To: Sean McCauley, General Counsel, Colorado FOP Labor Council
From: Nick Ruble
Re: Colorado Workers Compensation and Coronavirus Exposure
Date: March 25, 2020
In Colorado, exposure to coronavirus would likely be a compensable workplace “accident” or “injury.” The Colorado Workers’ Compensation Act, 8-40-101, et seq. defines “accident” to include any “unforeseen event.” This would include exposure to commonly-occurring diseases, except that to be compensable, the claimant must have a “peculiar risk.” Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
The “peculiar risk” test means that the claimant was exposed to a disease in “a measurably greater degree and a substantially different manner than are persons in employment generally.” The Anderson court cited Evans v. Indiana Univ. Hosp. Ctr., 100 N.E. 2d 828, 830-31 (Ind. App. 1951) as an example of a claimant meeting this test. In Evans, the claimant was a nurse working in a sanitarium who contracted tuberculosis. That court found that while tuberculosis is a common disease, the nurse’s exposure exceeded that of others because of the close contact with TB patients and high frequency of contact with those patients in enclosed spaces.
It would be relatively easy to show that officers are in much closer contact with strangers with much greater frequency, including touching, fighting, spitting, etc. Compensation would depend on potential contacts with infected individuals and the absence of infections among the officers’ family.
An additional point is that coronavirus is mild for some people and severe for others with pre-existing conditions. Under Colorado law, where a pre-existing condition combines with an “accident,” i.e. coronavirus infection, to cause an injury which aggravates or accelerates treatment, it is considered a compensable consequence of the industrial injury. Duncan v. Indus. Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004). If the pre-existing condition is the result of another industrial accident, then compensation is apportioned between the employers.
The Workers Compensation Act permits binding arbitration to resolved any disputes. 8-43-206.5 C.R.S. In any proceeding on a workers’ compensation claim, the claimant shall have the burden of proving entitlement to benefits by a preponderance of the evidence. 8-43-201 C.R.S.