(1) (a) In a case where an
employee has previously sustained permanent partial industrial disability and in a
subsequent injury sustains additional permanent partial industrial disability and it is
shown that the combined industrial disabilities render the employee permanently
and totally incapable of steady gainful employment and incapable of rehabilitation
to steady gainful employment, then the employer in whose employ the employee
sustained such subsequent injury shall be liable only for that portion of the
employee's industrial disability attributable to said subsequent injury, and the
balance of compensation due such employee on account of permanent total
disability shall be paid from the subsequent injury fund as is provided in this
section.
(b) (I) In addition to such compensation and after the completion of the
payments therefor, the employee shall continue to receive compensation at said
employee's established compensation rate for permanent total disability until
death out of a special fund to be known as the subsequent injury fund, hereby
created for such purpose. The subsequent injury fund shall be funded pursuant to
the provisions of section 8-46-102.
(II) The unrestricted year-end balance of the subsequent injury fund, created
pursuant to subsection (1)(b)(I) of this section, for the 1991-92 fiscal year constitutes
a reserve, except as described in subsection (1)(b)(III) of this section, as defined in
section 24-77-102 (12), and, for purposes of section 24-77-103:
(A) Any moneys credited to the subsequent injury fund in any subsequent
fiscal year shall be included in state fiscal year spending, as defined in section 24-77-102 (17), C.R.S.; and
(B) Any transfers or expenditures from the subsequent injury fund in any
subsequent fiscal year shall not be included in state fiscal year spending, as
defined in section 24-77-102 (17), C.R.S., for such fiscal year.
(III) (A) For state fiscal years commencing on or before July 1, 2024, and on or
after July 1, 2026, the state treasurer shall credit all interest and income derived
from the deposit and investment of money in the subsequent injury fund to the
subsequent injury fund.
(B) Notwithstanding any subsection of this section to the contrary, for the
state fiscal year commencing on July 1, 2025, in accordance with section 24-36-114
(1), the state treasurer shall credit all interest and income derived from the deposit
and investment of money in the subsequent injury fund to the general fund.
(C) On June 30, 2025, the state treasurer shall transfer two hundred ninety-one thousand two hundred three dollars from the subsequent injury fund to the
general fund. This subsection (1)(b)(III)(C) is repealed, effective July 1, 2026.
(1.5) Notwithstanding any provision of this section to the contrary, on May 1,
2003, the state treasurer shall deduct twenty million dollars from the subsequent
injury fund and transfer such sum to the general fund.
(1.7) Notwithstanding any provision of this section to the contrary, on March
30, 2009, the state treasurer shall deduct twenty-six million five hundred thousand
dollars from the subsequent injury fund and transfer such sum to the general fund.
(2) If an employee entitled to additional benefits, as provided in this section,
obtains employment while receiving compensation from the subsequent injury fund,
such employee shall be compensated out of said fund at the rate of one-half of said
employee's average weekly wage loss, subject to the maximum and minimum
provisions of the workers' compensation act, during such period of employment.
(3) In case payment is or has been made under the provisions of this section
and dependency later is shown or if payment is made by mistake or inadvertence or
under such circumstances that justice requires a refund thereof, the division is
authorized to refund such payment to the employer or, if insured, the employer's
insurance carrier.
(4) (a) The sums provided for the subsequent injury fund created by this
section shall be used to pay the costs related to the administration of the fund and
to make such compensation payments as may be required by the provisions of
articles 40 to 47 of this title.
(b) Moneys in the subsequent injury fund are continuously appropriated to
the division for the payment of benefits as provided in this section and legal fees.
(5) The director shall administer and conduct all matters involving the
subsequent injury fund in the name of the division, and, in that name and without
any other name, title, or authority, the director may:
(a) (I) Sue and be sued in all the courts of this state, of any other state, or of
the United States and in actions arising out of any act, deed, matter, or thing made,
omitted, entered into, done, or suffered in connection with the subsequent injury
fund and the administration or conduct of matters relating thereto, including the
authority to employ counsel to represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed to waive any provisions of
the Colorado Governmental Immunity Act, article 10 of title 24, C.R.S., nor shall it
be construed to waive immunity of the state of Colorado from suit in federal court,
guaranteed by the eleventh amendment to the constitution of the United States.
(b) Make and enter into contracts or obligations relating to the subsequent
injury fund as authorized or permitted under the provisions of articles 40 to 47 of
this title, but neither the director nor any officer or employee of the division shall be
personally liable in any private capacity for or on account of any act done or
omitted or contract or other obligation entered into or undertaken in an official
capacity in good faith and without intent to defraud in connection with the
administration or conduct of the subsequent injury fund, its business, or other
affairs relating thereto.