When a person is injured in the workplace, generally speaking, the only compensation the employee is entitled to comes from his or her employer’s worker’ compensation insurance. To the chagrin of employees and plaintiffs’ attorneys, while a workers’ compensation claim can certainly result in money and benefits, both temporary and permanent disability payments are usually considered not adequate to compensate the employee. Further, typical forms of non-economic damages recoverable in civil actions are not available before a workers’ compensation board, such as pain and suffering and punitive damages seeking to punish an employer for dangerous work conditions or inadequate safety policies and procedures. However, conduct a state-by-state survey and one will find vastly different exclusivity statutes, providing for wide-ranging exceptions. So, knowing the scope of recovery under your state’s workers’ compensation is important.

For instance, in New York, an employer’s liability for work-related injuries is generally limited to payment of workers’ compensation benefits. However, under New York law, an employee cannot directly sue his employer, unless the employee suffers a “grave injury,” which means “only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”[i]  Should an employee’s injury fall squarely within one of the listed grave injuries, the employer could be held liable to indemnify or contribute to the injured party in the context of a “third-party” lawsuit. That is, the injured employee commences a civil action against the third-party who caused his or her injury, but the third-party is legally permitted to bring the employer into that action, to contribute to or share liability for the injury and damages.

Also by way of comparison, in California, an employee injured in a work-related incident is generally limited to seeking recovery by filing a workers’ compensation claim. However, there are five primary exceptions in which an employee can sue the employer for a workplace injury. These include: an injury caused by a willful physical assault by the employer;[ii] an injury is aggravated by something related to employment that the employer fraudulently conceals;[iii] an injury by a product made by the employer but the employee is not acting as an employee when he gets injured, known as “dual capacity;”[iv] an injury is from an improperly set up power press machine;[v] or the employer failed to carry workers’ compensation insurance when the injury occurred.[vi]

The purpose of this article is to examine Colorado’s exclusivity statute, which is on the most restrictive end of the spectrum.  According to the provisions of the Workers’ Compensation Act of Colorado (“the Workers’ Compensation Act”):

(1) The right to the compensation provided for in articles 40 to 47 of this title, in lieu of any other liability to any person for any personal injury…resulting therefrom, shall obtain in all cases where the following conditions occur:

(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of the employee’s employment;

(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment and is not intentionally self-inflicted.[vii]

The Workers’ Compensation Act excludes from the definition of “injury” a “…disability or death caused by or resulting from mental or emotional stress unless it is shown by competent evidence that such mental or emotional stress is proximately caused solely by hazards to which the worker would not have been equally exposed outside the employment.”[viii]  In other words, the injury must have solely arisen during the course of a plaintiff’s employment.

Pursuant to the Workers’ Compensation Act, it serves as the exclusive remedy for injuries that arise during the course of employment, stating as follows:

An employer who has complied with the provisions of articles 40 to 47 of this title, including the provisions relating to insurance, shall not be subject to…any other liability for the…personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such…personal injury to any such employee and accruing to any person are abolished except as provided in said articles.[ix]

Similar language found within the Workers’ Compensation Act constitutes a surrender of other remedies by an employee:

An election under the provisions of section 8-40-302(5) and in compliance with the provisions of articles 40 to 47 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, such employer’s insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries…of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles, and shall bind the employee personally…[x]

Importantly, this immunity attaches not only to the employer through which the employee obtained workers’ compensation benefits, but also to any other employer that qualifies as a statutory employer, such as a subcontractor.[xi]  C.R.S. § 8-41-401(1)(a) defines a worker’s “statutory employer” as any company “engaged in or conducting any business by leasing or contracting out any part or all of the work thereof” to a subcontractor that employs the worker.[xii]  Consequently, whether an entity is a statutory employer depends on whether the contractor’s worker was injured while engaged in activity that was part of the “business” or “work thereof” that the entity contracted out to the subcontractor. The test for whether an employer is a “statutory employer” is whether the work contracted out is part of the employer’s regular business, as defined by its total business operation.[xiii]

During the late 1970s and 1980s, questions arose concerning the applicability of the exclusivity provisions to intentional torts.  Thus, Colorado’s appellate courts were faced with cases testing whether the Workers’ Compensation Act provided the exclusive remedy available to an employee injured by intentional torts committed by a co-employee.  Based upon the resulting legal precedent, it has become well-settled in Colorado that intentional torts, including intentional infliction of emotional distress and outrageous conduct, are covered under the Workers’ Compensation Act “…and compensation awards may be made for injuries suffered from intentional acts of co-employees.”[xiv]  Relying, in part, on the seminal case of Ellis v. Rocky Mountain Empire Sports, Inc.,[xv] which held that the exclusive remedy for negligence and intentional tort claims is provided under the Workers’ Compensation Act, the Supreme Court of Colorado, in the case of Kandt v. Evans,[xvi] extended this principal to allegations of intentional infliction of emotional distress committed by a co-employee.  Therein, the Supreme Court was faced with allegations that plaintiff had been forced by her supervisor to wear an “Icee Bear” costume with a large head weighing approximately forty pounds after she had returned to work following treatment for serious back and leg injuries suffered in an automobile accident.  Despite Icee’s company doctor’s order to perform only light duty, plaintiff’s supervisor threatened to fire her unless she disregarded the orders and resumed wearing the Icee bear costume.  After being again hospitalized, plaintiff’s supervisor ordered her to return to work or be fired.  When she did not return to work, she was fired.  Plaintiff commenced suit in District Court alleging that her former supervisor’s conduct was intentional and outrageous and that it had both aggravated her pre-existing injuries and caused extreme mental anguish.  In upholding the District Court’s granting of defendants’ motion to dismiss, the Supreme Court of Colorado ultimately held that the exclusive remedy provisions in the Workers’ Compensation Act excludes co-employees from liability in tort for injuries to a fellow employee for intentional, as well as negligent, acts that arise during the course of employment.[xvii]

In conclusion, the exclusive remedy provision in the Workers’ Compensation Act is extremely robust.  Nevertheless, across Colorado, plaintiffs continue to file civil actions hoping to reap the non-economic and punitive damages not available by pursuing a claim before the workers’ compensation board.

If faced with a complaint alleging a work-related injury improperly filed in the Colorado State Courts, a defendant is entitled to dismissal, pursuant to C.R.C.P. 12(b)(5), as plaintiff has failed to state a claim upon which he or she can be granted relief on the ground a plaintiff’s entire action is barred by the Workers’ Compensation Act, which provides the exclusive remedy available to an employee injured by any tort, even intentional ones committed by a co-employee.

In order to determine the likelihood of success of such a motion to dismiss, defense counsel must first determine whether, at the time of the alleged injury, the employer can claim immunity from suit under the provisions of the Workers’ Compensation Act, in that the employer complied with the provisions regarding insurance.[xviii]  If so, counsel must next look to whether, at the time of the alleged injury, the employee was performing a service arising out of and in the course of his or her employment.[xix]  As shown, however, a plaintiff will face a nearly insurmountable task, given that the provisions of C.R.S. § 8-41-301(1) are quite inclusive.  Finally, counsel must accept the allegations in plaintiff’s complaint as true and examine whether the alleged injury was proximately caused by an injury arising out of and in the course of his or her employment.[xx]

Takeaway

While having to defend a lawsuit can be both expensive and time consuming, take some solace in the fact that should a defendant be successful in obtaining an order from a trial court granting dismissal of the entire complaint, pursuant to Rule 12(b) of the Colorado Rules of Civil Procedure, the defendant is entitled to judgment for reasonable attorney fees in defending the action.[xxi] So, if a plaintiff improperly pursues a civil action otherwise subject to and barred by the Workers’ Compensation Act, attorneys’ fees may be recovered.

[i] N.Y. Workers’ comp. Law § 11 (West).

[ii] Cal. Lab. Code § 3602(b)(1).

[iii] Cal. Lab. Code § 3602(b)(2).

[iv] Cal. Lab. Code § 3602(b)(3).

[v] Cal. Lab. Code § 4558.

[vi] Cal. Lab. Code § 3706.

[vii] C.R.S. § 8-41-301(1)(a)–(c).

[viii] C.R.S. § 8-41-302(1).

[ix] C.R.S. § 8-41-102.

[x] C.R.S. § 8-41-104.

[xi] See C.R.S. § 8-41-401(1) and (2); see also Thornbury v. Allen, 991 P.2d 335 (Colo.App.1999); Barron v. Kerr-McGee Rocky Mountain Corp., 181 P.3d 348 (Colo.App.2007).

[xii] C.R.S. § 8-41-401(1)(a).

[xiii] Finlay v. Storage Technology Corp., 764 P.2d 62, 67 (Colo.1988). “In applying this test, courts should consider the elements of routineness, regularity, and the importance of the contracted service to the regular business of the employer.” Finlay, 764 P.2d at 67.  Importance to the employer’s total business operation is demonstrated where absent the contractor’s services, they would of necessity be provided by the employer’s own employee rather than to forgo the performance of the work.  Finlay, 764 P.2d at 67; see also Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1217 (Colo.App.2009) (“[t]he work … must be ‘such part of his regular business operation as the statutory employer ordinarily would accomplish with his own employees’”) (quoting Pioneer Constr. Co. v. Davis, 152 Colo. 121, 125, 381 P.2d 22, 24 (1963), and Finlay v. Storage Technology Corp., 733 P.2d 322, 324 (Colo.App.1986), aff’d, 764 P.2d 62 (Colo.1988)).

[xiv] Ellis v. Rocky Mountain Empire Sports, Inc., 43 Colo. App. 166, 170, 602 P.2d 895, 898 (1979)(citing Packaging Corporation of America v. Roberts, 169 Colo. 316, 455 P.2d 652 (1969); Alpine Roofing Co. v. Dalton, 36 Colo.App. 315, 539 P.2d 487 (1975)).

[xv] 602 P.2d 895.

[xvi] 645 P.2d 1300 (Colo.1982).

[xvii] Kandt, 645 P.2d at 1305 (citing Wisdom v. Industrial Commission, 133 Colo. 266, 293 P.2d 967 (1956); Packaging Corporation of America, 169 Colo. 316, 455 P.2d 652 (1969); Industrial Commission v. Strome, 107 Colo. 54, 108 P.2d 865 (1940); Arrington v. Michigan-Wisconsin Pipeline Co., 632 F.2d 867 (10th Cir. 1980); Sands v. Union Camp Corp., 559 F.2d 1345 (5th Cir. 1977); Sieck v. Trueblood, 29 Colo.App. 432, 485 P.2d 134 (1971); Nelson v. Harding, 29 Colo.App. 76, 480 P.2d 851 (1980); Hamblen v. Sante Fe Trail Transp. Co., 101 F.Supp. 799 (D.Colo.1951); Larson, Workmen’s Compensation Law § 68.12 at 13-4 (1976)).

[xviii] See C.R.S. § 8-41-301(1)(a).

[xix] See C.R.S. § 8-41-301(1)(b).

[xx] See C.R.S. § 8-41-301(1)(c).

[xxi] See C.R.S. § 13-17-201.  Note, however, attorneys’ fees are not recoverable if a motion under C.R.C.P. 12(b) is treated as a motion for summary judgment and disposed of as provided in C.R.C.P. 56.

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