COLORADO COURT OF APPEALS 2017COA79
Court of Appeals No. 16CA1375
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-972-492
Richard Hutchison,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado; Pine Country, Inc.,
d/b/a Pine Country Truck & Auto; and Pinnacol Assurance,
Respondents.
ORDER AFFIRMED
Division II
Opinion by JUDGE DAILEY
Plank*, J., concurs
Berger, J., specially concurs
Announced June 1, 2017
Withers Seidman Rice & Mueller, P.C., David B. Mueller, Grand Junction,
Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Harvey Flewelling, Grant Butterfield, Denver, Colorado, for Respondents Pine
Country, Inc. and Pinnacol Assurance
William J. Macdonald, Aurora, Colorado, for Amicus Curiae Workers’
Compensation Education Association
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this workers’ compensation action, claimant, Richard
Hutchison, challenges an order apportioning his benefits award. An
administrative law judge (ALJ) determined that only one-third of
claimant’s injury was work-related. The Industrial Claim Appeals
Office (Panel) affirmed the ALJ’s decision. We conclude that
claimant’s benefits award was properly apportioned and therefore
affirm the Panel’s decision.
I. Background
¶2 Claimant works as a trailer mechanic for Pine Country, Inc.
(employer). With the exception of a nine-month period in 1997,
claimant has worked for employer since 1990. Claimant explained
that his work required that “[y]ou get on your knees, pull the tires
off or get on your knees to get underneath the trailer or crawl
around on the trailer putting screws in the deck.” He estimated
that he spends “half the time” on his knees while at work.
¶3 In 2012, claimant began experiencing right knee pain. He
sought treatment from his personal physician, who referred him to
an orthopedic specialist, Dr. Mitch Copeland, for further evaluation.
Dr. Copeland diagnosed claimant with moderate to severe
osteoarthritis of the right knee.
1
¶4 In August 2012, claimant told Dr. Copeland that he also had
pain in his left knee that was “intermittent and worsening” and
occurred “without any known injury.” Claimant reported that this
knee pain “began years ago, [but] worse[ned] in last 2 weeks.” Dr.
Copeland diagnosed severe osteoarthritis in claimant’s left knee, as
well.
¶5 Dr. Copeland injected Synvisc in both of claimant’s knees, but
claimant did not experience much pain relief. Dr. Copeland also
prescribed unloader braces for claimant’s knees.
¶6 In October 2014, when his symptoms worsened, claimant
reported his knee pain to employer as a work-related occupational
disease. Employer contested the claim on relatedness grounds. It
bolstered its position with an independent medical examination
conducted by Dr. J. Tashof Bernton. Dr. Bernton observed that
claimant had “fairly diffuse osteoarthritis in many parts of his body.
He is also overweight. These are independent predictors of
osteoarthritis in the knee.” He opined that claimant’s work likely
aggravated claimant’s arthritic knees, but suggested that claimant’s
employment was not the cause of his arthritis:
2
While it is clearly evident to and beyond a
reasonable degree of medical probability that,
given his independent risk factors for knee
osteoarthritis, the patient would have had
osteoarthritis of the knees if he were not in his
current job, the occupational history repeated
lifting and squatting over years is sufficient to
meet the standard in the Colorado Workers’
Compensation Treatment Guidelines for
aggravation of this condition on a work-related
basis.
He clarified that “to and beyond a reasonable degree of medical
probability, the patient would have osteoarthritis of the knees
whether or not he had his current job duties, although . . . those
job duties aggravated the osteoarthritis.”
¶7 Claimant retained an independent physician to examine him.
That doctor, Dr. John Hughes, recognized that claimant’s “weight,
family history and idiopathic knee osteoarthritis are certainly
independent risk factors for development of end stage osteoarthritis
of the knees in a 55-year-old male.” He went on to note that “[a]s a
result of this consideration, I cannot state within a reasonable
degree of medical probability that knee pain is a direct and
proximate result of work-related occupational stresses and strains
due to [claimant’s] work as a mechanic for approximately 25 years.”
Nevertheless, Dr. Hughes stated that he did “believe that work tasks
3
have substantially contributed to and worsened [claimant’s]
bilateral knee osteoarthritis and other conditions. I believe his work
is the proximate cause for his need for total knee arthroplasty
[replacement] at this point in time.”
¶8 With conflicting reports, claimant applied for a hearing on the
issue of compensability. At the hearing, Dr. Bernton reiterated his
opinion that “beyond a reasonable degree of medical probability, the
osteoarthritis would be there and the need for treatment with or
without the occupational activity.” He also testified that claimant’s
work “was not a necessary precondition” to his knee condition. As
he did in his report, Dr. Bernton acknowledged that claimant’s work
likely aggravated his knee condition, and he apportioned
“approximately one-third” of claimant’s condition “to the
occupational exacerbation.”
¶9 The ALJ found Dr. Bernton’s opinions credible and persuasive.
The ALJ found that Dr. Bernton and Dr. Hughes “agree[d] that
[c]laimant’s bilateral knee pain was not directly and proximately
caused by [c]laimant’s work, but that the cause is multi-factorial in
nature.” The ALJ credited Dr. Hughes’ and Dr. Bernton’s opinions
that “independent risk factors” contributed to claimant’s knee
4
problems, specifically identifying claimant’s “weight, family history
and idiopathic knee osteoarthritis.” The ALJ was also persuaded
that claimant’s osteoarthritis “would more likely than not, have
developed . . . regardless of whether or not claimant had a job or
any occupational exposure.” The ALJ therefore adopted Dr.
Bernton’s apportionment recommendation, attributing one-third of
the cause of claimant’s bilateral knee osteoarthritis to work-related
factors, and ordered employer to pay for “33.33 percent of all
medical benefits and any compensation awarded in this claim as a
result of [c]laimant’s work activities.”
¶ 10 On review, the Panel held that the ALJ had properly
apportioned claimant’s benefits, and that the decision apportioning
the benefits was supported by substantial evidence in the record.
Claimant now appeals.
II. Apportionment Under Section 8-42-104, C.R.S. 2016
¶ 11 Claimant contends that his knee condition arose from
repetitive kneeling and crawling necessitated by his work as a
trailer mechanic, rather than from a specific incident. He therefore
sought coverage for an occupational disease, which is defined as:
5
“Occupational disease” means a disease which
results directly from the employment or the
conditions under which work was performed,
which can be seen to have followed as a
natural incident of the work and as a result of
the exposure occasioned by the nature of the
employment, and which can be fairly traced to
the employment as a proximate cause and
which does not come from a hazard to which
the worker would have been equally exposed
outside of the employment.
§ 8-40-201(14), C.R.S. 2016. “An occupational disease is present if
employment conditions act upon an employee’s pre-existing
weakness or hypersensitivity so as to produce a disabling condition
which would not have existed absent the employment conditions.”
Masdin v. Gardner-Denver-Cooper Indus., Inc., 689 P.2d 714, 717
(Colo. App. 1984). Masdin recognized that occupational diseases
may have both work-related and non-work-related causes, and that
an employer may therefore be liable for only a portion of a
claimant’s occupational disease. Id. Masdin apportionment was
adopted by the supreme court in Anderson v. Brinkhoff, 859 P.2d
819, 825 (Colo. 1993) (“We agree with the court of appeals in
Masdin[.]”).1
1 We note that the Workers’ Compensation Education Association
(WCEA) has submitted an amicus brief in this case primarily
6
¶ 12 After Anderson, the legislature amended the apportionment
statute to prohibit apportionment in certain circumstances. The
current version of the statute — which was in effect when claimant
filed his claim for coverage of his knee condition — provides: “An
employee’s temporary total disability, temporary partial disability,
or medical benefits shall not be reduced based on a previous
injury.” § 8-42-104(3).2
¶ 13 The question we must answer, then, is whether claimant
suffered a “previous injury” as that term is used in subsection (3).
