Opinion
W.C. No. 4-486-242
July 14, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded permanent total disability and future medical benefits. We affirm the award of permanent total disability benefits, and reverse the award of medical benefits.
In December 2000, the claimant suffered an L-1 compression fracture and ankle fracture during his employment as an automobile salesperson for Mile High Honda (Honda). As a result of the injuries, the claimant developed depression and a sleep disorder.
Prior to the industrial injuries the claimant had an extensive sales career. However, in 1989 the claimant contracted Meningitis which caused a severe hearing loss. Between 1990 and 1997 the claimant did not work and received Social Security Disability benefits. However, in December 1997 the claimant began work at Honda where he earned an average of $32,000 a year.
Following the industrial injury the claimant remained employed at Honda. However, he testified he had not sold any cars because the effects of the industrial injury precluded him from demonstrating cars to potential buyers. Nevertheless, Honda offered the claimant continuing employment at a wage of $5.15 per hour.
The ALJ found Honda's employment offer was a "charitable" position that involved no job duties, provided no actual benefit to Honda and did not exist in the open labor market. Therefore, the ALJ determined it was not bona fide employment. Further, the ALJ determined the claimant is incapable of sustaining bona fide employment in the open labor market. Consequently, the ALJ determined the claimant is permanently and totally disabled.
In addition, the ALJ determined the respondents failed to prove a basis to apportion the permanent total disability between the industrial injury and the claimant' preexisting hearing loss. Therefore, in an order dated January 2, 2003, the ALJ awarded permanent total disability benefits without apportionment. The ALJ also awarded medical benefits after maximum medical improvement as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The respondents timely appealed.
We note that on February 14, 2003, the ALJ set aside the January 2, 2003 order. However, on March 25, 2003, the ALJ reinstated the January 2, 2003 order.
I. A.
On review, the respondents contend there is insufficient evidence to support the ALJ's finding of permanent and total disability. In particular, the respondents contend that evidence the claimant was employed and earning a wage at the time of the hearing precluded a finding of permanent and total disability. We disagree.
Under the applicable law a claimant is permanently and totally disabled if the claimant is unable "to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2002. In determining whether the claimant has sustained his burden of proof, the ALJ may consider a number of "human factors" which include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" which the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) ; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). The overall objective of this standard is to determine whether, in view of all of these factors, employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
The term "wages" is defined as the money rate "at which the services rendered are recompensed." Section 8-40-201(19)(a), C.R.S. 2002. It follows that the ability to "earn wages" necessarily contemplates that the claimant performs a "service" in consideration for the money rate paid by the employer. Accordingly, evidence of earnings does not preclude a finding of permanent and total disability where there is no bona fide employment available for the claimant. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Glasper v. Donald E. Jagger Roofing Co., W.C. No. 4-111-369 (January 8, 1998); see also Portillo v. Longmont Foods, W.C. No. 4-130-335 (November 13, 1995) (fact that employer paid claimant for "light duty" after the injury did not vitiate award of permanent total disability benefits where evidence permitted inference that payments were made as a result of charity, or in an attempt to avoid an award of permanent total disability benefits).
As argued by the respondents, Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra, is factually distinguishable from the circumstances presented here. However, those distinctions do not vitiate the legal principle which underlies the holding in Joslins.
Moreover, an ALJ's finding that the claimant is unable to earn any wages must be upheld if supported by substantial evidence in the record. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Application of the substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Christie v. Coors Transportation Co., supra. Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ's province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ found claimant was not performing any service for Honda and there was no consideration for the $5.15 per hour wage offered by Honda. Instead, the ALJ determined the claimant's employment was a make-work position, created by the employer out of humanitarian motives. The respondents' arguments notwithstanding, the ALJ's finding is a plausible inference from the record and, therefore, is binding on review. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001. Further, the ALJ's finding supports the conclusion the claimant is not capable of earning "wages" within the meaning of § 8-40-201(16.5)(a) and, thus, is permanently and totally disabled.
B.
Relying on testimony from their vocational expert, the respondents contend the claimant is capable of earning wages in telephone sales but for his preexisting hearing loss. Therefore, the respondents contend the evidence establishes that the industrial injury is not the cause of the claimant's permanent total disability.
The industrial injury need not be the sole cause of the claimant's permanent and total disability. This is true because under the "full responsibility rule" an employer takes an injured worker as it finds him, and permanent total disability can be a combination of personal factors, such a pre-existing mental or physical condition and a work-related injury or disease. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (1991); Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). The only exception to the rule is where the industrial injury is not a significant causative factor in the claimant's disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995). As stated in Seifried, the term "significant" means that there is a direct causal relationship between the industrial injury and the permanent total disability.
We have previously held that evidence the claimant remained capable of working after the first of two industrial injuries, but is unable to work after the second industrial injury may support a finding that the industrial injury is a significant causative factor in the claimant's permanent total disability. See Burke v Texas Instruments, W.C. No. 3-0936-879 (February 5, 1993), aff'd, Texas Instruments, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 93CA0312, October 28, 1993) (not selected for publication). We adhere to our previous conclusions.
In this case, the ALJ found the claimant had significant obstacles to employment as of 1997 which include osteoporosis, severe nerve deafness, vestibular imbalance, tinnitus, chronic headaches and the fact that the claimant was age 57. The ALJ also explicitly recognized the opinion of the respondents' vocational expert that the claimant suffered a 100 percent loss of access to the labor market prior to the date he began working at Honda. However, the ALJ did not find this testimony persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness' testimony). Instead, the ALJ reasonably inferred that the claimant's ability to earn an average of $32,000 a year selling vehicles at Honda established the claimant retained some significant earning capacity prior to the industrial injury.
