W.C. Nos. 3-104-212, 3-106-336Industrial Claim Appeals Office.
March 21, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) insofar as it denied his request for Subsequent Injury Fund (SIF) liability, and failed to order the Colorado Compensation Insurance Authority (CCIA), insurer for the employer, to pay one hundred percent of his permanent total disability benefits. The CCIA seeks review of the ALJ’s order insofar as it requires the CCIA to pay ninety percent of the permanent total disability benefits. We affirm the order insofar as it denies SIF liability, and modify the order with respect to the CCIA’s liability.
The ALJ found that the claimant is permanently and totally disabled as a result of the combined effects of knee and ear injuries which he sustained in the military, a 1991 head and neck injury which he sustained while employed by respondent Morning Star Arabians (Morning Star), and a 1992 low back injury which he sustained while employed by Morning Star. The ALJ apportioned ten percent of the permanent total disability to the military injuries, sixty percent to the 1991 industrial injury, and thirty percent to the 1992 industrial injury.
Under these circumstances, the ALJ concluded that the SIF is not liable for any of the claimant’s permanent total disability benefits because the military injuries did not produce “industrial disability” for purposes of § 8-46-101(1)(a), C.R.S. (1996 Cum. Supp.). Moreover, the ALJ determined that, pursuant to § 8-42-104(2), C.R.S. (1996 Cum. Supp.), the CCIA was “entitled to apportion the Claimant’s military injuries to the extent of ten percent.” However, the ALJ held the CCIA liable for the remaining ninety percent of the permanent total disability benefits.
I.
On review, the claimant contends that the ALJ erred in determining that the disability resulting from the military injuries did not produce “industrial disability” for purposes of § 8-46-101(1)(a). The claimant reasons that, because he sustained the injury to his knees when falling into a fox hole, and the injury to his ears when a howitzer fired, he was performing services “arising out of and in the course of” his military “employment.” We reject this argument.
Section 8-46-101(1)(a) does not allow SIF liability if the permanent total disability is partially caused by non-industrial disabilities. City and County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984). Moreover, i City and County of Denver v. Industrial Claim Appeals Office, 892 P.2d 429 (Colo.App. 1994), the court of appeals held that disabilities resulting from military injuries do not constitute “industrial disabilities” for purposes of §8-46-101(1)(a). In support of this conclusion, the court noted that military injuries are presumed to occur in the “line of duty” regardless of whether they were sustained during the actual performance of duties. Moreover, the court concluded that a person’s status as a member of the armed forces cannot be equated to employment for purposes of workers’ compensation. To the contrary, such persons are covered by the comprehensive provisions governing veterans’ benefits, which are distinct from compensation benefits.
Under these circumstances, we believe that City and County of Denver v. Industrial Claim Appeals Office, supra,
is dispositive of the claimant’s argument. Whether or not the claimant’s military injures occurred during the actual performance of military duties is immaterial. Rather, it was the claimant’s status as a member of the military, and his access to veterans’ benefits, which render his military injuries “non-industrial” for purposes of § 8-46-101(1)(a). See also, Richens v. Human Resources of Colorado, Inc.,
W.C. No. 3-068-520, (April 14, 1993); Howard v. Colorado Department of Transportation, W.C. No. 4-009-141 (May 21, 1996) Gutierrez v. Oregon Timber and Brick, Inc.,
W.C. No. 3-634-111 (March 9, 1990).
Further, § 8-40-202(1)(a)(I)(A), C.R.S. (1996 Cum. Supp.), does not support the claimant’s position. That statute affords coverage to “every member of the military forces of the State of Colorado while engaged in active service on behalf of the state.” There is no evidence that the claimant was on active service on behalf of the State of Colorado at the time he sustained his military injuries, and he does not claim that he was. Therefore, this provision is irrelevant.
II.
The claimant next contends that the ALJ erred in relying on § 8-42-104(2), C.R.S. (1996 Cum. Supp.), in determining that the CCIA is not liable for that portion of the claimant’s permanent total disability benefits attributable to the military injuries. The claimant argues that non-industrial disabilities are not subject to apportionment under the schedule. In support of this proposition, the claimant cites Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), and our decision in Haislip v. HCC Foothills Care Center, Inc., W.C. No. 4-133-841, et. al., (April 4, 1996).
Conversely, the CCIA argues that the ALJ erred in failing to reduce its liability based on that percentage of the permanent total disability attributable to the claimant’s 1991 injury. The CCIA reasons that, since SIF liability is not applicable in this case, § 8-42-104(2) mandates the apportionment of the preexisting industrial disability as well as preexisting non-industrial disability. We reject the claimant’s argument and adopt the CCIA’s position.
Section 8-42-104(2) provides for the apportionment of permanent total disability benefits, except in cases where the “provisions of § 8-46-101 are applicable.” This apportionment is accomplished 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.”
The claimant’s argument notwithstanding, it is now clear that the term “disability,” as used in § 8-42-104(2), contemplates both industrial and non-industrial disabilities. I Baldwin Construction, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1362, March 6, 1997), the court of appeals held that the supreme court’s decision in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), stands for the proposition “that it is irrelevant whether the prior impairment [under §8-42-104(2)] is occupational or nonoccupational.” Moreover, th Baldwin court concluded that the Askew decision implicitly overrules Lindner Chevrolet. Thus, the ALJ properly reduced the CCIA’s liability based on the percentage of permanent total disability attributable to the claimant’s preexisting military disabilities.
