Opinion
W.C. Nos. 3-940-062, 4-279-268
June 18, 1997
FINAL ORDER
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ), which awarded medical impairment benefits based on a scheduled disability of nineteen percent of the right upper extremity. We affirm.
Insofar as pertinent, this case proceeded to a hearing on the issues of permanent total disability benefits and permanent partial disability benefits. At the commencement of the hearing, the ALJ received into evidence medical reports as well as vocational reports from the claimant's expert, Mr. Olson, and the respondents' expert, Mr. Zierk. The claimant then testified in her own behalf.
At the conclusion of the claimant's case, the respondents made a motion to "dismiss" the claim for permanent total disability benefits. (Tr. p. 37). The ALJ granted the motion, finding that the claimant failed to carry her burden of proof establish the inability to earn any wages. Although the ALJ recognized that the claimant is incapable of returning to her pre-injury employment, and has lost significant access to the labor market, he determined that the "totality of the evidence" establishes that the claimant is capable of working. In support of this result, the ALJ cited the medical restrictions established by Dr. Kendall, and the report of the respondents' vocational expert that the claimant is capable of performing several types of jobs found in the Colorado Springs labor market.
Moreover, the ALJ restricted the award of permanent disability benefits to a scheduled award based on a nineteen percent impairment of the claimant's right upper extremity. In support of this conclusion, the ALJ cited Dr. Kendall's November 20, 1995 report, and the claimant's testimony concerning difficulty when using her right arm. The ALJ also concluded that the claimant failed to carry the burden of proof to establish that the "situs of her functional impairment is proximal to the shoulder joint."
I.
On review, the claimant contends that the ALJ erred in entering a "directed verdict" because no such procedure is permitted in workers' compensation cases. The claimant goes on to argue that, even if the procedure is permitted, the ALJ erred in failing to view the evidence in a light most favorable to the claimant, and in permitting the respondents to present evidence prior to the ruling on the motion. We are not persuaded.
When issues of fact are involved, due process affords the parties the right to a hearing at which they are apprised of the evidence to be considered, and given a reasonable opportunity to present evidence in their own behalf and to confront adverse evidence. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, so long as the parties have been afforded these essential rights, we have held that there is no reversible error when an ALJ dismisses the claim, after the claimant's case, on the grounds that the evidence is insufficient to support an award of benefits. E.g., Allen v. University of Colorado, W.C. No. 3-999-781 (November 25, 1992).
Here, the ALJ afforded the claimant the opportunity to present her entire case including testimony, medical evidence and vocational evidence. Moreover, the claimant herself offered the report of the respondents' vocational expert, and therefore, had a fair opportunity to "rebut" the report. In fact, the claimant submitted a report of Mr. Olson which was critical of Mr. Zierk's opinions. (Olson report, July 30, 1996). Thus, we perceive no prejudicial error in the procedure utilized by the ALJ. See Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995) (due process is flexible and no specific procedure is mandated so long as the parties are afforded the basic opportunity for a fair hearing).
Neither do we agree that the ALJ applied an incorrect standard of proof in assessing the evidence. As the ALJ recognized, the claimant bore the burden of proof to establish her entitlement to permanent total disability benefits. Section 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.). The question of whether the claimant carried this burden was one of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ was not required to view the evidence in a "light most favorable to the claimant." In the civil setting, if a court is acting as the trier of fact a motion for "directed verdict" is actually a motion for dismissal pursuant to C.R.C.P. 41(b). In such cases, the question is not whether the plaintiff established a prima facie case, but whether, in light of all the evidence, judgment should be entered for the defendant. Smith v. Weindrop, 833 P.2d 856 (Colo.App. 1992); Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo.App. 1983).
It follows that the ALJ did not err in failing to ascribe special weight to the evidence favorable to the claimant. Because the ALJ was acting as the fact-finder, he was free to evaluate the totality of the evidence and determine whether the claimant carried her burden of proof.
Finally, we reject the argument that the ALJ erred in allowing the "respondents to present evidence prior to ruling on the motion for directed verdict." As we noted previously, the respondents did not present any evidence in their own behalf. To the contrary, it was the claimant's decision to offer the vocational report of Mr. Zierk. (Tr. p. 7).
II.
The claimant next contends that the ALJ erred in applying the "any wages" standard of permanent total disability found at § 8-40-201(16.5)(a). The claimant argues that her current symptoms are causally connected to a prior occupational disease sustained in 1988. Therefore, she argues that under the "onset of disability" rule the claim is governed by the standard of permanent total disability which existed prior to the enactment of § 8-40-201(16.5(a). See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). We disagree.
It is undisputed that the claimant sustained an occupational disease in 1988 and filed a claim which was denominated as W.C. No. 3-940-062. Later, the claimant sought to reopen. However, at the commencement of the hearing, the claimant agreed to withdraw the reopening issue and elected to proceed on her right to permanent disability benefits in W.C. No. 4-279-268. Significantly, W.C. No. 4-279-268 concerns an admitted injury or occupational disease of February 4, 1995, and is the claim currently under review.
At no time did the claimant argue to the ALJ that W.C. No. 3-940-062 and W.C. No. 4-279-268 involve the same occupational disease. To the contrary, it appears that the respondents were asserting that any petition to reopen W.C. No. 3-940-062 was barred by the statute of limitations, and this was the reason the claimant decided to drop the petition to reopen and proceed in W.C. No. 4-279-268. (Tr. pp. 3-4). Under these circumstances, the claimant waived the right to argue that W.C. No. 3-940-062 and W.C. No. 4-279-268 involve the same occupational disease, with the same date of onset of disability. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (counsel may not take one position before the ALJ and argue a contrary position on appeal). This is true regardless of the fact that the claimant testified that she believed there was a relationship between the 1988 disease and her subsequent symptoms.
III.
The claimant next contends that the ALJ erred in failing to find permanent total disability under the "any wages" standard of § 8-40-201(16.5)(a). In support of this proposition, the claimant cites the testimony of Mr. Olson that the claimant would be able to return to employment only "with retraining" in a "modified" position. The claimant argues that "it must be assumed that [the ALJ] accepted such testimony as indicative of employability." We are not persuaded.
Section 8-40-201(16.5)(a) defines permanent total disability as the inability to earn "any wages." This statutory definition was enacted to establish a "stricter standard" of permanent total disability than existed prior to the 1991 amendments. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Under this standard, it has been held that a claimant is not permanently and totally disabled if she is able to earn some wages in modified, sedentary, part-time employment. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). The existence of permanent total disability is a question of fact for resolution by the ALJ. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Similarly, the question of whether the claimant carried her burden of proof to establish permanent total disability is a question of fact. See Metro Moving Storage Co. v. Gussert, supra. Because these issues are factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). The substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
The claimant's argument notwithstanding, the ALJ was not required to credit the testimony of the claimant's vocational expert and enter an award of permanent total disability benefits. As the ALJ recognized, the respondents' expert testified that the claimant was capable of performing available work in view of her physical restrictions. The ALJ considered this evidence, together with the claimant's testimony that she had not looked for employment except with the respondent-employer, as tending to diminish the weight and credibility of the claimant's conflicting evidence. We decline the claimant's invitation to substitute our judgment for that of the ALJ concerning whether or not the claimant carried her burden of proof to establish permanent total disability. Moreover, the mere fact that the claimant may be significantly limited in her ability to find employment is not the test. Rather, the question is the claimant's ability to earn "any wages" in any employment. McKinney v. Industrial Claim Appeals Office, supra.
The claimant also argues that the ALJ failed to consider Mr. Olson's "responsive report" of July 30, 1996. In fact, the claimant asserts that some of the ALJ's findings and conclusions are "directly contrary" to Olson's opinions.
In Finding of Fact 9, the ALJ explicitly referred to Mr. Olson's July 30, 1996 report. The ALJ again referred to the report in the second paragraph of the Conclusions of Law. Thus, there is no basis for arguing that the ALJ "failed to consider" the report. Further, as we have already held, the ALJ was not required to give any weight whatsoever to Mr. Olson's report. The fact that the ALJ may have made findings of fact contrary to Mr. Olson's opinions merely represents an exercise of the ALJ's fact-finding authority, not an error in the application of the law. Cf. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (weight and credibility of expert opinion is a matter for ALJ).
IV.
The claimant's final contention is that she is entitled to permanent partial disability benefits under § 8-42-107(8)(c) rather than the schedule. In support of this proposition, the claimant cites her testimony, and the ALJ's finding, that she has difficulty sleeping due to pain caused by the injury to her right upper extremity. The claimant reasons that the sleep problems represent an "impairment" which does not appear on the schedule, and therefore, she is entitled to the whole person rating. We reject this argument.
It is certainly true that if a claimant sustains a scheduled injury and a non-scheduled injury, the claimant is entitled to a single whole person impairment rating under § 8-42-107(8)(c). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). However, in Morris v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0863, February 6, 1996), the court of appeals held that "an injury must be ratable under the AMA Guides before such is compensable under § 8-42-107(8)." Consequently, the Morris court held that an unratable psychiatric "impairment" would not serve to remove an extremity impairment from the schedule of disabilities.
Here, as in Morris, there is no evidence that the claimant's alleged "sleep impairment" is ratable under the AMA Guides. In fact, Dr. Kendall did not provide any rating for the sleep difficulties, and there is no other impairment rating in the record. Consequently, the evidence is insufficient to support an award under § 8-42-107(8)(c), and the ALJ's scheduled award must be upheld.
The claimant also argues that if the matter is remanded it should be assigned to another ALJ. Since we uphold the ALJ's order, we need not address this argument.
IT IS THEREFORE ORDERED that the ALJ's order dated September 4, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed June 18, 1997 to the following parties:
Judy Blea, P.O. Box 71, Palmer Lake, CO 80133
Mari Beth Utke, Deluxe Corporation, P.O. Box 64399, St. Paul, MN 55164-0399
Karen B. Parker, The Travelers Companies, P.O. Box 173762, Denver, CO 80217-3762
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
By: _______________________________