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In re Berndt, W.C. No

Industrial Claim Appeals Office
Mar 17, 1999
W.C. Nos. 4-140-564, 4-187-415 (Colo. Ind. App. Mar. 17, 1999)

Opinion

W.C. Nos. 4-140-564, 4-187-415

March 17, 1999.


FINAL ORDER

The respondent, Holly Nursing Care Center (Holly) seeks review of an order of Administrative Law Judge Wheelock (ALJ) which required them to pay permanent total disability benefits without apportionment, and awarded future medical benefits. We affirm.

The ALJ found that the claimant suffered a compensable injury on October 22, 1991, when she fell and injured her back. The ALJ also found that on February 25, 1992, the claimant sustained a new injury in the nature of an occupational disease, which caused internal injuries and resulted in rectocele and cystocele. The claimant was employed by Holly at the time of both injuries. ALJ determined that as a result of the injuries the claimant has constant severe back pain, loss of bowel and bladder control, the need to lay down frequently, and medical restrictions which preclude her from lifting over ten pounds and sitting for more than four hours.

On conflicting medical and vocational evidence, the ALJ determined that the combined effects of the industrial injuries render the claimant unable to earn any wages. Therefore, the ALJ determined the claimant is permanently and totally disabled. The ALJ further determined that the claimant's rectocele and cystocele conditions are 50 percent attributable to the claimant's pregnancies. However, the ALJ determined that the claimant's pre-existing condition was asymptomatic before the 1992 industrial injury. Consequently, the ALJ refused to apportion permanent total disability under § 8-42-104(2), C.R.S. 1998. The ALJ also refused to apportion liability to the Subsequent Injury Fund (SIF), and therefore, the ALJ held Holly solely responsible for the claimant's permanent total disability benefits. The ALJ also ordered Holly to provide ongoing medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).

I.

On review, we first reject Holly's contention that the ALJ erroneously awarded Grover type medical benefits. The claimant is entitled to Grover type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to cure and relieve the effects of the industrial injury or prevent further deterioration of the claimant's condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995) ; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). In Grover the claimant was awarded ongoing medical benefits based on evidence that the claimant "may need future treatment if she experiences a relapse at a future time."

The question of whether the claimant has established an entitlement to ongoing medical benefits is one of fact for resolution by the ALJ. Stollmeyer v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Stollmeyer v. Industrial Claim Appeals Office, supra.

In his report dated October 11, 1995, Dr. Khan stated that the claimant requires additional medical care for the injury to "control pain, pain medication." The claimant testified that, as a result of the industrial injuries she experiences severe pain and migraine headaches, which require her to take prescription pain medication. (Tr. pp. 13, 111). We agree with the ALJ that this evidence is sufficient to support her finding that the claimant proved an entitlement to Grover type medical benefits, and therefore, we may not disturb the award. See Stollmeyer v. Industrial Claim Appeals Office, supra.

II.

Next, Holly contends that the record does not support the ALJ's finding of permanent and total disability. We disagree.

Section 8-40-201(16.5)(a), C.R.S. 1997, defines permanent total disability as the inability to earn "any wages in the same or other employment." The question of whether the claimant has the ability to earn "any wages" is decided on a "case by case basis," and varies according to the particular abilities and circumstances of the claimant. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) . Because the issue is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Application of the substantial evidence test requires us to defer to the ALJ's credibility determinations, and her assessment of the sufficiency and probative weight of the evidence. Christie v. Coors Transportation Co., supra.

Further, the ALJ is the sole arbiter of conflicting expert testimony. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Consequently, where the evidence is susceptible of conflicting inferences, it is the ALJ's sole prerogative to determine the inferences to be drawn from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

Here, there was a direct conflict in the vocational and medical evidence concerning the claimant's ability to earn any wages. The ALJ resolved the conflict in favor of the claimant by crediting the opinions of Dr. Kahn and vocational rehabilitation expert, Kenneth Olson, who opined that the claimant is unemployable.

Contrary to Holly's contention we perceive no basis to interfere with the ALJ's decision to credit Olson's testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ's credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony). Olson admitted that, at the time of his evaluation, the claimant was working 35 hours a week at a small hotel where she earned $50 per week. However, Olson opined that the part-time employment did not evidence the ability to earn wages because it was "a make kind of a job" or "sheltered" employment with a friend, that was dependent on "special considerations" to accommodate the claimant's physical limitations. (Tr. pp. 34, 41, 42; Olson report February 4, 1994). Olson also opined that it is "highly improbable" the claimant could secure a similar position if she lost the motel job.

The claimant testified that she had to quit the motel job to undergo additional surgery for the industrial injuries, and that her condition has worsened to the point that she is no longer capable of performing any employment. (Tr. pp. 21, 108). Under these circumstances, the claimant's part-time employment is not inconsistent with Olson's opinion that the claimant is unemployable. Cf. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995) (claimant not disqualified merely because he received some income from a personal business and investments).

