W.C. Nos. 4-133-841, 4-177-705, 4-185-221, 4-210-801Industrial Claim Appeals Office.
April 10, 1997
FINAL ORDER
Respondents HCC Foothills Care Center, Inc. (HCC), and its insurer, Fidelity Casualty Company of New York (Fidelity), seek review of an order of Administrative Law Judge Gandy (ALJ). The order determined that the claim for the 1990 injury is not barred by the statute of limitations, and awarded benefits accordingly. Further, the ALJ determined that the claimant is permanently and totally disabled as a result the December 2, 1993 injury, and that the Fidelity respondents are liable for permanent total disability benefits without apportionment. We affirm.
This matter was before us previously. In our order dated April 4, 1996, we remanded the matter to the ALJ for a determination of whether the claim for the April 1990 back injury is barred by the statute of limitations, and for consideration of the tolling provisions. In his order of October 2, 1996, the ALJ found that the claimant reported the back injury to her supervisor on April 14, 1990, but continued to work for HCC without interruption. Further, the ALJ found that the claimant did not recognize the nature, seriousness, and probable compensable nature of the injury until Dr. Bolles issued his report of October 16, 1991. At that time, Dr. Bolles diagnosed the claimant as suffering from a herniated disk at L5-S1, and recommended that the claimant “entertain” his recommendation for surgery. In view of these findings, the ALJ held that the claim was not barred, and did not address the tolling provisions.
Our April 4 order also remanded the matter to the ALJ to determine whether the claimant’s permanent total disability benefits should be apportioned under the provisions of § 8-42-104(2), C.R.S. (1996 Cum. Supp.). We held that resolution of this issue was a factual matter for the ALJ.
On remand, the ALJ found that, despite suffering injuries in April 1990, April 1992, and May 1993, the claimant was always able to return to her work as a cook at HCC. Further, the claimant was able to earn wages on a full time basis until HCC terminated her employment on March 31, 1994. Under these circumstances, the ALJ concluded that the claimant was not “disabled” prior to the injury of December 2, 1993, and he declined to apportion the permanent total disability benefits based on the claimant’s prior injuries.
I.
On review, the Fidelity respondents first contend that the claim for the April 1990 injury, which was filed in September 1993, is barred by the two-year statute of limitations found at § 8-43-103(2), C.R.S. (1996 Cum. Supp.). In support of this proposition, the respondents cite evidence that the claimant experienced pain immediately following the April 1990 injury, and reported it to her employer. Moreover, the respondents recite the claimant’s testimony that she experienced increased pain during the summer of 1990, and began to experience pain down the back of her leg. The respondents also argue that Dr. Bolles’ October 16, 1991 report is irrelevant since it does not discuss the relationship between the claimant’s back condition and her work. We reject the respondents’ arguments.
As we stated previously, the statute of limitations does not commence to run until the claimant, as a reasonable person “should recognize the nature, seriousness, and probable compensable character of the injury.” City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194
(1967). In order to recognize the “seriousness” of a condition, the claimant must recognize that it is to some degree disabling. Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981); 2B Larson Workmens’ Compensation Law, § 78.41(e). Further, the mere apprehension of pain, which the claimant associates with a work-related injury, does not necessarily rise to an appreciation that the injury is so serious as to justify a claim for compensation. See Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1984).
Here, there is substantial evidence to support the ALJ’s finding that the claimant did not recognize the “seriousness” of her industrial injury until October 1991. In fact, the claimant continued to work despite her back pain, and missed no time from work until Dr. Bolles recommended surgery in October 1991. Moreover, although the claimant sought medical treatment for her back, she was not diagnosed with a herniated disc until Dr. Bolles issued his report in October 1991. The mere fact that some evidence might support a contrary conclusion is immaterial on review. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) cf. Dunagan v. City of Durango, W.C. No. 4-248-644, 4-248-645 (May 15, 1996).
II.
The Fidelity respondents next contend that the ALJ erred in failing to apportion the claimant’s permanent total disability benefits. The respondents argue that the ALJ’s finding that the claimant was working full time and earning wages on December 2, 1993, is an insufficient legal basis to deny apportionment based on the prior injuries. The respondents assert that the ALJ should have apportioned based on medical evidence indicating that the claimant had substantial permanent medical impairment attributable to the 1990 and 1992 back injuries. Further, the respondents assert that the ALJ was not legally entitled to disregard medical opinions that the claimant did not sustain “additional” medical impairment and restrictions due to the December 2, 1993 injury. We are not persuaded.
In Baldwin Construction, Inc. v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 96CA1362, March 6, 1997), the Court of Appeals held that the claimant’s preexisting non-industrial conditions were not subject to apportionment under § 8-42-104(2) because the evidence showed that they did not, independent of the industrial injury, “cause a significant loss of access to the labor market and did not render claimant unemployable.” In reaching this conclusion, the Court of Appeals cited Askew v. Industrial Claim Appeals Office, 927 P.2d 1333
(Colo. 1996), for the proposition that the term “disability,” as used in § 8-42-104(2), connotes an impairment of the claimant’s ability to meet “personal, social, or occupational demands,” and is not measured by medical means.
Moreover, in Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194
(Colo.App. 1995), the Court of Appeals rejected the notion that permanent total disability, as defined by § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), must be measured solely on the basis of the claimant’s “functional” or “medical impairment.” To the contrary, the Baumgartner
court held that a claimant’s ability to earn “any wages” may be evaluated by taking into account the “human factors” which were relevant to permanent total disability determinations prior to SB-218. Further, as we held in Moyers v. Burlington Coat Factory Warehouse, W.C. No. 4-162-499
(April 4, 1997), one of the relevant “human factors” is the claimant’s “general physical condition.” This factor includes the claimant’s ability to “handle pain and the perception of pain.” See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
Ultimately, the claimant’s ability to “earn any wages” is a factual matter for determination by the ALJ. Best-Way Concrete Co. v. Baumgartner, supra. Since apportionment is largely a factual matter, we must uphold the ALJ’s order if supported by substantial evidence in the record. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra; § 8-43-301(8). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Here, the evidence supports the ALJ’s finding that, despite suffering serious injuries in April 1990 and April 1992, the claimant returned to her preinjury employment as a cook and cook’s helper. It was only after the December 2, 1993 injury, and the imposition of a ten pound lifting restriction in March 1994, that the claimant was discharged from her employment with HCC. Thus, viewing the evidence in a light most favorable to the claimant, the ALJ could logically infer that the vast majority of the impairment of the claimant’s capacity to earn wages is attributable to the December 1993 injury. Cf. Morrill v. Western Fuels Utah, Inc., W.C. No. 3-115-544 (January 14, 1997).
The ALJ was not required to reach a different result merely because Dr. Britton attributed all of the claimant’s medical impairment to the 1990 and 1992 injuries. To the contrary, as pointed out in Baldwin Construction Inc., a finding of medical impairment does not necessarily correlate with a “disability” under § 8-42-104(2). Here, the claimant’s testimony, as well as the imposition of additional medical restrictions in March 1994, supports the inference that the December 1993 injury was the event which triggered the claimant’s permanent total disability. The claimant testified to increasing pain after December 1993, and HCC immediately discharged the claimant when the additional restrictions were imposed. (Tr. pp. 32-33, 38).
The respondents also argue that the ALJ was bound by the restrictions imposed by the treating physicians, and could not consider the claimant’s “self-reported” restrictions. In support of this contention, the respondents rely on Burns v. Robinson Dairy, 911 P.2d 661
(Colo.App. 1995), and similar cases. However, we rejected a similar argument in Moyers v. Burlington Coat Factory Warehouse, supra. The following language from that decision is pertinent:
“Burns holds that the opinion of the attending physician concerning the claimant’s ability to return to work is binding when the issue is termination of temporary disability benefits under § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.). As we have held, permanent total disability involves the application of a different and broader standard, and we do not consider Burns to be persuasive with respect to the factors which may be considered in determining permanent total disability.”
III.
The Fidelity respondents’ final contention is that there is not substantial evidence to support the ALJ’s finding concerning the claimant’s average weekly wage at the time of the 1990 injury. However, the claimant’s testimony, coupled with the vocational report of Ms. Batzer-Sterck, is sufficient to support the ALJ’s order. (Tr. p. 16; Batzer-Sterck Report, p. 2).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 2, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed April 10, 1997 to the following parties:
Bertha V. Haislip, 1518 19th Ave., Longmont, CO 80501
HCC Foothills Care Center, Inc., 1440 Coffman St., Longmont, CO 80501-2726
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco-Galvin, Esq. (Interagency Mail)
Fidelity Casualty Co. of New York, % Continental Loss Adjusting, P.O. Box 17930, Denver, CO 80217-0930
H. William Sims, Jr., Esq., P.O. Box 978, Longmont, CO 80502-0978 (For the Claimant)
Robert A. Weinberger, Esq. Katherine H.R. Mackey, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Fidelity Respondents)
By: _______________________________