It’s extremely important to be safe at work, especially if your work is inherently dangerous. Unfortunately, things do happen at work and injuries can occur. Sometimes these injuries transpire because the worker has failed to follow safety regulations. In some cases, noncompliance with safety regulations could affect a Workers’ Compensation case.
Colorado Law on Misconduct in the Workplace
Colorado has what is referred to as an exclusivity provision (C.R.S. § 8-41-104), which makes workers’ compensation claims the sole method to get compensated for on the job injuries. Due to this provision, an employee’s misconduct or negligence generally is not relevant to compensation of injuries occurring on the job. See Employers’ Mutual Insurance Co. v. Industrial Commission of Colorado, 230 P. 394 (Colo. 1924). However, there are exceptions to that general conclusion.
Pursuant to C.R.S. § 8-42-112, certain actions will result in a 50% reduction in compensation. This occurs when:
- There is an injury caused by the willful failure of an employee to use safety devices provided by the employer;
- The injury results from an employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee; or
- The employee willfully misleads the employer concerning employee’s physical ability to perform the job, and the employee is then injured on the job as a result of the physical ability.
In the case of willful failure to obey a safety rule, the safety rule does not have to be formally adopted by the employer or written in an employee handbook. Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office of State of Colo., 907 P.2d 715, 718 (Colo. App. 1995). Such things as oral warnings or prohibitions and directions when heard and understood by employee, and if given by someone generally in authority, can count as a safety rule sufficient to reduce compensation. See Bennett Properties Co. v. Industrial Commission, 437 P.2d 548 (Colo. 1968). For example, in Industrial Com’n v. Golden Cycle Corp., 246 P.2d 902 (Colo. 1952), an employee at a gravel pit had been orally warned by another employee, by the manager, as well as by operator of the excavating shovel, to stay away from the overhanging bank as it was a dangerous condition. He ignored this, and when the bank collapsed, he was severely injured. The court ruled that along with such warnings, coupled with presumption of common sense, that it was sufficient to establish a safety requirement, and thus, a reduction in the employee’s compensation.
Therefore, employee misconduct on its own will not result in a claimant receiving no benefits, unless the injury is intentionally self-inflicted. C.R.S. § 8-41-301(1)(c). As required for any workers’ comp benefits, the injury must arise during the course of the employee’s work.
How Can an Employer Prove “Willful Failure” During a Workers’ Compensation Case in Colorado
During a workers’ compensation case in Colorado, your employer might try to prove that your injury was caused by “willful failure.” Essentially, they’re attempting to show that you refused to follow or utilize provided safety measures and tools. If your employer is successful in their attempt, your workers’ compensation can be reduced by up to 50%.
However, proving willful failure is challenging. To do so, your employer has to:
- Establish employee knowledge and understanding – The employer must show evidence proving the employee knew about a specific procedure or device. This could be a recorded conversation where the procedure was explained or a training manual that shows how to use a safety device.
- Show the employee’s intentional disregard – The employer must prove that an employee clearly chose to violate a rule or opted not to use a safety device. This is only possible if the employer has a written warning from a prior incident, a witness testimony, or testimony from the injured employee. This is the step where most employers fail to prove willful failure.
Proving both of these factors is difficult but not impossible. For that reason, we recommend that you hire a Colorado workers’ compensation lawyer if you intend to file a claim. Your attorney will help ensure that you don’t accidentally confess to intentional disregard.
What About Horseplay?
What if an employee receives an injury at work because of “horseplay?” That could be compensable as well. Case law states that a nonparticipating victim employee can receive workers’ compensation benefits if an injury occurs because of horseplay, and there is no requirement that the activities surrounding the horseplay be part of the job. The injury does need to be adequately incidental to the work so that the injury arises out of and in the course of employment. See Industrial Commission of Colorado v. Employer’s Casualty Co., 318 P.2d 216 (Colo. 1957).
However, if the victim is a participant or instigator of the horseplay, the injury may or may not be compensable. For example, in Kater v. Industrial Commission, a condo cleaner injured her knee while demonstrating a dance step for another employee during a break taken by the two. She was denied benefits because her action when injured was for her sole benefit. Sometimes horseplay may be considered as part of the job, that is if horseplay regularly occurs in the workplace. The test for determining whether horseplay is a deviation from employment is:
- What is the extent and seriousness of the horseplay?
- Was the horseplay commingled with the performance of a duty of employment?
- To what extent has the horseplay become an accepted practice of the employment?
- To what extent can the nature of the employment be expected to include some horseplay?
Lori’s Family Dining, 907 P.2d 715. These four elements must be considered, but they do not need to all be established. Regardless of the test, one should refrain from horseplay on the job and practice safety measures at work.
If you’ve been injured on the job, an experienced Workers’ Compensation attorney can help answer any questions you might have about your claim.
You may be interested in these other blogs:
- Does Workers’ Comp Cover Extreme Stress in the Workplace?
- Injured on the job? Don’t be a hero!
- Why Your Employer has 30 Days to Say an Injury on the Job Qualifies for Workers’ Comp
