The Exclusivity Rule in Workers’ Compensation Recovery
Workers’ compensation is the primary source of financial recovery for a job-related injury in Colorado. The law provides that it is the “exclusive remedy” for obtaining compensation from employers for work injuries. That said, an injured worker may be able to recover additional compensation due to the negligence of third parties. There are also a few limited exceptions to the rule. As Denver worker’s compensation lawyers, we are experienced in assisting our clients to maximize their recovery from work-related injuries.
No Proof of Negligence Required
Colorado’s Workers Compensation System enables injured workers to obtain compensation for work injuries without having to prove negligence against their employers. In exchange for this, workers give up the right to sue their employer in court for damages. The worker’s compensation process requires the employee to notify his or her employer in writing within four working days of the injury. Thereafter, the employer must file a report of the injury. If the employee has missed more than 3 days or 3 shifts as a result of the injury, the employer has 20 days to notify the employee whether the claim is accepted and benefits will be paid.
In general, workers’ compensation benefits will equal two-thirds of the average weekly wage (AWW) the worker was receiving on the date of injury. AWW includes gross wages or salary, commissions, overtime, tips and per diem payments (that were reported to the IRS), reasonable board, the value of rent, housing and lodging, and the cost of continuing the employer’s group health insurance plan.
Potential Additional Sources of Financial Compensation for Work Injuries
There are certain limited exceptions to the exclusivity rule. It does not prevent a claim against an employer for discrimination or for sexual harassment. Colorado courts have also held that the exclusivity rule does not apply to intentional torts (such as false imprisonment, assault, intentional infliction of emotional distress) committed by the employer “if the employer deliberately intended to cause the injury and acted directly, rather than constructively through an agent,” such as a co-employee.” If injuries were inflicted by a co-employee who was not acting in the course of employment, the exclusivity rule may not apply and the employee should be able to receive full compensation from the co-employee in a separate lawsuit.