W.C. No. 4-207-699Industrial Claim Appeals Office.
July 2, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), insofar as the ALJ failed to apportion permanent total disability benefits based on the claimant’s preexisting psychological condition. We affirm.
The ALJ found, and it is now undisputed, that the claimant is permanently and totally disabled due to bilateral upper extremity injuries sustained in February 1994. As a result of these injuries the claimant suffers severe physical restrictions which preclude her from using her upper extremities in most activities.
The claimant has a psychiatric history which predates the industrial injuries. The history includes childhood abuse, substance abuse, and a one week hospitalization in 1991. At the time of 1991 hospitalization the claimant suffered from depression connected with a divorce and foreclosure on her home.
Several physicians opined that the 1994 industrial injury aggravated the claimant’s preexisting psychiatric condition and caused additional depression. Generally, these physicians agreed that the claimant had an overall psychological impairment of ten percent of the whole person, and that seven percent of the impairment predated the industrial injury. (Eg., Dr. Pero, report of August 22, 1996; Dr. Gamblin, report of March 18, 1996).
Based on the medical evidence, as well as evidence the claimant held numerous jobs prior to the industrial injury, the respondents’ vocational expert opined that thirty percent of the claimant’s permanent total disability is attributable to the preexisting psychiatric condition. According to this expert, the claimant’s pre-injury psychiatric condition rendered her unsuitable for most jobs requiring public contact, or approximately thirty percent of the available jobs.
Conversely, the claimant’s vocational expert opined the preexisting psychological conditions did not cause the claimant any vocational disability. This expert based his opinion on the fact that the claimant was always able to find work in the competitive labor market prior to the 1994 injury, including some jobs requiring public contact. (Tr. 43, 50-51, 54).
Under these circumstances, the ALJ refused to apportion the claimant’s permanent total disability benefits based on of the preexisting psychiatric condition. Crediting the testimony of the respondents’ expert, the ALJ found the claimant’s preexisting condition did not “independently cause a significant loss of access to the labor market and did not render Claimant unemployable.” (Finding of Fact 31). The ALJ also noted that at the time of the 1994 injury the claimant was “functioning productively in a job which she enjoyed and she had been able to function in public contact jobs in the past.”
I.
On review, the respondents first contend the evidence compelled the ALJ to apportion permanent total disability benefits based on the preexisting psychiatric condition. Relying on the medical reports apportioning the claimant’s psychiatric impairment and the testimony of their vocational expert, the respondents assert the preexisting psychiatric condition prevented the claimant from contact with the public, and excluded her from thirty percent of the available labor market.
Section 8-42-104(2), C.R.S. 1997, expressly provides for apportionment of permanent total disability in cases where there is a “previous disability” in existence at the time of the “subsequent injury.” Waddell v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 97CA0611, January 22, 1998); Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997). For purposes of § 8-42-104(2), a “disability” is assessed by non-medical means, and represents an alteration of the claimant’s “capacity to meet personal, social, or occupational demands.” Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). An apportionable disability may be evidenced by impairment of the claimant’s capacity to perform her pre-injury job, or limitation of access to the job market affecting the claimant’s ability to earn a wage at the same or other employment. Colorado Mental Health Institute v. Austill, supra.
The question of whether an apportionable disability exists is generally one of fact for determination by the ALJ. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra.
Thus, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ arguments notwithstanding, the record contains substantial evidence supporting the ALJ’s denial of apportionment. As the ALJ noted, the mere fact the claimant held a number of jobs before the 1994 injury does not necessarily prove “disability” because the claimant often held two jobs at one time. Moreover, the respondents’ expert conceded that mere dislike for public contact does not necessarily rise to the level of a vocational disability. (Tr. p. 74). Here, as the claimant’s expert testified, the claimant’s record of steady employment prior to the industrial injury supports the inference the claimant was not “disabled” by her psychiatric problems. Cf. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra.
Moreover, the mere fact that some medical experts apportioned the claimant’s psychiatric impairment between the industrial injury and the preexisting condition does not compel a different result. In Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the Supreme Court differentiated between “medical impairment” and “disability.” Medical impairment concerns the claimant’s health status and is determined by medical means. In contrast, “disability” relates to the claimant’s capacity to meet the demands of life, including occupational demands, and is determined by non-medical means. Consequently, the mere fact that examining physicians apportioned some of the claimant’s psychiatric impairment to the preexisting impairment did not require the ALJ to conclude that the preexisting condition constituted a “disability” for purposes of § 8-42-104(2).
II.
The respondents next contend that Findings of Fact 20 and 22 are contrary to the evidence and not in accordance with the law. Specifically, they argue that these findings show that the ALJ found the claimant is permanently and totally disabled from the physical injuries without regard to the psychological condition. The respondents assert that such a determination is not supported by the record and denies them apportionment.
However, we do not read these findings in the same way as the respondents. To the contrary, the ALJ stated in Finding of Fact 20 that the claimant’s vocational expert testified the “pre-existing psychological problems had not resulted in vocational disability.” Thus, the ALJ properly applied the law.
Finally, the respondents take issue with Conclusion of Law 3, in which the ALJ discussed the statutory scheme for paying permanent total disability benefits. We do not understand this conclusion of law as representing the legal basis for denial of apportionment. Rather, this conclusion merely states the ALJ’s opinion that respondents suffer no injustice if apportionment is denied where the claimant’s preexisting impairment caused no disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 7, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (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 July 2, 1998 to the following parties:
Joyce Benwell, 325 Green Cove Rd. SE, #119, Huntsville, AL 35803
Michael Garman Productions, Inc., 2418 W. Colorado Ave., Colorado Springs, CO 80904-3055
Carolyn A. Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Renee C. Ozer, Esq., 25 N. Cascade, #215, Colorado Springs, CO 80903 (For Claimant)
By: _______________________