Opinion
W.C. No. 4-526-873.
January 30, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as the ALJ denied permanent total disability and future medical benefits. We affirm.
In May 2001, the claimant sustained a compensable cumulative trauma injury to his right upper extremity. The claimant's vocational rehabilitation expert concluded the claimant is unemployable due to a permanent medical restriction from all repetitive motion activity. In contrast, the respondents' vocational rehabilitation expert assumed the claimant is only restricted from repetitive movements with the right upper extremity. Under these circumstances, the respondents' vocational expert opined the claimant remains qualified for several jobs in his local labor market.
The ALJ found the claimant is Laotian native who has a very limited ability to read, write or speak English but successfully read and followed written specifications in his preinjury career as a solderer. The ALJ also found that as a result of the industrial injury the claimant is precluded from repetitive movements with his right upper extremity. However, the ALJ found the claimant has no other medical problems, no limitations with respect to his left upper extremity or either lower extremity, and is not precluded from driving, sitting, walking or standing.
Crediting the opinions of the respondents' vocational expert and rejecting the contrary opinions of the claimant's expert, the ALJ determined the claimant is not permanently and totally disabled. The ALJ also denied the claimant's request for an award of future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant timely appealed.
On review the claimant contends the record fails to support the ALJ's finding that the claimant is capable of obtaining and sustaining employment. We disagree.
Section 8-4-201(16.5)(a), C.R.S. 2003, defines permanent and total disability as the inability "to earn any wages in the same or other employment." Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained his burden of proof, the ALJ may consider a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors 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.
To defend a claim for permanent and total disability, the respondents are not obliged to locate a specific job opening job. See Beavers v. Windsor Gardens Association, W.C. No. 4-163-718 (January 31, 1996), aff'd., Beavers v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0275, September 5, 1996) (not selected for publication). Instead, the ALJ is required to determine whether it is more probable than not that the claimant is capable of earning wages. Duran v. MG Concrete Inc., W.C. No. 4-222-069 (September 17, 1998); Bonds v. Skyline Fire Protection District, W.C. No. 4-111-529 (December 5, 1995). This standard necessarily requires the ALJ to predict the claimant's future employment prospects. See Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940).
The question of whether the claimant has the ability to earn "any wages" within the meaning of § 8-4-201(16.5)(a) must be decided on a case-by-case basis and varies according to the particular abilities of the claimant. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Because the issue is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Application of the substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence. Christie v. Coors Transportation Co., supra. Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ's province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, there was a direct conflict between the vocational rehabilitation experts concerning the claimant's physical limitations, the duties required of the jobs identified by the respondents' vocational expert and the availability of these jobs in the claimant's local labor market. Within his sole prerogative, the ALJ resolved the conflict in favor of the respondents' vocational expert and that expert's testimony contains substantial evidence to support the ALJ's finding that the claimant remains qualified for jobs in the commutable labor market. Rockwell International v. Turnbull, supra.
The claimant is obviously dissatisfied with the ALJ's credibility determinations. However, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that the ALJ erred 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). In view of the direct conflict between the experts, we cannot say those extreme circumstances exist here.
Moreover, we have no authority to reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Accordingly, we reject the claimant's arguments insofar as he requests that we substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the vocational evidence.
Next, permanent total disability is based upon a claimant's impaired access to the labor market, and not medical impairment. Thus, permanent work-restrictions imposed by a treating physician are not dispositive of permanent disability. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). In any case, we reject the claimant's contention that the ALJ's findings are based on an erroneous assumption that the claimant is not restricted from all repetitive activities.
Dr. Orent's reports are subject to conflicting inferences. Under these circumstances, it was the ALJ's sole province as the fact-finder to determine the nature of Dr. Orent's opinions. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
In his medical report dated November 1, 2001, Dr. Orent agreed with Dr. Long's medical restrictions which preclude the claimant from "forceful pinch-grip," and "prolonged gripping activities such as soldering" for more than two-hours without an hour off. However, Dr. Long did not restrict the claimant from repetitive motion activities with the left upper extremity.
