Opinion
W.C. No. 4-784-015.
March 23, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Azer (ALJ) dated October 8, 2010, that denied the claimant's request for an award of permanent total disability (PTD) benefits. We affirm.
The claimant at the time of the hearing was 74 years old and suffered an industrial injury on September 18, 2008 when he tripped over a palette jack injuring his left arm and hand. The claimant reached maximum medical improvement (MMI) on April 1, 2009. On that date the authorized treating physician (ATP) released the claimant without restrictions. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician opined the claimant had reached MMI and had suffered a 13 percent upper extremity impairment, which equaled an eight percent whole person impairment. The claimant has a number of non-work related conditions including bilateral hearing loss, deep vein thrombosis in left lower extremity, hip pain, balance problems, and was diagnosed with an abdominal aortic aneurysm.
The claimant underwent vocational assessments. The expert for the respondents opined that the objective findings did not show the claimant was unable to work after his industrial injury. However the expert for the respondents admitted that given the totality of the circumstances surrounding the claimant's various conditions, including non-work related conditions, she did not believe the claimant could earn a wage as of the date of the hearing. The expert for the claimant opined that it was unlikely that the claimant could be hired for a job to enable him to resume earning a wage.
The ALJ found that the respondents' vocational expert and the claimant were both credible. The ALJ determined that the claimant had failed to show that the September 18, 2008 industrial injury was a significant causative factor in his inability to earn wages. The ALJ concluded that the claimant's inability to earn wages was the result of his nonindustrial conditions and complications. Therefore the ALJ denied the claimant's request for PTD benefits. The claimant appeals requesting that we reverse the ALJ's determination.
We note preliminarily that § 8-40-201(16.5)(a), C.R.S., defines permanent total disability as the claimant's inability "to earn any wages in the same or other employment." Under the statute, the claimant carries the burden of proof to establish PTD. However, the claimant is not required to establish that an industrial injury is the sole cause of his inability to earn wages. Rather the claimant must demonstrate that the industrial injury is a "significant causative factor" in his permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986). Under this standard, it is not sufficient that an industrial injury create some disability which ultimately contributes to permanent total disability. Rather, Seifried requires the claimant to prove a direct causal relationship between the precipitating event and the disability for which the claimant seeks benefits. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo. App. 1995), rev'd on other grounds Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In determining whether a claimant is permanently and totally disabled the ALJ may consider a wide range of factors including the claimant's age, work experience and training, the claimant's overall physical condition and mental abilities, and the availability of work the claimant can perform. The ALJ is given the widest possible discretion in determining the issue of permanent total disability, and ultimately the issue is one of fact. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo. App. 1993).
Of course, the claimant bears the burden of proof to establish that the industrial injuries are a "significant causative factor" in the permanent total disability. This means the claimant must establish a "direct causal relationship" between the industrial injury and the PTD. Under this test, the ALJ must determine the residual impairment caused by the industrial injury, and determine whether it was sufficient to result in permanent total disability without regard to the effects of subsequent intervening events. Resolution of the causation issue is one of fact for the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 869 (Colo. App. 2001); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986); Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo. App. 1984).
Because these issues are 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. This standard of review requires that we consider the evidence in a 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 ALJ need not enter findings concerning every piece of evidence if the bases of the order are clear from the findings and conclusions which are entered. Evidence and inferences not specifically mentioned were presumably rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Finally, the ALJ is presumed to have considered the relevant legal standards unless the contrary affirmatively appears from the order. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).
I.
On appeal the claimant contends that the ALJ's findings concerning credibility are irreconcilable on the issue of whether or not the claimant's work injuries were a significant causative factor in his inability to work. The claimant notes that the ALJ found that both he and the respondents' vocational expert were credible. The claimant contends that ALJ failed to resolve the conflicts in the evidence created by finding both his and the respondents' experts' testimony to be credible.
We note that the ALJ is not required to articulate the basis for his credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987). Rather, the ALJ's credibility determinations must merely be sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991). The ALJ is not held to a standard of absolute clarity in expressing findings of fact so long as the basis of the award is clear from the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). In our view, here it is clear that the ALJ resolved the conflicts in the evidence regarding the cause of the claimant's inability to earn wages in favor of the respondents' position, and we may not reweigh the evidence and disturb his credibility determinations. We are not persuaded that the ALJ committed reversible error.
The claimant points out that he testified concerning his limitations and restrictions with his upper extremity as a result of the industrial injury. The claimant argues that he testified that he could not use both of his upper extremities. The claimant argues that the respondents' expert acknowledged he could not earn a wage working as a security guard, if in fact he could not use both of his upper extremities. Tr. at 86. As we understand the claimant's argument, because he and the respondents' expert were both found to be credible and further because the claimant said he could not use both arms and the expert opined that without the use of both arms he could not work as a security guard, the ALJ's order must be reversed and he is entitled to PTD benefits.
