common to all. Indus. Comm'n v. Anderson, 69 Colo. 147, 169 P. 135 (1917); Cason v. Am. Brake Shoe & Foundry Co., 32 F. Supp. 680 (D. Colo. 1940).
Meaning of "accidents". In workmen's compensation acts, injuries are designated "accidents" to distinguish them from intentional injuries and injuries caused by disease. To constitute an accidental injury, it is not necessary that there should be anything extraordinary occurring in or about the work itself, such as slipping, or falling, or being hit. Cent. Sur. & Ins. Corp. v. Indus. Comm'n, 84 Colo. 481, 271 P. 617 (1928); Keating v. Indus. Comm'n, 105 Colo. 155, 95 P.2d 821 (1939); Gates v. Cent. City Opera House Ass'n, 107 Colo. 93, 108 P.2d 880 (1940); Indus. Comm'n v. La Foret Camps, 125 Colo. 503, 245 P.2d 459 (1952); Indus. Comm'n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952); J. W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); Wesco Elec. Co. v. Shook, 143 Colo. 382, 353 P.2d 743 (1960).
1975 amendment broadened scope of compensable injuries. The 1975 amendment, replacing the word "accident" wherever it occurred with "injury" and explicitly including a reference to occupational diseases, had the effect of broadening the scope of compensable injuries under the workmen's compensation act. Kandt v. Evans, 645 P.2d 1300 (Colo. App. 1982); CF & I Steel Corp. v. Indus. Comm'n, 650 P.2d 1332 (Colo. App. 1982).
Injury compensable whether "accident" or "occupational disease". A claimant is entitled to compensation if he sustains an injury under the conditions set forth in this section, and it is immaterial whether the injury was an accident as defined in 8-41-108 (1) or an occupational disease as defined in 8-41-108 (3). CF & I Steel Corp. v. Indus. Comm'n, 650 P.2d 1332 (Colo. App. 1982).
An accident found to occur at a "definite time", "unexpected" and "unintended", is an accidental injury under the compensation act. Indus. Comm'n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952); J.W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965).
Under the workmen's compensation law by the term "injury" is meant, not only an injury the means or cause of which is an accident, but also an injury which is itself an accident. Carroll v. Indus. Comm'n, 69 Colo. 473, 195 P. 1097 (1921); Indus. Comm'n v. La Foret Camps, 125 Colo. 503, 245 P.2d 459 (1952); J.W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); Wesco Elec. Co. v. Shook, 143 Colo. 382, 353 P.2d 743 (1960).
Injuries held accidents. Indus. Comm'n v. Swanson, 93 Colo. 354, 26 P.2d 107 (1933); Indus. Comm'n v. Ule, 97 Colo. 253, 48 P.2d 803 (1935); Gates v. Cent. City Opera House Ass'n, 107 Colo. 93, 108 P.2d 880 (1940); Indus. Comm'n v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944); Indus. Comm'n v. La Foret Camps, 125 Colo. 503, 245 P.2d 459 (1952); Indus. Comm'n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952); J. W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); City & County of Denver v. Pollard, 160 Colo. 306, 417 P.2d 231 (1966).
But the loss of voice of an employee resulting from emotional stress and strain because of differences with his supervisor is not an accident arising out of and in the course of employment within the meaning of the workmen's compensation act. Classen v. Mtn. States Tel. & Tel. Co., 153 Colo. 570, 387 P.2d 264 (1963).
Subsection (2) applies not only to a single traumatic event, but also to multiple traumatic events. Therefore, it applies to a series of stressful incidents. McCallum v. Dana's Housekeeping, 940 P.2d 1022 (Colo. App. 1996).
Accident must be traceable to a definite time, place, and cause. An accident under the various workmen's compensation acts, must be traceable to a definite time, place, and cause; the occurrence constituting an accident must be unexpected. Prouse v. Indus. Comm'n, 69 Colo. 382, 194 P. 625 (1920); Peer v. Indus. Comm'n, 94 Colo. 227, 29 P.2d 636 (1934); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965).
Lack of causal connection may be asserted at any time. In a dispute over medical benefits that arises after the filing of a general admission of liability, an employer generally can assert, based on subsequent medical reports, that the claimant did not establish the threshold requirement of a direct causal relationship between the on-the-job injury and the need for medical treatment. Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997).
However, the time of the accident is only required to be reasonably definite to support an award. Gates v. Cent. City Opera House Ass'n, 107 Colo. 93, 108 P.2d 880 (1940); Great Am. Indem. Co. v. State Comp. Ins. Fund, 108 Colo. 323, 116 P.2d 919 (1941).
On the other hand, an "occupational disease" is acquired in the usual and ordinary course of employment and is recognized from common experience to be incidental thereto. City & County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972).
Evidence not bringing injury within definition of "occupational disease". Great Am. Indem. Co. v. State Comp. Ins. Fund, 108 Colo. 323, 116 P.2d 919 (1941); City & County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972).
Written testimony from a physician or psychologist is sufficient, subject to the ability of any party on request to cross-examine at a hearing or a deposition the professional who authored the written material that the claimant presents. Colo. Dept. of Labor & Employment v. Esser, 30 P.3d 189 (Colo. 2001).
The second clause of the "mental impairment" definition in subsection (2)(a) requires the injury to consist of a "psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances". Expert testimony is necessary to prove that the event was psychologically traumatic. Whether the event was generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances may be proved by lay evidence, expert evidence, or both. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023 (Colo. 2004); Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
Expert is not required to use the term "psychologically traumatic event"; rather there must be a presentation of sufficient facts such that the ALJ can find there existed a psychologically traumatic event or events. Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
Sufficient evidence must show that the "psychologically traumatic event" was unique and outside of a worker's usual experience. Claimants, however, need not show the psychologically traumatic event would cause identical significant symptoms of distress in similarly situated workers. Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
"Medical impairment benefits" in subsection (2)(b) means awards for medical impairment benefits, which by definition in 8-42-107 (1)(a) and (8)(a), are payable for permanent disability. City of Thornton v. Replogle, 873 P.2d 30 (Colo. App. 1993).
Subsection (2)(b) was construed to mean that award for medical impairment benefits is limited but that award for temporary disability benefits is not, and judge may reduce potential award of medical impairment benefits by amounts that claimant may have received as temporary disability benefits. City of Thornton v. Replogle, 873 P.2d 30 (Colo. App. 1993).
However, combined amount of temporary disability benefits and permanent partial disability benefits is limited by 8-42-107.5. City of Thornton v. Replogle, 873 P.2d 30 (Colo. App. 1993).
Twelve-week limitation on receipt of medical impairment workers' compensation benefits for mental impairment claim does not apply to temporary disability benefits. Rendon v. United Airlines, 881 P.2d 482 (Colo. App. 1994).
Twelve-week limitation on medical impairment benefits in subsection (2)(b) does not apply to death benefits. Death benefits are distinct from wage loss and disability benefits, and the limitation on medical impairment disability benefits applies to those cases in which disability benefits are payable to an eligible claimant, not to cases in which a claimant seeks death benefits. Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
Twelve-week limitation on mental impairment benefits is not reduced by TTD benefits for physical injury. Subsection (2)(b), with its offset requirement, is clearly limited in scope to benefits paid as the result of mental impairment only. Sears Distribution Ctr. v. Indus. Claim Appeals Office, 104 P.3d 313 (Colo. App. 2004).
A crime of violence did not occur when a police officer was bitten while trying to restrain a man suffering from a seizure disorder, since the seizure prevented the man from acting with conscious awareness of what he was doing. Thus, police officer was barred from receiving medical impairment benefits in excess of the limitation of 12 weeks under the exception for victims of crimes of violence in subsection (2)(c). Bralish v. Indus. Claim Appeals Office, 81 P.3d 1091 (Colo. App. 2003).
Compensation can be awarded for personal injuries only. London Guarantee & Accident Co. v. Indus. Comm'n, 80 Colo. 162, 249 P. 642 (1926).
A wooden leg is not a part of a man's person. A wooden leg is a man's property, not part of his person, and no compensation can be awarded for its injury. London Guarantee & Accident Co. v. Indus. Comm'n, 80 Colo. 162, 249 P. 642 (1926).
There are separate and distinct limitations placed on temporary and permanent disability benefits for mental impairment. Permanent disability benefits are limited to 12 weeks while temporary disability benefits are limited by maximum medical improvement. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995).
Fear and anxiety not compensable. Fear and anxiety caused by the prospect of an operation to correct a compensable injury are not compensable. Aetna Cas. & Sur. Co. v. Indus. Comm'n, 116 Colo. 98, 179 P.2d 973 (1947).
And negligence of employee contributing to the injury does not bar him from relief. Ocean Accident & Guar. Corp. v. Pallaro, 66 Colo. 190, 180 P. 95 (1919).
In addition, a preexisting disease will not render noncompensable an injury received under conditions which would otherwise make it compensable. Allen v. Gettler, 94 Colo. 528, 30 P.2d 1117 (1934); Indus. Comm'n v. Pacific Employers Ins. Co., 128 Colo. 411, 262 P.2d 926 (1953); J.W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Indus. Comm'n v. Colo. Fuel & Iron Corp., 135 Colo. 307, 310 P.2d 717 (1957); Indus. Comm'n v. Newton Lumber & Mfg. Co., 135 Colo. 594, 314 P.2d 297 (1957); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 152 Colo. 25, 380 P.2d 28 (1963); State v. Richards, 158 Colo. 155, 405 P.2d 675 (1965); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965); Gen. Cable Co. v. Indus. Claim Appeals Office, 878 P.2d 118 (Colo. App. 1994).
For compensation is not dependent on the state of an employee's health or his freedom from constitutional weakness or latent tendency. Peter Kiewit Sons' Co. v. Indus. Comm'n, 124 Colo. 217, 236 P.2d 296 (1951); State v. Richards, 158 Colo. 155, 405 P.2d 675 (1965).
The right to compensation for an injury springs into being where the necessary employer-employee relationship exists, and both the service being performed and the injury sustained arise out of and in the course of employment. Johnson v. Indus. Comm'n, 137 Colo. 591, 328 P.2d 384 (1958).
For the liability of an employer under the workmen's compensation act is predicated on relationship. Froid v. Knowles, 95 Colo. 223, 36 P.2d 156 (1934).
Thus, one not an employer or employee does not share in its burdens or benefits. Froid v. Knowles, 95 Colo. 223, 36 P.2d 156 (1934).
But ignorance of employee as to who was his employer will not of itself prevent compensation. Bukowich v. Ford Motor Co., 99 Colo. 56, 59 P.2d 470 (1936).
But where state compensation insurance fund insurance policy does not afford coverage to law firm for employee performing construction work at the direction of employer, state fund is properly dismissed as a party in the case. State Comp. Ins. Fund v. Dean, 689 P.2d 1146 (Colo. App. 1984).
To justify recovery under the workmen's compensation law the one essential element is that a substantial portion of the work must be done in this state, but with this must be combined either an accident in Colorado or a contract in Colorado. United States Fid. & Guar. Co. v. Indus. Comm'n, 99 Colo. 280, 61 P.2d 1033 (1936).
The clause "inclusive of any temporary disability benefits" in subsection (2)(b) does not limit temporary disability benefits for mental impairment to twelve weeks. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995).
The law of the place of contract controls the rights and liabilities both of the employer and employee. Indus. Comm'n v. Aetna Life Ins. Co., 64 Colo. 480, 174 P. 589 (1918).
Thus, when contract is made in this state recovery may be had under this act for accidental death in another state. Indus. Comm'n v. Aetna Life Ins. Co., 64 Colo. 480, 174 P. 589 (1918); Hall v. Indus. Comm'n, 77 Colo. 338, 235 P. 1073 (1925); Home Ins. Co. v. Hepp, 91 Colo. 495, 15 P.2d 1082 (1932).
For the workmen's compensation act has extraterritorial effect. Hall v. Indus. Comm'n, 77 Colo. 338, 235 P. 1073 (1925).
And there is no reason for distinction as to the place of performance of the principal portion of the services. Home Ins. Co. v. Hepp, 91 Colo. 495, 15 P.2d 1082 (1932).
So that employee who is unsuccessful in claim for compensation in other state may proceed under this act. Where an injured employee claims, and was awarded compensation by the industrial commission and thereafter elected to make claim for compensation for his injuries under the industrial act of another state and asked that payments under the Colorado award be discontinued, which request was granted, the commission did not thereby lose jurisdiction, and the employee, having been unsuccessful in his application for compensation in the other state, may proceed under the Colorado act. United States Fid. & Guar. Co. v. Indus. Comm'n, 99 Colo. 280, 61 P.2d 1033 (1936).
Where employee is paid for injury he has no independent action against employer for alleged malpractice of its physician. Hennig v. Crested Butte Anthracite Mining Co., 92 Colo. 459, 21 P.2d 1115 (1933).
Statement of director not a finding of disability caused by accident. Di Gregorio v. Monroe Coal Co., 98 Colo. 267, 55 P.2d 715 (1936).
A sexual assault involving pinching is a physical injury within the meaning of this section, and therefore claim did not fall within the mental impairment provision's requirement of testimony by a licensed physician or psychologist. Oberle v. Indus. Claim Appeals Office, 919 P.2d 918 (Colo. App. 1996).
Applied in Greer v. Intercole Automation, Inc., 553 F. Supp. 275 (D. Colo. 1982).
A. In General.
Law reviews. For note, "'Horseplay Cases' Under Workmen's Compensation Acts", see 10 Rocky Mt. L. Rev. 272 (1938). For comment on Indus. Comm'n v. Havens (136 Colo. 111, 314 P.2d 698 (1957)), see 30 Rocky Mt. L. Rev. 239 (1958). For comment on Divelbiss v. Indus. Comm'n (140 Colo. 452, 344 P.2d 1084 (1959)), see 32 Rocky Mt. L. Rev. 257 (1959). For comment on Game & Fish Dept. v. Pardoe (147 Colo. 363, 363 P.2d 1067 (1961)), see 34 Rocky Mt. L. Rev. 273 (1962). For article, "A Significant Change in the Colorado Workmen's Compensation Act: 'Accident', 'Injuries', and 'Heart Attack'", see 41 Den. L. Ctr. J. 189 (1964). For article, "Compensability of Heart Disease Under the Colorado Workmen's Compensation Act", see 37 U. Colo. L. Rev. 205 (1965). For article, "The Positional Risk Doctrine -- Compensability of "Neutral Force" Injuries", see 17 Colo. Law. 2375 (1988). For article, "Work-Related Stress Claims", see 18 Colo. Law. 1529 (1989). For article, "Sexual Harassment: Issues of Compensability and Exclusivity", see 24 Colo. Law. 825 (1995).
The purpose of the workmen's compensation act is to afford protection to employees injured from causes arising out of and during the course of their employment. Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002), aff'd on other grounds, 90 P.3d 228 (Colo. 2004).
And whether employee is acting within scope of employment is determined from surrounding circumstances. Taylor v. Saunders, 71 Colo. 160, 204 P. 608 (1922); N.J. Fid. & Plate Glass Ins. Co. v. Patterson, 86 Colo. 580, 284 P. 334 (1929); Chaney v. Indus. Comm'n, 120 Colo. 111, 207 P.2d 816 (1949); Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002), aff'd on other grounds, 90 P.3d 228 (Colo. 2004).
Colorado courts have repeatedly emphasized that the determination of whether the injuries arose out of and in the course of an employment relationship is largely dependent upon the facts surrounding the injury in question. Bennett v. Furr's Cafeterias, Inc., 549 F. Supp. 887 (D. Colo. 1982).
For this section requires an employee to be doing the duty which he is employed to perform. Indus. Comm'n v. Nissen, 84 Colo. 19, 267 P. 791 (1928).
However, activity not required to be strict obligation of employment or confer specific benefit on the employer. An activity arises out of and in the course of employment when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Matter of Death of McLaughlin, 728 P.2d 337 (Colo. App. 1986); Banks v. Indus. Claim Appeals Office, 794 P.2d 1062 (Colo. App. 1990); Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006).
So that the right to compensation for an injury exists when both the service being performed and the injury sustained shall arise out of and in the course of the employment. Indus. Comm'n v. Anderson, 69 Colo. 147, 169 P. 135 (1917); Indus. Comm'n v. Rocky Mt. Fuel Co., 107 Colo. 226, 110 P.2d 654 (1941); Alexander Film Co. v. Indus. Comm'n, 136 Colo. 486, 319 P.2d 1074 (1957); Johnson v. Indus. Comm'n, 137 Colo. 591, 328 P.2d 384 (1958); Divelbiss v. Indus. Comm'n, 140 Colo. 452, 344 P.2d 1084 (1959); State Comp. Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960); Silver Eng'r Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973).
Totality of the circumstances must be examined in each case to see whether there is a sufficient nexus between the employment and the injury so that it may be said that the accident occurred within the scope of employment. City & County of Denver Sch. Dist. No. 1 v. Indus. Comm'n, 196 Colo. 131, 581 P.2d 1162 (1978); Stewart v. United States, 716 F.2d 755 (10th Cir. 1982), cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984); Perry v. Crawford & Co., 677 P.2d 416 (Colo. App. 1983); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
Totality of circumstances in each case must be considered in determining whether injury arose out of and in the course of employment. Younger v. City & County of Denver, 810 P.2d 647 (Colo. 1991).
A claim for compensation for mental impairment resulting from harassment by a co-worker may be compensable, even if the dispute does not center upon work-related issues, if the work brought the employees together and created the relation and conditions resulting in the dispute. Moorhead Mach. & Boiler v. Del Valle, 934 P.2d 861 (Colo. App. 1996).
In order to be compensable under the Workers' Compensation Act, an injury incurred by an employee must arise out of and in the course of the employee's employment. Price v. Indus. Claim Appeals Office, 919 P.2d 207 (Colo. 1996).
In workers' compensation law, the terms "in the course of" and "arising out of" are not synonymous. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991); Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006).
An activity arises out of and in the course of employment when it is sufficiently interrelated to the conditions and circumstances under which the employee generally performs his job functions that the activity may reasonably be characterized as an incident of employment, although the activity itself is not a strict employment requirement and does not confer an express benefit on the employer. Price v. Indus. Claim Appeals Office, 919 P.2d 207 (Colo. 1996).
Meaning of term "arise out of". To "arise out of" the employment, unmistakably means that the cause of the accident was at all times "in" the employment. It could not come out of it, unless it was first in it. Rocky Mt. Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d 868 (1934).
The expression "arising out of" refers to the origin or cause of the injury. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976); Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987); Price v. Indus. Claim Appeals Office, 908 P.2d 136 (Colo. App. 1995), aff'd, 919 P.2d 207 (Colo. 1996); City of Northglenn v. Eltrich, 908 P.2d 139 (Colo. App. 1995), aff'd sub nom. Price v. Indus. Claim Appeals Office, 919 P.2d 207 (Colo. 1996).
"Positional-risk" or "but for" test applies to determine whether injury "arises out of" employment when injury does not have inherent connection with employment. Stamper v. Hiteshew, 797 P.2d 784 (Colo. App. 1990).
When the cause of an employee's fall is truly unknown, it can be compensable as "arising out of" employment under the "but for" test. This test provides that an injury arises out of employment if it would not have occurred but for the conditions and obligations of employment. City of Brighton v. Rodriguez, 2014 CO 7, 318 P.3d 496.
Factual question existed as to whether sexual assault on female employee by employer "arose out of" employment, making injury compensable and employer accordingly immune from suit. Stamper v. Hiteshew, 797 P.2d 784 (Colo. App. 1990).
Except in the most unusual cases, acts of harassment are highly personal and fall into the category of inherently private assaults that do not arise from employment. As a matter of policy, sexual harassment is not a risk inherently connected to the employment relationship. Therefore, sexual harassment claims are not barred by the exclusive remedy provisions of the Workers' Compensation Act. Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001).
"Arises out of and in the course of an employee's employment" means that there must be a nexus between a claimant's injury and his conditions of employment. There is no requirement that the conditions of employment be the direct cause of the event that caused the injury. Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989).
An injury may be connected with the employment and therefore may arise out of that employment if the employee's work places him in a position in which he ultimately sustains that injury, even though the direct cause of that injury is not employment-related. To be considered an employment hazard for this purpose, the employment condition must not be a ubiquitous one; it must be a special hazard not generally encountered. There is general agreement that an employee who works at a height above ground is subjected to a special hazard. Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989).
Test is whether acts of employee at time of injury were solely for his own benefit, not whether the benefits to the employer are incidental or primary; if the acts were for his sole benefit, then his injury does not arise out of his employment. Brogger v. Kezer, 626 P.2d 700 (Colo. App. 1980); Kater v. Indus. Comm'n, 728 P.2d 746 (Colo. App. 1986).
Thus, accident "arises out of" employment where there is a causal connection between work conditions and injury. Gates Rubber Co. v. Indus. Comm'n, 112 Colo. 480, 150 P.2d 301 (1944); J. W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Claimants in re Death of Bennett v. Durango Furn. Mart, 136 Colo. 529, 319 P.2d 494 (1957); Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958); Indus. Comm'n v. Johnson Pontiac, Inc., 140 Colo. 160, 344 P.2d 186 (1959); Wesco Elec. Co. v. Shook, 143 Colo. 382, 353 P.2d 743 (1960); State Comp. Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965); Younger v. City & County of Denver, 810 P.2d 647 (Colo. 1991); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
An injury arises out of employment when it has its origin in an employee's work-related functions and is sufficiently related thereto as to be considered part of the employee's service to the employer in connection with the contract of employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Madden v. Mtn. W. Fabricators, 997 P.2d 861 (Colo. 1999); Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006).
Incident leading to claimant's injury arose out of claimant's employment as a matter of law where the entire incident occurred on the employer's premises, the parties were brought into contact through their employment, and the only alleged source of the animosity giving rise to the incident was events occurring as a result of the claimant's employment. Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo. App. 1992).
If travel is a substantial part of the employee's service to the employer, then it is sufficient by itself to demonstrate a causal connection between the employee's scope of employment and the injury. Staff Adm'rs, Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999).
Driving to work does not generally qualify as service "arising out of and in the course of" employment. Whether travel qualifies as such service depends upon the context of the employment. The court should consider the following variables when determining whether travel qualifies as such service: (1) Whether the travel occurred during working hours; (2) whether the travel occurred on or off the employer's premises; (3) whether the travel was contemplated by the employment contact; and (4) whether the obligations of conditions of employment created a "zone of special danger" out of which the injury arose. Madden v. Mtn. W. Fabricators, 977 P.2d 861 (Colo. 1999).
Injuries sustained in car accident which resulted from claimant's epileptic seizure are compensable because claimant's employment subjected her to the additional risk of vehicular travel and she was driving with the knowledge and permission of both her doctor and employer. Nat'l Health Labs. v. Indus. Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992).
Injuries that result from discharge do not arise until after the employment relationship is terminated. Thus, they do not arise out of or in the course of employment and therefore are not barred by the act. Smith v. Colo. Interstate Gas Co., 777 F. Supp. 854 (D. Colo. 1991); Golightly - Howell v. OCAW Intern. Union, 806 F. Supp. 921 (D. Colo. 1992) (decided under former 8-52-102 prior to the 1990 repeal and reenactment of the Workers' Compensation Act).
On the other hand, the term "in the course of" relates more particularly to the time, place, and circumstances under which the injury occurred. Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957); Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
The term "in the course of" refers to the time, place, and activity at the time of the injury. Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987).
For an injury to be found as occurring within the "course of employment", it must be established that the injury occurred both within the time and place limits of the employment relationship and during an activity that had some connection with the employee's job-related functions. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991); Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006).
The "course of employment" requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job-related functions. An injury "arises out of" employment when it has its origin in an employee's work-related functions and is sufficiently related thereto as to be considered part of the employee's service to the employer in connection with the contract of employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991); Wild W. Radio, Inc. v. Indus. Claim Appeals Office, 905 P.2d 6 (Colo. 1995).
