Opinion
W.C. No. 4-177-843
March 31, 2000
FINAL ORDER
The claimant seeks review of final order of Administrative Law Judge Wheelock (ALJ) which awarded permanent total disability benefits. The respondents contend the award is erroneous because the claimant held a job at the time of the hearing. The respondents further contend the evidence does not support the ALJ's determination that the claimant's permanent total disability is causally related to the industrial injury. We affirm.
The ALJ found the claimant sustained a compensable injury when she fell on June 23, 1993. The claimant injured her right shoulder and back, and subsequently developed migraine headaches. The claimant has also been diagnosed with depression.
At the time of the hearing in February 1999, the claimant testified that she was employed as a food service worker at her daughter's school. The claimant worked 2 to 3 hours per day 2 to 3 days per day, and was paid $6.10 per hour. This job began as volunteer work, and the claimant testified that she gives free cartons of milk to students who help her with lifting. The claimant also testified that she felt unable to continue this employment because of frequent, disabling headaches. (Tr. pp. 60-61). An examining physician, Dr. Bralliar, opined the claimant should not continue the food service job because it causes stress and muscle tension which "set off" the claimant's headaches. (Tr. pp. 75-77).
The claimant also presented the testimony of vocational expert Rodney Wilson. Wilson opined the claimant is not capable of finding employment in Colorado. He further stated that the claimant's job as a food service worker did not constitute employment because of the limited number of hours, and because the claimant was permitted to work significantly fewer hours than mandated by her contract. Finally, Wilson opined that the food service job was not the type of work generally available to the public.
Crediting the claimant's testimony and the opinions of Wilson and Dr. Bralliar, the ALJ found the claimant was rendered "permanently and totally disabled as a result of the June 23, 1993 industrial injury." The ALJ further determined that the claimant's employment with the school did not "qualify as competitive employment," and that no jobs are available which would allow the claimant to earn any wages.
I.
On review, the respondents dispute the ALJ's determination that the claimant's permanent total disability was caused by the industrial injury. In support of this proposition, the respondents cite Finding of Fact 10, in which the ALJ found that the claimant's "headache condition has become a cyclical self-perpetuating problem that is triggered by [her] minimal work efforts at her daughter's school as well as other stresses that result from her injury." The respondents assert this finding establishes the claimant's employment at the school either "aggravated" or "caused" the claimant's headaches and, hence, the permanent total disability. We reject this argument.
Initially, we recognize the claimant's argument that the respondents waived the causation argument by failing to raise it as an affirmative defense. However, the claimant had the initial burden of proof to establish that the industrial injury was a "significant causative factor" in her permanent total disability. See Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, October 28, 1999). Thus, the sufficiency of the evidence to establish causation was necessarily before the ALJ, and we may consider the issue on appeal.
In order to establish that the industrial injury was a "significant causative factor" the claimant was required to prove that there was a direct causal relationship between the industrial injury and the permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). This determination required the ALJ to ascertain "the nature and extent of claimant's residual impairment from the industrial injury." Cooper v. Industrial Claim Appeals Office, supra. Resolution of the issue was ultimately one of fact for the ALJ. See Heggar vs. Watts-Hardy Dairy, 685 P.2d 235 (Colo.App. 1984). Because the issue is factual in nature, we must hold the ALJ's order if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1999. 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. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
The mere fact that the performance of work elicits symptoms of a preexisting condition does not require the ALJ to infer that the work has "aggravated" the preexisting condition. The evidence may support a conclusion that the symptoms are a logical and recurrent consequence of the preexisting condition, not an "aggravation" caused by the work. See F. R. Orr Construction vs. Rinta, 717 P.2d 965 (Colo.App. 1985); Becher v. City Market, Inc., W.C. No. 3-059-095 (September 16, 1994).
Here, the ALJ explicitly found that the claimant's permanent total disability was caused by the 1993 industrial injury. In so doing, the ALJ credited the testimony of Dr. Bralliar, who stated that all of the claimant's "medical conditions" are secondary to the work-related injury. (Tr. p. 84). Consequently, there is substantial evidence in the record to support the ALJ's determination that the industrial injury caused the claimant's permanent total disability, even though her subsequent employment at the school tended to "trigger" headaches. Put another way, the ALJ determined that the industrial injury rendered the claimant susceptible to headaches, and the headaches substantially contribute to the claimant's inability to earn wages. The mere fact that the claimant experienced headaches when performing post-injury employment did not require the ALJ to conclude the food service work "aggravated" the claimant's condition or constituted an efficient intervening cause of the permanent total disability. Rather, the headaches were a "logical and recurrent" consequence of the 1993 industrial injury. F. R. Orr Construction Co. vs. Rinta, supra. Finding of Fact 10, cited by the respondents, is fully consistent with this interpretation of the ALJ's order.
II.
The respondents next contend the ALJ erred in awarding permanent total disability benefits because the claimant was earning wages as a food service worker. Relying on McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995), and Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997), the respondents contend the claimant's part-time employment establishes the ability to earn wages as a matter of law. We disagree.
§ 8-40-201(16.5)(a), C.R.S. 1999, provides that permanent total disability "means the employee is unable to earn any wages in the same or other employment." This statute established a stricter standard for permanent total disability than existed prior to the 1991 amendments to the Workers' Compensation Act. Specifically, the claimant is disqualified from receiving permanent total disability benefits if she is able to earn wages in "any amount." See Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997).
However, the question of whether the claimant is capable of earning any wages is one of fact for determination by the ALJ. In resolving the issue, the ALJ may consider various "human factors" including the claimant's age, education, work history, and general physical condition. The crux of the inquiry is whether employment exists which is reasonably available to the claimant given his or her particular circumstances. Weld County School District RE-12 vs. Bymer, 955 P.2d 550, 558 (Colo. 1998). Because the issue is factual, we must uphold the ALJ's order if supported by substantial evidence.
The mere fact that a claimant held post-injury employment and received compensation does not compel a finding that the claimant is able to "earn any wages" within the meaning of § 8-40-201(16.5)(a). Rather, if the evidence establishes that the employment was not "bona fide," but was charitable in nature, the ALJ may find as a matter of fact that the employment does not establish the ability to earn wages. Lobb v. Industrial Claim Appeals Office, supra. Similarly, in Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999), the court upheld an award of permanent total disability benefits where the claimant's vocational expert was aware of the claimant's previous part-time, "sheltered" employment, but testified it was "highly improbable that claimant could secure a similar position if she lost that job." Id. at 703.
Here, the record supports the ALJ's conclusion that the claimant's employment as a food service worker does not vitiate the finding of permanent total disability. The ALJ implicitly determined that the job does not constitute "bona fide employment." This determination is supported by evidence that the claimant originally performed this job on a volunteer basis, she works a minimum number of hours, and she is regularly absent due to her physical condition. Nevertheless, the claimant is accommodated by the school. Moreover, Wilson's testimony establishes that the claimant's job is not the type of employment which is available on the open labor market, and is not indicative of the claimant's ability to earn wages. Finally, the claimant testified that she does not believe she will be able to maintain this employment, and would not do so but for financial exigencies.
Cf. Holly Nursing Care Center v. ICAO, supra.
The respondents' argument notwithstanding, Lobb v. Industrial Claim Appeals Office, supra, does not require a different result. In that case, the claimant was offered employment which was approved by her primary care physician, and which a vocational expert opined would afford the claimant an "appropriate method" to earn wages. Those facts stand in stark contrast to the facts which the ALJ found in this case. Neither does McKinney v. Industrial Claim Appeals Office, supra, mandate reversal of the ALJ's award of permanent total disability benefits. In McKinney, the ALJ found as a matter of fact that the claimant was capable of performing many entry-level jobs for 4 to 6 hours per day. The ALJ did not find the claimant in this case has similar options.
IT IS THEREFORE ORDERED that the ALJ's order dated February 19, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. 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 March 31, 2000 to the following parties:
Cindy Lou Carlson, 1840 E. 11th St., Pueblo, CO 81001
Joslins Dry Goods Company, 1710 Briargate Blvd., Colorado Springs, CO 80920-3449
Margaret Malone, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Steven U. Mullens, Esq., 1401 Court Street, Pueblo, CO 81003 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy