W.C. No. 3-925-175Industrial Claim Appeals Office.
March 14, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which awarded permanent total disability benefits. We affirm.
The claimant was injured in November 1988 in a roll-over accident. The accident caused “multiple traumas” including injuries to the claimant’s knees, low back, neck and head.
The claim was originally closed in the spring of 1990. At that time, the claimant withdrew his objection to a final admission of liability and accepted a lump sum award of permanent partial partial disability benefits. However, in 1991 the claimant petitioned to reopen based on a worsened condition. In an order dated June 15, 1992, the ALJ reopened the claim and awarded temporary total disability benefits commencing June 19, 1991.
Subsequently, in an order dated March 2, 1995, the ALJ awarded permanent total disability benefits. In support of the award, the ALJ found that the claimant suffers from a pre-existing “spinocerebellar degenerative condition,” which was “aggravated and precipitated by” the industrial head injury. The ALJ specifically found that the spinocerebellar condition made the claimant more susceptible to the effects of the “closed-head traumatic brain injury.” The ALJ also stated that the “opinions expressed by Dr. Bjork, Dr. Goldbaum and Dr. Jay all support, in whole or in part, the conclusion that the spinocerebellar degenerative condition” was aggravated by the industrial injury.
I.
On review, the respondents contest the ALJ’s finding that the opinions of Dr. Bjork, Dr. Goldbaum, and Dr. Jay support the finding that the industrial injury “aggravated or precipitated” the spinocerebellar condition. The respondents argue that none of these physicians support the ALJ’s aggravation theory. We disagree.
Initially, we note that causation is a factual matter for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Thus, the ALJ’s finding that the industrial injury “aggravated” the pre-existing spinocerebellar condition must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In assessing whether there is substantial evidence, we must defer to the ALJ’s resolution of conflicts in the medical evidence, and the plausible inferences which she drew therefrom. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, to the extent the medical evidence contains internal inconsistencies, it was for the ALJ to resolve them. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents’ argument notwithstanding, we agree with the ALJ that the testimony of the three physicians, when viewed in a light most favorable to the claimant, supports “in whole or in part” the inference that the pre-existing condition was aggravated by the industrial injury. In his report dated June 28, 1993, Dr. Jay stated that the “traumatic brain injury . . . may have hastened the development of symptomatology from a previously quiescent spinocerebellar degenerative disorder.” Admittedly, in his deposition testimony, Dr. Jay stated that this opinion constituted mere “supposition” on his part. (Jay depo. p. 24). However, Dr. Jay went on to testify that the claimant’s traumatic brain injury interferes with the claimant’s ability to “compensate for or adjust to the spinocerebellar degeneration.” (Jay depo. p. 47). Under such circumstances, we cannot say that the ALJ erred, as a matter of law, in finding that Jay’s testimony supports the aggravation inference.
Similarly, Dr. Bjork opined in his report of October 7, 1992, that the claimant’s accident “probably had no effect, whatsoever, on the development of [the claimant’s] spinocerebellar degeneration.” However, in a letter dated February 26, 1993, Dr. Bjork stated that the claimant’s “spinocerebellar degeneration syndrome has rendered him more susceptible to post-traumatic dizziness.”
Finally, Dr. Goldbaum’s report is also subject to varying inferences. Dr. Goldbaum stated that the claimant had no problems with balance or dizziness prior to the accident, and that it seems “reasonable that his baseline neurologic disorder made him more susceptible to injury and that the motor vehicle accident itself triggered or exacerbated this problem.” This statement certainly lends itself to the interpretation given by the ALJ, and she need not have reached the conclusion argued for by the respondents.
Moreover, we believe that any error concerning whether or not the industrial injury “aggravated” or “precipitated” the spinocerebellar disorder is harmless. Colorado adheres to the “full responsibility rule” which holds that an employer takes an employee “as he finds him.” Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 95CA0438, November 9, 1995). Thus, if the effects of an industrial injury combine with a pre-existing physical or mental problem so as to render the claimant permanently and totally disabled the employer may not escape liability. See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
Here, regardless of whether the industrial injury actually “aggravated” the claimant’s pre-existing spinocerebellar condition, the ALJ has clearly determined that the effects of the spinocerebellar condition and the industrial injury have both contributed to the claimant’s total disability. Thus, the mere fact that some of the disability may be attributable to the pre-existing condition does not vitiate the award of permanent total disability benefits under the full responsibility rule.
II.
The respondents’ other contention is that the ALJ failed to make any findings of fact concerning whether or not the claimant is statutorily barred from receiving permanent total disability benefits. In support of this argument the respondents point to evidence that the claimant refused an offer of employment within the meaning of the provision currently codified at § 8-42-111(3), C.R.S. (1995 Cum. Supp.) [formerly § 8-51-107(3)]. We conclude there was no error in this regard.
We have previously held that § 8-42-111(3) constitutes an affirmative defense to claims for permanent total disability benefits. See Remek v. Adams County School District 50, W.C. No. 3-938-393, September 3, 1993; Houpt v. Americold Corp., W.C. No. 3-926-247, November 5, 1991. Consequently, the respondents bore the burden to raise and prove the applicability of the defense. Monfort, Inc. v. Gonzalez, 855 P.2d 19
(Colo.App. 1992).
Here, the respondents failed to raise their statutory defense before the ALJ. At the hearing, the ALJ invited the parties to state the issues for consideration. (Tr. p. 3). However, the respondents did not indicate that they were imposing the offer of employment defense. Consequently, the respondents waived their right to raise the defense. See Lewis v. Scientific Supply Company, Inc., 897 P.2d 905 (Colo.App. 1995); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
It is true that some evidence was presented concerning offers of employment, including an offer in 1992. However, that evidence was relevant to the general issue of permanent total disability. Therefore, neither the ALJ nor the claimant was required to understand that this evidence was directed towards the specific statutory defense established in § 8-42-111(3).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 2, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
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. (1995 Cum. Supp.).
Copies of this decision were mailed March 14, 1996 to the following parties:
George P. Seymour, 909 Grinde Dr., #D9, Fountain, CO 80817
Pillow Kingdom, Inc. and Big Sur Waterbeds, 105 W. Jefferson, Englewood, CO 80110
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq. (Interagency Mail)
Michael S. Kocel, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909
(For the Claimant)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
By: _____