The course of employment requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job-related functions. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
Although employer was aware of employee's propensity to seizures, that does not per se establish that the injuries he suffered as a result of a seizure occurring at work arose from the employment. Gates Rubber Co. v. Indus. Comm'n, 705 P.2d 6 (Colo. App. 1985).
A regulation cannot make that which is clearly not incident to employment fall within the course of employment. Rogers v. Indus. Comm'n, 40 Colo. App. 313, 574 P.2d 116 (1978).
Consequently, "arising out of" and "in the course of" are not synonymous, so that a claimant must meet both requirements where, as under the workmen's compensation act, the conditions are conjunctive. Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957); Younger v. City & County of Denver, 810 P.2d 647 (Colo. 1991).
The terms "arising out of" and "in the course of" are not interchangeable. An injury "arises out of" employment when it both has its origin in an employee's work-related functions and is sufficiently related to those functions such that it can be said to be part of the employee's service to the employer in connection with the contract of employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991).
Employer's personal delivery of paycheck and termination notice to employee at home, while employee was on sick leave and not performing services, "arose out of" but was not "in the course of" employment. Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002), aff'd on other grounds, 90 P.3d 228 (Colo. 2004).
The term "course of employment" refers to the time, place, and circumstances under which the injury occurred while an injury "arises out of employment" when the injury has its origin in work-related functions. L.E.L. Const. v. Goode, 849 P.2d 876 (Colo. App. 1992).
To come within the classification of "course of conduct", it must be shown that such conduct is such a continuous practice as to constitute a regular course of conduct. An occasional instance does not establish such a custom, because the proof of such a custom must be clear and convincing as to duration. Aetna Cas. & Sur. Co. v. Indus. Comm'n, 127 Colo. 225, 255 P.2d 961 (1953).
Whether horseplay is a deviation from employment is determined by a four-part test: (1) The extent and seriousness of the deviation; (2) the completeness of the deviation; (3) the extent to which the practice of horseplay had become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some horseplay. Lori's Fam. Din., Inc. v. Indus. Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995).
It is unnecessary to prove all four parts of the test to determine deviation; rather the four-part test serves merely as an objective method of analysis. The third and fourth parts of the test may be viewed merely as specific methods of proving that a claimant's actions became part of the employment. Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006).
Compensability is not precluded for an isolated incident of horseplay if the incident does not constitute a substantial deviation from the general course of employment. Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006).
If at the time of the injury the employee was doing what he expressly or impliedly was directed by his superiors to do, and the latter were vested with the authority to give him directions, then he was acting within the course of his employment. Walsh v. Indus. Comm'n, 34 Colo. App. 371, 527 P.2d 1180 (1974).
Application of positional-risk test proper to determine whether employee, in course of employment, was reasonably required to be at a particular place at a particular time and met with a neutral force which is neither personal to the injured employee nor distinctly associated with the employment. Younger v. City & County of Denver, 810 P.2d 647 (Colo. 1991).
Employer directions to employees for purposes of determining compensability. Such directions fall into one of two categories: (1) Those which limit the sphere of the employment relationship; or (2) those which simply regulate the employee's conduct while he is engaged in such employment. A general directive disclosing no intent to cause employment cessation for violation of the directive, without any other evidence of the purpose or effect of the direction upon claimant's general employment responsibilities, is insufficient to allow the conclusion that the direction limited the sphere of claimant's employment. Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989).
Injury while performing acts for mutual benefit of employer and employee. An injury suffered by an employee while performing acts for the mutual benefit of the employer and the employee is usually compensable. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
When some advantage to an employer results from the employee's conduct, his act cannot be regarded as purely personal and wholly unrelated to employment. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
Emergency or rescue activity is within course of employment if the employer has an interest in the rescue. Tri-State Commodities, Inc. v. Stewart, 689 P.2d 712 (Colo. App. 1984).
But the employee need not necessarily be engaged in the actual performance of work at the moment of injury in order to be entitled to compensation. It is enough if he is upon his employer's premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment. Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); Divelbiss v. Indus. Comm'n, 140 Colo. 452, 344 P.2d 1084 (1959); Packaging Corp. of Am. v. Roberts, 169 Colo. 316, 455 P.2d 652 (1969).
The mere fact that the injury befell the claimant at the moment when he was not performing labor for his employer does not necessarily prove that the accident did not arise out of or in the course of the employment. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
Mutual benefit doctrine may apply to claims involving union activity. Claimant, a union officer, was injured in the employer's parking lot after leaving a union meeting held at the employer's premises. Although union activities are generally not considered acts that mutually benefit the employee and employer, claimant's involvement at the union meeting benefitted herself and the employer because the union meeting involved discussions about a new collective bargaining agreement being negotiated between the union and the employer. Therefore, claimant's injuries were compensable. Pueblo County v. Indus. Claim Appeals Office, 2017 COA 74, 413 P.3d 348.
Injuries that occur off the work premises while employee is on a paid break raise the issues whether the employer retained control during the break period and whether the activity giving rise to the injuries constituted a deviation from employment so substantial as to remove it from the employment relationship. Roache v. Indus. Comm'n, 729 P.2d 991 (Colo. 1986).
Factors to be considered are duration of break, whether employment contract provides for break, whether break is a paid interval, whether off-premises location is close to employment site, whether employer permits off-premises breaks, and whether there are limitations on where employees go during break. Roache v. Indus. Comm'n, 729 P.2d 991 (Colo. 1986).
Where employee injured at convenience store, one block from work site, during a paid break, injuries arose out of and in the course of employment where employees were expressly permitted to go to such store because there were no vending machines or cafeteria on the employment premises. Roache v. Indus. Comm'n, 729 P.2d 991 (Colo. 1986).
Mere presence of company vehicle in driveway of employee's relative's home did not bring injury within the "course of employment" for purposes of this section. Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002), aff'd on other grounds, 90 P.3d 228 (Colo. 2004).
In order to determine whether an injury suffered by an employee while engaging in an exercise program is compensable under the Workers' Compensation Act, a court should look at the following factors: (1) Whether the injury occurred during working hours; (2) whether the injury occurred on the employer's premises; (3) whether the employer initiated the employee's exercise program; (4) whether the employer exerted any control or direction over the employee's exercise program; and (5) whether the employer stood to benefit from the employee's exercise program. Price v. Indus. Claim Appeals Office, 919 P.2d 207 (Colo. 1996).
A second injury sustained by a claimant during a trip to obtain medical care or rehabilitation for a compensable injury is compensable. Because an employer is required to provide medical treatment and an injured employee is required to submit to it, a trip to the doctor's office becomes an implied part of the employment contract. Excel v. Indus. Claim Appeals Office, 860 P.2d 1393 (Colo. App. 1993); Turner v. Indus. Claim Appeals Office, 111 P.3d 534 (Colo. App. 2004).
The "quasi-course of employment doctrine" has been utilized to extend liability to subsequent injuries incurred in certain activities that take place outside the time and space limits of normal employment and would not be considered employment activities for usual purposes. Liability is extended because these activities would not have been undertaken but for the compensable injury and are an implied part of the employment contract. Schrieber v. Brown & Root, Inc., 888 P.2d 274 (Colo. App. 1993).
There was no error in the panel's conclusion that as a matter of law claimant was not entitled to benefits under the "quasi-course of employment doctrine" for injuries sustained during a trip to an unauthorized treatment provider since, although the trip may have been reasonable, it was not an implied condition or expectation of the claimant's employment. Schrieber v. Brown & Root, Inc., 888 P.2d 274 (Colo. App. 1993).
If the injury arises from something incident to the employment. Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); State Comp. Ins. Fund v. Coleman, 155 Colo. 82, 392 P.2d 598 (1964).
Thus, injury comes within course of employment where, but for hazard of occupation, injury would not have happened. Indus. Comm'n v. Irvine, 72 Colo. 573, 212 P. 829 (1923); Ellerman v. Indus. Comm'n, 73 Colo. 20, 213 P. 120 (1923); Indus. Comm'n v. Colo. Fuel & Iron Corp., 135 Colo. 307, 310 P.2d 717 (1957); Alexander Film Co. v. Indus. Comm'n, 136 Colo. 486, 319 P.2d 1074 (1957).
Even if risk or hazard is external to the employment. Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957).
But where an employee is injured during a period of departure from his employment activities, he is not within the coverage and protection of the act. Gen. Plant Prot. Corp. v. Indus. Comm'n, 146 Colo. 191, 361 P.2d 138 (1961); Employers' Liab. Assurance Corp. v. Indus. Comm'n, 147 Colo. 309, 363 P.2d 646 (1961).
And where workman disobeys a rule or order limiting the sphere of employment, he cannot recover compensation. Indus. Comm'n v. Funk, 68 Colo. 467, 191 P. 125 (1920); Fouquet v. State Comp. Ins. Fund, 144 Colo. 240, 355 P.2d 943 (1960).
But may recover if the rule deals only with his conduct within the sphere of his employment. Indus. Comm'n v. Funk, 68 Colo. 467, 191 P. 125 (1920); Pacific Employers' Ins. Co. v. Kirkpatrick, 111 Colo. 470, 143 P.2d 267 (1943).
And an employee does not step from the course of his employment when he allows one not an employee to drive a truck on a mission for the employer but is at the time in the course of his employment. W. Cas. & Sur. Co. v. Swort, 134 Colo. 421, 306 P.2d 661 (1957).
Furthermore, an employee is not entitled to compensation for a later accident due to an efficient intervening cause not arising out of and in course of employment. Post Printing & Publ'g Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934).
But if subsequent accident is attributed to the prior accident, it is compensable. Any subsequent natural development of an industrial injury, uninfluenced by an independent intervening cause, resulting in additional disability of an employee, should be attributed to the original accident and compensation awarded therefor. Post Printing & Publ'g Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
Injuries incurred in act of discharge. The act of discharging an employee is an integral part of the employment relationship, making injuries arising out of discharge casually connected to that employment. Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975).
Injuries within reasonable time of termination. Injuries incurred by an employee while leaving the premises, collecting pay, or getting his clothes or tools within a reasonable time after termination of the employment are within the course of employment, since they are normal incidents of the employment relation. Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975).
Claimant's injuries arose in the course of his employment where he had been discharged several minutes prior to an assault. Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975).
Acts of self-ministration held within scope of employment. Acts of self ministration, such as eating, obtaining lodging, and going to and from those places have been held incidental to and within the scope of employment of an employee required to be away from home on behalf of his employer. Archer Freight Lines v. Horn Transp., Inc., 32 Colo. App. 412, 514 P.2d 330 (1973).
Acts reasonably necessary for the employee's health are within the course of employment. Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, and protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the workmen's compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade. Ocean Accident & Guar. Corp. v. Pallaro, 66 Colo. 190, 180 P. 95 (1919); Employers' Mut. Ins. Co. v. Indus. Comm'n, 76 Colo. 84, 230 P. 394 (1924); Pub. Serv. Co. v. Indus. Comm'n, 80 Colo. 206, 249 P. 1094 (1926); Warner Constr. Co. v. Watkins, 107 Colo. 88, 108 P.2d 883 (1940); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); Divelbiss v. Indus. Comm'n, 140 Colo. 452, 344 P.2d 1084 (1959); Game & Fish Dept. v. Pardoe, 147 Colo. 363, 363 P.2d 1067 (1961); Silver Eng'r Works, Inc. v. Simmons, 30 Colo. App. 396, 495 P.2d 246 (1972).
Therefore, an injury while eating lunch on the premises of an employer is compensable. Employers' Mut. Ins. Co. v. Indus. Comm'n, 76 Colo. 84, 230 P. 394 (1924); Warner Constr. Co. v. Watkins, 107 Colo. 88, 108 P.2d 883 (1940); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Divelbiss v. Indus. Comm'n, 140 Colo. 452, 344 P.2d 1084 (1959).
Because courts generally have been liberal in protecting workers during the noon hour if the injury occurs while the worker is doing what a person may reasonably do within a time during which the person is employed and at a place where he may reasonably be at that time. Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952).
