Colo. Rev. Stat. » Title 8
Colorado Revised Statutes

Colo. Rev. Stat. § 8-42-104 (2026)

Effect of previous injury or compensation

✓ current as of July 2026
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(1) The fact that an employee has suffered a previous disability or impairment or received compensation therefor shall not preclude compensation for a later injury or for death, but, in determining compensation benefits payable for the later injury or death, the employee's average weekly earnings at the time of the later injury shall be used in determining the compensation payable to the employee or such employee's dependents. Notwithstanding any other provision of articles 40 to 47 of this title, no claimant may receive concurrent permanent total disability awards from injuries occurring in this state or any other state.

(2) (Deleted by amendment, L. 2008, p. 1676, § 2, effective July 1, 2008.)

(3) An employee's temporary total disability, temporary partial disability, or medical benefits shall not be reduced based on apportionment under any circumstances. This subsection

(3) supercedes the Colorado court of appeals' decisions in Hutchison v. Industrial Claim Appeals Office of Colorado, 405 P.3d 458 (Colo. App. 2017) and Duncan v. Industrial Claim Appeals Office of Colorado, 107 P.3d 999 (Colo. App. 2004).

(4) An employee's recovery of permanent total disability shall not be reduced when the disability is the result of a work-related injury or a work-related injury combined with genetic, congenital, or similar conditions; body habitus; or family history; except that this subsection (4) does not apply to 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).

(5) In cases of permanent medical impairment, the employee's award or settlement shall not be reduced except:

(a) When an employee has suffered more than one permanent medical impairment to the same body part and has received an award or settlement under the "Workers' Compensation Act of Colorado" or a similar act from another state. The permanent medical impairment rating applicable to the previous injury to the same body part, established by award or settlement, shall be deducted from the permanent medical impairment rating for the subsequent injury to the same body part.

(b) When an employee has a nonwork-related previous permanent medical impairment to the same body part that has been identified, treated, and, at the time of the subsequent compensable injury, is independently disabling. The percentage of the nonwork-related permanent medical impairment existing at the time of the subsequent injury to the same body part shall be deducted from the permanent medical impairment rating for the subsequent compensable injury.

(6) Nothing in this section shall be construed to preclude employers or insurers from seeking contribution or reimbursement, as permitted by law, from other employers or insurers for benefits paid to or for an injured employee as long as the employee's benefits are not reduced or otherwise affected by such contribution or reimbursement.

(7) For the purposes of subsections (4) and (5) of this section, the employer or, if the employer is insured, the employer's insurer has the burden of proof, by a preponderance of the evidence, at any hearing regarding apportionment that may result in a reduction of benefits to an employee under this section.

Source: L. 90: Entire article R&RE, p. 490, § 1, effective July 1. L. 91: (1) amended, p. 1304, § 12, effective July 1. L. 99: Entire section amended, p. 410, § 1, effective July 1. L. 2008: (2) amended and (3) to (6) added, p. 1676, § 2, effective July 1. L. 2021: (3), (4), and IP(5) amended and (7) added, (HB 21-1050), ch. 384, p. 2570, § 3, effective September 7.

Editor's note: This section is similar to former § 8-47-102 as it existed prior to 1990.

