CO Code § 8-42-105 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 42 - Benefits|§ 8-42-105. Temporary Total Disability

  In case of temporary total disability of more than three regular working days' duration, the employee shall receive sixty-six and two-thirds percent of said employee's average weekly wages so long as such disability is total, not to exceed a maximum of ninety-one percent of the state average weekly wage per week. Except where vocational rehabilitation is offered and accepted as provided in section 8-42-111 (3), temporary total disability payments shall cease upon the occurrence of any of the events enumerated in subsection (3) of this section. If vocational rehabilitation is offered and accepted, any party may at any time terminate vocational rehabilitation upon fourteen days' written notice to the other parties and the director. For purposes of this section, termination of vocational rehabilitation shall be the same as if vocational rehabilitation had never been offered and accepted, and the employer or insurance carrier shall not be entitled to recover any temporary total disability benefits paid during the period that vocational rehabilitation was provided.      , the time schedule for hearing the matter shall be as set forth in section 8-43-209. Compensation shall be paid at least once every two weeks, except where the director determines that payment in installments should be made at some other interval. The director may by rule convert monthly benefit schedules to weekly or other periodic schedules.    Temporary disability compensation is not due and payable for any period of time for which the insurer or self-insured employer has requested from the employee's attending physician verification of the employee's inability to work resulting from the claimed injury or disease and the physician cannot verify the employee's inability to work, unless the employee has been unable to receive treatment for reasons beyond the employee's control. Failure of the physician to submit such verification, through no fault of the employee, shall not affect the payment of temporary disability compensation under this section.    If an employee fails to appear at an appointment with the employee's attending physician, the insurer or self-insured employer shall notify the employee by certified mail that temporary disability benefits may be suspended after the employee fails to appear at a rescheduled appointment. If the employee fails to appear at a rescheduled appointment, the insurer or self-insured employer may, without a prior hearing, suspend payment of temporary disability benefits to the employee until the employee appears at a subsequent rescheduled appointment.    If the insurer or self-insured employer has requested and failed to receive from the employee's attending physician verification of the employee's inability to work resulting from the claimed injury or disease, medical services provided by the attending physician are not compensable until the attending physician submits such verification.       Temporary total disability benefits shall continue until the first occurrence of any one of the following:   The employee reaches maximum medical improvement;    The employee returns to regular or modified employment;    The attending physician gives the employee a written release to return to regular employment; or      The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. (d) (I) The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.    In the case of employment by a temporary help contracting firm, once the employee has received one written offer of modified employment meeting the requirements of subparagraph (III) of this paragraph (d), the employee shall be deemed to be on notice that modified employment is available. Subsequent offers of modified employment need not be in writing so long as the job requirements of such modified employment are within the restrictions given the employee by the employee's attending physician and the employee is allowed a period of at least twenty-four hours, not including any part of a Saturday, Sunday, or legal holiday, within which to respond to any such offer.    A written offer of modified employment under subparagraph (II) of this paragraph (d) shall clearly state:   That future offers of employment need not be in writing;    The policy of the temporary help contracting firm regarding how and when employees are expected to learn of such future offers; and    That benefits under this section will be terminated if an employee fails to respond to an offer of modified employment.               In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.    The claimant's refusal to accept an offer of modified employment under either of the following conditions does not constitute responsibility for termination:   The offer of modified employment would require the claimant to travel a distance of greater than fifty miles one way more than the claimant's preinjury commute; or    An administrative law judge determines that the claimant's rejection of the offer of modified employment was reasonable considering the totality of the claimant's circumstances, including accounting for:   The consequences of the industrial injury;    The financial hardship that would be imposed on the claimant in order to accept the offer of modified employment; or    Any other reasons that would, in the opinion of the administrative law judge, make it impracticable for the claimant to accept the offer of modified employment.          