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An ALJ Cannot Order Reimbursement Between Carriers on a Closed Claim

Posted by: Clay Thornton, Esq.

In Tennapel v. Bowie Resources, W.C. Nos. 4-779-040 & 4-844-545 (ICAO, April 5, 2013), the claimant suffered an industrial injury with the first employer, and that claim became closed pursuant to final admission. Subsequently, the claimant suffered a similar injury with a subsequent employer. At this point, an IME opined that claimant’s current condition and need for treatment was 40% attributable to the new injury and 60% attributable to the injury with the first employer.

The ALJ explicitly credited the IME’s opinion as to the percentages of causation. However, the ALJ determined that claimant suffered a new injury with the subsequent employer and denied claimant’s petition to reopen the claim with the first employer. Despite denying the petition to reopen the claim with the first employer, the ALJ went on to order the first employer to reimburse the subsequent employer for 60% of claimant’s temporary disability and medical costs pursuant to C.R.S. 8-42-104(6). The ICAO set aside this order and remanded.

Primarily, C.R.S. 8-42-104(6) only permits apportionment “as permitted by law.” An order requiring reimbursement in a closed claim is not “permitted by law” unless that claim is first reopened. Accordingly, the ALJ erred in ordering the first employer to reimburse the subsequent employer because the ALJ simultaneously denied the petition to reopen the claim with the first employer.

However, the ICAO was unable to reconcile the ALJ’s denial of the petition to reopen the first claim with the ALJ’s explicit adoption of the IME’s opinion that 60% of the claimant’s present need for medical treatment was attributable to the first claim. For this reason, ICAO remanded the case back to the ALJ to resolve this conflict.

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