Opinion
W.C. No. 3-106-797
January 31, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied her request for an order imposing liability on the Subsequent Injury Fund (SIF). We affirm.
Section 8-46-101(1)(a), C.R.S. (1996 Cum. Supp.), provides that liability for permanent total disability benefits may be imposed on the SIF where a claimant, who has sustained a previous "permanent partial industrial disability," suffers a subsequent injury resulting in additional permanent partial industrial disability, and the "combined industrial disabilities" render the claimant permanently and totally disabled. To obtain an order imposing liability on the SIF, the claimant must, in part, prove by a preponderance of the evidence that she sustained a previous "permanent partial industrial injury," and that the previous disability contributed to her permanent total disability. Section 8-43-201 C.R.S. (1996 Cum. Supp.) ;Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985).
Whether the claimant has sustained her burden of proof is a question of fact for resolution by the ALJ. General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985). In resolving this issue, the ALJ is required to make a de novo determination concerning the cause of the claimant's permanent total disability based upon the relevant circumstances existing at the time of the hearing. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). If the ALJ's determination is supported by substantial evidence in the record, it must be upheld on review. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); General Iron Works v. Industrial Commission, supra.
Here the claimant alleged that she is permanently totally disabled due to the combined effects of a compensable head injury in March 1990, and a shoulder injury which she sustained in 1992 while working for the respondent-employer (Ferringway). After settling her claim with Ferringway and its insurer, the Colorado Compensation Insurance Authority, the claimant sought an order apportioning liability to the SIF.
However, the ALJ was not persuaded. In part, the ALJ found that the claimant failed to sustain her burden to prove that the March 1990 head injury caused a "permanent partial industrial disability." Furthermore, the ALJ found that the claimant failed to prove that the 1990 injury contributed her current disability. In reaching this determination the ALJ cited the statutory language currently codified as § 8-41-206 C.R.S. (1996 Cum. Supp.), which provides that "Any disability beginning more than five years after the date of injury shall be conclusively presumed not to be due to the injury." Therefore, the ALJ denied the request for SIF liability, and dismissed the SIF from the claim.
I.
The claimant contends, inter alia, that the ALJ erred as a matter of law in concluding that her request for the apportionment of liability to the SIF is barred by the five year "statute of limitations" in § 8-41-206. Relying upon Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991), the claimant argues that the statute does not apply where, as here, the claimant would be penalized for returning to work after the injury, and the full extent of the 1990 injury was not known until 1996.
Contrary to the claimant's argument § 8-41-106 is not a statute of limitations. Rather, it is a rule of evidence which precludes the ALJ from finding a causal connection between an injury and disability when the disability does not begin within five years of the injury. Ricks v. Industrial Claim Appeals Office, 809 P.2d at 1119.
Furthermore, Ricks did not hold that § 8-41-206 is inapplicable if the claimant returns to work. The issue before the court in Rick's was whether the statute's use of the term "disability" was limited to circumstances where the industrial injury precluded the claimant from returning to work. The court concluded that it was not so limited. Instead, the Rick's court held that, for purposes of § 8-41-206, a "disability" may begin if the claimant returns to work, but in a restricted capacity. The court reasoned that this construction does not penalize a claimant for "returning to the work force and resuming productivity," even if the full extent of the industrial injury remains undiagnosed for more than five years. 809 P.2d at 1120.
Here, the ALJ's findings reflect his implicit determination that the claimant failed to sustain her burden to prove that, within five years of March 1990, the head injury precluded her from returning to work except in a restricted capacity. Therefore, we are not persuaded that the ALJ misconstrued § 8-41-206 in denying the claim for SIF liability.
II.
Next, the claimant argues that the cause of her permanent total disability is a question of law which we may resolve on appeal because the "uncontroverted evidence" proves that she sustained a compensable head injury in 1990, and that part of her permanent total disability is attributable to the 1990 injury. In support, the claimant cites Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993), in which the court held that "where the facts are undisputed, and reasonable minds could draw but one inference from them, causation is a question of law for the court."
Even if it were undisputed that the claimant suffered a compensable closed head injury, the SIF did not concede that the head injury resulted in permanent disability which contributed to the claimant's subsequent vocational loss. In fact, this was the disputed factual issue before the ALJ.
Furthermore, we do not agree that the record contains "uncontroverted evidence" that the claimant's permanent total disability can be apportioned to the 1990 injury. Therefore, we reject the claimant's argument that this review pertains to a question of law, not a question of fact.
III.
Notwithstanding the claimant's arguments, the record contains substantial, albeit conflicting, evidence supporting the ALJ's determination that the 1990 injury did not cause the claimant to sustain "permanent partial disability." The medical record indicates that the claimant was first treated for the head injury at the emergency room. Thereafter, she saw Dr. Lopez on three or four occasions in March 1990, and was instructed to return on an "as needed basis." In his clinic note of January 26, 1996, Dr. Lopez states that the claimant's head injury produced "no sequela at the time."
