Presumptive Disability Law in Colorado

Presumptive Health Initiative

CODE PART:
TITLE 8. LABOR AND INDUSTRY, LABOR II – WORKERS’ COMPENSATION AND RELATED PROVISIONS
ARTICLE 41. COVERAGE AND LIABILITY
PART 2. COVERAGE
PART 3. LIABILITY
8-41-208. Coverage for job-related exposure to or contraction of hepatitis C
8-41-209. Coverage for occupational diseases contracted by firefighters.
8-41-301. Conditions of recovery – definitions – repeal

TITLE 29. GOVERNMENT – LOCAL MISCELLANEOUS
ARTICLE 5. PEACE OFFICERS AND FIREFIGHTERS
PART 3. FIREFIGHTER HEART AND CIRCULATORY MALFUNCTION BENEFITS
29-5-301. Definitions
29-5-302. Required benefits – conditions of receiving benefits

Colorado Legislative Website

DESCRIPTION:
8-41-208.
Coverage for job-related exposure to or contraction of hepatitis C.

  1. The exposure to or contraction of hepatitis C by a firefighter, emergency services provider, or peace officer, as described in section 16-2.5-101, C.R.S., shall be presumed to be within the course and scope of employment if the following conditions are satisfied:
    1. A baseline test shall be provided by the employer, or if insured, by the insurer, to be performed within five days after the employee reports the on-the-job exposure. The employee must report the exposure within two days after the employee knew or reasonably should have known of the exposure;
    2. The baseline test establishes that the employee was not infected with hepatitis C at the time of the on-the-job exposure;
    3. The employee complies with reasonable and necessary medical procedures set forth in section 8-42-101 (1) (c);
    4. The employee is determined to have hepatitis C within twenty-four months after the on-the-job exposure to the known or possible source.
  2. The exposure to or contraction of hepatitis C by a firefighter, emergency services provider, or peace officer, as described in section 16-2.5-101, C.R.S., shall not be deemed to be within the course and scope of employment if an employer or insurer shows by a preponderance of the evidence that such exposure or contraction did not occur on the job.

8-41-209.
Coverage for occupational diseases contracted by firefighters.

  1. Death, disability, or impairment of health of a firefighter of any political subdivision who has completed five or more years of employment as a firefighter, caused by cancer of the brain, skin, digestive system, hematological system, or genitourinary system and resulting from his or her employment as a firefighter, shall be considered an occupational disease.
  2. Any condition or impairment of health described in subsection (1) of this section:
    1. Shall be presumed to result from a firefighter’s employment if, at the time of becoming a firefighter or thereafter, the firefighter underwent a physical examination that failed to reveal substantial evidence of such condition or impairment of health that preexisted his or her employment as a firefighter; and
    2. Shall not be deemed to result from the firefighter’s employment if the firefighter’s employer or insurer shows by a preponderance of the medical evidence that such condition or impairment did not occur on the job.

29-5-301. Definitions

As used in this part 3, unless the context otherwise requires:

  1. “Employer” means a municipality, special district, fire authority, or county improvement district that employs one or more firefighters. “Employer” does not include a power authority created pursuant to section 29-1-204 or a municipally owned utility.
  2. “Firefighter” means a full-time, active employee of an employer who regularly works at least one thousand six hundred hours in any calendar year and whose duties are directly involved with the provision of fire protection services.
  3. “Heart and circulatory malfunction” means a sudden and serious malfunction of the heart and circulatory system as occurs in a diagnosis of coronary thrombosis, cerebral vascular accident, myocardial infarction, or cardiac arrest and that meets the requirements of section 29-5-302 (6). “Heart and circulatory malfunction” does not include hypertension or angina.
  4. “Volunteer firefighter” means a volunteer firefighter as defined in section 31-30-1102, C.R.S.
  5. “Work event” means stressful or strenuous activity related to fire suppression, rescue, hazardous material response, emergency medical services, disaster relief, or other emergency response activity. “Work event” includes a training activity that a firefighter engages in while on duty and that involves stressful or strenuous activity.

29-5-302. Required benefits – conditions of receiving benefits

  1. An employer shall maintain accident insurance, self-insure, or participate in a self-insurance pool or a multiple employer health trust in order to provide the benefits specified in this section for its firefighters. In addition, an employer may provide equivalent benefits for volunteer firefighters.
  2. An employer shall provide the following minimum benefits:
      1. A four-thousand-dollar-lump-sum payment if a medical examination reveals that a firefighter has a heart and circulatory malfunction; and
      2. A one-thousand-five-hundred-dollar payment per week, up to a maximum of seven weeks, if a firefighter made an emergency room visit and was hospitalized for up to forty-eight hours for a heart and circulatory malfunction;
      1. A two-thousand-dollar payment per week, up to a maximum of twenty-five weeks, if a firefighter made an emergency room visit and was hospitalized for more than forty-eight hours for a heart and circulatory malfunction; or
      2. A two-thousand-five-hundred-dollar payment, up to a maximum of eighty weeks, if a firefighter has a heart and circulatory malfunction that prohibits the firefighter from returning to employment to a position that the firefighter is trained for or reasonably could be trained to perform;
    3. A payment of up to twenty-five thousand dollars for rehabilitative employment services relating to a heart and circulatory malfunction;
    4. A ten-thousand-dollar payment if a firefighter incurs cosmetic disfigurement resulting from a heart and circulatory malfunction; and
    5. If the covered heart and circulatory malfunction is diagnosed as terminal, the firefighter will receive a lump sum payment of twenty-five thousand dollars as an accelerated payment toward the benefits due in paragraphs (a) and (b) of this subsection (2).
  3. The receipt of a payment pursuant to subparagraph (II) of paragraph (a) or subparagraph (I) of paragraph (b) of subsection (2) of this section does not prohibit the firefighter from receiving an additional benefit.
  4. If a firefighter returns to the same position of employment after a heart and circulatory malfunction, the firefighter is entitled to the benefits in subsection (2) of this section for any subsequent heart and circulatory malfunction.
  5. The maximum amount that may be paid to a firefighter for each heart and circulatory malfunction is two hundred fifty thousand dollars.
  6. The benefits and maximum payment amount in subsection (2) of this section are increased by the same percentage and at the same time as any fire and police pension association increase in the pension benefit paid to its members pursuant to section 31-31-407, C.R.S.
    1. The benefits paid pursuant to this section must be offset by any payments made:
      1. Under the “Workers’ Compensation Act of Colorado”, articles 40 to 47 of title 8, C.R.S.;
      2. By the fire and police pension association;
      3. Pursuant to social security or a retirement plan; or
      4. As part of any other employer-paid income benefit that is made as a result of a heart and circulatory malfunction.
    2. The offsets specified in paragraph (a) of this subsection (7) apply only from the date of the determination of entitlement for the payments and do not require the repayment of any money received prior to the determination.
  8. The benefits in this section are reduced by twenty-five percent if a firefighter smoked a tobacco product within five years immediately preceding the work event.
  9. In order for a firefighter to be eligible for the benefits in subsection (2) of this section, the following conditions must be met:
    1. Prior to the work event that results in a heart and circulatory malfunction and after the firefighter became employed by an employer, the firefighter had a medical examination that would reasonably have found an illness or injury that could have caused the heart and circulatory malfunction and no illness or injury was found at the most recent medical examination;
    2. The firefighter has at least five years of continuous, full-time employment with an employer, except a volunteer firefighter must have five years of continuous service with the same employer; and
    3. The heart and circulatory malfunction occurred during or within forty-eight hours after a work event.
  10. For the purpose of employer policies and benefits, a heart and circulatory malfunction is treated as an on-the-job injury or illness. This subsection (10) does not affect any determination as to whether the heart and circulatory malfunction is covered under the “Workers’ Compensation Act of Colorado”, articles 40 to 47 of title 8, C.R.S.
    1. There is hereby created in the state treasury the firefighter benefits cash fund. The fund consists of moneys appropriated from the general fund by the general assembly. The moneys in the fund are subject to annual appropriation by the general assembly to the department of local affairs for the purpose of reimbursing employers for the direct costs of maintaining accident insurance, self-insurance, or participation in a self-insurance pool or multiple employer health trust as required by this part 3.
    2. The department of local affairs shall reimburse employers for the direct costs of maintaining accident insurance, self-insurance, or participation in a self-insurance pool or multiple employer health trust as required by this part 3.
  12. If, at any time, the funding provided for the benefit required by this section is insufficient to cover the cost of the benefit, then the requirements of this section to maintain the benefit shall become optional pursuant to section 29-1-304.5.

8-41-301. Conditions of recovery – definitions – repeal

  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 or death resulting therefrom, shall obtain in all cases where the following conditions occur:
    1. 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;
    2. Where, at the time of the injury, the employee is performing service arising out of and in the course of the employee’s employment;
    3. 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.
    1. [Editor’s note: This version of paragraph (a) is effective until July 1, 2018.] A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), “mental impairment” means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. The mental impairment that is the basis of the claim shall have arisen primarily from the claimant’s then occupation and place of employment in order to be compensable.
    2. Notwithstanding any other provision of articles 40 to 47 of this title, where a claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits, which shall be in an amount not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage, inclusive of any temporary disability benefits; except that this limitation shall not apply to any victim of a crime of violence, without regard to the intent of the perpetrator of the crime, nor to the victim of a physical injury or occupational disease that causes neurological brain damage; and nothing in this section shall limit the determination of the percentage of impairment pursuant to section 8-42-107 (8) for the purposes of establishing the applicable cap on benefits pursuant to section 8-42-107.5.
    3. The claim of mental impairment cannot be based, in whole or in part, upon facts and circumstances that are common to all fields of employment.
    4. The mental impairment which is the basis of the claim must be, in and of itself, either sufficient to render the employee temporarily or permanently disabled from pursuing the occupation from which the claim arose or to require medical or psychological treatment.
  3. [Editor’s note: Subsection (3) is effective July 1, 2018.] For the purposes of this section:
    1. “Mental impairment” means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event. “Mental impairment” also includes a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability.
      1. “Psychologically traumatic event” means an event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.
      2. “Psychologically traumatic event” also includes an event that is within a worker’s usual experience only when the worker is diagnosed with post-traumatic stress disorder by a licensed psychiatrist or psychologist after the worker experienced exposure to one or more of the following events:
        1. The worker is the subject of an attempt by another person to cause the worker serious bodily injury or death through the use of deadly force, and the worker reasonably believes the worker is the subject of the attempt;
        2. The worker visually witnesses a death, or the immediate aftermath of the death, of one or more people as the result of a violent event; or
        3. The worker repeatedly visually witnesses the serious bodily injury, or the immediate aftermath of the serious bodily injury, of one or more people as the result of the intentional act of another person or an accident.
    3. “Serious bodily injury” means bodily injury that, either at the time of the actual injury or a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body.