2023 Colorado Revised Statutes › Title 8 - LABOR AND INDUSTRY (§§ 8-1-101 — 8-88-207) › LABOR II - WORKERS COMPENSATION AND RELATED PROVISIONS (§§ 8-40-101 — 8-67-113) › WORKERS COMPENSATION (§§ 8-40-101 — 8-47-209) › Article 42 - BENEFITS (§§ 8-42-101 — 8-42-127) › Section 8-42-103 - Disability indemnity payable as wages - period of disability

(1)
If the injury or occupational disease causes disability, a disability indemnity shall be payable as wages pursuant to section
8-42-105 (2)(a)
subject to the following limitations:
(a)
If the period of disability does not last longer than three days from the day the employee leaves work as a result of the injury, no disability indemnity shall be recoverable except the disbursement provided in articles
40
to 47 of this title for medical, surgical, nursing, and hospital services, apparatus, and supplies, nor in any case unless the division has actual knowledge of the injury or is notified thereof within the period specified in said articles.
(b)
If the period of disability lasts longer than two weeks from the day the injured employee leaves work as the result of the injury, disability indemnity shall be recoverable from the day the injured employee leaves work.
(c)
(I)
In cases where it is determined that periodic disability benefits granted by the federal "Old-Age, Survivors, and Disability Insurance Amendments of 1965", Pub.L. 89-97, are payable to an individual and the individual's dependents, the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to one-half the federal periodic benefits; but, if the federal "Old-Age, Survivors, and Disability Insurance Amendments of 1965", Pub.L. 89-97, is amended to provide for a reduction of an individual's disability benefits thereunder because of compensation benefits payable under articles 40 to
47
of this title, the reduction of compensation benefits provided in said articles shall be decreased by an amount equal to the federal reduction. Upon request of the insurer or employer, the employee shall apply for such federal periodic disability benefits and respond to requests from the insurer or employer as to the status of such application. Failure to comply with this section constitutes cause for suspension of benefits.
(II)
In cases where it is determined that periodic benefits granted by the federal old-age, survivors, and disability insurance act or employer-paid retirement benefits are payable to an individual and the individual's dependents, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero:
(A)
By an amount equal as nearly as practical to one-half such federal benefits; except that this reduction for the periodic benefits granted by the federal old-age, survivors, and disability insurance act shall not exceed the reduction specified in subparagraph (I) of this paragraph (c) for the periodic disability benefits payable to an individual;
(B)
By an amount determined as a percentage of the employer-paid retirement benefits, said percentage to be determined by a weighted average of the employer's contributions during the period of covered employment divided by the total contributions during the period of covered employment; except that in permanent total disability cases all contributions made by the employer pursuant to a collective bargaining agreement with the employee's representative shall be considered to have been made by the employee.
(II.5)
In cases where an employer does not participate in federal old-age, survivors, and disability insurance, and it is determined that employer-paid retirement benefits are payable to an individual and the individual's dependents, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero by an amount determined as a percentage of the employer-paid retirement benefits, said percentage to be determined by a weighted average of the employer's contributions during the period of covered employment divided by the total contributions during the period of covered employment.
(III)
Notwithstanding sub-subparagraph (A) of subparagraph (II) of this paragraph (c), if the federal "Old-Age, Survivors, and Disability Insurance Amendments of 1965", Pub.L. 89-97, is amended to provide for a reduction of an individual's periodic benefits thereunder because of compensation benefits payable under articles
40
to 47 of this title, the reduction of compensation benefits provided in said articles shall be decreased by an amount equal to the federal reduction.
(IV)
The provisions of subparagraphs (II) and (III) of this paragraph (c) shall apply only if the injury on which the award for permanent total disability was based occurred after the claimant reached forty-five years of age.
(V)
The reductions or offsets in this subsection (1)(c) apply only if the employee was not receiving the periodic disability benefits or retirement benefits granted by the federal "Old-Age, Survivors, and Disability Insurance Amendments of 1965", Pub.L. 89-97, as amended, or employer-paid retirement benefits at the time of the work-related injury.
(d)
(I)
In cases where it is determined that periodic disability benefits are payable to an employee under a pension or disability plan financed in whole or in part by the employer, hereinafter called "employer pension or disability plan", the aggregate benefits payable for temporary total disability, temporary partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to the employer pension or disability plan benefits, with the following limitations:
(A)
Where the employee has contributed to the employer pension or disability plan, benefits shall be reduced under this section only in an amount proportional to the employer's percentage of total contributions to the employer pension or disability plan.
