W.C. No. 4-181-359Industrial Claim Appeals Office.
June 4, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) to the extent it denied apportionment of the claimant’s permanent total disability benefits. We affirm.
The ALJ found the claimant sustained a compensable back injury on August 2, 1993. At that time, the claimant was performing heavy work which required him to strip wood pallets. (Tr. pp. 9-10). The claimant has not been able to return to work since the August 2 injury, and it is undisputed he is now permanently and totally disabled.
However, the respondents presented evidence the claimant suffers from congenital blindness and a low intelligence quotient (IQ). The respondents’ vocational expert opined that these conditions precluded the claimant from access to eighty-eight percent of the labor market (Tr. pp. 53-54). The respondents also presented evidence that the claimant sustained a hand injury in 1985, and a prior back injury on March 17, 1993.
The ALJ declined the respondents’ request to apportion the permanent total disability benefits based on the claimant’s “pre-existing handicaps which include his vision and low IQ.” The ALJ reasoned that these conditions do not constitute apportionable disabilities because they did not”alter” the claimant’s ability to meet personal, social, or occupational demands. Rather, the ALJ determined that these conditions constituted non-apportionable “handicaps” as defined by the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides).
The ALJ also rejected the respondents’ contention that the permanent total disability benefits should be apportioned based on the prior hand and back injuries. The ALJ stated that although these injuries may have resulted in “impairments,” the evidence fails to provide “any explanation as how the claimant was disabled as a result” of these injuries. In support of this conclusion the ALJ noted that, after both injuries, the claimant returned to his pre-injury duties.
I.
On review, the respondents first contend the ALJ erred in failing to apportion the permanent total disability benefits based on the claimant’s vision and developmental (IQ) problems. The respondents argue that, regardless of whether the claimant’s congenital problems constitute “handicaps” within the meaning of the AMA Guides, they represent apportionable “disabilities” within the meaning of § 8-42-104(2), C.R.S 1997, and Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Specifically, the respondents reason the congenital conditions impaired the claimant’s ability to meet “occupational demands” because they limited his access to the general labor market. We find no error in the ALJ’s order.
Section 8-42-104(2) provides as follows:
In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.
As a general matter, interpretation of this statute requires us to effect the legislative intent. To the extent the statute is ambiguous, we should construe it in the context of the Act as a whole so as to give consistent, harmonious and sensible effect to all its parties. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Further, we must assume the General Assembly intended a just and reasonable result. Section 2-4-201(1)(c), C.R.S. 1997.
In Askew, the court referred to the AMA Guides for the purpose of defining “disability” as used in § 8-42-104(2). The court distinguished a “disability” from a medical “impairment,” and held that a “disability” represents an “alteration” of the claimant’s capacity to meet “personal, social, or occupational demands.” The court also noted that Professor Larson states that apportionment does not apply in cases where the “prior condition was not a disability in the compensation sense.”927 P.2d at 1338; 5 A. Larson, Workers’ Compensation Law, § 59.22(a).
The Askew definition of an apportionable disability has been applied to permanent total disability cases, and it has been held that apportionment is proper where the pre-existing condition affected the claimant’s ability to perform his job, or limited his access to the labor market prior to the industrial injury Colorado Mental Health Institute v. Austill, 940 P.2d 1125
(Colo.App. 1997). However, we do not understand Askew as addressing the question of whether purely congenital conditions, which are uninfluenced by injuries or deterioration after birth, constitute “disabilities” within the meaning of § 8-42-104(2). Rather Askew
addressed the issue of whether a preexisting degenerative condition, which was not itself causing disability prior to the injury, was apportionable. Neither do we read Austill or any of the other permanent total disability cases as addressing this question.
We do not read § 8-42-104(2) to mean that an apportionable “disability” may result from a purely congenital condition uninfluenced by circumstances subsequent to birth. If this were a valid reading of § 8-42-104(2), few cases of permanent total disability would not be subject to apportionment. This is true because few people are born with physical and intellectual capacity affording them total access to every job in the labor market. Rather, most persons are subject to physical or mental capabilities which limit the range of personal, social and occupational choices.
Consequently, the most plausible reading of § 8-42-104(2) is that the General Assembly recognized that individual claimants are born with different physical and mental aptitudes, and therefore, with baseline “access to the labor market” of something less than one hundred percent. Thus, an apportionable “disability” arises when the claimant’s baseline access to the labor market is reduced by injuries, illness, or aging processes which occur after birth. These after-birth events become disabilities “in the compensation sense.”
This conclusion is supported by an examination of the statute as a whole. In Weld County School District, RE-12 v. Bymer
____ P.2d ____ (Sup.Ct. No. 97 SE 36, March 9, 1998), the court held that it is proper to consider various “human factors” in determining whether the claimant is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. 1997. As was the law prior to the adoption of § 8-40-201(16.5)(a), these factors include the claimant’s general physical condition, mental ability, age, employment history, education, and the availability of work which the claimant can perform.
Because the ALJ may consider a claimant’s individual “human factors,” it is apparent the legislature appreciated that each individual claimant is born with a different capacity to earn wages, depending on his or her particular mental and physical attributes. Consequently, it would be neither logical nor just to read § 8-42-104(2) as treating a claimant’s congenital mental or physical conditions as apportionable disabilities for purposes of § 8-42-104(2).
We also agree with the ALJ’s position that purely congenital conditions or circumstances, uninfluenced by intervening causes, do not represent “alterations” of a claimant’s ability to meet personal, social, or occupational demands. To the contrary, such conditions represent the claimant’s baseline capacity to meet personal, social, and occupational demands. Therefore, the result we reach here is consistent with the definition of “disability” set forth in Askew.
Further, our conclusion is influenced by the statutory scheme for the payment of permanent total disability benefits. Permanent total disability benefits are based on a percentage of the claimant’s average weekly wage. Section 8-42-111(1), C.R.S. 1997. In turn, the average weekly wage is based on the claimant’s earnings at the time of the injury. Section 8-42-102(2), C.R.S. 1997. Because, at the time of the injury, the claimant was able to earn wages entitling him to a temporary total disability rate of $160 a week, it would seem anomalous to reduce these “total disability benefits” on the theory that some portion of the total wage loss is attributable to disabilities which the claimant has had since birth.
We recognize that the purposes of § 8-42-104(2) include ensuring that employers pay only those costs attributable to the “subsequent injury,” and encouraging employers to hire partially disabled workers. Waddell v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0611, January 22, 1998). However, we do not think these statutory objectives are served by treating claimants as disabled from birth. Rather, we view § 8-42-104(2) as addressing these objectives when the claimant’s preexisting condition is a disability “in the compensation sense.”
To summarize, we view all persons as being born with a baseline earning capacity or access to the labor market. This access is likely less than total, and represents a claimant’s optimum potential earning capacity considering his or her physical and mental attributes. Apportionment under § 8-42-104(2) is appropriate when the claimant’s baseline earning capacity or access to the labor market is reduced by events occurring subsequent to birth, but prior to the industrial injury in question.
Thus, we find no error in the ALJ’s failure to apportion the permanent total disability benefits based on the claimant’s purely congenital conditions. As the ALJ recognized, the claimant’s baseline access to the labor market was narrowly restricted from the time of birth. In view of that narrow restriction, the cause of the claimant’s permanent total disability, that is, his inability to earn any wages in view of the available alternatives, is the August 1993 industrial back injury.
II.
The respondents next contend the ALJ erred in failing to apportion the permanent total disability benefits based on the claimant’s 1985 hand injury and the March 1993 back injury. The respondents point out that the claimant experienced ongoing pain after both of these injuries, and was apparently wearing a back brace from the March 1993 back injury at the time of the August 1993 back injury. Under such circumstances, the respondents argue the claimant’s return to regular employment after each injury is insufficient to defeat the claim for apportionment because his access to the labor market was adversely affected by the prior injuries. The respondents also assert that the ALJ applied an incorrect standard of law because the claimant’s return to work is not, in and of itself, sufficient to establish whether the prior injuries caused a loss of access to the labor market. We are not persuaded.
The question of whether prior injuries are “disabling” for purposes of § 8-42-104(2) is largely one of fact for determination by the ALJ. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). As the respondents point out, an apportionable disability is one which adversely impacts the claimant’s ability to perform his job, or limits the claimant’s access to other jobs in the labor market Colorado Mental Health Institute v. Austill, supra. Further, the respondents bear the burden of proof to establish grounds for apportionment. See Cowin Co. v. Medina, 860 P.2d 535 (Colo. 1992). The question of whether the respondents carried that burden is itself one of fact for determination by the ALJ. Se Metro Moving Storage v. Gussert, 914 P.2d 411 (Colo. 1995).
Here, the ALJ found that the respondents failed to carry their burden of proof to explain how the claimant was disabled by the prior hand injury or back injury. In support, the ALJ found that after each injury the claimant returned to the same type of work he performed prior to the injury. Moreover, the ALJ found that both of the jobs involved “physical labor,” and this finding is supported by the claimant’s testimony. Finally, the respondents point to no evidence indicating the claimant was permanently restricted from returning to either of the jobs.
Under these circumstances, the evidence supports the ALJ’s determination that the respondents presented insufficient evidence to prove the claimant was disabled by either of these prior injuries. Although there may be some evidence in the record from which the ALJ could have drawn an inference that there was apportionable disability, he certainly was not compelled to find this evidence persuasive on the facts present here. Consequently, the evidence supports the ALJ’s refusal to apportion. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra.
Similarly, the ALJ’s order reflects no misapplication of the law. The claimant’s ability to continue performing the same type of work which he performed prior to the injury constitutes substantial evidence in opposition to a finding of apportionable disability. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra. Moreover, this case is distinguishable from the unpublished decision cited by the respondents. In the unpublished case, the ALJ merely found the claimant was “earning wages and working full-time until the last injury occurred.” Obviously, that finding is different than the findings made in this case.
In light of this disposition, we need not reach the alternative arguments raised by the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ David Cain ___________________________________ Bill Whitacre
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. (1996 Cum. Supp.).
Copies of this decision were mailed June 4, 1998 to the following parties:
John G. Reasor, 15816 Coleman Ave., Ft. Lupton, CO 80621
Absolute Employment Services, Inc., 3487 10th St., Suite F, Greeley, CO 80631
Colorado Compensation Insurance Authority, Attn: Curt Krikscium, Esq. (interagency mail)
Regina M. Walsh Adams, Esq., 1122 9th St., Suite 202, Greeley, CO 80631 (For the Claimant)
BY: _______________________