The purpose of the Workers’ Compensation Act is straightforward.  It was created to establish “quick and efficient delivery of disability and medical benefits to injured workers…” C.R.S. 8-40-102(1) (2017).  This is an ambitious goal.  Yet, despite record-breaking profits, the insurance industry seems to be fighting more and more.  One of the dirtiest tricks that I see pulled is when the employer claims that the injured worker had a safety rule violation.

Sections C.R.S. 8-42-112(1) (a) & (b) authorize a 50% reduction in compensation for employee’s who have willfully violated an employer’s safety rule.  It is important to note, that an employer need not formally adopt the safety rule, nor do they need to have it in writing. Lori’s Family Dining v. Indus. Claims Appeals Office, 907 P.2d 715, 719 (Colo. App. 1995).

Theoretically, an employee who violates a safety rule, is seriously injured, can be paid 50% less for the rest of their lives (or their spouse’s lives if deceased), because the employee failed to follow a safety rule.  However, this scenario should be an outlier, as majority of injuries do not happen because the employee shrugged off a safety rule.  The problem is that the employer is likely to lose a substantial amount of money when faced with a grievous injury, so they are incentivized to fight the employee.  This includes claiming a safety rule violation.

We have had clients who have been in this exact situation.  It is not a good position to be in.  The employer is allowed to deduct 50% the moment they claim the employee violated the safety rule.  Which means, the employee or their loved ones have to accept a reduced amount until a judge rules in their favor.  If you find yourself in this position, then it is crucial that you hire a lawyer immediately.

Fighting Back

The good news is that the law is in the employee’s favor.  There are five elements that the employer must prove for a 8-42-112(1)(b) violation, or the employee’s willful violation of a safety rule.  The five elements required are:

1. A safety rule must be adopted by the employer
2. The safety rule must be reasonable
3. The safety rule must be known by the employee
   1. Evidence must show that the safety rule was “brought home” and diligently enforced. Pacific Employers Insurance Co. v Kirkpatrick, 111 Colo. 470, 143 P.2d 267 (Colo. 1943)
4. The safety rule needs to be clear.  This means unambiguous, and specific.
5. There must be evidence of a willful violation.
   1. Willful in this context means, with “deliberate intent.” City of Las Animas v. Maupin, 804 P.2d 285 (Colo. App 1990).

This is a high burden for the employer to shoulder, and remains in place due to the severe impact a 50% reduction has on employees.  However, an employee cannot sit idly by when the employer makes this kind of challenge.  Deadlines are numerous and significant in the Workers’ Compensation process.  The failure to meet any one could mean the difference between winning and losing.  Please contact Maes Law, P.C. right away if you or your loved one has encountered this issue.  No one should have to have to deal with fighting the insurance companies in the midst of tragedy, which is why we are here to fight on your behalf.

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