W.C. Nos. 3-560-076, 4-176-467, 4-189-691Industrial Claim Appeals Office.
December 12, 1995
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of a final order of Administrative Law Judge Gandy (ALJ) which ordered it to pay one hundred percent of the claimant’s permanent total disability benefits. We modify the order, and as modified, affirm it.
The ALJ’s findings may be summarized as follows. In July 1979, the claimant sustained a compensable injury while employed by Kiefer Concrete. This injury resulted in three back surgeries, the most recent of which occurred in 1987. The ALJ found that, throughout the period between 1979 and May 1991, the claimant attempted to perform various jobs, and complete vocational rehabilitation. However, the claimant was always unsuccessful because of problems stemming from the 1979 injury.
In May 1991, the claimant found a position as an apartment complex manager with respondent Leon Heatherington. This job required the claimant to perform various duties including general maintenance, bookkeeping, and carpentry. However, on June 30, 1991, the claimant suffered a “compensable exacerbation or aggravation” of his back injury. Despite the injury, the claimant attempted to continue to perform his duties, but eventually quit the job due to back pain.
Based on this evidence, the ALJ found that the claimant’s 1979 back injury “precipitated his decline into a subsequent state of later permanent total disability.” Further, the ALJ stated that the claimant’s subsequent injuries, including the one incurred on January 30, 1991 had a “de minimis” effect on the claimant’s permanent total disability. Nevertheless, the ALJ stated that the claimant suffered “at least two compensable injuries . . . which cumulatively resulted in, or acted to result in” the claimant’s permanent total disability. Under these circumstances, the ALJ found that the SIF’s liability is in the range of “99 to 100%.” Because of the small percentage of disability attributable to the 1991 injury, the ALJ concluded that it was “inappropriate and impractical” to assign a “proportional fraction of a percent” as the employer’s liability. Consequently, the ALJ ordered the SIF to pay one hundred percent of the permanent total disability benefits.
On review, the SIF frames the issue as whether the ALJ erred in ordering it to pay one hundred percent of the permanent total disability benefits where the ALJ found that permanent total disability was caused by a single injury. The SIF argues that the ALJ found that the claimant’s permanent total disability is entirely the result of the 1979 injury, but erroneously assigned liability to the SIF. We reject this argument.
In order to impose liability on the SIF pursuant to the statute currently codified at § 8-46-101(1)(a), C.R.S. (1995 Cum. Supp.), it must be shown that the claimant sustained permanent partial industrial disability from more than one industrial injury, and that the “combined industrial disabilities render the employee permanently and totally” disabled. Under this statute, the ALJ is obliged to determine the relative contributions of each industrial injury to the claimant’s permanent total disability benefits. This determination must be a “de novo determination based on the relevant circumstances existing at the time of [the] determination.” Subsequent Injury Fund v. Gallegos, 746 P.2d 71
(Colo.App. 1987). To the extent the ALJ’s apportionment is supported by substantial evidence in the record, it must be upheld on review. General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo. 1985); §8-43-301(8), C.R.S. (1995 Cum. Supp.).
The SIF’s argument notwithstanding, we do not agree that the ALJ found that the 1979 injury was the sole cause of the claimant’s permanent total disability. To the contrary, the ALJ expressly found that the 1991 injury contributed to the permanent total disability, but to the extent of less than one percent of the total.
Moreover, the ALJ’s finding that the 1991 injury contributed to the disability is amply supported by plausible inferences drawn from the evidence in the record. It is true that the evidence establishes that the overwhelming majority of the permanent total disability is attributable to the 1979 injury. However, the claimant was working at the time of the 1991 injury, and did not become disabled from performing the job as an apartment complex manager until after the 1991 injury. Therefore, the record contains evidence from which the ALJ could logically infer that the consequences of the 1991 injury deprived the claimant of his last measure of employability. The fact that the ALJ might have made other findings and conclusions is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
However, the ALJ should not have assessed liability against the SIF for one hundred percent of the claimant’s permanent total disability benefits. Under the statute, the SIF is liable for only that portion of the permanent total disability benefits which is not attributable to the effects of the last industrial injury. Subsequent Injury Fund v. Gallegos, supra. Here, the ALJ has assessed liability for all of the permanent total disability benefits against the SIF, although he concedes that the evidence does not justify this result.
In our view, the proper result is to assess liability against the SIF for ninety-nine percent of the claimant’s permanent total disability benefits. To the extent that the ALJ was unable to determine the precise extent of the SIF’s liability for the additional one percent, the findings are simply insufficient to support the order. Section 8-43-301(8) (Panel may set aside order not supported by the findings).
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 18, 1994, is modified to reflect that the SIF is liable for ninety-nine percent of the claimant’s permanent total disability benefits. As modified, the order is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 12, 1995 to the following parties:
Todd J. Brownlee, 421 Galaxy Wy., Ft. Collins, CO 80525
Mr. Leon R. Heatherington, Route 4 Box 989, Summerland Key, FL 33042
Kiefer Concrete, Inc., 360 Linden St., Ft. Collins, CO 80524-2496
Mr. David Durst and Ms. Betty VanAmburg, 44595 Poudre Canyon Highway, Belleview, CO 80512
Richard K. Blundell, Esq., 800 8th Ave., #202, Greeley, CO 80631
(For the Claimant)
Colorado Compensation Insurance Authority, Attn: Legal Dept. — Interagency Mail
Subsequent Injury Fund — Interagency Mail
Attorney General’s Office, Attn: James E. Martin, Jr., Esq., 1525 Sherman St., 5th Flr., Denver, CO 80203
(For the SIF)
By: ______________________