Opinion
W.C. No. 4-560-612.
October 18, 2006.
FINAL ORDER
The respondents seek review of an Amended Order Following Remand of Administrative Law Judge Jones (ALJ) dated May 17, 2006 that awarded permanent partial disability benefits without apportionment. We vacate that portion of the ALJ's order that awarded permanent partial disability benefits. Otherwise, we affirm the order.
This matter was previously before us. The ALJ entered an order dated March 15, 2005 that apportioned medical benefits, temporary disability benefits and permanent partial disability benefits. The claimant appealed that order. On review we were unable to discern from the ALJ's findings the extent to which she apportioned out of the claimant's benefits disability attributable to prior industrial injuries and the extent to which she found that the claimant's preexisting degenerative conditions were causative factors in his disability and his need for medical treatment. Because the factual findings were insufficient to permit our review, we remanded for entry of additional findings and another order. On remand the ALJ entered the order presently under review.
On remand the ALJ entered findings of fact that may be summarized as follows. The claimant sustained compensable injuries to his low back on November 7, 2002, and the insurer's claims adjuster investigated the claim and subsequently admitted liability on December 17, 2002. The adjuster relied upon the opinions of the claimant's treating physicians, Dr. Jernigan and Dr. Youssef that the claimant's low back condition was entirely related to the compensable injury. The ALJ further found that the claimant "may have suffered other industrial injuries," but that the evidence did not establish to the ALJ's satisfaction the dates of those injuries, the nature of the injuries, or the extent to which the injuries contributed to the claimant's overall impairment. The ALJ also noted in her factual findings that the claimant may have injured his low back in 1988 while employed by a ski area. However, the ALJ concluded that the evidence concerning this injury was insufficient to establish the extent to which it contributed to the claimant's disability at the time of the hearing. The ALJ similarly concluded that the evidence concerning an alleged 1992 injury was insufficient to support an apportionment of benefits and compensation. Finally, she found that an alleged injury occurring in 2002 was a sports injury and that apportionment based upon that injury was inappropriate. Accordingly, the ALJ awarded permanent partial disability benefits based upon the unapportioned impairment rating of 19 percent of the whole person.
The respondents appealed the ALJ's order and argue that the panel erred in its previous order in setting aside the ALJ's order dated March 15, 2005, and that the ALJ erred in refusing to apportion benefits and compensation in her order following the remand. We are unpersuaded and therefore affirm.
Here, the ALJ correctly recognized the well-established principle articulated by our courts that a pre-existing condition or disease "does not disqualify a claim if the employment aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which workers' compensation is sought." H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990). See Amended Order Following Remand at 3, ¶ 1. In this connection, we have previously stated that:
Few principles are more fundamental to the Workers' Compensation Act of Colorado (Act) than the rule that "this state does not distinguish between disabilities that are the result of employment-related aggravation of pre-existing conditions and those that are not." Thus, where a "pre-existing condition is aggravated by an employee's work, the resulting disability is a compensable industrial disability." Subsequent Injury Fund v. Thompson, 793 P.2d 576, 579 (Colo. 1990). A similar expression of the same principle is that the "employer must take the employee as it finds him so that the employer is responsible for any increased disability resulting to an employee from a pre-existing weakened condition." See Cowin Co. v. Medina, 860 P.2d 535, 538 (Colo.App. 1992).
Weber v. Shiloh House, W.C. No. 4-540-459 (May 20, 2005). The ALJ also concluded that, notwithstanding this principle, apportionment of compensation and benefits was permissible where separate industrial injuries concurrently caused the disability for which medical treatment was sought. In reaching this conclusion the ALJ relied upon State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App. 1985), University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001), and Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004). In those cases the court of appeals held that apportionment is proper where the claimant's condition is caused by successive industrial injuries and both injuries contribute to the disability and need for additional medical treatment.
We assume for purposes of our review of the ALJ's order that she correctly concluded that the authority cited above authorizes apportionment of the type sought by the respondents here. However, in our view, the law in this area is presently unsettled. The court of appeals recently announced Resources One, LLC v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. 05CA1240, June 15, 2006), in which the court held that the Workers' Compensation Act did not authorize apportionment "between an employer and the claimant, when a prior injury or condition contributes to the final disabling result." Id., slip op. at 2. The court distinguished Duncan on the grounds that there the apportionment was between successive employers; however, in any event the court in Resources One stated that it would not follow Duncan insofar as that opinion was not distinguishable.
Assuming that the ALJ correctly concluded that apportionment was permissible in this case, she did not err in declining to apportion benefits. The question of whether apportionment is appropriate is essentially one of fact. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Similarly, the extent to which various causative factors contributed to the claimant's disability or need for medical treatment is also a question of fact for the ALJ. It is only where reasonable minds can draw but one inference that the issue of causation becomes one of law. Schrieber v. Brown Root Inc., 888 P.2d 274 (Colo.App. 1993). Because these questions are factual in nature, we are bound by the ALJ's determinations if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
The burden here to show the propriety and extent of any apportionment was on the respondents. Cf. Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999). Ultimately, the ALJ weighed the evidence and was unpersuaded that they carried that burden. The ALJ is vested with the broadest discretion in assessing the weight and sufficiency of the evidence, Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985), and we are unable to state that the record in this case compels the conclusion that the ALJ was required to apportion liability for benefits and compensation. Although there was certainly evidence that the claimant had sustained previous compensable injuries, had undergone medical treatment, and had filed claims for workers' compensation benefits, nothing in that record requires apportionment as a matter of law. The ALJ was free to weigh the competing evidence, as she did, and to conclude that it was insufficient to establish that the claimant's benefits and compensation should be apportioned. We are not at liberty to reweigh the evidence and reach a conclusion contrary to that of the ALJ.
Finally, we agree with the claimant that the ALJ lacked jurisdiction to award permanent partial disability benefits based upon the 19 percent rating of the Division-sponsored independent medical examination (DIME). At the commencement of the hearing the claimant's attorney stated to the ALJ that the issue of permanent disability benefits was not "ripe," because the DIME had only recently been issued. Tr. at 6. The claimant's attorney later clarified his position that, because the respondents had not admitted liability in a final admission or endorsed the issue of overcoming the DIME report, the ALJ lacked jurisdiction to adjudicate permanent disability benefits. Tr. at 7, 14. It is unclear from the transcript whether the respondents confessed the claimant's motion; however, we note that counsel for the respondents argued that the DIME report should not be admitted into evidence. Tr. at 9. In any event, it is apparent from the record that the parties did not litigate the issue of overcoming the DIME report by clear and convincing evidence.
We are aware that the claimant did not appeal the order awarding permanent partial disability benefits based upon the DIME rating. However, the statutory scheme creating the DIME procedures is clear and requires the insurer either to contest the DIME report within thirty days or to admit in accordance with the report. See § 8-42-107.2(4), C.R.S. 2006. The courts have held that the ALJ lacks jurisdiction to adjudicate either the issue of maximum medical improvement or permanent disability benefits absent a DIME. E.g., Leprino Foods Company v. Industrial Claim Appeals Office, 134 P3d 475 (Colo.App. 2006). In our view, where a DIME has been sought and conducted, and the DIME report has been issued, the ALJ has no jurisdiction to award permanent partial disability benefits pending the respondents' compliance with the statute. Because the claimant's objection goes to the ALJ's jurisdiction to act, we do not believe that his failure to appeal the order precludes our consideration of the alleged error.
IT IS THEREFORE ORDERED that the portion of the ALJ's order dated May 17, 2006 awarding permanent partial disability benefits based upon a 19 percent whole person impairment rating is vacated.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order dated May 17, 2006, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Animas Fire Protection, Durango, CO., Pinnacol Assurance, Harvey D. Flewelling, Esq., Denver, CO, Dawes and Harriss, P.C., Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).
Ruegsegger, Simons, Smith Stern, LLC, Craig R. Anderson, Esq., Colorado Springs, CO, (For Respondents).