On January 11, 1994 Dr. Kahn opined that the claimant is not capable of sustaining substantial employment. On May 11, 1995 Dr. Kahn reported that the claimant is unable to sustain either full-time or part-time employment. Consequently, there is substantial evidence in Dr. Kahn's reports to support the ALJ's findings of fact and it is immaterial the record contains evidence which, if credited, might support a contrary determination. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).

III.

Alternatively, Holly contends the ALJ erred in refusing to apportion the claimant's permanent total disability under § 8-42-104(2). Again we disagree.

Section 8-42-104(2), provides that:

"In case there is a previous disability, the percentage of the entire 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." (Emphasis added).

As argued by Holly, a "previous disability" may be industrial or "non-industrial." Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). However, to constitute a "previous disability" the pre-existing condition must be independently disabling at the time of the subsequent industrial injury. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA469, February 4, 1999). Moreover, because permanent total disability is based upon a loss of access to the labor market, the Court of Appeals has held that, for purposes of permanent total disability, a previous "disability" refers to a pre-existing condition which impacts the claimant's ability to perform the job or impairs the claimant's access to jobs "in the same or other employment." Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997); Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra.

Here, the ALJ found that the claimant's pregnancies were 50 percent responsible for the "onset" of the claimant's rectocele and cystocele. However, the ALJ determined that the claimant's pre-existing, non-industrial condition was latent, asymptomatic, and nondisabling before the 1992 injury. The ALJ's findings are supported by substantial evidence and plausible inferences drawn from the claimant's testimony and Dr. Regan's report dated July 10, 1993, and therefore, must be upheld. (Tr. pp. 12, 24). Moreover, the ALJ's findings support her refusal to apportion the claimant's permanent total disability under § 8-42-104(2).

We also reject Holly's contention that the 1991 injury constitutes a "previous disability" under § 8-42-104(2). We have previously held that the term "previous disability" refers to a condition which is "permanent" in nature at the time of the subsequent injury. See Anderson v. Summit Ridge Water District, W.C. Nos. 3-113-761; 3-114-418 (March 12, 1998). Permanent disability cannot be determined until maximum medical improvement (MMI). See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Consequently, the effects of a prior industrial injury cannot constitute a "previous disability" unless the claimant attained MMI for the prior injury before the date of the subsequent injury. Cf. Rumbaugh v. Workers' Compensation Appeals Board, 87 Cal App. 3d 907, 151 Cal. Rptr 563 (1978) (where claimant suffered two successive industrial back injuries which became permanent at about the same time, neither was "previous" to the other for purposes of apportionment). We adhere to our prior conclusion.

In this case, the ALJ determined that the claimant did not reach MMI for the 1991 until July 7, 1993. It follows that the 1991 injury could not constitute a "previous disability" at the time of the 1992 injury. Therefore, the ALJ correctly refused to apportion permanent total disability under § 8-42-104(2).

For these same reasons, we perceive no reversible error in the ALJ's refusal to apportion liability to the SIF. Under § 8-46-101(1)(a), C.R.S. 1998, the SIF may be liable for the claimant's permanent total disability where a claimant who has "previously sustained permanent partial industrial disability" suffers a "subsequent injury" which results in additional permanent disability and the combined industrial disabilities render the employee permanently and totally disabled. See Bowland v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1740, August 20, 1998). Because the claimant reached MMI for both industrial injuries on July 7, 1993, the ALJ's findings compel the conclusion that the claimant did not have a "previous" permanent partial industrial disability at the time of the 1992 injury, and that the 1992 injury was not a "subsequent" injury for purposes of § 8-46-101. See Pikes Peak Community College v. Leonard, 865 P.2d 913 (Colo.App. 1993). Therefore, the SIF is immune from liability, and the ALJ did not err in holding Holly solely responsible for the claimant's permanent total disability.

IT IS THEREFORE ORDERED that the ALJ's order dated August 18, 1998, 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, 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. 1998.

Copies of this decision were mailed MARCH 17, 1999 to the following parties:

Janet Berndt, 847 W. Vaughn, Holly, CO 81407

Holly Nursing Care Center Inc., PO Box 636, Holly, CO 81047-0636

Lucy Tuttle, NHA, 320 North 8th, Holly, CO 81047

Sharon Thompson, Support Services Inc., PO Box 22438, Denver CO 80222

Hollyce H. Farrell, Esq., Subsequent Injury Fund, 1525 Sherman Street, 5th Floor, Denver, CO 80203

Michael W. Seckar, 402 West 12th Street, Pueblo, CO 81003 (For Claimant)

William Richardson, Esq., 1430 Larimer Square, 400 Sussex Building, Denver, CO 80202 (For Respondents)

BY: ________________


Summaries of

In re Berndt, W.C. No

Industrial Claim Appeals Office
Mar 17, 1999
W.C. Nos. 4-140-564, 4-187-415 (Colo. Ind. App. Mar. 17, 1999)
Case details for

In re Berndt, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF JANET BERNDT, Claimant, v. HOLLY NURSING…

Court:Industrial Claim Appeals Office

Date published: Mar 17, 1999

Citations

W.C. Nos. 4-140-564, 4-187-415 (Colo. Ind. App. Mar. 17, 1999)