4-348-316 (1998). DORENE MARTIN.

• Case Date: July 10, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-348-316 (1998). DORENE MARTIN INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF DORENE MARTIN, Claimant, v. MONTROSE MEMORIAL HOSPITAL, Employer, and SUPPORT SERVICES, INC., Insurer, Respondents.W. C. No. 4-348-316 FINAL ORDER The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) insofar as it denied apportionment of the claimant's temporary total disability and medical benefits. The respondents argue that apportionment is proper under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), because the claimant suffers from an occupational disease partially caused by preexisting rheumatoid arthritis. Alternatively, the respondents assert that apportionment is proper on account of the claimant's prior back injury. We affirm. The ALJ found that the claimant's "work activities" caused a "compensable injury or occupational disease on or about July 23, 1997." Relying on the testimony of the claimant and the claimant's treating physician, Dr. Tice, the ALJ determined that this injury "substantially permanently aggravated" the claimant's preexisting back condition so as to temporarily disable the claimant and cause the need for medical treatment, including surgery. (Conclusions of Law 1, 2, 7). Concerning apportionment, the ALJ found the claimant sustained several prior back injuries, but returned to work after each injury. The last of these prior injuries occurred on September 13, 1996, when the claimant was employed by the respondent-employer. The ALJ also found that by November 20, 1996, the claimant was medically released to full duty. In his deposition, Dr. Tice opined that the claimant's duties in July 1997 and a gradual worsening of condition caused by the September 1996 injury combined to aggravate the claimant's "underlying condition." However, Dr. Tice also testified that the July 1997 aggravation was the "proximate cause" of the claimant coming to see him in July 1997. (Tice depo. p. 16). Under these circumstances, the ALJ concluded that the issue of "apportionment" is "premature." The ALJ reached this conclusion because the claimant is not at maximum medical improvement from the July 1997 aggravation, and § 8-42-104(2), C.R.S. 1997, does not permit apportionment of any benefits except permanent disability benefits. I. On review...