Opinion
W.C. No. 4-623-424.
August 15, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated March 3, 2011 that denied and dismissed the claim for permanent total disability (PTD) benefits and denied payment of certain medical bills. We affirm.
The claimant suffered an admitted injury to his cervical spine and shoulder on September 17, 2002, when he tripped and fell over a curb and gutter. At a hearing held in 2008 before ALJ Martinez, it was determined that the claimant had reached maximum medical improvement (MMI) on February 6, 2007 and that the claimant had a 26 percent impairment of the whole person as a result of the work-related injury.
The claimant eventually filed an application for hearing on the issue of PTD. The ALJ determined that the claimant had failed to demonstrate by a preponderance of the evidence that he was entitled to PTD benefits as a result of his work injury. The claimant appeals, contending that the overwhelming hard and certain evidence supports a reversal of the ALJ's determination. We are not persuaded to interfere with the ALJ's order.
For an award of PTD, the claimant bears the burden of proving that he or she is "unable to earn any wages in the same or other employment." § 8-40-201(16.5)(a), C.R.S. The issue of entitlement to PTD benefits is a question of fact for the ALJ, Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo. App. 2001), and the familiar rules governing resolution of factual issues apply. See Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002) (the ALJ resolves conflicts in the evidence, makes credibility determinations, determines the weight to be accorded to expert testimony, and draws plausible inferences from the evidence). In making a PTD determination, the ALJ may consider the effects of the industrial injury in light of the claimant's human factors including the claimant's age, work history, general physical condition, and prior training and experience. Joslins Dry Goods Co., 21 P.3d at 868
I.
The claimant first contends that the ALJ erred as a matter of fact and law in ruling that he had failed to establish by a preponderance of the evidence that he is permanently and totally disabled. The claimant contends that the ALJ misapplied the evidentiary standard in his reliance upon the respondents' vocational expert, and that there was no evidence on which to base a determination that employment was available which the claimant could perform.
We first observe that the ALJ correctly set forth in his order the applicable standard by citing § 8-40-201(16.5) C.R.S. This statute provides that in order to prove permanent total disability, the claimant must show by a preponderance of the evidence that he is incapable of earning any wages in the same or other employment. Therefore, even if we were to accept the claimant's assertion that there was no evidence of specific jobs that were available to the claimant, it would not compel the determination that the claimant was entitled to PTD benefits. Rather, it was the claimant's burden to affirmatively prove that he is unemployable. See Lobb v. Industrial Claim Appeals Office. 948 P.2d 115 (Colo. App. 1997) (burden of proof on the employee to prove such unemployability).
At the hearing, the claimant placed great reliance on the testimony and opinions of his vocational expert, but the ALJ specifically found that testimony not credible. Moreover, the ALJ credited the opinion of the respondents' vocational expert and relied in part upon that opinion in denying PTD benefits.
The following are some of the pertinent findings made by the ALJ with record support. The respondents referred the claimant for a vocational assessment with a certified rehabilitation counselor. Van Iderstine Depo. at 7. Utilizing work restrictions set forth by Dr. Bernton, the respondents' expert identified positions he considered appropriate for the claimant. Van Iderstine Depo. at 11. At hearing, the respondents' expert testified that he utilized restrictions that placed the claimant into a sedentary light-duty position that would allow for position changes. Van Iderstine Depo. at 12. The respondents' expert further testified that if he considered the Functional Capacity Evaluation (FCE) done by the claimant's vocational expert, he would basically eliminate all competitive employment for the claimant. Van Iderstine Depo. at 14 . However, the respondents' expert opined that, based on the fifteen pound lifting restriction set forth by Dr. Bernton, along with the need to change position, the claimant was still capable of performing work within his commutable labor market. Van Iderstine Depo. at 13, 20.
Dr. Bernton testified that the claimant is employable with the restrictions Dr. Bernton gave him, which were no lifting above the shoulder level, no lifting over 15 pounds, and no operating dangerous machinery. Bernton Depo. at 27. Dr. Bernton also identified jobs that the claimant was capable of performing from a physical standpoint. Bernton Depo. at 21-23. Dr. Bernton also testified that the restrictions advanced by the claimant's expert were not consistent with his examination of the claimant. Bernton Depo. at 27-29.
To a significant degree, the case turned on conflicting opinions between vocational experts. However, the ALJ found that the extensive work restrictions imposed by the claimant's experts' were not supported by other evidence in the file, including the FCE performed in May 2007 after the claimant was placed at MMI. Exhibit J at 78-87; Shriver Depo. at 59-68. In contrast, the ALJ accredited the opinions of the respondents' vocational expert who conducted a labor market research and identified numerous jobs in his report that were available and were consistent with his vocational profile. Exhibit D at 18-21; Van Iderstine Depo. at 17.
We recognize that the opinions of the respondents' expert may be viewed as weakened during cross examination; nevertheless, the ALJ credited the opinions of the respondents' expert. Van Iderstine Depo. at 63-80. We may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Despite the claimant's arguments to the contrary, we perceive no extreme circumstances warranting interference with the credibility determinations here.
In our view, the opinions of the respondents' vocational expert and the opinions of Dr. Bernton are substantial evidence supporting the ALJ's determination that the claimant failed to prove by a preponderance of the evidence that he is entitled to PTD benefits. See 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).
II.
The claimant next contests the ALJ's findings regarding medical bills from St. Mary's Hospital for treatment on or about December 22, 2009. The claimant contends the ALJ erred in ruling that the claimant failed to establish by a preponderance of the evidence that these bills were reasonable and necessary and related to his admitted industrial injury. We are not persuaded to interfere with the ALJ's determination.
Section 8-42-101(1)(a), C.R.S. requires an employer to furnish reasonable and necessary medical treatment "to cure and relieve the employee from the effects of the injury." See Owens v. Indus. Claim Appeals Office, 49 P.3d 1187, 1188 (Colo. App. 2002). The claimant has the burden of proving entitlement to specific medical benefits. See § 8-43-201(1), C.R.S; Lutz v. Indus. Claim Appeals Office, 24 P.3d 29, 31 (Colo. App. 2000).
The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that the he received on December 22, 2009 from St. Mary's Hospital was related to the effects of the industrial injury. Like all causation questions, the issue is one of fact for the ALJ to determine. See Cabela v. Indus. Claim Appeals Office, 198 P.3d 1277, 1280 (Colo. App. 2008). Similarly, whether medical treatment is reasonable or necessary is a question of fact for the ALJ, and the ALJ's determination must be upheld if supported by substantial evidence. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002).
Here, the claimant was evaluated at St. Mary's Hospital in December 2009 with complaints of chest pain while purging a gas line at a pumping station. We note that the claimant's industrial injury to his cervical spine and shoulder occurred on September 17, 2002, and that after the claimant had been placed at MMI he continued to work for the employer here until 2008, when he accepted a new job with Energy Transfer. His duties at Energy Transfer included checking oil and pressure and driving to pumps out in the oil fields. The claimant worked for Energy Transfer until April 2010.
The ALJ made the following pertinent findings of fact with record support. The records from St. Mary's hospital reflect the claimant developed chest pain on his left side. Exhibit 30 at 12-13; Exhibit 35 at 3. The claimant was referred for an electrocardiogram and chest x-ray that was reported as negative. Exhibit 30 at 12-13. A second electrocardiogram also was negative. The ALJ determined that the claimant had failed to show that it was more probable than not that the emergency room visit was reasonable and necessary medical treatment related to his September 17, 2002 industrial injury.
The claimant draws our attention to reports from St. Mary where the claimant complained of neck pain that originated near where wires were implanted in the trapezius region and argues that this relates the treatment at St Mary's to the cervical industrial injury. However, while the ALJ noted that the claimant had reported neck pain, he found that the claimant's primary complaint was left sided chest pain and there was a lack of credible evidence pointing to the fact that the left sided chest pain was related to the September 17, 2002 industrial injury. We note that the claimant testified he went to the emergency room at St. Mary's because his boss was scared he was having a heart attack. Tr. at 58.
The ALJ found, with record support, that the claimant was at the emergency room to be evaluated for an acute onset of chest pain and determined that the claimant had failed to demonstrate that the chest pain was related to his admitted industrial injury. In our view, these factual determinations are supported by substantial evidence in the record and therefore must be upheld on appeal. Section 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), aff'd 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.
III.
In finding that the extensive work restrictions imposed by the claimant's expert were not credible, the ALJ noted that the restrictions were not supported by other medical evidence in the file, including an FCE performed in May 2007 after the claimant was placed at MMI. In making this finding, the ALJ expressly recognized that the claimant's physical condition had deteriorated since the 2007 FCE. The claimant argues that the ALJ erred in premising his determination that the claimant was not permanently and totally disabled on work restrictions assigned when he attained MMI in 2007. We again are not persuaded to interfere with the ALJ's determination.
In our view, the ALJ was free to compare the work restrictions imposed by the claimant's vocational expert with earlier restrictions, even though the claimant's condition had deteriorated. In any event, the ALJ credited the opinions of the respondents' vocational expert, who relied upon the claimant's current work restrictions as set forth by Dr. Bernton in his September 14, 2010 report. Exhibit G at 57; Exhibit D at 18. Dr. Bernton's work restrictions were significantly different then the work restrictions of the claimant's expert. We may not interfere with the ALJ's assessment of an expert witness's testimony because the weight to be accorded the testimony is a matter within the discretion of the ALJ as fact-finder. Rockwell Int 7 v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990). Finally, we have considered the claimant's other contentions, but conclude that they present us with no grounds upon which the ALJ's order may be disturbed.
IT IS THEREFORE ORDERED that the ALJ's order dated March 3, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
CERTIFICATE OF MAILING
TIMOTHY LOCKYER, MACK, CO, (Claimant).
MAYS CONCRETE, INC., GRAND JUNCTION, CO, (Employer).
CONTINENTAL CASUALTY CO., Attn: RUTH ANN KUEHL, ADJUSTER, DENVER, CO, (Insurer).
THE LAW FIRM OF JOANNA C. JENSEN, PC, Attn: JOANNA C JENSEN, ESQ., GRAND JUNCTION, CO, (For Claimant).
WHITE AND STEELE, PC, Attn: ROBERT H COATE, ESQ., DOMINION TOWERS, DENVER, CO, (For Respondents).