The ALJ's findings that the claimant was able to perform the duties necessary to earn substantial commissions as a vehicle salesman until the industrial injury supports the conclusion the industrial injury was a significant causative factor in the claimant's permanent and total disability. Therefore, the respondents have failed to establish grounds which afford us a basis to set aside the ALJ's finding of permanent and total disability.
C.
Nevertheless, the respondents contend the ALJ erred in failing to apportion liability for the claimant's permanent and total disability between the industrial injury and the preexisting hearing loss. The respondents argue the ALJ's failure to apportion liability is internally inconsistent with his finding that the claimant's preinjury employment at Honda was "charitable."
Section 8-42-104(2)(a), C.R.S. 2002, which applies to this 2000 injury claim, provides that permanent total disability may be apportioned as follows :
"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." (Emphasis added).
The courts have held that in the context of apportionment the term "previous disability" refers to a preexisting, non-industrial condition which impairs the claimant's ability to earn wages in the same or other employment. United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000); Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999), Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997); Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).
The question of whether apportionment is appropriate is a question of fact. Holly Nursing Care Center v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8).
The respondents concede that the only evidence on apportionment was the testimony of their vocational rehabilitation expert, who opined the claimant was permanently and totally disabled before he went to work at Honda. The ALJ expressly discredited this evidence because the claimant actually earned substantial wages without persuasive job modifications before the industrial injury. (Finding of Fact 25). Moreover, the claimant earned these wages in sales, the same type of employment he performed before he suffered Meningitis and the consequent hearing loss. Under these circumstances, the ALJ could, and did, find the evidence was insufficient to apportion liability.
II.
The respondents contend the award of continuing medical benefits deprived them of their due process rights because the issue was not endorsed on the application for hearing. The claimant concedes the issue of future medical benefits was not endorsed for hearing but asserts the issue was tried by consent.
Due process contemplates advance notice of both the legal and factual issues to be litigated. Cf. Monarrez v. Industrial Claim Appeals Office, 835 P.2d 607 (Colo.App. 1992) (interpreting requirement of "fair hearing" in context of unemployment compensation); Sands v. Industrial Claim Appeals Office, 801 P.2d 12 (Colo.App. 1990). Consequently, we have previously held that respondents are entitled to prior notice that the issue of liability for specific types of treatment will be considered. Ware v. Hewlitt Packard, W.C. No. 3-887-141 (May 18, 1992).
The claimant is entitled to Grover type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). Entitlement to Grover-type medical benefits is not implicitly endorsed in the adjudication of permanent total disability benefits. Rather, the claimant has the affirmative burden to present specific evidence if he desires future medical benefits. Further, the issue of Grover-type medical benefits must be adjudicated at the time permanent disability is determined. See Grover v. Industrial Commission, supra; Rodriguez v. Russell Stover Candies, W.C. No. 3-111-475 (March 2, 1998); Davis v. Mulberry Inn Inc., W.C. No. 3-949-781 (November 26, 1995). Consequently, where the claimant does not affirmatively indicate his intent to seek future medical benefits, the respondents are entitled to assume that the claimant will not seek such benefits. Leasure v. Jett Supply Company, W.C No. 4-145-182 (August 8, 1993).
It is true that procedural due process may be waived by the failure to object to the introduction of evidence, and by the exercise of the rights of cross-examination and the presentation of evidence in opposition to the defense. E.g., Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). However, the conclusion that an issue was tried by implied consent should be rejected where a reasonable doubt exists as to whether the issue was intentionally and actually tried. See Bill Dreiling Motor Co. v. Schultz, 168 Colo. 59, 450 P.2d 70 (1969) (applying principle under C.R.C.P. 15(b)). This is true because waiver must be the product of a voluntary, knowing and intelligent action. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); American National Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970) (disallowing post-trial amendment of complaint on grounds of unfair surprise).
Here, we have a reasonable doubt that the claimant intentionally tried the issue of future medical benefits. The issue of Grover-type medical benefits was not endorsed on the application or response to the application for hearing. Further, the claimant did not raise the issue at the commencement of the hearings on October 1, 2002 or November 27, 2002.
Admittedly, the respondents did not object to Dr. Krause's testimony that the claimant needs to continue taking Zoloft and Trazadone "indefinitely" to maintain his condition and that the claimant's condition would likely "relapse without the medication." (Tr. November 27, 2002, p. 16). However, this testimony was relevant to whether the claimant's medical and mental impairment and the consequent side effects of medication prescribed to treat the industrial injury are permanent. Accordingly, we are not persuaded that this testimony put the respondents on notice the claimant was seeking an order requiring them to provide further medical benefits. The fact Dr. Krause's testimony is arguably relevant to the issues of permanent total disability and future medical benefits, does not compel the conclusion the respondents agreed to litigate the issue of future medical benefits.
To the contrary, had the respondents known that the claimant was seeking future medical benefits, they may have engaged in further cross-examination of Dr. Krause or presented evidence to refute the claimant's need for further medications. However, the respondents were not afforded a fair opportunity to decide what evidence and testimony to present because it received inadequate notice that the claimant sought an award of future medical benefits. Under these circumstances, we agree with the respondents that they were not afforded adequate notice that the ALJ would consider whether the claimant is entitled to Grover-type medical benefits. Consequently, we must set aside the award of Grover-type medical benefits.
IT IS THEREFORE ORDERED that the ALJ's orders of January 2, 2003 and March 25, 2003 are reversed insofar as they award future medical benefits. In all other respects the ALJ's orders are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 14, 2003 to the following parties:
William Riley, 909 Mirabeau, Greenfield, OH 45123
Mary Cunningham, Mile High Honda, 2777 S. Havana St., Denver, CO 80014
Susan Filipiak, Mid-Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado