Opinion
W.C. No. 4-503-134.
November 21, 2007.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge (ALJ) Jones dated April 11, 2007 that determined the claimant is permanently and totally disabled. We affirm.
We previously reviewed this matter after another ALJ issued an order denying the claimant permanent total disability (PTD) benefits. The ALJ's order appeared to indicate that the claimant might be permanently and totally disabled, but not necessarily because of her industrial injuries. The order also lacked findings as to whether the claimant was unable to earn any wages in the same or other employment. We therefore remanded the matter for additional findings concerning the relationship between the claimant's injuries and her ability to earn wages pursuant to § 8-40-201(16.5)(a), C.R.S. 2007. The file indicates the following procedural history. A procedural order reassigned this matter to ALJ Jones for the issuance of an order, noted that the parties stipulated that the record was complete, and allowed the parties the opportunity to brief the matter. After ALJ Jones issued her order, the parties submitted a stipulated motion for a supplemental order. The motion indicates that the parties failed to timely file a joint request for additional time in which to file position statements prior to ALJ Jones issuing her order. The respondent also separately requested a supplemental order. ALJ Jones denied the parties' request for a supplemental order.
The ALJ's Findings of Fact, Conclusions of Law, and Order on Remand (Order) reflects the following findings. The claimant completed 11 grades of school and has a "below normal" IQ of 67. The claimant is unable to take the MMPI II test because she reads below a fifth grade level. However, the claimant bought a home and provided financial assistance to family members. She performed assembly line work for the respondent for 30 years. Her job required her to inspect and repair up to 600 suitcases a day. The suitcases weighed between 17 and 25 pounds. The claimant would pull the suitcases from the production line, inspect them, repair flaws, and return the suitcases to the line for eight hours a day, five days a week.
The claimant sustained numerous injuries at work, as well as from an automobile accident in 1995. She has a history of periodic low back pain and neck pain, but missed almost no work. The claimant's job duties changed in April 2001. The claimant had to lift suitcases from the floor and place them on a table for inspection and repair before returning them to the floor. The claimant sought medical attention in 2001 and reported significant pain and discomfort in her neck and shoulder, together with numbness and tingling in her arm. The claimant sustained a compensable injury to her left shoulder on May 7, 2001. In October 2001 the claimant underwent surgery on her left shoulder.
The claimant received various impairment ratings. Dr. Parry performed an independent medical examination. His diagnosis included cervical strain, left shoulder impingement, and SI joint dysfunction. Dr. Parry essentially agreed with an earlier impairment rating of 33 percent whole person impairment that another physician had imposed, although he placed the claimant's impairment at 35 percent. Mr. Blythe, a vocational rehabilitation expert, opined that the claimant could earn no wages. In rendering his opinion Mr. Blythe relied on work restrictions imposed by Dr. Parry and by another physician, as well as the claimant's limited intelligence, education, and employment experience. The ALJ credited the testimony of the claimant, Mr. Blythe, and Dr. Parry and determined that the claimant was permanently and totally disabled. A surveillance video of the claimant did not persuade the ALJ otherwise.
The respondent contests the ALJ's determination that the claimant is permanently and totally disabled. Section 8-40-201(16.5)(a), C.R.S. 2007, defines permanent total disability as the claimant's inability "to earn any wages in the same or other employment." The burden of proof to establish permanent total disability is on the claimant. In determining whether the claimant has sustained her burden of proof, the ALJ may consider those "human factors" that define the claimant as an individual. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997) . These factors may include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The overall objective of this standard is to determine whether, in view of all of these factors, employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
The respondent reviews various evidence in the record and asserts that the more credible and persuasive evidence shows that the claimant is not entitled to PTD benefits. However, because the issue of permanent total disability is generally factual, we must uphold the ALJ's findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). 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). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness's testimony was inconsistent, the ALJ was free to rely on those portions she found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondent's arguments notwithstanding, there is substantial evidence in the record to support the ALJ's finding that the claimant sustained her burden to prove entitlement to PTD benefits. Consequently, the existence of other evidence, which, if credited, might support a contrary determination, does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (expert medical evidence not dispositive of causation).
Further, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
In light of these standards governing appellate review, it appears that there is ample support in the record for the factual findings underlying the ALJ's conclusion that the claimant is permanently and totally disabled. The claimant testified that she "went to the 11 grade" in school and did not obtain a GED. Tr. (February 11, 2005) at 36. She further testified to the effect that she had only worked at the employer's since May 13, 1971. Tr. (February 11, 2005) at 37-38. Joseph Blythe, a vocational rehabilitation counselor, testified that the claimant was "functionally illiterate," with a verbal ability "at the second percentile." Blythe Depo. (June 6, 2005) at 3, 22, 28. He indicated that the claimant was unemployable. Blythe Depo. (June 6, 2005) at 39-40. Mr. Blythe opined that the claimant would not be able to maintain employment and earn wages. Blythe Depo. (August 5, 2005) at 11. Dr. Lynn Parry testified that the claimant's movement in a videotape of the claimant was consistent with the limited range of motion exhibited in her presentation to Dr. Parry. Parry Depo. (December 13, 2004) at 48-49). Dr. Parry's Division-sponsored independent medical examination report noted that the claimant should not lift or carry over 10-15 pounds with the left hand alone. Her bimanual lifting should be limited to 20 pounds on an occasional basis and the claimant should do no repetitive pushing or pulling. Dr. Parry also opined that the claimant should avoid twisting and bending, and change positions on an as-needed basis. Exhibit A at 15. She determined that the claimant sustained a 35% impairment. Exhibit A at 18. The ALJ credited the testimony of the claimant, Mr. Blythe, and Dr. Parry in determining that the claimant was permanently and totally disabled. Order at 8, ¶¶ 8-9.
The ALJ's factual determinations are supported by substantial evidence in the expert and lay testimony he found persuasive, and the findings support the conclusion the claimant is permanently totally disabled. The respondent also asserts that we erred in remanding this matter and requests a supplemental order by the ALJ. However, those matters are beyond the scope of our review. See § 8-43-301(5), (8)-(9), C.R.S. 2007 (addressing supplemental orders and scope of Panel's review).
IT IS THEREFORE ORDERED that the ALJ's order dated April 11, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
GLORIA M. MERIDA, DENVER, CO, (Claimant).
SAMSONITE CORPORATION, Attn: NANCY JO KRAFT, C/O: SAMSONITE RISK MGMT, DENVER, CO, (Employer).
FRANCIS K. CULKIN, DENVER, CO, 80210 (For Claimant).
DWORKIN, CHAMBERS WILLIAMS, Attn: GREGORY K. CHAMBERS, C/O: C. SANDRA PYUN, DENVER, CO, (For Respondents).