1997
HOUSE BILL 971128
BY REPRESENTATIVES G. Berry, May, Schauer, Arrington, Dean, Lamborn, Lawrence, Musgrave, T. Williams, and Young;
also SENATORS Ament and Mutzebaugh.
CONCERNING THE RECOVERY FROM CLAIMANTS OF WORKERS'
COMPENSATION BENEFITS TO WHICH SUCH CLAIMANTS ARE NOT ENTITLED.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1.
840201, Colorado Revised Statutes, 1986 Repl. Vol.,
as amended, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS
to read:
840201. Definitions
repeal. As used in articles 40 to 47 of
this title, unless the context otherwise requires:
(3.6) "CLAIMANT" MEANS A PERSON
WHO EITHER:
(a) RECEIVES BENEFITS UNDER ARTICLES 40
TO 47 OF THIS TITLE; OR
(b) HAS OR ASSERTS, IN ANY ADMINISTRATIVE
OR JUDICIAL FORUM OR IN ANY COMMUNICATION WITH THE DIRECTOR, THE
DIVISION, OR AN EMPLOYER, INSURER, OR SELFINSURED EMPLOYER,
A RIGHT TO RECEIVE SUCH BENEFITS.
(15.5) "OVERPAYMENT" MEANS MONEY
RECEIVED BY A CLAIMANT THAT EXCEEDS THE AMOUNT THAT SHOULD HAVE
BEEN PAID, OR WHICH THE CLAIMANT WAS NOT ENTITLED TO RECEIVE,
OR WHICH RESULTS IN DUPLICATE BENEFITS BECAUSE OF OFFSETS THAT
REDUCE DISABILITY OR DEATH BENEFITS PAYABLE UNDER SAID ARTICLES.
FOR AN OVERPAYMENT TO RESULT, IT IS NOT NECESSARY THAT THE OVERPAYMENT
EXIST AT THE TIME THE CLAIMANT RECEIVED DISABILITY OR DEATH BENEFITS
UNDER SAID ARTICLES.
SECTION 2. Article
42 of title 8, Colorado Revised Statutes, 1986 Repl. Vol., as
amended, is amended BY THE ADDITION OF A NEW SECTION to read:
842113.5. Recovery of overpayments
notice required. (1) IF
A CLAIMANT HAS RECEIVED AN AWARD FOR THE PAYMENT OF DISABILITY
BENEFITS OR A DEATH BENEFIT UNDER ARTICLES 40 TO 47 OF THIS TITLE
AND ALSO RECEIVES ANY PAYMENT, AWARD, OR ENTITLEMENT TO BENEFITS
UNDER THE FEDERAL OLDAGE, SURVIVORS, AND DISABILITY INSURANCE
ACT, AN EMPLOYERPAID RETIREMENT BENEFIT PLAN, OR ANY OTHER
PLAN, PROGRAM, OR SOURCE FOR WHICH THE ORIGINAL DISABILITY BENEFITS
OR DEATH BENEFIT IS REQUIRED TO BE REDUCED PURSUANT TO SAID ARTICLES,
BUT WHICH WERE NOT REFLECTED IN THE CALCULATION OF SUCH DISABILITY
BENEFITS OR DEATH BENEFIT:
(a) WITHIN TWENTY CALENDAR DAYS AFTER
LEARNING OF SUCH PAYMENT, AWARD, OR ENTITLEMENT, THE CLAIMANT,
OR THE LEGAL REPRESENTATIVE OF A CLAIMANT WHO IS A MINOR, SHALL
GIVE WRITTEN NOTICE OF THE PAYMENT, AWARD, OR ENTITLEMENT TO THE
EMPLOYER OR, IF THE EMPLOYER IS INSURED, TO THE EMPLOYER'S INSURER.
IF THE CLAIMANT OR LEGAL REPRESENTATIVE GIVES SUCH NOTICE, ANY
OVERPAYMENT THAT RESULTED FROM THE FAILURE TO MAKE THE APPROPRIATE
REDUCTION IN THE ORIGINAL CALCULATION OF SUCH DISABILITY BENEFITS
OR DEATH BENEFIT SHALL BE RECOVERED BY THE EMPLOYER OR INSURER
IN INSTALLMENTS AT THE SAME RATE AS, OR A LOWER RATE THAN, THE
RATE AT WHICH THE OVERPAYMENTS WERE MADE. SUCH RECOVERY SHALL
REDUCE THE DISABILITY BENEFITS OR DEATH BENEFIT PAYABLE AFTER
ALL OTHER APPLICABLE REDUCTIONS HAVE BEEN MADE.
