Opinion
W.C. No. 3-833-982
August 11, 1995
FINAL ORDER
King Soopers and the Subsequent Injury Fund (SIF) have separately petitioned for review of a Supplemental Order issued by Administrative Law Judge Friend (ALJ). King Soopers contests the ALJ's award of permanent total disability benefits, and the SIF contests the ALJ's apportionment of liability to the SIF. We affirm.
The ALJ found that the claimant is permanently and totally disabled as the combined result of an injury dated August 6, 1986, and the claimant's prior industrial disability. The ALJ found that the 1986 injury was in the nature of an occupational disease which affected the claimant's left hand. The ALJ also found that the claimant suffered a prior industrial back injury on November 22, 1981. The ALJ determined that 60 percent of the claimant's permanent and total disability is attributable to the 1986 occupational disease and 40 percent is attributable to the prior injury. Therefore, the ALJ ordered King Soopers to pay 60 percent of the claimant's permanent total disability benefits and ordered the SIF to pay the remaining 40 percent.
In so doing, the ALJ expressly recognized that King Soopers offered to reemploy the claimant as a teleshopper five hours per day for a total of 25 hours per week. The ALJ found that the teleshopping job is within the claimant's medical restrictions, and constitutes suitable and gainful employment. However, the ALJ determined that teleshopping is not a job available in the general competitive labor market to a person with the claimant's skills and restrictions. Therefore, the ALJ determined that the teleshopping job offer did not preclude an award of permanent total disability benefits.
I.
On review, King Soopers cites Martinez v. Industrial Commission, 40 Colo. App. 485, 580 P.2d 36 (1978), in support of its assertion that the claimant's occupational disease is governed by the law in effect on November 7, 1988, the date of the claimant's last injurious exposure to the hazards of the disease. Therefore, King Soopers argues that the ALJ erred in concluding that the claim is not subject to the July 1, 1987 amendments to former § 8-51-107 C.R.S. (1986 Repl. Vol. 3B), which preclude an award of permanent total disability benefits if the claimant "refuses an offer of employment in a suitable job by the employer." See 1987 Colo. Sess. Laws, ch. 51 at 389. We perceive no error.
The ALJ found, and the record supports his determination that King Soopers admitted liability for an occupational disease with a date of injury of August 6, 1986. Further, King Soopers never sought to withdraw its admissions of liability. See Tr. January 27, 1994, p. 3; February 8, 1994, pp. 33-34, 38-40. Under these circumstances, King Soopers is bound by its admission that the claimant's date of injury was August 6, 1986, and cannot raise a contrary argument for the first time on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994); Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Southall v. Rockwell International, W.C. No. 4-156-104, May 3, 1995.
Moreover, the respondents' argument would be rejected even if the "date of injury" were properly before us on review. Martinez v. Industrial Commission, supra, held that the rights and liabilities of the parties were governed by the law in effect at the time of the claimant's last injurious exposure to his occupational disease, because the claimant continued to perform his regular job and suffered further disability after advising the employer of his occupational hearing loss. However, the Court of Appeals has subsequently concluded that Martinez represents a narrow exception to the general rule that the law in effect on the date of the onset of disability governs the rights and liabilities of the parties in occupational disease claims. SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994); Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Specifically, in SCI Manufacturing and Robbins Flower Shop, the Court of Appeals stated that the Martinez exception is limited to circumstances where a claimant's otherwise compensable occupational disease would be rendered non-compensable under the onset of disability rule, and the application of the general rule would allow the employer, who has subjected the claimant to the risk of increased disability, to escape liability.
Here, King Soopers does not allege, and the record does not support an assertion that the claimant's occupational disease is non-compensable under the "onset of disability" rule. Nor is there any assertion or evidence that application of the "onset of disability" rule would relieve King Soopers of liability.
Accordingly, Martinez is not applicable, and the ALJ did not err in his determination that the law in effect as of August 6, 1986 governs this claim. Furthermore, because the 1986 version of § 8-51-107 does not contain the statutory language the respondents rely upon, we need not address King Sooper's arguments that the ALJ's findings are contrary to the 1987 version of § 8-51-107.
Alternatively, King Soopers argues that the claimant's ability to obtain "suitable, gainful employment" also precludes a finding of permanent total disability under 1986 version of § 8-51-107. We disagree.