The circumstances described in paragraph (b) of this subsection (4) are not exhaustive.        History. Source: L. 90: Entire article R&RE, p. 490, § 1, effective July 1. L. 91: Entire section amended, p. 1304, § 13, effective July 1. L. 92: (2)(a) amended, p. 1824, § 2, effective April 29. L. 96: (3) amended, p. 827, § 2, effective July 1. L. 99: (4) added, p. 266, § 2, effective July 1. L. 2009: (2)(a) amended,(SB 09-070), ch. 49, p. 175, § 1, effective August 5. L. 2010: (4) amended,(SB 10-187), ch. 310, p. 1458, § 5, effective July 1.    Editor's note:   This section is similar to former § 8-51-102 as it existed prior to 1990.   ANNOTATION   Law reviews. For article, “One Year Review of Torts”, see 40 Den. L. Ctr. J. 160 (1963). For article, “Time, Equity and the Average Weekly Wage”, see 23 Colo. Law. 1831 (1994). For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 32 Colo. Law. 97 (June 2003). For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 33 Colo. Law. 83 (April 2004). For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 33 Colo. Law. 117 (Nov. 2004). For article, “The Road to Longmont Toyota: Starting and Stopping Temporary Disability Benefits”, see 34 Colo. Law. 87 (June 2005). For article, “Termination of Undocumented Workers Under the Workers' Compensation Act”, see 37 Colo. Law. 59 (March 2008).   Annotator's note. Since § 8-42-105 is similar to § 8-51-102 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.   Benefits based on claimant's average weekly wage. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590 , 380 P.2d 62 (1963).   An award under this section is mandatory if three conditions are met: (1) The injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; and (3) the temporary disability is total and lasts more than three regular working days' duration. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).   Admission of liability for “closed” period not permitted. By filing an admission of liability, an insurer has, in effect, admitted that the claimant has sustained the burden of proving entitlement to temporary disability benefits. Thereafter, the insurer is bound by that admission and must pay accordingly. The insurer may not unilaterally terminate benefits without complying with this section and with rules governing the termination of such benefits. Colo. Comp. Ins. Auth. v. Indus. Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).   Subsection (1) and § 8-42-103(1)(a) require a claimant to establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain temporary total disability (TTD) benefits. Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995); City of Colo. Springs v. Indus. Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997).   A later injury to another part of the body, not resulting in additional wage loss, does not entitle the claimant to a renewed award of benefits under this section. City of Colo. Springs v. Indus. Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997).   To establish eligibility for temporary disability benefits the employee need not prove that the work-related injury was the sole cause of the wage loss; if the claimant establishes that his or her work-related injury contributed in some degree to a temporary wage loss, the claimant is eligible for temporary disability benefits. Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).   Employee does not have to prove that work-related injury was sole cause of wage loss to establish eligibility for benefits. Horton v. Indus. Claim Appeals Office, 942 P.2d 1209 (Colo. App. 1996).   Standard of “suitable gainful employment” is inapplicable in determining eligibility for workmen's compensation benefits when the employee is temporarily disabled and vocational rehabilitation services remain open. Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo. App. 1986).   Right to temporary disability benefits is measured by the degree of wage loss attributable to an industrial injury, not by the degree of physical impairment nor willingness to seek employment. Denny's Restaurant, Inc. v. Husson, 746 P.2d 63 (Colo. App. 1987); Black Roofing Inc. v. West, 967 P.2d 195 (Colo. App. 1998).   Although “disability” incorporates both medical incapacity and loss of wage earnings, a claimant does not need to prove both components to establish entitlement to disability benefits under the workers' compensation act. Montoya v. Indus. Claim Appeals Office, 2018 COA 19 , __ P.3d __.   Neither this section nor § 8-42-103 requires claimant to provide a medical opinion restricting her from regular employment as a condition of receiving TTD benefits. The administrative law judge (ALJ) appropriately awarded TTD benefits based on claimant's evidence, including notes of her personal physician, that she had suffered a wage loss as a result of her injury. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997).   Release to work by attending physician precludes an award of TTD benefits. Unless there are conflicting opinions from attending physicians, an ALJ cannot disregard physician's opinion. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995); Popke v. Indus. Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997).   But an attending physician's report that has an internal conflict is subject to interpretation by the ALJ. Imperial Headware, Inc. v. Indus. Claim Appeals Office, 15 P.3d 295 (Colo. App. 2000).   Subsection (3) limits scope and frequency of disputes concerning duration of TTD benefits by treating the attending physician's opinion as conclusive. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).   When an offer and acceptance of vocational rehabilitation occur, the provisions of subsection (3) do not apply. As a result, when there is such an offer and acceptance, the attainment of maximum medical improvement is irrelevant to a claimant's right to TTD benefits. Larimer County v. Sinclair, 939 P.2d 515 (Colo. App. 1997).   The cap on the receipt of benefits imposed by § 8-42-107.5 does not apply so long as a claimant is entitled to receive TTD benefits under subsection (3) of this section. The receipt of such benefits is not an overpayment, and there is no duty to repay them. UAL v. Indus. Claim Appeals Office of Colo., , 312 P.3d 235 .   Termination of TTD benefits under any one of the conditions enumerated in this section is mandatory. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995); Laurel Manor v. Indus. Claim Appeals Office, 964 P.2d 589 (Colo. App. 1998).   ALJ is required to terminate benefits when attending physician provides claimant with written release to work. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).   The term “attending physician” includes only those physicians who are authorized to provide treatment. An attending physician must be one within the chain of authorization. Popke v. Indus. Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997).   The author of an effective release for return to employment must be the health care provider identified as the attending physician. While there can be more than one attending physician, the statute does not provide for release by any attending physician. Popke v. Indus. Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997).   Court will not impute to the general assembly an intent that the opinion of the first physician treating a claimant concerning the resuming of full-time employment outweighs the opinion of the second physician who began treatment at a later time. Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999).   A physician's status as the attending physician is a question fact that should be resolved by the ALJ. Popke v. Indus. Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997); Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999).   Claimant was no longer entitled to TTD benefits for injury incurred in course of her employment when claimant was offered and refused suitable gainful employment that was approved by her physician, was within her physical limitations, and which paid an increased amount of wages since the wage loss suffered was due to rejection of the offered employment. Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo. App. 1986).   For an attending physician's written release to be effective for the purpose of terminating TTD benefits, the release must be delivered to the employee. Popke v. Indus. Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997).   Industrial claim appeals panel did not terminate TTD benefits prematurely by relying on the physician's release to regular employment as the termination date. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo. App. 1995).   Disabling industrial injury suffered prior to July 1, 1987. A worker who has been awarded temporary partial disability benefits and who has been directed to undergo a vocational rehabilitation evaluation is entitled to receive temporary partial disability benefits until the commencement of a vocational rehabilitation program or the entry of an administrative ruling that vocational rehabilitation is not necessary to render the worker fit for a remunerative occupation. Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989); Gerber v. CAN-USA Construction, Inc., 783 P.2d 269 (Colo. 1989); Phillips v. Indus. Claim Appeals Office, 783 P.2d 271 (Colo. 1989); Indus. Claim Appeals Office v. Mid-Continent Res., Inc., 783 P.2d 290 (Colo. 1989); Arndt v. Elec. Metal Prods., Inc., 783 P.2d 290 (Colo. 1989); Northeastern Junior Coll. v. Kenyon, 783 P.2d 853 (Colo. 1989) (decided prior to 1987 repeal of subsections (4) and (5)).   Temporary disability benefits may be suspended if intervening events other than compensable injury are operative. Claimant need not reach maximum medical improvement. Roe v. Indus. Comm'n, 734 P.2d 138 (Colo. App. 1986).   An intervening injury does not suspend temporary disability benefit payments, even if such injury delays the attainment of maximum medical improvement. Horton v. Indus. Claim Appeals Office, 942 P.2d 1209 (Colo. App. 1996).   