A Discussion of the Differences between personal injury law and workers’ compensation law in Colorado
John Trueax is a partner at Kiel, Trueax & Gold, L.L.C. who specializes in both personal injury tort law and Colorado workers’ compensation law. Most injury attorneys in Colorado handle only personal injury cases or only workers’ compensation cases. A few, like Mr. Trueax, litigate cases in both of these areas of the law. Sometimes, when a worker is injured while he or she is in the course and scope of employment (i.e., they are actively working at the time of the injury), the worker may have a case where they are entitled to recover under both personal injury law and workers’ compensation law. For example, say a worker is running an errand for the employer and is rearended in traffic. That worker would have the right to recover both workers’ compensation benefits and to pursue a tort claim against the negligent driver who caused the collision. Under these circumstances, an attorney who litigates both types of cases can be a very effective advocate for the injured worker.
But, how do the different systems of claims and benefits actually differ from one another?
First, let’s look at the straightforward personal injury case. Assume a person has been sitting at a stoplight and is struck by an inattentive driver. Further, assume the stopped driver was not working at the moment in time the collision occurred.. What compensation can this injured driver recover through the tort system in what is known as a personal injury case? First, the injury victim can recover for economic losses; for example, medical bills, lost wages, the cost of yardwork or housework services, or the cost of a babysitter. Next, in the event the injured person has a permanent injury, he or she can recover for this element of damages. For example, restrictions have been placed on the person’s ability to lift, bend, or sit or stand for long periods of time due to a back injury. Then, there is the category of damages commonly known as pain and suffering. This category of damages allows an injured person to be compensated for the damaging consequences of the injuries that have no clear economic component to them. Examples: inability to properly care for and play with children, inability to pursue formerly pleasurable activities, such as playing the piano, walking for exercise, gardening, working out a the gym, skiing or boarding, playing team sports, or participating in church or social activities. A component of pain and suffering damages is what is called “loss of enjoyment of life.” Simply being able to do one’s normal daily activities without pain is an aspect of life that most of us take for granted until we are no longer able to do those things. Then, following an injury, we realize that something very significant has been taken away from us. Also, an injured person has the right to receive compensation for losses which are likely to occur in the future. Examples: the likely cost of necessary future treatment or surgery, the loss of access to the job market (a loss of earning capacity). In short, if a reasonable argument can be made that an injured person has had a significant economic or non-economic loss, either in the past or in the future, a jury can consider the proper damages for such losses.
How does the system of compensation differ in a workers’ compensation case?
The example for this discussion will be a worker who injured his or her back lifting a heavy object at work. Compensation for work-related injuries is based completely on the Colorado Workers’ Compensation Act. This is a statute that has been enacted and revised over the years by the Colorado Legislature. This system of compensation is very mechanical in its application because of the application of strict formulas contained in the statutory law. Unfortunately, the available benefits are almost always less under the workers’ compensation system than under the personal injury (tort) system. The primary difference is that injured workers are not entitled to be compensated for the broad category of damages, discussed above, known as pain and suffering. The statutory categories of damages are: 1) Compensation for lost wages. These benefits are known as temporary total disability (TTD) benefits. An injured worker may receive two-thirds of his or her average weekly wage (AWW) as compensation for being off of work. If the worker is a high wage earner, the benefits are capped at a certain level, so that a highly compensated employee can only receive the maximum allowable benefit, regardless of salary level. 2) Compensation for medical bills. The medical bills of an “authorized treating physician” or other medical care provider are the responsibility of the workers’ compensation insurance company. It is the insurance company, under Colorado law, that is allowed to select the treating doctor or doctors. Also, if an authorized treating doctor refers the patient to another doctor or provider, that new doctor or provider is authorized. However, except for under limited circumstances, an injured worker cannot pick his or her own treating doctor. 3) Compensation for permanent injury. If the worker is capable of returning to work, then compensation will come by way of a permanent impairment rating. This is a percentage rating determined, at least initially, by the authorized treating physician. (If the rating is unfair, the rating can be challenged by way of a mechanism through the Colorado Division of Workers’ Compensation known as the DIME, a Division Independent Medical Examination.) If the worker is incapable of returning to the workforce in any capacity, then he or she is eligible for compensation for permanent total disability (PTD). All of these categories of compensation for work-related injuries are provided by the Colorado Workers’ Compensation Act. Conspicuously absent from this system of benefits is the right to receive compensation for pain and suffering which is available, as discussed above, under the personal injury (tort) system. In some cases, the right to be compensated for permanent impairment allows the injured worker to approximate what he or she would have received under the tort system. In many cases, however, the lack of entitlement to compensation for pain and suffering leaves the injured worker with significantly less compensation than a person with the exact same injury who can pursue a recovery under the tort system. Also, while the system of compensating an injured worker for permanent impairment seemingly provides benefits for future losses such as a loss of earning capacity, in reality, the recovery for that component of damages under the workers’ compensation system is often completely inadequate.
Finally, let’s look at a person who is, in fact, working at the time of an injury caused by another person.
If the other person causing the injury is a co-worker, then the injured worker can only recover through the workers’ compensation system. However, if the negligent person is not a co-worker, then both a workers’ compensation claim and a personal injury claim can be made. The example here will be a person performing a work errand who is injured in an automobile collision. Because the injured person was working, he or she has a workers’ compensation claim. However, because the injury was caused by a negligent person who is not a co-worker, the injured person may also make a tort claim. The Colorado Workers’ Compensation Act does allow the workers’ compensation insurance company to be reimbursed for benefits which it paid out. However, often that insurance company will agree to, or be required to, reduce somewhat the amount of reimbursement. Generally, in terms of obtaining maximum fair compensation, both the workers’ comp claim and the personal injury (tort) claim should be pursued. The proper pursuit of these claims is usually a matter of timing on the part of the attorney or attorneys handling the claims. It is important to note that settling the personal injury claim without obtaining the permission of the workers’ compensation company, and without acknowledging the workers’ comp company’s right to be paid back, will result in negative consequences, including the loss of future benefits from the workers’ comp company in the event such benefits are warranted. There is a very specific form of notification which must be given to the workers’ comp company pursuant to Colorado statute when the claim for personal injury compensation is initiated.
In summary, the two systems of compensation are very different. Generally, the personal injury (tort) system provides greater benefits than the workers’ compensation system, though this is not always true. To discuss either or both of these systems of compensation, contact John Trueax at Kiel & Trueax, LLC. Your first consultation is free. Call (303) 694-2666, e-mail info@coloradotortlaw.com, or use our Contact Us form.
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The Difference Between a worker's
Compensation Claim and Personal Injury Case in Colorado