W.C. Nos. 4-120-535 AND 4-162-889Industrial Claim Appeals Office.
May 5, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied his request for apportionment to the Subsequent Injury Fund (SIF). The claimant contends that because he was able to return to work following a non-industrial injury, that injury did not combine with subsequent industrial injuries so as to produce permanent total disability. We affirm.
In 1986 the claimant injured his knee and ankle in a non-industrial automobile accident. Although the claimant continued to experience symptoms from these injuries, he was able to return to his pre-injury job at a water plant. The ALJ found that this job did not require excessive standing, walking, or climbing.
In 1990 the respondent-employer transferred the claimant to a position which required him to work in a power plant. This job required substantial climbing, which placed stress on the claimant’s preexisting knee condition. As a result, the claimant aggravated the knee condition and overused his upper extremities. The claimant filed a workers’ compensation claim for these problems. The claimant also experienced stress because of alleged discrimination, and filed a separate claim for this condition. Finally, the claimant filed a claim based on hearing loss.
It is undisputed that the claimant is permanently and totally disabled. However, he argued to the ALJ that liability for the permanent total disability benefits should be apportioned to the SIF. The ALJ rejected the claim for SIF liability finding that the non-industrial knee injury was a contributing cause of the permanent total disability. The ALJ also concluded that the SIF is not responsible for any permanent total disability benefits attributable to occupational diseases.
On review, the claimant contends the ALJ erred in failing to apportion liability to the SIF. The claimant argues that because he returned to work at his regular duties following the 1986 non-industrial knee injury, that injury cannot be considered a contributing cause of the permanent total disability. We disagree.
Section 8-46-101(1)(a), C.R.S. 1998, provides for SIF liability where multiple industrial disabilities combine to render the claimant permanently and totally disabled. In such cases the employer or insurer on the risk at the time of the “subsequent injury” is liable for that portion of permanent total disability benefits attributable to the subsequent injury, and the SIF is liable for the balance.
Because the statute is predicated on combined “industrial injuries,” it has been held that SIF liability is unavailable when a portion of the permanent total disability is caused by non-industrial injuries. City County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984); Waddell v. Industrial Claim Appeals Office, 964 P.2d 552 (Colo.App. 1998). The question of whether disability resulting from a non-industrial injury is contributing to a permanent total disability is one of fact for determination by the ALJ. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0469, February 4, 1999); General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985).
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. 1998. This standard requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s determination that the 1986 non-industrial knee injury was contributing to the claimant’s permanent total disability independent of the subsequent industrial injuries. The SIF’s vocational expert testified that climbing and kneeling restrictions caused by the 1986 automobile accident precluded the claimant from performing approximately eight percent of the jobs listed in the Dictionary of Occupational Titles. The claimant’s own vocational expert admitted that the claimant sustained “some vocational disability” as a result of the 1986 non-industrial injury. Thus, the ALJ could plausibly infer that a portion of the claimant’s permanent total disability is attributable to non-industrial causes.
The fact that the claimant was able to return to his pre-injury job following the 1986 automobile accident does not require a different result. Under the current statute, permanent total disability is predicated on the claimant’s inability to earn “any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 1998. Thus, restrictions caused by the 1986 injury could preclude the claimant from performing some jobs to which he would otherwise have had access, even if he remained able to perform the specific job he held at the time of the injury. Thus, the 1986 injury affected the claimant’s overall ability to earn wages.
In light of this result we need not consider arguments concerning the SIF’s liability for occupational diseases.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 28, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
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. 1998.
Copies of this decision were mailed May 5, 1999 to the following parties:
Frederick Earl Johnson, Sr., 736 Cardinal Street, Widefield, CO 80911
City of Colorado Springs, 701 N. Circle Drive, Colorado Springs, CO 80909-5121
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349 (For Claimant)
Andrew M. Katarikawe, Esq., Office of the Attorney General, Consumer Protection Section, 1525 Sherman Street, Fifth Floor, Denver, CO 80203 (For SIF)
BY: LE