Between 1990 and 1996, Dr. Lopez continued to treat the claimant for other medical problems. However, the 1990 injury was not the subject of further treatment until 1996. In fact, when Dr. Lopez conducted his September 12, 1994 evaluation of the claimant's permanent impairment from the 1992 injury, he did not mention the 1990 injury. Rather, he reported that the claimant's "past medical history is fairly uneventful."
On January 16, 1996, the claimant requested Dr. Lopez write a letter addressing the causal connection between her head and shoulder pain and the 1990 injury. The ALJ was particularly persuaded by the fact that, even when requested to do so, Dr. Lopez was only able to state that there was a "possibility that some of [the claimant's] current symptoms are related the injury of 1990."
Similarly, Dr. Gray, a physician chosen by claimant, was unable to apportion the claimant's problems between the 1990 and 1992 injuries, even after requested to do so by claimant's attorney. (Gray report April 16, 1996). To the contrary, Dr. Gray was not even able to substantiate that the claimant suffered a skull fracture in 1990, and noted from the medical records that the claimant's symptoms from the 1990 injury resolved.
The ALJ's finding that the claimant did not suffer a cognitive impairment from the 1990 injury is consistent with the opinions of Clinical Psychologist, J. W. Ragsdale, and Dale Bowen, Ph.D., both of whom described the claimant's clinical profile as within normal limits. (Ragsdale report February 12, 1996; Bowen report March 16, 1994). The claimant even admitted that no impairment rating was ever issued for the 1990 injury. (Tr. p. 33).
Moreover, vocational expert, Martin Rauer, attributed all of the claimant's disability to the 1992 industrial injury. (Rauer report May 2, 1996). The ALJ expressly found Martin Rauer's opinions more persuasive than the contrary opinions of vocational expert Charles Rissel concerning the cause of the claimant's vocational loss.
The ALJ was further persuaded by the medical evidence that the claimant did not discuss the 1990 injury with her other physicians between March 1990 and 1996. For example, in his October 19, 1994 evaluation concerning the shoulder injury, Dr. David R. Silva, D.O., noted that the claimant's "past medical history" was "negative." Similarly, the claimant did not mention the 1990 industrial injury in responding to a written interrogatory which asked her to list all industrial injuries she sustained prior to 1992. (Tr. p. 29; Claimant's Response to Interrogatories).
Admittedly, the record contains some evidence which, if credited, might support an inference that the claimant's failure to mention the closed head injury is consistent with that type of injury. (Tr. p. 41). However, the record does not compel such an inference, and we may not interfere with the ALJ's decision to credit the evidence which suggests that the claimant's failure to mention the injury reflects the insignificance of the injury. (Tr. pp. 74, 81).
The record further supports a conclusion that the claimant's employment history is inconsistent with an assertion of permanent impairment from the 1990 injury. The record indicates that the claimant's head injury occurred while she was working as a waitress at Bilbo's Restaurant (Bilbo's). This employment required her to wait on tables, make sandwiches, and lift up to fifty pounds. (Tr. p. 24). She stated that she left this employment after learning that Bilbo's was not insured for workers' compensation. (Tr. p. 25). She then went to work for Ferringway as a head housekeeper. This employment required her to lift over one hundred pounds. (Tr. pp. 25-26). On February 7, 1992, she suffered a compensable injury while putting bag of towels over her shoulder. In September 1992, she began working at the Red Lion Inn, where she was required to supervise more than thirty employees in the laundry, janitorial and housekeeping departments. (Tr. p. 27).
The ALJ could, and did, infer from this evidence that the work performed by the claimant for Ferringway was more physically challenging than the work she performed at Bilbo's. The claimant's testimony also supports the ALJ's finding that during the time she worked in a supervisory capacity for the Red Lion Inn, the claimant's mental capacities were not impaired. (Tr. pp. 27, 68).
Because the ALJ's findings of fact are supported by the record, they are binding. Furthermore, the ALJ's determination that the claimant failed to sustain her burden to prove that the 1990 injury resulted in permanent partial disability is fatal to a claim for SIF liability. See General Iron Works v. Industrial Commission, supra. Therefore, we need not consider the claimant's other arguments in support of her request that we reverse the ALJ's order. Section 8-43-310 C.R.S. (1996 Cum. Supp.); cf. A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ's order dated August 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed January 31, 1997 to the following parties:
Selma J. Nelson, 2018 E. 2nd Ave., Durango, CO 81301
Steven M. Heglund d/b/a Ferringway Management Co., 6 Ferringway Circle, Durango, CO 81301-7927
Subsequent Injury Fund — Interagency Mail
Michael Wanger, Esq., 145 E. 13th St., Durango, CO 81301 (For the Claimant)
Roxane D. Baca, Esq., Attorney General's Office, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
BY: _______________________