Notes of Decisions
Cited in 26 cases (1 in the last 5 years), 1992–2021 · leading case: Martinez v. Indus. Claim Appeals Off., 176 P.3d 826 (Colo. Ct. App. 2007).
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Martinez v. Indus. Claim Appeals Off., 176 P.3d 826 (Colo. Ct. App. 2007). · cites it 10× “1101-3, which provides: Pursuant to § 8-42-104(2), C.R.S., a Level II accredited physician shall apportion the pre-existing permanent medical impairment from a work-related injury or occupational disease using the AMA Guides, 3rd Edition, Revised, where medical records or other…”
United Airlines, Inc. v. Indus. Claim Appeals Off., 993 P.2d 1152 (Colo. 2000). · cites it 20× “For the sake of clarity, we refer to section 8-42-104, 3 C.R.S. (1998), as “the previous disability statute,” section 8-46-101, 3 C.”
Avalanche Indus., Inc. v. Clark, 198 P.3d 589 (Colo. 2009). · cites it 22× “at 852-53 ; see § 8-42-104(1), C.R.S. (2008), the court of appeals reversed, directing the ALJ to use the discretionary *595 exception and award the claimant an AWW based on a higher salary earned prior to the ultimate injury, Coates, 856 P.”
Waddell v. Indus. Claim Appeals Off., 964 P.2d 552 (Colo. Ct. App. 1998). · cites it 51× “What was then a majority of states expressly directed the apportionment of disabilities.”
Askew v. Indus. Claim Appeals Off., 927 P.2d 1333 (Colo. 1996). · cites it 13× “), and particularly § 8-42-104, may the medical impairment rating for a claimant seeking workers’ compensation benefits for a permanent partial disability be apportioned between the effects of an industrial injury and a pre-existing degenerative physical condition? Because we…”
Bowland v. Indus. Claim Appeals Off., 984 P.2d 660 (Colo. Ct. App. 1999). · cites it 18× “The ALJ ordered employer to pay 91% of claimant’s benefits but, relying on the apportionment statute, § 8-42-104(2), C.R.S.1997, refused to hold it liable for the balance.”
Avalanche Indus., Inc. v. Indus. Claim Appeals Off., 166 P.3d 147 (Colo. Ct. App. 2007). · cites it 7× “Before July 1, 1991, the immediate predecessor to current § 8-42-104(1), C.R.S.2006, stated: The fact that an employee has suffered a previous disability or received compensation therefor shall not preclude compensation for a later injury or for death, but in determining…”
Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). · cites it 4× “(1986) (now codified with changes at section 8-42-104(1), 3B C.R.S. (1992 Supp.”
Holly Nursing Care Ctr. v. Indus. Claim Appeals Off. of the State, 992 P.2d 701 (Colo. Ct. App. 1999). · cites it 11× “Larson, Workers’ Compensation Law, § 59.32(h) at 10-564.43 (1999). Therefore, we agree with the Panel that § 8-42-104(2) does not apply to the apportionment of temporary disability.”
Baldwin Constr. Inc. v. Indus. Claim Appeals Off. of the State, 937 P.2d 895 (Colo. Ct. App. 1997). · cites it 6× “1995), the ALJ reasoned that apportionment for preexisting disabilities under § 8-42-104(2), C.R.S. (1996 Cum.Supp.) is applicable only for industrial injuries.”
Colorado Mental Health Inst. v. Austill, 940 P.2d 1125 (Colo. Ct. App. 1997). · cites it 9× “CCIA argued, however, that claimant’s pre-existing, non-industrial pulmonary condition contributed 50% to claimant’s permanent total disability.”
Lambert & Sons, Inc. v. Indus. Claim Appeals Off., 984 P.2d 656 (Colo. Ct. App. 1998). · cites it 4× “Section 8-42-104(2), C.R.S.1997, provides in pertinent part: In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the…”
Show all 26 citing cases →
— Colo. Rev. Stat. § 8-42-104(1) — 10 cases
Avalanche Indus., Inc. v. Clark, 198 P.3d 589 (Colo. 2009). “at 852-53 ; see § 8-42-104(1), C.R.S. (2008), the court of appeals reversed, directing the ALJ to use the discretionary *595 exception and award the claimant an AWW based on a higher salary earned prior to the ultimate injury, Coates, 856 P.”
Avalanche Indus., Inc. v. Indus. Claim Appeals Off., 166 P.3d 147 (Colo. Ct. App. 2007). “Before July 1, 1991, the immediate predecessor to current § 8-42-104(1), C.R.S.2006, stated: The fact that an employee has suffered a previous disability or received compensation therefor shall not preclude compensation for a later injury or for death, but in determining…”
Coates, Reid & Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). “(1986) (now codified with changes at section 8-42-104(1), 3B C.R.S. (1992 Supp.”
Waddell v. Indus. Claim Appeals Off., 964 P.2d 552 (Colo. Ct. App. 1998). “What was then a majority of states expressly directed the apportionment of disabilities.”
United Airlines, Inc. v. Indus. Claim Appeals Off., 993 P.2d 1152 (Colo. 2000). “For the sake of clarity, we refer to section 8-42-104, 3 C.R.S. (1998), as “the previous disability statute,” section 8-46-101, 3 C.”
— Colo. Rev. Stat. § 8-42-104(2) — 15 cases
Waddell v. Indus. Claim Appeals Off., 964 P.2d 552 (Colo. Ct. App. 1998). “What was then a majority of states expressly directed the apportionment of disabilities.”
Askew v. Indus. Claim Appeals Off., 927 P.2d 1333 (Colo. 1996). “), and particularly § 8-42-104, may the medical impairment rating for a claimant seeking workers’ compensation benefits for a permanent partial disability be apportioned between the effects of an industrial injury and a pre-existing degenerative physical condition? Because we…”
United Airlines, Inc. v. Indus. Claim Appeals Off., 993 P.2d 1152 (Colo. 2000). “For the sake of clarity, we refer to section 8-42-104, 3 C.R.S. (1998), as “the previous disability statute,” section 8-46-101, 3 C.”
Bowland v. Indus. Claim Appeals Off., 984 P.2d 660 (Colo. Ct. App. 1999). “The ALJ ordered employer to pay 91% of claimant’s benefits but, relying on the apportionment statute, § 8-42-104(2), C.R.S.1997, refused to hold it liable for the balance.”
Martinez v. Indus. Claim Appeals Off., 176 P.3d 826 (Colo. Ct. App. 2007). “1101-3, which provides: Pursuant to § 8-42-104(2), C.R.S., a Level II accredited physician shall apportion the pre-existing permanent medical impairment from a work-related injury or occupational disease using the AMA Guides, 3rd Edition, Revised, where medical records or other…”
— Colo. Rev. Stat. § 8-42-104(2)(a) — 3 cases
Martinez v. Indus. Claim Appeals Off., 176 P.3d 826 (Colo. Ct. App. 2007). “1101-3, which provides: Pursuant to § 8-42-104(2), C.R.S., a Level II accredited physician shall apportion the pre-existing permanent medical impairment from a work-related injury or occupational disease using the AMA Guides, 3rd Edition, Revised, where medical records or other…”
United Airlines, Inc. v. Indus. Claim Appeals Off., 993 P.2d 1152 (Colo. 2000). “For the sake of clarity, we refer to section 8-42-104, 3 C.R.S. (1998), as “the previous disability statute,” section 8-46-101, 3 C.”
Resources One, LLC v. Indus. Claim Appeals Off., 148 P.3d 287 (Colo. Ct. App. 2006).
— Colo. Rev. Stat. § 8-42-104(2)(b) — 1 case
Martinez v. Indus. Claim Appeals Off., 176 P.3d 826 (Colo. Ct. App. 2007). “1101-3, which provides: Pursuant to § 8-42-104(2), C.R.S., a Level II accredited physician shall apportion the pre-existing permanent medical impairment from a work-related injury or occupational disease using the AMA Guides, 3rd Edition, Revised, where medical records or other…”
— Colo. Rev. Stat. § 8-42-104(2)(c) — 2 cases
Holly Nursing Care Ctr. v. Indus. Claim Appeals Off. of the State, 992 P.2d 701 (Colo. Ct. App. 1999). “Larson, Workers’ Compensation Law, § 59.32(h) at 10-564.43 (1999). Therefore, we agree with the Panel that § 8-42-104(2) does not apply to the apportionment of temporary disability.”
Pub. Serv. Co. of Colorado v. Indus. Claim Appeals Off., 40 P.3d 68 (Colo. Ct. App. 2001).
— Colo. Rev. Stat. § 8-42-104(4) — 1 case
Williams v. Indus. Claim Appeals Off., 932 P.2d 869 (Colo. Ct. App. 1997).
— Colo. Rev. Stat. § 8-42-104(5) — 1 case
v. Icao, 2021 COA 83 (Colo. Ct. App. 2021).
— Colo. Rev. Stat. § 8-42-104(5)(a) — 1 case
v. Icao, 2021 COA 83 (Colo. Ct. App. 2021).
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