Opinion
W.C. No. 4-685-483.
April 10, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated November 6, 2007, that determined that the claimant is not permanently and totally disabled and that awarded permanent partial disability benefits based upon the respondents' final admission of liability. We affirm.
A hearing was held on the issues of whether the claimant is permanently and totally disabled and, if not, whether the claimant sustained impairment properly measured as a whole person impairment rating. The ALJ entered an order reciting the following procedural history. The claimant sustained the compensable occupational disease of carpal tunnel syndrome with an onset of disability of April 24, 2006. The respondents filed a final admission of liability admitting for benefits based upon five percent extremity impairment of the right arm and three percent extremity impairment of the left. The claimant objected and obtained a Division-sponsored independent medical examination (DIME), which reported that the claimant had sustained extremity impairment equal to seven percent of the right arm and four percent of the left. Although the claimant sought additional impairment of her neck, the DIME physician, Franklin Shih, M.D., found no impairment except for the extremity impairment mentioned. The respondents filed a second final admission of liability admitting for the impairment reported by the DIME. The claimant filed an application for hearing endorsing, among other issues, permanent partial disability benefits, and permanent total disability benefits.
The ALJ also entered extensive and thorough findings of fact that it is unnecessary to recite in detail here. However, for the purposes of this order those factual findings may be summarized as follows. The claimant sustained a compensable injury on April 24, 2006, that was later diagnosed as bilateral carpal tunnel syndrome. She was laid off from her position as an assembler several days after her injury. The claimant was born in the Philippines and on her arrival in the United States in 1992 she accepted a job as a server, cashier, and kitchen help in a food court. She worked concurrently at a convenience store, where she "did everything," including cleaning, ordering, stocking and cashiering. She subsequently worked as a temporary filing clerk, where she became proficient in the Microsoft Excel system. She later worked at a retail store processing payroll, completing various "government forms" necessary in connection with the business, and managing negotiations with the business's landlord. Following that in August 2005 she accepted the position with this employer assembling pumps, which she continued doing until April 2006. The ALJ also entered factual findings based upon his observations of the claimant at the hearing. He found that she was "intelligent [and] thoughtful" and likely to be appealing to a prospective employer. He further found that she answered questions precisely, exhibiting a "mental aptitude" likely to lead to her obtaining employment. The ALJ noted that the claimant had "mastered" two languages and that she had a relatively wide range of job experiences making her "well suited" for further employment despite her injury.
The ALJ also entered factual findings concerning the course of the claimant's medical treatment and the physical restrictions imposed by her authorized treating physician, Dr. Hawke, who first treated the claimant on May 4, 2006. He interpreted the claimant's nerve conduction studies as showing a moderate median neuropathy at the right wrist, a mild median neuropathy at the left wrist, and no other abnormalities. He imposed restrictions precluding repetitive activity. On June 16, 2006, Dr. Hawke's colleague, Dr. Fanning, imposed restrictions requiring the claimant to avoid repetitive grasping or gripping, and to avoid lifting over ten pounds, along with restrictions on carrying, pushing and pulling. The claimant decided that she would not undergo surgery, despite several recommendations that she do so. The ALJ also entered factual findings concerning two functional capacity evaluations undergone by the claimant. Dr. Hawke reviewed a functional capacity evaluation report prepared by a therapist at the request of the claimant, Gail Gerig. Dr. Hawke disagreed with the conclusions of that report. He also reviewed a report prepared by HealthSouth, which reported that the claimant could work in positions falling within the sedentary category. The ALJ also found that when the claimant cancelled a scheduled surgery Dr. Hawke determined that she was at maximum medical improvement and he assessed her impairment at five percent of the right arm and three percent of the left. He imposed physical restrictions limiting lifting, carrying, pushing and pulling to ten pounds and limiting repetitive activities to an occasional basis. Dr. Hawke also noted that the claimant should "rotate" to non-repetitive tasks for 40 minutes after every 20 minutes of repetitive activity. The ALJ found that these restrictions were those applicable to the claimant, but that the restrictions set forth in the HealthSouth report were "consistent" with those imposed by Dr. Hawke. As noted, a DIME was performed, which reported that some of the claimant's symptoms were "rather diffuse, nonspecific, and non-physiologic," from which the ALJ inferred that the claimant's "self-imposed restrictions do not support Claimant's inability to earn wages in the job market on as (sic) reasonably sustainable basis." Full Findings of Fact, Conclusions of Law, and Order at 9, ¶ 38 (hereinafter "Order").
