Chapter 25 - § 25.2 • WORKERS' COMPENSATION EXCLUSIVE REMEDY PROVISION

• Jurisdiction: Colorado

§ 25.2 • WORKERS' COMPENSATION EXCLUSIVE REMEDY PROVISION

§ 25.2.1—The "No Fault" Workers' Compensation Scheme

Prior to the enactment of Colorado's Workers' Compensation Act in 1919, claims for job-related injury or death were litigated in the court system. In addition to lengthy delays and expense faced by an injured worker, the employer could assert common law defenses of assumption of the risk, negligence of a fellow servant, and contributory negligence. While damages for job-related physical injury had no statutory cap, recovery proved difficult, time consuming, and expensive. Colorado enacted one of the first "no fault" workers' compensation acts in the country. The statutory scheme established in 1919 remains essentially the same today.

The "exclusivity provisions constitute part of the quid pro quo of workmen's compensation schemes, under which the employer assumes liability for work-related injuries irrespective of fault, and in return, employees are precluded from bringing actions at common law." Kandt v. Evans, 645 P.2d 1300, 1302 (Colo. 1982). In return for the "no fault" statutory scheme, however, the worker's remedies are statutorily limited to medical benefits, temporary wage replacement benefits, and awards for disfigurement and permanent disability. These benefits and awards are strictly defined and limited under the Act.

The exclusive remedy provision of the Act not only bars a worker's access to district court for claims of physical injury, disease, or death arising out of the employment relationship, but the Act also defines the exclusive and comprehensive remedies available to the worker within the workers' compensation system. Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1264-65 (Colo. 1985). An injured worker or the worker's surviving dependents as defined by the Act have no claim for pain and suffering, loss of consortium, or punitive damages.

The fact that remedies for these types of claims are not provided under the Act does not lift the exclusivity bar permitting the worker to bring an action in district court. The exclusive remedy provisions of the Act barred claims brought in the U.S. District Court by current and former employees of the Rocky Flats Nuclear Weapons Facility for medical monitoring costs, even though these costs were not specifically provided for under the Act. Building & Constr. Dep't v. Rockwell Int'l Corp., 7 F.3d 1487, 1494-95 (10th Cir. 1993); see Metcalfe v. Bruning Div. of AMI, 868 P.2d 1145 (Colo. App. 1993).

Similarly, the grant by the Act of original jurisdiction to hear and decide all matters arising under the Act includes claims of overpayment of benefits by an insurer against the worker and the worker's attorney. The court reasoned that issues relating to workers' compensation benefits and offsets, including overpayment, were exclusively within the jurisdiction of the director of the Division of Workers' Compensation and the administrative law judges of the Office of Administrative Courts. Claims of injury or damages sustained by nonparties are barred if they are "derivative from" the injury to the party. See Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 100 (Colo. 1995); Vaughan v. McMinn, 945 P.2d 404, 407 (Colo. 1997); Colorado Compensation Ins. Auth. v. Baker, 955 P.2d 86, 89 (Colo. App. 1998). By statute, the worker is deemed to have waived all such claims against the employer, co-workers, and other persons or entities deemed under the statute to stand in the shoes of the employer in return for the employer's compliance with the insurance requirements of the Act and surrender by the employer of its common law defenses. C.R.S. §§ 8-41-102 and -104; Alexander v. Morrison-Knudsen Co., 444 P.2d 397, 400 (Colo. 1968).

This immunity not only attaches to the employer through which the worker obtained workers' compensation benefits but also attaches to any other employer that qualifies as a statutory employer pursuant to C.R.S. § 8-41-401(1)(a)(I). In a tort action where the complaint established that the entity sued qualified as the statutory employer of the plaintiff, the dismissal of the complaint against the entity was proper without the district court being required to specifically apply the "regular business" test. Monell v. Cherokee River, Inc., 347 P.3d 1179, 1182 (Colo. App. 2015).

Courts have examined unique situations involving workers' compensation claims. Meyer v. Burger King Corp., 26 P.3d 925 (Wash. 2001); Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998). In Meyer, the Washington Supreme Court held that the Workers' Compensation Act did not bar a tort claim by a child who was injured in utero when her mother fell at work. The court held that the injuries to the child were not derivative of an injury to the parent (employee). Meyer, 26 P.3d at 928. Additionally, in Henderson, the Colorado Court of Appeals reviewed a case involving the parents of a minor employee asserting a wrongful death claim against the child's employer. The court held that the Workers' Compensation Act bars tort claims by parents against an employer of their minor child. 968 P.2d at 146. The rationale focused on the fact that the injuries to the parents are strictly derivative in nature and, thus, their claims are barred by the exclusivity provisions of the Workers' Compensation Act, even though the parents suffered their own distinct injuries. Id.

In Youngquist Bros. Oil & Gas, Inc. v. Miner, 390 P.3d 389 (Colo. 2017), the Colorado Supreme Court addressed when Colorado has personal jurisdiction over an employer to award workers' compensation benefits for an out-of-state work injury. The worker applied online for a job with the employer, a North Dakota employer. A representative of the employer conducted a telephone interview and hired the worker. The employer then purchased a plane ticket for the claimant to arrive at the work site in North Dakota. During his second shift, the worker was injured. He filed a workers' compensation claim in Colorado. The employer argued that Colorado did not have personal jurisdiction over it to award the worker benefits under the Colorado Workers' Compensation statute. The supreme court agreed. In order to meet due process requirements, the employer had to have "sufficient minimum contacts" with Colorado. The court found that hiring the worker in a telephone call and providing a plane ticket did not constitute "purposeful availment" of the privileges of conducting business in Colorado. "This contact is better characterized as 'random and fortuitous contact.'" The employer did not specifically recruit the worker, its representative did not physically come to Colorado, and it had no physical location in Colorado. Therefore, it was coincidental the worker who applied for work happened to be in Colorado when hired, and Colorado has no personal jurisdiction over the employer.

Practice Pointer
While original jurisdiction to hear and decide all matters arising under the Act rests with the director of the Division of Workers' Compensation and administrative law judges employed by the Office of Administrative Courts, the issue of exclusive remedy is not a jurisdictional issue that can be raised at any time. The exclusivity of the Colorado Workers' Compensation Act is an affirmative statutory defense that must be timely raised or it is waived. Borquez v. Robert C. Ozer, P.O., 923 P.2d 166, 172 (Colo. App. 1995), aff'd in part, rev'd in part on other grounds, 940 P.2d 371 (Colo. 1997). For this reason, the exclusivity of the Act also cannot be used to defeat federal subject matter jurisdiction. Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1227 (10th Cir. 2004).

§ 25.2.2—Negligence And Intentional Torts

With limited exceptions, whether the worker's compensable injury results from negligence or intentional acts from co-workers or the employer, the worker's only remedy is for workers' compensation benefits. The exceptions, discussed in other sections of this book, relate to separate federal and state statutorily created causes of action for physical and other injuries that are not, as a matter of law, barred by the Act. Donaldson v. American Banco Corp., 945 F. Supp. 1456, 1465 (D. Colo. 1996); Ferris v. Bakery, Confectionery & Tobacco Union, Local 26, 867 P.2d 38, 42 (Colo. App. 1993); Mass v. Martin Marietta Corp., 805 F. Supp. 1530, 1543-44 (D. Colo. 1992); Stamper v. Hiteshew, 797 P.2d 784, 785-86 (Colo. App. 1990); Patel v. Thomas, 793 P.2d 632...