Opinion
W.C. No. 3-999-840
February 12, 2002
FINAL ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge Coughlin (ALJ) which denied their petition to reopen the issue of permanent total disability based upon a change of condition. We affirm.
On October 19, 1990, the claimant suffered an admitted back injury which damaged nine spinal discs. As a result of the injury, the claimant underwent three back surgeries. In an order dated August 8, 1996, the claimant was determined to be permanently and totally disabled as a result of the industrial injury. No appeal was taken and the respondents began paying permanent total disability benefits.
In 1999, the respondents sought an order reopening the claim on grounds the claimant's physical condition had improved as evidenced by his activities on a surveillance videotape and his employment at the Pineberry Apartments. As a result, the respondents alleged the claimant was no longer permanently and totally disabled.
Section 8-43-303(2)(a), C.R.S. (1990 Cum. Supp.), [amended as to injuries occurring after July 1, 1991, see 1991 Colo. Sess. Laws, ch. 219, § 8-43-303(3) at 1323], which governs this 1990 injury, permits a claim to be reopened based upon "a change in condition." A "change in condition" refers to a change in the physical or mental condition caused by the industrial injury. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987); Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000).
The ALJ found the claimant's employment at the Pineberry Apartments was not a "typical apartment manager or caretaker job," because the claimant had no regular work hours, and was allowed to work at his own pace. Instead, the ALJ determined the job was "sheltered employment."
Crediting the testimony of the claimant's treating physician, Dr. Stecher, the ALJ also determined the claimant's employment activities and the activities captured on the surveillance video did not reflect any change in the claimant's functional abilities. Accordingly, on March 3, 2001, the ALJ issued an order which determined the respondents failed to prove grounds upon which to reopen the claim. On October 19, 2001, the ALJ issued a Supplemental Order which incorporated the March 3 order. Further, the ALJ found that even if the petition to reopen was granted, the evidence was insufficient to support a finding the claimant was no longer permanently and totally disabled.
On review of the Supplemental Order, the respondents contend the ALJ erroneously determined they failed to prove the claimant's condition had improved, and that the claimant is capable of earning wages. The respondents also contend the claimant's work for Pineberry Apartments was not "sheltered employment." We reject these arguments.
The power to reopen under the provisions of § 8 43-303 is permissive and left to the sound discretion of the ALJ. We may not interfere with the ALJ's decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996); Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is contrary to the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Contrary to respondents' contention, the applicable legal standard does not measure permanent total disability by the claimant's ability to secure "suitable" or "gainful" employment. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). The "suitable, gainful employment" standard applies to issues of vocational rehabilitation. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993) ; Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991). Rather, the applicable law provides that permanent and total disability exists if the claimant has lost and will not regain efficiency to some substantial degree in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). However, under this standard, the claimant's ability to perform certain kinds of gainful work does not necessarily rule out a finding of permanent and total disability. Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, 212 (Colo.App. 1990). Rather, the standard recognizes that a permanently and totally disabled worker may be able to earn occasional, part-time, or temporary wages due to business booms, temporary good luck, or extraordinary efforts of the claimant. New Jersey Zinc Co. v. Industrial Commission, 165 Colo. 482, 440 P.2d 284 (1968); Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, (Colo.App. 1990); Gruntmeier v. Tempel Esgar Inc., 730 P.2d 893 (Colo.App. 1986). Accordingly, a worker's ability to secure sheltered, or occasional employment under rare or unusual circumstances, does not preclude a determination of permanent total disability. New Jersey Zinc Co. v. Industrial Commission, supra. It follows that reopening a permanent total disability award based upon a "change of condition" requires the presentation of evidence which suggests the claimant has regained or will regain efficiency to some substantial degree in the fields of general employment.
Whether the respondents sustained their burden to prove a change of condition is a question of fact for resolution by the ALJ depending on the particular circumstances presented. We must uphold the ALJ's factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
As argued by the respondents, medical evidence is not required to prove a change of condition. However, the ALJ is not precluded from considering the lack of corroborative medical evidence as a factor in assessing the persuasiveness of the respondents' position. Moreover, it is the ALJ's sole prerogative to assess the sufficiency and probative weight of the evidence, including the medical evidence presented here. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The medical records of Dr. Stecher do not reflect an improvement in the claimant's physical condition. At best, the records suggest a temporary reduction of the claimant's pain level after receiving periodic facet injections to the thoracic spine. Further, Dr. Stecher imposed permanent work restrictions in 1996 which precluded the claimant from repetitive bending, twisting, lifting more than 20 pounds and prolonged lifting. (Tr. February 11, 2000, p. 78). Dr. Stecher testified that the claimant's restrictions had not changed since 1996 except that the claimant is probably able to sit, stand and walk less than he could in 1993. (Tr. February 11, 2000, p. 94). Further, Dr. Stecher opined that the activities depicted on the surveillance video are consistent with the claimant's permanent restrictions and his inability to work because the claimant is only capable of performing bending, lifting, and twisting at his own pace, on an infrequent and irregular basis. (Tr. February 11, 2000, pp. 80, 105).
The respondents contend the ALJ erred in relying on Dr. Stecher's testimony because Dr. Stecher's opinions were based upon the claimant's subjective complaints and Dr. Stecher served as the claimant's advocate in his application for Social Security Disability benefits. However, Dr. Stecher denied that his conclusions were based solely on the claimant's subjective complaints. (Tr. February 11, 2000, p. 102). Further, evidence that Dr. Stecher is a neurosurgeon with 33 years of experience, who began treating the claimant within 2 months of the 1990 injury and performed all three of the claimant's back surgeries, supports the ALJ's reliance on Dr. Stecher's opinion.
We note that it is the ALJ's province to determine the credibility of the witnesses. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We cannot say the ALJ erred as a matter of law in crediting Dr. Stecher's opinion that there was no change in the claimant's condition. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The respondents' further challenges to Dr. Stecher's testimony have been considered and are unpersuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is for ALJ to resolve internal inconsistencies in expert medical testimony and may credit all, part, or none of an expert's testimony).
In addition, evidence the claimant worked as a caretaker for the Pineberry Apartments in exchange for reduced rent does not compel a finding that the respondents proved a change of condition. The claimant admitted he picked up trash, raked leaves, and pushed snow at Pineberry. However, he stated that he had good and bad days and that he is limited from such activities on his bad days. (Tr. February 11, 2000, p. 17).
Marilee Price, the owner of Pineberry Apartments, testified she observed the claimant sweeping, cleaning the laundry room, cleaning floors, raking leaves, and shoveling snow. However, she added that the claimant had a flexible schedule and worked at his own pace. As a consequence, the claimant was not expected to work when he was having a bad day. (Tr. December 9, 1999, pp. 23, 30, 33). Ms. Price also stated that she helped the claimant with any strenuous tasks. (Tr. December 9, 1999, pp. 32).
The claimant's vocational rehabilitation expert, David Zierk, whose opinion the ALJ found persuasive, opined that the protective environment of the Pineberry Apartments, where there was no competitive factors, was indicative of sheltered employment. (Tr. February 11, 2000, p. 130, 134). Accordingly, there is substantial evidence to support the ALJ's determination that the claimant's caretaker duties at the Pineberry Apartments reflected "sheltered employment" and not an improvement in the claimant's employability.
Although the respondents' vocational expert opined the claimant is capable of "suitable and gainful" employment (Tr. February 11, 2000, p. 152), as stated above, that is not the applicable standard in determining whether the claimant is no longer permanently and totally disabled. In any event, the ALJ was not persuaded by this opinion, and we have no basis for disturbing her assessment. See Rockwell International v. Turnbull, supra. The respondents' expert also opined that the claimant demonstrated improvement from the medical restrictions imposed in 1993, but Dr. Stecher testified that the respondents' expert relied on the wrong set of restrictions in reaching her conclusions. (Tr. February 11, 2000, p. 79).
The respondents' arguments essentially request that we reweigh the evidence on review and substitute our judgment for that of the ALJ concerning the credibility of the vocational experts. However, we have no authority to do so. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Consequently, the respondents have failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ's order dated October 19, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________
Kathy E. Dean
__________________________________
Dona Halsey
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 12, 2002 to the following parties:
Stanley Epp, 991 S. Sibley Dr., Pueblo West, CO 81007
Penske Distribution Systems, 3640 Chambers Rd., Aurora, CO 80011-1313
Kathy Schultz, Penske Truck Leasing, Route 10 Green Hills, P. O. Box 563, Reading, PA 19603
National Union Fire Insurance of Pittsburgh _ Gallagher Bassett Services, Inc., Attn: Kathleen M. Bebee, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY:A. Pendroy