W.C. No. 4-207-213Industrial Claim Appeals Office.
April 15, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which held them solely liable for the claimant’s award of permanent total disability benefits. We affirm.
The respondents admit that the claimant sustained an occupational disease during her employment for the respondent-employer. Further, the parties stipulated that the claimant is permanently and totally disabled. However, the respondents contend that a cause of the claimant’s permanent total disability is the claimant’s pre-existing, non-industrial medical problems. Therefore, the respondents argue that the ALJ erred in failing to apportion liability for the claimant’s permanent total disability in accordance with § 8-42-104(2) C.R.S. (1995 Cum. Supp.). We disagree.
The ALJ determined that § 8-42-104(2) is not applicable to the circumstances of this claim. Instead the ALJ determined that the claim is governed by the “full responsibility rule.” We agree with the ALJ.
The “full responsibility rule” provides that an employer takes an injured worker as it finds her, and if personal factors such a pre-existing mental or physical condition combine with a work-related injury or disease to render the worker permanently and totally disabled, the employer must compensate the worker for the entire permanent total disability. 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); Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, 1995). Thus, the employer does not escape liability even if the claimant’s permanent total disability is the combined effect of an industrial injury and a pre-existing physical or mental problem. See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
Section 8-46-101 C.R.S. (1995 Cum. Supp.) creates a statutory exception to the “full responsibility rule” under certain circumstances by imposing liability upon the Subsequent Injury Fund. Climax Molybdenum Co. v. Walter, supra. However, that exception is not applicable to the claimant’s 1994 injury because injuries occurring after July 1 1993 may not be accepted into the Subsequent Injury Fund. Section 8-46-104 C.R.S. (1995 Cum. Supp.).
Similarly, § 8-42-104(2) does not relieve the respondents of liability under the “full responsibility rule.” Section 8-42-104(2) provides for the apportionment of permanent total disability benefits where the claimant has a “previous disability” and sustains further disability from a subsequent industrial injury. This statute is only applicable to the apportionment of permanent total disability resulting from multiple “industrial” disabilities. Colorado Fuel Iron Corp., Rhodes, 166 Colo. 82, 441 P.2d 652 (1968); Lindner Chevrolet v. Industrial Claim Appeals Office, supra; (military injury not previous industrial disability); Haislip v. HCC Foothills Care Center, Inc., W.C. Nos. 4-133-841 et. al., April 4, 1996 (§ 8-42-104(2) governs apportionment of permanent total disability between four industrial injuries the last which occurred in December 1993).
Here, there is no assertion or finding that the claimant’s pre-existing medical problems are the result of an industrial injury. Therefore, the ALJ correctly concluded that § 8-42-104(2) is not applicable to the facts of this claim. The respondents’ remaining arguments to the contrary are without merit.
The respondents also assert that they are not liable because the industrial injury is not a significant cause of the claimant’s permanent total disability. See Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986). Because this determination is factual in nature we must uphold the ALJ’s conclusion if supported by substantial evidence in the record. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994); Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981).
Here, the ALJ determined that the respondents stipulated to the fact that claimant’s occupational disease is a “significant” cause of the claimant’s permanent total disability. The respondents contend that the ALJ’s finding is not supported by the record. However, we disagree.
At the hearing, counsel for the respondents stated that, according to the respondents’ evidence, fifty percent of the claimant’s permanent total disability is the result of the industrial injury. (Tr. p. 4, lines 10-22). Respondents counsel also conceded that fifty percent meets the definition of a “significant” causative factor of permanent total disability. (Tr. p. 11, lines 7-16). Under these circumstances, we agree with the ALJ that the respondents admitted that the occupational disease was a “significant” causative factor within the meaning of Seifried. See generally, Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (a judicial admission is binding and should be enforced by the ALJ). Therefore, the ALJ did not err in concluding that the respondents are liable for one hundred percent of the claimant’s permanent total disability benefits under the “full responsibility rule.”
IT IS THEREFORE ORDERED that the ALJ’s order dated October 26, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed April 15, 1996 to the following parties:
Barbara J. Austill, 5124 S. Perry St., Littleton, CO 80123
Colorado Mental Health Institute, P.O. Box 260729, Lakewood, CO 80226-0729
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203
(For the Claimant)
BY: _______________________