At the request of the IC, the DWC commissioner may order a reduction in IIBs and SIBs in a proportion equal to the proportion of a documented impairment that resulted from prior compensable injuries. TLC Section 408.084(a). In determining whether to allow a reduction, and the amount of the reduction, the commissioner shall consider the cumulative impact of the compensable injuries on the IE’s overall impairment. TLC Section 408.084(b). At least two compensable injuries must exist for the IC to request contribution.

Burden of Proof

When contribution is sought due to a prior compensable injury, the IC has the burden of proof to establish that it is entitled to, and the amount of, contribution. The IC does not need to prove an exact percentage, but there must be sufficient evidence of a contribution percentage that is reasonably supportable. APD 961211.

A determination of contribution must be based on medical evidence, but the existence of medical evidence supporting contribution does not require an award of contribution. APD 941170. Likewise, the mere existence of a prior compensable injury is insufficient to support entitlement to contribution. APD 031237.

Cumulative Impact

To be entitled to contribution, the IC must provide an analysis showing the cumulative impact of the prior compensable injury and the latest compensable injury and how the injuries work together and the extent to which the prior compensable injury contributes to the current impairment. APD 941338. An IC’s request for contribution cannot be denied solely because the cumulative impact analysis does not convert the impairment rating from the earliest compensable injury to a rating under the same version of the AMA Guides under which the latest compensable injury was rated. APD 030864-s.

In assessing cumulative impact, the starting point is to look at the recent impairment followed by looking back to the earliest impairment rather than starting with the earliest impairment and looking forward to events that have not yet happened. APD 960589.

An IC that does not provide an adequate cumulative impact analysis fails to meet its burden of proof and is not entitled to contribution. Entitlement to contribution is a question of fact for the ALJ to resolve. APD 042339.

Where IIBs and SIBs have been awarded and it is determined that an IC is entitled to contribution based on a prior compensable injury, SIBs and IIBs must be reduced in the same proportion. Ins. Co. of Pa. v. Moore, 43 S.W.3d 77 (Tex. App.—Fort Worth 2001, no pet.).

Effective Date

Contribution does not apply to income benefit payments which accrue prior to the filing of a request for contribution. APD 002211-s.

Recoupment for Contribution

It was undisputed that an overpayment had been made by the IC due to a DWC contribution award. An IC may only recoup overpayments on IIBs and SIBs that accrue on or after the date the IC files the request for contribution, which is eventually approved, with DWC. APD 050523-s.

Rate of Recoupment for Contribution

In determining whether to approve an increase or decrease in the recoupment rate, DWC must consider the cause of the overpayment and minimize the financial hardship that may reasonably be created for the IE. 28 TAC Section 126.16(d).

Contribution and Impairment Rating (IR)

The Appeals Panel has held it to be error for an ALJ to adopt an IR assigned by a doctor who applied an analysis of contribution from a prior compensable injury in assigning an IR for the IE when contribution is not an issue before the ALJ or actually litigated. APD 150378 and APD 111840.