Opinion
W.C. No. 4-549-237.
September 29, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) that awarded permanent total disability benefits without apportionment of prior nonindustrial disability. The respondents contend that the ALJ erred in refusing to apportion the claimant's preexisting cognitive and intellectual disability. We disagree and, therefore, affirm.
The ALJ found that the claimant sustained a compensable occupational disease affecting his right elbow. His medical treatment included surgery on the elbow, and he reached maximum medical improvement (MMI) on July 8, 2003. The claimant sought an award of permanent total disability benefits and following the hearing the ALJ resolved conflicts in the evidence in favor of the claimant's legal position that he was permanently and totally disabled. She credited the expert medical and vocational rehabilitation evidence that the claimant would likely not be able to earn wage in any competitive job, and she found that any employment he was likely to obtain would be sheltered.
The respondents sought apportionment of the claimant's preexisting disabilities. In this connection the ALJ found that the claimant was severely abused and neglected as a child. He had difficulties obtaining an education, and his measured intelligence and literacy levels were considerably below average. The ALJ found, however, that despite these preexisting problems the claimant had always successfully found and held employment. She rejected the respondents' argument that apportionment was appropriate and granted a full award of permanent total disability benefits.
On appeal the respondents do not dispute that the claimant is permanently and totally disabled. However, they argue that the record compels apportionment of the claimant's preexisting nonindustrial disability under § 8-42-104(2), C.R.S. 2005. We disagree.
Section 8-42-104(2) provides that:
In cases of permanent total disability, when 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 previous disability as it existed at the time of the subsequent injury. In such cases awards shall be based on said computed percentage.
The question remains open whether § 8-42-104(2)(a) authorizes the apportionment of nonindustrial disability from a permanent total disability award. Several court of appeals opinions have addressed that question and held that the statute authorizes apportionment in cases where disabling nonindustrial disabilities combine with subsequent industrial disabilities to produce permanent total disability. E.g., Waddell v. Industrial Claim Appeals Office, 964 P.2d 552 (Colo.App. 1998); Colorado Mental Health Institute v. Austil, 940 P.2d 1125 (Colo.App. 1997). At least one case held that the statute does not permit apportionment of disability attributable to congenital conditions such as low intelligence, and that such conditions are "handicaps" rather than apportionable disabilities. Absolute Employment Services v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999).
However, in United Airlines v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000) the court stated that with regard to cases where symptomatic nonindustrial disability combined with industrial disability to result in permanent total disability it had always "presumed that the Act imposes full responsibility on the last employer. . . ." Id. 993 P.2d at 1162. The court was not compelled to reach that question, however, and it acknowledged that the 1999 amendments to § 8-42-104 might have some impact on the issue.
More recently the court of appeals has noted that "[t]he full responsibility rule, requiring an employer to bear the full cost of disability, is applicable only when a claimant is permanently and totally disabled." Duncan v. Industrial Claim Appeals Office, 107 P.3d 999, 1001 (Colo.App. 2004). Because the statements in both United Airlines and in Duncan are dicta, however, we have continued to resolve this apportionment issue on the merits. See e.g., Castrellon v. Arkansas Valley Regional Medical Center, W.C. No. 4-429-722 (May 27, 2005); Cisneros v. Diamond Shamrock, Inc., W.C. No. 4-503-539 (October 23, 2003); Ragsdale v. Western Co., W.C. No. 3-114-839 (February 3, 2000).
Assuming then that § 8-42-104(2) permits apportionment of nonindustrial disability out of permanent total disability benefits, the statute requires that the condition represent a "previous disability" at the time of the subsequent injury. A previous disability exists if the condition impaired the claimant's ability to earn a wage in the same or other employment. See Absolute Employment Services v. Industrial Claim Appeals Office, supra.; Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).
The question of whether the preexisting condition was disabling at the time of the subsequent injury is generally one of fact for the ALJ and the respondents bear the burden of proving grounds for apportionment. Absolute Employment Services v. Industrial Claim Appeals Office, supra. We must uphold the ALJ's determination that the respondents failed to sustain their burden of proof if supported by substantial evidence. § 8-43-301(8), C.R.S. 2005. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, as we read the ALJ's order, she was unpersuaded that the claimant's pre-existing conditions constituted "previous disabilities" within the meaning of § 8-42-104(2)(a). The ALJ entered factual findings concerning the claimant's educational and intellectual deficits, and noted that the claimant had been the victim of child abuse and neglect. However, the ALJ expressly stated that the record "failed to demonstrate" whether the claimant's deficits were the result of congenital factors or of the abuse to which he was subjected as a child. Despite the respondents' argument, we cannot conclude from the record that the ALJ was compelled to find that the factors affecting the claimant's employability were the result of abuse inflicted upon him as a child. Accordingly, we will not disturb her conclusion that the respondents failed to carry their burden of showing previous disability that should be apportioned.
Moreover, the ALJ properly applied the law. Having concluded that the respondents failed to carry their burden of showing that the claimant's preexisting conditions constituted "previous disability," the ALJ determined that Absolute Employment Services precluded apportionment. We agree with this conclusion. In that case the court reasoned that conditions that define an individual's baseline capacity to meet personal, social, and occupational demands do not warrant apportionment of permanent total disability benefits. Rather, it is only alterations of these conditions, caused by intervening events, that might constitute disability subject to § 8-42-104(2)(a). Here, the ALJ noted the claimant's preexisting conditions were similar to those in Absolute Employment Services and we do not disagree.
Finally, insofar as the ALJ relied upon Rule of Procedure XIX to deny apportionment, we agree with the respondents that she may have erred. The respondents correctly note that the rule sets forth the guidelines for apportionment of impairment, and it is not necessary that a doctor have apportioned medical impairment under the rule prior to the application of § 8-42-104(2)(a) in a case involving permanent total disability. However, we do not read the ALJ's order as concluding that this was the principal basis for denying apportionment. As noted, the ALJ relied upon Absolute Employment Services and correctly applied that case. Under these circumstances, any error regarding the application of Rule XIX was harmless and will be disregarded. See § 8-43-310 C.R.S. 2003; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated March 15, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Mark Pulliam, Sears Roebuck Company, Longmont, CO, Liberty Mutual Insurance Company, Irving, TX, Michael P. Dominick, Esq., Boulder, CO, (For Claimant).
David G. Kroll, Esq., Denver, CO, (For Respondents).