Further, we agree with the CCIA that the ALJ erred in ordering it to pay for that portion of the permanent total disability benefits attributable to the claimant’s 1991 industrial injury. Here, the ALJ expressly found that sixty percent of the claimant’s permanent total disability is attributable to the 1991 injury. Since the 1991 injury preceded the 1992 injury, the CCIA is not liable for that percentage of the permanent total disability which existed at the time of the 1992 injury. Section 8-42-104(2); Colorado Fuel Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968); Stevens v. The Denver Brick Co., W.C. No. 3-986-570, 4-215-667, (November 15, 1996).
The claimant argues that the supreme court’s decision i City County of Denver v. Industrial Commission, supra, (Hatch), stands for the proposition that, if there is no SIF liability, the CCIA is liable for the entirety of the claimant’s permanent total disability benefits under the “full responsibility rule.” However, much of the analysis i Hatch was predicated on the assertion that, prior to the creation of the expanded SIF, the “employer who hired a partially disabled worker was responsible for the entire disability award if the worker suffered a subsequent injury and was declared permanently and totally disabled.” 690 P.2d at 202. In support of this conclusion, the Hatch court relied o Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). However, in Askew v. Industrial Claim Appeals Office, supra, the supreme court repudiated the notion that the “full responsibility rule continued in existence after the 1963 enactment of the provision codified at § 8-42-104(2). The following language from footnote 10 of the Askew decision is pertinent:
“We recognize that Colorado Fuel Iron Corp. v. Industrial Commission [citation omitted], seems to establish a per se rule against apportionment between any injury sustained. However, the court in that case based its conclusion on § 8-42-104
as it existed in 1953. At that time, subsection (2), the apportionment provision of the statute that is relevant here, did not exist. Thus, that case does not dictate a different result.”
It follows that we do not consider Hatch as authority for the proposition that apportionment is inappropriate under § 8-42-104(2). In view of Askew, it appears that the apportionment language of Hatch was based on an incorrect statement of the law. Thus, the ALJ’s order must be modified to allow for apportionment of that segment of the total disability which existed at the time of the 1992 injury. The CCIA is liable for thirty percent of the permanent total disability benefits.
III.
Finally, the claimant contends that, even if apportionment is legally permissible, the record does not support apportionment in this case. The claimant argues that there is no evidence from which the ALJ could determine the degree of the permanent total disability which existed at the time of the 1992 injury. We disagree.
When apportioning permanent total disability benefits under § 8-42-104(2), an ALJ is required to assess the degree of “disability” as it existed “just prior to” the industrial injury which results in permanent total disability. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra. In so doing, the ALJ is required to determine whether the preexisting medical conditions affected the claimant’s ability to meet “personal, social, or occupational demands.” Such a “disability” may be evidenced by proof that the preexisting medical conditions caused a “significant loss of access to the labor market.” Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra.
Moreover, proof of a preexisting “disability” is a factual matter for determination by the ALJ. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra. Thus, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Initially, we note that the claimant is asserting that the ALJ made “no finding of the percentage of disability just prior to the last injury.” It is true that the ALJ did not make an explicit finding of this nature. However, we understand the ALJ’s apportionment as reflecting his application of §8-42-104(2) because he did permit reduction of the CCIA’s liability based on the percentage of disability attributable to the military injuries. Under these circumstances, we decline to infer that the ALJ applied some improper standard when there is no evidence that he did so. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (it is presumed that an ALJ considers and gives due weight to statutory factors). The ALJ’s only error was in determining that the industrial disability attributable to the 1991 injury was not subject to apportionment.
Moreover, the claimant’s assertion that there is not substantial evidence to support the ALJ’s apportionment is without merit. With regard to the military injuries, there is both expert and circumstantial evidence that the claimant’s knee problems and hearing difficulties impaired his access to the labor market prior to the 1992 industrial injury. Two expert vocational witnesses testified that the military injuries denied the claimant access to segments of the labor market. Moreover, there is evidence that, after leaving the military, the claimant’s employer accommodated his knee problems by allowing the claimant to move between insulation work and truck driving.
Moreover, there is expert evidence that the 1991 head and neck injuries caused the claimant to suffer a substantial reduction of access to the labor market. Two vocational witnesses testified that the permanent effects of that 1991 injuries limited the claimant to light duty jobs. (Tr. pp. 70, 105). Moreover, the claimant himself testified that, after the 1991 injury, he was required to hire helpers to assist him in doing heavy work. (Tr. p. 45).
Under these circumstances, we reject the claimant’s argument that the ALJ lacked sufficient evidence to apportion the claimant’s permanent total disability benefits. The record contains substantial evidence from which the ALJ could infer that, prior to the 1992 injury, the claimant had suffered a substantial loss of access to the labor market and a corresponding loss of earning capacity as a result of the military injuries and the 1991 injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 30, 1996, is affirmed insofar as it determined that the SIF is not liable for any portion of the claimant’s permanent total disability benefits.
IT IS FURTHER ORDERED that the ALJ’s order is modified to reflect that the CCIA is liable for only thirty percent of the claimant’s permanent total disability benefits.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. (1996 Cum.Supp.).
Copies of this decision were mailed March 21, 1997 to the following parties:
John H. Waddell, 291 Derby Drive, Durango, CO 81301
Eugene Haskin Frances Haskin d/b/a Morning Star Arabians, 1729 C.R. 250 Durango, CO 81301-8938
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco-Galvin, Esq. (Interagency Mail)
Subsequent Injury Fund, Interagency Mail
Bethiah Beale Crane, Esq. R. Neal Mynatt, Esq., 575 E. College Dr., Durango, CO 81301 (For the Claimant)
Roxane D. Baca, Esq., Assistant Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
Gene D. Dackonish, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: _______________________________