Trips to and from a meal. Injuries sustained by teacher who leaves his place of employment to go to a restaurant to eat during his lunch hour are compensable under workmen's compensation act where the teacher was required to return to school that afternoon and there was no option of eating in the school cafeteria. City & County of Denver Sch. Dist. No. 1 v. Indus. Comm'n, 196 Colo. 131, 581 P.2d 1162 (1978).
But there must be a sufficient nexus between employment and injury. Off-premises lunchtime travel generally falls within the to and from work rule and is not compensable. For an injury occurring during such travel to fall within the scope of employment, there must be a sufficient nexus between the employment and the injury. Perry v. Crawford & Co., 677 P.2d 416 (Colo. App. 1983).
Intentional wrongs are covered. Intentional wrongs arising out of the course of employment are covered under Colorado's compensation scheme. Kandt v. Evans, 645 P.2d 1300 (Colo. 1982); Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo. App. 1992).
Where employee was at a place where he might reasonably be at a time when he was employed doing what he might reasonably do, employee's injuries held to have occurred in the course of his employment. Portofino Apts. v. Indus. Claim Appeals Office, 789 P.2d 1117 (Colo. App. 1990).
If the work of an employee creates the necessity for travel, he is in the course of his employment when on the road, although he may at the same time be serving some purpose of his own, and if he is injured during such a trip he, or his dependents, are entitled to compensation. O.P. Skaggs Co. v. Nixon, 101 Colo. 203, 72 P.2d 1102 (1937); Aetna Cas. & Sur. Co. v. Indus. Comm'n, 110 Colo. 422, 135 P.2d 140 (1943); Alexander Film Co. v. Indus. Comm'n, 136 Colo. 486, 319 P.2d 1074 (1957); Lyttle v. State Comp. Ins. Fund, 137 Colo. 212, 322 P.2d 1049 (1958); Employers' Liab. Assurance Corp. v. Indus. Comm'n, 147 Colo. 309, 363 P.2d 646 (1961); State Comp. Ins. Fund v. Keane, 160 Colo. 292, 417 P.2d 8 (1966); Mohawk Rubber Co. v. Claimants in re Death of Cribbs, 165 Colo. 526, 440 P.2d 785 (1968); Pat's Power Tongs, Inc. v. Miller, 172 Colo. 541, 474 P.2d 613 (1970); Tatum-Reese Dev. Corp. v. Indus. Comm'n, 30 Colo. App. 149, 490 P.2d 94 (1971); Silver Eng'r Works, Inc. v. Simmons, 30 Colo. App. 396, 495 P.2d 246 (1972); Silver Eng'g Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973).
But in determining whether the risks of travel are also risks of the employment the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure of its perils. Employers' Liab. Assurance Corp. v. Indus. Comm'n, 147 Colo. 309, 363 P.2d 646 (1961); Martin K. Eby Const. Co. v. Indus. Comm'n, 151 Colo. 320, 377 P.2d 745 (1963); Capital Chevrolet Co. v. Indus. Comm'n, 159 Colo. 156, 410 P.2d 518 (1966).
When accident during employee's travel is within scope of employment. If an employee's 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 employee's arrival, or if the employer makes provisions for the employee's transportation, then any disability resulting from an accident during that travel is within the scope of employment. Loffland Bros. v. Baca, 651 P.2d 431 (Colo. App. 1982); Staff Adm'rs, Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999).
In any event, when an employee is required to travel away from home, the activities covered by workmen's compensation are enlarged as the employee has no choice but to eat, sleep, and conduct all his other activities away from his home. Silver Eng'r Works, Inc. v. Simmons, 30 Colo. App. 396, 495 P.2d 246 (1972).
And the employer may not succeed in showing a deviation from the main objective while traveling by merely establishing that decedent's vehicle, at least momentarily, was proceeding in a direction opposite from his objective. Employers' Liab. Assurance Corp. v. Indus. Comm'n, 147 Colo. 309, 363 P.2d 646 (1961).
Where an employee, without express authority but with the intent of acting for the benefit of the employer, returned to his place of work after hours and was injured, his injury arose out of and in the course of his employment. Maint. Mgt., Inc. v. Tinkle, 40 Colo. App. 80, 570 P.2d 840 (1977).
When an employer does nothing more than fix an employee's general work time and the employer benefits from an employee's reasonable departure from schedule, he cannot argue that injuries sustained in the departure are not within the course of employment. Maint. Mgt., Inc. v. Tinkle, 40 Colo. App. 80, 570 P.2d 840 (1977).
Industrial claim appeals office correctly determined that claimant's injury arose out of and in the course of employment where claimant's injury occurred while claimant, who worked on an "as needed" basis, was voluntarily assisting in a repair of a piece of heavy equipment which furthered the interest of the employer even though the injury occurred two hours after the claimant had been told that he was no longer required to work. Butland v. Indus. Claim Appeals Office, 754 P.2d 422 (Colo. App. 1988).
Travel to required meeting after normal working hours. Where claimant was attending an off-premises dinner meeting, after normal working hours, under at least the implied direction of her employer, and travel to and from the meeting was a necessity, these special circumstances justify the determination that claimant's injuries while returning from the meeting were compensable. Dynalectron Corp. v. Indus. Comm'n, 660 P.2d 915 (Colo. App. 1982).
Motorman asleep in car barn held to be acting within course of employment. Taylor v. Saunders, 71 Colo. 160, 204 P. 608 (1922).
As is a man who visits the home of another upon the instructions of his employer. London Guarantee & Accident Co. v. McCoy, 97 Colo. 13, 45 P.2d 900 (1935).
The same being true of a building foreman who starts to another locality to proceed with another building. Indus. Comm'n v. Aetna Life Ins. Co., 64 Colo. 480, 174 P. 589 (1918).
Or an employee who uses his own car to perform services for or at the direction of his employer remains in the course of his employment until he returns home. Indus. Comm'n v. Aetna Life Ins. Co., 88 Colo. 82, 292 P. 229 (1930); Driscoll Constr. Co. v. Indus. Comm'n, 94 Colo. 568, 31 P.2d 491 (1934); Elec. Mut. Liab. Ins. Co. v. Indus. Comm'n, 154 Colo. 491, 391 P.2d 677 (1964).
And police officer's injury arises out of and in course of city employment even though also employed by bank. The city employed an officer to enforce the law and authorized him to make arrests. His place of work was the entire territory within the municipal boundaries of the city. The officer was on duty at all times when he was performing the duties required by his employment. At the time of the accident, he was in his official uniform and was attempting to arrest a suspected bank robber in a public street. The accident in which the officer was injured was therefore one arising out of and in the course of his employment by the city, and he is therefore entitled to compensation as a city employee. The officer's claim to compensation is not defeated because he was also employed by the bank as a guard at the time of the accident. Dore v. City & County of Denver, 28 Colo. App. 324, 474 P.2d 190 (1970).
Injury to newsboy while storing bicycle on publishing company property. Where claimant was obligated to deliver all of his assigned newspapers within the two to three hour time span following his release from school and 6:00 p.m.; a bicycle was a necessary aid in the performance of his job-related activities, and the owner of the publishing company approved claimant's storing his bicycle during school hours on company property after acts of vandalism had occurred on the school grounds, claimant's injury, suffered while storing his bicycle, arose out of and occurred in the course of his employment and was compensable. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
Truck driver replacing old tires with new is within course of employment. Zelle v. Indus. Comm'n, 100 Colo. 116, 65 P.2d 1429 (1937).
As is employee compelled to live in house furnished by employer. State Comp. Ins. Fund v. Indus. Comm'n, 98 Colo. 563, 58 P.2d 759 (1936).
Or university student-employee injured while playing football. Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953).
Or coal miner whose eye was injured by a cinder from employer's locomotive. Hayden Coal Co. v. Cothran, 109 Colo. 203, 123 P.2d 1022 (1942).
And trauma resulting from fall on truck cab compensable. Indus. Comm'n v. Betz, 111 Colo. 401, 142 P.2d 389 (1943).
As is illness from tick bite. S. Colo. Power Co. v. Indus. Comm'n, 118 Colo. 186, 193 P.2d 885 (1948).
Or injuries resulting from vaccination or inoculation. Indus. Comm'n v. Messinger, 116 Colo. 451, 181 P.2d 816 (1947).
Where an employee on duty suffers an injury caused by the playful action of a fellow employee, in which the injured employee is not a participant, such injury arises out of and in the course of employment and is compensable under pertinent provisions of the workmen's compensation act. Gates Rubber Co. v. Indus. Comm'n, 112 Colo. 480, 150 P.2d 301 (1947); Indus. Comm'n v. Employers Cas. Co., 136 Colo. 396, 318 P.2d 216 (1957).
But where an employee while engaged in his usual employment was shot by another without any reason, as appeared by the record, it is held, under the disclosed facts, that the injury did not arise out of and in the course of the employment. Rocky Mt. Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d 868 (1934).
There is no recovery where two employees step aside from their employment and indulge in gun play. McKnight v. Houck, 87 Colo. 234, 286 P. 279 (1930).
In addition, assaults by co-employees are not ordinarily considered as incidental to the employment and do not "arise out of employment". Wisdom v. Indus. Comm'n, 133 Colo. 266, 293 P.2d 967 (1956); Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987).
However, injuries might be compensable if assault is reasonably anticipated. If an assault might reasonably be anticipated because of the general nature or character of the employment, then in some instances, controlled entirely by the facts presented, injuries received as a result thereof are compensable. Wisdom v. Indus. Comm'n, 133 Colo. 266, 293 P.2d 967 (1956).
But injuries compensable under the act include injuries arising from the intentional acts of a co-employee, as long as the requisite degree of job-relatedness is present. Bennett v. Furr's Cafeterias, Inc., 549 F. Supp. 887 (D. Colo. 1982), appeal dismissed, 455 U.S. 930, 102 S. Ct. 1415, 71 L. Ed. 2d 639 (1982).
Co-employee immunity for intentional wrongs is strictly limited to injuries sustained where both the tortfeasor and the victim are acting in the course of their employment. Kandt v. Evans, 645 P.2d 1300 (Colo. 1982); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
Dispositive issue was whether employee was acting in course of her employment, and not whether assaulting employees were acting in course of their employment. Stuart v. Frederick R. Ross Inv. Co., 773 P.2d 1107 (Colo. App. 1988).
But where the sexual assault of an employee by a co-employee did not arise from animosity or dispute that is imported into employment from the employee's domestic or private life, the assault arose out of the course of her employment and, therefore, worker's compensation was the exclusive remedy. In re Quest. Sub. by U.S. Ct. of Appeals, 759 P.2d 17 (Colo. 1988).
Injuries arising from assaults by co-employees have an inherent connection with employment conditions if they grow out of an argument over such conditions. In addition, even though the subject matter of the argument is a personal one, if it was the circumstance of their mutual employment that brought the participating employees together and created the relationship and condition that resulted in the dispute, any injuries are considered to be employment-related. Banks v. Indus. Claim Appeal Office, 794 P.2d 1062 (Colo. App. 1990); Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo. App. 1992).
On the other hand, if a dispute between co-employees relates solely to a personal matter between the combatants, not arising from the employment relationship, any injuries resulting from that dispute have no nexus to the combatants' employment, do not arise out that employment, and are not, therefore, compensable. Banks v. Indus. Claim Appeals Office, 794 P.2d 1062 (Colo. App. 1990).
Inherently employment-related torts are those that have an inherent connection with employment and emanate from the duties of the job, while inherently private torts are those that originate in the private affairs of the claimant and tortfeasor and are unrelated to their respective employment functions. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
For the purpose of the "arising out of employment" requirement of the workers' compensation act, assaults upon employees can be divided into three categories: (1) Those with an "inherent connection" to employment such as a dispute over performance, pay, or termination; (2) those stemming from "inherently private" disputes imported into the employment from the claimant's domestic or private life and not exacerbated by the employment; and (3) those resulting from a "neutral force" such as random assaults. In re Quest. Sub. by U.S. Ct. of Appeals, 759 P.2d 17 (Colo. 1988); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
When the cause of an employee's fall is truly unknown, it necessarily arises from a "neutral risk". City of Brighton v. Rodriguez, 2014 CO 7, 318 P.3d 496.
An assault is compensable if it grew out of an argument over performance of work, possession of work tools or equipment, delivery of a paycheck, quitting or being terminated, or mediating between quarreling co-employees. In re Quest. Sub. by U.S. Ct. of Appeals, 759 P.2d 17 (Colo. 1988); Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
The workers' compensation act does not expressly authorize a defense against an initial aggressor in an altercation leading to an otherwise compensable injury. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
Assault on employee by co-employee did not arise out of employment and therefore employee's tort claim against employer for hiring a rapist was not subject to the exclusive remedies of the act. Tolbert v. Martin Marietta Corp., 621 F. Supp. 1099 (D. Colo. 1985).
Where it appears that the plaintiff was specifically chosen as the victim in a sexual assault as a result of circumstances arising outside of the plaintiff's employment, the exclusivity provisions of the Workers' Compensation Act do not apply, and the dismissal of the plaintiff's common law claims is reversed. Patel v. Thomas, 793 P.2d 632 (Colo. App. 1990).
If plaintiff proves he was specifically targeted when subjected to racial and ethnic jokes, his tort claim will stand outside of the Workers' Compensation Act. Mass v. Martin Marietta Corp., 805 F. Supp. 1530 (D. Colo. 1992).
Teacher's injuries allegedly sustained from reprimand, harassment, retaliatory demotion, and assault by her superintendent did not arise out of her employment and therefore tort action for recovery of damages was not barred by Colorado Workmen's Compensation Act. Kirk v. Smith, 674 F. Supp. 803 (D. Colo. 1987).
Employees' claims of outrageous conduct based on federal pregnancy discrimination and sexual harassment statutes did not arise out of their employment and therefore were not barred by the Colorado Worker's Compensation Act. Donaldson v. Am. Banco Corp., Inc., 945 F. Supp. 1456 (D. Colo. 1996).
Injury not compensable where employee left his work at the request of a nine-year-old son of his employer. Chaney v. Indus. Comm'n, 120 Colo. 111, 207 P.2d 816 (1949).
Nor is injury sustained in submitting to blood test required by health regulation. Indus. Comm'n v. Messinger, 116 Colo. 451, 181 P.2d 816 (1947).
Injury in auto accident while returning from company baseball game does not arise out of employment. Indus. Comm'n v. Murphy, 102 Colo. 59, 76 P.2d 741 (1938).
But claimant is entitled to compensation where the claimant was required to play football in order to hold his job. Divelbiss v. Indus. Comm'n, 140 Colo. 452, 344 P.2d 1084 (1959).
Plaintiff's argument that he was reentering store as a customer rather than an employee when the altercation which resulted in plaintiff's injury occurred is unfounded. The fact that the employment premises were public and plaintiff could be an employee one minute and a customer the next was irrelevant because it is not the nature of the employment premises, but the nexus between the employment conditions and the injury, which is determinative. Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo. App. 1992).
The majority rule is that the courts will not look to the relative fault of the combatants to determine eligibility for receipt of benefits. If injuries occur as a result of a physical altercation between co-employees which stems from a dispute having a substantial connection with their employment, the employees are entitled to compensation for such injuries, regardless of the identity of the party initiating the altercation. Banks v. Indus. Claim Appeals Office, 794 P.2d 1062 (Colo. App. 1990).
The injuries of an employee of a subcontractor are not rendered noncompensable for failure to satisfy the "arising out of employment" requirement simply because they were caused by an intentional act of a supervisor employed by the general contractor. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
The fact that a claimant may overreact to an adverse condition of employment, or that the overreaction may stem from some unusual quality of the claimant's personality, does not alter the fact that the subject of that reaction had an inherent connection with employment. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
Several variables determine by their presence or absence whether a particular recreational activity is within the scope of employment: Whether the activity occurred during working hours; whether it was on or off the employer's premises; whether participation was required; whether the employer took the initiative in sponsoring or organizing the team; whether the employer made contributions to the team; and whether the employer derived benefit from the team. Lindsay v. Pub. Serv. Co., 146 Colo. 579, 362 P.2d 407 (1961); Murphey v. Marquez, 155 Colo. 89, 393 P.2d 553 (1964); City & County of Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (1969).
Question of whether an employee who is injured while engaging in a job-related recreational activity is within the course of his employment determined by: (1) Whether the activity occurred during working hours; (2) whether it was on the employer's premises; (3) whether participation was required; (4) whether the employer took the initiative in sponsoring the recreational activity. Dorsch v. Indus. Comm'n, 185 Colo. 219, 523 P.2d 458 (1974).
Where the employer's principal business is recreation, the weight of authority holds that the following test should be applied to determine whether the injured employee was in the course of employment: (1) The extent to which the employer derives substantial benefit from the policy--beyond the intangible value of improvement of employee morale; (2) the extent to which the recreational activity represents compensation for employment; (3) the extent to which the obligations of employment create the special danger which precipitates the injury; (4) whether the use of the recreational activity was an inducement for employment; (5) whether the use of the recreational facility was originally contemplated by the parties at the time of employment. Dorsch v. Indus. Comm'n, 185 Colo. 219, 523 P.2d 458 (1974).
Positional risk doctrine met. Where claimant's job placed her at a particular place at a particular time and the injury resulted from a neutral force, i.e., an attack which is neither personal to her nor distinctly associated with her employment, claimant met her burden of establishing that injury arose as a result of her employment. White Star Linen v. Indus. Claim Appeals Office, 787 P.2d 189 (Colo. App. 1989).
Encounters with an armed assailant do not constitute facts and circumstances common to all fields of employment. White Star Linen v. Indus. Claim Appeals Office, 787 P.2d 189 (Colo. App. 1989).
Plaintiff's claims for damages for emotional distress are based on work-related acts of his program chiefs and his recovery is limited by the provisions of the workmen's compensation act. Calderon v. Martin Marietta Corp., 675 F. Supp. 1279 (D. Colo. 1987).
Workers' compensation act is sole remedy for plaintiff's claim for intentional infliction of emotional distress, where the conduct cited in support of the claim relates to disciplinary measures imposed by her employer to prevent her from tending to personal matters during work. Smith v. Colo. Interstate Gas Co., 794 F. Supp. 1035 (D. Colo. 1992).
The language in subsection (2)(c) requiring that stress-related claims not be based upon facts and circumstances that are common to all fields of employment does not bar as a matter of law all claims arising out of a common work condition; rather compensability depends upon the particular facts and circumstances of each case. Holme, Roberts, & Owen v. Indus. Claim Appeals Office, 800 P.2d 1332 (Colo. App. 1990).
Employee's sudden job demotion was not based upon circumstances which are common to all fields of employment; therefore, claim arising out of job demotion was not barred. Holme, Roberts, & Owen v. Indus. Claim Appeals Office, 800 P.2d 1332 (Colo. App. 1990).
Mental health impairment caused by multiple employment stressors, some of which were common to all fields of employment, was not compensable. Trujillo v. Indus. Claim Appeals Office, 957 P.2d 1052 (Colo. App. 1998).
Psychological illness arising from work stress associated with harassment by co-workers is eligible for compensation. When mental illness primarily results from harassment at work, benefits will be awarded. Pub. Serv. of Colo. v. Indus. Claim Appeals Office, 68 P.3d 583 (Colo. App. 2003).
Heart attack not compensable where it follows activity not required by position. A fatal heart attack to dean of law school following preparation and delivery of speech at banquet of legal fraternity of which he was province president, which activity was not a requirement of his position as dean of law school, was not compensable as accident arising out of and in the course of his employment. Univ. of Denver v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963).
And heart attack not "arising out of employment" not compensable even if "arising in course of employment". Coors Porcelain Co. v. Grenfell, 109 Colo. 39, 121 P.2d 669 (1942).
No recovery where deputy water commissioner is killed by gun carried for own sport. State Comp. Ins. Fund v. Russell, 105 Colo. 274, 96 P.2d 846 (1939).
Nor when employee injured by slipping on soap in bath house maintained by employer for employees. Indus. Comm'n v. Rocky Mt. Fuel Co., 107 Colo. 226, 110 P.2d 654 (1941).
Nor when salesman injured while hunting with employees of customer. Aetna Cas. & Sur. Co. v. Indus. Comm'n, 127 Colo. 225, 255 P.2d 961 (1953).
Concrete floor held not to be a special hazard of employment. Gates Rubber Co. v. Indus. Comm'n, 705 P.2d 6 (Colo. App. 1985).
Trial court was not bound by the findings and conclusions of ALJ and Panel where there was no substantial evidence to support that employer's system of rotating credit union employees was a common practice in credit union industry, much less a practice common to all fields of employment. Peterson v. ENT Fed. Credit Union, 827 P.2d 621 (Colo. App. 1992) (decided under law in effect prior to 1991 amendment).
Since the language providing that a mental impairment is not compensable if, inter alia, it results from a job transfer, was absent from subsection (2)(a) prior to the 1991 changes by the general assembly, it is reasonable to conclude that the general assembly did not intend to preclude benefits for all job transfers occurring before the 1991 amendment took effect. Peterson v. ENT Fed. Credit Union, 827 P.2d 621 (Colo. App. 1992) (decided under law in effect prior to 1991 amendment).
For purposes of subsection (2)(c), it is not necessary to logically tie stress producing incidents to a particular line of work. City Market, Inc. v. Indus. Claim Appeals Office, 800 P.2d 1335 (Colo. App. 1990).
Where claimant's work-related stress occurred as a result of smoking restrictions imposed by the employer, claimant failed to satisfy the requirements of subsection (2) because the evidence was sufficient to show that smoking restrictions are common in today's workplace and that the restriction at issue was not imposed in a manner which was arbitrary, unreasonable, or in bad faith. Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992).
A suicide attempt that is causally related to an industrial injury is compensable. A self-destructive act is deemed unintentional if the effects of the industrial injury are the cause of a mental condition sufficient in magnitude to impair the ability to resist suicidal impulses or to cause an injured worker to commit self-destructive acts without knowingly intending to end his or her life. Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo. App. 1994).
The language "intentionally self-inflicted" cannot be read so broadly that it encompasses injuries resulting from grossly negligent or reckless behavior. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
Applied in Pittman Motors, Inc. v. Indus. Comm'n, 156 Colo. 218, 399 P.2d 784 (1964).
B. Employee Going to and from Work.
In the absence of special circumstances there is no recovery for injury while employee is on his way to or from work. Indus. Comm'n v. Anderson, 69 Colo. 147, 169 P. 135 (1917); State Comp. Ins. Fund v. Indus. Comm'n, 89 Colo. 426, 3 P.2d 414 (1931); State Comp. Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960); J. C. Carlile Corp. v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967); Indus. Comm'n v. Lavach, 165 Colo. 433, 439 P.2d 359 (1968); Sieck v. Trueblood, 29 Colo. App. 432, 485 P.2d 134 (1971); Mineral County v. Indus. Comm'n, 649 P.2d 728 (Colo. App. 1982); Staff Adm'rs v. Indus. Claim Appeals Office, 958 P.2d 509 (Colo. App. 1997), aff'd, 977 P.2d 866 (Colo. 1999).
An employee injured while traveling to or from work is generally not entitled to compensation; however, this rule is subject to exception when special circumstances bring the accident within the course of employment. Colo. Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo. App. 1983); Perry v. Crawford & Co., 677 P.2d 416 (Colo. App. 1983); Varsity Contractors & Home Ins. Co. v. Baca, 709 P.2d 55 (Colo. App. 1985).
The mere presence of the injured employee on the employer's premises is, without more, insufficient to invoke the bar of this section. Stewart v. United States, 716 F.2d 755 (10th Cir. 1982), cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).
Off-premises injuries are not compensable if employees have fixed hours of employment and the injury takes place while going "to or from" work. Walsh v. Indus. Comm'n, 34 Colo. App. 371, 527 P.2d 1180 (1974).