(b) IF THE CLAIMANT OR LEGAL REPRESENTATIVE
OF A CLAIMANT WHO IS A MINOR WAS RECEIVING BENEFITS IN EXCESS
OF THE AMOUNTS THAT SHOULD HAVE BEEN PAID UNDER ARTICLES 40 TO
47 OF THIS TITLE AND FAILED TO GIVE THE NOTICE REQUIRED BY PARAGRAPH
(a) OF THIS SUBSECTION (1), THE EMPLOYER OR INSURER IS AUTHORIZED
TO CEASE ALL DISABILITY OR DEATH BENEFIT PAYMENTS IMMEDIATELY
UNTIL THE OVERPAYMENTS HAVE BEEN RECOVERED IN FULL.
(c) IF FOR ANY REASON RECOVERY OF OVERPAYMENTS
AS CONTEMPLATED IN PARAGRAPH (a) OR (b) OF THIS SUBSECTION (1)
IS NOT PRACTICABLE, THE EMPLOYER OR INSURER IS AUTHORIZED TO SEEK
AN ORDER FOR REPAYMENT.
(d) WHEN AN OVERPAYMENT IS REPAID TO THE
INSURER, THE INSURER SHALL CREDIT THE LOSSES ON THE CLAIM AND
REPORT THE CORRECTED LOSSES TO THE INSURANCE RATING ORGANIZATION
ON THE NEXT SCHEDULED REPORT FOR PURPOSES OF THE EMPLOYER'S EXPERIENCE
MODIFICATION.
SECTION 3. 843203
(1), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is
amended to read:
843203. Notice concerning
liability notice to claimant. (1) (a) The
employer or, if insured, the employer's insurance carrier shall
notify in writing the division and the injured employee or, if
deceased, the decedent's dependents within twenty days after notice
or knowledge of an injury to an employee which disables said employee
for more than three shifts or three calendar days or results in
permanent physical impairment or death of said employee, whether
liability is admitted or contested; but, for the purpose of this
section, any knowledge on the part of the employer, if insured,
is not knowledge on the part of the insurance carrier. If the
insurance carrier or selfinsured employer denies liability
for the claim, the claimant may request an expedited hearing on
the issue of compensability if the application therefor is filed
within fortyfive days of the date of mailing of the notice
of contest. The director shall set any such expedited matter
for hearing within forty days of the date of the application,
when the issue is liability for the disease or injury. The time
schedule for such an expedited hearing is subject to the extensions
set forth in section 843209. If a claimant elects
not to request an expedited hearing pursuant to this subsection
(1), the time schedule for hearing the matter shall be as set
forth in section 843209. Where the employer's report
of injury shows that the employee is temporarily disabled for
three days or less and medical attention as provided by section
842101, if required, has been afforded at the expense
of the employer or the insurance carrier, then no admission or
denial of liability need be filed until the employer or, if insured,
the employer's insurance carrier has knowledge of or notice of
claim for compensation benefits and then within twenty days from
the date of such knowledge or notice.
(b) THE WRITTEN NOTICE GIVEN PURSUANT
TO THIS SUBSECTION (1) SHALL INCLUDE A SPECIFIC REFERENCE TO THE
CLAIMANT'S OBLIGATIONS UNDER SECTION 842113.5.
SECTION 4. 843207
(1), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is
amended BY THE ADDITION OF A NEW PARAGRAPH to read:
843207. Hearings.
(1) Hearings shall be held to determine any controversy
concerning any issue arising under articles 40 to 47 of this title.
In connection with hearings, the director and administrative
law judges are empowered to:
(q) REQUIRE REPAYMENT OF OVERPAYMENTS.
SECTION 5. 843303
(1) and (2) (a), Colorado Revised Statutes, 1986 Repl. Vol., as
amended, are amended to read:
843303. Reopening.
(1) At any time within six years from
AFTER the date of injury, the director or an administrative law
judge may, after notice to all parties, review and reopen any
award on the ground of FRAUD, AN OVERPAYMENT, an error, a mistake,
or a change in condition, except for those settlements entered
into pursuant to section 843204 in which the claimant
waived all right to reopen an award; but a settlement may be reopened
at any time on the ground of fraud or mutual mistake of material
fact. UPON A PRIMA FACIE SHOWING THAT THE CLAIMANT RECEIVED OVERPAYMENTS,
THE AWARD SHALL BE REOPENED SOLELY AS TO OVERPAYMENTS AND REPAYMENT
SHALL BE ORDERED. IN CASES INVOLVING THE CIRCUMSTANCES DESCRIBED
IN SECTION 842113.5, RECOVERY OF OVERPAYMENTS SHALL
BE ORDERED IN ACCORDANCE WITH SAID SECTION. If an award is reopened
ON GROUNDS OF AN ERROR, A MISTAKE, OR A CHANGE IN CONDITION, compensation
and medical benefits previously ordered may be ended, diminished,
maintained, or increased. No such reopening shall affect the
earlier award as to moneys already paid EXCEPT IN CASES OF FRAUD
OR OVERPAYMENT. Any order entered under this subsection (1) shall
be subject to review in the same manner as other orders.
(2) (a) At any time within two years
after the date the last temporary or permanent disability benefits
or dependent benefits excluding medical benefits become due or
payable, the director or an administrative law judge may, after
notice to all parties, review and reopen an award on the ground
of FRAUD, AN OVERPAYMENT, an error, a mistake, or a change in
condition, except for those settlements entered into pursuant
to section 843204 in which the claimant waived all
right to reopen an award; but a settlement may be reopened at
any time on the ground of fraud or mutual mistake of material
fact. UPON A PRIMA FACIE SHOWING THAT THE CLAIMANT RECEIVED OVERPAYMENTS,
THE AWARD SHALL BE REOPENED SOLELY AS TO OVERPAYMENTS AND REPAYMENT
SHALL BE ORDERED. IN CASES INVOLVING THE CIRCUMSTANCES DESCRIBED
IN SECTION 842113.5, RECOVERY OF OVERPAYMENTS SHALL
BE ORDERED IN ACCORDANCE WITH SAID SECTION. If an award is reopened
under this paragraph (a) ON GROUNDS OF AN ERROR, A MISTAKE, OR
A CHANGE IN CONDITION, compensation and medical benefits previously
ordered may be ended, diminished, maintained, or increased. No
such reopening shall affect the earlier award as to moneys already
paid EXCEPT IN CASES OF FRAUD OR OVERPAYMENT. Any order entered
under this paragraph (a) shall be subject to review in the same
manner as other orders.
SECTION 6. 843306
(1), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is
amended to read:
843306. Collection of fines,
penalties, and overpayments. (1) A
certified copy of any final order of the director or an administrative
law judge ordering the payment of any penalty OR REPAYMENT OF
OVERPAYMENTS pursuant to articles 40 to 47 of this title may be
filed with the clerk of the district court of any county in this
state at any time after the period of time provided by articles
40 to 47 of this title for appeal or seeking review of the order
has passed without appeal or review being sought or, if appeal
or review is sought, after the order has been finally affirmed
and all appellate remedies and all opportunities for review have
been exhausted. The party filing the order shall at the same
time file a certificate to the effect that the time for appeal
or review has passed without appeal or review being undertaken
or that the order has been finally affirmed with all appellate
remedies and all opportunities for review having been exhausted.
The clerk of the district court shall record the order and the
filing party's certificate in the judgment book of said court
and entry thereof made in the judgment docket, and it shall thenceforth
have all the effect of a judgment of the district court, and execution
may issue thereon out of said court as in other cases. Any such
order may be filed by and in the name of the director or by and
in the name of the party in the worker's compensation action who
was injured by the violation of any provision of articles 40 to
47 of this title OR WHO WAS FOUND TO BE ENTITLED TO REPAYMENT
OF OVERPAYMENTS UNDER SAID ARTICLES.
SECTION 7. Effective date
applicability. This act shall take
effect July 1, 1997, and shall apply to cases in which the injuries
occurred on or after said date.
SECTION 8. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Joan M. Albi
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO