W.C. No. 4-320-368Industrial Claim Appeals Office.
May 3, 2000
FINAL ORDER
The respondent seeks review of an order of former Administrative Law Judge Gandy (ALJ) which awarded permanent total disability benefits without apportionment. We affirm.
From 1984 to 1996, the claimant worked for the respondent as a plate finishing operator. The ALJ found that the job required frequent lifting, bending, pushing, pulling and twisting with occasional lifting up to 50 pounds. Between 1992 and April 1996 the claimant underwent three hernia repair surgeries. The ALJ found the claimant required a fourth surgery after a work-related hernia injury on April 25, 1996, which is the subject of this claim. The ALJ also determined that the April 1996 injury rendered the claimant permanently totally disabled. Therefore, the ALJ ordered the respondent to pay permanent total disability benefits.
Former § 8-42-104(2), C.R.S. 1998 [amended for injuries occurring on or after July 1, 1999 at 1999 Colo. Sess. Laws, ch. 141 at 410-411], allows an ALJ to apportion permanent total disability where the claimant suffers a “previous disability” and then sustains an subsequent industrial injury which renders him permanently totally disabled. The Subsequent Injury Fund was liable for that portion of permanent total disability attributable to a previous industrial disability, until July 1, 1993 when the fund was closed to new injuries. See § 8-46-104 C.R.S. 1999. Further, a “previous disability” must be independently “disabling” at the “time of the subsequent injury” to support apportionment Colorado Fuel Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652
(1968).
In denying the respondent’s request for apportionment, the ALJ found that the claimant was released to return to his regular employment after the first two hernia surgeries. The ALJ recognized that the treating physician restricted the claimant from lifting over 20 pounds after the third hernia surgery in 1995. However, the ALJ found that the claimant returned to his regular employment, was “able to meet his social, personal, and in particular, occupational demands which required him to lift up to 50 pounds occasionally,” until the April 1996 injury Therefore, the ALJ determined there was no “previous disability,” as contemplated by former § 8-42-104(2), which would support apportionment.
The ALJ also determined that all the hernias were caused by the employment. Relying on Bowland v. Industrial Claim Appeals Office, 984 P.2d 660 (Colo.App. 1998), the ALJ therefore determined that apportionment was not appropriate. The respondent timely appealed.
On review, the respondent argues there is not sufficient evidence to support the ALJ’s finding that the claimant had no “previous disability” at the time of the April 1996 hernia injury. In this regard, the respondent contends that because of inconsistencies between the claimant’s deposition testimony and hearing testimony, the claimant’s testimony is incredible as a matter of law. We perceive no reversible error in the ALJ’s determination.
Appellate courts have held that for purposes of apportioning liability for permanent total disability, the term “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. See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997); Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). It follows that the claimant’s disability is not subject to apportionment unless the prior hernias impaired his ability to earn wages.
We have previously held that evidence the claimant remained 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. See 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). Specifically, in Burke we held that evidence the claimant successfully returned to employment involving heavy exertion for 20 years following an earlier back injury supported an ALJ’s determination that the claimant’s prior back injury did not contribute to the claimant’s permanent total disability.
The question of whether a “previous disability” has been established is one of fact for resolution 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). Substantial evidence is not restricted to medical evidence, nor is it determined by the number of witnesses presented by each side. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Application of this standard requires that we defer to the plausible inferences which the ALJ drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We are also bound by the ALJ’s credibility determinations “except in extreme circumstances,” where the testimony he credited is so overwhelmingly rebutted by hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Here, it is undisputed that the claimant’s treating physician imposed a 20-pound lifting restriction after the third hernia surgery in 1995, and that the restriction was in place between February 19 and April 25, 1996. However, there was a direct conflict between the claimant and his former supervisor concerning whether the claimant’s job was modified to accommodate the restriction. The claimant’s former supervisor stated that the respondent accommodated the claimant’s restrictions, and told the claimant not to exceed them. The claimant testified that he returned to the same job assignment and performed the same job duties until the April 1996 injury. (Tr. p. 6; Trujillo depo. pp. 23-28, 32). There is also evidence the claimant was working on Line 71 at the time of the April 1996 injury, and that Line 71 required him to exceed his medical restrictions. (Tr. pp. 50, 51; Trujillo depo. p. 33). Under these circumstances, we cannot say the claimant’s assertion that he was not disabled before the April 26 injury is so overwhelmingly rebutted by other evidence that it is incredible as a matter of law. Halliburton Services v. Miller supra. Further, the claimant’s testimony constitutes substantial evidence which supports the ALJ’s finding that there was no “previous disability” for purposes of § 8-42-104(2). See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was sufficient to support determination that employment caused his heart attack).
We recognize the claimant admitted at the hearing that he was taking pain medication which might affect his memory. (Tr. pp. 25, 28). However, it was the ALJ’s province to assess the effect of those circumstances on the reliability of the claimant’s testimony. It is apparent the ALJ was not persuaded that the medication precluded the claimant from recalling the pertinent facts accurately, and we have no basis for interfering with the ALJ’s assessment.
In any case, even if the ALJ erred in finding the claimant suffered no “previous disability,” the error was harmless. I Bowland v. Industrial Claim Appeals Office, supra, the Court of Appeals concluded that § 8-42-104(2) does not allow the apportionment of permanent total disability caused by successive work injuries. The respondent contends Bowland was wrongly decided, but the court’s opinion was upheld in United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000). Both we and the ALJ are bound by the holding in United Airlines.
Here, there is substantial evidence to support the ALJ’s finding that the claimant’s previous hernia injuries arose out of and in the course of his employment. Thus, even assuming that those injuries caused a “previous disability” which combined with the final injury to result in permanent total disability, the ALJ did not err in failing to apportion the claimant’s permanent total disability. United Airlines, Inc. v. Industrial Claim Appeals Office, supra.
At both the deposition and the hearing the claimant testified that he believed the prior hernias were caused by his work. (Tr. pp. 12, 26, Trujillo depo. p. 4). The claimant also testified that he did not initially report the hernias as work-related because he wasn’t immediately sure what caused them. (Trujillo depo. pp. 19, 42). However, he stated that after the third hernia he started to believe they were caused by his activities on the job. (Trujillo depo. p. 42). Thereafter, he attempted to get a job transfer to avoid activities which seemed to aggravate his condition. However, he stated that the employer had no other jobs available and so he continued to perform the same job duties until he suffered the injury on April 25, 1996. (Trujillo depo. p. 43).
Further, the claimant never alleged that the previous hernias were caused by any specific industrial accident. See Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964) (unlike accidental injuries an occupational disease is not traceable to a particular, time, place and event). Therefore, the claimant’s inability to recall any specific injury date for the prior hernias does not render his testimony inherently unreliable.
Insofar as there are inconsistencies between the claimant’s hearing testimony and his deposition testimony, it was the ALJ’s sole prerogative to resolve the conflicts. In so doing, the ALJ was free to credit all or part of the claimant’s testimony Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication) (inconsistencies, contradictory evidence and incomplete testimony are not uncommon to the adversary process).
In any case, Dr. Macauley admitted that he compared the claimant’s reported history with the medical records and noted no inconsistencies. (Tr. pp. 71, 91). Therefore, Dr. Macauley’s testimony does not directly refute the claimant’s testimony concerning the nature and cause of the prior hernias.
Moreover, the ALJ’s order does not address Dr. Macauley’s testimony that disparities between the claimant’s history of his hernias and his deposition testimony convinced him that the previous hernia surgeries were not work related. Thus, we presume the ALJ did not find Dr. Macauley’s opinion persuasive. See Jefferson County Public Schools v. Dragoo, 765 P.2d 636
(Colo.App. 1988) (ALJ is not required to make specific findings on medical evidence he found unpersuasive).
In any case, Dr. Macauley’s opinions do not compel a contrary conclusion. Dr. Macauley was unaware of any activities more strenuous than the claimant’s work activities which could have caused the hernias. (Tr. p. 93). Dr. Macauley was also unable to state whether the prior hernias occurred at work or outside of work. (Tr. p. 78).
Nevertheless, the respondent asserts that the doctrine of res judicata barred the claimant from asserting any causal relationship between the employment and the prior hernias. The respondent’s argument is predicated on a Stipulation for the Full and Final Settlement of W.C. No. 4-341-788, where the claimant agreed to dismiss all workers’ compensation claims for benefits due on account of the first three hernias in exchange for the respondent’s admission of liability in this claim. The respondent contends the ALJ erroneously rejected its res judicata argument. We disagree.
Res judicata encompasses the concept of “claim preclusion.” It bars the relitigation of all claims that were actually litigated or could have been litigated in a prior proceeding. See Ferris v. Bakery Confectionery and Tobacco Union, Local 26, 867 P.2d 38 (Colo.App. 1993). Res judicata requires identity of subject matter, cause of action, parties and capacity in the person for whom or against the claim is made.
In W.C. No. 4-341-788, the claimant alleged a work-related hernia injury on August 24, 1995. The claimant subsequently filed this workers’ compensation claim for the April 1996 hernia injury. Both claims were set for hearing, but in a Settlement Agreement dated November 19, 1997, the claimant agreed to dismiss all claims for workers’ compensation benefits in connection with “any alleged occupational disease resulting in a hernia.”
The claimant has not attempted to litigate a claim for the prior hernia injuries in this proceeding. The claimant has only requested permanent total disability benefits for the April 1996 injury. Rather, the respondent raised the issue of whether the prior hernias were work- related. It follows that these circumstances do not involve “claim preclusion.” Instead, the respondent’s argument is effectively that the issue is barred under the doctrine of collateral estoppel.
Collateral estoppel is a derivative of res judicata and pertains to “issue preclusion.” Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ , Colo. App. No. 98CA1343, October 28, 1999 cert. granted 99SC865, April 24, 2000; M M Management Company v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). Collateral estoppel precludes the relitigation of an issue determined in a prior proceeding if the issue in the later proceeding is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; the party against whom estoppel is asserted has been a party to or was in privity with a party to the prior proceedings; there was a final judgment on the merits in the prior proceeding; and the party against whom estoppel is asserted has had a full and fair opportunity to litigate the issue in the prior proceeding. Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1974); M M Management Company v. Industrial Claim Appeals Office, supra.
In W.C. No. 4-341-788, the claimant alleged that the prior hernias were work-related, but agreed to forego a final determination on the merits in exchange for the respondent’s admission of liability in this claim. As a result, the issue of whether the prior hernias were caused by the employment was not litigated and there was no final “adjudication” on the merits. Rather, that issue became moot by the claimant’s agreement to waive compensation for the prior hernias. Under these circumstances, the doctrine of collateral estoppel is not applicable, and we agree with the ALJ that the Settlement Agreement did not preclude the claimant from presenting evidence that the previous hernias were work related.
In view of our disposition we need not consider the claimant’s contention that the respondent waived the res judicata
argument.
The respondent’s remaining arguments have been considered but are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 15, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 3, 2000
to the following parties:
Archie Trujillo, P. O. Box 2984, Loveland, CO 80539
Susan Havekost, Eastman Kodak Co., 9952 Eastman Park Dr., Windsor, CO 80550-3301
Jan McConnaughey, Esq., Eastman Kodak Co., 343 State St., Rochester, N Y 14650-0322
Miguel Martinez, Esq. and Jess M. Perez, Esq., 1102 5th St., #A, Greeley, CO 80631 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Pendroy