Subsection (1) sets the rate for TTD benefits. Allison v. Indus. Claim Appeals Office, 916 P.2d 623 (Colo. App. 1995).   However, this section does not mandate a legal duty upon the employer to pay that rate without regard to any claimed offset prior to the ALJ's determination of benefits. Allison v. Indus. Claim Appeals Office, 916 P.2d 623 (Colo. App. 1995).   Timing of TTD payments. The statutory language of subsection (2)(a) requires that TTD payments be paid at least every two weeks from the date compensation first becomes payable. Nothing in this subsection suggests that the date for payment of compensation is to be adjusted based on the date the insurer issued the most recent benefits check. An employer's decision to pay some TTD payments before completion of the two-week intervals does not alter the due dates for subsequent payments or accelerate the payment schedule. Jones v. Indus. Claim Appeals Office, 87 P.3d 259 (Colo. App. 2004).   Subsection (2)(a) does not suggest that the date of the most recent check for payment of TTD imposes a new baseline date for issuance of the next payment. Jones v. Indus. Claim Appeals Office, 87 P.3d 259 (Colo. App. 2004).   Subsection (2)(a) should not be interpreted to establish grounds to punish insurers who make payments before the two-week window expires or to accelerate the due date for the next payment if the insurer decides to make an early payment. Jones v. Indus. Claim Appeals Office, 87 P.3d 259 (Colo. App. 2004).   Under the plain language of subsection (2)(c), an employer that has admitted liability must automatically reinstate temporary disability benefits that were suspended for an injured employee's failure to appear at a rescheduled medical appointment when it is undisputed that the employer knew that the employee later appeared at a subsequent rescheduled medical appointment. Rocky Mtn. Cardiology v. Indus. Claim Appeals Office, 94 P.3d 1182 (Colo. App. 2004).   Term “suspend” as used in subsection (2)(c) means to stop temporarily and not to bar or exclude. Where the employee misses a rescheduled appointment but appears at a subsequent rescheduled appointment, the benefits that were suspended become due and payable. Sigala v. Atencio's Market, 184 P.3d 40 (Colo. 2008).   Under the plain meaning of the statute, a medical return to work order that predates the commencement of TTD benefits cannot trigger the benefits cessation provisions of subsection (3) because there are no benefits in place to continue until one of the listed circumstances occurs. Archuletta v. Indus. Claim Appeals Office, 2016 COA 66 , 381 P.3d 374.   Subsection (3)(c) can only terminate benefits that have already commenced, and consequently can only be applied prospectively. Archuletta v. Indus. Claim Appeals Office, 2016 COA 66 , 381 P.3d 374.   Grounds for termination of benefits in subsection (3) are exclusive. The insurer may not unilaterally terminate benefits based on the claimant's return to school. Assertion of such a defense creates a factual question that can be resolved only after a hearing. Colo. Comp. Ins. Auth. v. Indus. Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).   The word “wages”, as used in the workmen's compensation act, is construed to mean “money rate at which the services are recompensed under the contract of hire in force at the time of the accident”. Roeder v. Indus. Comm'n, 97 Colo. 133 , 46 P.2d 898 (1935); Lyttle v. State Comp. Ins. Fund, 137 Colo. 212 , 322 P.2d 1049 (1958).   And where 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).   “Wages” includes health insurance and similar advantages received from the employer, for purposes of this section, and the net cost to the employee of replacing the benefit should be added to the average weekly wage. State Comp. Ins. Auth. v. Smith, 768 P.2d 1256 (Colo. App. 1988).   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).   The term “employment” in subsection (4) is not ambiguous and encompasses both modified and regular employment. Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002).   Subsection (4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss but not when the worsening of a prior work-related injury causes the wage loss. Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004).   If an injured employee loses his job because of economic factors, is not at fault for the layoff, and has reasonably sought new employment, the employee is entitled to temporary disability benefits. Lunsford v. Sawatsky, 780 P.2d 76, (Colo. App. 1989); City of Aurora v. Dortch, 799 P.2d 461 (Colo. App. 1990).   Claimant would be entitled to TTD benefits, despite being terminated the same day as the injury for reasons unrelated to the injury, if the claimant was not at fault for the termination. PDM Molding, Inc. v. Stanberg, 885 P.2d 280 (Colo. App. 1994).   If claimant is at fault for termination for reasons unrelated to the injury, ALJ must consider the totality of the circumstances to determine whether the claimant's work-related injury is the cause of the claimant's inability to find work. PDM Molding, Inc. v. Stanberg, 885 P.2d 280 (Colo. App. 1994).   Claimant who was not at fault for termination from post-injury employment during the period of temporary disability is entitled to have TTD benefits resumed, as there is a causal link between the industrial injury and the subsequent wage loss. Schlage Lock v. Lahr, 870 P.2d 615 (Colo. App. 1993).   Termination for fault not an automatic bar to receipt of benefits. Notwithstanding termination for fault, if the work-related injury in fact contributed in some degree to the employee's wage loss during the period of disability, the employee is eligible for benefits under this section. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999).   The test for determining eligibility for such post-termination benefits is whether the work-related injury contributed in some degree to the subsequent wage loss. Once the claimant shows that the subsequent wage loss was related to the industrial injury, TTD benefits can be denied or terminated only if one of the four statutory criteria set forth in subsection (3) is satisfied. Laurel Manor v. Indus. Claim Appeals Office, 964 P.2d 589 (Colo. App. 1998).   When an employee experiences a worsening of a condition or the development of a disability after termination of employment that is a result of an on-the-job injury, subsection (4) does not apply to terminate employee disability benefits Grisbaum v. Indus. Claim Appeals Office, 109 P.3d 1054 (Colo. App. 2005).   Claimant who did not challenge a determination that she had reached maximum medical improvement of her work-related injury may obtain TTD benefits where she has experienced a worsening of her original injury. Loofbourrow v. Indus. Claim Appeals Office, 321 P.3d 548 (Colo. App. 2011), aff'd, 2014 CO 5, 320 P.3d 327.   It is highly unlikely that the general assembly intended to deny completely TTD benefits where an employee was terminated for negligently causing a work injury in light of § 8-42-112 (1) , which requires a 50%; reduction in benefits if an employee is injured because of willfully violating a safety rule. The term “responsible” does not refer to an employee's injury or injury-producing activity, therefore the termination statutes do not apply where an employee is terminated because of the employee's injury or injury-producing activity. Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002).   Seasonal employment does not preclude an award of TTD payments. If the record establishes that claimant's industrial disability contributed directly to her post-injury wage loss, the award of temporary disability benefits was proper. City of Aurora v. Dortch, 799 P.2d 461 (Colo. App. 1990).   Evidence that claimant was actively seeking employment during time period for which benefits were sought was insufficient basis upon which to disallow benefits, where claimant's physician testified to claimant's disability. Denny's Restaurant, Inc. v. Husson, 746 P.2d 63 (Colo. App. 1987).   Reopening case for new award of TTD. Claimant entitled to reopening of case for a determination of TTD and award of benefits therefor, where claimant underwent additional surgery after an initial award of permanent partial disability and the surgery left him totally incapacitated for a period of time. Loucks v. Safeway Stores, 757 P.2d 639 (Colo. App. 1988).   This section does not contemplate unilateral termination of benefits by insurer. Collins v. Indus. Comm'n, 676 P.2d 1270 (Colo. App. 1984); Colo. Compensation Ins. Auth. v. Indus. Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).   Payment of TTD benefits continues until an event enumerated in subsection (3) occurs. Horton v. Indus. Claim Appeals Office, 942 P.2d 1209 (Colo. App. 1996).   Benefits properly continued during employee's employment as a salesman compensated solely by commission when record supported ALJ's findings that employee's injuries prevented him from earning any commissions and that there had been no return to regular employment. Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).   Claimant erroneously awarded TTD benefits where, by signing document containing written list of duties prepared by facility director, she accepted offer of modified employment, but failed to appear for work after the offer had been extended. Consequently, claimant's failure to commence the work offered occurred prior to her termination. Thus, the termination of TTD benefits was warranted before claimant sustained the wage loss for which she seeks benefits. Laurel Manor v. Indus. Claim Appeals Office, 964 P.2d 589 (Colo. App. 1998).   A claimant must begin modified employment for eligibility for TTD benefits. Liberty Heights v. Indus. Claim Appeals Office, 30 P.3d 872 (Colo. App. 2001).   Department of labor and employment rules governing the termination of TTD benefits are not inconsistent with this section. Monfort Transp. v. Indus. Claim Appeals Office, 942 P.2d 1358 (Colo. App. 1997).   TTD benefits paid on account of vocational rehabilitation are included in the calculation of the benefit cap pursuant to § 8-42-107.5 . Grogan v. Lutheran Med. Center, Inc., 950 P.2d 690 (Colo. App. 1997).   Applied in Booher v. Las Animas County Sch. Dist. R-88, 30 Colo. App. 233, 491 P.2d 104 (1971); Filippone v. Indus. Comm'n, 41 Colo. App. 322, 590 P.2d 977 (1978); Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982).