2021 Colorado Code
Title 8 - Labor and Industry
Article 42 - Benefits
§ 8-42-106. Temporary Partial Disability

1. In case of temporary partial disability, the employee shall receive sixty-six and two-thirds percent of the difference between the employee's average weekly wage at the time of the injury and the employee's average weekly wage during the continuance of the temporary partial disability, not to exceed a maximum of ninety-one percent of the state average weekly wage per week. Temporary partial disability shall be paid at least once every two weeks.
2. Temporary partial disability payments shall continue until the first occurrence of either one of the following:
   1. The employee reaches maximum medical improvement; or
   2. 1. The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. (b) (I) The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.
      2. In the case of employment by a temporary help contracting firm, once the employee has received one written offer of modified employment meeting the requirements of subparagraph (III) of this paragraph (b), the employee shall be deemed to be on notice that modified employment is available. Subsequent offers of modified employment need not be in writing so long as the job requirements of such modified employment are within the restrictions given the employee by the employee's attending physician and the employee is allowed a period of at least twenty-four hours, not including any part of a Saturday, Sunday, or legal holiday, within which to respond to any such offer.
      3. A written offer of modified employment under subparagraph (II) of this paragraph (b) shall clearly state:
         1. That future offers of employment need not be in writing;
         2. The policy of the temporary help contracting firm regarding how and when employees are expected to learn of such future offers; and
         3. That benefits under this section will be terminated if an employee fails to respond to an offer of modified employment.

History. Source: L. 90: Entire article R&RE, p. 491, § 1, effective July 1. L. 91: Entire section amended, p. 1306, § 14, effective July 1. L. 96: Entire section amended, p. 828, § 3, effective July 1. L. 2013: (1) amended,(SB 13-285), ch. 301, p. 1594, § 3, effective July 1.

This section is similar to former § 8-51-103 as it existed prior to 1990.

Annotator's note. (1) Since § 8-42-106 is similar to § 8-51-103 as it existed prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

(2) The case included in the annotations to this section which refers to the industrial commission was decided prior to the 1969 amendment which vested the director of the division of labor with the power previously exercised by the industrial commission to enforce and administer the workmen's compensation act.

“Earning capacity” relates to money rate at which services are recompensed. Although language of this section varies from that of §§ 8-51-102 , 8-51-108 , and 8-51-109 , dealing with general disability, it is apparent that the general assembly intended that the same base be used for determining compensation throughout the act, and the term “earning capacity” as used in this section must be related to the money rate at which the services were recompensed under the contract of hire at the time of the accident. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590 , 380 P.2d 62 (1963).

Standard of “suitable gainful employment” is inapplicable in determining eligibility for workers' compensation benefits when the employee is temporarily disabled and vocational rehabilitation services remain open. Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo. App. 1986).

But where a claimant earned no salary and therefore had a money rate of nothing at time of accident, and since this section does not provide a minimum compensation rate for temporary partial disability, the amount of compensation to which claimant is entitled is, and remains, zero. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590 , 380 P.2d 62 (1963).

And neither the industrial commission nor the court may supplement this section by adding thereto a minimum rate provision. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590 , 380 P.2d 62 (1963).

Compensation benefits for a temporary partial disability are designed to be a partial substitute for lost wages or impaired earning capacity arising from a compensable injury. Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo. App. 1986).

“Wages” includes health insurance and similar advantages received from the employer, for purposes of this section, and net cost to the employee of replacing the benefit should be added to the average weekly wage. State Compensation Insurance Authority v. Smith, 768 P.2d 1256 (Colo. App. 1988).

Average weekly wage includes both the employer's and employee's contribution to group health insurance premiums. Humane Soc'y of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).

Claimant is not required to present proof that he or she actually purchased replacement coverage. The statute merely seeks to ensure that the claimant will have funds available to make the purchase. Humane Soc'y of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).

Reasonable depreciation deducted from a self-employed workers' compensation claimant's gross earnings as reported on his federal income tax return should be included in the calculation of his post-injury average weekly wage for determining the amount of temporary partial disability benefits to which he is entitled. Elliott v. El Paso County, 860 P.2d 1365 (Colo. 1993).

