An employee who is injured on the job in Colorado is usually limited to seeking recovery by filing a worker’s compensation claim. This means that he or she generally cannot file a lawsuit against the employer over a job injury.
Worker’s Compensation System
The Colorado worker’s compensation system is designed to protect both employer and employee rights. The system is set up so that:
- an injured employee
- does not have to prove
- that the employer was at fault for the injuries
- sustained while at work.
However, as a counter to this benefit to the employee, the employee – in most cases – may not separately sue the employer outside of the worker’s compensation system.
For every rule there is an exception, and this is true with workplace injuries as well. An employer may be sued in civil court if:
- the employer did not carry required worker’s compensation coverage;
- the employer did not provide sufficient safety gear;
- a company owner assaults an employee;
- a fellow employee assaults the victim, and the employer was grossly negligent in hiring him or her; or
- dual capacity allows a worker to sue an employer when there is a secondary legal relationship that has harmed the worker.
Below, our Colorado personal injury attorneys address frequently asked questions about workplace injuries in personal injury lawsuits and the injuries you may have suffered.
- 1. What is Colorado’s workers’ compensation system?
- 2. Are there times where an employee can sue the employer directly?
- 3. Can I sue my employer directly if it does not have workers’ compensation coverage?
- 4. Can I sue my employer if I was not given appropriate safety gear?
- 5. What if my employer assaults me?
- 6. What is the dual capacity exception for workplace injury lawsuits in Colorado?
1. What is Colorado’s workers’ compensation system?
Workers’ compensation covers all public and private employers in Colorado, with a few limited exceptions. Colorado businesses must:
- provide coverage
- under the workers’ compensation system
- when the company has one or more
- full- or part-time employees.1
The system is meant to compensate injured employees for injuries sustained while on the job. For the most part, workers’ compensation is the “sole or exclusive remedy for employees injured on the job.”2
1.1 What is the difference between workers’ compensation and civil lawsuits?
While the workers’ compensation system has certain advantages and limitations, those same advantages and limitations do not apply in a typical civil personal injury lawsuit.
Workers’ compensation cases often have limitations placed on the damages that can be obtained and may not adequately compensate the injured victim.
Civil lawsuits are not subject to the same restrictions as workers’ compensation cases. Because this is the case, the potential damage award can be much higher and much more appropriate to the injury a person suffered.
2. Are there times where an employee can sue the employer directly?
There are certain limited exceptions that permit an injured employee to sue his or her employer directly in a civil lawsuit. When these exceptions exist:
- an employee
- can file a personal injury lawsuit
- directly against the employer.
This means that there could be a higher damage award and better compensation for the injured victim and his or her family.
3. Can I sue my employer directly if it does not have workers’ compensation coverage?
Nearly all public and private employers in Colorado are expected to provide workers’ compensation coverage.3
Employers can provide this coverage in one of three ways:
- Commercial insurance;
- Self-Funding (Individual); or
- Self-Funding (Groups and/or Pools).
3.1 How will I know if the employer does not have insurance?
Under Colorado law, the employer is required to post information about workers’ compensation coverage in the workplace.4 Failure to post this information may be an indicator the business is not covered as required by Colorado law.
An employee also has the right to ask for the name and contact information of the workers’ compensation insurance carrier.
All too often, employees don’t learn of the lack of coverage until an injury has already occurred. If this is the case, the injured person can file a personal injury lawsuit for money damages directly against the company.
4. Can I sue my employer if I was not given appropriate safety gear?
If an employer fails to provide safety gear at a construction site, the injured person may be able to sue his or her employer directly.
Safety gear may include:
- protective eyewear;
- plexiglass shields;
- radiation badges; or
- other equipment specifically required to be provided to employees for safety purposes.
Construction accidents can have severe consequences. Construction workers work with dangerous tools and often in inherently dangerous conditions. The use of safety gear is necessary to prevent severe injuries.
Under Colorado law, when a construction company fails to provide necessary safety gear as required by law, it may not be able to avoid a personal injury lawsuit outside of the workers’ compensation system.
5. What if my employer assaults me?
If an employee’s boss assaults him or her or engages in some other physical altercation intentionally, the workers’ compensation system does not apply. This means that the employee can file a personal injury lawsuit directly against the employer.
This type of “intentional tort” is one of the more commonly found exceptions. When an employer acts with deliberate intent to harm an employee, he or she cannot hide behind the protections of the workers’ compensation system.
Accidental harm is not enough. There must be a deliberate physical act to harm the employee for the exception to apply.5
Example: Brad is Ray’s employer. Brad is showing off his “baseball” skills by swinging a crowbar like a baseball bat while they are at work. He isn’t paying attention and smashed the crowbar into Ray’s head. This is not an “intentional” act, therefore, workers’ compensation will still apply.
5.1 What if another employee assaults me while I am at work?
Typically, an assault by another employee cannot be held directly against the employer (even though you could sue the other employee).
However, if the employer ratified the conduct of the employee or was grossly negligent in hiring him or her, the employer could be held directly responsible in a civil action.
Example: Misty attacked Carol over a dispute over boyfriends while at work. Carol is seriously hurt as a result of the assault. Normally, the employer would not be responsible for this injury. However, it is discovered that Misty has 13 violent offense felonies on her record, including 6 assaults that occurred while Misty was at work for various other companies. The employer could be deemed grossly negligent for hiring Misty.
Example: Amy attacked Kim over a dispute about a parking space while at work. Kim suffered a concussion from the attack. The employer did not contribute to the attack in any way and was not grossly negligent in hiring Amy. The employer will not be responsible outside of the workers’ compensation system for Kim’s injuries.
6. What is the dual capacity exception for workplace injury lawsuits in Colorado?
A worker can sue an employer when:
- the employer has a secondary legal relationship or affiliation
- which has caused injury
- to the employee
- while he or she is at work.6
6.1 What are common dual capacity scenarios?
One common scenario occurs when a product that is created by the employer that is available for sale to the public harms the employee. This occurs when the employee is injured by the product while not on work hours, or is using the product as a consumer, and not as a worker.
Example: Andy works at an auto manufacturing plant. Andy bought a car from the company he works for and while he was driving it home, the transmission locked up, causing him to get into an accident. It is later determined that the transmission was defectively built and designed. Andy can sue his employer in a typical civil lawsuit because he was not harmed while acting as an employee.
Another situation occurs when an employee is harmed by an employer but is not injured during the course of his or her employment.
Example: Sean is a nurse and works at a local hospital. While he is home mowing his lawn, a rock kicks up and hits him in the eye. He rushes to the ER to get treatment. While there, a negligent doctor (who Sean works for regularly) accidentally punctures his eye with a scalpel. Although the hospital is Sean’s employer, he was injured while a patient, not an employee.
Call us for help…
For questions about workplace injury lawsuits in Colorado or to confidentially discuss your case with one of our skilled Colorado workplace injury attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.
- 17 COPRAC 1.12 (Exclusive Remedy and Immunity).
- Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002). The court of Appeals barred application of the termination statutes of West’s C.R.S.A. § 8-42-103(1)(g) and West’s C.R.S.A. § 8-42-105(4) to injuries caused by the claimant’s injury-causing conduct. To include negligent conduct would otherwise “defeat the Act’s major purpose of compensation work-related injuries regardless of fault and would dramatically alter the ‘mutual renunciation of common law rights and defenses by employers and employees alike.’ ”
- Colorado Department of Labor and Employment. Workers’ Compensation.
- Same as 3.
- Erosion of the Exclusive Remedy in Workers’ Compensation. 31-DEC COLAW 83, Edwin L. Felter, Jr., Sarah A. Hubbard.
- Same as 5. (“The dual capacity doctrine bars workers’ compensation immunity for employer-employee relationships involving injuries resulting from independent duties generated by additional relationships between the employer and employee.”