2018 Notes

Workers' Compensation Possibilities



Topics:

  • Employment Law
  • Wrongful Termination
  • Employers
  • Workers' Comp




February 2018

Yes, you can get yourself fired while “out on worker’s compensation”. You can also be “wrongfully” terminated, because your employer does not want their insurance paying the benefits, or they do not want to deal with the consequences of your injury. The employer may not want to deal with a decreased level of productivity (because you are slower, or doing a less productive job in a different position). They may not be willing to wait for you to get better to fill your position.

They may not be able to wait to replace you either and may have no other choice than to end your employment. These are the arguments that arise when a person is fired, either while working and receiving medical care, or when they are missing work and receiving benefits to replace lost wages. The question then will arise. Where do you make your argument? In all cases, except worker’s compensation matters, you would proceed through a process leading to a lawsuit (some require “exhausting administrative remedies” before going to court) where many different reasons can be asserted claiming many different types of damages. If you are receiving Worker’s Compensation benefits, either medical treatment or replacement of wages, you are only able to receive relief under that “system” as governed by the Colorado State Statutes and the rules that apply.

Section 8, and guidance in section 19, of the Colorado Revised Statutes, contain the rules for this situation, and in this case §19.22 cover Negligence and Intentional Torts, which are “wrongs” committed by the employer, and §19.2-.4, cover the Denial of Temporary Disability Benefits to an Employee Who is Found Responsible for [their] Termination of Employment. In short, the worker’s compensation laws are designed to eliminate the arguments about whether and employer did something wrong to cause the injury, and to allow for a situation where an employee has done something to deserve termination, when they have been hurt at work. You cannot just “go to court” for your solutions.

If an employer has “complied with the provisions of the Act”, then “all causes of action…rights and remedies…on account of such death of or personal injury to any such employee…are abolished, excepts as provided” in the Act. (CRS §8-41-102). In multiple court cases, this bar has been ruled to cover any claims that are derivative to the worker’s claim and for which no remedy is discussed in the statures.

You will need to stay in the Worker’s Compensation “system” once you have been injured because of the work you do for an employer. This is the trade-off that the employer and employee have made in order for employees to be covered for work related injuries (wages and care) without having to argue who is at fault.

The Basics of Grandparents' Rights

January 2018

Grandparents raising grandchildren or advocating for their own visitation rights are being seen more often in the courtroom. The Colorado Statute covering this issue (§ 19-1-117) makes it sound easy to attain visitation or custody with orders from a court, but the actual court cases complicate matters.

Almost every legal issue that has a Statute written about it, also then has “case-law” where that statute has been applied and interpreted further, which makes it important to have a good knowledge of the additional factors that are not set out in the Statute as it is written.

The statute itself states in basic terms that: 1) A Grandparent can get an order for visitation, 2) If there has been a “child custody case” or a case allocating “parental responsibilities” related to the child(ren), 3) and the Grandparent then makes a “Motion” in that case with an attached “Affidavit” (sworn statement) setting out the reasons an order is needed, 4) The Parent then can respond, 5) and then the Court can issue an order it feels is appropriate, conduct a hearing (as requested by a party, or determined necessary by the court). There are also rules on how often this type of motion can be filed and a possibility that attorney’s fees can be awarded to a party to the action. The Statute also dictates any order must “serve the best interests of the child.”

Although the Statute itself if a bit more complicated than the way it is presented above, it still seems like a Court would just determine “it is a good thing” for a grandchild to see their grandparent and must be in their best interests, but an examination of the “case-law” on this subject reveals it is not that easy.

If a Parent has decided you do not get to visit their child the PRESUMPTION is that this is a good decision, and the court will not order visits to happen unless the Grandparent can rebut this presumption with CLEAR AND CONVINCING EVIDENCE that the child’s parent is making a decision that is not in the best interest of the child. The burden is on the Grandparent, and it is not merely to show it would be better for the child to have visits with their grandparent. It must be clearly and convincingly shown that the parent is making a decision that is not in the child’s best interest. The difference is subtle, but practically speaking you need to demonstrate to a Court, based on my experience, that a child will actually be harmed by not having the visits. Even if a parent is making the decision out of anger, spite, or even revenge, if it is not affecting the child in a negative way, then a court will not disturb the decision.

Courts are very reluctant to override the decisions of a parent, who has decided not to allow visits between a grandparent and their child. Courts will not consider the motives for the decision, but only the effects on the child. A court must issue orders allowing visits that set out specific findings of fact and conclusions under the law and also list the “special factors” that have led them to order visits against a parent’s wishes. This means that in reality a Grandparent must prove that the decision made by the parent is invalid because the parent is “unfit” to make the decision, or the decision is not in the best interest of the child.

Making the argument that it surely could not be in the best interest of a child to deprive them of contact with a grandparent (while it makes sense to most people in general terms) is not enough to prevail in court. If you are a Grandparent seeking visitation with a Grandchild(ren), you will need to understand and be thoroughly prepared to present a motion, and evidence at a hearing, that will meet the burden required to have a court order that you have contact with the Child(ren).