Has the State Established New Weight-Loss Program for Workers?
Emphasizing that within the Colorado workers’ compensation scheme, the employer does not necessarily take the employee as it finds him (or her)—at least when it comes to occupational disease and repetitive trauma claims—and that co-morbid factors such as obesity may require apportioning some percentage of permanent disability to the employee, a Colorado appellate court affirmed an order by the state’s Industrial Claim Appeals Office (“Panel”) that required the employer to pay no more than one-third of any medical benefits and other compensation due to the employee, since only one-third of the injured worker’s bilateral knee osteoarthritis was due to work-related factors [Hutchison v. Industrial Claim Appeals Office, 2017 COA 79, 2017 Colo. App. LEXIS 696 (June 1, 2017)]. That the job required the employee to spend half his work time over a 25-year period on his knees on concrete floors was not the controlling factor, indicated the Court. Multiple causal factors were at play, including perhaps, the employee’s genetic predisposition. With the decision, Colorado also joined California in allowing apportionment—at least in some cases—not only based upon comorbidity factors, but also on a worker’s genetic makeup.
Beginning in 1990, claimant worked for the employer almost continuously as a trailer mechanic. According to claimant’s unrebutted testimony, the job required that he spend about half the work day on his knees. Early in 2012, claimant experienced right knee pain. It worsened and in October 2014, claimant reported the matter to the employer. An orthopedic specialist performed an IME and concluded that claimant had fairly diffuse osteoarthritis in many parts of his body, that claimant was overweight, and that there were independent predictors of osteoarthritis in the knee. The doctor opined that claimant’s work likely aggravated claimant’s arthritic knees, but suggested that claimant’s employment was not the cause of his arthritis.
Claimant’s specialist countered that while claimant’s weight, family history and idiopathic knee osteoarthritis were certainly independent risk factors, claimant’s work tasks had substantially contributed to and worsened claimant’s bilateral knee osteoarthritis and other conditions. The physician added that he believed claimant’s work was the proximate cause for his need for total knee replacement at that point in time.
The ALJ adopted the IME physician’s recommendation, attributing one-third of the cause of claimant’s bilateral knee osteoarthritis to work-related factors, and ordered employer to pay one-third of the medical benefits and any other compensation awarded. The Panel affirmed and claimant appealed.
Earlier Colorado Decisions Allow Apportionment in Occupational Disease Claims
The Colorado appellate court noted that in Anderson v. Brinkhoff, 859 P.2d 819, 825 (Colo. 1993), the state supreme court had approved language in an earlier lower court opinion [Masdin v. Gardner-Denver-Cooper Indus., Inc., 689 P.2d 714, 717 (Colo. App. 1984)] recognizing that occupational diseases may have both work-related and non-work-related causes, and that an employer may, in some instances, only be liable for a portion of a claimant’s occupational disease.
Colorado Apportionment Legislation
After Anderson, the Colorado legislature amended the state’s workers’ compensation law to prohibit apportionment in certain circumstances: “An employee’s temporary total disability, temporary partial disability, or medical benefits shall not be reduced based on a previous injury” [Colo. Rev. Stat. § 8–42–104(3); emphasis added].
Issue in the Instant Case: Had Claimant Suffered a “Previous Injury?”
The Colorado appellate court noted that the core issue in the case was whether claimant had suffered such a “previous injury.” If he had, then § 8–42–104(3) would prohibit a reduction or apportionment of his benefits. The appellate court agreed, however, with the Panel that because the claimant’s knee condition was one ongoing disease with many causes, both work-and non-work-related, there was no separate “previous injury” as anticipated by § 8–42–104(3).
What About Apportionment Based on Genetic Factors?
The Court acknowledged the claimant’s argument that Anderson prohibited an ALJ from making an apportionment decision based upon a claimant’s genetic information. According to the court, however, Anderson did not expressly prohibit apportionment of a genetic condition. The Court continued that claimant had cited to no authority that expressly precluded apportioning a claimant’s pre-existing genetic condition or natural proclivities. The Court noted that other appellate divisions had in fact upheld the very type of apportionment that claimant had challenged [see, e.g., Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004)]. The court, therefore, said there was no error in the ALJ’s apportionment of two-thirds of claimant’s condition to “independent factors,” including his weight, family history, and pre-existing osteoarthritis.
Employer Does Not Take Employee as it Finds Him or Her
The Court also discounted the claimant’s argument that the employer was required to “take him as if finds him.” The Court said this was a tort concept that did not “perfectly translate to workers’ compensation.” Within the tort arena, the negligent defendant “is liable for the resulting harm even though the harm is increased by the particular plaintiff’s condition at the time of the negligent conduct” [citing Prosser and Keaton on the Law of Torts, § 43, at 291 (5th ed. 1984]. According to the Court, the workers’ compensation scheme, however, did not incorporate the notion of fault or negligence. Employers are liable for work-related injuries to their employees regardless of fault.
Commentary: Did the Colorado Court Consider Fault After All?
The Court repeated the oft-used line that fault is not a concept that should be considered within the workers’ compensation world. The Court’s position begs the following question: Isn’t apportioning two-thirds of the disability to the claimant because he’s overweight just the sort of assignment of fault that the Court desires to eschew?
Brave New World: Apportionment Based Upon Genetics
Readers may recall a recent California decision, City of Jackson v. Workers’ Comp. Appeals Bd. (Rice), 11 Cal. App. 5th 109, 82 Cal. Comp. Cases 437 (April 26, 2017), in which the court saw no relevant distinction between apportionment for a preexisting disease that is congenital and degenerative, and apportionment for a preexisting degenerative disease caused by heredity or genetics. Colorado seems to be following the same path toward division of the claim into segments “caused by the workplace” and others that are “caused by personal factors.” While the huge majority of states continue to prohibit apportionment to the injured worker in most instances [see Larson’s Workers’ Compensation Law, § 90.03], other states have periodically reviewed their stance on comorbidity and pre-existing factors.
Segregating the claim based on comorbidity factors was one of several state practices criticized last year in U.S. Department of Labor’s report on the adequacy of state workers’ compensation programs (for an overview of the report, click here). It is, of course, one thing to blame the worker for overeating. It’s another to blame his or her ancestors for their contribution to the gene pool. Those of us who wince when we read in Exodus that in some instances the sins of the parents are visited upon the children and grandchildren, “as well as the third and the fourth generation” [Exodus 34: 7b, Common English Bible] can wince as well at the “Brave New World,” in which causation can—at least in California and Colorado—be neatly divided into work-related and non-work-related causes.