Do I Qualify for Workers’ Compensation Benefits

If you are injured on the job in Colorado, you may be entitled to workers’ compensation benefits. If you are eligible, the workers’ compensation insurance carrier would be liable for all medical expenses related to your work injury, as well as a portion of your lost wages. Even better – you don’t have to prove fault or negligence on the part of your employer to collect these benefits. In exchange, however, you are barred from filing a personal injury lawsuit against your employer or any co-worker regarding the injury sustained at work if your employer has workers’ compensation coverage. That being said, the workers’ compensation carrier can still deny your claim if they do not feel there is enough evidence to accept liability for your injury.

Unfortunately, not everyone is eligible to receive workers’ compensation benefits, or your benefits may be denied, even when the situation seems cut and dry. To learn if you are eligible or have been wrongly denied benefits, talk to an experienced and skilled Colorado workers’ compensation attorney as soon as possible.


Requirements for Workers’ Compensation

In the state of Colorado, you must meet four basic eligibility requirements before you are allowed to collect workers’ compensation benefits.

  • You must be an employee:  while this may seem like an easy qualification, for many it is actually a complex one. Seasonal employees, for example, may not believe that they are covered under workers’ compensation insurance, but they are. Independent contractors, on the other hand, are not. Sometimes, employers will purposefully misclassify someone as an independent contractor to avoid having to pay workers’ compensation premiums or payroll taxes. Even if you have signed documents indicating you are an independent contractor, that does not necessarily make it so under the Workers’ Compensation Act. So, who is not entitled to workers’ compensation? Here are a few examples:
    • Freelance workers Consultants
    • ‘Gig’ workers 
    • Volunteers (except for firefighters) 
    • “True” Independent contractors
  • Your employer must carry workers’ compensation coverage (with one exception):  Colorado requires any business with at least one or more full or part-time employee to provide workers’ compensation coverage for that employee. When an accident occurs, those benefits will kick in and provide payment or reimbursement for medical expenses, as well as a portion of lost wages. However, not all businesses purchase this insurance coverage, even when they are required by law to do so. If your Employer does not have workers’ compensation insurance, your Employer may be liable to you directly for workers’ compensation benefits, or you may choose to sue your employer for negligence or any other applicable cause of action. If you are injured on the job and your employer does not have workers’ compensation insurance, you should still contact an attorney immediately.

  • You must be injured “at” work:   To receive benefits, you must clearly establish that you were injured “at” work, that you were in “travel status” for your Employer, or that you contracted a work-related illness. This can be difficult to establish, especially for individuals with pre-existing illnesses or injuries or for those suffering from a repetitive work injury. It can also be difficult to determine if an individual is covered by workers’ compensation when they are outside of the workplace. For example, workers who are injured in a car accident on the way to or from work may or may not be covered by workers’ compensation insurance, as there are many factors that come into play when an Employee is driving to or from their job. If you are driving during working hours for your job when you are involved in a motor vehicle accident, you likely have a viable workers’ compensation claim. Call an experienced and skilled workers’ compensation lawyer immediately to learn more about when injuries or illnesses are work related.
  • You must meet state deadlines for filing a claim:  To receive benefits, you must file the necessary claim(s) before the statute of limitations has run. In the state of Colorado, you must report your work injury to your employer within four days of the injury, although the sooner the better. This report must be in writing. For every day you fail to report your injury, you may lose one day of workers’ compensation benefits. To file a claim, you have two years from the date of injury or you will lose your chance to ever file a claim. Only in rare circumstances can the statute of limitations be tolled to allow for the filing of a claim more than two years after your date of injury.

Workers’ Compensation Eligibility FAQ

  1. Will I lose my job for filing a workers’ compensation claim?

    Don’t be afraid to file a workers’ compensation claim if you are injured. By law, your employer is not allowed to retaliate against you after you file a claim. Your employer would be violating the law if they demoted you, reduced your pay, or fired you simply for being injured on the job and filing a claim.

  2. Can I file for workers’ compensation if I was injured outside of the office?

    Yes, if you were performing work duties at the time of the accident, you can most likely qualify for benefits. Even if you were out of the office, if you were running errands for the office, transporting a client, or performing a work-related duty, you have a right to workers’ compensation benefits in most circumstances. An attorney can help prove your case and help you obtain the benefits you are rightfully entitled to.

  3. Can I file a lawsuit against my employer if they were negligent?

    Workers’ compensation benefits allow for workers to receive compensation for work-related injuries and illnesses, but in return, you are prevented from filing a lawsuit against your employer. There are some situations, however, when you may still be eligible to file a lawsuit. For instance, if your injury was caused by a negligent third party, then you can file a lawsuit. Also, if your employer does not carry workers’ compensation insurance, you can seek workers’ compensation benefits from your employer directly or choose to sue them for negligence; however, it cannot be both.

  4. I am a temporary worker. Am I still able to collect workers’ compensation?

    Yes. Temporary employees, seasonal employees, and agency employees are still eligible to receive workers’ compensation. In general, if you are employed by an agency, then your agency should cover you under their insurance policy. If you are truly an independent contractor, however, then you are not able to collect workers’ compensation benefits. That being said, employers often label employees as independent contractors to avoid liability. If you believe that you have been misclassified as an independent contractor, even if you have signed a document indicating you are an independent contractor, you should speak to a workers’ compensation lawyer.

  5.  How much workers’ compensation am I able to receive?

    In the state of Colorado, you are eligible to have all of your reasonably necessary and related medical bills paid. You can receive two-thirds of your gross average weekly wage at the time of the injury, up to a maximum amount that changes yearly effective July 1. As of July 1, 2018, the maximum amount of wage loss you can receive per week is $987.84. If you have permanent impairment of any bodily function after you have completed your treatment, you should be entitled to an award for your functional loss. You are also entitled to any disfigurement related to the work injury, such as surgical scarring, walking with a limp, burns, etc.


Determining Liability

Unlike a personal injury claim, injured workers do not need to establish liability or prove negligence to receive money to cover medical expenses and lost wages. This means that even if the worker is responsible for the injury they sustained, then they are still eligible to receive benefits. It also means that the employer must pay these benefits even if they were not to blame for the accident. However, there are some exceptions that could limit the benefits workers are entitled to, including:

  • Willfully disobeying safety rules:
  • Willfully failing to use safety devices
  • Lying about physical ability to perform the job 
  • Intoxication at work
  • Testing positive for drugs or alcohol in your system after the accident

If an employee is found guilty of any of the above, they can have their non-medical benefits reduced by 50%. This includes disability and wage loss replacements. There are some situations when an employer will try to claim that a worker violated safety rules at the time of the accident, simply to avoid paying benefits. When this occurs, contact a Colorado workers’ compensation lawyer immediately to investigate your case closely. It is against the law to unfairly deny workers’ compensation benefits and we can help. 
Contact Us for Free Case Evaluation


We’re There When You Need Us

If you’ve been injured on the job in Colorado, you need an experienced and aggressive law firm on your side from the start. At McDivitt Law Firm, we can help you obtain the workers’ compensation benefits you are entitled to by law. We know the tricks insurance carriers and employers often use to reduce your benefits and we fight aggressively to make sure you receive all the medical treatment you need and the money you are entitled to after a devastating work injury. With offices in Downtown Colorado Springs, North Colorado Springs, Denver, Aurora, and Pueblo, our attorneys are ready to assist you in a moment’s notice. We offer free consultations, so you can better understand your rights and options. Call us today!


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