The ALJ also entered extensive factual findings regarding the competing evidence and testimony from the parties' respective vocational rehabilitation experts. The ALJ set forth in considerable detail those opinions and explained in similar detail his reasons for crediting the opinions of the respondents' expert over those of the claimant. Having thus weighed the expert evidence, the ALJ concluded that the claimant failed to carry her burden of proving that she was permanently and totally disabled. The ALJ therefore denied those benefits. (The ALJ also awarded permanent partial disability benefits consistent with the respondents' final admission of liability admitting for the scheduled impairment reported by the DIME. However, we do not understand the claimant to have appealed any aspect of that award of permanent partial disability benefits.)
The claimant appealed the ALJ's denial of permanent total disability benefits and presents several arguments. First, the claimant argues that the ALJ erred in denying permanent total disability benefits based at least in part upon the respondents' affirmative defense of an unreasonable refusal of medical treatment, where the defense was neither pleaded nor proved, and which, in addition, constituted an impermissible challenge to maximum medical improvement. The claimant also argues that the ALJ erred in ruling that HealthSouth's report of the functional capacity evaluation was irrelevant and then relying upon it in denying permanent total disability benefits. Finally, the claimant argues that the ALJ abused his discretion in denying permanent total disability benefits. We are unpersuaded that the ALJ committed error requiring reversal of his order.
I.
The claimant argues that the respondents did not endorse the issue of the claimant's unreasonable refusal of surgery until they raised that issue in their post-hearing position statement, and that additionally no questions were put to any witness at the hearing concerning that issue. The claimant further notes that the denial of benefits based upon a refusal of medical treatment, provided for in § 8-43-404(3), C.R.S. 2007, constitutes an affirmative defense that must be pleaded and proved, and that the ALJ erred insofar as he stated otherwise.
While conceding the correctness of these assertions, we nonetheless perceive no reversible error in this respect. Section 8-43-404(3) provides that "[i]f any employee . . . refuses to submit to such medical or surgical treatment . . . as is reasonably essential to promote recovery, the director shall have the discretion to reduce or suspend the compensation of any such injured employee." We agree that this provision sets out an affirmative defense and, as such, it must be pleaded and proved or the defense is waived. See Valley Tree Service v. Jiminez, 787 P.2d 658 (Colo.App. 1990); Crist v. Booth Land Livestock, W.C. No. 4-357-502 (April 9, 1999).
We assume, without deciding, that the ALJ erred in concluding that the claimant's unreasonable refusal to undergo surgery "serves to bar a claim for permanent total disability benefits." Order at 17, ¶ e. However, it is unnecessary for us to determine whether that conclusion constituted error since, in any event, it would be harmless. It is patently evident from the ALJ's order that regardless of the claimant's refusal to undergo surgery, the ALJ weighed the extensive expert vocational rehabilitation and medical evidence and concluded from that evidence that the claimant was not permanently and totally disabled in her present state. Indeed, directly following the ALJ's statement that the claimant's claim for permanent total disability benefits was "barred" by her failure to undergo surgery, he referred to the opinions of Dr. Hawke, Dr. Fremling, and the DIME physician, Dr. Shih, and to his having concluded that the medical evidence did not support the claim of total disability. The ALJ then referred to his having "critically weighed" the competing vocational rehabilitation evidence and again to his having concluded that the more persuasive of that evidence supported a denial of the claim for permanent total disability benefits. Order at 17, ¶ e. Moreover, the ALJ correctly described the legal standard applicable to a determination of the issue of permanent total disability, noting that the proper analysis requires consideration of the various "human factors" applicable to the claimant's ability to earn wages. Finally, as previously noted, the ALJ entered extensive factual findings regarding the conflicting vocational rehabilitation testimony and evidence, and explained in detail his resolutions of those conflicts. Had the ALJ intended merely to dismiss or deny the claim for permanent total disability benefits based upon § 8-43-404(3) (which the ALJ did not cite or mention) his extensive factual findings, his evaluation of the probative value of the conflicting evidence, and his application of the correct legal standard would all have been mere excess unnecessary to his resolution of the disputed issue of permanent total disability. In our view such a reading of the ALJ's order would not be reasonable. Consequently, any error regarding the legal effect of the claimant's failure to undergo surgery was necessarily harmless.
