W.C. Nos. 4-113-494, 4-137-829, 4-243-225Industrial Claim Appeals Office.
May 6, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) insofar as the ALJ apportioned liability for permanent total disability benefits. We affirm.
The claimant was employed by Unisys for ten years during which she suffered multiple industrial injuries. Insofar as pertinent, the claimant suffered a compensable injury to her left upper extremity on May 4, 1992. As a result of that injury, the claimant was unable to return to her regular employment, and was restricted to light-duty employment. On October 10, 1994, the claimant suffered industrial injuries to her left forearm and hip, resulting in further medical restrictions. In 1995, the employer terminated the claimant’s employment.
The ALJ found that the claimant is permanently and totally disabled from the combined effects of the 1992 and 1994 injuries. The ALJ apportioned 30 percent of the disability to the 1992 injury and 70 percent to the 1994 injuries. Therefore, the ALJ ordered the respondents to pay 70 percent of the claimant’s permanent total disability rate.
The respondents contend that the record does not support the ALJ’s apportionment of liability. We disagree.
Section 8-42-104(2) permits apportionment of permanent total disability benefits where there is a “previous disability” at the time of the industrial injury. It is now clear that a “previous disability” may be industrial or “non-industrial.” Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). To the extent the ALJ held to the contrary, she was incorrect.
Further, permanent total disability is defined as the inability to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 1997. Accordingly, the Court of Appeals has held that for purposes of permanent total disability, a previous “disability” refers to a preexisting condition which impacts the claimant’s ability to perform the job or impairs the claimant’s access to jobs “in the same or other employment.”Colorado Mental Health Institute v. Austill, 940 P.2d 1125
(Colo.App. 1997); Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra.
In Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra, the court held that it was not proper to apportion permanent total disability between the claimant’s industrial back injury and the claimant’s preexisting, nonindustrial obesity, depression, alcohol abuse, and muscle tension headaches, because the ALJ found that the preexisting medical problems did not independently impair the claimant’s earning capacity prior to the industrial injury. To the contrary, the record indicated that the claimant remained engaged in heavy employment until the occurrence of the industrial back injury.
We have held that evidence that the claimant remains physically capable of working after the first of two industrial injuries, but is unable to work after the second industrial injury, may support a finding that the claimant’s permanent total disability is attributable to the second injury. For example, i Burke v. Texas Instruments, W.C. No. 3-936-879 (February 5, 1993), aff’d, Texas Instruments, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 93CA0312, October 28, 1993) (not selected for publication), we held that evidence that the claimant successfully returned to employment involving heavy exertion for 20 years following an earlier back injury, supported a determination that the claimant’s prior injury did not contribute to the claimant’s permanent total disability.
The question of whether a “previous disability” has been shown is one of fact for determination by the ALJ. Colorado Mental Health Institute v. Austill, supra; General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985) Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Substantial evidence is probative evidence that would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). In applying the substantial evidence test, we are obliged to defer to the ALJ’s assessment of the probative weight and sufficiency of the evidence, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The respondents contend that the overwhelming evidence compels the conclusion that 70 percent of the claimant’s disability is attributable to the 1992 injury. In support, the respondents cite the testimony of their vocational rehabilitation expert, Douglas Prutting (Prutting), who testified that claimant lost access to 99 percent of the labor market as a result of the 1992 injury and lost access to the remaining 1 percent as a result of the 1994 injury. Prutting also stated that there is no “precise” method for apportioning vocational disability, but “taking a guess,” the 1992 injury was “roughly” 70 percent responsible for the claimant’s disability. (Tr. pp. 78, 79). The respondents argue that because the ALJ found Prutting’s testimony credible and uncontroverted, the ALJ erred in failing to apportion liability in accordance with Prutting’s testimony. We are not persuaded.
The ALJ expressly credited Prutting’s testimony that the claimant’s access to virtually all jobs is precluded by the combined effects of the 1992 and 1994 injuries, and found that testimony was uncontroverted. (Discussion and Conclusions of Law p. 11). This is true because the claimant’s vocational expert, Mr. Tonya Wheatley-Herman also concluded that the claimant is permanently totally disabled.
Further, the ALJ expressly recognized Prutting’s opinion of apportionment between the two injuries. However, the ALJ was free to credit only that part of Prutting’s testimony which she found persuasive, and her findings reflect her implicit determination that Prutting’s apportionment was not persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all part of an expert witness’ testimony); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
The ALJ found that the 1994 injury “added substantially” to the claimant’s overall disability, and resulted in left arm and low back pain which the claimant did not previously experience. She also found “significant” evidence that the claimant was able to return to work as a file clerk between 1992 and 1994 injuries. (Discussion and Conclusions of Law). Therefore, the ALJ determined that 70 percent of the claimant’s permanent disability is attributable to the 1994 injury.
The respondents’ arguments notwithstanding, the ALJ’s determination is supported by Prutting’s admission that the claimant’s clerical job was not sheltered employment, and that the clerical job is an occupation found in the local labor market. (Tr. p. 80). The ALJ’s determination is also supported by evidence that claimant was restricted to light-duty use of her upper extremities after the 1992 injury, but was restricted to sedentary work after the 1994 injury, with further restrictions on the use of her upper extremities. We also note that Dr. Rook did not release the claimant to any kind of employment after the 1994 injury.
Furthermore, the Employer’s First Report of Injury dated May 4, 1992 lists the claimant’s average weekly wage at the time of the 1992 injury as $339. See also Amended Final Admission of Liability dated January 17, 1994. Similarly, the respondents’ General Admission of Liability dated June 14, 1995, lists the claimant’s average weekly wage at the time of the 1994 injury as $339. Thus, the record contains substantial evidence that the claimant’s ability to earn her “preinjury” wage of $339 a week was not impaired until the 1994 injury.
The ALJ could reasonably infer from this evidence that no more than 30 percent of the claimant’s permanent vocational loss is attributable to the effects of the 1992 injury. Consequently, we may not interfere with the ALJ’s apportionment of liability for permanent total disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 9, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ Kathy E. Dean __________________________________ Dona Halsey
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 May 6, 1998 to the following parties:
Viola E. Marquez, 85 Scotland, #1 C, Pueblo, CO 81001
Anita Bencivengo, Risk Management, Unisys Corp., Township Line Union Meetings Road P.O. Box 500, BlueBell, PA 19424
Norma Logue, Alexsis, One Park Central Bldg., Ste. 410, 1515 Arapahoe St., Denver, CO 80202-2117
James May, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
Gregory B. Cairns, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80210 (For the Respondents)
BY: _______________________