W.C. No. 4-101-536Industrial Claim Appeals Office.
September 17, 1996
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) insofar as he ordered the SIF to pay a portion of the claimant’s permanent total disability benefits. We affirm.
The ALJ found that the claimant is permanently and totally disabled as a result of a 1980 industrial back injury, and the June 1991 industrial injury to the claimant’s neck and shoulders. Moreover, the ALJ concluded that forty-one percent of the claimant’s permanent total disability is attributable to the 1980 injury, and fifty-nine percent to the claimant’s 1991 injury. In support of this determination, the ALJ cited the claimant’s testimony that he was required to cease work as a truck driver for two or three years after the 1980 injury. Further, the ALJ relied on the claimant’s statement that the treating physician for the 1980 injury established permanent lifting restrictions and told the claimant he should not return to work as a truck driver. Further, the ALJ relied on the testimony of the respondent-insurer’s vocational expert, Mr. Ryan, who opined that the “1980 injury resulted in a 28% reduction in the claimant’s world of work and the 1991 injury resulted in a 40% reduction.”
On review, the SIF contends that the ALJ’s apportionment of liability to the SIF is contrary to the law and the evidence. The SIF asserts that, because the claimant returned to his pre-injury employment as a truck driver two or three years after the 1980 injury, the ALJ erred in concluding that the 1980 injury caused any permanent partial industrial disability which contributed to the claimant’s permanent total disability. The SIF also argues that Mr. Ryan’s testimony is insufficient to support the apportionment since he failed to identify any specific medical restrictions resulting from the 1980 injury and ignored the fact that the claimant returned to work as a truck driver. We are not persuaded.
Under § 8-46-101(1)(a), C.R.S. (1996 Cum. Supp.), the claimant’s last employer is liable for that portion of the permanent total disability attributable to the final industrial injury. The SIF is liable for that portion of the permanent total disability attributable to the prior industrial injury or injuries. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). The question of whether the claimant’s permanent total disability is the result of multiple industrial disabilities is one of fact for the ALJ. General Ironworks v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985). Moreover, the apportionment of permanent total disability between multiple industrial injuries must be a “de novo determination based on the relevant circumstances existing at the time of [the permanent total disability] determination.” Subsequent Injury Fund v. Gallegos, supra.
Further, under the law applicable to this claim, the ALJ is vested with broad discretion in determining the extent of an injured worker’s permanent disability. American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978). The ALJ may conclude that an injury has caused a loss of future earning capacity regardless of the fact that the claimant returned to the pre-injury employment. Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210 (Colo.App. 1990).
Because the issues are factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The SIF’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s apportionment of liability. The claimant testified that the 1980 injury resulted in permanent medical restrictions against lifting, and that the treating physician recommended that he not return to work as a truck driver. The mere fact that the claimant violated his physician’s recommendation and returned to work as a truck driver did not compel the ALJ to conclude that the effects of the 1980 did not continue to impair the claimant’s earning capacity. To the contrary, the 1980 injury may have precluded the claimant from obtaining some jobs even though he was willing to put himself at risk by performing them. Moreover, the claimant testified that after the 1980 injury he was unsuccessful in working as a car detailer due to pain associated with the injury. (Tr. pp. 26-27). Thus, there is evidence that the claimant’s access to the labor market was restricted after the 1980 injury.
Neither do we perceive any error in the ALJ’s reliance on Mr. Ryan’s testimony. Mr. Ryan testified that the claimant advised him of the medical restrictions which resulted from the 1980 injury. (Tr. p. 87). Further, Ryan testified that he issued his opinion concerning apportionment with full knowledge that the claimant had returned to work as a truck driver. (Tr. p. 88). Thus, the record contains an ample factual basis for Mr. Ryan’s opinion, and the weight to be assigned his opinion was a matter for the ALJ. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Insofar as the SIF made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 29, 1995, 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. (1995 Cum. Supp.).
Copies of this decision were mailed September 17, 1996 to the following parties:
Robert E. Brooks, 2875 Quebec St., Denver, CO 80207
Professional Drivers, Inc., 3133 Peoria St., Unit 207, Aurora, CO 80010-1518
Colorado Compensation Insurance Authority, Attn.: Brandee L. DeFalco, Esq. (Interagency Mail)
Subsequent Injury Fund — Interagency Mail
Kara T. Birkedahl, Esq., Trinity Place, Ste. 930, 1807 Broadway, Denver, CO 80202 (For the Claimant)
Roxane D. Baca, Esq., Assistant Attorney General David F. Schutzenhofer, Esq., Assistant Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203-1760 (For SIF)
By: ______________________