CO Code § 8-41-304 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 41 - Coverage and Liability|Part 3 - Liability|§ 8-41-304. Last Employer Liable - Exception

  Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier. In the case of silicosis, asbestosis, or anthracosis, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide (SiO2) dust, asbestos dust, or coal dust on each of at least sixty days or more and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer.    In any case where an employee of an employer becomes disabled from silicosis, asbestosis, anthracosis, or poisoning or disease caused by exposure to radioactive materials, substances, or machines or to fissionable materials, or any type of malignancy caused thereby, or in the event death results from silicosis, asbestosis, anthracosis, or poisoning or disease caused by exposure to radioactive materials, substances, or machines or to fissionable materials, or any type of malignancy caused thereby, and, if such employee has been injuriously exposed to such diseases while in the employ of another employer during the employee's lifetime, the last employer or that employer's insurance carrier, if any, shall be liable for compensation and medical benefits as provided by articles 40 to 47 of this title, including funeral expenses and death benefits.     History. Source: L. 90: Entire article R&RE, p. 480, § 1, effective July 1. L. 91: (1) amended, p. 1295, § 8, effective July 1. L. 93: (2) amended, p. 2140, § 1, effective April 1, 1994.    Editor's note:   This section is similar to former § 8-51-112 as it existed prior to 1990.   ANNOTATION   Law reviews. For article, “Primer on Permanent Disability in the Colorado Workmen's Compensation Law”, see 57 Den. L.J. 573 (1980). For article, “Occupational Disease Claims Under Senate Bill 218”, see 22 Colo. Law. 2421 (1993).   Annotator's note. Since § 8-41-304 is similar to § 8-51-112 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.   Constitutional guarantees of equal protection not violated by overall statutory scheme for assessing and apportioning liability among different classes of employees because legitimate governmental interest to encourage the employment of partially disabled persons is furthered. Electron Corp. v. Indus. Claim Appeals Office, 833 P.2d 821 (Colo. App. 1992).   Liability on last employer not violative of equal protection. The imposition of liability of the last employer, while absolving all previous employers from liability, does not violate equal protection. Union Carbide Corp. v. Indus. Comm'n, 196 Colo. 56 , 581 P.2d 734 (1978).   Legislative purpose. The overriding legislative purpose in enacting this section was that losses due to industrial illness be compensated. Claimants in re Death of Garner v. Vanadium Corp. of Am., 194 Colo. 358 , 572 P.2d 1205 (1977).   “Employer” means “Colorado employer”. It is clear that “employer” as used in subsection (1) of this section cannot subject to liability an out-of-state employer even when it is the last “employer”. A reasonable reading of the act leads to the conclusion that “employer” means, prima facie, “Colorado employer”. Claimants in re Death of Garner v. Vanadium Corp. of Am., 194 Colo. 358 , 572 P.2d 1205 (1977).   Section takes precedence over § 8-51-106 (1)(a) (now § 8-46-101 ). The specific provisions of this section, applicable to occupational disease, take precedence over the general provisions of § 8-51-106 (1)(a) (now § 8-46-101 ), applicable to “injury”, notwithstanding that the statutory definition of injury, § 8-41-108 (2) , includes occupational disease. Denver v. Hansen, 650 P.2d 1319 (Colo. App. 1982).   The common law rule that a “special employment” relationship exists whenever an employer provisionally assigns to another employer the services of an employee who thereby surrenders to the borrowing employer the right of control over the employee's actions applies to cases arising under the Workers' Compensation Act and allows an employee to be simultaneously in the general employment of one employer and in the special employment of another, provided the employee understands that he or she is submitting to the control of the special employer. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   A separate tort action against a special employer was barred in dual employment situation and the employee's only remedy for an injury sustained while in the course of employment with the borrowing employer is through workers' compensation. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   The criteria considered by courts to be relevant in the determination of whether a special employment relationship exists are (1) whether the borrowing employer has the right to control the employee's conduct; (2) whether the employee is performing the borrowing employer's work; (3) whether there was an agreement between the original and borrowing employer; (4) whether the employee has acquiesced in the arrangement; (5) whether the borrowing employer had the right to terminate the employee; (6) whether the borrowing employer furnished the tools and place for performance; (7) whether the new employment was to be for a considerable length of time; (8) whether the borrowing employer had the obligation to pay the employee; and (9) whether the original employer terminated its relationship with the employee. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   Application of facts to the test of a loaned employee relationship was a question of law where the facts relating to the nature of claimant's work activities and claimant's consent to work for employer were not in dispute. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   Liability fixed as of date of last injurious exposure. This statutory provision and a similar provision, former § 8-60-113 (1) , evidences a legislative intent to impose liability for injury resulting from an occupational disease on the basis of the date of the last injurious exposure to the hazards of the disease, rather than the date of the initial onset of the disease. Martinez v. Indus. Comm'n, 40 Colo. App. 485, 580 P.2d 36 (1978).   “Injurious exposure” defined. An injurious exposure is a concentration of toxic material which would be sufficient to cause the disease in the event of prolonged exposure to such concentration. Union Carbide Corp. v. Indus. Comm'n, 40 Colo. App. 182, 573 P.2d 938 (1977), aff'd, 196 Colo. 56 , 581 P.2d 734 (1978).   The length of exposure is immaterial. Union Carbide Corp. v. Indus. Comm'n, 40 Colo. App. 182, 573 P.2d 938 (1977), aff'd, 196 Colo. 56 , 581 P.2d 734 (1978).   The employee is not required to ascertain the exact amount that each employer contributed in causing his or her occupational disease, nor is he or she required to pin point exactly which employer most injuriously exposed the claimant. Instead, such an employee is allowed to recover from the last employer in whose employ the last injurious exposure occurred and resulted in an aggravation that is both permanent and substantial. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993).   Compliance with federal guidelines for safe standards of radiation is immaterial to liability under workmen's compensation statute. Union Carbide Corp. v. Indus. Comm'n, 40 Colo. App. 182, 573 P.2d 938 (1977), aff'd, 196 Colo. 56 , 581 P.2d 734 (1978).   Last injurious exposure need not cause a worsening of condition. Redfield Scope Co. v. Indus. Comm'n, 689 P.2d 657 (Colo. App. 1984), aff'd in part and rev'd in part, 723 P.2d 731 (Colo. 1986).   Last injurious exposure rule applied only to compensation benefits, including temporary disability benefits. Royal Globe Ins. Co. v. Collins, 723 P.2d 731 (Colo. 1986).   Last injurious exposure rule is applicable only to determine apportionment of full liability for occupational diseases among the parties who could potentially be liable. Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo. App. 1995).   This section does not require that the last injurious exposure be the cause in fact of the disease. Union Carbide Corp. v. Indus. Comm'n, 40 Colo. App. 182, 573 P.2d 938 (1977), aff'd, 196 Colo. 56 , 581 P.2d 734 (1978); Royal Globe Ins. Co. v. Collins, 723 P.2d 731 (Colo. 1986).   But liability limited. The last employer which injuriously exposes an employee to toxic materials is liable only for the initial occupational disease benefits and any additional benefits are paid out of the subsequent injury fund to which all employers contribute. Union Carbide Corp. v. Indus. Comm'n, 196 Colo. 56 , 581 P.2d 734 (1978).   This section establishes the “last injurious exposure” rule for disabilities attributable to occupational diseases and is an exception to the general rule set forth in § 8-51-106(1)(a) , (now § 8-46-101 ) providing that the employer and its insurance carrier in whose employment the employee was “last injuriously exposed to the hazards of such disease” shall have full responsibility for that part of the permanent total disability caused by the occupational disease. Subsequent Injury Fund v. Grant, 827 P.2d 574 (Colo. App. 1991).   The phrase, “any type of malignancy caused thereby” must be construed broadly, not narrowly, in order to avoid thwarting policy on which subsequent injury fund provisions are based. The phrase includes cancer caused by exposure to asbestos and not simply “asbestosis” as strictly defined. Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App. 1991).   The phrase, “any type of malignancy caused thereby”, refers to all preceding conditions listed in subsection (2), and does not limit the liability of the subsequent injury fund to disability resulting from asbestosis, as opposed to cancer resulting from asbestosis. Subsequent Injury Fund v. Comp. Ins. Auth., 768 P.2d 751 (Colo. App. 1988).   Where employee died of lung cancer incurred as a result of his exposure to radioactive materials during his work as uranium miner for several employers, last employer was liable for benefits even though last exposure of eight days duration was probably not the cause in fact of the disease. Union Carbide Corp. v. Indus. Comm'n, 40 Colo. App. 182, 573 P.2d 938 (1977), aff'd, 196 Colo. 56 , 581 P.2d 734 (1978).   