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Colorado Court of Appeals Opinions || June 15, 2006

Colorado Court of Appeals -- June 15, 2006
No. 05CA1240. Resources One, LLC v. Industrial Claim Appeals Office.

Industrial Claim Appeals Office of the State of Colorado WC No. 4-589-175

Resources One, LLC, d/b/a Terra Firma, and Pinnacol Assurance,



Industrial Claim Appeals Office of the State of Colorado and Tim A. Fera,



Division V
Opinion by: JUDGE RUSSEL
Webb and Hawthorne, JJ., concur

Announced: June 15, 2006

Michael J. Steiner, Brandee DeFalco Galvin, Denver, Colorado, for Petitioners No Appearance for Respondent Industrial Claim Appeals Office

Bisset Law Firm, Jennifer E. Bisset, Denver, Colorado, for Respondent Tim A. Fera

Resources One, LLC, doing business as Terra Firma, and its insurer, Pinnacol Assurance (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (panel). We affirm.

I. Background

In 2003, claimant, Tim A. Fera, suffered a back injury while working for Terra Firma. Before the injury, claimant had been diagnosed with degenerative disc disease, arthritic changes of the spine, and spinal stenosis.

In 2004, claimant’s treating physician found that claimant had reached maximum medical improvement. Claimant objected and requested a division-sponsored independent medical examination (DIME). The DIME physician determined that claimant was not at maximum medical improvement and recommended back surgery.

Employer contested the DIME physician’s determination at a hearing before an administrative law judge (ALJ). Employer’s medical expert testified that claimant’s symptoms and need for surgery were attributable to claimant’s preexisting spinal condition. Nevertheless, the ALJ upheld the DIME physician’s determination and ordered employer to pay claimant’s medical and temporary disability benefits.

Employer sought further review before the panel. It argued that the ALJ had failed to apportion liability between the industrial injury and claimant’s preexisting spinal condition. The panel affirmed the ALJ, ruling that employer was not entitled to apportionment as a matter of law.

II. Discussion

Employer concedes that claimant’s need for medical and temporary disability benefits was caused, at least in part, by the work-related injury. It therefore concedes liability for at least a portion of claimant’s benefits. Employer contends, however, that it is liable only for the portion of medical and temporary disability benefits that is attributable to claimant’s work-related injury and not for the portion attributable to claimant’s preexisting spinal condition. We conclude that employer is liable for all of claimant’s medical and temporary disability benefits.

In the absence of a statute that provides for apportionment of workers’ compensation liability, an employer is generally liable for the entire disability that results from a compensable accident. Colo. Fuel & Iron Corp. v. Indus. Comm’n, 151 Colo. 18, 26, 379 P.2d 153, 157 (1962). This general principle --known as the "full-responsibility rule"--applies to both permanent and temporary disability benefits. See 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 90.01, at 90-3 (2005) ("The full-responsibility rule applies to temporary total disability, even in a state which permits apportionment of permanent disability.").

There are three main types of apportionment: (1) between employers, where disability results from successive injuries or exposures; (2) between an employer and a Second or Subsequent Injury Fund; and (3) between an employer and the claimant, when a prior injury or condition contributes to the final disabling result. Larson’s, supra, § 90.02, at 90-3. Unlike the first two types, the third type of apportionment may result in a reduction of the claimant’s benefits. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152, 1157 n.6 (Colo. 2000). Perhaps for this reason, the "great majority" of workers’ compensation schemes do not provide for the third type of apportionment. See Larson’s, supra, § 90.03, at 90-5.

Here, employer contends that the general assembly has provided for the third type of apportionment in cases involving medical and temporary disability benefits. It argues that this right of apportionment is embodied in two statutory provisions:

1. Section 8-41-301(1)(c), C.R.S. 2005:

The right to the compensation provided for in articles 40 to 47 of this title, in lieu of any other liability to any person for any personal injury or death resulting therefrom, shall obtain in all cases where the following conditions occur: ...

(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment and is not intentionally self-inflicted.

2. Section 8-42-101(1)(a), C.R.S. 2005:

Every employer, regardless of said employer's method of insurance, shall furnish such medical, surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies, crutches, and apparatus as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury.

We cannot see that these statutes authorize any type of apportionment, let alone the type that employer seeks. The provisions merely state general conditions and obligations that are consistent with the full-responsibility rule. Because the third type of apportionment is both unusual and contrary to the remedial purposes of the workers’ compensation law, we would expect it to be authorized, if at all, only in unmistakable terms. See United Airlines, Inc. v. Indus. Claim Appeals Office, supra, 993 P.2d at 1161 (rejecting apportionment of permanent disability benefits between employer and claimant under § 8-42-104(2)(a), C.R.S. 2005, because "[a]n interpretation. . . that would provide claimants only a fraction of the benefits they historically have received under the [Workers’ Compensation] Act would be wholly antithetical to the remedial purposes of workers’ compensation law").

We acknowledge that divisions of this court have approved the apportionment of medical and temporary disability benefits. See Duncan v. Indus. Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004); Univ. Park Care Ctr. v. Indus. Claim Appeals Office, 43 P.3d 637 (Colo. App. 2001); State Comp. Ins. Fund v. Indus. Comm’n, 697 P.2d 807 (Colo. App. 1985). However, because these cases involved apportionment between successive employers, not the type of apportionment that employer seeks here, we conclude that they are inapposite. To the extent that Duncan v. Industrial Claim Appeals Office, supra, may be read to support employer’s argument, we would not follow it. See In re Estate of Becker, 32 P.3d 557 (Colo. App. 2000), aff’d sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002).

The order is affirmed.


These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.

Colorado Court of Appeals Opinions || June 15, 2006