(B)
Where the employer pension or disability plan provides by its terms that benefits are precluded thereunder in whole or in part if benefits are awarded under articles 40 to
47
of this title, the reduction provided in this paragraph (d) shall not be applicable to the extent of the amount so precluded.
(II)
Upon request of the insurer or employer, the employee shall apply for such periodic disability benefits and respond to requests from the insurer or employer as to the status of such application. Failure to comply with this section shall be cause for suspension of benefits.
(III)
The provisions of this paragraph (d) shall apply to a disability pension paid pursuant to article 30.5 or 31 of title 31, C.R.S.; except that said reduction shall not reduce the combined weekly disability benefits below a sum equal to one hundred percent of the state average weekly wage as defined in section
8-47-106
and applicable to the year in which the weekly disability benefits are being paid.
(IV)
If the disability benefits awarded pursuant to articles
40
to 47 of this title are paid in a lump sum pursuant to section
8-43-406
, the weekly benefit attributed to such workers' compensation benefits, for the purpose of calculating the combined weekly disability benefit specified in subparagraph (III) of this paragraph (d), shall be calculated by assuming that the employee is receiving the weekly disability benefits payments such employee would have received had such weekly disability payments not been reduced and paid as a lump sum.
(e)
In cases where it is determined that periodic disability benefits are payable to an individual and said individual's dependents pursuant to a workers' compensation act of another state or of the federal government, the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal to the benefits payable pursuant to such other workers' compensation act.
(f)
In cases where it is determined that unemployment compensation benefits are payable to an employee, the aggregate benefits payable for permanent total disability pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly as practical to such unemployment compensation benefits. In cases where it is determined that unemployment insurance benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received, unless the unemployment insurance amount has already been reduced by the temporary disability benefit amount and except that temporary total disability shall not be reduced by unemployment insurance benefits received pursuant to section
8-73-112
.
(g)
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.
(h)
Unless the offset provisions of section
29-5-403 (10)
have already been taken, in cases where it is determined that a firefighter has received an award of benefits for a cancer diagnosis pursuant to section
29-5-403 (3)(b) to (3)(k)
, the aggregate benefits payable for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability shall be reduced, but not below zero, by an amount equal to the total amount of such cancer diagnosis benefits. In cases where it is determined that a covered individual has received cosmetic disfigurement benefits pursuant to section
29-5-403 (4)(b)
, benefits for disfigurement payable pursuant to section
8-42-108
shall be reduced, but not below zero, by an amount equal to such cosmetic disfigurement benefits.
(2)
Within fifteen days after receipt of written notice by the employer or, if insured, the employer's workers' compensation insurance carrier or third-party administrator of the termination of a fringe benefit or advantage enumerated in section
8-40-201 (19)(b)
, and the effective date of the termination and cost of conversion, the employer or, if insured, the employer's workers' compensation insurance carrier or third-party administrator shall recalculate the applicable average weekly wage and begin payment of benefits in accordance with the recalculation with interest beginning on the date the benefit was terminated.
Amended by 2021 Ch. 384, § 2, eff. 9/7/2021.
Amended by 2017 Ch. 187, § 3, eff. 5/3/2017.
L. 90: Entire article R&RE, p. 487, § 1 effective July 1; (1)(d)(IV) amended, p. 1844, § 30, effective July 1. L. 92: IP(1) amended, p. 1824, § 1, effective April 29. L. 94: (1)(c)(II) amended and (1)(c)(II.5) added, p. 2001, § 3, effective July 1. L. 96: (1)(d)(III) amended, p. 940, § 2, effective May 23. L. 99: (1)(g) added, p. 266, § 1, effective July 1. L. 2000: IP(1)(c)(II), (1)(c)(II.5), and (1)(c)(III) amended, p. 1762, § 1, effective June 1. L. 2010: IP(1), (1)(c)(I), (1)(c)(III), and IP(1)(d)(I) amended, (SB 10-187), ch. 1457, p. 1457, § 4, effective July 1. L. 2013: (2) added, (SB 13-285), ch. 1594, p. 1594, § 2, effective July 1. L. 2017: (1)(h) added, (SB 17-214), ch. 684, p. 684, § 3, effective May 3.
(1) This section is similar to former § 8-51-101 as it existed prior to 1990.
(2) Section 13(2)(d) of chapter 384 (HB 21-1050), Session Laws of Colorado 2021, provides that the act changing this section applies to injuries occurring on or after September 7, 2021.