Opinion
W.C. No. 4-297-289
October 9, 1998
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), which awarded permanent total disability benefits and denied apportionment based on a prior industrial injury. We affirm.
This matter was before us previously. In our Order of Remand dated May 13, 1998, we held that the evidence supported the ALJ's finding that the claimant's January 1996 industrial knee injury was a proximate cause of the subsequent development of carpal tunnel syndrome (CTS). We also held that the evidence supported the finding that the claimant is permanently and totally disabled. We reached this conclusion despite expert vocational testimony that the claimant might be able to earn a "sporadic minimal amount of money" performing small engine repair.
However, we remanded the matter for additional findings and entry of a new order concerning apportionment of the award of permanent total disability benefits. Specifically, we noted that the claimant sustained a 1989 industrial knee injury and subsequently changed jobs from gas pipe construction to corrosion technician. We held that the ALJ might have misapplied the law by placing undue emphasis on the claimant's earnings after the 1989 injury, without considering whether the 1989 injury impaired the claimant's capacity to perform his preinjury job, or otherwise limited his access to the labor market.
Pursuant to our remand, the ALJ entered an order dated June 1, 1998, in which he declined to apportion any of the claimant's permanent total disability to the 1989 knee injury. In support of this refusal, the ALJ found that the claimant's job as a corrosion technician required "a lot of walking, a lot of climbing terraces, squatting, bending over, and some computer work." Further, the ALJ noted that on February 24, 1995, one of the claimant's treating physicians stated the claimant "may do all activities at this point in time." Finally, the ALJ found that the respondent's vocational expert rendered "conflicting opinions" concerning whether any of the claimant's permanent total disability could be attributed to the 1989 injury.
Consequently, the ALJ concluded that the respondent failed to carry its burden of proof to establish a right to apportionment. Specifically, the ALJ found that "even though the claimant's job titles changed [after the 1989 injury] he was able to continue his pre-injury employment and did not suffer either a loss of earning capacity or loss of access to various jobs he performed at Public Service Company."
I.
On review, the respondent reiterates its previous argument that the ALJ failed to make sufficient findings of fact establishing a causal relationship between the 1996 knee injury and the development of CTS in May 1996. However, as the claimant argues, the ALJ found (in his October 22, 1997 order) that the 1996 injury resulted in the claimant being assigned to "light duty" in data processing. The job as a data processor caused the claimant to develop CTS. We see no basis for departing from our prior conclusion that these findings establish a sufficient causal relationship to treat the CTS as a compensable consequence of the January 1996 knee injury. See Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985) (discussing general scope of "quasi-course of employment" doctrine and range of compensable consequences of an industrial injury).
II.
The respondent again takes issue with the award of permanent total disability benefits, arguing that the claimant's hypothetical ability to earn some money repairing small engines evidences his ability to "earn wages" within the meaning of § 8-40-201(16.5)(a), C.R.S. 1998. However, as we previously noted, the claimant is not earning any money as a result of these activities. Thus, it was plausible for the ALJ to conclude that the claimant cannot earn any wages. We must uphold the ALJ's findings which are supported by substantial evidence and plausible inferences. Section 8-43-301(8), C.R.S. 1998.
Moreover, as stated in Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998), the overall objective of the permanent total disability inquiry is to determine, in view of all of the relevant human factors, whether employment is "reasonably available to the claimant under his or her particular circumstances." Here, the ALJ could infer the claimant's physical ability to perform occasional engine repairs, for which someone might offer to pay, does not demonstrate that the claimant has any legitimate opportunity to earn wages. See also, Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997) (charitable payments made in exchange for the performance of services do not necessarily establish bona fide wage earning capacity).
III.
The respondent's final argument is that the ALJ erred in failing to apportion the permanent total disability benefits based on the 1989 knee injury. In support of this contention, the respondent points out that the ALJ incorporated findings of fact from his October 22, 1997 order, including a finding that the claimant continued to earn full wages after the 1989 injury. The respondent also argues that the ALJ erred in finding that the testimony of its vocational expert was "conflicting" on the issue of apportionment. We perceive no error.
The respondent's argument notwithstanding, there is no inherent conflict between the ALJ's June 1, 1998 order, and the order he entered on October 22, 1997. The ALJ's June 1 order reflects consideration of the issues raised in our Order of Remand, and the ALJ entered sufficient findings of fact to indicate the basis of his conclusion that apportionment is inappropriate. Specifically, the ALJ determined that the effects of the 1989 knee injury were no longer disabling by the time of the January 1996 injury. This finding is not inherently inconsistent with the ALJ's prior finding that the claimant did not lose any wages as a result of the 1989 injury.
Neither do we perceive any error in the ALJ's finding concerning the testimony of the respondent's vocational expert. As the ALJ found, the vocational expert's written report of August 20, 1997, does not attribute any impairment to the 1989 injury. The vocational expert subsequently testified that forty percent of the claimant's permanent total disability may be attributed to the 1989 injury. Under these circumstances, it was for the ALJ to resolve the conflicts in the evidence, and credit that portion of the vocational expert's opinion which he found credible. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Johnson v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0413, October 2, 1997).
Moreover, the ALJ's June 1 findings of fact support his denial of apportionment of the permanent total disability benefits. In order to apportion based on preexisting impairment, § 8-42-104(2), C.R.S. 1998, requires that the impairment be disabling at the time of the subsequent injury. If the preexisting impairment is not independently causing a significant loss of access to the labor market at the time of the subsequent injury, the ALJ may conclude that the impairment is not apportionable because it is not "disabling." See Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).
Here, the ALJ found that any impairment resulting from the 1989 injury did not impair the claimant's access to the labor market, or his ability to perform his prior work, by February 1995. Since this finding constitutes a plausible interpretation of conflicting evidence, it must be upheld. Section 8-43-301(8).
In any event, apportionment would not be appropriate under the circumstances of this case. Subsequent to the ALJ's 1997 order and our Order of Remand, the Court of Appeals announced its decision in Bowland v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1740, August 20, 1998). In Bowland, the Court of Appeals held that the provisions of § 8-46-105(1), C.R.S. 1998, establish a "full responsibility rule" in cases where successive work injuries result in permanent total disability.
In this case, the respondent asserts that successive work injuries resulted in permanent total disability. Consequently, apportionment is inappropriate, and the respondent is liable for a full award of permanent total disability benefits. Bowland v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated June 1, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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. 1997.
Copies of this decision were mailed October 09, 1998 to the following parties:
Thomas A. Trujillo, 235 S. Irving St., Denver, CO 80219
Kimberly Costin, Public Service Co., 1225 17th St., Ste. 800, Denver, CO 80201-0840
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
By: ______________________