Opinion
W.C. No. 4-228-650
February 28, 1997
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded permanent total disability benefits. The respondents contend that the ALJ erred in failing to apportion the claimant's permanent total disability in accordance with § 8-42-104(2), C.R.S. (1996 Cum. Supp.). We disagree, and therefore, affirm.
Section 8-42-104(2), allows for the apportionment of permanent total disability benefits where the claimant suffers a "previous disability" and sustains further disability from a subsequent industrial injury. Colorado Fuel Iron Corp., Rhodes, 166 Colo. 82, 441 P.2d 652 (1968); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995); Haislip v. HCC Foothills Care Center, Inc., W.C. Nos. 4-133-841 et. al., April 4, 1996. The "previous disability" must be in existence at the "time of the subsequent injury." Colorado Fuel Iron Corp., Rhodes, supra.
Here, the ALJ determined that the claimant is permanently and totally disabled as a result of an industrial back injury on October 17, 1994. It is undisputed that the claimant also has a history of treatment for lupus, diabetes, coronary disease, vision loss, hypertension and carpal tunnel syndrome.
The respondents contend that § 8-42-104(2), must be read to allow the apportionment of permanent total disability between the effects of an industrial disability and a pre-existing, non-industrial medical impairment. In making this argument the respondents recognize the Court of Appeals' statement in Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), that § 8-42-104(2) only provides for the apportionment of a "previous industrial disability." However, the respondents rely on Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995), in which the court of appeals upheld the apportionment of medical impairment between the effects of an industrial injury and a pre-existing non-industrial medical condition, for purposes of awarding permanent partial disability benefits. Therefore, the respondents' argue that the ALJ erred in failing to apportion the claimant's permanent total disability.
We do not believe that, for purposes of apportioning permanent total disability under § 8-42-104(2), the term "previous disability" refers to a pre-existing medical impairment. Section 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), which applies to this claim, defines permanent total disability as the inability to "earn any wages in the same or other employment." Unlike permanent partial disability, medical impairment is not conclusive of permanent total disability. Rather, medical impairment is only one of a myriad of factors to be considered in determining whether the claimant is incapable of earning "any wages." Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). It follows that in the context of permanent total disability, a "previous disability" is a disability which impairs the claimant's ability to earn wages. See Morrill v. Western Fuels Utah, Inc., W.C. No. 3-115-554, January 14, 1997.
We also note that, unlike the statutory provisions for the determination of medical impairment, § 8-40-201(16.5)(a) does not afford any special weight to the opinion of the treating physician in determining whether the claimant is permanently and totally disabled. See Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250, September 27, 1994; Hooper v. Powermark Case Corp., W.C. No. 4-176-990, January 301, 1996. Nor is the ALJ limited to medical evidence in determining whether the claimant has a previous disability in the context of a claim for permanent total disability benefits.
We also note that Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995), was reversed by the Supreme Court in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Consequently, the respondents' reliance upon the Court of Appeals' conclusions in Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995), is misplaced.
Moreover, the Supreme Court's opinion in Askew recognizes that the mere existence of medical impairment does not equate to a "previous disability" even for purposes of permanent partial disability. The issue before the Supreme Court in Askew was whether, for purposes of awarding permanent partial disability benefits under § 8-42-104(2), the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) allow a physician to apportion medical impairment between the effects of an industrial injury and a pre-existing non-industrial, medical condition. As noted by the court in Askew, the Workers' Compensation Act does not define the term "previous disability." Thus, in Askew the court relied upon the AMA Guides to define the term "previous disability."
Under the AMA Guides, "impairment" and "disability" are not synonymous. Rather, the AMA Guides indicate that a medical "impairment" is "an alteration of an individual's health status, and a "disability" is an "alteration of an individual's capacity to meet personal, social, or occupational demands. As indicated by the court in Askew, the AMA Guides also state that an "impairment gives rise to disability only when the medical condition limits the individual's capacity to meet the demands of life's activities." Therefore, the Supreme Court held that for purposes of awarding permanent partial disability benefits, a medical impairment rating may only be apportioned when a "prior disability, as defined by the AMA Guides is a contributing factor to a subsequent industrial injury."
The Askew claimant suffered from a pre-existing, non-industrial degenerative back disease. However, the disease was asymptomatic, had not been treated, and "did not hinder [the claimant's] capacity to meet any demands," prior to the industrial injury. Under these circumstances, the Supreme Court concluded that the Askew claimant did not have a "previous disability" for purposes of apportioning permanent partial disability under § 8-42-104(2).
In the context of permanent total disability, the determination of whether the claimant has a previous disability is a question of fact for resolution by the ALJ. Accordingly, the ALJ's determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985); General Iron Works v. Industrial Commission, 719 P.2d 353 (Colo.App. 1985).
Here, the ALJ determined that the claimant's pre-existing, non-industrial medical problems did not impair the claimant's ability to work and earn wages prior to the industrial injury. (Conclusions of Law 4). Instead, the ALJ found that the lupus and diabetes were under control, and that the claimant's heart attack was not a factor in her continuing to work up until the industrial injury.
The ALJ's determinations are supported by substantial evidence in the claimant's testimony, which the ALJ found credible. Morrill v. Western Fuels Utah, Inc., supra; cf. Texas Instruments, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 93CA312, October 28, 1993) (not selected for publication) (evidence that the claimant successfully returned to employment involving heavy exertion for 20 years following an earlier back injury is ample support conclusion that the claimant's prior injury did not contribute to the claimant's permanent total disability). Therefore, we may not interfere with the ALJ's finding that the claimant's pre-existing medical problems did not constitute a "previous disability" for purposes of apportionment under § 8-42-104(2), and this finding supports the ALJ's order.
As a result of our disposition we need not consider whether Askew overrules or contravenes Lindner concerning whether, in the context of permanent total disability § 8-42-104(2) allows the apportionment of a non-industrial disability. Furthermore, the respondents' remaining arguments have been considered and do not alter our conclusion.
IT IS THEREFORE ORDERED that the ALJ's order dated June 3, 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 February 28, 1997 to the following parties:
Oranzer McGee, 3240 Krameria, Denver, CO 80207
Lizbeth M. MacLean d/b/a Colorado Geriatric Services, 5305 E. Evans Ave., #102, Denver, CO 80222
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Michael Goodman, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., Ste. 405, Denver, CO 80222 (For the Claimant)
BY: _______________________