8-42-104. Effect of previous injury or compensation.

Statute text

(1) The fact that an employee has suffered a previous disability or impairment or received compensation therefor shall not preclude compensation for a later injury or for death, but, in determining compensation benefits payable for the later injury or death, the employee's average weekly earnings at the time of the later injury shall be used in determining the compensation payable to the employee or such employee's dependents. Notwithstanding any other provision of articles 40 to 47 of this title, no claimant may receive concurrent permanent total disability awards from injuries occurring in this state or any other state.

(2) (Deleted by amendment, L. 2008, p. 1676, 2, effective July 1, 2008.)

(3) An employee's temporary total disability, temporary partial disability, or medical benefits shall not be reduced based on apportionment under any circumstances. This subsection (3) supercedes the Colorado court of appeals' decisions in Hutchison v. Industrial Claim Appeals Office of Colorado, 405 P.3d 458 (Colo. App. 2017) and Duncan v. Industrial Claim Appeals Office of Colorado, 107 P.3d 999 (Colo. App. 2004).

(4) An employee's recovery of permanent total disability shall not be reduced when the disability is the result of a work-related injury or a work-related injury combined with genetic, congenital, or similar conditions; body habitus; or family history; except that this subsection (4) does not apply to reductions in recovery or apportionments allowed pursuant to the Colorado supreme court's decision in the case denominated Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).

(5) In cases of permanent medical impairment, the employee's award or settlement shall not be reduced except:

(a) When an employee has suffered more than one permanent medical impairment to the same body part and has received an award or settlement under the "Workers' Compensation Act of Colorado" or a similar act from another state. The permanent medical impairment rating applicable to the previous injury to the same body part, established by award or settlement, shall be deducted from the permanent medical impairment rating for the subsequent injury to the same body part.

(b) When an employee has a nonwork-related previous permanent medical impairment to the same body part that has been identified, treated, and, at the time of the subsequent compensable injury, is independently disabling. The percentage of the nonwork-related permanent medical impairment existing at the time of the subsequent injury to the same body part shall be deducted from the permanent medical impairment rating for the subsequent compensable injury.

(6) Nothing in this section shall be construed to preclude employers or insurers from seeking contribution or reimbursement, as permitted by law, from other employers or insurers for benefits paid to or for an injured employee as long as the employee's benefits are not reduced or otherwise affected by such contribution or reimbursement.

(7) For the purposes of subsections (4) and (5) of this section, the employer or, if the employer is insured, the employer's insurer has the burden of proof, by a preponderance of the evidence, at any hearing regarding apportionment that may result in a reduction of benefits to an employee under this section.

History

Source: L. 90: Entire article R&RE, p. 490, 1, effective July 1. L. 91: (1) amended, p. 1304, 12, effective July 1. L. 99: Entire section amended, p. 410, 1, effective July 1. L. 2008: (2) amended and (3) to (6) added, p. 1676, 2, effective July 1. L. 2021: (3), (4), and IP(5) amended and (7) added, (HB 21-1050), ch. 384, p. 2570, 3, effective September 7.

Annotations

Editor's note: This section is similar to former 8-47-102 as it existed prior to 1990.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Primer on Permanent Disability in the Colorado Workmen's Compensation Law", see 57 Den. L.J. 573 (1980). For article, "A Curious Journey: Apportionment in Workers' Compensation Today", see 38 Colo. Law. 69 (March 2009).

Annotator's note. (1) Since 8-42-104 is similar to 8-47-102 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) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which empowered the director of the division of labor to enforce and administer the workmen's compensation act.

Section recognizes right to compensation for second injury. This section recognizes that even though an employee has suffered a previous disability and even received compensation therefor, he is nonetheless entitled to also receive compensation for a subsequent or later injury sustained in a second industrial accident. Empire Oldsmobile, Inc. v. McLain, 151 Colo. 510, 379 P.2d 402 (1963); Colo. Fuel & Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968).

An employer takes an employee as he finds him, and if an injury is significant in that there is a direct causal relationship between the precipitating event and the resulting disability, an industrial injury is still compensable if it has caused a dormant pre-existing condition to become disabling. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962); Seifried v. Indus. Comm'n, 736 P.2d 1262 (Colo. App. 1986); Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).

This section addresses apportionment when a claimant has suffered multiple industrial disabilities and, contrary to petitioners' assertion, the general assembly has accorded employers the protection of apportionment only for prior industrial disabilities and has not extended the apportionment to prior non-industrial disabilities. Lindner Chevrolet v. Indus. Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995).

This section applies to all previous disabilities except when 8-46-101 (1), governing the subsequent injury fund's liability for previous industrial disabilities, is applicable. Mtn. Meadows Nursing Ctr. v. Indus. Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999).

This section provides no statutory direction for the apportionment of liability between an employer and a claimant whose disability resulted from a preexisting medical condition and a subsequent work-related injury. Under the full responsibility rule, an employer is generally liable for the entire disability that results from a compensable accident. Res. One, LLC v. Indus. Claim Appeals Office, 148 P.3d 287 (Colo. App. 2006).

No apportionment where employee has fully recovered from past disability. Apportionment under this section is appropriate only when a prior disability, as defined in the AMA Guides, is a contributing factor to a subsequent industrial injury. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Mtn. Meadows Nursing Ctr. v. Indus. Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999).

Benefits payable to a disabled employee for a later injury shall be based on the employee's average weekly wage at the time of the later injury. Platte Valley Lumber v. Indus. Claim Appeals Office, 870 P.2d 634 (Colo. App. 1994).

This section spells out just how the percentage of disability for the subsequent injury shall be determined, namely, by computing the percentage of entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury. Colo. Fuel & Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968).

Basis for compensation of later injury is earning capacity at time of that injury. Where a claimant has suffered a previous disability, a court in determining average earnings, as a basis for compensation for his later injury, has the right and duty to fix such amount as would reasonably represent his earning capacity at the time of the later injury in the employment in which he was then working. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962); Colo. Fuel & Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968).

Allocation of a percentage of disability to previous injuries cannot be on an arbitrary basis of guesswork or assumption. Matthews v. Indus. Comm'n, 144 Colo. 146, 355 P.2d 300 (1960); Empire Oldsmobile, Inc. v. McLain, 151 Colo. 510, 379 P.2d 402 (1963); Parrish v. Indus. Comm'n, 151 Colo. 538, 379 P.2d 384 (1963).

Inquiry is limited to the claimant's ability to earn a wage at the same or other employment in inquiry to apportion injuries to employee with permanent total disabilities. Colo. Mental Health Inst. v. Austill, 940 P.2d 1125 (Colo. App. 1997).

Apportionment pursuant to this section not limited to apportioning liability between employers without reducing benefits to the claimant. Colo. Mental Health Inst. v. Austill, 940 P.2d 1125 (Colo. App. 1997).

Disabilities caused by accident and those caused by occupational disease are treated the same for apportionment purposes under this section. Colo. Mental Health Inst. v. Austill, 940 P.2d 1125 (Colo. App. 1997).

The allocation of disability as required by this section must be based on evidence. City & County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972).

And where the medical opinion upon which the industrial commission based its award is definite and unequivocal, the allocation of disability between a preexisting condition and an industrial accident is proper if supported by that kind of competent evidence. Holmstron v. Pub. Serv. Co., 169 Colo. 439, 458 P.2d 77 (1969).

Prohibition against apportionment in subsection (3) for a "previous injury" did not apply where knee condition was one ongoing disease with many causes, both work- and non-work-related. It was instead one "injury" with multiple causes and not a "previous injury" because there was no onset of the occupational disease that occurred before in time. Hutchison v. Indus. Claim Appeals Office, 2017 COA 79, 405 P.3d 458.

Full benefits even if fully recovered from prior injury. A claimant who has suffered a prior injury for which he had been compensated on a permanent basis and from which he had fully recovered as a working unit at the time of his employment by present employer, is entitled to full benefits provided by articles 42 to 66 of this title. Empire Oldsmobile, Inc. v. McLain, 151 Colo. 510, 379 P.2d 402 (1963); Powers v. William Van Genderen Co., 153 Colo. 561, 387 P.2d 285 (1963).

But where claimant had suffered a prior injury and the medical evidence was in agreement as to the percentage of disability to be allocated to recent injury, an award in excess of such percentage was without support in the evidence. Indus. Comm'n v. Navajo Freight Lines, 149 Colo. 86, 367 P.2d 894 (1962).

Where an employer hires a workman who by reason of a preexisting condition or a prior injury is to some extent disabled, he takes such employee with such handicap. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962).

