Colorado's Pip/worker's Compensation Primacy Rule
| Publication year | 1990 |
| Pages | 1093 |
| Citation | Vol. 19 No. 6 Pg. 1093 |
1990, June, Pg. 1093. Colorado's PIP/Worker's Compensation Primacy Rule
Colorado's worker's compensation and auto reparations systems come together and interrelate in CRS § 10-4-707(5). That abbreviated link between the two systems is simply stated, but gives rise to a myriad of complicated issues. This article provides an overview of those issues and how courts have or probably will resolve them.
Since its inception, the Colorado Auto Reparations Act has contained a worker's compensation primacy provision.(fn1) That original provision was not a true primacy rule. Instead, it simply made Colorado worker's compensation primary to the extent that worker's compensation benefits were "actually provided" within the time the PIP ("Personal Injury Protection" benefits) insurer was required to perform.(fn2)
There was no requirement that a worker who was insured in an auto accident claim worker's compensation. Often, the worker would not do so because of the relatively greater difficulty of pursuing a worker's compensation claim and the worker's compensation insurer's usual contention that it had a dollar-for-dollar priority subrogation claim to even limited liability insurance proceeds.(fn3)
That original rule, which was universally believed to provide the injured worker with an election between worker's compensation and PIP, was changed effective July 1, 1987. The amended worker's compensation/PIP primacy rule provided that worker's compensation was primary over PIP to the extent that worker's compensation was "available and covered."(fn4) This change generally was construed to mean that the injured worker no longer had an elective choice but was thereafter required to file and pursue a worker's compensation claim if such coverage was available and if the particular accident injury was covered under Colorado worker's compensation law.(fn5)
The requirement that worker's compensation be pursued has compelled injured workers and their attorneys to face the difficulties associated with the worker's compensation system and has necessitated an understanding of how the two systems interrelate.
Under CRS § 10-4-707(5), as amended effective July 1, 1987, Colorado worker's compensation is primary over PIP to the extent that it is "available and covered." Because there are similarities in the benefits available under the two systems, there is some overlap. However, the two systems are not identical. It is necessary to understand what is available under each in order to apply the primacy rule.(fn6)
Typically, medical-type expenses(fn7) are the same under both systems and are all paid by worker's compensation. "Wage"(fn8) and "rehabilitation"(fn9) benefits sometimes differ between the systems. For wage benefits, if the weekly worker's compensation benefit is higher than PIP, there is no consequence. However, if the PIP wage benefit (after computing it in accordance with the statute) is greater, the consequence is that the worker is entitled (from the PIP insurer) to the difference between the worker's compensation weekly benefit and the sometimes higher PIP weekly benefit.
If the injured worker is not entitled to rehabilitation under the Colorado worker's compensation law, but otherwise would have a legitimate rehabilitation claim under PIP, there could be a PIP consequence. This is because a 1987 change to the worker's compensation law makes rehabilitation elective on the part of the employer.(fn10) If the employer offers rehabilitation, there is no PIP entitlement to the extent that rehabilitation is provided by worker's compensation.
Because the worker's compensation system is more structured and more tightly managed than the PIP system, some claimants have attempted to leave that system and make claims under the less structured PIP system. For example, under worker's compensation, the employer designates the physician and has considerable control over the type and extent of care the claimant is entitled to receive.(fn11) The claimant has a mechanism available through the administrative process to request a different physician and change the nature and extent of his or her care,(fn12) but this proceeding under worker's compensation is more difficult. It also is more difficult under worker's compensation to abuse the system in building up medical expense billings in order to meet a CRS § 10-4-714 tort threshold.(fn13)
Some claimants attempt to circumvent the primacy rule simply by changing physicians, receiving a refusal by the worker's compensation insurer to pay and then presenting the billing to the PIP insurer, claiming that it was not available and covered. A claimant should not be permitted to circumvent the statutory primacy arrangement by attempted legal maneuvering. If a particular billing is not covered under the worker's compensation system because of a claimant's failure to work within the system, it is also not payable under PIP.
Although the worker's compensation system is basically a no-fault system, an element of fault is sometimes injected into that system. A claimant's compensation can be reduced by 50 percent for willful failure to obey a safety rule or use a...
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