Opinion
W.C. No. 4-210-925
December 22, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his request for permanent total disability benefits. We affirm.
The claimant suffered compensable injuries to both shoulders and underwent multiple surgeries. It is undisputed that as a result of the injuries the claimant is physically unable to return to his pre-injury employment.
On July 31, 1997, Dr. Plfum placed the claimant at maximum medical improvement and rated the claimant's permanent medical impairment as 12 percent of the left upper extremity and 4 percent of the right upper extremity. Dr. Carlton subsequently performed a Division-sponsored independent medical examination (IME). Dr. Carlton issued a similar impairment rating.
At the hearing on permanent total disability vocational rehabilitation expert, Sara Nowotny (Nowotny), opined that the claimant is capable of earning wages in several occupations. Vocational rehabilitation expert, Rodney Wilson (Wilson) disagreed, and opined the claimant is permanently and totally disabled.
Crediting the testimony of Nowotny the ALJ found that there are "jobs, which are available in the claimant's local labor market, and which are within claimant's work restrictions." Therefore, the ALJ determined that the claimant failed to prove he is permanently and totally disabled.
I.
Initially, we note the claimant's contention that the ALJ erred in finding that the claimant sustained 12 percent impairment of the left upper extremity and 4 percent impairment of the right upper extremity. The claimant contends that because the issue of permanent partial disability was not endorsed for adjudication this finding violated his right to due process of law. We disagree.
Due process of law requires that parties be afforded advance notice of the issues to be considered by the ALJ and an opportunity to be heard. Allison v. Industrial Claim Appeals Office, 884 P.2d 1113 (Colo. 1994). Claims for permanent total disability benefits are governed by § 8-42-111, C.R.S. 1998. Under the applicable law, permanent total disability is defined as the inability to "earn any wages in the same or other employment." Section 8-40-201(16.5)(a) C.R.S. 1998; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). The determination of whether the claimant is capable of earning wages is a factual determination to be made by the ALJ based upon consideration of a number of "human factors." Christie v. Coors Transportation Co., supra. As recognized by the ALJ, one of these factors is the claimant's general physical condition . Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) . In determining the claimant's overall physical condition, it is proper for the ALJ to consider the nature and extent of the claimant's permanent medical impairment. It follows that the ALJ's consideration of the claimant's medical impairment rating is inherent in adjudicating a claim for permanent total disability benefits. Accordingly, the claimant's own application for hearing on the issue of permanent total disability benefits put the claimant on notice that, the ALJ could consider evidence of the claimant's medical impairment. Consequently, the claimant's due process rights were not implicated.
However, we agree with the claimant that the issue of permanent partial disability was not endorsed for adjudication, and that the ALJ's factual determination concerning the claimant's medical impairment rating is not a determination of permanent partial disability for purposes of § 8-42-107, C.R.S. 1998.
II.
The claimant also contends that at the hearing the respondents failed to identify a single job which is currently available to the claimant. Therefore, the claimant contends that the "clear weight" of the evidence proves he is permanently and totally disabled. We disagree.
Among the "human factors" the ALJ may consider in determining whether the claimant is permanently and totally disabled are the claimant's mental ability, age, employment history, education and the availability of work the claimant can perform. As the claimant concedes, readily available employment includes jobs within a commuting distance from the claimant's local community. Weld County School District RE-12 v. Bymer, supra. Further, permanent total disability does not exist merely because the claimant is unable to work full-time, earn the pre-injury rate of pay, or return to jobs for which he has previous training and experience. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995.
The claimant also recognizes that we must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
On review, we must view the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The substantial evidence standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence and we may not disturb the ALJ's credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981).
The claimant is obviously dissatisfied with the ALJ's credibility determinations. However, in view of the direct conflict between Nowotny and Wilson concerning the claimant's employability, we cannot say as a matter of law that the ALJ erred in crediting the testimony of Nowotny. See Halliburton Services v. Miller, supra.
Moreover, we recognize that at the time of the hearing Nowotny was unable to identify a single job opening available to the claimant. However, the respondents are not required to prove the existence of a job offer to refute a claim for permanent total disability benefits. Beavers v. Liberty Mutual Fire Ins.. Co., W.C. No. 4-163-718 (January 13, 1996) , aff'd., Beavers v. Liberty Mutual Fire Ins.. Co., (Colo.App. No. 96 CA0275, September 5, 1996) (not selected for publication) ; Gomez v. Mei Regis, W.C. No. 4-199-007 (September 21, 1998). Rather, the claimant fails to prove permanent total disability if the evidence establishes that 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).
Nowotny testified that the claimant is physically capable of performing work as a dispensing optician, department store greeter and telemarketer, and that such jobs are available within a commuting distance from the claimant's home. (Tr. pp. 54, 57, 60-61). Nowotny also stated that she found job openings in these occupations in the claimant's local labor market "at various times." (Tr. p. 70). In fact, she stated that at the time she conducted her labor market survey there was a job opening for a dispensing optician in La Junta where the claimant resides. (Tr. pp. 50, 71). Nowotny further stated that telemarketing jobs are available to the claimant 65 miles away in Pueblo. (Tr. pp. 19, 53). Based upon this testimony the ALJ could, and did, reasonably infer that although the claimant may experience some unemployment, there are periodic jobs available to the claimant where he can earn wages. (Tr. pp. 92); McKinney v. Industrial Claim Appeals Office, supra; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd. on other grounds, at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Furthermore, the ALJ's finding supports the conclusion that the claimant is not permanently and totally disabled. Section 8-40-201(16.5)(a).
IT IS THEREFORE ORDERED that the ALJ's order dated April 14, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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. 1998.
Copies of this decision were mailed December 22, 1998 to the following parties:
Robert Black, P.O. Box 1155, 1504 Belleview, La Junta, CO 81050
City of La Junta Housing Authority, P.O. Box 376, La Junta, CO 81050-0376
Attn: Brandee DeFalco Galvin, Colorado Compensation Insurance Authority,, Esq. — Interagency Mail
James A. Anderson, Esq., Anderson Lopez 559 E. Pikes Pike Avenue, Suite 212, Colorado Springs, CO 80903 (For Claimant)
Michael Goodman, Esq., Dufford Brown, P.C., 1700 Broadway, Suite 1700, Denver, CO 80290 (For Respondents)
BY: ____________