8-42-102. Basis of compensation - "wages" defined - average weekly wage - "at the time of injury" clarified.
Statute text
(1) The average weekly wage of an injured employee shall be taken as the basis upon which to compute compensation payments.
(2) Average weekly wages for the purpose of computing benefits provided in articles 40 to 47 of this title, except as provided in this section, shall be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or deceased employee was receiving at the time of the injury, and in the following manner; except that any portion of such remuneration representing a per diem payment shall be excluded from the calculation unless such payment is considered wages for federal income tax purposes:
(a) Where the employee is being paid by the month for services under a contract of hire, the weekly wage shall be determined by multiplying the monthly wage or salary at the time of the accident by twelve and dividing by fifty-two.
(b) Where the employee is being paid by the week for services under a contract of hire, said weekly remuneration at the time of the injury shall be deemed to be the weekly wage for the purposes of articles 40 to 47 of this title.
(c) Where the employee is rendering service on a per diem basis, the weekly wage shall be determined by multiplying the daily wage by the number of days and fractions of days in the week during which the employee under a contract of hire was working at the time of the injury or would have worked if the injury had not intervened.
(d) Where the employee is being paid by the hour, the weekly wage shall be determined by multiplying the hourly rate by the number of hours in a day during which the employee was working at the time of the injury or would have worked if the injury had not intervened, to determine the daily wage; then the weekly wage shall be determined from said daily wage in the manner set forth in paragraph (c) of this subsection (2).
(e) Where the employee is paid on a piecework, tonnage, commission, or basis other than a monthly, weekly, daily, or hourly wage and where the employment is but casual and in the usual course of the trade, business, profession, or occupation of his employer, the total amount earned by the injured or killed employee in the twelve months preceding the injury shall be computed, which sum shall be divided by the number of pay periods the injured person was employed during the twelve months immediately preceding the injury, and the result thus ascertained shall be considered the average wage of said employee per pay period.
(f) Where the employee is being paid by the mile, the weekly wage shall be determined by multiplying the rate per mile by the average number of miles per day the employee drove in the service of the employer in the sixty working days immediately preceding the date of the injury, to arrive at a daily wage; then the weekly wage shall be determined from the said daily wage in the manner set forth in paragraph (c) of this subsection (2). If, on the date of the injury, the employee has worked for the employer less than sixty days, the average daily wage shall be based on the average miles driven per working day during such period.
(3) Where the foregoing methods of computing the average weekly wage of the employee, by reason of the nature of the employment or the fact that the injured employee has not worked a sufficient length of time to enable earnings to be fairly computed thereunder or has been ill or has been self-employed or for any other reason, will not fairly compute the average weekly wage, the division, in each particular case, may compute the average weekly wage of said employee in such other manner and by such other method as will, in the opinion of the director based upon the facts presented, fairly determine such employee's average weekly wage.
(4) Where an employee is a minor and the disability is temporary, the average weekly wage of such minor shall be determined by the division as in cases of disability of adults. Where the disability of such minor is permanent or if benefits under articles 40 to 47 of this title accrue because of the death of such minor, compensation to said minor or death benefits to said minor's dependents shall be paid at the maximum rate of compensation payable under said articles at the time of the determination of such permanency or of such death.
(5) (a) The general assembly hereby finds that the phrase "at the time of injury" in subsection (2) of this section refers to the date of the employee's accident. When subsection (2) of this section is used to determine a worker's average weekly wage, the wage on the date of the accident shall be used.
(b) Nothing in this subsection (5) alters the discretion of the division or the director to fairly determine a worker's average weekly wage in accordance with subsection (3) of this section.
History
Source: L. 90: Entire article R&RE, p. 486, 1, effective July 1. L. 91: IP(2), (2)(c), and (2)(d) amended, p. 1304, 11, effective July 1. L. 94: IP(2) amended and (2)(f) added, p. 1286, 2, effective May 22. L. 2010: (5) added, (SB 10-187), ch. 310, p. 1457, 3, effective July 1.
Annotations
Editor's note: This section is similar to former 8-47-101 as it existed prior to 1990.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Construction of Term.
III. Statutory Computation of Average Weekly Wage.
IV. Computation.
Law reviews. For article, "The November Meeting and Debate", see 6 Dicta 11 (Dec. 1928). For article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with stock option plans, see 64 Den. U.L. Rev. 280 (1987). For article, "Time, Equity and the Average Weekly Wage", see 23 Colo. Law. 1831 (1994).
Annotator's note. (1) Since 8-42-102 is similar to 8-47-101 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 specified that the division of labor, instead of the industrial commission, was responsible for establishing the basis of compensation.
Compensation formula constitutional. The compensation formula established in this section violates neither due process nor equal protection. Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982).
The evident purpose of this section is to give the dependents what they have lost. Roughly and in general that is about one-half the income of their supporter for the last 12 months, yet often that would not be so and for that reason there is the qualification in subsection (4). Frink Dairy Co. v. Indus. Comm'n, 78 Colo. 71, 239 P. 727 (1925).
Subsection (4) which provides for compensation at maximum rate for minors who have been permanently disabled applies to cases of either partial or total disability. Mills v. Guido's, 800 P.2d 1370 (Colo. App. 1990); De Jiacomo v. Indus. Claim Appeals Office, 817 P.2d 552 (Colo. App. 1991).
However, where statutory scheme contained no "maximum rate of compensation", minor was entitled to compensation at standardized rate under 8-2-110 (1)(b). De Jiacomo v. Indus. Claim Appeals Office, 817 P.2d 552 (Colo. App. 1991) (decided prior to 1991 repeal of 8-42-110).
"Maximum rate of compensation payable under these articles", for purposes of computing permanent partial disability award under subsection (4), did not mean the maximum weekly rate prescribed in 8-42-105 for temporary total disability. De Jiacomo v. Indus. Claim Appeals Office, 817 P.2d 552 (Colo. App. 1991) (decided prior to 1991 amendment of 8-42-105).
Maximum benefits to a minor under subsection (4) are not mandated until a "determination of such permanency" is made regardless of whether a party can prove a minor will suffer some degree of permanent damage. Hussion v. Indus. Claim Appeals Office, 991 P.2d 346 (Colo. App. 1999).
Time used for computation of benefits under subsection (4) is time of determination of permanency of injury, not time of injury itself. De Jiacomo v. Indus. Claim Appeals Office, 817 P.2d 552 (Colo. App. 1991).
A minor claimant with a scheduled injury is entitled to the same benefits as an adult with the same scheduled injury and not entitled to benefits based on a whole person impairment. Torres v. Canam Indus., Inc., 942 P.2d 1384 (Colo. App. 1997).
The "time of injury" means the "time of disablement", not the date of the accident. The statutory language in the definitions section, 8-40-201, maintains a distinction between the terms "accident" and "injury", with an "accident" occurring at a discrete event and "injury" as the disability resulting from that discrete event. Accordingly, if the average weekly wage is tied to the "time of the injury", and the "injury" includes the "disability resulting from accident", then the "time of injury" necessarily includes the time of disablement, not only the time of the precipitating accident. Avalanche Indus., Inc. v. Clark, 198 P.3d 589 (Colo. 2008), overruled in Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010).
The "time of injury" does not include the time of disablement. Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010) (overruling Avalanche Indus., Inc. v. Clark, 198 P.3d 589 (Colo. 2008)).
"Time of the injury" means time employee was disabled, not time of last injurious exposure to disease agent listed in 8-41-304. Worker who was last exposed to asbestos dust in 1977 and developed cancer in 1983 was entitled to benefits based on his 1983 earnings. Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App. 1991).
In cases of occupational disease, "time of injury" is generally held to be the time of last exposure or onset of disability. Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993).
Under provision that authorized director to establish fee schedule for cost containment purposes, rule that restricted nature of treatment was improper. Riley Family Trust v. Hood, 874 P.2d 503 (Colo. App. 1994) (decided under former 8-49-101 as it existed prior to 1990 repeal).
In determining compensation for permanently disabled minors, the compensation scheme specified in this section takes precedence over the general compensation scheme for adults under 8-42-107 (8)(d). Horton v. Golden Animal Hosp., 879 P.2d 459 (Colo. App. 1994).
But provisions of 1991 repeal and reenactment of workers' compensation statutes apply only in cases where the injuries occurred on or after July 1, 1991. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo. 1995).
Applied in Kalmon v. Indus. Comm'n, 41 Colo. App. 259, 583 P.2d 946 (1978).
The term "wages" is construed to mean the "money rate" at which the services are recompensed under the contract of hire in force at the time of the accident. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590, 380 P.2d 62 (1963).
Tips and gratuities are not proper elements of wages under this section. Indus. Comm'n v. Lindvay, 94 Colo. 531, 31 P.2d 495 (1934).
Tips are to be considered in computing average weekly wages. In re Petrafeck v. Indus. Comm'n, 191 Colo. 566, 554 P.2d 1097 (1976).
Compensation for cultivation of vegetables at so much per acre held to be "wages". Employers' Mut. Ins. Co. v. Indus. Comm'n, 74 Colo. 201, 219 P. 1078 (1923).
Rate not affected by wages attributable to truck furnished by employee. In determining an employee's weekly wages, a portion of the hourly rate of compensation previously paid by the employer may not be allocated to "maintenance or overhead" of a truck furnished by the employee, rather than the employer, thus reducing the final award. Filippone v. Indus. Comm'n, 41 Colo. App. 322, 590 P.2d 977 (1978).
The value of group health insurance and supplemental life insurance provided by claimant's employer should be included in determining the "wages" of claimant. Murphy v. Ampex Corp., 703 P.2d 632 (Colo. App. 1985).
Wages to be received subsequent to the date of injury may be included in determining wages under this section since there was an implied contract in force at the time of injury authorizing the payment of such wages. Lenco Leasing Co. v. O'Dell, 704 P.2d 329 (Colo. App. 1985).
Average weekly wage does not include employer contributions for nonvested retirement benefits. Russell v. Colo. Div. of Employment, 786 P.2d 483 (Colo. App. 1989).
Net cost to the employee of replacing health insurance or similar benefits should be added to the average weekly wage for purposes of calculating temporary disability benefits. State Compensation Insurance Authority v. Smith, 768 P.2d 1256 (Colo. App. 1988).
The term gratuity does not include a bonus given as compensation for working and which is subject to income taxes and FICA and, therefore, should be included as wages when computing a claimant's average weekly wage. Simmonds v. Eastman Kodak Co., 781 P.2d 140 (Colo. App. 1989).
Reasonable value of lodging at the time of the injury is a question of fact and will vary depending on the available evidence and the accompanying circumstances. Western Cultural Res. Mgt. v. Krull, 782 P.2d 870 (Colo. App. 1989).
Applied in Casa Bonita Restaurant v. Indus. Comm'n, 677 P.2d 344 (Colo. App. 1983).
III. STATUTORY COMPUTATION OF AVERAGE WEEKLY WAGE.
Law reviews. For article, "Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law", see 30 Colo. Law. 69 (April 2001).
What constitutes a week. While for some, perhaps for most, purposes a week means a calendar week, extending from midnight Saturday until midnight the following Saturday, it does not mean that for all purposes. For example, if a man, hired at so much a week, commences work at the beginning of the working day on Wednesday and continues during all the working days until the end of the working day on Tuesday of the next calendar week, the money he earns would be one week's wage, not two weeks' wages. In re Tyson, 13 Colo. 482, 22 P. 810 (1889); Mora v. People, 19 Colo. 255, 35 P. 179 (1893); Danielson v. Indus. Comm'n, 96 Colo. 522, 44 P.2d 1011 (1935).
The fact that "shall" is used in subsection (3) does not mean that the industrial commission must comply with subsection (3). Williams Bros. v. Grimm, 88 Colo. 416, 297 P. 1003 (1931).
Basis of award of benefits to member of family unit employed to perform services. Where the family unit, of which workmen's compensation claimant was a member, was employed to perform services and where these services which claimant was performing at the time of her injury were to be recompensated at a particular rate per month, the claimant's award of benefits should be based on that rate of compensation even though all such compensation was paid to the family unit. Booher v. Las Animas County Sch. Dist. R-88, 30 Colo. App. 233, 491 P.2d 104 (1971).
Wages may be on the basis of so much per day or week, or on the basis of tonnage, or upon acreage, or sugar content of beets, where the employment is to care for growing crops. Employers' Mut. Ins. Co. v. Indus. Comm'n, 74 Colo. 201, 219 P. 1078 (1923).
Tips as wages. From the standpoint of both the employer and the employee, tips are an integral part of the contract of hire and comprise a substantial portion of the employee's average weekly wage. In re Petrafeck v. Indus. Comm'n, 191 Colo. 566, 554 P.2d 1097 (1976).
Where employment is casual within the meaning and intent of the workmen's compensation act, it is not regular, periodic or certain in nature. Berkeley Constr. Co. v. Fransua, 162 Colo. 296, 425 P.2d 801 (1967).
And when the only compensable wage is for casual piecework under the statute which provides the formula to be used in determining the daily wage for compensation in such a case, the claimant is entitled only to minimum benefits. Pittman Motors, Inc. v. Indus. Comm'n, 156 Colo. 218, 399 P.2d 784 (1964).
During the portion of the year an employee is attending he is "in business for himself" within the meaning of that phrase as used in subsection (4) of this section. Lindner Packing & Provision Co. v. Indus. Comm'n, 99 Colo. 143, 60 P.2d 924 (1936).
Computation where employee works for himself a part of the time. Where an employee works for himself a part of the time, his average weekly wage, under this section, is to be determined by dividing the amount earned by him for the year immediately preceding his accident and while working for his employer, by the number of weeks he was engaged in such employment. Imperial Coal Co. v. Holland, 98 Colo. 448, 56 P.2d 30 (1936).
Average weekly wage must be computed based on the employee's compensation rate in force at the time of injury. Where hearing officer had awarded claimant-employee benefits based on hourly rate paid employee-claimant by previous employer, it was not an abuse of discretion to reverse hearing officer's determination and recompute benefits based on hourly wage paid by employer at the time of injury. Dugan v. Indus. Comm'n, 690 P.2d 267 (Colo. App. 1984).
Average weekly wage includes both the employer's and employee's contribution to group health insurance premiums. Humane Soc'y of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).
Claimant is not required to present proof that he or she actually purchased replacement coverage. The statute merely seeks to ensure that the claimant will have funds available to make the purchase. Humane Soc'y of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).
Actual purchase of health insurance not required in order for cost of benefits to be included in calculating claimant's average weekly wage. Avalanche Indus. v. Indus. Claim Appeals Office, 166 P.3d 147 (Colo. App. 2007), aff'd, 198 P.3d 589 (Colo. 2008).
Although average weekly wage generally is determined from the employee's wage at the time of injury, if for any reason this general method will not render a fair computation of wages, the administrative tribunal has long been vested with discretionary authority to use an alternative method in determining a fair wage. Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993).
Calculation of the average weekly wage based upon wage earned when maximum medical improvement was reached was not an abuse of discretion when the claimant's average weekly wage at a new job was substantially higher than the wage at the time of injury and the alternate computation more fairly compensated the claimant for his future loss of earnings. Pizza Hut v. Indus. Claim Appeals Office, 18 P.3d 867 (Colo. App. 2001).
The federal Employee Retirement Income Security Act of 1974 (ERISA) does not preempt former 8-47-101 (1) and (2), as effective in May 1989, to the extent those subsections required that the value of ERISA-plan benefits be included in calculating an employee's average weekly wage for workers' compensation purposes. Hewlett-Packard Co. v. Diringer, 42 F. Supp. 2d 1038 (D. Colo. 1999).
Applied in Danielson v. Indus. Comm'n, 96 Colo. 522, 44 P.2d 1011 (1935); United Util. & Specialties Corp. v. Indus. Comm'n, 160 Colo. 518, 418 P.2d 896 (1966).
