Opinion
W.C. No. 4-141-210
March 20, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), which awarded permanent total disability benefits without apportionment. We affirm.
The ALJ found that, in 1973 at age 17, the claimant commenced work as a telephone operator. This work required the claimant to remain seated for eight hours a day except for one break in the morning. The claimant remained in this or similar positions until she left work in September 1992.
In 1978 the claimant began to develop pain in her low back. These symptoms worsened until the claimant was required to undergo back surgery in May 1992. The claimant's treating physician, Dr. Donner, opined that the claimant suffered from an "underlying L5-S1 spondylolisthesis," a degenerative disk at the L4-5 level, and a disk herniation.
In a report dated August 15, 1995, Dr. Donner indicated that, although lumbar disk dehydration and degeneration is a normal process, a "significant component" of the claimant's condition was causally related to "prolonged sitting while working as an operator." Consequently, Dr. Donner apportioned the claimant's overall medical impairment "as 80 percent related to her work and 20 percent related to a preexisting condition."
The ALJ determined that the claimant reached maximum medical improvement (MMI) in May 1993, and is permanently and totally disabled. The ALJ also found that, although the claimant may have had a "preexisting condition or disease," it was the "industrial aggravation of the disease which resulted from prolonged sitting which caused the permanent total disability."
Further, the ALJ further declined to apportion permanent total disability benefits based on the claimant's preexisting degenerative back condition. In support of this conclusion, the ALJ held that § 8-42-104(2), C.R.S. (1996 Cum. Supp.), does not permit apportionment of "non-industrial" preexisting conditions. Moreover, the ALJ determined that the statute does not permit apportionment because, although the claimant may have had preexisting "medical impairment," she did not have "disability" until she was subjected to the aggravating conditions of her employment.
Finally, the ALJ rejected the respondent's argument that Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), requires apportionment. The ALJ concluded that Anderson is inapposite because the claimant's disability is a product of the industrial aggravation of her preexisting condition, not a disease resulting from some industrial and some non-industrial causes.
On review, the respondent contends that the ALJ erred in failing to apportion the permanent total benefits based on the effects of the claimant's occupational disease and her preexisting condition. The respondent contends that the ALJ should have utilized one of several medical opinions which apportion the claimant's medical impairment between the effects of the preexisting condition and the effects of the occupational disease. The respondent's position is that, because it is often difficult to distinguish between the effects of a preexisting disease and an occupational aggravation of that disease, apportionment of medical "impairment" should equate to apportionment of "disability." We are not persuaded.
Initially, we note that it is unclear whether the respondent is contending that apportionment is proper under § 8-42-104(2), Anderson v. Brinkhoff, supra, or both. Therefore, we shall proceed to consider the respondent's argument under both of these theories. We first consider § 8-42-104(2).
I.
Section 8-42-104(2) permits apportionment of permanent total disability benefits where there is a "disability" which predates the industrial injury. It is now clear that such preexisting disability may be industrial or "non-industrial." Baldwin Construction, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1362, March 6, 1997). To the extent the ALJ held to the contrary, he erred.
It was held in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), that when apportioning permanent partial disability benefits medical "impairment" cannot be equated to "disability." The Askew court relied on the AMA Guides for the proposition that "impairment" relates to an alteration of an individual's health status as assessed by medical means, while "disability" pertains to a person's ability to meet "personal social or occupational demands," and is assessed by non-medical means. Consequently, the Askew court held that a preexisting medical impairment, which was dormant and asymptomatic, was not subject to apportionment as a "disability" under § 8-42-104(2).
Similarly, we have held that the correlation between "impairment" and "disability" is even more tenuous when the issue involves apportionment of permanent total disability benefits. As stated in Morrill v. Western Fuels Utah, Inc., W.C. No. 3-115-554, January 14, 1997, a claimant's right to permanent total disability is governed by the claimant's ability or inability "to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.). The determination of the claimant's ability to earn wages is dependent on a myriad of factors, only one of which is the degree of the claimant's medical impairment. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Consequently, in a permanent total disability case, it would make little sense to require ALJ's to apportion preexisting "disability" based solely on a physician's opinion concerning the proper apportionment of "medical impairment."
The court of appeals reached much the same conclusion in Baldwin Construction, Inc. v. Industrial Claim Appeals Office, supra. In Baldwin, the claimant sustained an admitted industrial back injury, but suffered from preexisting non-industrial headaches, obesity, depression and alcohol abuse. The court held that the claimant's permanent total disability benefits were not subject to apportionment under § 8-42-104(2) because substantial evidence supported the ALJ's determination that the "preexisting medical conditions did not independently cause a significant loss of access to the labor market and did not render claimant unemployable." To the contrary, the claimant remained engaged in heavy employment until the occurrence of the industrial back injury.
Because we reject the respondent's assertion that "disability," as the term is used in § 8-42-104(2), must be equated with preexisting medical impairment, the question becomes whether there is substantial evidence to support the ALJ's refusal to apportion under the facts of this case. To the extent there is substantial evidence, we must uphold the ALJ's order. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Furthermore, in applying the substantial evidence test, 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).
Here, the ALJ relied on the reports of Dr. Donner for the proposition that the claimant's disabling back pain resulted from the industrial aggravation of her preexisting back condition. Moreover, the ALJ cited the claimant's testimony that she had no back problems prior to commencing work in 1973, and did not develop such problems until approximately five years later. This evidence amply supports the ALJ's conclusion that it was the industrial aggravation of the claimant's preexisting condition which caused the disability for which she now seeks benefits. Conversely, this evidence supports the ALJ's determination that the preexisting condition did not cause any independent "disability" which affected the claimant's ability to earn wages. The mere fact that some of the evidence would support a contrary finding and conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
Neither do we believe that Anderson v. Brinkhoff, supra, required the ALJ to apportion the claimant's "disability." In fact, the Anderson decision mandates much the same type of analysis as § 8-42-104(2).
In Anderson, the court held that if there is no evidence that "occupational exposure to a hazard is a necessary precondition to development of the disease, the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability." 859 P.2d at 825. Thus, a claimant's occupational exposure need not be the sole cause of a disabling disease, so long as the "hazards of employment cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought." 859 P.2d at 824. If the claimant establishes a causal relationship between the hazards of employment and the disabling disease, the burden shifts to the respondents to prove an apportionment between industrial and non-industrial causes. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Again, there is substantial evidence to support the ALJ's determination that the claimant suffered from no industrial "disability" prior to the time she encountered the aggravating hazards of her employment. Thus, the ALJ correctly ruled that the mere fact that the claimant had a preexisting condition, to which some physicians were willing to ascribe a medical impairment rating, did not require apportionment under Anderson v. Brinkhoff. Cf. Stewart v. Dillon Companies, Inc., W.C. No. 4-257-450, November 20, 1996; Simmons v. W.C.H.S. of Colorado, W.C. No. 4-222-973, November 21, 1995; Martin v. Finzer Business Systems, Inc., W.C. No. 4-144-464, June 10, 1994, aff'd., (Colo.App. No. 94CA1690, May 18, 1995) (not selected for publication) (despite preexisting degenerative neck condition, evidence supported finding that the cause of disability was repetitive actions of employment, and Anderson v. Brinkoff did not warrant apportionment).
Moreover, we are unpersuaded by the respondent's argument that we must mandate an apportionment based on "medical impairment" in view of the evidentiary difficulty in apportioning between industrial and non-industrial causes of disease-related disability. Had the Anderson court intended such a rule, it could have established one. Moreover, as the Askew court noted, the general rule is that apportionment is not permitted where the claimant suffers from a latent preexisting condition which does not create a "disability in the compensation sense." Further, as demonstrated by Anderson itself, it is certainly possible to present evidence on which apportionment may be based.
Neither are we persuaded by the respondent's argument that the ALJ was compelled to find that the claimant's preexisting back condition affected her activities of daily living or her ability to earn wages. To the contrary, the evidence supports the ALJ's refusal to do so. The ALJ was persuaded by the testimony of Dr. Donner that the claimant would not have any independently disabling condition but for the exposure to the work-related hazard. We decline the respondent's invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the medical testimony. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated July 15, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 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 20, 1997 to the following parties:
Patricia Willis, 1533 Kennedy Ave., Loveland, CO 80538
U.S. West Communications, Inc., Attn: Steve Abeyta, 1801 California St., Ste. 1150 Denver, CO 80202
Margaret D. Keck, Esq., 1777 S. Harrison, Ste. 1110, Denver, CO 80210 (For the Respondent)
W.M. Busch, Jr., Esq., 903 N. Cleveland, Ste. A, Loveland, CO 80537 (For the Claimant)
By: _______________________________