As a general rule, injuries received by an employee off the employer's premises are not compensable when such injuries occur after the fixed hours of employment and in the course of going to or coming from work. Woodruff World Travel, Inc. v. Indus. Comm'n, 38 Colo. App. 92, 554 P.2d 705 (1976); Colo. Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo. App. 1983); Varsity Contractors & Home Ins. Co. v. Baca, 709 P.2d 55 (Colo. App. 1985).
Accident while employee was on way to work arose out of and was in course of employment where employer agreed to provide or pay for worker's transportation, and where worker was killed while using vehicle strictly for business purposes in direct route to his job accompanied by evidence that worker's home and vehicle had become part of his workplace. Monolith Portland Cement v. Burak, 772 P.2d (Colo. App. 1989).
If travel is a substantial part of the employee's service to the employer, then it is sufficient by itself to demonstrate a causal connection between the employee's scope of employment and the injury. Staff Adm'rs, Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999).
One of the exceptions to the "coming and going rule" is that where an employee is in a travel status, as distinguished from simply going to and from work, he is normally within the course of his employment from the time he leaves his home until he returns to it. Tatum-Reese Dev. Corp. v. Indus. Comm'n, 30 Colo. App. 149, 490 P.2d 94 (1971).
Accident occurred within the scope of employment when employee was traveling between job assignments for the employer. Because of the nature of the employment of a home health aide, the travel between assignments conferred a benefit on employer beyond the mere fact of the employee's arrival at work, and there is a sufficient nexus between the employee's injury and her employment to determine as a matter of law that the accident occurred within the scope of employment. Benson v. Colo. Comp. Ins. Authority, 870 P.2d 624 (Colo. App. 1994).
Recovery allowed when employee was required to use her automobile to meet with clients during work day. Whale Commc'ns v. Osborn, 759 P.2d 848 (Colo. App. 1988).
And employer and employee may agree to continue employment relation while going to and from work. An employer may agree with an employee, either expressly or impliedly, that the relationship of employer and employee shall continue during the period of coming and going to and from his place of employment; in such case the employee is entitled to protection of the compensation act during that period, and such agreement may be inferred from the fact that the employee is compensated for the time consumed in traveling to and from work. Martin K. Eby Constr. Co. v. Indus. Comm'n, 151 Colo. 320, 377 P.2d 745 (1963); Nelson v. Harding, 29 Colo. App. 76, 480 P.2d 851 (1970); Sieck v. Trueblood, 29 Colo. App. 432, 485 P.2d 134 (1971).
An employer may agree, expressly or impliedly, that the employment relation shall continue during the period of coming to and going from work. Colo. Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo. App. 1983).
"Special circumstances" may give rise to benefits under the workmen's compensation law even though the workman has "put down his tools" and is in the act of leaving the premises of his employer. State Comp. Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960).
If special circumstances surrounding the employee's injury reflect a causal connection between the conditions under which the work is to be performed and the resulting off-premises injury, compensation is proper. Woodruff World Travel, Inc. v. Indus. Comm'n, 38 Colo. App. 92, 554 P.2d 705 (1976); Friedman's Mkt., Inc. v. Welham, 653 P.2d 760 (Colo. App. 1982); Perry v. Crawford & Co., 677 P.2d 416 (Colo. App. 1983).
An injury arises out of and in the course of employment even though incurred on the way to work if special circumstances create a causal connection between the employee's injury and employment. Stewart v. United States, 716 F.2d 755 (10th Cir. 1982), cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984); Staff Adm'rs v. Indus. Claim Appeals Office, 958 P.2d 509 (Colo. App. 1997), aff'd, 977 P.2d 866 (Colo. 1999).
Special hazards on normal route may become hazards of employment. Where an off-premises injury occurs at a point which lies on the only route, or at least on the normal route, which employees must traverse to reach their employer's premises, special hazards of that route become hazards of the employment. Friedman's Mkt., Inc. v. Welham, 653 P.2d 760 (Colo. App. 1982).
Such as railroad crossings. Railroad crossings and rights-of-way are typically recognized as a special hazard. Friedman's Mkt., Inc. v. Welham, 653 P.2d 760 (Colo. App. 1982).
But not where access route not used exclusively by employees. But underlying the exception is the requirement that exposure to the route and the hazard is not shared to too great an extent by the general public. Perry v. Crawford & Co., 677 P.2d 416 (Colo. App. 1983).
Claimant exposed to additional hazard in going to work. Where because the employer persisted in directing the employee to come to work, she was exposed to an additional and unusual hazard, namely, the walk from her home over an icy street to her car, employee was injured performing an act necessary to her employment, while under the specific direction of her employer. Her injury, therefore, arose out of and in the course of her employment. Walsh v. Indus. Comm'n, 34 Colo. App. 371, 527 P.2d 1180 (1974).
Accidents occurring in or en route to parking lots are compensable. Accidents occurring in or en route to parking lots maintained on its premises or provided by the employer for the benefit of its employees, are compensable as arising out of and in the course of the employment, even though occurring on the way to or from the place of employment and on a public road or way dividing the place of employment from the parking lot. State Comp. Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960).
Injury in adjacent parking lot. Where claimant was injured in the parking lot adjacent to employer's office building, which lot was not owned, maintained, or controlled by the employer, there were special circumstances which reflected a causal connection between claimant's employment and her injury, since space in the parking lot was afforded the employer for the use of its employees, and the employer was aware that its employees used the lot. Parking privileges constituted an obvious fringe benefit to claimant, and claimant was injured while in the act of enjoying that benefit. Woodruff World Travel, Inc. v. Indus. Comm'n, 38 Colo. App. 92, 554 P.2d 705 (1976).
A parking lot injury sustained before work hours is causally related to employment as contemplated by the workmen's compensation act where the work supervisor expects employees to be dressed and ready to work at a certain hour and expects that employees will drive or ride to work in private vehicles because there is no other transportation, and where the principal use of the lot is for employee parking, both employee and employer benefitting from the availability of the lot. Stewart v. United States, 716 F.2d 755 (10th Cir. 1982), cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).
Fact that employee had permission to park car on employer's premises is irrelevant when injury received on way home. Indus. Comm'n v. Enyeart, 81 Colo. 521, 256 P. 314 (1927).
And no recovery even when injury on employer's premises where employee is riding home with a fellow employee. Indus. Comm'n v. Enyeart, 81 Colo. 521, 256 P. 314 (1927).
However, recovery may be had where employer requests employee to bring his truck to work with him. State Comp. Ins. Fund v. Indus. Comm'n, 89 Colo. 426, 3 P.2d 414 (1931).
As well as when employer agrees to furnish transportation. State Comp. Ins. Fund v. Batis, 117 Colo. 1, 183 P.2d 891 (1947); J. C. Carlile Corp. v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967); Indus. Comm'n v. Lavach, 165 Colo. 433, 439 P.2d 359 (1968); Kitchens v. Dept. of Labor & Emp. Div. of Labor, 29 Colo. App. 374, 486 P.2d 474 (1971).
Or where there is a mutual agreement for transportation and employer consents to employee's riding with another. Wells v. Cutler, 90 Colo. 111, 6 P.2d 459 (1931).
And the same is true of a mailman who furnishes his own truck by contract. Comstock v. Bivens, 78 Colo. 107, 239 P. 869 (1925).
Or where an automobile salesman has been directed to take a car home. Indus. Comm'n v. Irvine, 72 Colo. 573, 212 P. 829 (1923); Indus. Comm'n v. Pueblo Auto Co., 71 Colo. 424, 207 P. 479 (1922).
Or a school superintendent who falls through a trap door while removing school supplies from his car. Ryan v. Indus. Comm'n, 89 Colo. 393, 3 P.2d 300 (1931).
Or an employee making his way home along the line of work it was his duty to patrol. Indus. Comm'n v. Hunter, 73 Colo. 226, 214 P. 393 (1923); Colo. Contracting Co. v. Indus. Comm'n, 74 Colo. 206, 219 P. 1075 (1923).
Bank messenger carrying gun and going into post office is acting within course of employment. Sec. State Bank v. Propst, 99 Colo. 67, 59 P.2d 798 (1936).
Coal miner. When employee had arrived on the premises of his employer, had changed his clothes, and "was hurrying down the pit car track" to the check room to get his mine check and lamp, in direct and immediate response to the employer's warning whistle, he was performing service within the course of his employment. Indus. Comm'n v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944).
The requirement that a policeman be "always on duty" is not an exception to the rule that no recovery is allowed for injury while employee is on his way to or from work. Rogers v. Indus. Comm'n, 40 Colo. App. 313, 574 P.2d 116 (1978).
For meaning of term "arise out of", see Rocky Mt. Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d 868 (1934); Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
For meaning of term "injury", see Carroll v. Indus. Comm'n, 69 Colo. 473, 195 P. 1097 (1921); Indus. Comm'n v. La Foret Camps, 125 Colo. 503, 245 P.2d 459 (1952); Wesco Elec. Co. v. Shook, 143 Colo. 382, 353 P.2d 743 (1960).
The terms "injury by accident" and "injury caused by accident" can be used interchangeably. Carroll v. Indus. Comm'n, 69 Colo. 473, 195 P. 1097 (1921).
Injury "arising out of employment" occurs when an employee suffers an injury attributable to unexplained forces which would have injured any person who happened to be in the employee's position at the time. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991).
Stress-related injury was held to arise out of and in the course of employment when claimant's supervisor threatened claimant with the loss of her job and overtime if she ended or revealed their sexual relationship, and claimant's stress resulted from supervisor's authority over her job and his exploitation of that authority. Gen. Cable Co. v. Indus. Claim Appeals Office, 878 P.2d 118 (Colo. App. 1994).
And injury "arises out of employment" where causal connection exists between work conditions and injury. Indus. Comm'n v. Anderson, 69 Colo. 147, 169 P. 135 (1917); Indus. Comm'n v. Pueblo Auto Co., 71 Colo. 424, 207 P. 479 (1922); Indus. Comm'n v. Enyeart, 81 Colo. 521, 256 P. 314 (1927); Indus. Comm'n v. Nisson, 84 Colo. 19, 267 P. 791 (1928); McKnight v. Houck, 87 Colo. 234, 286 P. 279 (1930); Indus. Comm'n v. Diveley, 88 Colo. 190, 294 P. 532 (1930); Rocky Mt. Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d 868 (1934); Gates v. Cent. City Opera House Ass'n, 107 Colo. 93, 108 P.2d 880 (1940); Chaney v. Indus. Comm'n, 120 Colo. 111, 207 P.2d 816 (1949); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Indus. Comm'n v. Corwin Hosp., 126 Colo. 358, 250 P.2d 135 (1952); Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); Divelbiss v. Indus. Comm'n, 140 Colo. 452, 344 P.2d 1084 (1959); Game & Fish Dept. v. Pardoe, 147 Colo. 363, 363 P.2d 1067 (1961).
Therefore, the test is whether or not there is a causal connection between the injury and the employment; that is, are they so connected that the injury naturally results from the employment. Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958); Indus. Comm'n v. Horner, 137 Colo. 368, 325 P.2d 698 (1958); Univ. of Denver-Colorado Sem. & Univ. Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963).
The test for determining if the injury arises out of the course of employment is whether there is a causal connection between the duties of the employment and the injuries. Walsh v. Indus. Comm'n, 34 Colo. App. 371, 527 P.2d 1180 (1974); Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976); Irwin v. Indus. Comm'n, 695 P.2d 763 (Colo. App. 1984).
Causation is a question of fact for resolution by the administrative law judge. Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997); Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).
Proof of causation is a threshold requirement which an injured employee must establish by a preponderance of the evidence before any compensation is awarded. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).
All that is necessary to warrant the finding of causal connection between the accident and the disability is to show facts and circumstances which would indicate with reasonable probability that the injury complained of resulted from, or was precipitated by, the accident. But if the evidence, as a matter of law, is insufficient to remove the question of causation from the realm of conjecture and mere possibilities, the award cannot be upheld. Indus. Comm'n v. Royal Indem. Co., 124 Colo. 210, 236 P.2d 293 (1951); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 129 Colo. 353, 269 P.2d 1070 (1954); Vandium Corp. of & v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Indus. Comm'n v. Johnson Pontiac, Inc., 140 Colo. 160, 344 P.2d 186 (1959); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 152 Colo. 25, 380 P.2d 28 (1963); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Krumback v. Dow Chem. Co., 676 P.2d 1215 (Colo. App. 1983).
Although a condition precedent to recovery is that death or injury be proximately caused by an accident arising out of and in the course of the deceased's employment. Indus. Comm'n v. Hesler, 149 Colo. 592, 370 P.2d 428 (1962).
It is not necessary that the accident be the immediate cause, but only the proximate cause of the death in order to sustain an award. Prouse v. Indus. Comm'n, 69 Colo. 382, 194 P. 625 (1920); Newkirk v. Golden Cycle Mining & Reduction Co., 79 Colo. 298, 244 P. 1019 (1926); Johnson v. Indus. Comm'n, 148 Colo. 561, 366 P.2d 864 (1961); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
But accident must be traceable to a definite time, place, and cause. Prouse v. Indus. Comm'n, 69 Colo. 382, 194 P. 625 (1920); Peer v. Indus. Comm'n, 94 Colo. 227, 29 P.2d 636 (1934); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965).
Chain-of-causation rule. If a work connected injury causes a deranged mental condition which in turn is a proximate cause of an injured employee's suicide, the deceased employee's dependents are entitled to benefits. Jackco Painting Contractors v. Indus. Comm'n, 702 P.2d 755 (Colo. App. 1985).
Lack of causal connection may be asserted at any time. In a dispute over medical benefits that arises after the filing of a general admission of liability, an employer generally can assert, based on subsequent medical reports, that the claimant did not establish the threshold requirement of a direct causal relationship between the on-the-job injury and the need for medical treatment. Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997).
Ordinarily the employer cannot be held liable for compensation for disability from lightning. Hassell Iron Works Co. v. Indus. Comm'n, 70 Colo. 386, 201 P. 894 (1921); Aetna Life Ins. Co. v. Indus. Comm'n, 81 Colo. 233, 254 P. 995 (1927).
But where the nature of the work and the nature of doing it exposes the employee to a greater danger the employer is liable. Hassell Iron Works Co. v. Indus. Comm'n, 70 Colo. 386, 201 P. 894 (1921); Kitchens v. Dept. of Labor & Emp. Div. of Labor, 29 Colo. App. 374, 486 P.2d 474 (1971).
Cold resulting in pneumonia and death not sufficiently connected with accident. See Newkirk v. Golden Cycle Mining & Reduction Co., 79 Colo. 298, 244 P. 1019 (1926).
But this is not true where mechanic is poisoned by fumes and later dies of pneumonia. See Columbine Laundry Co. v. Indus. Comm'n, 73 Colo. 397, 215 P. 870 (1923).
Where cause of accident is brought onto the premises by employee for his own purposes there is no recovery. An accident which is the result of a cause brought onto the employer's premises by the workman himself for his own purposes, is not caused by his employment and does not arise out of it. Indus. Comm'n v. Enyeart, 81 Colo. 521, 256 P. 314 (1927).
Where employee died while attempting to rescue his stepchild, the decision by employee to allow the child to accompany him to work was not the cause of the injury. The cause of the injury was a hazard of his occupation. Tri-State Commodities, Inc. v. Stewart, 689 P.2d 712 (Colo. App. 1984).
But the fact that the employee performed his duties in a dangerous and unusual manner does not in itself place him outside the provisions of this section. Indus. Comm'n v. H. Koppers Co., 66 Colo. 596, 185 P. 267 (1919).
Heart attack following strenuous labor may be injury proximately caused by accident. Carroll v. Indus. Comm'n, 69 Colo. 473, 195 P. 1097 (1921); Allen v. Gettler, 94 Colo. 528, 30 P.2d 1117 (1934). But see United States Fid. & Guar. Co. v. Indus. Comm'n, 122 Colo. 31, 219 P.2d 315 (1950).
Because if death is due to "overexertion" "arising out of" the employment and would not have occurred save for such employment, then the "overexertion" is "an accident". Indus. Comm'n v. McKenna, 106 Colo. 323, 104 P.2d 458 (1940); Black Forest Fox Ranch v. Garrett, 110 Colo. 323, 134 P.2d 332 (1943); Peter Kieweit Sons' Co. v. Indus. Comm'n, 124 Colo. 217, 236 P.2d 296 (1951); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957).
But overexertion must be established. In cases of heart failure, a claimant must prove more than the mere exertion attendant upon the usual and ordinary course of the employment. Overexertion must be established. Indus. Comm'n v. Int'l Minerals & Chem. Corp., 132 Colo. 256, 287 P.2d 275 (1955); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Claimants in re Death of Bennett v. Durango Furn. Mart., 136 Colo. 529, 319 P.2d 494 (1957); Indus. Comm'n v. Horner, 137 Colo. 368, 325 P.2d 698 (1958); Huff v. Aetna Ins. Co., 146 Colo. 63, 360 P.2d 667 (1961); Indus. Comm'n v. Hesler, 149 Colo. 592, 370 P.2d 428 (1962); Baca County Sch. Dist. No. RE-6 v. Brown, 156 Colo. 562, 400 P.2d 663 (1965); Evans v. City & County of Denver, 165 Colo. 311, 438 P.2d 698 (1968); Blood v. Indus. Comm'n, 165 Colo. 532, 440 P.2d 775 (1968); City & County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379 (1968); Jasinski v. Ginley-Soper Constr. Co., 170 Colo. 52, 458 P.2d 734 (1969).
So that employer is not liable where his evidence is that the exertion was a normal part of decedent's duties and there was competent medical testimony of a prior heart condition. Huff v. Aetna Ins. Co., 146 Colo. 63, 360 P.2d 667 (1961); Indus. Comm'n v. Hesler, 149 Colo. 592, 370 P.2d 428 (1962); Blood v. Indus. Comm'n, 165 Colo. 532, 440 P.2d 775 (1968).
Overexertion not element of claim where heart condition aggravated by trauma. Where there is a claim of aggravation of a preexisting heart condition by trauma, claimant must show his preexisting heart disease was aggravated by trauma, and, in such a case, overexertion is not an element. Legouffe v. Prestige Homes, Inc., 634 P.2d 1010 (Colo. App. 1981), rev'd on other grounds, 658 P.2d 850 (Colo. 1983).
Absence of proximate causation where employee suffered from prior heart condition. Jones v. Indus. Comm'n, 148 Colo. 253, 365 P.2d 689 (1961); Indus. Comm'n v. Wolfer, 152 Colo. 205, 381 P.2d 19 (1968).
Death from heart ailments following operation to correct compensable injury. The death of an employee following an operation to correct a compensable injury was not compensable, where death was not due to the operation, but to heart ailments, and there was no evidence of a causal connection between the injury, the operation and the heart ailments. Aetna Cas. & Sur. Co. v. Indus. Comm'n, 116 Colo. 98, 179 P.2d 973 (1947).
No requirement to establish overexertion in brain aneurysm case. In heart cases, the supreme court generally has required the claimant to prove more than the mere exertion attendant upon the usual and ordinary course of employment, in order to show a causal connection between the employment and death or disability. No such requirement exists in the case of a rupture of a brain aneurysm. Indus. Comm'n v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
For in brain aneurysm cases the claimant must show either (1) an unexpected incident or event during the course of his work resulting in injury, or (2) injury as the unexpected result of the claimant's normal activities in his employment. In either case, the injury must arise from an occurrence traceable to a definite time, place, and cause. Indus. Comm'n v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
One claiming compensation as the result of an altercation with a fellow employee has the burden of establishing a causal connection between the altercation and his employment, which may not be inferred from the circumstances of a willful assault for which no satisfactory explanation is offered and which did not originate in any risk peculiar to the work. Wisdom v. Indus. Comm'n, 133 Colo. 266, 293 P.2d 967 (1956).
Disability resulting from exploratory operation. Where claimant slipped and fell, in course of employment, and the accident precipitated symptoms of a kidney disease, which was disclosed during an exploratory operation, resulting in removal of one kidney, regardless of any aggravation of claimant's preexisting condition, he was entitled to recover for the disability resulting from the operation. Merriman v. Indus. Comm'n, 120 Colo. 400, 210 P.2d 448 (1949).
Death resulting from operation to correct compensable injury. Where a compensable injury is involved and an operation for the correction thereof follows, resulting in the death of the employee, no contributing cause whatever is necessary or material in the consideration of an award. Aetna Cas. & Sur. Co. v. Indus. Comm'n, 116 Colo. 98, 179 P.2d 973 (1947).
Sunstroke does not necessarily constitute death resulting from an accident. A search of the workmen's compensation cases in this state discloses none where claim has been made for compensation based on death or injury from sunstroke. A review of the cases from other jurisdictions indicate that such injury or death is compensable where there is no question about injury or death being caused by the sunstroke, but where there is evidence of other contributing factors the general rule is as follows: "The mere fact of sunstroke does not constitute a death resulting therefrom an 'accident' within the statute, and harm resulting from a heat stroke is compensable only where the heat stroke is the direct and superinducing cause of the harm". Wood v. Indus. Comm'n, 100 Colo. 209, 66 P.2d 806 (1937).
Employer is liable for claimant's injuries even though there was no direct striking of the claimant. Where a sudden opening of a door caused the claimant to rapidly move his arm, and the claimant's arm was broken as the result of the sudden movement, the employer is liable since the injury was proximately caused in the course of the employee's employment. H & H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990).
Applied in In re Hampton v. Dir. of Div. of Labor, 31 Colo. App. 141, 500 P.2d 1186 (1972).
Law reviews. For comment on Finn v. Indus. Comm'n appearing below, see 45 Den. L.J. 780 (1968).
To sustain an award of compensation the industrial commission is required to make a finding of all of the essential facts required by this section, i.e.: (1) That both employer and employee are subject to the provisions of the act; (2) that at the time and place of the accident the employee was performing services arising out of and in the course of his employment; and (3) that the injury was caused by an accident arising out of and in the course of the employment. Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942); United States Fid. & Guar. Co. v. Indus. Comm'n, 128 Colo. 68, 259 P.2d 869 (1953); Hamilton v. Indus. Comm'n, 132 Colo. 408, 289 P.2d 639 (1955); Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958).
And in workmen's compensation cases, both the time and place of the accident must be established, or at least one or the other of these factors fixed, so that there is evidence to show that the accident arose out of and in the course of the employment. Deines Bros. v. Indus. Comm'n, 125 Colo. 258, 242 P.2d 600 (1952).
Consequently, a denial of compensation should follow a finding of the absence of one or more of the essential facts. Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958).
And findings on the remaining requirements of this section, whether pro or con, will not alter the result. Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958).
But the fact that the industrial commission assigns the wrong reason for the right conclusion is not sufficient to justify reversal where it is undisputed that the death of an employee was caused solely by a coronary occlusion. Skinner v. Indus. Comm'n, 152 Colo. 97, 381 P.2d 253 (1963).
However, court may review where contention is made that evidence is so weak as to amount to no evidence. Rosenkranz v. Indus. Comm'n, 83 Colo. 123, 262 P. 1014 (1927).
Burden of proof is on claimant to show injury was proximate result of accident. Olson-Hall v. Indus. Comm'n, 71 Colo. 228, 205 P. 527 (1922); Peer v. Indus. Comm'n, 94 Colo. 227, 29 P.2d 636 (1934); Wood v. Indus. Comm'n, 100 Colo. 209, 66 P.2d 806 (1937); Aetna Cas. & Sur. Co. v. Indus. Comm'n, 127 Colo. 225, 255 P.2d 961 (1953); Hamilton v. Indus. Comm'n, 132 Colo. 408, 289 P.2d 639 (1955); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957); State Comp. Ins. Fund v. Indus. Comm'n, 135 Colo. 570, 314 P.2d 288 (1957); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958); Indus. Comm'n v. Peterson, 151 Colo. 289, 377 P.2d 542 (1962); Breit v. Indus. Comm'n, 160 Colo. 205, 415 P.2d 858 (1966); Finn v. Indus. Comm'n, 165 Colo. 106, 437 P.2d 542 (1968); Brown v. Indus. Comm'n, 167 Colo. 391, 447 P.2d 694 (1968).