We do not accept the claimant's proposition that the testimony of the vocational expert compels the conclusion that she opined that if the claimant had subjective complaints of pain in extremities and was unable to function as a security guard that she agreed the claimant was unemployable. We note that the respondents' vocational expert was asked if she agreed that if the claimant did not have the bilateral use of his upper extremities, that it would be extremely difficult for him to find a job as a security guard. Tr. at 77. The expert responded that the claimant had no restriction from using his left arm whatsoever. Tr. at 77. The expert noted that the claimant, in fact, continued to work without restrictions. Tr. at 78. Further, the expert observed that the ATP, at the time of MMI, not only opined that the claimant had zero percent impairment but also stated that the claimant had no permanent restrictions. Exhibit M. The vocational expert also pointed out that although the DIME physician opined that the claimant had medical impairment, the DIME physician did not comment anywhere in her report about whether there was an impact on the claimant's functional capabilities and impairment does not define function. Tr. at 72, 77, 85. We also note that the claimant testified that there was nothing wrong with his right arm. Tr. at 44.
Further, the ALJ specifically placed weight upon the testimony of the claimant that he did in fact return to work with his employer after MMI. The ALJ also placed weight upon the testimony of the claimant that he would still be working for the employer if not let go. Tr. at 39. It is clear to us in reading the ALJ's order that this is the area of the claimant's testimony he found credible and upon which he in part relied upon in determining the claimant was not entitled to PTD benefits.
In this connection the claimant also complains that the ALJ incorrectly found that he returned to work after being placed at MMI. The claimant instead argues that he returned to work as a security guard on February 18, 2009 and the ATP placed him at MMI on April 1, 2009. We note that the claimant's testimony does appear at one point to indicate that he returned to work after the injury and continued in his regular job up until the time of surgery in February 2009. Tr. at 39-40. We further note that MMI was reached on April 1, 2009. However the claimant also testified that he worked for the employer after the surgery and was terminated on April 28, 2009 for the reason that he failed to respond to a fire alarm and he disagreed with his termination because he did not do anything wrong. Tr. at 15-16, 18, 38-39. We perceive no reason to interfere with the ALJ's order on this ground.
On the issue of the claimant's entitlement to PTD benefits the ALJ particularly noted with record support the following. The claimant's ATP released the claimant to work without restrictions. Exhibit M. The claimant did in fact return to work with his employer post-MMI and the claimant testified that he would still be working for the employer if not let go. Tr. at 38-39. The ALJ concluded that although the claimant was unlikely to be able to earn wages he had failed to show that the industrial injury was a significant causative factor in the inability to earn wages. In our view this conclusion was supported by the claimant's testimony and the testimony from the respondents' vocational expert. While the respondents' expert did opine that by the date of the hearing the claimant was probably unable to work, her testimony can also be viewed as establishing that the claimant's inability to work is not significantly related to his industrial injury. Tr. at 67, 95; Exhibit EE at 4. Therefore, the opinion of the ATP, the respondents' vocational expert and the claimant's own testimony constitute substantial evidence supporting the ALJ's determination to deny the claimant's request for PTD benefits. Because the ALJ's determination is supported by substantial evidence it must be upheld. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Consequently, the ALJ did not err in denying PTD benefits. The existence of evidence which, if credited, might support a contrary result does not afford us grounds to grant appellate relief. Seifried v. Industrial Commission, supra.
II.
The claimant argues that the ALJ was required to ascertain the residual impairment caused by the industrial injury. As we understand the claimant's argument he contends that the ALJ failed to make such a determination and in fact ignored the findings of the DIME physician concerning the residual impairment caused by the industrial injury and instead relied upon the opinion of the ATP. As noted above, we recognize that in order to establish that the industrial injury was a significant causative factor, a claimant is required to prove that there was a direct causal relationship between the industrial injury and the PTD and that this determination requires the ALJ to ascertain the nature and extent of the claimant's residual impairment from the industrial injury. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra; Dickerson v. Dove Elevator Company, W.C. Nos. 4-323-980 4-596-961 (July 24, 2006)
In this regard the claimant argues that the ALJ ignored the findings of the DIME physician concerning the residual impairment caused by the industrial injury and instead placed reliance upon the opinion of the ATP of April 1, 2009 noting zero impairment. The claimant argues that the respondents did not contest the finding of the DIME physician and the ALJ failed to recognize the impairment suggested by the DIME physician concerning the claimant's neurological disorder in his left upper extremity. The claimant argues the ALJ cannot ignore the determination by the DIME physician in evaluating this neurological disorder.
We are not persuaded that the ALJ committed reversible error in this regard. 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.; 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). 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). It is true that 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. See Martinez v. Wendy's Inc., W.C. No. 4-603-270 (April 20, 2010). Although the claimant had demonstrated some physical impairment due to the industrial injury, in our view the ALJ acted well within his discretion in determining that the claimant had not demonstrated that the industrial injury was a significant causative factor in his inability to earn wages.
IT IS THEREFORE ORDERED that the ALJ's order dated October 8, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________ John D. Baird
__________________________ Thomas Schrant
JERRY D. LANE, COLORADO SPRINGS, CO, (Claimant).
HOSPITAL SHARED SERVICES, Attn: SALLY MARTINEZ, DENVER, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: EVELYN RADMACHER, C/O: ESIS PORTLAND WC, TAMPA, FL, (Insurer).
ROBERT W. TURNER, LLC, Attn: ROBERT TURNER, ESQ./STEVEN U. MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, Attn: ANNE SMITH MYERS, ESQ., DENVER, CO, (For Respondents).