W.C. No. 4-503-539.Industrial Claim Appeals Office.
October 23, 2003.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Klein (ALJ) which awarded permanent total disability benefits without apportionment. We affirm.
In March 2001, the claimant suffered admitted injuries to her left knee, left shoulder and cervical spine while working as a cashier. As a result of the industrial injuries, the claimant sustained 25 percent impairment to the whole person and is medically restricted from overhead lifting and lifting over 10 pounds frequently. In addition, the claimant has standing and walking limitations due to persistent left knee problems.
At the time of the hearing on permanent total disability the claimant was age 71. The claimant is a native of Mexico, with a high school education. The claimant’s work history consisted of 24 years of employment as a cashier and 4 years of employment as a general office clerk. It is undisputed that the residual effects of the industrial injuries preclude the claimant from returning to her pre-injury employment as a cashier.
The respondent’s vocational expert, Margo Hammar (Hammar), opined the claimant remains capable of earning wages in sedentary and light duty work that does not require overhead reaching. The claimant’s vocational expert, David Zierk (Zierk), opined the claimant is permanently and totally disabled from competitive employment “secondary to the consequences” of the 2001 industrial injuries. Zierk’s opinion was based upon the residual effects of the injuries, the claimant’s permanent work restrictions, the claimant’s work history, the claimant’s limited education, the claimant’s advanced age and the fact that Spanish is the claimant’s primary language. Zierk further opined that the claimant’s communication and cognitive skills are compromised by her chronic pain, fatigue and personal constitution.
Upon consideration of the claimant’s age, work history, permanent restrictions and education, as well as the opinions of the medical experts and the testimony of Zierk, the ALJ found the claimant is permanently and totally disabled. Further, the ALJ found that the generic references to medical treatment the claimant received before the 2001 industrial accident were insufficient to establish the claimant had a “disability” from any pre-existing medical condition. In particular, the ALJ found the claimant’s advanced age was not disabling and was neither a singular or principle factor affecting the claimant’s access to the labor market. To the contrary, the ALJ found the claimant was working full time in her usual occupation immediately preceding the industrial accident. Therefore, the ALJ determined the respondent failed to prove grounds for apportionment.
On review, the respondent contends the record compels a finding that the claimant’s pre-existing condition excluded her from 40 percent of the labor market. The respondent’s argument is premised on evidence that the claimant was limited to sedentary or light duty employment before the 2001 industrial injuries and medium to heavy work accounts for 40 percent of the labor market. Therefore, the respondent contends the ALJ erroneously failed to apportion the claimant’s permanent total disability. We disagree.
Initially we reject the respondent’s contention that the ALJ misapplied the “full responsibility rule.” The ALJ correctly found that under the full responsibility rule the employer takes the employee as he finds her, and evidence that personal factors have combined with a work related injury to render the claimant permanently and totally disabled does not preclude a finding of permanent and total disability. See Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990); Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). The ALJ also recognized that congenital defects create no exception to the full responsibility rule for purposes of determining whether the claimant has established a prima facie case of permanent and total disability. See Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999).
However, the ALJ expressly recognized that apportionment of permanent and total disability benefits is governed by §8-42-104(2)(a), C.R.S. 2002. Thus, the ALJ’s order does suggest a misapplication of the law.
Section 8-42-104(2), provides that permanent total disability may be apportioned as follows:
“when there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.” (Emphasis added).
As argued by the respondent, the court in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), held that the apportionment of permanent partial disability is only appropriate when the pre-existing condition has been sufficiently identified, treated, or evaluated to be rated as a contributing factor in a subsequent disability. However, Askew also held that the apportionment of pre-existing medical impairment is not appropriate unless the medical impairment causes a “disability.” A “disability” limits the individual’s capacity to meet the demands of life’s activities, including occupational demands.
Permanent total disability is based on the claimant’s ability to earn wages and not “medical impairment.” Rather, permanent total disability is defined as the inability to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2002. Accordingly, the courts have held that the term “previous disability” refers to a preexisting, non-industrial condition which impairs the claimant’s ability to earn wages in the same or other employment. United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000); Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999), Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997); Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). Furthermore, a pre-existing condition is not subject to apportionment unless it is independently disabling at the time of the industrial injury. As applied in Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra, the court held that it was not proper to apportion permanent total disability between the claimant’s industrial back injury and the claimant’s preexisting, nonindustrial obesity, depression, alcohol abuse, and muscle tension headaches, because an ALJ found that the preexisting medical problems did not independently impair the claimant’s earning capacity prior to the industrial injury.
Moreover, in Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, supra, the court held that the term “disability” excludes purely congenital conditions because people are born with different physical and mental aptitudes and few people “have access to the entire labor market.” Instead the court interpreted § 8-42-104(2) to recognize that people are born with a baseline access to the labor market that is limited and apportionment only applies when the baseline is “reduced by injuries, illness, or aging processes,” which occur after birth but before the industrial injury. Ibid at 1232.
It was the respondent’s burden to prove grounds for apportionment. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, supra. Whether the respondent sustained its burden of proof was a question of fact for the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, supra. We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. Under the substantial evidence standard we must defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
The claimant’s medical history dating back to 1997 included treatment for Bell’s Palsy, renal cysts, abdominal pain, shingles, cardiac arrhythmia, hypertension, diabetes mellitus, a work-related thumb injury and a work-related ankle injury. In 1998 the claimant was treated for back pain, food poisoning and depression following the death of her son. The claimant has also been diagnosed with scoliosis of the spine, arthritis of the spine and headaches. (Respondent’s Hearing Exhibit A — DIME March 19, 2002).
The respondent’s arguments notwithstanding, the record does not compel an order of apportionment. Hammar opined the claimant’s previous depression, her age and her limited skills restricted the claimant to unskilled labor before the 2001 industrial injuries. (Tr. February 19, 2003, p. 139). Hammar also opined that the claimant’s prior work-related ankle injury and back problems contributed to the claimant’s loss of labor market access. However, Hammar expressed difficulty assigning a specific percentage to the claimant’s loss of labor market access from these conditions in the absence of actual medical restrictions. (Tr. February 19, 2003, p. 140). Moreover, Hammar stated that the claimant’s medical history of treatment for non-occupational health problems, along with her advanced age “could very well have an impact on her employability; however these factors did not preclude her from working previously, and should not now.” (Respondent’s Hearing Exhibit B, p. 17).
Zierk was unable to determine any specific loss of access due to the cervical problems in the absence of evidence that the degenerative process caused actual functional impairment. (Tr. February 19, 2003, p. 104). Further, Zierk denied any permanent impairment or disability from the claimant’s depression. (Tr. February 19, 2003, pp. 81, 94). Rather, he opined that the claimant’s work with the respondent-employer was consistent with her overall constitution based on her age, fragileness, and agility. (Tr. February 19, 2003, p. 106).
The ALJ rejected Hammar’s testimony and instead relied on the testimony of Zierk. Based on Zierk’s testimony, we conclude the ALJ reasonably inferred that the respondent failed to prove that non-industrial factors such as the claimant’s advanced age, either separately or in combination, were disabling at the time of the 2001 injuries. Therefore, we cannot say that as a matter of law that the ALJ erroneously failed to apportion the claimant’s permanent and total disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 14, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 23, 2003 to the following parties:
Mary Cisneros, 8749 Flower Pl., Arvada, CO 80005
Ultramar Diamond Shamrock, c/o Laura Berg, Valero Claims Management, Inc., P.O. Box 696080, San Antonio, TX 78269
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Timothy L. Nemechek, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)
BY: A. Hurtado