Apportionment and Standardized Forms Discussed at Seminar

Wednesday, October 22, 2008 | 0

By Richard E. Falcone

There was another gathering of numerous attorneys in the workers comp field on Oct. 17 in Denver. The entire day was devoted to updates and issues or current interest to all of us in this area.

As nearly always, these seminars are well attended and packed with information. Recent decided cases are reviewed. We are provided with a heads up on coming changes. For example, it's been proposed there be standardized forms for settlement agreements. That is likely coming.

Also there have been significant changes in the apportionment area. That is where reductions in permanent benefits may occur when you have had prior injuries or diseases. The legislature tightened up in this area to try limit such apportionments. I suspect some litigation will continue in this area since most law changes are subject to interpretation by the courts. At the seminar there was a lively debate on how to analyze this new law but it may well take a few years to fully define how to apply it. However the law generally will help claimants resist apportionment in many cases.

As a claimants lawyer I shall assume there is to be no apportionment of permanent total or permanent partial benefits unless it fits into one of these exceptions which are rather technical:

1. Permanent total disability claims where the last injury is an occupational disease and there is a dual non-industrial component to the total disability that is not genetic. In that case it remains a question of fact for a hearing Judge to decide and vocational/medical evidence will almost always be needed. An example here is a breathing problem from both saw dust and smoking that results in total disability.

2. Permanent partial apportionment may occur if you've had a previous rating and award/settlement of a workers comp case involving the same body part. Example, you had a low back rating and award at a specific disc level which is re-injured at a later job.

3. Permanent partial apportionment may also occur for a prior non-work related impairment to the same body part provided it was identified, treated and remains independently disabling. This will not be easy for insurers to prove but will be a case by case issue.

My view is that the word "disability" is not the same as impairment. In those cases where the claimant returned to work and remained fully functional I simply do not see a basis to apportion.

Richard E. Falcone is workers' compensation and Social Security claimants' attorney based in Colorado Springs. This column was reprinted with his permission from his blog on Colorado workers' compensation issues, http://coloradoworkcomp.blogspot.com/