W.C. No. 4-242-938Industrial Claim Appeals Office.
May 8, 1998
ORDER OF REMAND
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), insofar as it denied a request for apportionment of the claimant’s permanent total disability benefits. We set aside the contested portion of the order, and remand for entry of a new order.
The ALJ found that the claimant sustained three compensable back injuries while employed by respondent K-Mart Corporation (K-Mart). The first injury occurred in 1985 while the claimant was employed as a mechanic. The second injury occurred in 1991 while the claimant was employed as an auto service manager. The final injury occurred in December 1994 when the claimant was still employed as a service manager. It is now undisputed that the claimant is permanently and totally disabled. The issue in the case is whether the effects of the 1985 and 1991 injuries contributed to the claimant’s permanent total disability so as to warrant apportionment.
In this regard, the ALJ credited the testimony of the claimant’s vocational expert. The expert opined that no vocational impairment existed following the 1985 injury because the claimant was able to return to his preinjury employment as a mechanic, no permanent restrictions were imposed, and K-Mart did not provide the claimant with vocational rehabilitation.
The vocational expert recognized that after the 1991 injury the claimant’s physician imposed a restriction of “no repetitive lifting over thirty pounds.” However, the expert opined that apportionment is inappropriate because the claimant was able to return to work as a service manager and “earned the same or higher pay.” Significantly, the ALJ noted the expert’s testimony that, because the claimant “remained in [the] medium class work until his 1994 injury, he at most lost access to only the heavy and very heavy class of employment.” (Finding of Fact 2).
Based on these circumstances, the ALJ concluded that K-Mart is liable for the claimant’s permanent total disability benefits without apportionment. The ALJ recognized that “prior disability is apportionable if the preexisting conditions affected the claimant’s ability to meet personal, social, or occupational demands.” The ALJ also recognized that apportionable disability may be evidenced by proof of loss of access to the labor market. However, the ALJ stated that he was not “persuaded” to apportion permanent total disability benefits because the claimant “returned to his same position, at full duty at the same (and higher) earnings following the 1985 and 1991 injuries.”
On review, the respondent contends, inter alia, that the ALJ’s findings of fact are insufficient to determine whether he applied the correct definition of “disability” in rejecting the claim for apportionment. The respondent argues the evidence demonstrates that the 1985 and 1991 injuries caused apportionable disabilities, and the mere fact the claimant returned to work at the same or higher wages after each injury does not refute a loss of access to the labor market. Because we conclude the ALJ’s findings do not support the order, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 1997.
Section 8-42-104(2), C.R.S. 1997, provides for apportionment of permanent total disability benefits in cases where there is a “previous disability” in existence at the time of the subsequent injury. For purposes of the statute, a “disability” is assessed by nonmedical 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 the 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, 940 P.2d 1125 (Colo.App. 1997).
Here, the ALJ credited testimony of the claimant’s expert that, after the 1991 injury, the claimant “at most lost access to only the heavy and very heavy class of employment.” Although not explicitly mentioned by the ALJ, the claimant’s vocational expert also testified that loss of access to the heavy and very heavy categories of employment would give the claimant a “9.9 percent impairment, or 10 percent.” (Tr. p. 68).
Thus, the ALJ appears to have credited evidence that, although the claimant was able to return to his pre-injury duties after the 1991 injury, the injury restricted access to other
employment in the labor market. Because Colorado Mental Health Institute v. Austill holds that disability may be predicated on the claimant’s loss of access to “other employment,” the ALJ’s denial of apportionment is inconsistent with his findings of fact.
Similarly, the mere fact the claimant subsequently earned higher wages after each injury does not contravene the claimant’s possible loss of access to other employment. In fact, our courts have historically held that post-injury earnings are not presumptive proof of the presence or absence of lost earning capacity, which is the pertinent issue. See Vail Associates, Inc. v. West, 692 P.2d 1111 (Colo. 1984).
Under these circumstances, the matter must be remanded to the ALJ for entry of a new order concerning apportionment of permanent total disability benefits. In reaching this result, we do not hold that the ALJ must apportion, nor do we hold that the evidence requires any particular percentage of apportionment. We merely conclude that the ALJ’s findings, as presently constituted, are inconsistent with the order. Moreover, we should not be understood as expressing any opinion concerning the weight and credibility of any evidence in this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 1997, is set aside insofar as it denied apportionment of permanent total disability benefits. The matter is remanded for entry of a new order on this issue.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
Copies of this decision were mailed May 8, 1998 to the following parties:
Larry M. Fresquez, 4404 W. 6th St., Greeley, CO 80634
Frank Zamora, K-Mart Corporation, 2400 W. 29th St., Greeley, CO 80631
K-Mart Corporation, McMillan Claim Service, 2785 N. Speer Blvd., Denver, CO 80211
Britton Morrell, Esq., 710 11th Ave., #L-10, Greeley, CO 80631 (For Claimant)
Miguel Martinez, Esq., 1102 5th St., #A, Greeley, CO 80631 (For Claimant)
Bruce McCrea, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondent)
By: _________________________