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Bowland v. Industrial Claim Appeals Office8/20/1998
does not require us to assume the General Assembly intended to change in any way the legal effect of 8-42-104(2), as it had been construed at the time the General Assembly enacted 8-46-105(1). See City & County of Denver v. Industrial Commission, supra; cf. Subsequent Injury Fund v. Thompson, supra; Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986); State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo. App. 1985).
In affirming the ALJ in this case, the Panel separately found problematic the fact that the impairment-based premium adjustments provided in 8-46-105(1) do not necessarily bear a direct correlation to the apportionment of disability. It reasoned that 8-42-104(2) more directly addresses the problem of apportionment.
However, the General Assembly could have rationally concluded that such an impairment rating was an acceptable, though not perfect, basis for apportioning premiums to ameliorate the impact on the last employer of full responsibility. This is because its use would further the goal of decreasing litigation. See 8-40-102(1), C.R.S. 1997; Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994); see generally W. Macdonald, Apportionment of Permanent Total Disability and the Impact of the Premium Statute, CBA Workers' Compensation Newsletter 1 (Summer 1997). Hence, we do not view the mechanism for adjusting premiums contained in the current version of 8-46-105(1) as inconsistent with our statutory construction.
As a final note, we reject employer's contention that our interpretation of the interplay between 8-42-104(2) and 8-46-105(1) results in an improper double recovery to claimants. The argument is that, because claimant has already received permanent partial disability benefits for the earlier injuries, he should not be entitled to recover permanent total disability benefits based in part on those same injuries. However, the argument ignores that permanent partial and permanent total benefits compensate for different degrees of disability during different periods of time and, thus, are not considered duplicative. National Fruit Product v. Crespin, 952 P.2d 1207 (Colo. App. 1997); see also Kehm v. Continental Grain, 756 P.2d 381 (Colo. App. 1987).
In light of our statutory construction, it is unnecessary to consider claimant's other arguments.
The Panel's order is set aside. The cause is remanded for entry of an order requiring employer to pay claimant the balance owing on a full award of permanent total disability benefits from past partial payments, with interest as provided by statute, and from that date forward to continue paying claimant a full award of permanent total disability benefits.
JUDGE STERNBERG and JUDGE TURSI concur.
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