Opinion
W.C. No. 4-187-337
December 6, 2000
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ) which awarded the claimant permanent total disability benefits. The respondent contends the ALJ applied an incorrect standard of law in awarding permanent total disability benefits because the ALJ considered that the claimant would be placed on "waiting lists" for certain jobs. The respondent further contends the ALJ erred in denying apportionment based on a determination that the rating of the Division-sponsored independent medical examination (DIME) physician was overcome by clear and convincing evidence. We affirm.
On September 8, 1993, the claimant ruptured her Achilles tendon while employed as a home health care worker. The claimant underwent two surgeries to repair the tendon. During the course of her recovery, the claimant also developed bilateral upper extremity problems including carpal tunnel syndrome, back problems, and gastrointestinal (GI) problems. It is not now disputed that these secondary problems are causally related to the industrial injury for purposes of determining the claimant's entitlement to permanent disability benefits.
In the summer of 1997, the claimant reached maximum medical improvement (MMI) for the industrial injury and its sequalae. The claimant was referred for a DIME which was performed in November 1997. The DIME physician opined the claimant had a 29 percent spinal impairment, a 9 percent impairment of the right upper extremity, 8 percent impairment caused by rupture of the Achilles tendon, 15 percent impairment due to GI problems, and 2 percent caused by emotional factors. However, the DIME physician opined that the overall impairment rating should be apportioned. Specifically, the DIME physician noted the claimant had a pre-injury diagnosis of calcaneal bursitis, and she received an injection into the "Achilles tendon" prior to the industrial injury. The DIME physician opined the injection weakened the tendon rendering it "more likely to rupture." Thus, the DIME physician apportioned 10 percent of the rupture to the preexisting condition, and 90 percent to the industrial injury. The DIME physician further found the claimant had a history of GI problems which were "aggravated" by medication prescribed for the industrial injury. He apportioned 60 percent of the GI problems to the preexisting condition and 40 percent to the injury. Similarly, the DIME physician found the claimant had a history of back pain with x-rays showing "degenerative changes of the spine." Thus, he attributed 50 percent of the claimant's back problems to the preexisting condition. He further reduced the remaining 50 percent spinal impairment rating because he determined the industrial injury is only "90 percent associated with the" work-related Achilles tendon injury. The DIME physician found that all of the claimant's upper extremity problems were "complications" of the industrial injury, but again reduced the impairment rating by 10 percent because the tendon injury was only 90 percent work-related. The DIME physician also assessed 2 percent for emotional factors. Consequently, the apportioned impairment rating was 31 percent of the whole person.
The claimant presented the testimony and reports of a treating physician, Dr. Rook. Dr. Rook assessed a 55 percent whole person impairment rating and opined that no apportionment is appropriate. He testified the pre-injury injection of the claimant's heel did not contribute to the Achilles tendon rupture because the injection was to a bursa, not the tendon. Further, he opined that none of the claimant's pre-injury problems, including GI and back symptoms, bore a sufficient temporal relationship to the industrial injury to be considered contributing factors to the claimant's impairment. Finally, Dr. Rook observed that all of the claimant's upper extremity problems developed after the industrial injury. (Tr. November 18, 1998, pp. 81-82). Dr. Rook's opinions concerning the claimant's pre-injury symptoms and their relationship to apportionment of the impairment rating were corroborated by a report of the claimant's personal physician, Dr. McGarry. (McGarry report, April 21, 1998). Further, Dr. Rook testified the claimant is limited to the "sub- sedentary" classification, and may lift no more than five pounds, may not perform repetitive activities with her hands, must change positions every 15 minutes, and is unable to work a full 8 hour day.
The respondents presented expert vocational opinion that the claimant is capable of performing numerous jobs in her local labor market, including work as a "senior aide" or "senior companion." The claimant presented conflicting vocational and medical opinions concerning the claimant's ability to work.
Crediting the claimant's testimony, and the opinions of the claimant's vocational and medical experts, the ALJ found the claimant is unable to earn any wages as a result of the industrial injury. In so doing, the ALJ found the jobs of "senior aide" and "senior companion," which were allegedly available through a program administered by Seniors! Inc., were fully staffed and had waiting lists. Thus, the ALJ awarded permanent total disability benefits.
Concerning the issue of apportionment, the ALJ credited the opinions of Dr. Rook, and relied on the claimant's medical history as reflected in the reports and notes of Dr. McGarry. Consequently, the ALJ determined the claimant proved by clear and convincing evidence that the DIME physician's apportionment was incorrect. Further, the ALJ determined the DIME physician's apportionment did not comply with Rule of Procedure XIX (C), 7 Code Colo. Reg. 1101-3 at 123, because there was not sufficient evidence "to substantiate an apportionment." (Finding of Fact 20).
I.
On review, the respondent first contends the ALJ erred in finding that placement of the claimant on waiting lists for the jobs of "senior aide" and "senior companion" precluded the ALJ from considering these jobs when determining the claimant's eligibility for permanent total disability benefits. As a corollary to this argument, the respondent asserts the ALJ made insufficient findings of fact to resolve the issue. We find no error.
Section 8-40-201(16.5)(a), C.R.S. 2000, defines permanent total disability as the claimant's inability to "earn any wages in the same or other employment." In Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998), the court held that this statutory definition permits the ALJ to consider the claimant's so-called "human factors," including the claimant's physical condition, age, employment history, education, and the availability of work which the claimant can perform, when assessing the claimant's eligibility for permanent total disability benefits. Consequently, the ALJ is free to consider factors influencing the issue of whether employment "is reasonably available to the claimant under his or her particular circumstances." Id. at 558.
The question of whether the claimant has proven permanent total disability is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Consequently, we must uphold the ALJ's determination of the issue 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, her credibility determinations, and the plausible inferences she drew from the record. Weld County School District RE-12 v. Bymer, supra. We also note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient if the ALJ makes findings of fact concerning those issues which she determines are dispositive, and those findings are sufficient to indicate the basis of the order for purposes of appellate review. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The respondent's argument notwithstanding, we have no difficulty in ascertaining the basis of the ALJ's award of permanent total disability benefits and her conclusion that the availability of the jobs of "senior aide" and "senior companion" do not negate the award. The ALJ's findings, when read in their totality, establish the ALJ believed the vast majority of jobs cited by the respondent were not within the claimant's physical capacity to perform. This conclusion is amply supported by the testimony of the claimant's vocational expert, and the opinions of Dr. Rook.
Further, it is implicit in Findings of Fact 47 through 49 that the ALJ did not believe the jobs of "senior aide" and "senior companion", even if within the claimant's physical capacity, were reasonably available to the claimant in her local labor market. Instead, the ALJ found that these jobs, which were underwritten by government funding, were limited in number, and each of them had a waiting list of persons seeking employment. Moreover, the ALJ found the claimant lives in a community where there is a large number of retired persons to whom this type of employment is desirable. Based on this evidence, the ALJ could infer that the jobs of senior aide and senior companion were not reasonably available to the claimant in her local labor market, especially in view of her physical limitations stemming from the injury. Because the ALJ's findings are supported by substantial evidence and reasonable inferences, we may not interfere with them. Weld County School District RE- 12 v. Bymer, supra.
II.
The respondent next contends the ALJ erred in failing to "apportion disability." The essence of the respondent's argument is that the ALJ erred in determining the claimant overcame the DIME physician's apportioned impairment rating by clear and convincing evidence. We find no error.
We assume, arguendo, that permanent total disability benefits may be apportioned based upon the existence of preexisting nonindustrial disability. But see United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000) (suggesting in dictum that the "full responsibility rule" prohibits apportionment of preexisting disability in cases of permanent total disability). Nevertheless, to the extent apportionment is permitted, it must occur in accordance with former § 8-42-104(2), and related case law. [Statute amended for injuries occurring on or after July 1, 1999, 1999 Colo. Sess. Laws, ch. 141 at 411].
Section 8-42-104(2) provides that in cases of a previous disability, "the percentage of disability for a subsequent injury shall be determined 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." Under this statute, apportionment of permanent total disability benefits is not proper unless disability from a preexisting condition contributes to the current disability. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999). Further, the term disability contemplates a claimant's ability to meet personal, social, or occupational demands, and is assessed by non- medical means. Disability is to be distinguished from "impairment," which is determined medically in accordance with the rating provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998). Thus, if a claimant has fully recovered from a "past disability so that the prior injury does not contribute to present disability," apportionment is not permitted. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d at 1091.
Ultimately, the determination of whether apportionment is proper under this statute is a question of fact for determination by the ALJ. Consequently, we must uphold the ALJ's determination of the issue if supported by substantial evidence in the record. Section 8-43-301(8); Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, supra. In this regard, we note that when the issue involves permanent total disability benefits, we have held that the special deference afforded a DIME physician's impairment rating under § 8-42-107(8)(c), C.R.S. 2000, does not apply. This is true because neither § 8-40-201(16.5), nor § 8-42-111, C.R.S. 2000, requires that any special weight be afforded the impairment rating of the DIME physician when determining whether a claimant is able to earn any wages. See Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No., 4-124-250 (September 27, 1994); Ybarra v. Ray Shelton Construction Co., W.C. No. 4-116-741 (November 24, 1993); cf. Delaney v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0081, September 14, 2000) (DIME provisions of § 8-42-107(8)(c) do not apply to determinations of non-scheduled impairments). However, any error in applying the clear and convincing evidence standard of proof was harmless because it worked to the respondent's advantage.
Here, substantial evidence supports the ALJ's refusal to apportion the claimant's permanent total disability benefits. The ALJ explicitly found the claimant is permanently and totally disabled "as a result of the industrial injury of September 8 1993." (Finding of Fact 51). The ALJ found, based on the testimony of Dr. Rook and the report of Dr. McGarry, that the pre-injury ankle injection in no way contributed to the claimant's impairment because the injection was to the bursa, not the Achilles tendon as asserted by the DIME physician. Therefore, the ALJ properly concluded that there was no evidentiary basis to infer the claimant had any preexisting ankle impairment or disability which contributes to the permanent total disability for which benefits were awarded. Indeed, the DIME physician based the apportionment on his conclusion the ankle injection predisposed the claimant to further injury, not a finding the claimant had any pre-injury impairment of the ankle.
Similarly, there was conflicting evidence concerning whether or not the claimant's pre-existing back and GI conditions constituted pre-existing impairments. The ALJ was again persuaded by the testimony of Dr. Rook and the report of Dr. McGarry that the pre- injury symptoms were isolated, remote in time, and could not be considered as contributing factors in the claimant's permanent total disability. Therefore, there was substantial evidence to support the ALJ's conclusion that these pre-existing conditions did not constitute disabilities at the time of the industrial injury. Of course, there was no basis to apportion the upper extremity impairment because even the DIME physician admitted that these problems did not predate the industrial injury.
Insofar as the respondent asserts the ALJ erred in relying on the testimony of Dr. Rook and the report of Dr. McGarry, we disagree. Dr. Rook explained the deficiencies and errors of the DIME physician's impairment rating and apportionment. The weight to be assigned Dr. Rook's testimony was a matter for the ALJ. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated April 13, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. SocolofskyNOTICE
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 December 6, 2000 to the following parties:
Phyllis Magnusson, 722 E. 3rd., Space 24, Florence, CO 81226
Joe Stock, N.H.A., Hildebrand Care Center, 1409 Phay Ave., Canon City, CO 81212
Denise Groves, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Renee C. Ozer, Esq., 25 N. Cascade, #215, Colorado Springs, CO 80903 (For Claimant)
William A. Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For Respondent)
BY: A. Pendroy