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Anderson v. Longmont Toyota12/6/2004
of the bill emphasized the unfair burden placed on employers in such situations. First, employers absorb the cost of losing a productive worker to the injury. Second, employers assume the cost of developing "return to work" programs that allow the TTD employee to perform modified work while earning the pre-injury wage. Then the "costs of that TTD are added to the employer's premium . . . so the employer ends up paying both the initial premium because of the TTD and the cost of a 'return to work program.'" Transcript of Hearings at 31 (statement of Curt Kirkscium, Attorney, Colorado Compensation Insurance Authority).
Significantly, on the one occasion worsening condition claims came up during the debate, a supporter of the bill assured legislators that the bill left in place the process for identifying and compensating an employee's subsequent worsening condition claim following job termination:
One other point that I don't think anyone has made is that if someone is terminated and their condition worsened, they can go back to the doctor. And maybe their restrictions are modified, and they would then be able to get temporary disability again. It's not going to be (inaudible) forever.
Transcript of Hearings at 37 (statement of Lynn Lyon, Colorado Compensation Insurance Authority).
I think it's important to keep in mind that it has to be approved by the doctor. So if they get worse or they just can't do the job that the employer offered, then there is recourse there. We're not just trying to cut people off cold without any benefits. This is for people who can actually, medically do some type of work.
Transcript of Hearings at 38 (statement of Lynn Lyon, Colorado (inaudible) Insurance Association).
This assurance that worsening condition compensation would not be jeopardized by passage of the bill occurred in the context of questions by legislators about the ramifications of passing the bill, and is particularly significant when paired with Representative Berry's statement, as sponsor, that the bill's purpose was "to clarify that temporary total disability is for when you're off work and injured, and it's not for any other purpose." Transcript of Hearings at 2.
Authority to reopen a workers' compensation award for a change of condition, including a worsening condition, is contained in section 8-43-303, C.R.S. (2004). El Paso County Dep't of Social Servs. v. Donn, 865 P.2d 877, 879 (Colo. App. 1993). The intent of the reopening provision is to provide a remedy to employees who are entitled to additional award of benefits, whether medical or disability. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189 (Colo. App. 2002).
Change of condition refers to a change in the condition of the original compensable injury or to a change in a claimant's physical or mental condition that can be causally connected to the original compensable injury. Chavez v. Indus. Comm'n, 714 P.2d 1328, 1330 (Colo. App. 1985). A claimant has the burden of proof in seeking to reopen a claim for a worsened condition. Richards v. Indus. Claim Appeals Office, 996 P.2d 756, 758 (Colo. App. 2000).
The existence of this discretionary authority to reopen an award, within the prescribed statutory period, has long been a feature of Colorado's statutory design. See Graden Coal Company v. Yturralde, 328 P.2d 105, 111 (Colo. 1958). When the General Assembly chooses to legislate, it is presumed to be aware of its own enactments and existing case law precedent. Vigil, slip op. at 13.
Had the General Assembly intended to modify the reopening provisions of section 8-43-303 when it adopted section 8-42-105(4), it would have expr
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