Contrary to King Soopers contention, the applicable legal standard does not measure permanent disability by the claimant's ability to secure suitable gainful employment. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). The "suitable, gainful employment" standard applies to issues of vocational rehabilitation. Professional Fire Protection, Inc. v. Long, supra; Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991). In contrast, permanent and total disability exists if the claimant has lost and will not regain efficiency to some substantial degree in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). Under this standard, the claimant's ability to perform certain kinds of gainful work does not necessarily rule out a finding of permanent and total disability. Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, 212 (Colo.App. 1990). Rather, the standard recognizes that a permanently and totally disabled worker may be able to earn occasional, part-time or temporary wages. New Jersey Zinc Co. v. Industrial Commission, 165 Colo. 482, 440 P.2d 284 (1968); Gruntmeir v. Tempel Esgar Inc., 730 P.2d 893 (Colo.App. 1986).
Here, the ALJ orally found that:
"Even if teleshopping order taker is part of the general labor market, which I don't even think it is, but even if it is Claimant is not competitive for such jobs and is only being offered that job by her former employer, the employer at the time of the injury. She would not be employable even if such a part-time job is within her restrictions, given her very many restrictions and lack of ability in this area. I think she is only employable with King Soopers in that position, which is not general employment in the competitive labor market."
Tr. February 8, 1994, p. 38; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev'd on other grounds at 783 P.2d 269 (1989) (ALJ's oral findings are properly considered to interpret the ALJ's written order).
The ALJ's written findings of fact, together with the ALJ's oral findings, reflect the ALJ's determination that the claimant does not possess the ability to successfully compete for a teleshopping job outside of King Soopers. We cannot say that this is an implausible inference from the undisputed fact that the claimant is 66 years old, and the ALJ's findings that the claimant suffers from functional limitations in the use of both hands, cannot sit or stand for extended periods of time, is subject to lifting restrictions, is moderately restricted from driving a car and exposure to temperature changes, should avoid squatting kneeling and crawling, and is limited to part-time employment. See Tr. February 8, 1994 Tr. p. 34-35; Findings of Fact 11, 14, 15, 16; Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ's inferences were permissible ones in light of the totality of the circumstances). Moreover, the ALJ's inference supports a determination that the claimant's ability to perform the duties of a part-time teleshopper does not indicate the claimant's ability to regain efficiency in the fields of general employment. Consequently, we must uphold the ALJ's determination that the claimant is permanently and totally disabled, notwithstanding King Soopers offer to reemploy the claimant as a teleshopper. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
II.
For its part, the SIF contends that there is not substantial evidence in the record to support the ALJ's finding that 40 percent of the claimant's disability is attributable a prior industrial injury. The SIF also contends that the ALJ's findings do not indicate the evidence the ALJ found dispositive, and therefore, the SIF argues that the ALJ's findings are insufficient to permit appellate review. We disagree.
The ALJ found that the claimant has had low back problems since a 1981 industrial back injury, and has continued to receive some treatment from a chiropractor. The ALJ also found that the claimant is unable to sit or stand for long periods of time as a result of the back injury, and that the claimant's inability to work full-time is attributable to the back injury.
In making these factual determinations, the ALJ expressly cited the 1993 functional capacity evaluations by the Lutheran Rehabilitation Center and O.T. Resources, which indicate that the claimant is subject to sitting and standing limitations. Consequently, we have no difficulty ascertaining the evidence the ALJ found dispositive of the apportionment issue, and thus, the ALJ's findings are sufficient to permit appellate review. See George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986) (ALJ not held to crystalline standard in articulating findings of fact). Moreover, there is substantial evidence to support the ALJ's findings on apportionment issue. See Tr. January 27, 1994, p. 16-18, 21, 25, Daniel Best report dated, April 15, 1993.
We also reject the SIF's contention that the ALJ was precluded from apportioning liability in the absence of a permanent partial disability rating for the back injury. As stated in Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987), the "apportionment of liability for permanent total disability . . . . should be a de novo determination based on the relevant circumstances existing at the time of that determination." (Emphasis added). The Gallegos court observed that prior disability ratings may "be based, at least in part, on factors which are no longer relevant and/or on facts which are no longer extant at the time the permanent total disability rating is made." 746 P.2d 73. Therefore, a permanent partial disability rating for the prior industrial injury is neither required nor binding on the apportionment of permanent total disability.
The SIF's remaining arguments have been considered and are without merit.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated, April 18, 1995, 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. (1994 Cum. Supp.).
Copies of this decision were mailed August 11, 1995 to the following parties:
Beth L Teague, 509 Fulton, Aurora, CO 80010
King Soopers, Inc., Attn: Mark Gallegos, P.O. Box 5567, T.A., Denver, CO 80217
Subsequent Injury Fund — Interagency Mail
Attorney General's Office, Attn: Roxane D. Baca, Esq., 1525 Sherman St., 5th Flr., Denver, CO 80203
(For the SIF)
Ronald Jaynes, Esq., 455 Sherman St., #210, Denver, CO 80203
(For the Respondents)
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th Flr., Lakewood, CO 80215
(For the Claimant)
BY: _______________________