§ 8-42-104 — Effect of previous injury or compensation

Colorado § 8-42-104

• Jurisdiction: Colorado
• Title 08: Labor and
• Art.: Benefits

Text

(1) The fact that an
employee has suffered a previous disability or impairment or received
compensation therefor shall not preclude compensation for a later injury or for
death, but, in determining compensation benefits payable for the later injury or
death, the employee's average weekly earnings at the time of the later injury shall
be used in determining the compensation payable to the employee or such
employee's dependents. Notwithstanding any other provision of articles 40 to 47 of
this title, no claimant may receive concurrent permanent total disability awards
from injuries occurring in this state or any other state.

(2) (Deleted by amendment, L. 2008, p. 1676, � 2, effective July 1, 2008.)

(3) An employee's temporary total disability, temporary partial disability, or
medical benefits shall not be reduced based on apportionment under any
circumstances. This subsection (3) supercedes the Colorado court of appeals'
decisions in Hutchison v. Industrial Claim Appeals Office of Colorado , 405 P.3d 458
(Colo. App. 2017) and Duncan v. Industrial Claim Appeals Office of Colorado , 107 P.3d
999 (Colo. App. 2004).

(4) An employee's recovery of permanent total disability shall not be
reduced when the disability is the result of a work-related injury or a work-related
injury combined with genetic, congenital, or similar conditions; body habitus; or
family history; except that this subsection (4) does not apply to reductions in
recovery or apportionments allowed pursuant to the Colorado supreme court's
decision in the case denominated Anderson v. Brinkhoff , 859 P.2d 819 (Colo. 1993).

(5) In cases of permanent medical impairment, the employee's award or
settlement shall not be reduced except:

(a) When an employee has suffered more than one permanent medical
impairment to the same body part and has received an award or settlement under
the Workers' Compensation Act of Colorado or a similar act from another state.
The permanent medical impairment rating applicable to the previous injury to the
same body part, established by award or settlement, shall be deducted from the
permanent medical impairment rating for the subsequent injury to the same body
part.

(b) When an employee has a nonwork-related previous permanent medical
impairment to the same body part that has been identified, treated, and, at the time
of the subsequent compensable injury, is independently disabling. The percentage
of the nonwork-related permanent medical impairment existing at the time of the
subsequent injury to the same body part shall be deducted from the permanent
medical impairment rating for the subsequent compensable injury.

(6) Nothing in this section shall be construed to preclude employers or
insurers from seeking contribution or reimbursement, as permitted by law, from
other employers or insurers for benefits paid to or for an injured employee as long
as the employee's benefits are not reduced or otherwise affected by such
contribution or reimbursement.

(7) For the purposes of subsections (4) and (5) of this section, the employer
or, if the employer is insured, the employer's insurer has the burden of proof, by a
preponderance of the evidence, at any hearing regarding apportionment that may
result in a reduction of benefits to an employee under this section.

Legislative History

Source: L. 90: Entire article R&RE, p. 490, � 1, effective July 1. L. 91: (1) amended, p. 1304, � 12, effective July 1. L. 99: Entire section amended, p. 410, � 1, effective July 1. L. 2008: (2) amended and (3) to (6) added, p. 1676, � 2, effective July 1. L. 2021: (3), (4), and IP(5) amended and (7) added, (HB 21-1050), ch. 384, p. 2570, � 3, effective September 7.