Then based upon the claimant's pain complaints from performing his pre-injury job as a solderer, Dr. Orent opined the claimant was "job incompatible" because he was predominantly right handed and demonstrated resistance to changing his physical movements in performing the job of solderer. Dr. Orent also stated "I think [the claimant] is job incompatible with any repetitive motion tasks." However, he also stated the claimant's impairment "is strictly limited to the right upper extremity."
On November 13, 2001 Dr. Orent further recommended the claimant "keep his head and neck in as close to neutral position as possible to avoid repeated flexion and extension of the right elbow," and added his opinion that the claimant "is likely incompatible with upper extremity repetitive motion tasks." However, when considered in context, the ALJ's finding that Dr. Orent restricted the claimant from repetitive movements with the right upper extremity is a plausible interpretation of Dr. Orent's reports. ( See Finding of Fact 5).
The claimant's remaining arguments on this issue have been considered and do not alter our conclusions. Contrary to the claimant's contention his occupational history as a reliable employee is a relevant consideration in determining whether the claimant is likely to maintain employment within his restrictions. Further, the opinions of the respondents' vocational expert were not premised on an assumption that the claimant was eligible for services from the Division of Vocational Rehabilitation (DVR). Rather, the respondents' expert pointed to the DVR as a resource for the claimant's employment access.
II.
The claimant also contends the ALJ misapplied the law in denying Grover-type medical benefits. Again, we disagree.
The respondents obligation to provide medical treatment normally terminates at maximum medical improvement (MMI). See section 8-42-101(1)(a), C.R.S. 2003. However, Grover v. Industrial Commission, supra, allows an award future medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant's condition. Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the respondents' right to contest the compensability of any particular treatment. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
The determination of whether the claimant proved an entitlement to Grover-type medical benefits is a question of fact for resolution by the ALJ which is subject to the review under the substantial evidence standard. Section 8-43-301(8); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Consequently, on review we must view the evidence in the light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).
The claimant correctly points out that he was not required to prove that a "particular" or "specific course of treatment" is anticipated to establish his entitlement to Grover-type medical benefits. See Stollmeyer v. Industrial Claim Appeals Office, supra. Consequently, medical monitoring may be is a compensable benefit. Atwood v. Western Slope Industries, W.C. No. 3-069-135, November 28, 1994. Nevertheless, we perceive no basis to disturb the ALJ's finding that opinions of Dr. Long, Dr. Ginsburg and Dr. Hsin do not compel an award of Grover-type medical benefits.
Dr. Long only recommended "medical re-evaluation" of the claimant only "if" the claimant "is continuing to have complaints." Thus, the recommendation for further treatment was speculative.
In May 2002 Dr. Ginsburg suspected the claimant had carpal tunnel syndrome, cervical radicular syndrome, mid-extremity entrapment or an overuse syndrome. However, Dr. Ginsburg declined to make any specific treatment recommendation until he reviewed the claimant's medical records. There is no follow-up report from Dr. Ginsburg, which suggests he reviewed the claimant's medical records. Under these circumstances, we cannot say the ALJ erred in failing to credit Dr. Ginsburg's report as a definitive recommendation for additional treatment of the industrial injury.
Finally, the ALJ recognized Dr. Hsin's opinion that the claimant may benefit from a release of the annular ligament of the right elbow. However, the record supports the ALJ's further finding that Dr. Hsin's opined the claimant's condition was not well outlined in medical literature and the efficacy of the surgery was debatable. (Finding of Fact 16).
In contrast, Dr. Orent made no recommendation for ongoing medical treatment at the time he determined the claimant to be at MMI. Similarly, the DIME physician did not recommend additional treatment. Therefore, the record contains substantial evidence to support the ALJ's finding that the claimant failed to prove a need for future medical treatment.
IT IS THEREFORE ORDERED that the ALJ's order dated September 4, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. SocolofskyNOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on January 30, 2004 by A. Hurtado.
Chang Moua, 2800 W. 103rd Ave., #1327, Federal Heights, CO 80260
Jackie Parra, Datex Ohmeda, 1315 W. Century Dr., Louisville, CO 80027
DeDe Evans, Zurich American Insurance Company, P. O. Box 370308, Denver, CO 80237
DIME Unit, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
Sean K. Dotson, Esq. and Dawn Watts, Esq., 8311 E. Amherst Circle, Denver, CO 80231 (For Claimant)
Karen Gail Treece, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)