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 8-42-105 - [Effective 8/7/2024] Temporary total disability - hearings

(1)
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.
(2)
(a)
The first installment of compensation shall be paid no later than the date that liability for the claim is admitted by the insurance carrier or self-insured employer. If the insurance carrier or self-insured employer denies liability for the claim, the claimant may request an expedited hearing on the issue of compensability if the application is filed within forty-five days after the date of mailing of the notice of contest. The director shall set any such expedited matter for hearing within forty days after the date of the application, when the issue is liability for the disease or injury. The time schedule for such an expedited hearing is subject to the extensions set forth in section
8-43-209
. If a claimant elects not to request an expedited hearing pursuant to this paragraph (a), 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.
(b)
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.
(c)
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.
(d)
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.
(3)
Temporary total disability benefits shall continue until the first occurrence of any one of the following:
(a)
The employee reaches maximum medical improvement;
(b)
The employee returns to regular or modified employment;
(c)
The attending physician gives the employee a written release to return to regular employment; or
(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.
(II)
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.
(III)
A written offer of modified employment under subparagraph (II) of this paragraph (d) shall clearly state:
(A)
That future offers of employment need not be in writing;
(B)
The policy of the temporary help contracting firm regarding how and when employees are expected to learn of such future offers; and
(C)
That benefits under this section will be terminated if an employee fails to respond to an offer of modified employment.
(4)
(a)
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.
(b)
The claimant's refusal to accept an offer of modified employment under either of the following conditions does not constitute responsibility for termination:
(I)
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;
(I.5)
The offer of modified employment would require the claimant to drive to or from the place of employment and an authorized treating physician has restricted the claimant from driving; or
(II)
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:
(A)
The consequences of the industrial injury;
(B)
The financial hardship that would be imposed on the claimant in order to accept the offer of modified employment; or
(C)
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.
(c)
The circumstances described in paragraph (b) of this subsection (4) are not exhaustive.
(5)
(a)
Within forty-five days after an insurer or self-insured employer terminates an employee's temporary total disability benefits pursuant to subsection (3)(c) of this section, the employee may file an application for an expedited hearing on any of the following issues:
(I)
Who the attending physician is;
(II)
Whether the attending physician gave the employee a written release to return to regular employment; and
(III)
Whether there is a difference of opinion between authorized treating medical providers regarding whether the employee is released to return to regular employment.
(b)
If an administrative law judge finds there is a difference of opinion as described in subsection (5)(a)(III) of this section, the employee has the burden of proving by a preponderance of the evidence that, as a proximate result of the claimed injury or disease, the employee is unable to return to regular employment. If the employee meets this burden, the administrative law judge shall reinstate the employee's terminated temporary total disability benefits back to the date of termination.
Amended by 2024 Ch. 389,§ 1, eff. 8/7/2024.
Amended by 2023 Ch. 370,§ 3, eff. 8/7/2023.
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.
This section is similar to former § 8-51-102 as it existed prior to 1990.
2024 Ch. 389, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2023 Ch. 370, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
This section is set out more than once due to postponed, multiple, or conflicting amendments.