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In re Galvan, W.C. No

Industrial Claim Appeals Office
Apr 18, 2005
W.C. No. 4-385-895 4-496-578 (Colo. Ind. App. Apr. 18, 2005)

Opinion

W.C. No. 4-385-895 4-496-578.

April 18, 2005.


FINAL ORDER

In these consolidated workers' compensation cases Schmidt Imports Inc. (employer) and Hartford Fire Insurance Company (Hartford respondents) seek review of an order of Administrative Law Judge Harr (ALJ). The Hartford respondents contend the evidence does not support the ALJ's findings that the claimant is permanently and totally disabled (PTD), or that the PTD was caused by an injury on June 29, 1998. The Hartford respondents further contend the ALJ erred in apportioning liability for a total knee replacement (TKR) surgery. We affirm.

The claimant sustained two compensable injuries. The first, designated as W.C. No. 4-385-895, occurred on June 29, 1998 (1998 injury), while the employer was insured by Hartford. This injury occurred when the claimant, who was employed as auto detail supervisor, was hit by a car and pushed through a wall. The claimant sustained numerous, serious injuries including pelvic fractures, a fractured L3 vertebra, fractured ribs, right shoulder impingement, various internal injuries, and a shattered tibial plateau of the right knee.

The second injury occurred on February 23, 2001, after the claimant had returned to work in a limited capacity. This injury, designated as W.C. No. 4-496-578 (2001 injury) occurred when the claimant slipped on a trailer and reinjured the right knee. At this time the employer was insured by respondent Pinnacol Assurance (Pinnacol).

The claims proceeded to hearing in August 2003 concerning the issues of claimant's entitlement to PTD benefits, and medical benefits for a TKR. The Hartford respondents took the position that the claimant is not PTD because he returned to work after the 1998 injury, but if the claimant is PTD that condition was caused by the 2001 injury for which Pinnacol is responsible. The Hartford respondents also contended the need for the TKR surgery is entirely attributable to the 2001 injury, while Pinnacol sought to apportion liability between the two injuries.

Following extensive lay, medical and vocational testimony, the ALJ found the claimant proved he is PTD, and that the PTD was caused by the 1998 injury. In support of these determinations the ALJ found that although the claimant returned to work following the 1998 injury, he could not perform all of the detailing and janitorial functions he performed before the injury and enlisted the help of unpaid family members to assist him when necessary. Further, the claimant experienced pain within one hour reporting for work, and was allowed to take off five to six days per month because the pain precluded him from working. The ALJ also cited the opinions of Dr. Deagle (a DIME physician), and Dr. Hughes, that the claimant's post-injury employment exceeded the claimant's restrictions. Indeed, the ALJ noted that the DIME occurred on February 21, 2001, two days before the 2001 injury, and Dr. Deagle told the claimant he should not work at all because he risked aggravating the various injury-related conditions. Dr. Deagle assigned a seventy-two percent impairment rating for the claimant's residual impairments. The ALJ also credited the expert vocational opinions of Mr. Litvin and Ms. Bartmann that the job which the claimant performed after the 1998 injury was "sheltered employment" not available on the open labor market. Thus, the ALJ ordered the Hartford respondents to pay PTD benefits commencing February 21, 2001, the date of maximum medical improvement for the 1998 injury.

The ALJ also ordered the Hartford respondents to pay 75 percent of the cost of the TKR performed in April 2002, and ordered Pinnacol to pay 25 percent of the cost. In support, the ALJ found that as early as February 1999 one of the claimant's treating physicians opined the claimant might eventually require a TKR to repair the damage to "articular surfaces" caused by the 1998 injury. The ALJ also credited the opinion of Dr. Hughes that the 1998 injury caused a degenerative process which progressed after the 1998 injury and would have required a TKR in April 2002 irrespective of the 2001 injury. The ALJ also credited Dr. Hughes' opinion that the need for the TKR was accelerated by the 2001 injury because the previous bone graft was damaged and the claimant developed a "valgus deformity."

I.

