8-42-112. Acts of employees reducing compensation.

Statute text

(1) The compensation provided for in articles 40 to 47 of this title shall be reduced fifty percent:

(a) Where injury is caused by the willful failure of the employee to use safety devices provided by the employer;

(b) Where injury results from the employee's willful failure to obey any reasonable rule adopted by the employer for the safety of the employee; or

(c) (Deleted by amendment, L. 99, p. 581, 2, effective July 1, 1999.)

(d) Where the employee willfully misleads an employer concerning the employee's physical ability to perform the job, and the employee is subsequently injured on the job as a result of the physical ability about which the employee willfully misled the employer. Notwithstanding any other provisions of articles 40 to 47 of this title, the provisions of this paragraph (d) shall apply in addition to any other penalty that may be imposed under section 8-43-402.

(2) In the event the claimant or dependent is receiving periodic disability benefits for which a reduction in Colorado workers' compensation benefits has been made pursuant to section 8-42-103, the fifty percent reduction provided for in subsection (1) of this section shall be computed according to the rate of benefits received by the claimant or dependent after, and not before, such other reduction has been made.

(3) An admission of liability reducing compensation under this section must include a statement by a representative of the employer listing the specific facts on which the reduction is based.

(4) If the insurer or self-insured employer admits liability for the claim, any party may request an expedited hearing on the issue of whether the employer or insurer may reduce compensation under this section if the application for hearing is filed within forty-five days after the date of the admission reducing compensation under this section. The director shall set any expedited matter for hearing within sixty days after the date of the application. The time schedule for an expedited hearing is subject to the extensions set forth in section 8-43-209. If the party elects not to request an expedited hearing under this subsection (4), the time schedule for hearing the matter is as set forth in section 8-43-209.

(5) Nothing in this section limits the right of a party to submit evidence at a hearing scheduled under this section or section 8-43-209.

(6) Nothing in this section precludes a party from requesting a hearing pursuant to the time schedule set forth in section 8-43-209.

History

Source: L. 90: Entire article R&RE, p. 494, 1, effective July 1. L. 91: (2) added, p. 1351, 3, effective May 29. L. 99: (1) amended, p. 581, 2, effective July 1; (1)(d) added, p. 406, 1, effective September 1. L. 2016: (3) to (6) added, (SB 16-217), ch. 272, p. 1127, 2, effective July 1.

Annotations

Editor's note: This section is similar to former 8-52-104 as it existed prior to 1990.

Annotations

Cross references: For the legislative declaration in SB 16-217, see section 1 of chapter 272, Session Laws of Colorado 2016.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Violation of Safety Rules.
III. Injury Resulting from Intoxication.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Enterprise Liability Theory of Torts", see 47 U. Colo. L. Rev. 153 (1976).

Annotator's note. (1) Since 8-42-112 is similar to 8-52-104 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 enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred some of its powers, duties, and functions under this section to the director of the division of labor.

Abolished defenses not affected. This section has nothing to do with, and does not restore, the fellow servant rule, doctrine of assumption of risk or contributory negligence, abolished by other enactments. Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925).

This section applies to claims based upon injuries, as well as to death claims. Indus. Comm'n v. Funk, 68 Colo. 467, 191 P. 125 (1920); Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925); Bennett Props. Co. v. Indus. Comm'n, 165 Colo. 135, 437 P.2d 548 (1968); Mohawk Rubber Co. v. Claimants in re Death of Cribbs, 165 Colo. 526, 440 P.2d 785 (1968); Conn v. Conn. 167 Colo. 177, 446 P.2d 224 (1968).

However, while workmen's compensation laws are construed liberally in favor of the workmen, they are not to be so narrowly construed as to fasten full liability upon an employer when the worker becomes careless or indifferent in his conduct while acting within his employment. Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952).

Deduction of federal death benefits. Federal death benefits are to be deducted from the aggregate benefits payable for death under 8-50-103 before the amount of compensation is reduced by 50 percent if the employee engaged in conduct proscribed by this section. Cline v. Indus. Comm'n, 43 Colo. App. 123, 599 P.2d 973 (1979).

Applied in Deterts v. Times Publ'g Co., 38 Colo. App. 48, 552 P.2d 1033 (1976).

II. VIOLATION OF SAFETY RULES.

This section applies only where the employer has adopted reasonable safety rules. Clayton Coal Co. v. De Santis, 95 Colo. 332, 35 P.2d 492 (1934).

And violation of a safety rule does not bar recovery, but the amount of the recovery is based upon the circumstances under which a safety rule is violated. Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952).

But a wilful violation, while not defeating compensation, does reduce it by 50 percent. Indus. Comm'n v. Funk, 68 Colo. 467, 191 P. 125 (1920); McCulloch v. Indus. Comm'n, 109 Colo. 123, 123 P.2d 414 (1942); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702, (1959).

And where compensation is increased 50 percent for failure of employer to carry insurance, deduction for violation of the safety rule is to be made after the addition of the 50 percent for failure to insure. McKune v. Indus. Comm'n, 94 Colo. 523, 31 P.2d 322 (1934).

The word "wilful" does not connote a bad purpose. Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925).

The word "wilful" in this section must be given a reasonable interpretation in accord with the objective to be attained by this section. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).

And the meaning of the word "wilful" is "with deliberate intent". If the employee knows of the rule and yet intentionally does the forbidden thing he has "wilfully failed to obey" the rule. Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925); Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946); Bennett Props. Co. v. Indus. Comm'n, 165 Colo. 135, 437 P.2d 548 (1968).

Where failure to obey orders may have been the result of carelessness, negligence, forgetfulness, remissness, or oversight, such failure would not necessarily be "wilful failure" because any of the causes might occur without a "deliberate intent" on the part of decedent and would not of itself establish a "wilful failure". Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).

But if the employee knows the rule, and yet intentionally does the forbidden thing, he has "wilfully failed to obey" the rule. McCulloch v. Indus. Comm'n, 109 Colo. 123, 123 P.2d 414 (1942); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Bennett Props. Co. v. Indus. Comm'n, 165 Colo. 135, 437 P.2d 548 (1968).

And it is not necessary for the employer to show that the employee, having the rule in mind, determined to break it; it is enough to show that, knowing the rule, he intentionally performed the forbidden act. Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925); Bennett Props. Co. v. Indus. Comm'n, 165 Colo. 135, 437 P.2d 548 (1968).

Since employee had a plausible purpose to explain why he violated a safety rule by removing his rubber glove when working on high voltage lines, so that he could operate employer's faulty equipment, his award should not have been reduced by 50%. City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App. 1990).

However, the employer has the burden of establishing that employee's death was result of "wilful failure" to obey a reasonable rule. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).

It is generally held that oral warnings, prohibitions, and directions meet the safety requirement for the protection of both employer and employee if given by someone generally in authority and known to be heard and understood by the employee. Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Bennett Props. Co. v. Indus. Comm'n, 165 Colo. 135, 437 P.2d 548 (1968).

For warnings, numerously given, coupled with the presumption of common sense on the part of claimant obviated the necessity of the posting of a safety rule concerning the existing dangerous condition. McCullough v. Indus. Comm'n, 109 Colo. 123, 123 Colo. 414 (1942); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Bennett Props. Co. v. Indus. Comm'n, 165 Colo. 135, 437 P.2d 548 (1968).

And orally forbidding employees to use a bridge is sufficient to constitute a safety rule under the provisions of this section. Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925). See Indus. Comm'n v. Funk, 68 Colo. 467, 191 P. 125 (1920).

As is oral direction to wear safety goggles. McCulloch v. Indus. Comm'n, 109 Colo. 123, 123 P.2d 414 (1942).

So also is an order not to work under certain conditions. Indus. Comm'n v. Funk, 68 Colo. 467, 191 P. 125 (1920).

But casual conversation does not amount to adoption of rule. McNeil Coal Corp. v. Indus. Comm'n, 105 Colo. 263, 96 P.2d 889 (1939).

When republication of order unnecessary. Where employees were forbidden to cross a bridge with teams, attempted repairs to the bridge by third party did not necessitate republishing the order. Stockdale v. Indus. Comm'n, 76 Colo. 494, 232 P. 669 (1925).

But failure to bring existence of safety rule home to employee. Where the existence of safety rule forbidding employees to jump on moving trucks or to ride on trucks had never been brought home to employee, it was held that where employee was crushed to death beneath moving truck he was attempting to jump on, the director was justified in declining to find that deceased had violated a reasonable safety rule which would have the effect of diminishing the award by one-half. Pac. Employers Ins. Co. v. Kirkpatrick, 111 Colo. 470, 143 P.2d 267 (1943).

Violation of state statute is immaterial where employer has adopted no safety rule. Clayton Coal Co. v. De Santis, 95 Colo. 332, 35 P.2d 492 (1934).

The statute provides a penalty for misconduct of employees, not a defense for employers, but the penalty does not have to be applied to all aspects of recovery for the injured employee. The intent of the statute is not to apportion negligence but to deter misconduct. Wild W. Radio v. Indus. Claim Appeals Office, 886 P.2d 304 (Colo. App. 1994).

The Workers' Compensation Act imposes penalties for misconduct such as intoxication that results in injuries but it does not disqualify the claimant from all benefits. Wild W. Radio, Inc. v. Indus. Claim Appeals Office, 905 P.2d 6 (Colo. App. 1995); Ackerman v. Hilton's Mechanical Men, 914 P.2d 524 (Colo. App. 1996).

As long as the ALJ's determination of whether an accident was caused by an employee's intoxication is supported by substantial evidence in the record, it is binding on review. Ackerman v. Hilton's Mechanical Men, 914 P.2d 524 (Colo. App. 1996).

III. INJURY RESULTING FROM INTOXICATION.

The intoxication of claimant must be a proximate cause of the injury for reduction in compensation. Stearns-Roger Mfg. Co. v. Casteel, 128 Colo. 289, 261 P.2d 228 (1953).

Where there is no evidence in the record to require a finding, as a matter of law, that intoxicants caused or contributed to the accident, no one knows what caused the accident, the question of whether benefits should be reduced was properly for the trier of facts to determine. J. C. Carlile Corp. v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967).

The causal connection between the blood alcohol level of the decedent and the accident is a question of fact. The court of appeals will not disturb the finding that his intoxication was not the proximate cause of the accident where there is no testimony that the decedent's driving ability was impaired. Elec. Mut. Liab. Ins. Co. v. Indus. Comm'n, 154 Colo. 491, 391 P.2d 677 (1964); Tatum-Reese Dev. Corp. v. Indus. Comm'n, 30 Colo. App. 149, 490 P.2d 94 (1971).

Commission abused discretion in failing to rule intoxication-caused injury. Where the following testimony was uncontroverted: That an autopsy was performed at which it was determined that the blood alcohol level in the deceased's body shortly after death was .225 percent; that in order to reach a blood alcohol level of .225 percent the deceased would have had to have consumed nine ounces of 100 proof liquor or nine 12-ounce cans of beer or some combination thereof; that such a quantity of alcohol in one's bloodstream would have "drastically impaired" one's motor reflexes involved in operating a vehicle; the commission abused its discretion in failing to rule that the injury resulted from the intoxication of the deceased. Harrison W. Corp. v. Hicks' Claimants, 185 Colo. 142, 522 P.2d 722 (1974).