In order to be entitled to workmen's compensation death benefits, a claimant must establish that the accident causing death arose out of and in the course of the decedent's employment. Harrison W. Corp. v. Hicks' Claimants, 185 Colo. 142, 522 P.2d 722 (1974).
And claim must be established by a preponderance of the evidence. Olson v. Erickson, 105 Colo. 489, 99 P.2d 199 (1940); Aetna Cas. & Sur. Co. v. Indus. Comm'n, 127 Colo. 225, 255 P.2d 961 (1953); Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).
"Clear and convincing" standard under 8-42-107 (8)(b)(III) did not apply where the independent medical examiner's opinion was not at issue, and employer had raised the separate issue of causation under this section before the IME was performed. Therefore the ALJ did not err in applying a preponderance standard in determining whether claimant had sustained a compensable injury. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).
A claimant in a workers' compensation case has the initial burden of proving his entitlement to benefits by a preponderance of the evidence. Therefore, the claimant must present a prima facie case sufficient to establish the existence of his disability and to permit a reasonable determination of the extent of such disability. Valley Tree Serv. v. Jimenez, 787 P.2d 658 (Colo. App. 1990).
The claimant must also establish the causal relationship of the injury to his work. Valley Tree Serv. v. Jimenez, 787 P.2d 658 (Colo. App. 1990).
Whether claimant has sustained burden of proof is question of fact. Whether the claimant in a workmen's compensation case has sustained the burden of establishing that the disability he alleges was proximately caused by his accident, is a question of fact, the determination of which is solely the province of the director. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
However, there is no need for finding on burden of proof where evidence makes out prima facie case. Gates v. Cent. City Opera House Ass'n, 107 Colo. 93, 108 P.2d 880 (1940).
Burden on employer to show nonemployment causation. Once the claimant has established a prima facie showing of accident arising out of the employment, the respondent must produce competent evidence of nonemployment causation in rebuttal, or the claimant will prevail. Colo. Contracting Co. v. Indus. Comm'n, 74 Colo. 206, 219 P. 1075 (1923); Skinner v. Indus. Comm'n, 152 Colo. 97, 381 P.2d 253 (1963).
But where the claimant is unable to prove more than that he had something happen to him during his employment, and he does not show how or why his condition arose out of his work, he fails to adduce evidence to the point of making a prima facie case. Thus, urging that some of the employer's evidence was erroneous is immaterial. Finn v. Indus. Comm'n, 165 Colo. 106, 437 P.2d 542 (1968).
Reasonable doubt resolved in claimant's favor. Any reasonable doubt as to whether a compensable accidental injury arose out of and in the course of employment must be resolved in favor of the claimant herein. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).
The doctrine of res ipsa loquitur does not apply in workmen's compensation cases. Finn v. Indus. Comm'n, 165 Colo. 106, 437 P.2d 542 (1968).
Standard of review for claim based upon claimant's heart condition. Where claim for benefits was based upon claimant's heart condition, appropriate standard for industrial commission review was whether claimant's heart condition was the result of an accident, injury, or occupational disease, as defined by 8-41-108, which meets the conditions of this section. Eisenberg v. Colo. Indus. Comm'n, 624 P.2d 361 (Colo. App. 1981).
The existence of a latent tendency was irrelevant, and the ALJ's determination that employee's claim was barred by 8-52-102 (2)(b) was wholly unsupported by the record where employee had functioned well within the range of normal at home and at her job until she was rotated by employer and suffered job-related stress. Peterson v. ENT Fed. Credit Union, 827 P.2d 621 (Colo. App. 1992) (decided under law in effect prior to 1991 amendment).
The language in subsection (2)(c) requiring that stress-related claims not be based upon facts and circumstances that are common to all fields of employment does not bar as a matter of law all claims arising out of a common work condition; rather, compensability depends upon the particular facts and circumstances of each case. Holme, Roberts, & Owen v. Indus. Claim Appeals Office, 800 P.2d 1332 (Colo. App. 1990).
Employee's sudden job demotion was not based upon circumstances which are common to all fields of employment; therefore, claim arising out of job demotion was not barred. Holme, Roberts, & Owen v. Indus. Claim Appeals Office, 800 P.2d 1332 (Colo. App. 1990).
For purposes of subsection (2)(c), it is not necessary to logically tie stress-producing incidents to a particular line of work. City Market, Inc., v. Indus. Claim Appeals Office, 800 P.2d 1335 (Colo. App. 1990).
A workers' compensation claim resulting from a mental stimulus that results in mental impairment is a "mental-mental" injury which requires proof by testimony of a licensed physician or psychologist. If there is a physical component that contributes to the injury, such restrictions are not implicated. Oberle v. Indus. Claim Appeals Office, 919 P.2d 918 (Colo. App. 1996).
For claims of a "mental-mental" injury, the legislature intended claimants seeking these kinds of benefits to meet a higher burden of proof to reduce the incidence of fraudulent claims. While claimant argues that subsection (2)(a) imposes an undue burden on claimants seeking benefits for "mental-mental" injuries, adhering to claimant's suggested interpretation would negate the general assembly's intent by eliminating the requisite heightened burden for "mental-mental" claimants seeking medical benefits. Kieckhafer v. Indus. Claim Appeals Office, 2012 COA 124, 284 P.3d 202.
Evidence warranting compensation. If the evidence, and the logical inferences therefrom, can be said to warrant a conclusion that the accident, within a reasonable probability, resulted in the disability, the claimant is entitled to compensation. Indus. Comm'n v. Royal Indem. Co., 124 Colo. 210, 236 P.2d 293 (1951); J. W. Metz Lumber Co. v. Taylor, 134 Colo. 249, 302 P.2d 521 (1956); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965).
Although evidence need not establish causal connection by reasonable "medical" probability. Where the sole issue in dispute was whether there was any causal connection between the accident and the loss of vision in claimant's right eye and the employer asserted that the causal connection must be established with reasonable medical probability, it was held that this is the standard upon which a medical expert must base his opinion but it is not the standard on which the director must make his determination. The evidence must establish the causal connection with reasonable probability, but it need not establish it with reasonable "medical" certainty. Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Ringsby Truck Lines v. Indus. Comm'n, 30 Colo. App. 224, 491 P.2d 106 (1971); Legouffe v. Prestige Homes, Inc., 634 P.2d 1010 (Colo. App. 1981), rev'd on other grounds, 658 P.2d 850 (Colo. 1983); Morrison v. Indus. Claim Appeals Office, 760 P.2d 654 (Colo. App. 1988).
When doctors are unable to say how much of claimant's disability is due to the accident for which he claimed compensation and how much to an earlier accident, the industrial commission errs in awarding compensation for the whole disability. Ohio Cas. Ins. Co. v. Indus. Comm'n, 115 Colo. 355, 173 P.2d 888 (1946).
Evidence which relates solely to possibilities or probabilities is not sufficient to support an award. Deines Bros. v. Indus. Comm'n, 125 Colo. 258, 242 P.2d 600 (1952); Montgomery Ward & Co. v. Indus. Comm'n, 128 Colo. 465, 263 P.2d 817 (1953); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Maryland Cas. Co. v. Kravig, 153 Colo. 282, 385 P.2d 669 (1963); Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965).
On the other hand, awards cannot be denied as the result of speculation or conjecture, nor upon evidence not in the record. Indus. Comm'n v. Havens, 136 Colo. 111, 134 P.2d 698 (1957).
And the fact that an accident is not witnessed does not preclude proof by circumstantial evidence. Employers' Mut. Liab. Ins. Co. v. Indus. Comm'n, 145 Colo. 91, 357 P.2d 929 (1960).
Where evidence not usable to support referee's findings. Where testimony ignores or is contrary to principles of physical science, it cannot serve as a basis for a referee's conclusion that there was no causal connection between the accident and the claimant's injury. Legouffe v. Prestige Homes, Inc., 634 P.2d 1010 (Colo. App. 1981), rev'd on other grounds, 658 P.2d 850 (Colo. 1983).
Testimony of a dentist is insufficient under subsection (2)(a) to support a stress claim even though a dentist would be the treating physician for TMJ, the injury specified by the claimant as arising from stress. This section clearly refers only to a physician or psychologist. Tomsha v. City of Colo. Springs, 856 P.2d 13 (Colo. App. 1992).
Subsection (2) does not require that a mental impairment claimant produce a live witness in all cases. Such a requirement would serve no legitimate purpose and would result in an equal protection violation when other claimants are allowed to submit expert reports and only provide the expert witness when the opposing party chooses to examine the expert. Esser v. Indus. Claim Appeals Office, 8 P.3d 1218 (Colo. App. 2000), aff'd on other grounds, 30 P.3d 189 (Colo. 2001).
For sufficiency of evidence, see Adams v. Indus. Comm'n, 106 Colo. 361, 105 P.2d 403 (1940); Rand v. Indus. Comm'n, 110 Colo. 240, 132 P.2d 784 (1942); Warner v. Mullens, 111 Colo. 60, 137 P.2d 420 (1943); Pitchforth v. Macomb, 111 Colo. 135, 137 P.2d 1021 (1943); Indus. Comm'n v. Menegatti, 111 Colo. 484, 143 P.2d 274 (1943); Indus. Comm'n v. Daniels, 124 Colo. 329, 236 P.2d 291 (1951); Employers' Mut. Liab. Ins. Co. v. Indus. Comm'n, 145 Colo. 91, 357 P.2d 929 (1960); Hood v. Indus. Comm'n, 153 Colo. 221, 385 P.2d 256 (1963); Silver Eng'g Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973); Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).
Statements of employee to his wife upon returning home held to be inadmissible. Evidence of statements of an employee to his wife upon his return home from work in the evening, as to the happening of an alleged accident, held, under the attending circumstances, to be hearsay, not a part of the res gestae, and its admission in evidence error. H. C. Lallier Constr. & Eng'g Co. v. Indus. Comm'n, 91 Colo. 593, 17 P.2d 532 (1932).
As are hospital records and proof of death based on hearsay. H. C. Lallier Constr. & Eng'g Co. v. Indus. Comm'n, 91 Colo. 593, 17 P.2d 532 (1932).
But conversation of injured employee with others at the time of the accident held to be admissible. In a workmen's compensation case, conversations of the injured employee with others at the time of the accident concerning his injury held admissible as a part of the res gestae. Indus. Comm'n v. Diveley, 88 Colo. 190, 294 P. 532 (1930).
Medical testimony in proceedings as to prior injury not competent to determine degree of permanent disability. Where for several months a claimant has continuously performed the same type of work in which he was engaged at the time of his injury, a transcript of proceedings, including medical testimony, relating to a prior injury, where no findings were made, is not competent to determine the degree of permanent disability resulting from accidental injury in Colorado two years afterward in the face of unchallenged medical testimony that claimant has suffered a permanent disability of 25 percent as a working unit, based upon aggravation of a preexisting weakness. Gregory v. Swinerton & Walberg Co., 138 Colo. 22, 328 P.2d 948 (1958).
D. Presumption against Suicide.
The well-known rule is that suicide will not be presumed, and that as between accident and suicide the law supposes accident. Indus. Comm'n v. Peterson, 151 Colo. 289, 377 P.2d 542 (1962).
But once there appears substantial evidence to overcome the presumption against suicide it is for the industrial commission to weigh all the evidence and to draw reasonable inferences therefrom. Logical conclusions based upon adequate support in the record should not be disturbed by the courts. Indus. Comm'n v. Peterson, 151 Colo. 289, 377 P.2d 542 (1962).
There is no authority that makes conclusive evidence the quantum of proof by which a presumption against suicide must be rebutted. The burden of proof remains upon the claimant to establish that the injury or death resulted from an accident arising out of and in the course of the employment and not intentionally self-inflicted. Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957).