W.C. No. 4-297-289Industrial Claim Appeals Office.
May 13, 1998
ORDER OF REMAND
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), insofar as it awarded permanent total disability benefits and denied the respondent’s request for apportionment. We affirm the award of permanent total disability benefits, and remand the matter for entry of a new order on the issue of apportionment.
The claimant was employed by the respondent for twenty-seven years. For the first twenty years he worked in gas line construction. However, following an industrial knee injury in 1989, the claimant was restricted from walking on uneven ground. Consequently, he became a corrosion engineer until he sustained another industrial knee injury in January 1996.
Following the 1996 knee injury, the ALJ found that the claimant was transferred to “office work” where he performed data entry. However, the claimant soon developed bilateral carpal tunnel syndrome (CTS) and could no longer perform that work.
The parties presented conflicting expert opinions concerning whether the claimant is now permanently and totally disabled. However, the ALJ credited the testimony of the claimant’s expert, Dr. Litvin, that the claimant is unable to earn any wages as a result of the January 1996 injury.
The ALJ recognized that the respondent’s expert opined that the claimant’s 1989 injury caused the claimant to suffer a forty percent loss of access to the labor market. However, the ALJ discredited this evidence because the claimant continued to work at “full wages” and earned $46,000 a year after the 1989 injury.
Under these circumstances, the ALJ concluded that the claimant is permanently and totally disabled. In so doing, the ALJ found that, although the claimant performed small engine repair in his home, he does not earn any money from this work. The ALJ also determined that the respondent failed to prove a right to apportionment because of the claimant’s ability to earn wages after the 1989 injury.
I.
Upon review, the respondent first contends the ALJ erred in finding that the claimant’s permanent total disability is the result of the January 1996 knee injury. The respondent argues that the claimant was able to return to work as a data entry operator following the 1996 injury, and therefore, the claimant’s CTS constituted a “new” occupational disease or injury which is the cause of the permanent total disability. We are not persuaded.
When an industrial injury leaves the body in a weakened condition, and the weakened condition is the cause of additional injury, the additional injury is a compensable consequence of the industrial injury if it flows proximately and naturally therefrom Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). In view of this principle, we have previously held that if an industrial injury to one part of the body results in an injurious overuse of a second part, the injury to the second part is a compensable consequence of the original injury. E.g. Muniz v. Leprino Foods Co., W.C. No. 4-143-215 (March 25, 1996).
The question of whether a disability is the result of the original industrial injury, or some new and subsequent injury, is one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Because the issue is factual in nature, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. The substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Here, we understand the ALJ to have found that the CTS was a natural and proximate result of the claimant’s 1996 knee injury. The 1996 knee injury resulted in the respondent moving the claimant to restricted duty as a data entry operator. The data entry job in turn caused the claimant to overuse his upper extremities and develop CTS. Consequently, there is substantial evidence of a causal relationship between the 1996 injury and the CTS. Cf. Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994) (second claim might lie against on-the-job training (OJT) employer were claimant was injured during vocational rehabilitation OJT, and OJT employer was paying part of claimant’s wages).
It follows that the ALJ did not err in refusing to treat the CTS as a separate compensable event for purposes of awarding permanent total disability benefits. To the contrary, the CTS was a compensable consequence of the 1996 knee injury, and did not require separate treatment for purposes of awarding benefits.
II.
The respondent next contends that the ALJ erred in awarding permanent total disability benefits because the claimant’s small engine repair activities demonstrate the ability to earn wages. We disagree.
Under § 8-40-201(16.5)(a), C.R.S. 1997, the claimant is not entitled to permanent total disability benefits unless he proves that the industrial injury has rendered him unable to earn “any wages.” The question of whether the claimant has carried this burden is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997) Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Because the issue is factual, we must uphold the ALJ’s order if supported by substantial evidence. Section 8-43-301(8).
Here, the claimant testified that he receives no pay for the small engine repair services he performs. Moreover, the claimant’s expert testified that, in view of the claimant’s physical restrictions, and the requirement that he frequently elevate his knee and rest, the claimant is essentially unemployable. Taken together, this testimony constitutes substantial evidence that the claimant is not able to earn any wages. As we have previously stated, the claimant’s ability to perform some service or physical activity does not necessarily equate with the ability to earn wages in employment. Glasper v. Donald E. Jagger Roofing Co., W.C. No. 4-111-369 (January 8, 1998).
III.
The respondent next contends that the ALJ erred in denying its request for apportionment of the permanent total disability benefits. The respondent argues apportionment is required because the 1989 knee injury impaired the claimant’s ability to work in gas pipe construction, and impaired his access to the labor market. The respondent also argues that the claimant’s earnings after the 1989 injury do not disprove the propriety of apportionment. Because the ALJ may have applied an incorrect legal standard, we remand for entry of a new order.
Section 8-42-104(2), C.R.S. 1997, provides for apportionment of permanent total disability benefits in cases where there is a “previous disability” in existence at the time of the “subsequent injury”. But see, Waddell v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0611, January 22, 1998) (Briggs, J. specially concurring). For purposes of § 8-42-104(2), a “disability” is assessed by nonmedical means, and represents an alteration of the claimant’s “capacity to meet personal, social, or occupational demands.” Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). An apportionable disability may be evidenced by impairment of the claimant’s capacity to perform the pre-injury job, or limitation of access to the job market affecting the claimant’s ability to earn a wage at the same or other employment. Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
Moreover, we have held that the existence of an apportionable disability, based upon loss of access to the labor market, is not necessarily refuted by evidence that the claimant continued to earn wages at pre-injury levels after the injury. Fresquez v. K-Mart Corp., W.C. No. 4-242-938 (May 8, 1998). To the contrary, our courts have historically held that increased post-injury earnings are not presumptive proof of the absence of lost earning capacity. See Vail Associates, Inc. v. West, 692 P.2d 1111 (Colo. 1984).
Here, the ALJ appears to have concluded that the 1989 knee injury did not result in an apportionable disability because the claimant continued to earn the same or higher wages after the injury. Nevertheless, the claimant himself testified that the 1989 injury resulted in physical restrictions which required him to change to a less demanding job in corrosion engineering. (Tr. pp. 17-18). Moreover, the respondent’s expert testified that limitations resulting from the 1989 injury caused a substantial loss of access to the labor market because the claimant could no longer perform heavy work. (Tr. p. 28).
Under these circumstances, we conclude the ALJ may have applied an incorrect standard of law when he held that apportionment was improper because the claimant earned the same or higher wages after the 1989 injury. Although the claimant’s post-injury earnings may be relevant, the proper focus is on whether the 1989 injury impaired the claimant’s access to the labor market, or his ability to perform the duties of the pre-injury employment.
In reaching this conclusion, we have considered the claimant’s arguments based upon the unpublished opinion of Henkels McCoy, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA0424, November 20, 1997) (not selected for publication) (copy in record). However, in that case, the claimant was able to return to his pre-injury employment as a heavy equipment operator after the first industrial injury. Moreover, the claimant had performed this job for some twenty-three years, and the court concluded that his hypothetical loss of access to some employments did not require a finding of apportionable disability.
Here, in contrast, the 1989 injury impaired the claimant’s ability to perform his pre-injury employment. Thus, it impaired his ability to perform the type of work he had performed for some twenty years prior to the injury.
Under these circumstances, the matter must be remanded to the ALJ for reconsideration of the issue of apportionment. In reaching this result, we do not hold that the ALJ must apportion, nor do we take any position concerning the proper degree of apportionment. We merely hold that the ALJ’s order reflects a possible misapplication of the law.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 22, 1997, is affirmed insofar as it awards permanent total disability benefits.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as it denied apportionment of permanent total disability benefits, and the matter is remanded for entry of a new order on this issue in accordance with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
Copies of this decision were mailed May 13, 1998 to the following parties:
Thomas A. Trujillo, 235 S. Irving St., Denver, CO 80219
Kimberly Costin, Public Service Company of Colorado, 1225 17th St., Ste. 800, Denver, CO 80201-0840
Douglas Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
By: _________________________