On review the Hartford respondents first contend the ALJ erred in finding that the claimant proved PTD caused by the 1998 injury. The Hartford respondents, relying on Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997), argue that because the claimant returned to work for approximately a year and a half after the 1998 injury, the evidence does not support an award of PTD. The Hartford respondents also assert the employment was not "sheltered" because the claimant worked many hours and performed numerous duties. We are not persuaded.

A claimant has the burden to prove PTD by demonstrating that he is unable to earn "any wages" in the same or other employment. Section 8-40-201(16.5), C.R.S. 2004. In determining whether the claimant has proven PTD, the ALJ may consider various "human factors," including the claimant's age, mental ability, employment history, education and the availability of work which the claimant can perform. Ultimately, resolution of this question is one fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1988).

The Hartford respondents' assertion notwithstanding, the mere fact that a claimant is offered and performs some post-injury employment does not automatically disqualify the claimant from receiving PTD benefits. Rather, the crux of the test is the availability of employment which is reasonably available to the claimant under his or her particular circumstances. If the evidence shows that the claimant is not physically able to sustain post-injury employment, or that such employment is "unlikely to become available to a claimant again in view of the particular circumstances, the ALJ need not find that the claimant is capable of earning wages." Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 868 (Colo.App. 2001). Thus, in Joslins an award of PTD benefits was upheld despite the fact the claimant was working at the time of the hearing, six years after the injury. The evidence in that case showed the claimant was "protected" by a supervisor and received assistance from students when performing her job as a food service worker. A vocational expert testified the claimant's job did not constitute employment because of the limited hours and because the job was not generally available to the public. The Joslins court found the evidence supported the ALJ's implicit determination that the job did not constitute "bona fide" employment. See also, Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).

Because the issue of PTD is factual, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Bymer v. Weld County School District RE-12, supra; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).

Here, there is ample evidence to support the ALJ's finding that the claimant proved PTD, and that the mere fact the claimant returned to work after the 1998 injury does not disqualify him. The evidence establishes the claimant is essentially illiterate, and his entire adult work history has been in detailing boats and cars. After the 1998 injury the employer allowed the claimant to return to work, but the claimant could not perform many functions of the job including removing seats and carpets from automobiles, and he required the assistance of family members to meet the employer's expectations. Although the claimant sometimes worked many hours, he frequently suffered debilitating pain and was allowed to miss up to a week of work per month without consequences. Moreover, the record contains expert vocational testimony that no similar job was available in the claimant's labor market, and this factor is particularly telling because the employer has since gone out of business. Finally, Dr. Deagle opined as of February 21, 2001, that the claimant should not be working because of the threat of additional injury. Dr. Hughes corroborated this position and opined the job was beyond the claimant's restrictions.

It is true the Hartford respondents produced some evidence, including the testimony of Dr. Maruyama and vocational expert Kupcho, which might support a contrary result. However, the weight and credibility to be afforded the testimony of these experts was a matter for the ALJ, and we may not interfere with his decision to credit the conflicting testimony of the experts presented by the claimant and Pinnacol. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 191 (Colo.App. 2002). Lobb v. Industrial Claim Appeals Office, supra, is not authority to the contrary. In the Lobb case the court was careful to note that "while there was evidence that might have supported the claimant's argument that the offer [of employment] was merely charitable in nature, the ALJ concluded, with record support, that the reemployment offer was bona fide." 948 P.2d at 118. Thus, Lobb merely underscores that the effect of post-injury employment on a claim for PTD benefits presents a factual issue which the ALJ must resolve considering the particular circumstances of the case.

II.

The Hartford respondents next contend that the ALJ's finding that the PTD was caused by the 1998 injury is unsupported by the evidence and represents a misapplication of the "full responsibility rule." The Hartford respondents emphasize that the claimant did not stop working until after the 2001 injury. We reject these arguments.

The "full responsibility rule," applicable to claims for PTD benefits, holds that when an "employer hires an employee who, by reason of a pre-existing condition or by reason of a prior injury, is to some extent disabled, he takes the man with such handicap," and the employer is liable for a "full award of benefits" if a subsequent industrial injury combines with the pre-existing disability to produce PTD. United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152,1154-1155 (Colo. 2000). However, in order to find that an employer is liable for PTD benefits, it must be shown that there is a "direct causal relationship between the industrial injury and the PTD." This determination requires the ALJ to "ascertain the nature and extent of the claimant's residual impairment from the industrial injury." Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d at 869.

The question of which of two possible causes is responsible for a disability is factual in nature. Consequently, we must uphold the ALJ's resolution if supported by substantial evidence. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002); Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra.

Here, the clear import of the ALJ's findings is that the direct cause of the PTD was the 1998 injury. Thus, the ALJ necessarily held that the 2001 injury played no direct causal role in the PTD because the claimant was already permanently and totally disabled by February 21, 2001, before the second injury occurred. For the reasons stated above, that finding is supported by substantial evidence. It follows that the "full responsibility rule" has no application because the 2001 injury did not combine with the 1998 injury to produce the PTD.

We note the argument made by the respondents in this case is legally similar to the one made in the Joslins case. There, the respondents argued that because the post-injury employment "triggered" headaches the post-injury employment was the cause of the PTD. However, the court found that substantial evidence supported the finding that the headaches were "secondary to" the original industrial injury, and that the injury caused the PTD even though the post-injury employment triggered the headache symptoms.

III.

The Hartford respondents next contend the ALJ erred in apportioning liability for the TKR. Essentially, the Hartford respondents argue the ALJ should have credited the testimony of Dr. Maruyama, which they assert was more credible than that of Dr. Hughes concerning the cause or causes of the need for the surgery. This argument is not persuasive.

It is proper to apportion liability for medical benefits if the claimant's condition is caused by successive industrial injuries and both injuries contribute to the need for the medical treatment. Duncan v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA1616, July 1, 2004). The question of causation is one of fact for the ALJ, and we must uphold the ALJ's determination if supported by substantial evidence. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).

The ALJ credited the testimony of Dr. Hughes that the need for surgery in April 2002 was partly attributable to deterioration of the claimant's knee joint which was well underway before the February 2001 injury, and partially attributable to an acceleration of the claimant's condition caused by the 2001 injury. Dr. Hughes cited evidence in the claimant's medical records tending to support his theory of degeneration of the knee joint, including evidence that physicians recognized the potential need for a TKR as early as February 1999. Dr. Hughes also pointed out that the surgeon found evidence of "bone on bone" end-stage arthritis when the TKR was performed in April 2002. It was for the ALJ to assess the weight and credibility of this expert opinion, and the mere existence of conflicting views expressed by Dr. Maruyama affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, supra. Indeed, this case bears a striking factual resemblance to Duncan v. Industrial Claim Appeals Office, supra, a case in which the court upheld apportionment of the cost of a knee replacement.

IT IS THEREFORE ORDERED that the ALJ's order dated November 1, 2004, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________ David Cain

____________________ Kathy E. Dean

Henry S. Galvan, Sterling, CO, Schmidt Imports, Inc., Sterling, CO, Fran Wood, Hartford Fire Insurance Company, Houston, TX, Legal Department, Pinnacol Assurance — Interagency Mail, W. Clark Litten, Esq., Aurora, CO, (For Claimant).

Douglas J. Kotarek, Esq., Denver, CO, (For Respondents).

Schmidt Imports, Inc. and Hartford Fire Insurance Company) Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents Schmidt Imports, Inc. and Pinnacol Assurance).


Summaries of

In re Galvan, W.C. No

Industrial Claim Appeals Office
Apr 18, 2005
W.C. No. 4-385-895 4-496-578 (Colo. Ind. App. Apr. 18, 2005)
Case details for

In re Galvan, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF HENRY S. GALVAN, Claimant, v. SCHMIDT…

Court:Industrial Claim Appeals Office

Date published: Apr 18, 2005

Citations

W.C. No. 4-385-895 4-496-578 (Colo. Ind. App. Apr. 18, 2005)