Opinion
W.C. No. 4-743-603
February 16, 2010
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated September 29, 2009, that awarded permanent total disability (PTD) benefits. We affirm.
The claimant worked as a certified nursing aide and housekeeper. The claimant sustained an injury involving her right upper extremity on April 17, 2007. The claimant's treating physician determined that the claimant reached maximum medical improvement and assigned permanent work restrictions of no lifting more than ten pounds and no pushing or pulling over 25 pounds. The treating physician concluded that the claimant suffered 12 percent impairment of her right upper extremity. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician diagnosed the claimant as having complex regional pain syndrome and determined she had suffered a 15 percent whole person impairment. The DIME physician agreed with the treating physician that the claimant's left upper extremity symptoms, neck and shoulder pain and depression were not work related.
The ALJ determined that the claimant did not possess sufficient intellect to become retrained or to learn sedentary work skills. The ALJ concluded that the claimant did not possess the capacity to locate and maintain a work situation that would meet her physical restrictions. The ALJ found the claimant had proven by a preponderance of the evidence that she was unable to earn any wages in the same or other employment and therefore awarded PTD benefits. The respondents bring this appeal.
A claimant is permanently and totally disabled if she is "unable to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2009. 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). "[I]n making a PTD determination, the ALJ may consider the effects of the industrial injury in light of the claimant's human factors, including, inter alia, the claimant's age, work history, general physical condition, and prior training and experience." Joslins Dry Goods Co. v. Indus. Claim Appeals Office, 21 P.3d 866, 868 (Colo. App. 2001).
The ALJ's factual determinations must be upheld on appeal if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009; Christie v. Coors Transp. Co., 919 P.2d 857, 860 (Colo. App. 1995), affd, 933 P.2d 1330 (Colo. 1997); see 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. Indus. 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); 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).
I.
The respondents first contend that the ALJ abused his discretion in finding that the claimant is entitled to PTD benefits. The respondents note that the ALJ credited the testimony of the claimant's vocational expert that because the claimant has a low IQ score, and because she has sedentary to light duty permanent work restrictions the claimant was unable to be gainfully employed in any occupation and thus entitled to PTD benefits. The respondents then argue that the ALJ erred in awarding PTD benefits when there was absolutely no testimony from the claimant as to her vocational and intellectual limitations. The respondents conclude that without the claimant's testimony as to her vocational and intellectual limitations, the record is void of substantial evidence to support the ALJ's award of PTD benefits. We disagree.
In our view, although, the claimant did not testify at the hearing held on August 18, 2009 there was evidence regarding her vocational and intellectual limitations. The vocational evaluation performed by the claimant's expert included testing for academic/intellectual functioning. Claimant's Exhibit 13 18-23. There was also information from the claimant's special education teacher regarding the claimant's learning disabilities. Claimant's Exhibit 25. In addition, at the hearing held on August 18, 2009, there was testimony from the vocational experts retained by the parties. This testimony included evidence regarding the claimant's intellectual functioning. Tr. at 65-68 26. In our view, this evidence constitutes substantial evidence supporting the ALJ's determination of the claimant's intellectual vocational and limitations. Although in workers' compensation hearings, claimants often testify in their own behalf, the respondents have not cited, nor are we aware of any authority that the testimony of the claimant is required to establish intellectual or vocational limitations.
The respondents next cite various portions of the evidence, which suggest the claimant is able to secure gainful employment. The respondents note that their vocational expert found a number of positions that fell within the permanent restrictions placed on the claimant by her authorized treating physician. The respondents point out, regarding the claimant's IQ score, that she was able to perform successfully her job with the respondent employer for over four years. However, the existence of evidence, which, if credited, might support a determination contrary to that reached by the ALJ, does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
Here the ALJ was persuaded, at least in part, by the opinion of the claimant's vocational expert that she could not consider the typical sedentary to light jobs within the physician's restrictions for the claimant because the claimant did not possess the intellectual functioning to perform those jobs. Tr. at 69; Claimant's exhibits 33 16 23. The ALJ relied on the psychological testing, which showed only borderline intellectual functioning. The testing demonstrated that the claimant had limited verbal skills, significant problems with short-term memory and an overall IQ score of 72. Claimant's Exhibits 18-23. In our view, there is substantial evidence in the record to support the ALJ's determination the claimant had proven by a preponderance of the evidence that she was unable to earn any wages in the same or other employment. Therefore, we are bound by such determination. Section 8-43-301(8).
II.
The respondents next contend that the ALJ erred in failing to address whether the claimant's injury was a significant causative factor in the determination of PTD benefits. The respondents citing Seifried v. Industrial Com'n 736 P.2d 1262 (Colo. App. 1986), contend that her occupational injury was not a significant factor in her inability to obtain gainful employment. We disagree with the respondents contention that the ALJ erred in failing to consider their argument on whether her industrial injury was not a significant causative factor in the claimant PTD. We note that the ALJ specifically found that the work injury was a significant factor in the claimant's inability to return to work for any wages. Finding of Fact § 25 at 5; 7 Conclusions of Law § 1.
The respondents further contend it is not the claimant's occupational injury and ten pound lifting restriction on her right side that is precluding her from gainful employment, but her left hand symptoms, bilateral lifting as well as pain in her shoulder and neck in combination with her right hand restrictions and most significantly her low intellectual functioning. The respondents note that her occupational injury is limited to her right upper extremity only, with no permanent limitations to her left upper extremity, neck shoulders or depression.
In this regard, the industrial injury does not have to be the sole cause of the claimant's disability. Rather, the industrial disability must bear a direct relationship to the claimant's permanent and total disability. Seifried v. Industrial Commission, supra. Here the claimant's vocational expert testified that the claimant could not be gainfully employed as a result of a combination of her intellectual profile and the reduction in physical capacities. Tr. at 79-80. As we read the ALJ's order, the effects of the industrial injury were "significant" and bore a direct causal relationship between the precipitating event and the resulting disability. This is consistent with Siefried v. Industrial Comm'n, supra.
Ultimately, the existence of PTD is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999). In our view, the ALJ considered the relevant factors and resolved those against the respondents and therefore, we perceive no reason to disturb the ALJ's conclusion. Finally, we have considered the respondents' other contentions, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
IT IS THEREFORE ORDERED that the ALJ's order dated September 29, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
ALLEGIS GROUP/MAXIM HEALTHCARE, COLORADO SPRINGS, CO, (Employer).
NEW HAMPSHIRE INSURANCE COMPANY, Attn: WENDY STALKFLEET, C/O: BROADSPIRE, DENVER, CO, (Insurer)
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KATHLEEN FAIRBANKS, ESQ., DENVER, CO, (For Respondents).