CO Code § 8-46-101 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 46 - Specific Insurance Funds|Part 1 - Subsequent Injury Fund|§ 8-46-101. Subsequent Injury Fund

     In a case where an employee has previously sustained permanent partial industrial disability and in a subsequent injury sustains additional permanent partial industrial disability and it is shown that the combined industrial disabilities render the employee permanently and totally incapable of steady gainful employment and incapable of rehabilitation to steady gainful employment, then the employer in whose employ the employee sustained such subsequent injury shall be liable only for that portion of the employee's industrial disability attributable to said subsequent injury, and the balance of compensation due such employee on account of permanent total disability shall be paid from the subsequent injury fund as is provided in this section.      In addition to such compensation and after the completion of the payments therefor, the employee shall continue to receive compensation at said employee's established compensation rate for permanent total disability until death out of a special fund to be known as the subsequent injury fund, hereby created for such purpose. The subsequent injury fund shall be funded pursuant to the provisions of section 8-46-102. (b) (I) In addition to such compensation and after the completion of the payments therefor, the employee shall continue to receive compensation at said employee's established compensation rate for permanent total disability until death out of a special fund to be known as the subsequent injury fund, hereby created for such purpose. The subsequent injury fund shall be funded pursuant to the provisions of section 8-46-102.    The unrestricted year-end balance of the subsequent injury fund, created pursuant to subparagraph (I) of this paragraph (b), for the 1991-92 fiscal year shall constitute a reserve, as defined in section 24-77-102 (12), C.R.S., and, for purposes of section 24-77-103, C.R.S.:   Any moneys credited to the subsequent injury fund in any subsequent fiscal year shall be included in state fiscal year spending, as defined in section 24-77-102 (17), C.R.S.; and    Any transfers or expenditures from the subsequent injury fund in any subsequent fiscal year shall not be included in state fiscal year spending, as defined in section 24-77-102 (17), C.R.S., for such fiscal year.  (1.5) Notwithstanding any provision of this section to the contrary, on May 1, 2003, the state treasurer shall deduct twenty million dollars from the subsequent injury fund and transfer such sum to the general fund.  (1.7) Notwithstanding any provision of this section to the contrary, on March 30, 2009, the state treasurer shall deduct twenty-six million five hundred thousand dollars from the subsequent injury fund and transfer such sum to the general fund.             If an employee entitled to additional benefits, as provided in this section, obtains employment while receiving compensation from the subsequent injury fund, such employee shall be compensated out of said fund at the rate of one-half of said employee's average weekly wage loss, subject to the maximum and minimum provisions of the workers' compensation act, during such period of employment.    In case payment is or has been made under the provisions of this section and dependency later is shown or if payment is made by mistake or inadvertence or under such circumstances that justice requires a refund thereof, the division is authorized to refund such payment to the employer or, if insured, the employer's insurance carrier.      The sums provided for the subsequent injury fund created by this section shall be used to pay the costs related to the administration of the fund and to make such compensation payments as may be required by the provisions of articles 40 to 47 of this title.    Moneys in the subsequent injury fund are continuously appropriated to the division for the payment of benefits as provided in this section and legal fees.       The director shall administer and conduct all matters involving the subsequent injury fund in the name of the division, and, in that name and without any other name, title, or authority, the director may:     Sue and be sued in all the courts of this state, of any other state, or of the United States and in actions arising out of any act, deed, matter, or thing made, omitted, entered into, done, or suffered in connection with the subsequent injury fund and the administration or conduct of matters relating thereto, including the authority to employ counsel to represent the fund in any action. (a) (I) Sue and be sued in all the courts of this state, of any other state, or of the United States and in actions arising out of any act, deed, matter, or thing made, omitted, entered into, done, or suffered in connection with the subsequent injury fund and the administration or conduct of matters relating thereto, including the authority to employ counsel to represent the fund in any action.    Nothing in this paragraph (a) shall be construed to waive any provisions of the “Colorado Governmental Immunity Act”, article 10 of title 24, C.R.S., nor shall it be construed to waive immunity of the state of Colorado from suit in federal court, guaranteed by the eleventh amendment to the constitution of the United States.       Make and enter into contracts or obligations relating to the subsequent injury fund as authorized or permitted under the provisions of articles 40 to 47 of this title, but neither the director nor any officer or employee of the division shall be personally liable in any private capacity for or on account of any act done or omitted or contract or other obligation entered into or undertaken in an official capacity in good faith and without intent to defraud in connection with the administration or conduct of the subsequent injury fund, its business, or other affairs relating thereto.        History. Source: L. 90: Entire article R&RE, p. 542, § 1, effective July 1. L. 93: (1)(b) amended, p. 1505, § 2, effective June 6. L. 2003: (1.5) added, p. 455, § 3, effective March 5. L. 2007: (4)(b) amended, p. 608, § 1, effective April 20. L. 2009: (1.7) added,(SB 09-208), ch. 149, p. 618, § 2, effective April 20.    Editor's note:   This section is similar to former § 8-51-106 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).   Annotator's note. Since § 8-46-101 is similar to § 8-51-106 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 are 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).   Purpose of this statute is to enhance opportunities for employment for partially disabled persons. Horizon Land Corp. v. Indus. Comm'n, 34 Colo. App. 178, 524 P.2d 638 (1974); Sears, Roebuck & Co. v. Baca, 682 P.2d 11 (Colo. 1984); McGrath v. Indus. Comm'n, 708 P.2d 1382 (Colo. App. 1985).   The legislative policy underlying subsection (1)(a) is to provide an incentive for employers to hire partially disabled persons. This policy is effectuated by relieving employers who hire such persons from full responsibility if the employee suffers a subsequent industrial injury and becomes permanently and totally disabled. In such instances, the total compensation to be paid the employee is divided between the last employer and the subsequent injury fund. McKinney v. Indus. Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995).   This section imposes liability on a later employer for that portion of the employee's permanent total disability attributable to the last injury while making the subsequent injury fund responsible for that portion caused by the previous industrial injuries. Bowland v. Indus. Claim Appeals Office, 984 P.2d 660 (Colo. App. 1998); Mtn. Meadows Nursing Ctr. v. Indus. Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999).   By relieving employers of greater potential liability. The general assembly intended, by enactment of this statute, to encourage employers to hire partially disabled persons by relieving them of any greater potential liability resulting therefrom. Horizon Land Corp. v. Indus. Comm'n, 34 Colo. App. 178, 524 P.2d 638 (1974); McGrath v. Indus. Comm'n, 708 P.2d 1382 (Colo. App. 1985).   And under this statute an employer is liable for actual injuries and disability which occur to an employee in his employment. Horizon Land Corp. v. Indus. Comm'n, 34 Colo. App. 178, 524 P.2d 638 (1974).   But permanent total disability from additional loss borne by subsequent injury fund. In the case of an employee who has previously lost the use of a bodily member, the permanent total disability resulting from the loss of an additional member or additional members shall, after the employer has compensated the employee for such loss, be borne by the subsequent injury fund. Horizon Land Corp. v. Indus. Comm'n, 34 Colo. App. 178, 524 P.2d 638 (1974).   The effect of this section is to provide a scheme for apportioning the permanent total disability to which a claimant may be entitled under § 8-51-107(1) . McGrath v. Indus. Comm'n, 708 P.2d 1382 (Colo. App. 1985); Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987).   Apportionment of liability for permanent total disability pursuant to this section should be a de novo determination of the relative contributions of the partial disabilities to the total disability based on the relevant circumstances existing at the time of that determination. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987).   Industrial disabilities are those which arise out of an industrial incident. Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo. App. 1984).   And injuries incurred during active military service are not considered industrial injuries within the meaning of this section. Waddell v. Indus. Claim Appeals Office, 964 P.2d 552 (Colo. App. 1998).   Subsection (1) precludes compensation from the subsequent injury fund when nonindustrial factors contribute to the claimant's total disability. City & County of Denver v. Indus. Comm'n, 690 P.2d 199 (Colo. 1984).   If, in the course of his employment, a partially disabled person receives an injury which totally disables him, he is entitled to compensation without apportionment. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18 , 379 P.2d 153 (1962).   This state has adopted to a very limited extent a “subsequent injury fund” covering scheduled injuries involving hands, arms, feet, legs, and eyes. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18 , 379 P.2d 153 (1962).   And in the absence of an apportionment statute, the general rule is that the employer becomes liable for the entire disability resulting from a compensable accident. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18 , 379 P.2d 153 (1962).   When preexisting condition of an employee was stable but becomes aggravated by an industrial injury, the fund is liable. Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990).   Where no apportionment evidence was presented, and no other evidence was available regarding the relative contributions of the injury to the total disability, the subsequent employer should be held liable for that portion of permanent total disability benefits which exceeds the percentage of the prior permanent partial disability award. State Compensation Ins. Auth. v. Collins, 771 P.2d 9 (Colo. App. 1988).   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 attributable to industrial injuries not involving silicosis is governed by this section. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991).   This section is applicable only where the entire vision of the remaining eye has been lost and no provision is made authorizing an award thereunder for partial permanent disability. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 88 Colo. 573 , 298 P.2d 955 (1931).   Congenital loss of vision existing at birth comes within the meaning of “lost vision” under this section. Jewell Collieries Corp. v. Kenda, 110 Colo. 394 , 134 P.2d 206 (1943).   And the uncorrected eye deficiency may be relied upon in the determination of the loss of vision in the remaining eye. Jewell Collieries Corp. v. Kenda, 110 Colo. 394 , 134 P.2d 206 (1943).   Section 8-51-112 takes precedence over subsection (1)(a). The specific provisions of § 8-51-112 , applicable to occupational disease, take precedence over the general provisions of subsection (1)(a) of this section, 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).   Where no claim is filed, no dependents exist and subsection (1)(b) is triggered for purposes of payment into the subsequent injury fund. Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982).   Payment to subsequent injury fund required where survivors fail to file. The employer is required to make the $15,000 payment to the subsequent injury fund where the survivors of the claimant fail to file for compensation within the three-year statute of limitations. Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982).   The intent of the statute is to have payments made to the subsequent injury fund in instances where no compensation is paid. Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982).   Else insurance carrier receives windfall benefit. This legislative purpose is reasonable because, with every compensable injury which occurs without dependents, the insurance carrier receives a windfall benefit. Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982).   Payment of interest. The interest awarded by the commission in excess of the $7,500 award was 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).   Subsequent injury fund was a legal entity and had standing to appeal an order of the referee. Indus. Comm'n v. St. Thomas More Hosp., 697 P.2d 33 (Colo. 1985)(case arose prior to 1984 enactment of subsection (5)).   Subsequent injury fund is not a legal entity with the capacity to sue and to be sued. This section does not provide for separate legal status of the subsequent injury fund, nor does the statute supply the necessary characteristics of a legal entity. Sears, Roebuck & Co. v. Baca, 682 P.2d 11 (Colo. 1984); Subsequent Injury Fund v. Black Mt. Spruce, 682 P.2d 1188 (Colo. 1984).   In situations covered by this statute, the subsequent employer is not liable for the degree of permanent partial disability sustained by the subsequent injury; rather, the employer is liable for the portion of the permanent total disability that is attributable to the subsequent injury. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987).   Where claimant's industrial injuries were the sole cause of her permanent total disability, and not her degenerative disc condition, the fund is responsible for a portion of the payments to which the claimant is entitled. Injury Fund v. Denver Pub. Schools, 798 P.2d 900 (Colo. 1990).   Offset for employer financed pension benefits is deducted from total award prior to the apportionment of liability between the employer and the subsequent liability fund. Jefferson County Pub. Schools v. Sago, 786 P.2d (Colo. App. 1989), aff'd, 793 P.2d 580 (Colo. 1990).   The subsequent injury fund is not available for contribution unless a claimant's permanent total disability results solely from a combination of previous and subsequent permanent partial industrial disabilities. Gen. Iron Works v. Indus. Comm'n, 719 P.2d 353 (Colo. App. 1985).   However, one or more of the permanent partial disabilities which contribute to the total disability required for compensation under this section may take into account non-industrial factors or conditions, but the condition which triggers the liability of the subsequent injury fund may not be a non-industrial disabling condition. Subsequent Injury Fund v. Compensation Ins. Auth., 768 P.2d 751 (Colo. App. 1988).   Claimant's approved stipulation and settlement that specifically reserved the right to claim against the subsequent injury fund was not a determination of permanent, total disability barring a claim against the subsequent injury fund. Subsequent Injury Fund v. Ladow, 923 P.2d 368 (Colo. App. 1996).   This section requires subsequent injury fund contribution in all cases in which an employee is rendered totally and permanently disabled by the combined effect of two or more permanent partial disabilities and was enacted to provide an incentive for employers to hire partially disabled workers by relieving those employers of full liability for total permanent disability which might result from a subsequent injury. Subsequent Injury Fund v. Grant, 827 P.2d 574 (Colo. App. 1991).   This section applies only if two or more industrial disabilities combine to render a claimant permanently and totally incapable of steady gainful employment and incapable of rehabilitation to steady gainful employment. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).   This section imposes liability on a later employer for the portion of the permanent total disability attributable to the last injury, while making the subsequent injury fund responsible for that portion caused by the previous industrial injuries. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).   An employer is liable for only that portion of the employee's industrial disability which is attributable to a subsequent injury and the subsequent injury fund is liable, in accordance with this section, for the remaining portion of the employee's permanent total disability resulting from industrial injuries not involving occupational disease. Subsequent Injury Fund v. Grant, 827 P.2d 574 (Colo. App. 1991).   Where there are two separate compensable injuries, one temporary total disability and a subsequent injury rendering claimant permanently and totally disabled, the subsequent injury fund is obligated to pay the balance not attributable to the subsequent injury. Citadel Mall v. Indus. Claim Appeals Office, 892 P.2d 419 (Colo. App. 1994).   In dual or hybrid employment relationship in which claimant was engaged in rehabilitative employment partially funded by employer, liability is apportioned and the fund is available for contribution when the claimant's permanent total disability results from a combination of previous and subsequent industrial disabilities. Citadel Mall v. Indus. Claim Appeals Office, 892 P.2d 419 (Colo. App. 1994).   An employee's second injury in another state was not a “subsequent injury” for the purposes of the subsequent injury fund after the second injury worsened a condition caused by the first accident that occurred in Colorado. Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo. App. 1995).   The Colorado subsequent injury fund is not liable for payment of any portion of permanent disability benefits arising from a subsequent injury incurred in the employ of an out-of-state employer not subject to the act. Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo. App. 1995).   Person responsible for enforcing this section is director of division of labor. General powers given to director of division of labor place him in a fiduciary role to funds such as the subsequent injury fund which are not legal entities, and therefore the director is the proper party to represent the fund and to protect its interests in workmen's compensation proceedings. Sears, Roebuck & Co. v. Baca, 682 P.2d 11 (Colo. 1984); Hatfield v. Dir. of Div. of Labor, 682 P.2d 1190 (Colo. 1984).   Due process requires that rules be enacted governing procedures under the subsequent injury fund in order to inform employers and claimants of the procedures for invoking participation of the subsequent injury fund in workmen's compensation proceedings. Sears, Roebuck & Co. v. Baca, 682 P.2d 11 (Colo. 1984).   For purposes of imposing a percentage of liability on employer for permanent total disability, “subsequent injury” under this section should be determined from the date of the resulting disability. Pikes Peak Cmty. Coll. v. Leonard, 865 P.2d 913 (Colo. App. 1993).   Penalties imposed by the act are not available as compensation to wronged individuals, but rather are credited to the subsequent injury fund. Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo. 1985).