W.C. No. 4-677-750.Industrial Claim Appeals Office.
December 15, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 8, 2006, that found the insurer liable for 40 percent of the claimant’s medical and temporary disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. In 2003 and 2004 the claimant had sustained two prior industrial injuries to his low back while working for a previous employer, before again injuring his low back in an admitted accident with the present employer on February 22, 2006. Following the two prior industrial accidents the claimant was diagnosed by Dr. Ogsbury as having an L4-L5 disc herniation with L5 radiculopathy. The claimant was given permanent physical work restrictions as a result of these two prior industrial injuries. Eventually the claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician rated the claimant as having a 14 percent whole person impairment rating, and recommended significant medical maintenance care including narcotic medication for future exacerbations, and quarterly follow-up visits for re-evaluation of his conditions. The DIME physician also reported the possibility that the claimant would experience a deterioration of his condition over time and stated that future surgery might be appropriate. The clamant entered into a full and final settlement of the two claims with his previous employer.
The claimant essentially did not return to work after settling his prior workers’ compensation claims until he started working for the present employer. As noted, the claimant injured his low back in an admitted accident with the present employer on February 22, 2006. Dr. Ogsbury reported that the claimant complained of pain in the low back, left hip, left buttock and left leg. The claimant underwent another lumbar MRI which revealed a large disc herniation at the L4-L5 level of his lumbar spine. Dr. Lambden opined that the claimant’s then-current medical condition and need for medical treatment was 60 percent caused by the prior work injuries and 40 percent related to the February 22, 2006 injury. The ALJ credited Dr. Lambden’s medical opinion as credible and persuasive.
The ALJ determined that the respondents had demonstrated that the claimant’s current disability and need for surgery was proximately caused by the combination of his preexisting condition from his prior industrial injuries and by his February 22, 2006, injury. The ALJ found that the respondents had proven by a preponderance of the evidence that liability for 60 percent of the claimant’s medical and temporary disability benefits should be apportioned to the prior industrial injuries. The ALJ ordered the insurer to pay 40 percent of the claimant’s temporary disability benefits and 40 percent of the medical benefits.
On appeal the claimant does not argue that the ALJ erred regarding the percentage he apportioned to the previous injuries; rather, the claimant contends that the law does not support any apportionment under the facts of this case. The claimant argues that the ALJ erred in relying upo Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004), as authority for the apportionment between successive industrial injuries that contribute to temporary disability and need for medical treatment. Essentially, the claimant’s argument is that, because of the settlement of the prior industrial accidents, the effective result of the ALJ’s decision is to apportion liability for the claimant’s medical and TTD benefits between the respondent employer and the claimant rather than to apportion liability between two employers and their insurance companies.
We disagree with the claimant that apportionment in the circumstances of this case is prohibited by the ruling in Resources One, LLC v. Industrial Claim Appeals Office, ___ P.3d ___, (Colo.App. No. 05CA1240, June 15, 2006). In that case the Colorado Court of Appeals concluded that the employer was liable for all of the claimant’s medical and temporary disability benefits when the corresponding work-related injury caused at least a portion of the claimant’s disability. Before sustaining a work-related back injury, the claimant in Resources One had been diagnosed with degenerative disc disease, arthritic changes to his spine, and spinal stenosis. Although some medical testimony indicated that the claimant’s symptoms and surgical needs resulted from those preexisting spinal conditions, the ALJ declined to apportion liability between the industrial injury and the preexisting spinal condition. The court upheld the ALJ’s determination and concluded that the apportionment of liability between an employer and a claimant is not authorized by the Workers’ Compensation Act. The court also observed that apportionment had been allowed in other appellate decisions in the case of successive employers, but the court declined to construe those decisions to allow the apportionment of liability where the effect would be to deny the claimant a percentage of workers’ compensation benefits.
We have previously stated that Duncan does not authorize apportionment of medical benefits to a preexisting, non-industrial condition where that condition is aggravated by, accelerated by, or combines with an industrial injury to produce the need for treatment. Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005). The ALJ cited our decision i Weber, noting that the case before him involved successive industrial injuries where both industrial injuries contributed to the need for medical treatment and temporary disability. In our opinion the ALJ’s allowance of apportionment in the present case is consistent with our previous construction of the court of appeals’ opinion i Duncan.
The respondents also correctly point out that at least two court of appeals decisions have upheld the apportionment of liability for temporary disability and medical benefits between two employers and their insurers where the claimant suffered successive industrial accidents. See University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); State Compensation Insurance Fund v. Industrial Commission 698 P.2d 807 (Colo.App. 1985). In our opinion the apportionment ordered by the ALJ here is consistent wit University Park Care Center, and State Compensation Insurance Fund; See also STC Communications v. Industrial Claim Appeals Office, No. 05CA2340 (Colo.App. September 21, 2006) (not selected for publication).
Finally, we disagree with the claimant’s contention that because of the settlement of the claims with the first employer the ALJ has effectively apportioned the liability for medical and TTD benefits between the respondent employer and the claimant. We do not view the present fact situation as presenting a form of apportionment ruled impermissible in Resources One, LLC.
Here the claimant suffered two previous industrial accidents and elected to settle the claims on a full and final basis with the liable employer. The claimant in consideration of a lump sum payment waived the right to claim any additional benefits that he might be entitled to, such as further temporary disability benefits, permanent impairment, medical benefits and he waived the right to seek reopening of those claims in the future. Exhibit L at 199. In our opinion the settlements do not prevent a subsequent employer, which was not a party to the settlements, from seeking apportionment. This result is consistent with the approach taken by the Supreme Court of Colorado in personal injury actions. See Smith v. Zufelt, 880 P.2d 1178 (Colo. 1994). (where a settlement is reached with one or more parties in order to avoid exposure to liability at trial damages are reduced by the percentage of fault attributed to the settling defendants).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 8, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Curt Kriksciun
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Thomas Schrant
Michael Goffinet, 4916 W. Kentucky Ave., Denver, CO 80219 CoCat, Inc., Brad Schlepp, 5150 Havana Street, Unit F, Denver, CO 8029 Pinnacol Assurance, Harvey D. Flewelling, Esq., 7501 E. Lowry Blvd., Denver, CO 80230 The Frickey Law Firm, Adam McClure, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant) Ruegsegger, Simons, Smith Stern, LLC, Lisa Simons, Esq., 1625 Broadway Avenue, Suite 2300, Denver, CO 80202 (For Respondents)