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 46 - SPECIFIC INSURANCE FUNDS (§§ 8-46-101 — 8-46-309) › Part 1 - SUBSEQUENT INJURY FUND (§§ 8-46-101 — 8-46-109) › Section 8-46-101 - Subsequent injury fund

(1)
(a)
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.
(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
.
(II)
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.:
(A)
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
(B)
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.
(2)
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.
(3)
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.
(4)
(a)
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.
(b)
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.
(5)
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:
(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.
(II)
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.
(b)
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.
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.
This section is similar to former § 8-51-106 as it existed prior to 1990.