Section not applied when employee's back was reinjured. Reinjury of back did not implicate the “last injurious exposure” rule. Univ. Park Care Ctr. v. Indus. Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001).   Where claimant's permanent total disability is solely attributable to the occupational disease of silicosis, employer is correctly assessed full liability for claimant's disability benefits. Electron Corp. v. Indus. Claim Appeals Office, 833 P.2d 821 (Colo. App. 1992).   Where a worker's permanent total disability has been caused by the combination of two or more injuries and the subsequent occupational disease of silicosis, liability is apportioned. Liability for that portion of the permanent total disability directly attributable to silicosis is governed by this section. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991).   Claimant need not be totally disabled solely as a result of asbestosis to qualify for compensation under subsection (2). If asbestosis is the proximate cause of the claimant's disability, i.e., the necessary precondition for the disability, then, even where the claimant was a heavy cigarette smoker, the disability is caused by asbestos is within the meaning of this section. Subsequent Injury Fund v. Comp. Ins. Auth., 768 P.2d 751 (Colo. App. 1988), aff'd, 793 P.2d 580 (Colo. 1990).   Employer properly assessed with full liability for claimant's disability benefits where claimant's permanent total disability is solely attributable to the occupational disease of silicosis. Electron Corp. v. Indus. Claim Appeals Office, 833 P.2d 821 (Colo. App. 1992).   Subsequent injury fund may be held liable for interest on award. Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App. 1991).   The subsequent injury fund was not liable for compensation in excess of ten thousand dollars although the decedent was employed by more than one employer. The decedent's radiation exposure after the date the new employer became the manager of the plant was found to be insufficient to constitute an injurious exposure. Dow Chemical Co. v. Indus. Claim Appeals Office, 843 P.2d 122 (Colo. App. 1992) (decided prior to 1993 amendment to subsection (2)).   An occupational disease or disability “occurs”, within the meaning of § 8-46-104 , on the onset of disability, rather than upon the date of diagnosis. Union Carbide Corp. v. Indus. Claim Appeals Office, 128 P.3d 319 (Colo. App. 2005).   An employer's total liability, including interest, cannot exceed ten thousand dollars, and any interest payable that exceeds the employer's maximum obligation remains the sole obligation of the fund. Subsequent Injury Fund v. Indus. Claim Appeals Office, 859 P.2d 276 (Colo. App. 1993).   Where diagnosis occurred before April 1, 1994, the subsequent injury fund was liable for benefits claimed under previous version of statute for disability caused by exposure to radioactive materials even though decedent died after such date. Subsequent Injury Fund v. King, 961 P.2d 575 (Colo. App. 1998).   Payment of interest. The interest awarded in excess of the $7,500 award is payable out of the subsequent injury fund, rather than by employer and insurance company. Union Carbide Corp. v. Indus. Comm'n, 40 Colo. App. 182, 573 P.2d 938 (1977), aff'd, 196 Colo. 56 , 581 P.2d 734 (1978).   The addition of the phrase “substantial permanent aggravation” to subsection (1) did not eliminate or change the last injurious exposure test for causation. The phrase does not reflect an intent of the general assembly to depart from the principles set forth in Royal Globe Ins. Co. v. Collins, 713 P.2d 731 (Colo. 1986), including rejection of the contribution test for application of a last injurious exposure standard to occupational diseases caused by physical activities. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993).   Under the present version of subsection (1), the length of employment with a particular employer continues to be immaterial to a finding of liability. Instead, the focus is now on both the harmful nature of the concentration of the exposure and the magnitude of the effect of such exposure. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993).   Claimant's tort suit against the employer was barred by the Workers' Compensation Act as a matter of law where claimant had consented to work for the employer pursuant to a contract of hire within the meaning of the Act and she was an employee of both a dual employer and the employer. Evans v. Webster, 832 P.2d 951 (Colo. App. 1991).   Where the administrative law judge determined, based on the evidence, that claimant's disability arose from an upper extremity injury during claimant's tenure with employer, evidence that claimant sustained an aggravation of his condition upon return to self-employment was not relevant. Delta Drywall v. Indus. Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993).   Applied in High v. Indus. Comm'n, 638 P.2d 818 (Colo. App. 1981); Mendisco & Urralbura Mining Co. v. Johnson, 687 P.2d 492 (Colo. App. 1984); Dow Chem. Co. v. Gabel, 746 P.2d 1357 (Colo. App. 1987).