Opinion
W.C. Nos. 4-584-139, 4-662-309 4-670-149.
May 14, 2008. July 8, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 3, 2008, to the extent that the ALJ denied his claim for permanent, total disability (PTD) benefits. We affirm.
The ALJ's findings of fact are summarized as follows. The claimant started working for an airline in the early 1980s and handled baggage for this employer when he sustained three admitted injuries related to his shoulders and lower back during the period of years 2002 through 2005. A physician placed the claimant at maximum medical improvement for his bilateral shoulder condition on November 18, 2005. Another physician specializing in orthopedics opined that it was appropriate to rate the claimant's shoulder injuries as a whole person rating of 23 percent.
Diagnoses of the claimant's physical condition included osteoarthritis and diabetes. A functional capacity evaluation of the claimant provided physical restrictions. After being restricted from returning to baggage handling the claimant met with the employer who offered the claimant work in Minnesota. The claimant declined the offer. A vocational assessment of the claimant determined that the claimant is able to work and earn wages and retains access to jobs in the general labor market.
The claimant has not worked since January 2006. He currently volunteers as a baseball coach and as a director and supervisor for a local baseball league; however, he controls the time and duration of his activities in accordance with his pain level. The ALJ found that the claimant is capable of earning wages in employment and, also, that employment is reasonably available to the claimant. The ALJ therefore concluded that the claimant was not entitled to PTD benefits. However, the ALJ awarded the claimant permanent, partial disability benefits according to a whole person impairment rating.
The claimant filed a petition to review that recites the statutory bases upon which the panel may set aside an ALJ's decision pursuant to § 8-43-301(8), C.R.S. 2007. The petition further asserts that, as demonstrated by the evidence, the ALJ erred in determining that the claimant failed to establish that he is permanently and totally disabled. Our review of this matter is impeded somewhat by the absence of a brief in support of the claimant's basic contentions. Nonetheless, the lack of a brief in support of the appeal does not bar the panel from ruling on a timely petition to review. Jiminez v. Industrial Claim Appeals Office, 107 P. 965, 967 (Colo.App. 2003). Furthermore, the claimant's contention that a finding of permanent, total disability is supported by a preponderance of the evidence is compromised by the absence from the record of a hearing transcript. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800, 801 (Colo.App. 1988) (court presumed hearing officer's resolution of contested factual issue to be supported by evidence due to failure to designate transcript of hearing). In any event, we have reviewed the record before us and are not persuaded that the ALJ erred in denying the claimant PTD benefits.
The claimant is entitled to PTD benefits if he is "unable to earn wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2007. The ALJ's determination of whether a claimant is permanently and totally disabled may include the consideration of "that employment which is reasonably available to the claimant." Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998). The ALJ may also consider the claimant's "human factors," including the claimant's education and former employment. Ultimately, the existence of PTD is an issue of fact for resolution by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701, 703 (Colo.App. 1999). Thus, we must uphold the ALJ's evidentiary findings that are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he draws from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
As noted by the claimant in his petition to review, he carried the burden of proof to establish his entitlement to PTD benefits by a preponderance of the evidence. The preponderance standard is met when "the existence of a contested fact is `more probable than its nonexistence.'" Industrial Comm'n v. Jones, 688 P.2d 1116, 1119 (Colo. 1984), quoting People v. Taylor, 618 P.2d 1127, 1135 (Colo. 1980). The ALJ determined that the claimant had not established by a preponderance of the evidence that he is permanently and totally disabled. Order at 8, ¶ 6. We cannot say that the ALJ erred in denying PTD benefits to the claimant under the circumstances.
The ALJ made the following express findings concerning the claimant's ability to earn wages: "Claimant is capable of employment involving dispatch, unarmed security, and driving on a full or part-time basis. Employment is reasonably available to Claimant under his particular circumstances. Claimant is capable of obtaining and maintaining employment. Claimant is capable of earning wages." Findings of Fact, Conclusions of Law, and Order (Order) at 6, ¶ 21. The record contains ample evidence in support of the ALJ's dispositive findings. For instance, Ms. Nowotny, a rehabilitation counselor, provided a report concerning the claimant's employability. She concluded that the claimant "is able to work and earn a wage" and "retains access to employment in the general economy including, but not limited to: dispatcher, unarmed security guard, [and] shuttle driver. . . ." Exhibit V at 64. The ALJ specifically referred to Ms. Nowotny's report in support of his determination that employment was reasonably available to the claimant. Order at 4, ¶ 14. We find no basis for disturbing the ALJ's decision.
IT IS THEREFORE ORDERED that the ALJ's order dated April 3, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
__________________________________ Thomas Schrant
Rocco Desantis, Broomfield, Co, (Claimant).
Northwest Airlines, Attn: Deb Etienne, C/O: Department, Eagan, Mn, (Employer).
Liberty Mutual Insurance Co, Attn: Macy Murillo, (Insurer).
Fogel, Keating, Wagner, Polidori, And Shafer, Attn: Marshall A Fogel, Esq., Denver, Co, (For Claimant).
Clisham, Satriana Biscan, LLC, Attn: Patricia Jean Clisham, Esq., Denver, Co, (For Respondents).