Opinion
W.C. No. 4-194-359
December 18, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ), which awarded the claimant permanent total disability benefits. The respondents contend that the ALJ erred in finding that the claimant's permanent total disability is partially caused by the industrial injury rather than disability stemming from non-industrial rheumatoid arthritis. We affirm.
The claimant sustained compensable injuries to her low back, left hip, and left knee in 1993. The claimant reached maximum medical improvement (MMI) from the injuries on July 11, 1997. The ALJ found that the effects of the 1993 injuries, particularly those involving the lower spine, significantly limit the claimant's access to the labor market by precluding her from performing any jobs she held in the past.
The ALJ also found that the claimant suffers from rheumatoid arthritis, which is not causally connected to the industrial injury. Based on X-ray evidence the ALJ found that the rheumatoid arthritis was an "active disease process" at the time of the industrial injury, although it was not yet symptomatic.
Subsequent to the industrial injury, the rheumatoid arthritis progressed and now impairs the claimant's upper extremities, hips, and lower extremities. In fact, the claimant has undergone bilateral knee replacements as a result of the rheumatoid arthritis.
The ALJ concluded that the rheumatoid arthritis "certainly results in significant restrictions on claimant's ability to work." However, the ALJ concluded that the claimant is entitled to permanent total disability benefits because the effects of the industrial injury, separate and apart from the rheumatoid arthritis, constitute a "significant cause" of the claimant's permanent total disability. The ALJ relied on Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986), for the proposition that permanent total disability benefits are appropriate if the industrial injury bears a direct causal relationship to the resulting disability. The ALJ also observed that an employer takes the claimant as it finds her, and the claimant's "general health" is one factor which may be considered in determining the existence of permanent total disability.
I.
On review, the respondents first contend that the ALJ erred in awarding permanent total disability benefits because "disability" caused by the rheumatoid arthritis constituted an "efficient intervening cause" of the claimant's permanent total disability. The respondents assert that the "full responsibility rule" does not apply unless the preexisting condition is "disabling" at the time of the industrial injury. We are not persuaded.
Generally, an employer takes a claimant as it finds her, and if an industrial injury combines with a preexisting "disability" to produce permanent total disability, the last employer is liable unless apportionment is proper. See Waddell v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0611, January 22, 1998), cert. granted, October 19, 1998. However, in determining whether a claimant is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. 1998, it is proper to consider "human factors" including the claimant's general physical condition, mental ability, age, employment history, education, and availability of work that the claimant can perform. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Further determination of whether an industrial injury has caused permanent total disability may not occur until the claimant reaches MMI. This is true because the claimant's condition does not become stable until MMI, and it is not until MMI that the degree of permanent impairment can be ascertained. Section 8-40-201(11.5), C.R.S. 1998; Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) (in 1991 General Assembly codified the practice of using MMI as the date to determine the compensation to be awarded).
Further, it is not required that an industrial injury be the sole cause of permanent total disability. Rather, all that is required is that the industrial injury play a "significant role" in the permanent total disability, meaning that the industrial injury must bear a direct causal relationship to the permanent total disability. Seifried v. Industrial Commission, supra; Varra v. Micro Motion, W.C. No. 3-980-567 (May 27, 1994) (copy in file).
In view of these principles, we reject the respondents' argument that the claimant's rheumatoid arthritis must be considered an intervening cause of the permanent total disability because it did not cause any disability until after the claimant sustained the industrial back injury. The ALJ found, on substantial evidence, that the rheumatoid arthritis was an "ongoing disease process" prior to the industrial injury. Therefore, rheumatoid arthritis constituted part of the claimant's "general physical condition" existing at the time of the injury. The fact that the rheumatoid arthritis had not independently caused disability at the time of the industrial injury does not mean that rheumatoid arthritis constituted an "intervening event," or that the progression of the rheumatoid arthritis must be considered the sole cause of the permanent total disability.
Further, the respondents do not dispute that the rheumatoid arthritis affected the claimant's ability to earn wages prior to July 11, 1997, the admitted date of MMI. Because MMI is the date on which permanent disability attributable to the industrial injury is determined, the ALJ may consider the claimant's general physical condition on that date. By July 11, the claimant's general physical condition included disability stemming from rheumatoid arthritis, and that disability combined with the industrial injury to produce permanent total disability.
II.
Relying on Pikes Peak Community College v. Leonard, 865 P.2d 913 (Colo.App. 1993), the respondents next contend the claimant's rheumatoid arthritis must be considered an injury incurred subsequent to the industrial injury because the rheumatoid arthritis was not disabling until after the industrial injury. We reject this argument.
Pikes Peak Community College concerned the interpretation of § 8-46-101(1)(a), C.R.S. 1998, a statute which apportions liability to the Subsequent Injury Fund (SIF) in permanent total disability cases. Because the SIF statute conditions apportionment of liability on when the claimant sustained permanent partial industrial disability from a prior injury, the court held that the determination of which of two industrial injuries was the "subsequent injury" depended on when each injury became permanently disabling.
Here, the particular wording of the SIF statute has no application because this case does not involve successive industrial injuries. Further, as we have held, the focus in this case is on the claimant's general physical condition at the time of the industrial injury. Thus, as we held in Varra v. Micro Motion, supra, the holding in Pikes Peak Community College v. Leonard is inapposite.
III.
The respondents' final contention is that the evidence does not support the ALJ's finding that the effects of the industrial injury constitute a "significant factor" in the claimant's permanent total disability. In support, the respondents cite Garcia v. Rockwell International, W.C. No. 3-820-915 (July 27, 1998), where we stated that the mere existence of medical restrictions from an industrial injury does not require the conclusion that those restrictions contribute to the claimant's permanent total disability. We find no error.
The question of whether the industrial injury is playing a direct causal role in the claimant's permanent total disability is one of fact for determination by the ALJ. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the issue of causation is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
The respondents' assertion notwithstanding, the record contains substantial evidence to support the ALJ's finding of a causal relationship between the claimant's injury and her permanent total disability. The claimant's testimony, that of her vocational expert, and even that of the respondents' vocational expert, support the inference that back pain from the industrial injury is limiting the claimant's access to the labor market independent of the rheumatoid arthritis. The claimant's vocational expert pointed out that back pain impairs the claimant's ability to return to any of her preinjury jobs and limits her access to other jobs in the small community where she lives. Under these circumstances, we decline the respondents' invitation to substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence.
Moreover, our holding in Garcia v. Rockwell International is not authority to the contrary. In that case, we held that the mere existence of restrictions associated with an industrial injury does not require an ALJ to find as a matter of fact that a claimant's permanent total disability is caused by the industrial injury. In Garcia, there was evidence that, despite the industrial injury, the claimant was able to perform his preinjury work until the "deterioration of his pre-existing, non-occupational degenerative back condition." We also noted in Garcia that there was evidence in the record which might have supported a contrary conclusion, but we declined to interfere with the ALJ's resolution of the factual issues. Thus, Garcia merely stands for the proposition that the ALJ must determine the facts in each individual case to determine the cause of the claimant's permanent total disability.
IT IS THEREFORE ORDERED that the ALJ's order dated May 26, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 18, 1998 to the following parties:
Margaret Richardson, 1536 Lowell Ave., Burlington, CO 80807
TBS, Inc. d/b/a Burlington Steakhouse, P.O. Box 3, Stratton, CO 80836
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
William Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For Claimant)
By: ___________