This section governs all apportionment of disability awards except when a previous disability impacts upon a present disability, in which case 8-46-101, the subsequent injury fund statute, applies. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).

Subsection (2)(c) applies only to apportionment of permanent partial and permanent total disability benefits. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).

The effects of a prior industrial injury cannot constitute a "previous disability" unless a claimant has attained maximum medical improvement for the prior injury before the date of the subsequent injury. Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999).

A partially disabled person who receives an injury which totally disables him is entitled to compensation without apportionment. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962).

For this section does not provide for apportionment between injuries sustained. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962); United Airlines v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo. 2000).

And in the absence of an apportionment statute, the general rule is that the employer becomes liable for the entire disability resulting from a compensable accident. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962); United Airlines v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo. 2000).

The full responsibility rule does not bar apportionment under this section where there is no SIF liability for non-industrial injuries. Waddell v. Indus. Claim Appeals Office, 964 P.2d 552 (Colo. App. 1998).

The difference between a total permanent disability order and an apportionment of compensation between one injury and a prior one is that in the former the payments continue for life, and in the latter the payments would, in all probability, be terminable sometime before his death. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962).

Apportionment may be had for a prior disability, but not for a latent preexisting condition. And an impairment becomes a disability only when the medical condition limits the claimant's capacity to meet the demands of life's activities. Baldwin Const. v. Indus. Claim Appeals Office, 937 P.2d 895 (Colo. App. 1997).

Apportionment based on preexisting impairment is not proper unless the impairment was independently disabling at the time of the industrial injury. Thus, if a claimant's condition has improved to the extent that a disability is no longer present when the later injury occurs, that prior disability cannot be considered a contributing factor. Pub. Serv. Co. of Colo. v. Indus. Claim Appeals Office, 40 P.3d 68 (Colo. App. 2001).

Apportionment of medical impairment constitutes a pure medical determination and is not based on pre-existing impairment as formerly permitted if the impairment was independently disabling at the time of the injury. Martinez v. Indus. Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007).

Under the AMA Guides, a preexisting condition was not a previous disability and therefore not subject to apportionment when prior to injury at work the condition or impairment was asymptomatic and did not hinder claimant's capacity to meet any demands. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Lambert & Sons, Inc. v. Indus. Claim Appeals Office, 984 P.2d 656 (Colo. App. 1998).

"Apportionable" disability does not include congenital conditions that are not affected by circumstances subsequent to birth. Further, the general assembly recognized that individual claimants are born with different physical and mental aptitudes, and therefore, with a baseline access to the labor market, which is limited. An apportionable "disability" arises when the claimant's baseline access to the labor market is reduced by injuries, illness, or the aging process. Absolute Employment Servs., Inc. v. Indus. Claim Appeals Office, 997 P.2d 1229 (Colo. App. 1999).

"Previous injury" means an accident causing injury or an occupational disease that occurred earlier in time to the claimant's claim. Hutchison v. Indus. Claim Appeals Office, 2017 COA 79, 405 P.3d 458.

In determining the relationship between subsection (5)(a) of this section and 8-42-107.5, the statutory disability cap should be determined not by combining but by separately calculating the "impairment ratings" for each injury. Browne v. Indus. Claim Appeals Office, 2021 COA 83, 495 P.3d 974.

In case of death of employee intoxicated at time of injury, subsection (1)(c) does not operate to reduce the $15,000 employer is required to contribute to the subsequent injury fund pursuant to 8-51-106 (1)(b) (now 8-46-102) because this amount is a tax imposed upon the employer for the purpose of funding the subsequent injury fund and not a benefit to the claimant or his dependents. Portofino Apts. v. Indus. Claim Appeals Office, 789 P.2d 1117 (Colo. App. 1990).

Requirement that average weekly earnings at time of later injury be used to compute compensation payable for a later injury or death are subject to provisions of 8-42-102 (3) allowing variation from general rule if a fair computation of wages cannot be obtained. Vigil v. Indus. Claim Appeals Office, 841 P.2d 335 (Colo. App. 1992), aff'd in part and rev'd in part on other grounds, 856 P.2d 850 (Colo. 1993).

Even though subsection (2) references "disability", the term is used in the context of a "previous disability", and concerns the effects of an injury as they were termed prior to amendments to the Workers' Compensation Act. Under the amended version of the Act, "medical impairment" simply describes "permanent disability". Thornton v. Replogle, 888 P.2d 782 (Colo. 1995).