It follows from this that it is unnecessary for us to address the claimant's arguments that the record contains no evidence supporting the finding that the claimant unreasonably refused to have surgery, and that in any event the issue was an impermissible challenge to maximum medical improvement. Any error in either regard would also necessarily be harmless and therefore would be disregarded.
II.
The claimant also argues that the ALJ's order compels the conclusion that she is permanently and totally disabled. The claimant argues that the ALJ's finding that the surgery would have rendered the claimant capable of earning wages necessarily implies that she presently is not capable of doing so. Therefore, the claimant argues that permanent total disability benefits should be awarded as a matter of law. We disagree.
In our view it is not a fair reading of the ALJ's order to infer that he "implicitly" concluded that the claimant is unable to earn wages because she did not consent to the recommended surgery. Rather, the ALJ clearly concluded that she was presently able to earn wages and in doing so he properly applied the relevant law. In our view, having correctly applied the legal standards, this issue on review is whether substantial evidence supports the ALJ's factual findings, and we conclude that it does.
Section 8-40-201(16.5)(a), C.R.S. 2007, defines permanent total disability as the claimant's inability "to earn any wages in the same or other employment." The burden of proof to establish permanent total disability is on the claimant. The ALJ properly recognized that in determining whether the claimant has sustained her burden of proof, the ALJ may consider those "human factors" that define the claimant as an individual. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).The overall objective of this standard is to determine whether, in view of all of these factors, employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
Because the issue of permanent total disability is generally factual, we must uphold the ALJ's findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard of review requires that we consider the evidence in the 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
Further, the ALJ's assessment of the probative value of the evidence and his credibility determinations are matters solely within his province. We may not set aside a credibility determination unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2001). We will neither reweigh the evidence nor substitute our judgment for that of the ALJ regarding the credibility of the competing witnesses.
We disagree with the claimant's argument that here reasonable minds could draw but a single inference from the factual record. If that were the case, of course, then the question of the claimant's entitlement to permanent total disability benefits would be converted to one of law. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo. 1993) (a factual issue may become one of law only if reasonable minds can draw but one conclusion from undisputed facts). Contrary to the claimant's argument, however, there is ample evidence in this record supporting the ALJ's findings. The testimony and reports of the respondents' vocational rehabilitation expert constitutes substantial evidence supporting the conclusion that the claimant is capable of employment and therefore is able to earn wages.
III.
The claimant also argues that the ALJ committed error in sustaining the respondents' objection to a question regarding the HealthSouth functional capacity evaluation. The claimant's attorney asked the claimant whether she attempted to return to Dr. Hawke following the functional capacity evaluation performed by HealthSouth. She replied that she "tried to go back to him," and at that point the respondents interposed an objection based upon the relevance of the inquiry. The claimant's attorney responded that the questioning "goes to the weight of the FCE." Tr. at 38. The ALJ sustained the objection, noting that Dr. Hawke had "assigned permanent restrictions" and that whether the claimant was permitted to return to him was not relevant. Tr. at 39. The claimant notes that the ALJ relied upon the HealthSouth functional capacity evaluation report in denying the claimant's claim for permanent total disability benefits. She now argues that by precluding the inquiry into whether she was permitted to return to Dr. Hawke the ALJ erred because such questioning "went to the weight of the report" and presumably would have undermined the credibility of the HealthSouth functional capacity evaluation. We are not persuaded that the ALJ committed reversible error.
The ALJ exercises "wide discretion" in conducting evidentiary proceedings, including making evidentiary rulings. See § 8-43-207(1), C.R.S. 2007 (detailing ALJ's authority to conduct evidentiary hearings); see also IPMC Transp. V. Industrial Claim Appeals Office, 753 P.2d 803, 804 (Colo.App. 1988) (construing predecessor statute to § 8-43-207 to provide hearing officer with wide discretion in conduct of evidentiary proceedings). Similarly, the ALJ is afforded wide discretion to determine whether evidence is relevant, and if so, whether it should be excluded under CRE 403. See Cherry Creek School District v. Voelker, 859 P.2d 805 (Colo. 1993); People v. Gutierrez, 1 P.3d 241 (Colo.App. 1999) (trial court's discretion to determine relevancy is broad). We therefore defer to the ALJ's evidentiary determinations unless his ruling constitutes an abuse of discretion by "exceeding the bounds of reason." See, e.g., Rosenberg v. Board of Educ, 710 P.2d 1095, 1098-99 (Colo. 1985) (upholding administrative hearing officer's refusal to allow depositions based on abuse of discretion standard).
Here, in our view the claimant overstates the case by characterizing the ALJ's ruling as one concluding that "testimony regarding the HealthSouth FCE was not relevant." Claimant's Brief in Support of Petition to Review at 13. As we read the transcript the ALJ's ruling was not that broad. Rather, the ALJ merely sustained an objection to the question of claimant's counsel whether a return trip to Dr. Hawke was authorized after the HealthSouth functional capacity evaluation was performed. We do not understand the ALJ's evidentiary ruling as precluding other questions regarding the HealthSouth report, or as determining that the whole of that functional capacity evaluation was "irrelevant." The ALJ's determination precluding the attorney's inquiry into whether the claimant was permitted to return to Dr. Hawke was not an abuse of the ALJ's discretion. The ALJ apparently concluded that it was only of limited relevance that the respondents were unwilling to pay Dr. Hawke to examine the claimant and presumably to comment upon the HealthSouth report. The attorney's proffered evidence might arguably have permitted the inference that the respondents believed that Dr. Hawke's comments would be detrimental to the respondents' case. However, the ALJ's determination that that evidence was only of limited relevance does not "exceed the bounds of reason." Under these circumstances we cannot conclude that the ALJ abused his discretion in precluding the claimant's attorney from inquiring into whether the respondents were willing to authorize a visit to Dr. Hawke.
Finally, in our view, the ALJ did not rely upon the HealthSouth functional capacity evaluation report as the basis for any dispositive factual finding. In this regard, the ALJ entered somewhat sparse factual findings regarding the conclusions of the report, Order at 6, ¶ 21, and then merely found that the HealthSouth report was "consistent" with Dr. Hawke's restrictions and "confirmed" them. Order at 7, 9, ¶ 25, ¶ 40. As we read the ALJ's order, he relied principally upon Dr. Hawke's restrictions in concluding that the claimant was not permanently and totally disabled. Under these circumstances, any error in precluding the claimant from testifying that a return visit to Dr. Hawke was not authorized was harmless error. As such, it cannot form the basis for relief on appeal. CRE 103(a) (error may not be predicated on evidentiary error unless a substantial right of the party is affected).
IV.
We have considered the claimant's final argument that the ALJ abused his discretion in denying permanent total disability benefits and we are not persuaded to reach a different result. As we understand the claimant's argument it is that the reports, testimony, and opinions of the respondents' vocational rehabilitation expert are so fundamentally flawed as to render them unbelievable as a matter of law. This argument is without merit.
As previously noted, under the applicable standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. In this regard, it is for the ALJ to determine the weight and credibility of expert medical opinion, and we may not reweigh the evidence based upon the claimant's argument that the respondents' expert testimony was not credible. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Contrary to the claimant's argument, we do not construe the record here as admitting only of the single result sought by the claimant. The claimant's argument is tantamount to one that she is permanently and totally disabled as a matter of law and that no assessment of the evidence could result in any other conclusion. In our view the ALJ properly weighed the competing evidence and evaluated its probative value prior to drawing reasonable inferences from the record. His decision to credit portions of the testimony of the respondents' expert was reasonable in light of the record and he did not abuse his discretion in that regard. In pointing out possible inconsistencies, weaknesses, or internal conflicts in the expert's testimony, the claimant ignores the point that when determining the credibility of a witness, the ALJ is free to credit all, part, or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). We perceive no reversible error in the ALJ's order and therefore affirm.
IT IS THEREFORE ORDERED that the ALJ's order dated November 6, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Curt Kriksciun
__________________________________ Thomas Schrant
ROSARIO AVIADO, 6314 W 72ND AVENUE, ARVADA, CO, 80003 (Claimant)
ENSICON CORPORATION, Attn: BACKY SWEEDEN, LAKEWOOD, CO, (Employer)
WAUSAU INSURANCE COPRORATION, Attn: LAURA RAYBURN, KANSAS CITY, MO, (Insurer)
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant)
ZARLENGO, MOTT, ZARLENGO, Attn: SCOTT M BUSSER, ESQ., C/O: AND WINBOURN, PC, DENVER, CO, (For Respondents)