Opinion
W.C. No. 4-242-938
April 9, 1999.
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied its request for apportionment of permanent total disability benefits. We affirm.
The claimant sustained three compensable back injuries while employed by the respondent, K-Mart Corporation. The injuries incurred in 1985, 1991, and 1994. It is now undisputed that the claimant is permanently and totally disabled by the combined effect of the injuries.
This claim was previously before us. In an order dated May 8, 1998, we remanded the matter to the ALJ for entry of an order concerning apportionment of permanent total disability benefits. Specifically, we held that the mere fact the claimant was able to return to employment following the 1985 and 1991 injuries, and was able to earn higher wages after each injury, did not preclude a finding that the injuries contributed to the permanent total disability.
In accordance with our directions the ALJ entered a new order on December 14, 1998. Crediting the testimony of the claimant's vocational expert, the ALJ found that the 1985 and 1991 injuries contributed 10 percent to the claimant's permanent total disability. Nevertheless, the ALJ held that apportionment of the permanent total disability benefits would be improper considering the Court of Appeals decision in Bowland v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1740, August 20, 1998). Consequently, the ALJ ordered the respondent to pay all of the claimant's permanent total disability benefits.
On review, the respondent contends that the decision in Bowland is inconsistent with the decision in Waddell v. Industrial Claim Appeals Office, 964 P.2d 552 (Colo.App. 1998). Respondent also notes that the Supreme Court granted certiorari in Waddell, and argues that the Supreme Court could overrule or modify Bowland. We conclude that Bowland is the governing precedent, and that there is no inherent inconsistency between Bowland and Waddell.
In Waddell v. Industrial Claim Appeals Office, supra, the claimant sustained a 1992 industrial injury. The claimant had also suffered prior industrial and nonindustrial injuries. The claimant was rendered permanently and totally disabled by the combined effect of all the injuries, and it was determined that the 1992 industrial injury contributed 30 percent to the permanent total disability. The court held that the Subsequent Injury Fund (SIF) was not liable for any of the permanent total disability benefits because of the contribution of nonindustrial disabilities. Further, the court concluded that the apportionment statute found at § 8-42-104(2), C.R.S. 1998, vitiates the "full responsibility rule," and the respondents were obligated to pay only 30 percent of the claimant's permanent total disability benefits.
In Bowland v. Industrial Claim Appeals Office, supra, the claimant sustained successive industrial injuries, and the combined effect of the injuries rendered the claimant permanently and totally disabled. However, the Court of Appeals set aside our decision upholding the ALJ's order apportioning the permanent total disability benefits under § 8-42-104(2). The court noted that in 1992 the General Assembly enacted § 8-46-104, C.R.S. 1998, which eliminated SIF liability for injuries on or after July 1, 1993. Simultaneously, the General Assembly enacted § 8-46-105(1), C.R.S. 1998, the "premium statute." The Bowland court determined that the premium statute creates a "full responsibility rule" in cases where permanent total disability is the product of successive industrial injuries. However, apportionment under § 8-42-104(2) "remains applicable under current law in those cases in which successive work injuries do not result in permanent total disability and those in which total disability is not entirely attributable to successive work injuries." Slip op. at 9.
Here, the last industrial injury which contributed to the claimant's permanent and total disability occurred subsequent to the closure of the SIF and after the July 1, 1993, effective date of § 8-46-105(1). Because the claimant was rendered permanently and totally disabled by the combined effect of successive industrial injuries, the ALJ correctly concluded that Bowland is dispositive and apportionment is unavailable. Because Bowland is a published case directly on point, we are bound by it. C.A.R. 35 (f); Trujillo v. Public Service Co., W.C. No. 4-297-289 (October 9, 1998).
This result is not inherently inconsistent with Waddell because that case involved permanent total disability partially caused by nonindustrial factors. As stated in Bowland, apportionment remains available in cases of permanent total disability partially caused by nonindustrial factors. We also note that the Waddell case is no longer pending before the Supreme Court, and the Court of Appeals issued its mandate affirming our order on February 8, 1999.
In light of this result we need not consider the respondent's argument that the ALJ erroneously found that only 10 percent of the claimant's permanent total disability was caused by the 1985 and 1991 injuries.
IT IS THEREFORE ORDERED that the ALJ's order dated December 14, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed April 9, 1999 the following parties:
Larry M. Fresquez, 4404 W. 6th St., Greeley, CO 80634
Frank Zamora, K-Mart Corp., 2400 W. 9th St., Greeley, CO 80631
K-Mart Corp., c/o McMillan Claim Service, 2785 N. Speer Blvd., Denver, CO 80211
Bruce McCrea, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondent)
Britton Morrell, Esq., 710 11th Ave., Ste. L-10, Greeley, CO 80631 (For Claimant)
Miguel Martinez, Esq., 1102 5th St., Ste. A, Greeley, CO 80631 (For Claimant)
BY AP