If so, then the statute would prohibit a reduction or apportionment
arguing that Anderson misinterpreted the definition of
“occupational disease.” However, because WCEA raises arguments
that are not addressed by either party, we will not consider WCEA’s
contentions. See Beaver Creek Prop. Owners Ass’n v. Bachelor
Gulch Metro. Dist., 271 P.3d 578, 585 (Colo. App. 2011) (refusing to
consider argument raised by amicus curiae that was not asserted
by parties); SZL, Inc. v. Indus. Claim Appeals Office, 254 P.3d 1180,
1189 (Colo. App. 2011) (refusing to consider “extensive additional
issues” raised by amicus curiae “because only the issues raised by
the parties are properly before us”).
2 Section 8-42-104(4), C.R.S. 2016, expressly permits “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).” However, that subsection
applies exclusively to claims for “permanent total disability.”
Because claimant was seeking medical benefits only, subsection (4)
is not at issue here.
7
of his medical benefits award “based on a previous injury.” The
Panel concluded, however, that claimant had not suffered a
previous injury and that section 8-42-104(3)’s prohibition therefore
did not apply.
¶ 14 Claimant contends that the Panel erred in applying Anderson
apportionment to his claim. He argues that the express terms of
section 8-42-104(3) prohibit apportionment here. In addition, he
challenges the ALJ’s application of Anderson apportionment to his
claim, arguing that Anderson is distinguishable and apportionment
under it is consequently unavailable. Specifically, he notes that
unlike the claimant in Anderson, his knee condition was not
“independently disabling before the industrial aggravation.” We
conclude that apportionment was proper in this case.
A. The Statute Does Not Prohibit All Apportionment
¶ 15 Whether section 8-42-104(3) prohibits apportionment is a
matter of statutory interpretation, which we review de novo. See
Ray v. Indus. Claim Appeals Office, 124 P.3d 891, 893 (Colo. App.
2005), aff’d, 145 P.3d 661 (Colo. 2006).
¶ 16 Section 8-42-104 does not define “previous injury.” The
general definitions of the Workers’ Compensation Act of Colorado
8
(Act) broadly define “injury” to “include[] disability or death
resulting from accident or occupational disease.” § 8-40-201(2).
This definition has remained unchanged since the Act’s
reenactment in 1990. “Previous” is not defined in the Act, but its
dictionary definition is “going before in time or order,” “prior to,
before,” Webster’s Ninth New Collegiate Dictionary 933 (1989), or
“going or existing before in time,” Webster’s Third New International
Dictionary 1798 (2002).
¶ 17 “When we interpret a provision of the . . . Act, we give it its
‘plain and ordinary meaning’ if its language is clear.” Keel v. Indus.
Claim Appeals Office, 2016 COA 8, ¶ 30 (quoting Davison v. Indus.
Claim Appeals Office, 84 P.3d 1023, 1029 (Colo. 2004)). Injury is
defined by the Act and “previous” has one clear dictionary
definition. The phrase “previous injury” is consequently
unambiguous: it means an accident causing injury or an
occupational disease that occurred earlier in time to the claimant’s
claim.
¶ 18 In reaching its decision, the Panel implicitly applied the plain,
ordinary meaning of “previous injury.” The Panel noted that the
occupational disease at issue here was “characterized as the
9
aggravation of osteoarthritis.” In other words, 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 section 8-42-104(3); it was
instead one “injury” with multiple causes and not a “previous
injury” because there was no onset of the occupational disease that
occurred “before in time.” The Panel therefore concluded that
section 8-42-104(3)’s prohibition against apportionment for a
“previous injury” did not apply.
¶ 19 We discern no error in the Panel’s application of the definition
of “previous injury.” Cf. Support, Inc. v. Indus. Claim Appeals Office,
968 P.2d 174, 175 (Colo. App. 1998) (The Panel’s interpretation will
be set aside only “if it is inconsistent with the clear language of the
statute or with the legislative intent.”). Accordingly, neither the ALJ
nor the Panel erred by concluding that section 8-42-104(3) did not
prohibit apportionment in this case.
B. ALJ and Panel Did Not Misapply Anderson
¶ 20 Claimant next contends that apportioning his injury was
improper because his knee condition was not disabling until his
work aggravated it. He argues that his situation is distinguishable
10
from Anderson because, in Anderson, the claimant’s condition
manifested itself before work aggravated it. Specifically, he argues
that unlike the claimant in Anderson, his occupational disease “was
never independently disabling absent the job stressors.”
¶ 21 In Anderson, a carpenter who was exposed to sawdust on
jobsites for approximately fifteen years sought workers’
compensation coverage for his disabling emphysema alleging that
the sawdust exposure caused his disease. Evidence showed,
though, that the carpenter had “a hereditary condition which
causes progressive emphysema and associated heart problems.”
Anderson, 859 P.2d at 820. The carpenter also smoked cigarettes,
“which further contributed to the progression of his disease.” Id.
An ALJ concluded that the disabled carpenter’s “smoking and
occupational dust exposures were co-equal aggravating factors in
the acceleration of [his] severe emphysema.” Id. at 821 (alteration
in original). The supreme court upheld the ALJ’s apportionment.
Citing to Masdin, it held that “where there is no evidence that
occupational exposure to a hazard is a necessary precondition to
development of the disease, the claimant suffers from an
11
occupational disease only to the extent that the occupational
exposure contributed to the disability.” Anderson, 859 P.2d at 825.
¶ 22 Contrary to claimant’s underlying presumption, Anderson does
not require prior symptomology or limit apportionment to those
injuries or illnesses that manifest themselves before a work-related
exposure. True, the claimant in Anderson appears to have
experienced symptoms before he began working for the employer
and therefore was not asymptomatic. Id. at 820. But, Anderson’s
reliance on and adoption of the holding in Masdin confirms that the
timing of a claimant’s symptomology is not dispositive. Unlike the
claimant in Anderson, the Masdin claimant “experienced a sudden
episode of acute respiratory distress” while at work. Masdin, 689
P.2d at 716. Nothing in that opinion suggests that the worker in
Masdin experienced any symptoms of his disease before the
“sudden” onset at work. Thus, the factual distinction between
Anderson and claimant that he identifies does not render Anderson
inapposite. We therefore reject claimant’s assertion that
apportionment here was improper because his injury arose “in
concert with and in tandem with other ‘risk factors.’”
12
¶ 23 We also reject claimant’s assertion that Anderson prohibits
ALJs from assigning any value to “genetic predisposition.”
Claimant argues that Anderson attributed fifty percent of the
carpenter’s emphysema to non-work-related smoking and fifty
percent to his work-related sawdust exposure, but it did not
apportion any of the claimant’s illness to his genetic predisposition.
Anderson, 859 P.2d at 821. He points to this as effectively a
prohibition against assigning any apportionment to a predisposition
or latent genetic make-up, arguing that the ALJ’s apportionment of
one-third of the cause of his knee condition to work-related
aggravation and two-thirds to independent risk factors, including
claimant’s “weight, family history and idiopathic knee
osteoarthritis,” was improper and violated Anderson.
¶ 24 Essentially, claimant is arguing that employer was required to
“take him as it finds him.” But, this is a tort concept that does not
perfectly translate to workers’ compensation. See Schafer v.
Hoffman, 831 P.2d 897, 900 (Colo. 1992) (“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
13
291 (5th ed. 1984))); see also Restatement (Second) of Torts § 461
cmt. a (Am. Law Inst. 1965) (“A negligent actor must bear the risk
that his liability will be increased by reason of the actual physical
condition of the other toward whom his act is negligent.”). Workers’
compensation, however, does not incorporate the notion of fault or
negligence. Employers are liable for work-related injuries to their
employees regardless of fault. See § 8-41-301(1), C.R.S. 2016.
¶ 25 Certainly, the ALJ in Anderson did not apportion any of the
claimant’s emphysema to his hereditary condition — he only
apportioned claimant’s smoking and work conditions as causes —
but Anderson does not expressly prohibit apportionment of a
genetic condition. And, even though Anderson did not apportion
any of the cause of claimant’s emphysema to his hereditary
condition, other cases have reduced the employer’s liability for an
injury based on a pre-existing condition. Most notably, in Duncan
v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo. App. 2004), a
division of this court rejected a claimant’s contention that
“apportionment of liability attributable to the natural aging process”
was impermissible. Id. at 1001. The court instead held that “the
fact that aging is a factor does not preclude apportionment.” Id.
14
¶ 26 Claimant has cited to no authority that expressly precludes
apportioning a claimant’s pre-existing genetic condition or natural
proclivities. And, as shown by Duncan, other divisions have in fact
upheld the very type of apportionment claimant challenges. We
therefore perceive 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.
III. Substantial Evidence Supports ALJ’s Findings
¶ 27 Having concluded that neither the ALJ nor the Panel violated
the Act or Anderson by apportioning claimant’s condition, we turn
to claimant’s contention that substantial evidence does not support
the ALJ’s finding apportioning only one-third of the liability for his
injury to employer. He argues that this apportionment was based
on speculation and was “violative of the apportionment principles.”
We disagree.
¶ 28 In general, we will uphold an ALJ’s apportionment decision if
it is supported by substantial evidence in the record. In reviewing
Duncan and Anderson, it rapidly becomes clear that common to
both opinions is the upholding of the ALJ’s apportionment decision
because each decision was supported by substantial evidence in the
15
record. Anderson, 859 P.2d at 825 (“Because this percentage is
supported by the evidence, Anderson is entitled to an award based
upon it.”); Duncan, 107 P.3d at 1002 (upholding ALJ’s
apportionment of seventy-five percent of claimant’s knee condition
to pre-existing degenerative joint disease even though claimant’s
knee had been asymptomatic before the work aggravation “[i]n light
of the medical opinion that claimant would need a right knee
replacement”); see also Res. One, LLC v. Indus. Claim Appeals Office,
148 P.3d 287, 287-88 (Colo. App. 2006) (upholding an ALJ’s refusal
to apportion the claimant’s pre-existing spinal condition and
rejecting the employer’s assertion that it was entitled to
apportionment as a matter of law).
¶ 29 “Substantial evidence is that quantum of probative evidence
which a rational fact-finder would accept as adequate to support a
conclusion, without regard to the existence of conflicting evidence.”
Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.
App. 1995). “When an ALJ’s findings of fact are supported by
substantial evidence, we are bound by them.” Paint Connection Plus
v. Indus. Claim Appeals Office, 240 P.3d 429, 431 (Colo. App. 2010);
see § 8-43-308, C.R.S. 2016.
16
¶ 30 “We must also defer to the ALJ’s credibility determinations
and resolution of conflicts in the evidence, including the medical
evidence.” City of Loveland Police Dep’t v. Indus. Claim Appeals
Office, 141 P.3d 943, 950 (Colo. App. 2006). The weight to be given
to the experts’ testimony in this case “is a matter exclusively within
the discretion of the [ALJ] as fact-finder.” Rockwell Int’l v. Turnbull,
802 P.2d 1182, 1183 (Colo. App. 1990). “Further, we may not
interfere with the ALJ’s credibility determinations except in the
extreme circumstance where the evidence credited is so
overwhelmingly rebutted by hard, certain evidence that the ALJ
would err as a matter of law in crediting it.” Arenas v. Indus. Claim
Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000).
¶ 31 Here, Dr. Bernton testified and opined that “approximately
one-third” of claimant’s knee condition was caused by work-related
factors. He also unequivocally stated that it was his opinion
“beyond a reasonable degree of medical probability, [that] the
osteoarthritis would be there and the need for treatment with or
without the occupational activity.” And Dr. Hughes, claimant’s
retained physician, corroborated Dr. Bernton’s opinion that
independent risk factors, including claimant’s “weight, family
17
history and idiopathic knee osteoarthritis” contributed to his
developing “end stage osteoarthritis of the knees.” The ALJ found
Dr. Bernton’s opinion credible and persuasive and noted that Drs.
Bernton’s and Hughes’ opinions overlapped with respect to the
causes of claimant’s disease. Because these credibility
determinations are not “overwhelmingly rebutted by hard, certain
evidence” to the contrary, we may not set them aside. See id.
¶ 32 Claimant nonetheless argues that the apportionment assigned
by the ALJ was “speculative” and therefore “violative of the
apportionment principles.” As outlined above, however, Dr.
Bernton unambiguously stated in both his report and his testimony
that “approximately one-third of [claimant’s] condition can be
reasonably apportioned to the occupational exacerbation of his
underlying condition and the other two-thirds of his condition can
be apportioned to the other two risk factors which are present
(osteoarthritis in multiple other sites and increased body mass
index).” In our view, Dr. Bernton’s statements were concrete, not
speculative.
¶ 33 In contrast, in each of the cases claimant cites to support his
assertion that “speculative” apportionment cannot be upheld, the
18
physicians admitted that their opinions were ambiguous, equivocal,
assumptive, or based on mere guesswork. In the absence of
concrete supporting statements, the physicians’ opinions were
deemed too speculative to support apportionment. See Parrish v.
Indus. Comm’n, 151 Colo. 538, 541-42, 379 P.2d 384, 385-86
(1963) (“[I]t was not error for the commission to refuse to allocate
any portion of claimant’s 5% disability to any alleged prior back
condition or injury” where there was “no evidence of what that
percentage should be” and physician testified that “he was unable
to tell how much of this injury was due to this accident and how
much to any previous back injury or condition.”); Empire
Oldsmobile, Inc. v. McLain, 151 Colo. 510, 513, 516, 379 P.2d 402,
403, 405 (1963) (The physician’s statement that an impairment
rating was an “assumption” and that “[i]t would be very difficult . . .
to give any accurate . . . rating” could not support the disability
impairment rating where the rating was made “on an arbitrary basis
of assumptions or guesses.”); Mathews v. Indus. Comm’n, 144 Colo.
146, 149, 355 P.2d 300, 301 (1960) (physician’s testimony that his
apportionment recommendation was “somewhat arbitrary” showed
his recommendation was “[m]ere conjecture” insufficient to support
19
apportionment). We therefore reject claimant’s argument that Dr.
Bernton’s opinions were “too speculative” to support
apportionment.
¶ 34 Rather, we conclude that substantial evidence supports the
ALJ’s apportionment findings and hold that the Panel did not err
when it declined to set aside the ALJ’s order on this basis. See
Anderson, 859 P.2d at 825; Paint Connection Plus, 240 P.3d at 431;
Duncan, 107 P.3d at 1002.
IV. Conclusion
¶ 35 The order is affirmed.
JUDGE PLANK concurs.
JUDGE BERGER specially concurs.
20
JUDGE BERGER, specially concurring.
¶ 36 I join the court’s opinion. I write separately only to address
my concerns regarding apportionment of liability attributable to a
claimant’s genetic predisposition to a disease when the genetic
predisposition has not actually resulted in the disease.1
¶ 37 The majority correctly observes that apportionment is
permissible under some circumstances. See, e.g., § 8-42-104(3),
C.R.S. 2016.2 An employer is statutorily responsible only for
injuries and disabilities caused by work injury or industrial
exposure. Anderson v. Brinkhoff, 859 P.2d 819, 823 (Colo. 1993).
In Anderson, the Colorado Supreme Court held that because
occupational diseases may have both work-related and non-work-
1 According to the National Cancer Institute, a genetic
predisposition is an “[i]ncreased likelihood or chance of developing a
particular disease due to the presence of one or more gene
mutations and/or a family history that indicates an increased risk
of the disease.” NCI Dictionary of Genetics Terms, Nat’l Cancer Inst.,
https://perma.cc/MH99-WYKX; see also What Does it Mean to
Have a Genetic Predisposition to a Disease?, U.S. Nat’l Library of
Med., https://perma.cc/73BH-2XYZ.
2 Some states have rejected apportionment entirely in workers’
compensation cases. See Sullins v. United Parcel Serv., Inc., 108
A.3d 1110, 1122 (Conn. 2015); Stephens v. Winn-Dixie Stores, Inc.,
201 So. 2d 731, 736-37 (Fla. 1967); Newberg v. Armour Food Co.,
834 S.W.2d 172, 175 (Ky. 1992); Bond v. Rose Ribbon & Carbon
Mfg. Co., 200 A.2d 322, 323-24 (N.J. 1964).
21
related causes, an employer may be liable for only a portion of a
claimant’s occupational disease.
¶ 38 I agree that apportionment was permissible under Colorado
law in this case. Not only did the evidence support the
administrative law judge’s findings that the claimant’s osteoarthritis
in his knees was caused in part by the non-work-related factors of
his weight and family history, at least one doctor identified pre-
existing osteoarthritis in other parts of the claimant’s body.
¶ 39 But apportionment of liability attributable to a person’s mere
likelihood of developing a disease, without more, is impermissible.
Genetic predispositions are measured by statistical probabilities; for
example, a woman or man who carries abnormalities in the BRCA1
or BRCA2 genes has a much greater chance of developing breast
and ovarian cancer than a woman or man who does not carry those
abnormalities.3 BRCA1 and BRCA2: Cancer Risk and Genetic
Testing, Nat’l Cancer Inst., https://perma.cc/U3W6-DH49; What
3 I am not speaking here of genetic disorders that invariably cause
a disease or condition. I am speaking only of genetic
predispositions, which, while they increase the statistical likelihood
of disease, do not invariably lead to disease.
22
Does it Mean to Have a Genetic Predisposition to a Disease?, U.S.
Nat’l Library of Med., https://perma.cc/73BH-2XYZ.
¶ 40 Genetic predispositions are not, however, certainties. If a
person has a ninety percent statistical likelihood of developing a
particular disease (an unusually high predisposition), that also
means that any given person with that genetic makeup may be one
of the lucky ten percent who never develops the disease. Without
evidence that the person’s predisposition to development of the
disease has manifested itself in the disease, apportionment is
inappropriate.
¶ 41 To permit apportionment under these circumstances would be
fatally inconsistent with the workers’ compensation principle that
an employer takes the employee as it finds him or her. Cowin & Co.
v. Medina, 860 P.2d 535 (Colo. App. 1992); see § 8-42-104(3) (“An
employee’s temporary total disability, temporary partial disability,
or medical benefits shall not be reduced based on a previous
injury.”); see also Stephens v. Winn-Dixie Stores, Inc., 201 So. 2d
731, 737 (Fla. 1967) (“[T]he theory of apportionment is diametrically
opposite to the injunction that ‘the employer takes the employee as
he finds him.’”). Instead of taking the employee as the employer
23
finds her, it would do precisely the opposite by burdening an
employee who may never develop the disease for which she has a
predisposition and penalizing her for the existence of that family
history or her genes.
¶ 42 The collateral ramifications of such apportionments are also
troubling. If apportionments based solely on genetic
predispositions were permissible, what would stop an employer
from seeking and obtaining a blood draw from a claimant and
having the blood tested for genetic disease markers? Most
employees would find this degree of intrusion into their most
personal affairs shocking. And, if the genetic test results are even
remotely related to the claimed work-related injury or disease, the
employer or its insurer almost certainly would seek apportionment.
¶ 43 Nothing in the Workers’ Compensation Act of Colorado, nor
any Colorado Supreme Court case, authorizes apportionment based
on a genetic predisposition that has not resulted in the disease. In
my view, nothing in the court’s opinion should be read to authorize
such an apportionment.
24