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Colorado Mental Health Institute v. Austill6/26/1997
In this workers' compensation case, petitioners, Colorado Mental Health Institute and its insurer, the Colorado Compensation Insurance Authority (CCIA), seek review of a final order of the Industrial Claim Appeals Office (Panel) which determined that they were solely liable for the permanent total disability benefits awarded to Barbara J. Austill (claimant). We set aside the order and remand for further proceedings.
Claimant had been employed full-time since 1981 as a medical transcriptionist when, in 1993, she developed carpal tunnel syndrome that prevented her from continuing in her employment. CCIA admitted that claimant suffers from an occupational disease, that she reached maximum medical improvement on June 28, 1994, and that she is permanently and totally disabled.
Claimant also suffers from, and had previously been diagnosed and treated for, bronchitis, obesity, pulmonary edema, and possible sleep apnea, was required to use oxygen at rest, and was limited to sedentary work. Because the carpal tunnel condition rendered her unable to return to sedentary work, she, at age 57, retired.
At the hearing before the Administrative Law Judge (ALJ), the parties stipulated that claimant suffered from an occupational disease, that she was permanently and totally disabled, and that her occupational disease contributed significantly to her disability. No testimony was taken.
CCIA argued, however, that claimant's pre-existing, non-industrial pulmonary condition contributed 50% to claimant's permanent total disability. On that basis, it requested that the ALJ apportion liability in accordance with § 8-42-104(2), C.R.S. (1996 Cum. Supp.).
Relying on Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995), the ALJ rejected the CCIA's request for apportionment concluding that, as a matter of law, under the "full responsibility rule" the employer bears full responsibility for the permanent total disability benefits that were awarded to claimant, minus any offset for disability retirement. On review, the Panel affirmed.
After the case was at issue and scheduled for oral argument in this court, our supreme court announced Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Oral argument was continued to permit supplemental briefing to consider the impact of Askew. Following the filing of supplemental briefs but prior to oral argument, a division of this court announced Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 1997 Colo. App. LEXIS 60, P.2d (Colo. App. No. 96CA1362, March 6, 1997).
I.
CCIA contends that the ALJ and the Panel erred in determining that claimant was entitled to full benefits under the "full responsibility rule." In light of Askew and Baldwin, we agree.
Section 8-42-104(2) states as follows:
In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury. In such cases awards shall be based on said computed percentage. Such computation, when applicable, shall be made in the following types of awards under articles 40 to 47 of this title: Permanent total, permanent partial, including scheduled, working unit and lump sum; except that, in the event the provisions of section 8-46-101 [Subsequent Injury Fund] are applicable, such apportionment shall not be made. (emphasis added)
In Askew v. Industrial Claim Appeals Office, supra, the supreme court addressed the apportionment issue under § 8
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