Apportioning Impairment Ratings

When a claimant sustains an injury, that person may receive an impairment rating which is applied to a specific part of the body or to the whole person. A claimant may sustain multiple injuries over the course of time, and therefore may receive multiple impairment ratings. When the same body part is impaired more than once, or there are multiple ratings applied to the whole person, the previous injury’s rating shall be deducted from the rating established for a subsequent injury. The resultant rating shall be considered when determining awards or settlements. In Browne v. City of Colorado Springs, the Industrial Claims Appeals Office (“Panel”) affirmed an Administrative Law Judge’s (“ALJ”) decision that Claimant’s whole person impairment rating of 26% was to be reduced by 6%, which was the whole person rating from a prior injury, per apportionment statute prior to deciding what benefits were available to Claimant under a statutory cap.

In Browne, Claimant suffered a work injury in October 2007, which resulted in a 6% whole person impairment rating. In 2009, Claimant was placed at MMI and had received benefits for that injury. In 2016, Claimant suffered a second injury and was assigned a 26% whole person impairment rating. In April 2019, Claimant was placed at MMI for that second injury. The employer filed a final admission of liability for this second injury, admitting to a 20% rating. The employer had subtracted the 6% rating caused by the original injury from the newly founded 26% whole person rating. Such subtraction restricted the amount of benefits available under a statutory cap, as ratings over 25% whole person have a higher statutory benefit cap than for ratings under 25% whole person. For that reason, Claimant appealed the apportionment of both ratings, asserting entitlement to damages available to claimants with higher than a 25% impairment rating.

The ALJ found that when determining what awards are available under statutory caps in conjunction with utilizing the apportionment statute, the apportionment math must be completed first. In other words, the ALJ was obligated to subtract the 6% rating from the original injury from the latter 26% rating before deciding what benefit cap Claimant would fall under. The Panel explained that applying the apportionment statute to determine the percentage of disability before applying the statutory cap is consistent with the Workers’ Compensation Rules of Procedure.

The Panel agreed with the ALJ’s conclusion that the apportionment statute must be applied first to calculate the claimant’s impairment rating. The Panel asserted that Claimant’s 26% rating was properly reduced by the initial 6% rating. Once that impairment rating is established, the Panel found that the ALJ was correct in deciding the applicable statutory cap for benefits. Therefore, the Panel affirmed the ALJ’s decision and application of the relevant statutes.

Browne v. City of Colorado Spring, No. 5-034-884-001 (ICAO, August 7, 2020)

Want to know more? Contact Brad Miller at bmiller@pollartmiller.com or 877-259-5693.

August 2020 Newsletter

2020-09-02T16:32:06-06:00