Any provision of the law to the contrary notwithstanding, a person who is separated from employment due to an accident or injury resulting in a temporary total disability for which he has been compensated under section 8-42-105, if otherwise eligible, shall be entitled to receive, after the termination of the continuous period of disability, benefits under this article which were available and in effect at the time of separation from employment. Payment of benefits for a week under this section shall be made only if a claim therefor is filed within the four weeks immediately following the termination of the continuous period of total disability and the week for which benefits are claimed occurs within three years after the date of separation from employment. Only one benefit year may be established under the provisions of this section.
Source: L. 69: p. 684, § 1. C.R.S. 1963: § 82-4-12. L. 91: Entire section amended, p. 1908, § 9, effective June 1.
ANNOTATION
Termination of the continuous period of total disability occurs upon administrative order regarding vocational rehabilitation. If an injured employee has been ordered to undergo a vocational rehabilitation evaluation, the period of continuous disability terminates on the date of the administrative determination regarding vocational rehabilitation. Fluke v. Indus. Claim Appeals Office, 799 P.2d 468 (Colo. App. 1990).
The three-year requirement of this section is not similar to a statute of limitations. Rather, it is a substantive limitation upon the total amount of unemployment benefits to which an injured employee who has been receiving temporary workers' compensation is entitled. In no event is such an employee entitled to unemployment benefits for any week commencing at a date more than three years from the date of employment separation, irrespective of the date when the claim is filed. Lewis v. Colo. Dept. of Labor, 924 P.2d 1183 (Colo. App. 1996).
The substantive limitation in this section is expressed in temporal terms, thus its effect is similar to a statute of repose, in the sense that because an unemployment claimant can seek benefits only for those weeks after the filing of the claim, an injured employee may never become entitled to receive unemployment benefits if that employee receives temporary total disability benefits for three years or more. Lewis v. Colo. Dept. of Labor, 924 P.2d 1183 (Colo. App. 1996).
The fact that an employee does not discover that a claim for benefits may have arisen before the temporal limitation has completely expired does not result in any due process violations. Lewis v. Colo. Dept. of Labor, 924 P.2d 1183 (Colo. App. 1996).