W.C. Nos. 4-165-452 4-237-842Industrial Claim Appeals Office.
July 30, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied the request for an offset of liability to the Subsequent Injury Fund (SIF). We affirm.
This matter was before us previously. As we noted in our Order of Remand dated October 4, 2000, the claimant is now deceased and the claim is being prosecuted by his dependents. Further, our order contains a statement of the facts, and that statement is incorporated herein. In the Order of Remand we directed the ALJ to clarify an ambiguity stemming from the ALJ’s order dated June 25, 1994, and the Corrected Order dated July 7, 1999. Specifically, we directed the ALJ to determine whether or not the claimant proved that he sustained a work-related injury in 1960 or 1961, and if so, to enter specific findings with regard to that issue. Further, if the claimant did prove such an injury, the ALJ was to determine the extent to which the injury contributed to the claimant’s alleged permanent total disability.
In her order dated December 15, 2000, the ALJ found there was insufficient evidence to prove the claimant sustained a previous industrial injury in the early 1960s. Although the claimant’s daughter initially testified the claimant sustained a work-related back injury, the ALJ found the daughter admitted on cross-examination that she “didn’t know, exactly” whether the injury was work-related or not. The daughter also admitted she was a small child at the time of the alleged work-related injury. (Tr. p. 16). Further, in answers to interrogatories, filed prior to his death, the claimant stated he had no “workers’ compensation” accidents or diseases prior to March 12, 1993. (SIF Exhibit 3). Thus, the ALJ denied the request for an offset to the SIF.
On review, the claimant filed a petition to review alleging the ALJ “erred in the determination that Claimant did not suffer a previous industrial injury.” The claimant did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.
As noted in our prior order, § 8-46-101(1)(a), C.R.S. 2000 [applicable to this claim], predicates SIF liability on proof the claimant sustained a previous permanent partial industrial disability and that the “combined industrial disabilities render the employee permanently and totally incapable of steady gainful employment.” The courts have ruled the statutory term “industrial disability” refers to disabilities caused by industrial injuries. Disability attributable to preexisting nonindustrial conditions may not be apportioned to the SIF City and County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984); City and County of Denver v. Industrial Claim Appeals Office, 892 P.2d 429 (Colo.App. 1994).
The questions of whether the claimant has proven the occurrence of a previous industrial injury, and whether disability from the injury contributes to the permanent total disability, are matters of fact for determination by the ALJ. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, and her credibility determinations. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The mere existence of conflicting evidence does not lessen the significance of substantial evidence which supports the ALJ’s order. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, supra.
Here, the ALJ resolved conflicts in the testimony of the claimant’s daughter to find that the daughter did not know whether the claimant sustained an industrial injury in the early 1960s. Moreover, the ALJ found the claimant himself admitted in interrogatories that he did not sustain any industrial injury prior to 1993. Thus, the record contains substantial evidence to support the ALJ’s conclusion that the claimant failed to establish grounds for an offset of liability to the SIF.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 July 30, 2001 to the following parties:
Margaret Wheeler, 829 Hayden Dr., Colorado Springs, CO 80910
Colorado College, 14 E. Cache La Poudre St., Colorado Springs, CO 80903
Transamerica Insurance Group, P. O. Box 17005, Denver, CO 80217
Subsequent Injury Fund, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Joseph Haughain, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
BY: A. Pendroy