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Loza v. State Farm Mutual Automobile Insurance Co.11/13/1997
nd in the course of the employee's employment." Section 8-41-301, C.R.S. 1997 (emphasis added). Workers' compensation law also provides defined benefits without regard to fault.
While relying upon analogies to workers' compensation law in other legal arenas is fraught with peril, we find guidance in the rationale of Askew v. Industrial Claims Appeals Office, 927 P.2d 1333 (Colo. 1996).
In Askew, the claimant had a pre-existing, non-symptomatic, degenerative back condition and then suffered a low back injury while lifting in the course of his employment. The workers' compensation carrier sought to apportion the work-related injury against the pre-existing condition under a statute which specifically permitted allocation against a previous disability, and provided a method for making that allocation. Our supreme court held that it was inappropriate to apportion disability because any apportionment would of necessity be arbitrary, since there was no assurance that the pre-existing condition would ever have become symptomatic absent the accident, and there was no prior course of treatment, symptoms, or limitations upon which to predicate an apportionment. See also Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo. App. 1997).
The speculative or arbitrary nature of the apportionment in this case is evident in the deposition testimony of the IME dentist. The IME dentist did not apportion based on the relative cost of treatment or severity of symptoms before and after the accident, as neither had occurred before the accident. Nor did that dentist apportion on the chances that a patient with insured's bruxism would ultimately suffer from TMD absent the accident, as he had no opinion as to whether the insured would have ultimately so suffered. Rather, the IME dentist apportioned based on the chance that a bruxism-free individual would not have suffered TMD as a result of this accident based on the severity of the impact. He offered no statistical data, however, to support this allocation and in fact indicated that no such data was available.
State Farm further argues that the granting of the motion for partial summary judgment foreclosed it from presenting evidence and argument that there was no actual causal relationship between the accident and the TMD. In support of this argument, State Farm relies on the undisputed fact that the TMD did not manifest itself until over five months after the accident and then only when the insured was chewing. State Farm, however, did not rely on or assert any of these reasons in its letter denying benefits or at any time prior to the litigation. See Colard v. American Family Mutual Insurance Co., 709 P.2d 11 (Colo. App. 1985). In addition, this position is fundamentally inconsistent with the opinion of State Farm's IME dentist upon whom it placed sole reliance, both in initially apportioning benefits and at trial.
Under these circumstances, we hold that an automobile insurance carrier cannot apportion PIP benefits for an insured's injury arising out of the operation or use of a motor vehicle simply because insured has a pre-existing preDisposition to suffer the same injury. Therefore, the granting of the partial summary judgment was proper.
II.
State Farm next contends that the trial court erred in submitting to the jury the following jury instruction:
In determining the amount of plaintiff's reasonable and necessary medical expenses arising out of the use or operation of a motor vehicle, State Farm may not refuse to pay any such expenses because of any physical frailties of the plaintiff that may have made her more susceptible to injury , disability or impairment.
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