Monday, February 11, 2008
Update on Apportionment Case
Back on July 27, 2007 I reported on a case where the claimant's rating of permanent impairment was apportioned (reduced) because of a prior work injury. The doctor performing a Division Independent Medical Examination did in fact reduce the rating because of a prior work injury which he also rated in his calculations. The Court of Appeals decided that the apportionment was proper and the claimant sought to appeal it to the Colorado Supreme Court. Why? Apportionment means less compensation is due the claimant on the last injury. Today the court rejected the appeal by denying certiorari to look at it more thoroughly. The Supreme Court does not have to review every case brought before it. It can decide it is not reviewable. That is what the court did in this case. The decision by the Court of Appeals stands as the law. I must admit that the lower court did make it clear that the doctor considered the pre-existing condition as "active" when the last injury occurred. So the case does mean that apportionment is proper if the old impairment was still "active" when someone is hurt again. The only real surprise in the case was that the older impairment was never rated , there were no restrictions and perhaps no ongoing symptoms. Still the DIME doctor has to use his own independent judgement. What I conclude from this is to really get the evidence lined up if you do not like apportionment. It is then up to the hearing judge to weigh the evidence.