Opinion
W.C. No. 4-603-270.
April 20, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated June 25, 2009, that awarded the claimant permanent total disability (PTD) benefits. We affirm.
The claimant sustained a compensable injury when a co-worker raped her on January 28, 2004. Prior to the industrial injury the claimant overcame her handicap of being deaf and was a functioning member of society. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician diagnosed the claimant with post traumatic stress disorder along with anxiety and depression. The DIME physician assessed a six percent whole person rating and thought the claimant needed to return to work. The insurer filed a final admission of liability based on the DIME physician's assessment. At the hearing, the claimant contended that she was unable to earn any wages and that she was entitled to PTD benefits.
The ALJ found the testimony and reports of Dr. Gracie, Dr. Evans, and Dr. Litvin to be the most credible and persuasive. The ALJ concluded that the claimant had established by a preponderance of the evidence that she was unable to earn any wages and was therefore entitled to PTD benefits.
The petition to review contains allegations that the ALJ's order is not supported by the facts nor is it supported by applicable law. These allegations of error are generally derived from § 8-43-301(8), C.R.S. The only specific allegation in the petition to review is that the ALJ's order circumvents both the DIME statute and statutory authority governing reopening of claims. We note that the respondents have not filed a brief in support of their petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
To the extent that the respondents argue that the ALJ was bound to accept the opinion of the DIME physician that the claimant should return to work we disagree. A claimant's entitlement to permanent partial disability benefits is based on the degree of permanent medical impairment. Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). Section 8-42-107(8)(c), C.R.S, provides that a DIME physician's opinions on the issues of maximum medical improvement and permanent partial disability are binding unless overcome by "clear and convincing evidence" to the contrary. However, the courts have repeatedly held that the heightened burden of proof required by § 8-42-107(8)(c) is confined to the issues of maximum medical improvement and medical impairment benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002); Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo. App. 2001).
PTD is the claimant's inability to earn any wages. Section 8-40-201(16.5)(a), C.R.S. 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 558.
In determining whether the claimant is capable of earning wages, the ALJ may consider a myriad of "human factors," including the claimant's education, work history and general health. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Permanent medical impairment is a relevant consideration to the claimant's general health. However, "medical impairment" is not the equivalent of disability. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Medical impairment concerns the claimant's health status and is determined by medical means. In contrast, "disability" relates to the claimant's capacity to meet the demands of life, including occupational demands, and is determined by non-medical means. Accordingly, an ALJ is not required to give the DIME physician's rating "presumptive effect" on the question of whether the industrial injury caused the claimant to be unable to earn wages. See Sholund v. John Elway Dodge, W. C. No. 4-522-173 (October 22, 2004); see also Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 27, 1994 (DIME not a prerequisite to adjudicating PTD).
We have no difficulty ascertaining the basis for the ALJ's order. Further, it is obvious the ALJ resolved pertinent conflicts in the medical and vocational evidence based upon credibility determinations. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo. App. 1992). Here on conflicting medical and vocational evidence the ALJ found that the claimant had proved that she was unable to earn wages and therefore was entitled to PTD benefits.
A claimant is permanently and totally disabled if he or she is "unable to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. The determination whether a claimant is permanently and totally disabled is fact specific and is "made on a case by case basis." Holly Nursing Care Ctr. v. Indus. Claim Appeals Office, 992 P.2d 701, 703 (Colo. App. 1999).
The ALJ's factual determinations must be upheld on appeal if supported by substantial evidence in the record. § 8-43-301(8), C.R.S; Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), aff d, 933 P.2d 1330 (Colo. 1997); see also City of Northglenn v. Eltrich, 908 P.2d 139 (Colo. App. 1995) (ALJ's decision may be set aside only if the ALJ's findings are not supported by the evidence), affd sub nom., Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). We are bound by the ALJ's factual determinations even if the evidence was conflicting and could have supported a contrary result. It is the fact finder's sole province to weigh the evidence and resolve contradictions in the evidence. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001); see also Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995) (reviewing court must defer to the ALJ's credibility determinations and resolution of conflicts in the evidence and may not substitute its judgment for the ALJ's).
In our opinion the testimony and reports of Dr. Gracie, Dr. Evans, and Dr. Litvin constitute substantial evidence supporting the ALJ's award of PTD benefits. Exhibit 14(a) at 3; Tr. (1/14/09) at 39; Exhibit 13(a) at 3, Exhibit 15(a) at 1.1; Tr (4/13/09) at 13. Therefore, we are not persuaded to interfere with the ALJ's order.
The respondents appear to raise on appeal the issue of whether the ALJ's order violated the statutory authority governing reopening of claims. We are not persuaded by this argument.
At the time of the initial hearing on this matter, the sole issue was that of entitlement to PTD benefits. Tr. (1/14/09) at 4. The respondents did not raise the issue of reopening in their position statement. Therefore, to the extent that the respondents raise the issue of reopening in the petition to review it is raised for the first time on appeal. Because the argument was not raised by the respondents before the ALJ, we shall not consider the argument for the first time on appeal. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).
Moreover, to the extent that there was any reopening needed we are not persuaded that the DIME physician's opinion must be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, supra (DIME physician's opinion concerning whether or not condition has worsened not entitled to any special weight as DIME process does not apply to reopening); see also Walker-Black v. Antarctive Support Association W. C. No. 4-477-441 (May 8, 2003). Accordingly, we perceive no basis on which to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated June 25, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
CHRISTINA M. MARTINEZ, 4855 S BANNOCK, ENGLEWOOD, CO, (Claimant).
WENDY'S INC., Attn: DIANE PACHECO, AURORA, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: ANITA FRESQUEZ-MONTOYA, C/O: ESIS/ACE USA, PORTLAND, OR, (Insurer).
BENDINELLI LAW OFFICE, Attn: JERRY SUMNER, ESQ./MARC BENDINELLI, ESQ., DENVER, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: JAMES B. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).