W.C. Nos. 4-165-452, 4-237-842Industrial Claim Appeals Office.
October 4, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied the request for offset of liability to the Subsequent Injury Fund (SIF). The claimant contends the evidence compelled the ALJ to find that a portion of his alleged permanent total disability was causally related to a prior industrial back injury. We set the order aside and remand for entry of a new order.
This case has a complicated procedural history which is relevant to our resolution of the issue on appeal. In 1992 and 1993 the now deceased claimant was employed by respondent Colorado College as a maintenance worker. In March 1993 the claimant filed a claim for benefits alleging that he was suffering from a “bilateral carpal tunnel/repetitive motion” injury. In November 1994 the claimant filed another claim alleging “pain in upper back, neck, arms, and hands brought on by many years of repetitive motion due to the work required by my position as maintenance person.” Eventually, these claims were consolidated, and the claimant settled with Colorado College. The claimant’s dependents are now prosecuting the claim.
The claimant maintains he was permanently and totally disabled prior to death, and the SIF is liable for a portion of the permanent total disability benefits under § 8-46-101(1)(a), C.R.S. 2000. At the hearing, the claimant advanced two theories in support of SIF liability. First, the claimant argued he sustained a traumatic neck injury in 1992, followed by a separate occupational disease with an onset of disability in March 1993. Alternatively, the claimant argued he sustained an industrial back injury in 1960 or 1961, and the residual effects of this injury contributed to the permanent total disability.
On May 24, 1999, the ALJ entered a Summary Order denying the request for offset of liability to the SIF. The ALJ found that the claimant’s carpal tunnel problem and neck problem were the result of a single occupational disease. Thus, the ALJ concluded there was “insufficient evidence to find that claimant sustained two separate work-related injuries.” However, the order did not address the claimant’s contention concerning the 1960/1961 back injury.
On June 17, 1999, the claimant filed a Motion for Corrected Order stating the claimant did not intend to contest the ALJ’s factual finding that he sustained a single occupational disease. However, the claimant pointed out the record contains vocational reports stating that he sustained an industrial injury in 1960 or 1961, and that disability from this injury contributed to the permanent total disability. (Eg. Corvel Reports, November 16, 1995, p. 8; May 22, 1996). Consequently, the claimant requested the ALJ to enter an order finding that 40 percent of the permanent total “disability is attributed to the Subsequent Injury Fund based upon the back fusion as a result of industrial injury of 1960/1961.”
On June 25, 1999 the ALJ entered Specific Findings of Fact, Conclusions of Law and Order. The order was apparently entered prior to review of the Motion for Corrected Order. In Parts A and B of the June 25 order the ALJ reiterated her findings that the claimant sustained a single occupational disease as a result of repetitive motion. In Part C of the order, containing Findings of Fact 10, 11, and 12, the ALJ found the claimant failed to prove the 1960/1961 back injury was work-related. Specifically, the ALJ cited evidence the claimant denied prior work-related injuries when answering interrogatories, and the inability of the claimant’s daughter to state whether the 1960/1961 injury was work-related. Under these circumstances, the ALJ concluded there was no prior industrial injury to which SIF liability could attach.
On July 7, 1999, the ALJ considered the claimant’s Motion for Corrected Order. The entire ruling was as follows:
The Division of Workers’ Compensation, having reviewed Claimant’s Motion for Corrected Order hereby orders that Claimant’s Motion for Corrected Order is granted. The ALJ concludes that the 1960 back injury did not contribute to Claimant’s disability. All other sections of the June 25, 1999 Orders [sic] shall remain in full force and effect.
On review, the claimant contends there is not substantial evidence to support the ALJ’s “factual determination that claimant did not suffer a prior work related injury which contributed to his permanent disability.” Claimant argues there is “no evidence” to support the conclusion that he did not sustain a 1960/1961 work-related back injury which caused 35 to 40 percent of the permanent total disability. We conclude the ALJ’s findings are insufficient to support appellate review.
Pursuant to § 8-46-101(1)(a) [applicable to this claim] SIF liability is appropriate were the claimant “has previously sustained permanent partial industrial disability and in a subsequent injury sustains additional permanent partial industrial disability and it is shown that the combined industrial disabilities” render the claimant permanently and totally disabled. In these circumstances, the last employer is liable for that portion of the permanent total disability attributable to the subsequent or last injury, and the SIF is liable for the balance.
The courts have ruled that the statutory term “industrial disability” refers to disability stemming from industrial injuries. Disability attributable to preexisting nonindustrial factors 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). Further, apportionment of permanent total disability based on a preexisting industrial disability is a de novo determination based on the relevant circumstances existing at the time of the determination. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). The extent to which disability caused by prior industrial injury is contributing to the permanent total disability is a question of fact for determination by the ALJ. General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985).
We must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. However, we may set aside the order if the ALJ’s findings are insufficient to support appellate review, or the ALJ has failed to resolve conflicts in the evidence. Section 8-43-301(8), C.R.S. 2000. Purely conclusory findings of fact are insufficient to support appellate review Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761
(1969).
Here, it is the ALJ’s July 7 order which is under review. The July 7 order states the conclusion that the “1960 back injury did not contribute to” the claimant’s disability, and provides that “all other sections” of the June 25 order remain in effect. (Emphasis added). We cannot determine from this order whether the ALJ’s reference to “all sections” was meant to delete all references to the 1960/1961 injury found in the June 25 order, or merely add an additional finding concerning the contribution of the 1960 injury to the claimant’s disability. Put another way, we cannot ascertain whether the July 7 order deleted the June 25 finding that the claimant failed to prove the 1960/1961 injury was work related.
On remand, the ALJ shall resolve the ambiguity in the July 7 order. If the ALJ finds the claimant failed to prove a work-related injury in 1960/1961, she shall enter specific findings of fact supporting the conclusion. She may then deny apportionment to the SIF under the authority of City and County of Denver v. Industrial Commission, supra. However, if the ALJ finds that the 1960/1961 injury was work-related, she shall enter specific findings of fact and conclusions of law resolving conflicts in the evidence concerning whether or not the 1960 injury was a contributing cause to the alleged permanent total disability. In this regard, we note the ALJ’s July 7 determination that the 1960 injury did not contribute to the permanent total disability is stated in purely conclusory terms and is not supported by evidentiary findings of fact sufficient to support appellate review. Our review of the record indicates the evidence is conflicting and subject to varying inferences on this point. We also note that no liability may be apportioned to the SIF without a determination that the claimant is permanently and totally disabled. Finally, the fact that the claimant’s 1993 injury may be classified as an occupational disease does not preclude SIF liability based on disability caused by a prior accidental injury. See Climax Molybdenum v. Walter, 812 P.2d 1168
(Colo. 1991).
IT IS THEREFORE ORDERED at the ALJ’s order dated July 7, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed October 4, 2000 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, 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