W.C. No. 4-166-959Industrial Claim Appeals Office.
June 5, 1998
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of a Supplemental Order of Administrative Law Judge Wheelock (ALJ), which requires it to pay ten percent of the claimant’s permanent total disability benefits. We affirm.
The ALJ found that the claimant sustained a compensable back injury in December 1992. At that time, the claimant was performing duties as a janitor for the respondent school district (Falcon). It is undisputed the claimant is permanently and totally disabled due to the injury. She suffers from pain, lifting restrictions, and the inability to stand or sit for any length of time.
The ALJ also found the claimant sustained prior industrial injuries in January and August 1989. Although these injuries did not preclude the claimant from returning to work as a janitor, they did disable her from returning to prior employments at dairies and hog farms.
Under these circumstances, the ALJ credited expert vocational evidence that the prior industrial injuries contribute ten percent to the claimant’s permanent total disability. Thus, the ALJ applied § 8-46-101(1)(a), C.R.S. 1997, and held the SIF liable for ten percent of the claimant’s permanent total disability benefits.
In so doing, the ALJ rejected the SIF’s argument that apportionment is improper because the claimant’s congenital hearing loss contributes to the permanent total disability. The ALJ determined that, although the hearing loss caused some loss of access to the labor market, the permanent total disability is solely the result of the combined industrial injuries. In support, the ALJ cited the testimony of the claimant’s vocational expert that the industrial injuries would render the claimant permanently and totally disabled without regard to the effects of the hearing loss. (Tr. pp. 45). The ALJ also relied on reports of the treating physician stating the claimant is permanently and totally disabled as a result of her back injuries, but containing no discussion of her hearing loss.
On review, the SIF contends the ALJ misapplied the law in holding it liable for a portion of the claimant’s permanent total disability benefits. Relying on City and County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984), the SIF argues it may not be held liable for permanent total disability benefits where, as here, the disability is partially the result of a non-industrial hearing loss. The SIF points out the ALJ explicitly found the claimant’s hearing loss diminished her access to the labor market prior to the 1992 back injury. We are not persuaded.
Section 8-46-101(1)(a) provides for apportionment to the SIF where the claimant has previously sustained a “permanent partial industrial disability,” and that disability combines with the subsequent industrial injury to produce permanent total disability. As the SIF argues, our courts have held that the statutory reference to an “industrial” disability means that none of the injuries causing the permanent total disability can be the result of non-industrial conditions or injuries. City and County of Denver v. Industrial Commission, supra; Waddell v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0611, January 22, 1998).
However, the courts have also held that the question of whether a permanent total disability is the “combined” result of successive industrial disabilities is one of fact for determination by the ALJ. General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985). Thus, it was the ALJ’s province to determine whether the claimant’s permanent total disability is partially the result of her hearing loss, or solely the result of the multiple industrial injuries.
Because the issue is 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. 1997. In this regard, it was for the ALJ to assess the weight and credibility of the evidence, and to draw plausible inferences from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995),
Here, we understand the ALJ to have determined that the claimant adjusted for her long-term hearing loss by seeking out and obtaining heavy jobs requiring minimal communication. Further, the ALJ determined that the effects of the combined industrial injuries were so disabling that they precluded the claimant from performing any of the jobs to which she might have had access irrespective of the hearing loss. Consequently, substantial evidence supports the ALJ’s determination that the claimant’s permanent total disability is solely the result of the combined industrial injuries, and not the result of her hearing loss. Cf. Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986) (although an injury need not be “significant” in terms of apportionment, it must be “significant” in that it bears a direct causal relationship to the disability for which benefits are sought).
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated February 5, 1998, 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 June 5, 1998 the following parties:
Katherine Fuchs, 15553 Sweet Rd., Peyton, CO 80831
Falcon School Dist. 49, P.O. Box 490, Colorado Springs, CO 80901-0490
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Andrew M. Katarikawe, A.A.G., Office of Attorney General, Civil Litigation Section,
1525 Sherman St., 5th Flr., Denver, CO 80203-1760 (For Subsequent Injury Fund)
Douglas A. Weddell, Esq., P.O. Box 636, Colorado Springs, CO 80901 (For the Claimant)
Thomas Hazard, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
By: __________________________________________________