Opinion
W.C. No. 3-115-554
January 14, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded permanent total disability benefits. The respondents contend that the ALJ erred in failing to apportion the claimant's permanent total disability in accordance with § 8-42-104(2), C.R.S. (1996 Cum. Supp.). We disagree, and therefore, affirm.
The ALJ found that the claimant is permanently and totally disabled as a result of the injuries he suffered to his knees and left elbow in June 1994 while working for the respondent-employer. Further, the ALJ determined that in "spite of pre-existing work and non-work related medical conditions, [the claimant] was working on a full time, full duty, full pay basis, performing heavy work as an underground coal miner," prior to the June 1994 injuries. Therefore, the ALJ determined that the claimant had no industrial disability prior to the June 1994 injuries, and concluded that the apportionment provisions of § 8-42-104(2) did not apply to this claim.
On review, the respondents contend that the ALJ erred as a matter of law and fact in concluding that § 8-42-104(2) is not applicable to this claim. In support, the respondents rely upon the undisputed evidence that the claimant suffered occupational hernias and industrial injuries to his knees, elbows and neck prior to June 1994. The respondents also cite the opinion of claimant's treating physician, Dr. Richards, that fifty percent of the claimant's permanent medical impairment is attributable to pre-existing occupational and non-occupational factors. We are not persuaded.
Section 8-42-104(2) provides for the apportionment of permanent total disability benefits where the claimant has a "previous disability" and sustains further disability from a subsequent industrial injury. Colorado Fuel Iron Corp., Rhodes, 166 Colo. 82, 441 P.2d 652 (1968); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995); Haislip v. HCC Foothills Care Center, Inc., W.C. Nos. 4-133-841 et. al., April 4, 1996. The "previous disability" must be in existence at the "time of the subsequent injury." Colorado Fuel Iron Corp., Rhodes, supra.
Contrary to the respondents' assertion, we do not believe that, for purposes of apportioning permanent total disability under § 8-42-104(2), the term "previous disability" refers to a pre-existing scheduled disability or pre-existing medical impairment. Section 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), which applies to this claim, defines permanent total disability as the inability to "earn any wages in the same or other employment." It follows that in the context of permanent total disability, a "previous disability" is a disability which impairs the claimant's ability to earn wages, not merely a "functional impairment" of the body. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996) [term "injury" as used in § 8-42-107(1), refers to part or parts of the body which are functionally impaired].
Furthermore, the respondents' reliance upon Askew v. Industrial Claim Appeals Office, ___ P.2d ___ (Sup.Ct. 95SC489, December 3, 1996), is misplaced. Askew involved a request to apportion permanent partial disability. Section 8-42-107(8), C.R.S. (1996 Cum. Supp.) provides that where the claimant has suffered permanent medical impairment to the whole person, permanent partial disability benefits shall be based upon a medical impairment rating. The statute also requires that all medical impairment ratings be made in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). See also Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Consequently, in Askew, the court relied upon the AMA Guides definition of "disability" in concluding that the claimant did not have a "previous disability" for purposes of apportioning permanent partial disability.
However, permanent total disability is not determined by the extent of the claimant's medical impairment. Rather, medical impairment is only one of a myriad of factors to be considered in determining whether the claimant is incapable of earning "any wages," and therefore, permanently and totally disabled under § 8-40-201(16.5)(a). Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Consequently, we are not persuaded that the AMA Guides definition of "disability" is dispositive of the term "previous disability" for purposes of apportioning permanent total disability under § 8-42-104(2).
Moreover, in the context of permanent total disability, the determination of whether the claimant has a "previous disability" is a factual determination for resolution by the ALJ. Therefore, we must uphold the ALJ's findings which are supported by substantial evidence. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985); General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985) (considering apportionment of permanent total disability under Subsequent Injury Fund statute). In applying the substantial evidence test, we are also obliged to defer to the ALJ's credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, there is substantial evidence in the record to support the ALJ's pertinent findings. Vocational expert Bob Van Iderstine opined that the claimant did not have any vocational disability as a result of the industrial injuries which occurred prior to June 1994. (Tr. p. 47). The ALJ found this opinion persuasive.
Further, the claimant admitted that he suffered prior elbow, knee, neck and hernia injuries, however, he denied any disability from these injuries. (Tr. pp. 6, 12-13, 39-40). The claimant also stated that he was working in a full-time, full-duty, full-pay position as an underground minor prior to the June 1994 injury. (Tr. p. 6). The respondent-insurer's adjuster agreed, and added that no permanent disability benefits were paid for the claimant's pre-June 1994 industrial injuries. (Tr. p 65).
The ALJ could, and did, infer from this evidence that the industrial injuries the claimant sustained prior to June 1994 did not impair the claimant's ability to earn wages as of June 1994. See Price v. Industrial Claim Appeals Office, (Colo.App. No. 94CA0555, February 9, 1995) (not selected for publication) (evidence that the claimant continued to work and was promoted following the first of two industrial injuries supports a finding that the second injury was the sole cause of the claimant's disability); Texas Instruments, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 93CA312, October 28, 1993) (not selected for publication) (evidence that the claimant successfully returned to employment involving heavy exertion for 20 years following an earlier back injury is ample support conclusion that the claimant's prior injury did not contribute to the claimant's permanent total disability). Moreover, this inference supports a conclusion that the claimant did not have a "previous disability," within the meaning of § 8-42-104(2).
We also note that, unlike the statutory provisions for the determination of medical impairment, § 8-40-201(16.5)(a) does not afford any special weight to the opinion of the treating physician in determining whether the claimant is permanently and totally disabled. See Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250, September 27, 1994; Hooper v. Powermark Case Corp., W.C. No. 4-176-990, January 31, 1996. Nor is the ALJ limited to medical evidence in determining whether the claimant has a previous disability. Accordingly, the fact that Dr. Richardson apportioned only fifty percent of the claimant's permanent medical impairment to the June 1994 injuries did not compel the ALJ to apportion the claimant's permanent total disability.
The respondents' remaining arguments have been considered and do not alter our conclusion. There is nothing in the ALJ's order which suggests that he declined to apportion the claimant's permanent total disability merely because no medical impairment rating had been issued for the industrial injuries which occurred prior to June 1994. Furthermore, not all industrial injuries result in the permanent impairment of a worker's earning capacity. As a result, the undisputed evidence that the claimant suffered previous industrial injuries was standing alone, insufficient to require a finding that the claimant had a "previous disability," which existed at the time of the 1994 injuries. General Iron Works v. Industrial Commission, supra. IT IS THEREFORE ORDERED that the ALJ's order dated July 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed January 14, 1997 to the following parties:
John I. Morrill, 320 E. Raven, Rangely, CO 81649
Western Fuels Utah, Inc., P.O. Box 1067, Rangely, CO 81648
Old Republic Ins., McMillan Claim Service, P.O. Box 1556, Grand Junction, CO 81502
Old Republic Ins., P.O. Box 2200, Greensburg, PA 15601
J. Keith Killian, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Respondents)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________