Opinion
W.C. No. 4-163-718
January 31, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ determined that the claimant is not permanently and totally disabled as defined by § 8-40-201(16.5), C.R.S. (1995 Cum. Supp.). We affirm.
The claimant suffered a compensable right knee injury in February 1993 during her employment for the Windsor Gardens Association. As a result of the injury the claimant also developed a sacroiliac strain and problems in the left knee.
The ALJ found that as a result of the injury the claimant is permanently restricted from squatting, kneeling, long standing, repetitive stair climbing, climbing ladders and lifting over 20 pounds. However, the ALJ found that the claimant's medical restrictions do not include lying down several times a day. Crediting the opinion of the respondents' vocational expert, Mr. Phillips, the ALJ also found that the claimant is capable of returning to work at various unskilled jobs within her medical restrictions. Therefore, the ALJ determined that the claimant failed to sustain her burden to prove that she is "unable to earn any wages" as required by § 8-40-201(16.5), and denied the claim for permanent total disability benefits.
The claimant contends that she is permanently and totally disabled because her condition is worsening, she has no GED, she needs to lie down several times a day, she suffers from "bone on bone" grinding the right knee, she is unable to stand in one position for more than thirty minutes, and no employer has offered to hire her. We disagree.
The question of whether the claimant is unable to earn "any wages," and thus, is permanently and totally disabled, is one of fact for resolution by the ALJ. Christie v. Coors Transportation Co., ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995); Best-Way Concrete Co. v. Baumgartner, ___ P.2d ___ (Colo.App. 95CA0290, November 24, 1995). Consequently, the pertinent issue is whether the ALJ's finding that the claimant is able to earn wages is supported by substantial evidence in the record and plausible inferences drawn therefrom. Christie v. Coors Transportation; F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). If the finding is supported, it is immaterial that the record contains evidence, which if credited, might support a contrary conclusion.
The claimant's assertion that the ALJ was required to credit unrefuted testimony that the claimant is required to lay down during the day is not a correct statement of the law. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Cary v. Chevron U.S.A., Inc. 867 P.2d 117 (Colo.App. 1993); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Moreover, the claimant's reliance upon Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970); Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988); and Golden Age Manor v. Industrial Commission, 716 P.2d 153 (Colo.App. 1985) partially overruled on other grounds 783 P.2d 279 (Colo. 1989), as authority to the contrary is misplaced. Nothing in these cases support the claimant's assertion.
In any case, there is substantial evidence in the record that only Dr. Cooper D.C. recommended that the claimant lie down several times a day. (Tr. August 10, 1995, pp. 18, 19; August 17, 1995 p. 30; Dr. Bralliar report May 15, 1995; Dr. Berk report March 8, 1995; Dr. Papilion November 25, 1995; Dr. Rokicki report April 21, 1994). Therefore, we reject the claimant's assertion that there is "unrefuted" evidence that her medical restrictions include lying down several times a day.
Next, the ALJ did not commit reversible error in allowing Mr. Phillips to testify that the claimant is capable of earning wages. Even if we were to accept the claimant's contention that Mr. Phillips failed to consider the factors claimant relied upon to prove permanent total disability, this argument goes to the weight not the admissibility of Phillips' testimony. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
Furthermore, there is substantial evidence in the record that Mr. Phillips was aware of the factors claimant contends establish her permanent total disability. (Tr. pp. 4, 9, 16, 24, 26, 30 Phillips report May 29, 1995). However, Mr. Phillips did not believe the claimant was required to lie down several times a day, and the ALJ agreed. Similarly, Mr. Phillips was not persuaded that the other factors precluded the claimant from obtaining employment.
Neither are we persuaded that the ALJ erred in failing to allow the claimant's testimony concerning the "bone on bone condition" in her right knee. Contrary to the claimant's argument, Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986), does not support the claimant's contention that the ALJ was compelled to allow the testimony. To the contrary, Roe stands for the proposition that the ALJ has broad discretion to control the course of hearings, and that we may not disturb the ALJ's exercise of this authority in the absence of an abuse of discretion. Roe v. Industrial Commission, 734 P.2d at 142; see also IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
Here, the ALJ sustained the respondents' objection to the claimant's testimony that "all of the cartilage was removed for her knee at the second surgery," and that she has "no cushion between the kneecap and the femur." (Tr. August 10, 1995, pp. 42-44). Claimant's counsel stated that the testimony is relevant for purposes of the claimant's "understanding" of the surgical "procedure"on her right knee and explains the claimant's pain which requires her to lie down during the day. (Tr. August 10, 1995, p. 43.) The ALJ allowed the claimant to testify concerning her pain. However, the ALJ determined that the claimant's state of mind concerning her understanding of the surgery and her medical condition was irrelevant, and that the testimony concerning the surgery was hearsay. The claimant does not dispute these determinations, and therefore, the ALJ did not abuse his discretion in excluding the disputed testimony. See CRE 401, 801, 802; Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) (abuse of discretion occurs where the ALJ's order exceeds the bounds of reason).
The claimant's remaining arguments have been considered and are without merit. To the extent that the record contains some evidence that the claimant's condition is worsening, the ALJ was not persuaded that, at the time of the hearing, the "worsening" precluded the claimant from earning wages. This conclusion is supported by substantial evidence in Mr. Phillips' testimony.
Further § 8-40-201(16.5) does not require proof of a specific job offer to defeat a claim for permanent total disability benefits. Rather the ALJ is required to determine whether it is more probable than not that the claimant is capable of earning wages, and thus, the absence of a specific offer of employment is not dispositive of the claimant's ability to earn wages.
IT IS THEREFORE ORDERED that the ALJ's order dated September 14, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed January 31, 1996 to the following parties:
Marcia Beavers, P.O. Box 205, Bennett, CO 80102
Windsor Gardens Association, Attn: Ruth Herring, 595 S. Clinton St., Denver, CO 80231
Liberty Mutual Fire Insurance, Attn: Nancy Klass, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For the Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: _______________________