Opinion
W.C. No. 4-15-231
June 18, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his request for permanent total disability benefits. We affirm.
In 1983 the claimant suffered a torn meniscus in his left knee. As a result of the injury the claimant underwent arthroscopic surgery. At the time of surgery the claimant was suffering the end stage of osteoarthritis and was told he would eventually need a total knee replacement.
In 1992 the claimant reinjured his left knee. The 1992 injury is the subject of this claim. Thereafter, the claimant developed pain and numbness down his entire leg and was referred to a spinal specialist who diagnosed spinal stenosis unrelated to the knee injury. The claimant underwent a two level laminectomy in 1997. During surgery the claimant suffered a dural leak which caused pain and numbness in the buttocks, legs and feet that was later diagnosed as arachnoiditis. The claimant subsequently had a total knee replacement.
In 2001 Dr. Rook diagnosed chronic left knee pain, chronic neurogenic left leg pain, chronic lower back pain, bladder dysfunction, chronic constipation, sexual dysfunction, sleep disturbance and reactive depression resulting from chronic pain. Dr. Rook opined that the catalyst for these medical conditions was the 1992 knee injury.
Dr. Shaw opined that the 1992 injury aggravated the claimant's pre-existing osteoarthritis and that the claimant's remaining symptomatology was caused by the arachnoiditis. Dr. Shaw added that the left knee condition precludes the claimant from returning to his pre-injury occupation and restricts the claimant's ability to squat, climb ladders, climb stairs, kneel, lift from the floor level, carry, stand and walk. (Tr. p. 80). However, Dr. Shaw opined it does not preclude the claimant from access to several jobs. (Tr. p. 81). In contrast, Dr. Shaw stated that the claimant is restricted to sub-sedentary work if all of his physicals conditions are considered. (Tr. p. 82). Therefore, Dr. Shaw opined that the 1992 injury is not the cause of the claimant's total vocational disability. (Tr. p. 82).
Crediting the opinions of Dr. Shaw over the opinions of Dr. Rook the ALJ found the claimant is permanently and totally disabled by the combined effects of the industrial injury and the arachnoiditis. However, the ALJ determined the claimant is not permanently and totally disabled as a result of the 1992 and that the arachnoiditis is an efficient intervening cause of the permanent total disability. Therefore, the ALJ denied and dismissed the request for permanent total disability benefits.
On review the claimant contends there is not sufficient evidence in the record to support the ALJ's finding that the 1992 industrial is not a significant causative factor in the claimant's permanent total disability. Further, the claimant contends the ALJ's findings do not support the denial of benefits because the issue was one of apportionment and application of the "full responsibility rule." We disagree.
Section 8-40-201(16.5)(a), C.R.S. 2001, defines permanent total disability as the claimant's inability "to earn any wages in the same or other employment." Under the statute, the claimant carries the burden of proof to establish permanent total disability. However, the claimant is not required to establish that an industrial injury is the sole cause of his inability to earn wages. Rather the claimant must demonstrate that the industrial injury is a "significant causative factor" in her permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under this standard, it is not sufficient that an industrial injury create some disability which ultimately contributes to permanent total disability. Rather, Seifried requires the claimant to prove a direct causal relationship between the precipitating event and the disability for which the claimant seeks benefits. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev'd. on other grounds Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996).
The "full responsibility rule" provides that the employer takes the employee as he finds him, and if personal factors such as a pre-existing mental or physical condition combine with a work related injury to render the worker permanently and totally disabled, the employer must compensate the worker for the entire permanent total disability. Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990); Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962) Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999) (no apportionment of congenital defect). Former § 8-42-104(2), C.R.S. 1999 [amended 2000 Colo. Sess. Laws, ch. 141, at 410 effective for injuries on or after July 1, 1999], allows the ALJ to apportion permanent partial disability benefits where the claimant has suffered a "previous disability," and sustains additional disability from a subsequent injury.
However, where the claimant succeeds in establishing the requisite causal connection between the industrial injury and the inability to earn wages there is no statutory authority for "apportioning" the claimant's benefits based on injuries or disabilities which occur subsequent to maximum medical improvement (MMI). Rather, evidence the claimant developed an independent, intervening, nonindustrial condition after reaching MMI for the industrial injury may support a finding that the industrial injury is not a significant causative factor in the claimant's permanent and total disability. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934); Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo.App. 1984).
Here, the issue before the ALJ was the relative contributions of the 1992 industrial injury and the subsequently acquired arachnoiditis to the claimant's inability to earn wages. Thus, the issue is not one of apportionment and the "full responsibility rule," does not govern this claim. Rather, the issue is one of causation as explained in Seifried v. Industrial Commission, supra.
The claimant's reliance on United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000) and City and County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984) as authority to the contrary is misplaced. In United Airlines the issue was whether the premium statute, found at § 8-46-105, C.R.S. 2001, imposes full responsibility on the claimant's last employer in cases where successive industrial disabilities combine to produce permanent total disability. In City and County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984), the court held no liability may be imposed on the Subsequent Injury Fund where the claimant's permanent and total disability is the result of an industrial injury and pre-existing non-industrial condition. Consequently, neither case addressed the circumstances presented here.
The question of whether the claimant has proven a direct causal connection between the industrial injury and the inability to earn wages is one of fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001). Consequently, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Weld County School District RE-12 v. Bymer, supra.
Substantial evidence is that quantum of probative evidence which a rational fact- finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we must defer to the ALJ's credibility determinations, and her assessment of the sufficiency and probative value of the evidence. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995). Furthermore, where the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to determine the inference to be drawn. Christie v. Coors Transportation Co., supra.
We have reviewed the ALJ's findings of fact and the record. The ALJ's pertinent findings are supported by substantial evidence in Dr. Shaw's testimony, and therefore must be upheld. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Furthermore, the ALJ's findings support her determination that the 1992 injury is not a significant causative factor in the claimant's inability to earn any wages. Consequently, the ALJ did not err in denying permanent total disability benefits and the existence of evidence which, if credited, might support a contrary result does not afford us grounds to grant appellate relief. Seifried v. Industrial Commission, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated November 28, 2001, is 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. 2001. 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 June 18, 2002 to the following parties:
Richard Bennett, 4007 O'Neal Ave., Apt. 2, Pueblo, CO 81005
Dynalectric, 345 Sheridan Blvd., Lakewood, CO 80226-2448
Zurich-American Insurance Group, _ American Guarantee Liability, P. O. Box 20048, Kansas City, MO 64195-0048
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Pattie J. Ragland, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado