W.C. No. 4-009-141Industrial Claim Appeals Office.
May 21, 1996
FINAL ORDER
The Colorado Department of Transportation (CDOT) and the Colorado Compensation Insurance Authority (CCIA respondents), and the Subsequent Injury Fund (SIF), seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded permanent total disability benefits and apportioned liability between the CCIA respondents and the SIF. We modify the order, and as modified, affirm it.
The ALJ’s findings and conclusions may be summarized as follows. The claimant, who was employed as director of purchasing for the CDOT, sustained a compensable back injury in January 1991. Following the injury, the claimant was able to return to work and remained in his job until July 1993 when he was discharged due to a felony conviction.
Nevertheless, crediting the claimant’s testimony and the opinions of the claimant’s vocational expert, Dr. Litvin, the ALJ concluded that the claimant is not able to return to work as a purchasing director, or in any other capacity. The ALJ specifically noted that, in Dr. Litvin’s opinion, the “last few years of [the claimant’s] employment was modified work, with accommodations being made, almost to the point of it being sheltered employment.” Consequently, the ALJ determined that the claimant is permanently totally disabled.
In support of his determination, the ALJ stated that there “appear to be three factors” on which the permanent total disability is based. Specifically, the ALJ cited the 1991 injury, a prior industrial injury which occurred in 1986, and the claimant’s “previous injuries while in the military.” Nevertheless, the ALJ rejected the SIF’s “Motion to Dismiss” predicated on the SIF’s contention that the “military injuries” resulted in non-industrial disability. The ALJ stated that the “purpose of having a subsequent injury fund in the first place would be frustrated if one non-industrial disability could take such a fund out of the picture.” Thus, the ALJ apportioned seventy-nine percent of the liability to the CCIA respondents and twenty-one percent to the SIF.
I.
On review, the CCIA respondents and the SIF make two arguments concerning their contention that the record does not support the award of permanent total disability benefits. First, they argue there was evidence that the claimant was boarding horses for pay. They further argue that the evidence establishes that the claimant could perform his pre-injury employment, and is only unemployed because he was convicted of a felony. The respondents also contend that the ALJ applied an incorrect legal standard. We reject these arguments.
Under the applicable law, the claimant is permanently and totally disabled if he has lost, and will not regain, efficiency in some substantial degree in a field of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940); Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991). The essence of the test is the claimant’s ability to find employment in the open, competitive labor market without regard to such factors as business booms, temporary good luck, or extraordinary efforts to overcome his limitations. Moreover, the claimant’s performance of “sheltered employment” is not sufficient to overcome a finding of permanent total disability. Gruntmeir v. Tempel Esgar, Inc., 730 P.2d 893 (Colo.App. 1986).
The determination of permanent total disability is a factual matter for resolution by the ALJ. Further, the ALJ is given the widest possible discretion in assessing the numerous factors relevant to the issue Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). To the extent the ALJ’s determination is supported by substantial evidence, it must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard, we may not substitute our judgment for that of the ALJ concerning the weight of the evidence, the credibility of the witnesses or the inferences to be drawn therefrom. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The respondents’ argument notwithstanding, evidence that the claimant boarded horses did not compel the ALJ to deny the claim for permanent total disability benefits. The ALJ was persuaded by the claimant’s testimony that, since the injury, the number of horses boarded has been reduced from twenty-two to five. Moreover, the claimant testified that he needs assistance in caring for these horses, and that receipts from the boarding are minimal and used to defray the costs of keeping the claimant’s own horses.
In view of the limited income from the boarding, the ALJ could reasonably conclude that the claimant has not demonstrated “efficiency in some substantial degree” in a field of general employment. Moreover, this conclusion is supported by the testimony of Dr. Litvin that the claimant is permanently and totally disabled under the applicable standard. The fact that the ALJ might have drawn some other inference is immaterial on review May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
We also reject the argument that the evidence compelled the ALJ to find that the claimant is capable of performing his pre-injury employment. Such a finding would be contrary to the claimant’s own testimony, as well as that of his vocational expert. This is particularly true in light of the claimant’s testimony concerning the post-injury job modifications and the deterioration of his condition. Again, we decline to interfere with the ALJ’s resolution of conflicts in the evidence.
Moreover, we perceive no legal error in the ALJ’s reference to the supreme court’s ruling in PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). The ALJ recognized that PDM was addressed to temporary disability benefits, not permanent total disability benefits. Nevertheless, the case supports the general proposition that if a claimant is responsible for loss of a job, the claimant should not necessarily be disqualified from receipt of disability benefits if the effects of the injury contribute to the continuing disability.
In this regard, we note that the claimant is entitled to permanent total disability benefits if the industrial injury bears a direct causal relationship to the disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). In our view, the ALJ’s reference to PDM was really a different way of stating that, based on the facts, the claimant’s disability was at least partly the result of the industrial injury, not merely the conviction.
In any event, the ALJ applied the correct legal standard in determining that the claimant is permanently and totally disabled. Therefore, the reference to the PDM case amounts to harmless error.
We further note that the claimant has argued that his entitlement to permanent total disability benefits should have been determined on the standard of inability to obtain “steady gainful employment.” See McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). We need not consider this argument since the evidence supports the ALJ’s application of the stricter standard set forth in Byouk and Prestige Painting and Decorating.
II.
The SIF further contends that the ALJ erred in requiring it to pay a portion of the claimant’s permanent total disability benefits. The SIF argues that the claimant’s military injuries resulted in “non-industrial disability” which contributes to the claimant’s permanent total disability. Therefore, the SIF reasons that the permanent total disability is not the result of combined “industrial disabilities” as required by § 8-46-101(1)(a), C.R.S. (1995 Cum. Supp.). We agree.
Section 8-46-101(1)(a) provides for SIF liability if the claimant has sustained multiple industrial disabilities, and the “combined industrial disabilities render the employee permanently and totally” disabled. I City and County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984), the supreme court held that the statute does not permit SIF liability “when non-industrial factors contribute to the claimant’s total disability.” The court recognized that this interpretation of the statute might restrict the willingness of employers to hire partially disabled workers. However, the court stated that if the legislature had desired to fully enhance opportunities for persons with pre-existing medical conditions, “employers would have been accorded the protection of apportionment not only for prior industrial disabilities, but also for prior non-industrial impairments.” Cf. Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990) (an industrial disability, for purposes of SIF liability, exists if the industrial injury aggravates a previously non-disabling condition).
Furthermore, in City and County of Denver v. Industrial Claim Appeals Office, 892 P.2d 429 (Colo.App. 1994), the court of appeals held that disabilities resulting from military injuries incurred in the “line of duty” do not constitute “permanent partial industrial disability” for purposes of § 8-46-101(1)(a). In so doing, the court of appeals reiterated that, because of the “precise wording” of § 8-46-101(1)(a), application of the SIF statute “is limited to those previous partial disabilities resulting from industrial injuries.” Thus, the court held that there was no SIF liability because the claimant’s permanent total disability was partially attributable to his military injury.
The ALJ’s conclusion notwithstanding, we perceive no basis for distinguishing this case from City and County of Denver v. Industrial Claim Appeals Office, supra. Here, as in that case, the claimant’s permanent total disability is partially due to disability attributable to his “non-industrial” military injuries. Under these circumstances, the language of § 8-46-101(1)(a) precludes SIF liability because the permanent total disability is partially the result of non-industrial disability. While this result may have the effect of diminishing the beneficial purposes of the SIF statute, that is a problem for the General Assembly, not the courts. City and County of Denver v. Industrial Commission, supra.
We have also considered the argument that the holding in City and County of Denver v. Industrial Claim Appeals Office is distinguishable because, in that case, the ALJ found the permanent total disability was “in substantial part” attributable to the military injury. However, we do not understand the term “substantial” as establishing a requirement that SIF liability will be allowed unless a certain percentage of the permanent total disability can be attributed to non-industrial factors. To the contrary, we understand the term “substantial” as constituting any actual contribution of non-industrial factors to the claimant’s permanent total disability. This conclusion is supported by City and County of Denver v. Industrial Commission, supra. Further, the reference to a “substantial” contribution appears to have been a finding of fact made by the ALJ, and not a legal requirement established by the court of appeals.
Further, we reject the assertion that the ALJ did not find, as a factual matter, that the claimant’s military injuries contributed to the permanent total disability. To the contrary, the ALJ expressly stated that one of the “factors” upon which the claimant’s permanent total disability is based is his “previous injuries while in the military.” This conclusion is amply supported by evidence in the record.
Under these circumstances, we must modify that portion of the ALJ’s order which apportions liability to the SIF. Liability for the claimant’s permanent total disability must be placed entirely on the CCIA respondents under the full responsibility rule.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 25, 1995, is modified to reflect that liability for the claimant’s permanent total disability is solely the responsibility of the CCIA respondents.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 21, 1996 to the following parties:
Kenneth Howard, 10403 N. 65th, Longmont, CO 80503
Colorado Dept. of Transportation, 4201 E. Arkansas Ave., #274, Denver, CO 80222-3406
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Subsequent Injury Fund, Attn: Barbara Carter (Interagency Mail)
James Martin, Esq., Office of the Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
Ruth K. Irvin, Esq., 5353 Manhattan Cir., #101, Boulder, CO 80303 (For the Claimant)
By: ___________________