Where the adoption of subsection (3) would penalize claimant, the wage should be determined by subsection (4). Employers' Mut. Ins. Co. v. Indus. Comm'n, 74 Colo. 201, 219 P. 1078 (1923); Indus. Comm'n v. Employers' Mut. Ins. Co., 76 Colo. 145, 230 P. 114 (1924); Employers' Mut. Ins. Co. v. Indus. Comm'n, 85 Colo. 588, 277 P. 777 (1929); Williams Bros. v. Grimm, 88 Colo. 416, 297 P. 1003 (1931); St. Mary's Church v. Indus. Comm'n, 735 P.2d 902 (Colo. App. 1986), cert. denied, 753 P.2d 769 (Colo. 1988).
Part-time work. Since claimant was a part-time employee, the application of subsection (3) would result in his receiving more in benefits that the maximum wages he had been paid prior to his injury. Therefore, the circumstances of the case call for the application of subsection (4). Western Sizzlin' Steak House v. Axton, 701 P.2d 96 (Colo. App. 1984).
For facts which justify an award under subsection (4), see Employers' Mut. Ins. Co. v. Indus. Comm'n, 85 Colo. 374, 275 P. 939 (1929); St. Mary's Church v. Indus. Comm'n, 735 P.2d 902 (Colo. App. 1986), cert. denied, 753 P.2d 769 (Colo. 1988).
For facts which do not justify an award under subsection (4) (now subsection (3)), see R.J.S. Painting v. Indus. Comm'n, 732 P.2d 239 (Colo. App. 1986).
If industrial commission does not follow subsection (3), it should state why and find facts which justify its course. Frink Dairy Co. v. Indus. Comm'n, 78 Colo. 71, 239 P. 727 (1925).
Where average weekly wage is less than minimum indemnity allowable, the minimum will be awarded. Roeder v. Indus. Comm'n, 97 Colo. 133, 46 P.2d 898 (1935).
And if employment is without salary, it has the effect of reducing the amount of compensation which an injured employee is entitled to receive to the minimum benefits provided by the workmen's compensation law. Lyttle v. State Comp. Ins. Fund, 137 Colo. 212, 322 P.2d 1049 (1958); Pittman Motors, Inc. v. Indus. Comm'n, 156 Colo. 218, 399 P.2d 784 (1964).
A person's earnings from other work, wholly unrelated to his uncompensated service, cannot be used as the basis for computing an award of compensation under the terms of the workmen's compensation law. Lyttle v. State Comp. Ins. Fund, 137 Colo. 212, 322 P.2d 1049 (1958).
Judgment may reduce award where evidence does not justify award under any method of computation. Indus. Comm'n v. Employers' Mut. Ins. Co., 76 Colo. 145, 230 P. 114 (1935).
When an employee is paid on a piecework basis, the average wage is generally determined by computing the average amount earned per pay period over the year preceding the injury. When this method will not render a fair computation of wages, the administrative law judge (ALJ) may use some other method to determine a fair average weekly wage. Drywall Prods. v. Constuble, 832 P.2d 957 (Colo. App. 1991).
The average wage is generally determined by computing the average amount earned per pay period over the year preceding the injury when an employee is paid on a piecework basis; except that, when this method will not render a fair computation of wages, the ALJ is empowered to use some other method to determine a fair average weekly wage. Drywall Prods. v. Constuble, 832 P.2d 957 (Colo. App. 1991); Vigil v. Indus. Claim Appeals Office, 841 P.2d 335 (Colo. App. 1992), aff'd in part and rev'd in part on other grounds, 856 P.2d 850 (Colo. 1993).
Administrative law judge's determination to use an alternate method to compute claimant's average weekly wage rather than by the piecework method set forth in subsection (2)(e) was supported by substantial evidence and could not be disturbed on review where claimant's contract contemplated 10 to 12 hours per day for 5 days per week on a piecework basis and claimant had worked on a piecework basis for a short period of time prior to injury. Drywall Prods. v. Constuble, 832 P.2d 957 (Colo. App. 1991).
