W.C. No. 4-201-486Industrial Claim Appeals Office.
August 31, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) insofar as it denied their request for apportionment of permanent total disability benefits. The respondents argue the ALJ should have apportioned the permanent total disability benefits based on prior industrial injuries. We affirm.
The ALJ found the claimant sustained a compensable industrial injury to his right shoulder in February 1994. The claimant reached maximum medical improvement in September 1997. The ALJ found, and it is now not disputed, that the claimant is permanently and totally disabled.
The ALJ also found the claimant sustained prior industrial injuries to his low back and right wrist. The ALJ determined the claimant was able to return to work after both injuries without any restrictions or modifications of his job. However, in Conclusion of Law 1, the ALJ stated that “it is probable that these [prior industrial] injuries caused some disability.”
The ALJ held, pursuant to Bowland v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1740, August 20, 1998), cert. granted, May 24, 1999, that apportionment based on the prior industrial injuries “is not allowed by the statute.” The ALJ also found there was no credible evidence that the claimant’s non-industrial heart condition was disabling. Therefore, the ALJ concluded the respondents “failed to meet their burden of proof that they are entitled to apportionment for any prior industrial injuries or non-industrial conditions.”
On review, the respondents argue they presented expert vocational testimony demonstrating the claimant’s prior industrial injuries were disabling at the time of the 1994 industrial injury. Therefore, the respondents argue that they are entitled to apportionment of the permanent total disability benefits under §8-42-104(2), C.R.S. 1998. The respondents acknowledge the Bowland
court held that apportionment of permanent total disability is inappropriate where the pre-existing disability is caused by industrial injuries. However, the respondents argue Bowland was wrongly decided and they wish to preserve the issue pending resolution of the question by the Supreme Court.
Bowland v. Industrial Claim Appeals Office, supra, is a published decision of the Court of Appeals. Consequently, it is binding precedent with respect to the issue on appeal. C.A.R. 35(f). Thus, the ALJ correctly ruled the Act does not permit apportionment of the permanent total disability benefits based on the claimant’s pre-existing industrial disability, if any.
In light of this disposition we need not reach the question of whether the evidence in this case would support apportionment in the event Bowland is overruled by the Supreme Court. Further, we need not consider whether the ALJ’s findings of fact on the issue of apportionment are consistent with his conclusions of law on the issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 14, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed August 31, 1999 the following parties:
Earnest Montoya, 435 Pine, Del Norte, CO 81132
City of Del Norte, P.O. Box 714, Del Norte, CO 81132
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903
BY: A. Pendroy