W.C. No. 4-229-169Industrial Claim Appeals Office.
June 29, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which required them to pay permanent total disability benefits. We affirm.
Under the applicable law, a claimant is permanently and totally disabled if unable to “earn any wages in the same or other employment.” Section 8-40-201(16.5), C.R.S. 1997; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Section 8-42-111(3), C.R.S. 1997, further provides:
“A disabled employee capable of rehabilitation which would enable the employee to earn wages in the same or other employment, who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability.”
Section 8-42-111(3) is an “affirmative defense” to a claim of permanent total disability benefits, and only applies after the claimant has established a prima facie case of permanent total disability. Drywall Products v. Constuble, 832 P.2d 957
(Colo.App. 1991). Therefore, it is the respondents’ burden to prove the claimant is barred from receiving permanent total disability benefits under § 8-42-111(3). See Monfort, Inc. v. Gonzales, 855 P.2d 19 (Colo.App. 1993).
It is undisputed the claimant suffered compensable injuries on September 14, 1994, when he fell and hit his head and low back. At the time of the injury the claimant was employed as a production planner. The claimant also suffered a back injury in 1991.
The 1994 injuries were treated by Dr. Reilly and Dr. Drazin. In April 1996, Dr. Reilly reported that the claimant suffers from persistent “acquired cortical dysfunction,” with the most prominent impairments in the areas of attention/concentration, executive functions, memory skills, and motor skills. Dr. Reilly also noted the claimant has ongoing problems with mood disturbance and pain. Dr. Reilly opined that improvement in the claimant’s cognitive status was not anticipated and expressed doubt the claimant could return to competitive employment.
Dr. Drazin placed the claimant at maximum medical improvement on May 31, 1996, with 51 percent permanent medical impairment due to 45 percent neuro-cognitive deficits and 11 percent impairment of the low back. Dr. Drazin also opined that the claimant is not capable of gainful employment.
Crediting the opinions of Dr. Reilly and Dr. Drazin, the ALJ found the claimant has difficulty reading for any length of time, difficulty comprehending what he has read, has numbness in his right upper extremity and both legs, uses a cane to walk, experiences dizziness and blurred vision, has balancing problems, experiences headaches several times a week of 2-8 hours duration, is easily fatigued, and suffers from tinnitus. The ALJ also found that the claimant becomes frustrated, angry, and agitated with people, and has short-term memory and cognitive functioning problems. Under these circumstances, the ALJ found that, as a result of the 1994 injuries, the claimant is unable to return to his pre-injury job or any other employment he had previously performed. Further, the ALJ determined the claimant is restricted to sedentary employment without stress or distractions.
The ALJ found that the respondents made an offer of vocational rehabilitation, which the claimant accepted. The vocational rehabilitation consisted of providing the claimant a manual, two hours orientation, and a telephone headset so he could make solicitation calls from his home on behalf of the Good Shepard Home to request the donation of items. For every “pickup” order he scheduled, the claimant would earn $1.19 to $1.75. The claimant had to make 30 calls and get 4 pickup orders to earn $5.00 per hour.
The ALJ found that the claimant attempted the telephone solicitation, but could not perform the job. The claimant was unable to schedule a single pickup order and earned no wages. The ALJ also found that after two weeks without obtaining an order, the Good Shepard Home refused to provide the claimant another donor list and vocational rehabilitation efforts ceased.
Under these circumstances, the ALJ rejected the respondents’ argument that the claimant “refused” an offer of employment or vocational rehabilitation, and therefore, the ALJ concluded that the respondents failed to sustain their burden to prove the claimant is barred from receiving permanent total disability benefits under § 8-42-111(3). The ALJ also refused to apportion the claimant’s permanent total disability between the 1994 injury and the 1991 low back injury. Consequently, the ALJ concluded that the respondents are responsible for all of the permanent total disability benefits awarded the claimant.
I.
The respondents do not dispute the ALJ’s finding that the claimant proved a prima facie case of permanent total disability. Instead, the respondents renew their contention that the claimant refused a “bona fide” offer of employment and vocational rehabilitation. In support, the respondents cite Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). Furthermore, the respondents contend the ALJ failed to determine whether they made an offer of “bona fide” employment. We disagree.
In Lobb v. Industrial Claim Appeals Office, supra, the court held that the question of whether the employer has made a “bona fide” offer of employment which will enable the claimant to earn “any wages” is a question of fact for resolution by the ALJ. Furthermore, the court concluded that the ALJ’s determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Here, the ALJ’s findings of fact reflect his implicit determination that the telephone solicitation work fell within the meaning of the term “employment.” Thus, we need not remand the matter for additional findings. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ’s order is sufficient to permit appellate review if the basis of the decision is apparent from the findings).