Administrative law judge did not abuse his broad discretion of authority in determining that claimant's average weekly wage should be calculated based upon her wages nearly five years after her injury because the determination reflected an increase in wages that claimant would have continued to receive if not for the industrial injury she sustained while working for the former employer when the injury was sustained. Avalanche Indus. v. Indus. Claim Appeals Office, 166 P.3d 147 (Colo. App. 2007), aff'd, 198 P.3d 589 (Colo. 2008).
While calculation of a claimant's average weekly wage is generally tied to the time of injury, the discretionary exception allows an ALJ to base the average weekly wage on a salary that a claimant was actually earning when forced to stop working. Avalanche Indus. v. Clark, 198 P.3d 589 (Colo. 2008).
The discretionary exception allows an ALJ to compute an employee's average weekly wage based on compensation received at a subsequent employer, provided the ALJ does not abuse his or her discretion. Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010).
Administrative law judge did not abuse his discretion when he determined the claimant's average weekly wage included the cost of COBRA insurance, even when the claimant did not actually purchase the Consolidated Omnibus Budget Reconciliation Act (COBRA) health insurance after she was unable to work. Avalanche Indus. v. Clark, 198 P.3d 589 (Colo. 2008).
For purposes of calculating disability benefits, employment contract covered both hours during which wages and tips were received and hours during which only tips were received but employee remained under direction and control of employer. Romero v. U-LET-US Skycap Servs. Inc., 740 P.2d 1004 (Colo. App. 1987).
Expense reimbursement of four cents per mile was not considered wages for federal income tax purposes and therefore could not be considered wages for purposes of computing a claimant's average weekly wage. Ernie Baylog, Inc. v. Indus. Claim Appeals Office, 923 P.2d 361 (Colo. App. 1996).
Reasonable depreciation deducted from a self-employed workers' compensation claimant's gross earnings as reported on his federal income tax return should be included in the calculation of his post-injury average weekly wage for determining the amount of temporary partial disability benefits to which he is entitled. Elliott v. El Paso County, 860 P.2d 1365 (Colo. 1993).
Workers' compensation claimant bears the burden of establishing the reasonableness of depreciation deductions included in calculating temporary partial disability benefits because the claimant bears the burden of showing the statutory entitlement to compensation by a preponderance of the evidence. Elliott v. El Paso County, 860 P.2d 1365 (Colo. 1993).
Concurrent employment. Where an injury impairs a claimant's ability to earn from concurrent employments, a "fair" computation of the average weekly wage may warrant inclusion of all such wages. Jefferson County Pub. Sch. v. Dragoo, 765 P.2d 636 (Colo. App. 1988); Broadmoor Ins. Co. v. Indus. Claim Appeals Office, 939 P.2d 460 (Colo. App. 1996).
The phrase "at the time of the determination of such permanency," as used in subsection (4), refers to the time of the treating physician's determination of maximum medical improvement, not the date of hearing or adjudication on the issue of permanent impairment benefits. The date that the administrative docket can accommodate a hearing bears no relation to the claimant's physical condition. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo. 1995).
Purpose of the minors' statute now codified in subsection (4) is to eliminate the disparity of benefits between adult workers and minor workers, who frequently work part-time and at substantially lower wages. Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo. 1995).
Conclusion that an injured minor remains entitled to the benefit of the higher end "age factor" listed in 8-42-107 as well as computation of benefits at the maximum temporary disability rate, is not inconsistent with the legislative intent of this section or 8-42-107. Arkansas Valley Seeds, Inc. v. Indus. Claim Appeals Office, 972 P.2d 695 (Colo. App. 1998).
Minor with scheduled disability is not entitled to aggregate amount of benefits allowed by statute as provided by subsection (4). Since 8-42-107 (6) provides for a fixed rate of compensation for all scheduled disabilities, there is no disparity between the benefits paid to minors and to adults. Williams v. Indus. Claim Appeals Office, 932 P.2d 869 (Colo. App. 1997).
Applied in Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).