Workers' compensation claimant bears the burden of establishing the reasonableness of depreciation deductions included in calculating temporary partial disability benefits because the claimant bears the burden of showing the statutory entitlement to compensation by a preponderance of the evidence. Elliott v. El Paso County, 860 P.2d 1365 (Colo. 1993).

Under this statute, disability is measured in terms of diminished earning capacity and not the ability or inability of claimant to work a given number of hours. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo. App. 1985).

Although “disability” incorporates both medical incapacity and loss of wage earnings, a claimant does not need to prove both components to establish entitlement to disability benefits under the workers' compensation act. Montoya v. Indus. Claim Appeals Office, 2018 COA 19 , __ P.3d __.

The term “earning capacity” means the loss of the ability to earn, not simply lost wages. Accordingly, while in some instances loss of earning capacity can be computed simply by subtracting post-injury earnings from the average weekly wage at the time of the injury, in other instances a comparative wage approach will not accurately reflect the impairment of earning capacity attributable to the injury. Hendricks v. Indus. Claim Appeals Office, 809 P.2d 1076 (Colo. App. 1990).

Where the claimant had received a wage increase after the accident, but was unable to work the same number of hours as prior to the accident, the ALJ reasonably calculated claimant's diminished earning capacity by considering the percentage decrease in hours worked. Univ. Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo. App. 1994).

If a simple calculation between pre-injury and post-injury wages would distort the loss of earning capacity attributable to the injury, then the claimant's post-injury wages must reflect the wage level in effect at the time of injury. Hendricks v. Indus. Claim Appeals Office, 809 P.2d 1076 (Colo. App. 1990).

An injured employee was entitled to receive temporary partial disability benefits after attainment of maximum medical improvement and until the employee either commences a vocational rehabilitation program or an administrative order is entered which provides that vocational rehabilitation is not necessary, if the employee was awarded temporary partial disability and ordered to undergo a vocational rehabilitation evaluation. Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989).

The date of maximum medical improvement for purposes of ending a claimant's temporary disability is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular accident. Maximum medical improvement is not divisible and cannot be parceled out among various components of a multi-faceted industrial injury. Paint Connection v. Indus. Claim Appeals Office, 240 P.3d 439 (Colo. App. 2010).

Disabling industrial injury suffered prior to July 1, 1987. A worker who has been awarded temporary partial disability benefits and who has been directed to undergo a vocational rehabilitation evaluation is entitled to receive temporary partial disability benefits until the commencement of a vocational rehabilitation program or the entry of an administrative ruling that vocational rehabilitation is not necessary to render the worker fit for a remunerative occupation. Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989); Gerber v. CAN-USA Construction, Inc., 783 P.2d 269 (Colo. 1989); Phillips v. Indus. Claim Appeals Office, 783 P.2d 271 (Colo. 1989); Indus. Claim Appeals Office v. Mid-Continent Res., Inc., 783 P.2d 290 (Colo. 1989); Arndt v. Electronic Metal Prods., Inc., 783 P.2d 290 (Colo. 1989); Northeastern Junior Coll. v. Kenyon, 783 P.2d 853 (Colo. 1989) (decided prior to 1987 repeal of subsections (4) and (5)).

The term “public”, as used in this section, means accessible to or shared by all members of the community. Twilight Jones Lounge v. Showers, 732 P.2d 1230 (Colo. App. 1986).

Disfigurement award for scar on abdominal area was proper as the abdominal area is a part of the body normally exposed to public view. Twilight Jones Lounge v. Showers, 732 P.2d 1230 (Colo. App. 1986).

Temporary partial disability benefits can be denied only if one of the statutory conditions is satisfied if the injury contributed in part to the wage loss. Champion Auto Body v. Indus. Claim Appeals Office, 950 P.2d 671 (Colo. App. 1997).

Applied in Sterling Colo. Beef v. Baca, 699 P.2d 1347 (Colo. App. 1985).