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Bowland v. Industrial Claim Appeals Office8/20/1998
Review of Order from the Industrial Claim Appeals Office of the State of Colorado
WC No. 4-002-781
ORDER SET ASIDE AND CAUSE REMANDED WITH DIRECTIONS
Division II
In this workers' compensation proceeding, Howard R. Bowland (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel). In that order, the Panel affirmed the decision by the Administrative Law Judge (ALJ) to apportion to claimant financial responsibility for part of his permanent total disability benefits, leaving him with less than a full award of benefits. We set the Panel's order aside.
Claimant worked as a baggage-handler for United Airlines, Inc. (employer). He sustained successive work-related injuries to his left hand and was later diagnosed with an occupational disease. His claims were consolidated and he received a 9% permanent partial disability rating.
Some time later, claimant suffered an industrial injury to his back. Since then, he has been unable to return to work.
It was undisputed that claimant is permanently and totally disabled as a result of the combined effect of his injuries. However, employer and the Subsequent Injury Fund (SIF) contested their respective responsibilities for payment of permanent total disability benefits.
After an evidentiary hearing, the ALJ apportioned 91% of claimant's permanent total disability to the back injury and 9% to the earlier injuries. The ALJ determined that, because the back injury occurred after the SIF had stopped accepting cases, claimant was precluded from recovering any portion of the award from it. The ALJ ordered employer to pay 91% of claimant's benefits but, relying on the apportionment statute, 8-42-104(2), C.R.S. 1997, refused to hold it liable for the balance. Hence, claimant was denied a full award of permanent total disability benefits.
The Panel affirmed the ALJ's order. It specifically rejected claimant's argument that, pursuant to recent amendments to the SIF statutes, including 8-46-105(1), C.R.S. 1997, last employers and their insurers are financially responsible for a full award of permanent total disability benefits in those cases in which funding had previously been available from the SIF. The Panel concluded that while some legislative history supported the argument, it could not assume the General Assembly intended implicitly to repeal 8-42-104(2), which requires that responsibility for benefits be apportioned.
On appeal, claimant argues the SIF amendments, including 8-46-105(1), have replaced SIF funding with a modified form of the "full responsibility" rule. The rule, which was in effect in Colorado before the creation of the SIF, provides that, if an employer hires an employee previously partially disabled by an industrial injury , the employer must pay the entire disability award if the employee suffers another industrial injury and is declared permanently and totally disabled as a result. Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990); Waddell v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo. App. No. 97CA0611, January 22, 1998). According to claimant, 8-46-105(1) ameliorates the financial impact on last employers and their insurers of full responsibility, while protecting the right claimants have always had to a full award of benefits for permanent total disability benefits resulting from successive work injuries.
In contrast, employer argues that, by not repealing 8-42-104(2) when the SIF statutory scheme was amended, the General Assembly chose not to return to the full responsibility rule, long ago abandoned. Hence, 8-42-104(2) still requires apportionment of permanent to
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