Furthermore, we reject the respondents’ contention that the facts of this case are indistinguishable from the circumstances i Lobb. In that case, the claimant was precluded from employment in the open, competitive labor market due to the residual effects of a compensable closed head injury. The employer offered to reemploy the claimant to work out of her home, primarily placing pre-printed labels on mailings at a rate of $10 per hour. However, the claimant refused the offer. The court held that the record supported the ALJ’s determination that the respondents’ offer met the definition of “employment.”
Moreover, in Lobb, the treating physician and two vocational rehabilitation consultants opined that the reemployment offer was an appropriate method for the claimant to earn wages. Consequently, the court upheld the ALJ’s determinations that the offer of reemployment evidenced the claimant’s ability to earn wages in “other employment,” and that the claimant was not totally disabled.
Here, unlike the facts in Lobb, the ALJ found that the claimant accepted and attempted the vocational rehabilitation offered by the respondents. However, the ALJ determined that the claimant was unable to perform the employment, and thus, the ALJ determined that the availability of the telephone solicitation work did not evidence the claimant’s ability to earn wages.
The ALJ’s determinations are plausible inferences from the testimony of Dr. Reilly and vocational rehabilitation expert Dr. Manuele. The claimant testified that it was difficult for him to deal with the rude people he called and he was frustrated by the job. (Tr. July 1, 1997, p. 49). Dr. Reilly opined the claimant is unable to perform a job which requires him to interact with people who are rude and unpleasant, and that the telephone solicitation job was not appropriate from a neuropsychological perspective. (Reilly depo. p. 41). As noted by the ALJ, the respondents’ vocational rehabilitation expert, Mr. Hartwick, did not dispute Dr. Reilly’s opinions, and instead Mr. Hartwick terminated vocational rehabilitation after Dr. Reilly indicated that the telephone solicitation job was inappropriate for the claimant. (Tr. July 28, 1997, p. 86). Furthermore, Dr. Manuele concluded that the claimant could not do the telephone solicitation job or any other job. (Tr. July 28, 1997, pp. 6, 7). Dr. Manuele’s opinions are consistent with the evidence the claimant was unable to schedule a single “pickup” order, and earned no wages during the vocational rehabilitation. (Tr. July 28, 1997, pp. 5, 97).
Moreover, there is substantial evidence in the record that the Good Shepard Home refused to provide the claimant with any further donor calling lists when it determined the claimant had not obtained any pickup orders from the first two lists it provided. Consequently, we have no basis to interfere with the ALJ’s finding that the claimant did not “refuse” vocational rehabilitation, and is not barred from receiving permanent total disability benefits.
II.
Alternatively, the respondents contend the ALJ erred in refusing to apportion the claimant’s permanent total disability as provided by § 8-42-104(2), C.R.S. 1997. In support, the respondents rely upon medical and vocational evidence which suggests that at least 5 percent of the claimant’s permanent total disability is attributable to the 1991 back injury. We perceive no error.
Section 8-42-104(2), provides that:
“In case there is a previous disability, the percentage of the entire 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 respondents, 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.” Therefore, in Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997), and Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997), the court held that apportionment of permanent total disability is not appropriate unless the pre-existing condition limited the claimant’s ability to work, or impacted the claimant’s access to the labor market and ability to earn wages.
The determination of whether a particular medical condition has caused a “disability” is a question of fact for the ALJ Baldwin Construction Inc., v. Industrial Claim Appeals Office supra. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and plausible inferences he drew from the record Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997).
Although the claimant was initially subject to medical restrictions for the 1991 injury, the ALJ found that the claimant was released to return to his regular employment after a laminectomy. The ALJ also found that the claimant was pain free, and missed no further time from work after the surgery. These findings are supported by substantial evidence in the September 19, 1991 report of Dr. Norrgran and the claimant’s testimony. (Tr. July 1, 1997, pp. 53, 54). Even Mr. Hartwick admitted he had no evidence the claimant was medically restricted after the surgery, and thus, conceded that the claimant’s medical restrictions before the surgery are meaningless. (Tr. July 28, 1997, pp. 70, 73). The record and the ALJ’s findings support his conclusion that even though the 1991 injury resulted in “medical impairment,” it does not constitute a “previous disability” for purposes of apportioning permanent total disability under §8-42-104(2).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 29, 1998 to the following parties:
Michael Goulding, 6005 S. Milwaukee Way, Littleton, CO 80121
Aspen Laboratories, 14603 E. Fremont Ave., Englewood, CO 80112
Nancy Rostad, Transamerica Insurance Group, P.O. Box 17005, Denver, CO 80217
Richard A. Bovarnick, Esq., Harvey D. Flewilling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For the Respondent)
Sally L. MacLuckie, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For the Claimant)
BY: _______________________