W.C. Nos. 3-975-948, 4-109-621Industrial Claim Appeals Office.
September 20, 1995
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) dated December 15, 1994, insofar as it awards permanent partial disability benefits. We affirm.
The claimant suffered an admitted bilateral upper extremity injury on February 15, 1990, during the course of her employment as a bus driver. The injury is the subject of W.C. No. 3-975-948. The claimant resumed her preinjury employment in August 1991. On September 11, 1991, the claimant experienced a work-related dislocation of the right shoulder, which is the subject of W.C. No. 4-109-621. The claims were consolidated for hearing, and the claimant subsequently sought a hearing on the issues of permanent disability and disfigurement in the 1990 injury claim.
The ALJ found that the claimant reached maximum medical improvement from the 1990 injury on July 18, 1991, and continued to experience shoulder problems, which include chronic residuals of bilateral cuff injuries with chronic impingement, and chronic rotator cuff pain. Further, the ALJ found that the bilateral medical restrictions set forth in Dr. Gurley’s September 24, 1991 report, reflect a “realistic appraisal of the Claimant’s physical abilities resulting from” the 1990 injury.
The ALJ determined that the bilateral restrictions resulting from 1990 injury have caused the claimant to sustain a loss of access to numerous jobs of no less than 20 percent as a working unit. Therefore, the ALJ ordered the respondent to pay permanent partial disability benefits based upon a 20 percent disability as a working unit, which under former §8-42-110(1)(b), C.R.S. (1990 Cum. Supp.), entitles the claimant to maximum permanent partial disability benefits of $37,560.
The respondent contends that the ALJ’s award of maximum permanent partial disability benefits in the 1990 injury claim was erroneously based upon disability caused by the 1991 injury. The respondent also contends that the ALJ erroneously failed to apportion permanent disability benefits between the 1990 and 1991 injuries. However, initially the respondent contends that the ALJ’s findings of fact are insufficient to ascertain whether the ALJ considered the 1991 injury to be a new injury or a consequence of the 1990 injury. We reject the respondent’s arguments.
In his Summary Order dated November 17, 1994, the ALJ found that the “admitted September 11, 1991 right shoulder injury in W.C. 4-109-621” is a “new injury”. The ALJ also determined that the permanent disability which forms the basis of the award is not the result of the “complications posed by the admitted September 11, 1991 right shoulder injury.” Finding of Fact 3.
Notwithstanding the respondent’s suggestion to the contrary, these findings indicate a determination that the 1991 injury is a separate injury which is compensable in W.C. No. 4-109-621 and not the 1990 injury claim. Consequently, the ALJ’s findings of fact are sufficient for appellate review of the respondent’s arguments. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992); George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
Moreover, the respondent’s appeal raises an argument which was not presented to the ALJ. The parties agreed that the sole issues before the ALJ were the claimant’s entitlement to permanent partial disability benefits and disfigurement benefits in connection with the 1990 injury. Tr. pp. 3, 5. Respondent’s counsel asserted that the September 11 right shoulder dislocation was a “different” and “intervening” injury, and claimant’s counsel did not disagree. Tr. p. 9. In fact, claimant’s counsel added that the respondent admitted liability for medical and temporary disability benefits in W.C. 4-109-621. Tr. p. 4.
Under these circumstances, we understand the ALJ’s oral finding concerning the need to separate the claimant’s disability from the first and second injuries, to reflect his determination that the claimant’s permanent disability from the 1991 injury was not compensable in the 1990 injury claim. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988) rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). As a result, we need not consider the respondent’s arguments which presume that the ALJ considered the 1991 injury to be the natural and proximate consequence of the 1990 injury, and thus, compensable in W.C. No. 3-975-948. Compare Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
Next, we reject the respondent’s contention that by crediting Dr. Gurley’s September 24, 1991 report, the ALJ’s award of permanent disability was based, at least in part, on disability caused by the September 11, 1991 injury. Although Dr. Gurley’s report indicates that his examination of the claimant’s right shoulder was “limited” as a result of the claimant’s “recent reinjury,” the report also reflects his consideration of the medical reports concerning the treatment history of the claimant’s 1990 injury.
Furthermore, we agree with the ALJ that permissible inferences drawn from the medical reports of Dr. Bralliar support a finding that Dr. Gurley’s opinion of the claimant’s medical restrictions as of September 24, 1991, represents a “realistic appraisal of the Claimant’s physical abilities” following the 1990 injury. Dr. Gurley stated:
“I think [claimant] should avoid all overhead work. I think she should have lifting restrictions of 30 pounds, should not be reaching above her chest, away from her body or overhead. I specifically do not think that she should be driving a bus but I do think she can do some form of work. Her work should be light duty or medium duty if her arms and hands can stay below her waist and chest level.”
Dr. Bralliar reported on April 28, 1994, that after the 1990 injury, the claimant was unable to pull down the hood on the bus, play volleyball, swim, pick up a child, toss or catch a ball with her daughter, or remove snow from the windshield. Dr. Bralliar also stated that the claimant experienced the same limitations after the 1991 right shoulder injury, plus an additional loss of strength in her right upper extremity. The ALJ could, and did infer that the physical activities Dr. Gurley determined the claimant was unable to perform as of September 24, 1991, are similar to the movements the claimant told Dr. Bralliar she was unable to perform after the 1990 injury. Moreover, the fact that the claimant suffered a new work-related shoulder injury shortly after being released from treatment for the 1990 injury, and resuming employment as a bus driver, buttresses the ALJ’s decision to credit Dr. Gurley’s conclusion that the claimant is not physically able to drive a bus as a result of the 1990 injury. See Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances).
The respondents’ remaining arguments have been considered but are not persuasive. The ALJ was not asked to determine permanent disability in the 1991 injury claim. Therefore, even if Dr. Gurley’s report represents a determination of permanent disability from the right shoulder injury in 1991, it is immaterial whether the determination is based on conjecture.
We also note that the apportionment provisions currently codified at §8-42-104, C.R.S. (1995 Cum. Supp.), apply to the determination of permanent disability where the “employee has suffered a previous disability or received compensation.” Here, there was no determination of the claimant’s entitlement to permanent disability benefits on account of the 1991 injury. Tr. p. 3. Therefore, there was no “previous disability” to trigger the ALJ’s apportionment of benefits between the 1990 and 1991 injuries. In any case, the ALJ’s order does not purport to preclude the respondent from seeking an apportionment of benefits at the time of the determination medical impairment in W.C. No. 4-109-621.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 20, 1995 to the following parties:
Kim Hoffman, 1289 Columbine Dr., Castle Rock, CO 80104
Douglas County School District, Attn: Sharon Floistad, 620 Wilcox St., Castle Rock, CO 80104
OHMS, Attn: Marilyn Abbate, 700 Broadway, Ste. 1132, Denver, CO 80273
Patricia Jean Clisham, Esq. Barbara Schuman Heckler, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondent)
James Elliott, Jr., Esq., 7884 Ralston Rd., Arvada, CO 80002-2434 (For the Claimant)
BY: _______________________