Opinion
W.C. No. 3-106-740
July 17, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant permanent total disability benefits. We affirm.
The ALJ found that the claimant sustained a compensable back injury on December 21, 1992 while attempting to move a large beam. The claimant was diagnosed with a herniated disk at L2-3, a lumbar sprain injury, and myofacial pain syndrome.
The ALJ found that, since the injury, the claimant has been essentially unable to return to work. Although the claimant attempted to work for the respondent-employer in November and December 1995, the ALJ found that the attempt aggravated the claimant's pain problems and precluded him from continuing.
The ALJ also found that the claimant is an alcoholic and suffers from numerous medical problems associated with this condition. In addition, the ALJ credited the testimony of Dr. Sheplay that the claimant's alcohol abuse has degraded his ability to manage pain caused by the injury.
In view of this evidence, as well as the testimony of the claimant's vocational rehabilitation expert, the ALJ determined that the claimant is "unable to earn any wages in the same or other employment." Further, the ALJ rejected the respondents' argument that the claimant is permanently and totally disabled solely as a result of alcoholism. To the contrary, the ALJ found that the claimant's injury, when superimposed on the pre-existing conditions of alcoholism, hypertension and depression, is a "major and significant cause of the claimant's loss of access to the labor market."
The ALJ also rejected the respondents' argument that the claimant's permanent total disability benefits should be "apportioned" based on the degree of disability attributable to the claimant's alcoholism. The ALJ held that under the full responsibility rule the respondent-employer took the claimant as it found him. Moreover, the ALJ stated that the apportionment afforded by § 8-42-104(2), C.R.S. (1995 Cum. Supp.), applies only to cases where the claimant suffers from a prior industrial disability. (Emphasis in the original).
I.
On review, the respondents first contend that they are entitled to an "apportionment" of liability for permanent total disability benefits. The respondents argue that § 8-42-104(2) applies to pre-existing "non-industrial" disabilities, and the ALJ should have apportioned liability based on the claimant's pre-existing alcoholism. We disagree with the respondents.
It is true, as the respondents argue that, the predecessor to § 8-42-104(2) was enacted subsequent to announcement of the "full responsibility rule" in Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). See 1963 Colo. Sess. Laws, ch. 180 at 641. However, that observation does not, in and of itself, determine whether the General Assembly intended that subsection (2) require apportionment of both non-industrial and industrial disabilities. Several factors lead us to conclude that statute concerns only pre-existing industrial disabilities.
First, statutes should be interpreted so as to give consistent and harmonious meaning to all their parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991. Section 8-42-104(2) states that in case there is "a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury." (Emphasis added.) Under this statute, the "subsequent injury" clearly refers to the industrial injury for which workers' compensation permanent disability benefits are sought. Thus, it may be inferred that "previous disability" must be attributable to a prior "injury" for which workers' compensation benefits were paid or payable.
In fact, this conclusion appears to be consistent with case law interpreting the predecessor to § 8-42-104(2). In Colorado Fuel Iron Corp v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968), the court stated the following:
"The fact that the claimant in 1953 suffered disability and in 1955 received compensation therefor does not preclude him from receiving compensation benefits for a later or subsequent injury resulting from a second industrial accident. C.R.S. 1963, 81-8-2(2). To the contrary, the applicable statute clearly recognizes that even though an employee has suffered a previous disability and even received compensation therefor, he is nonetheless entitled to also receive compensation for a subsequent or later injury sustained in a second industrial accident. And the statute under consideration goes on to spell out just how the percentage of disability for the subsequent injury shall be determined, namely, by computing the percentage of entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury." (Emphasis in the original.)
More importantly, Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) appears to be dispositive of the respondents' argument. In Lindner, the claimant had pre-existing psychological difficulties which the ALJ found made it difficult for the claimant to hold a job. Nevertheless, the claimant was able to work at Lindner Chevrolet until he sustained an industrial injury, and the ALJ awarded permanent total disability benefits.
The respondents in Lindner appear to have made the same argument which is made here, namely that the "full responsibility rule" announced in Colorado Fuel Iron Corp. v. Industrial Commission, supra, was entirely "overruled by subsequent legislative changes." However, the court stated that § 8-42-104 "addresses apportionment when a claimant has suffered multiple industrial disabilities." (Emphasis in the original.) Thus, the holding in Lindner is not, as the respondents claim, "quasi-dicta . . . without support."
Further, as the Lindner Chevrolet decision indicates, § 8-42-104 has always been directed at cases involving multiple industrial injuries. Subsection (1), which predates the 1963 amendments, concerns itself with calculation of a claimant's average weekly wage when the claimant has sustained multiple industrial injuries. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Finally, we reject the respondents' argument that Askew v. Sears Roebuck Co., 914 P.2d 416 (Colo.App. 1995), mandates a different result. Rather, as the claimant argues, Askew concerns itself with calculations of permanent medical impairment under § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), not "apportionment" under § 8-42-104(2). See Haislip v. HCC Foothills Care Center, Inc., W.C. No. 4-133-841, April 4, 1996.
Insofar as the respondents make other arguments concerning the issue, we find them to be without merit .
II.
The respondents next contend that the evidence compels the conclusion that the claimant's permanent total disability is entirely the result of his alcoholism, or a deterioration of that condition. As a corollary to this argument, the respondents assert that the ALJ erred in ignoring the holding in Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). We perceive no error.
In Seifried v. Industrial Commission, supra, the court held that an industrial injury need not be "significant" in terms of apportionment, so long as the industrial injury bears a "direct causal relationship" to the permanent total disability. Thus, if the evidence establishes that a pre-existing condition has combined with the effects of an industrial injury so as to produce permanent total disability, the entire disability is compensable under the full responsibility rule. Lindner Chevrolet v. Industrial Claim Appeals Office, supra.
Because the issue of causation is factual in nature, we must uphold the ALJ's finding if supported by substantial evidence in the record. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). In applying the substantial evidence test, we are obliged to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' arguments notwithstanding, the evidence supports the ALJ's determination that the claimant's permanent total disability is the combined result of the industrial injury and his pre-existing alcoholism. In fact, Dr. Sheplay's own testimony, which apportioned ninety percent of the disability to alcoholism and ten percent to the industrial injury, is sufficient to satisfy the Seifried test. Further, the ALJ's finding is supported by the testimony of the claimant's vocational expert, as well as the claimant's own testimony that alcoholism did not cause him to lose any jobs prior to the industrial injury.
It is true that some evidence in the record might support a contrary finding. However, we decline the respondents' invitation to substitute our judgment for that of the ALJ concerning the credibility of the witnesses and the inferences to be drawn from the evidence. For similar reasons, we reject the respondents assertion that the claimant's permanent total disability is the result of a post-injury deterioration the claimant's alcoholism.
IT IS THEREFORE ORDERED that the ALJ's order dated January 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
Randy Tebeest, 5802 County Road 203, No. 9, Durango, CO 81301
Baldwin Construction, Inc., 301 E. Lincoln St., Ft. Collins, CO 80524-2505
Colorado Compensation Insurance Authority, Attn.: Marjorie J. Long, Esq. (Interagency Mail)
Timothy S. Guill, Esq., 1777 S. Harrison, Ste. 906, Denver, CO 80210 (For the Claimant)
Scot J. Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: ________________________