Opinion
W.C. No. 3-832-655
April 24, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ Stuber) dated February 5, 1996. The claimant contends that ALJ Stuber erred by denying her claim for permanent total disability benefits, and awarding less than maximum permanent partial disability benefits. We disagree, and therefore, affirm.
In 1986 the claimant was employed as an armed security guard for Burns International Security (Burns). In July 1986, the claimant sustained a compensable injury when she burned her left arm on a hot radiator. The treating physician, Dr. Tsoi, determined the claimant to be at maximum medical improvement (MMI) on June 15, 1994.
In an order dated August 14, 1993, Chief Administrative Law Judge Felter (ALJ Felter) found that the claimant also suffered compensable injuries on August 3, 1986, which necessitated treatment for headaches, seizures, blackouts, tremors, left side weakness, post-traumatic depression, and other neurological and psychological problems. The claimant reported that the injuries occurred when she was struck by lightning. ALJ Felter further determined that the industrial injuries were the proximate cause of the claimant's temporary wage loss after July 17, 1987. Therefore, ALJ Felter awarded medical and temporary disability benefits.
The matter came before ALJ Stuber on the issues of permanent partial and permanent total disability. ALJ Stuber found that the claimant sustained a 5 percent disability from the burn injury. However, due to highly conflicting evidence, ALJ Stuber determined that he was "unable to make a finding of fact" concerning whether the claimant sustained permanent disability from the August 3 injuries. Specifically, ALJ Stuber was unable to determine whether the claimant was suffering from an "organic brain disorder," or "psychological problems possibly resulting from the lightning strike," or whether the claimant was "consciously faking her symptoms." Therefore, ALJ Stuber determined that the claimant failed to sustain her burden to prove her entitlement to permanent total disability benefits. Instead, ALJ Stuber awarded permanent partial disability benefits based upon a 5 percent disability as a working unit.
I.
On review the claimant makes several arguments in support of her contention that ALJ Stuber erroneously denied her claim for permanent total disability benefits. We are not persuaded there was any error in the order.
A.
Contrary to the claimant's arguments, the 1986 injury claims are governed by the permanent total disability test established in Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). See McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). Under Byouk, an injured worker is permanently and totally disabled if the worker has lost and will not regain efficiency in some substantial degree as a working unit in the fields of general employment. In applying this standard, the ALJ may consider a myriad of factors including the claimant's medical restrictions, mental training, education and prior work experience. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995) ; Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993).
We decline to conclude that ALJ Stuber failed to consider the applicable legal standard merely because he was not persuaded that the claimant is permanently and totally disabled. Further, the claimant's receipt of Social Security disability benefits is not conclusive of permanent total disability in a workers' compensation claim. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev'd on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Therefore, insofar as ALJ Stuber's order is contrary to the determination of the Social Security Administration we are not compelled to conclude that ALJ Stuber misapplied the law.
B.
Next, the claimant contends that under the doctrine of res judicata ALJ Felter's prior order barred the respondents from relitigating the question of whether the claimant suffered compensable injuries from the lightning incident on August 3, 1986. The claimant also contends that the respondents were collaterally estopped from relying on the same medical evidence which ALJ Felter previously rejected as unpersuasive.
The doctrines of collateral estoppel and res judicata bar the relitigation of an issue which was resolved in a prior proceeding. Pomeroy v. Waitkus, 517 P.2d 396 (1974) ; Lindner Chevrolet v. Industrial Claim Appeals Office, supra. The issues before ALJ Felter were whether the claimant suffered a compensable injury on August 3, 1986, and whether the claimant's temporary disability was the result of the 1986 industrial injuries. However, ALJ Felter expressly reserved the issue of permanent disability for later determination. In contrast, the issue before ALJ Stuber was the claimant's permanent disability, or in other words, the residual effects of the 1986 injuries after the claimant reached MMI.
It follows that the issues resolved by ALJ Felter were not identical to the issues before ALJ Stuber. Furthermore, the respondents did not relitigate the issue of compensability. Thus, ALJ Felter's order had no preclusive effect on proceedings before ALJ Stuber. See LeFebvre v. Winter Park Meadow Association, (Colo.App. No. 96CA0743, October 31, 1996) (not selected for publication).
Similarly, assuming arguendo that the respondents did not argue before ALJ Felter that the claimant was "malingering," that did not preclude the respondents from arguing that the claimant's "permanent" disability is due to "malingering." For the same reason, we are not persuaded that the respondents "waived" their contention that the claimant is malingering. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988)
C.
The claimant does not dispute that she bore the initial burden to prove her entitlement to permanent total disability benefits. However, she contends that she established a prima facie case of permanent total disability, at which time the burden shifted to the respondents. Therefore, the claimant argues that ALJ Stuber erred in concluding that the claimant retained the burden of proof.
The claimant's argument notwithstanding, had the respondents presented no evidence, the burden of proof remained on the claimant to establish that she is permanently and totally disabled. More importantly, where the fact finder determines that the evidence is equally weighted on either side of the issue, the fact finder is compelled to enter an order in favor of the party which did not bear the burden of proof. Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163, 166 (Colo.App. 1983).
Here, ALJ Stuber determined that the evidence as a whole was insufficient for him to determine whether the claimant sustained permanent disability from the August 3 injuries. In so doing ALJ Stuber implicitly credited the evidence presented by both parties, and found that it was entitled to equal weight. Consequently, the order does not support the claimant's assertion that ALJ Stuber misapplied the burden of proof. Atlantic Pacific Insurance Co. v. Barnes, supra.
Moreover, we have no authority to reweigh the evidence on review. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Therefore, the claimant's assertion that ALJ Stuber failed to give "proper weight" to the evidence which supported her position, does not afford us grounds to grant relief.
D.
The claimant's general allegations of error have been also been considered and are without merit. ALJ Stuber's findings are sufficient for us to ascertain the basis for his order. Further, insofar as the claimant challenges ALJ Stuber's credibility determinations, we perceive no basis to interfere. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony). It was solely the prerogative of ALJ Stuber to resolve inconsistencies in Dr. Gutterman's testimony, and to the extent that Dr. Gutterman's opinions were contrary to other medical evidence in the record, ALJ Stuber was free to consider that in determining the probative value of his opinions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). However, that conflict did not preclude ALJ Stuber from crediting Dr. Gutterman's opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
II.
Alternatively, the claimant contests the ALJ's failure to award maximum permanent partial disability benefits. The claimant contends that a simple comparison of her preinjury wage as an armed security guard with the postinjury wage offered by Burns for work as an unarmed security guard reflects a wage loss of at least 55 percent. Therefore, the claimant argues that she is entitled to maximum permanent partial disability benefits.
Under the applicable law, "permanent partial disability" refers to the loss of earning capacity. Vail Associates Inc. v. West, 692 P.2d 1111 (Colo. 1984). Actual earnings constitute only one of several factors the ALJ may consider in determining whether the claimant has suffered a loss of earning capacity. In fact, permanent partial disability benefits could be awarded even if the claimant suffered no actual reduction of wages. Vail Associates Inc. v. West, 692 P.2d at 1114.
Accordingly, the applicable law did not require ALJ Stuber to award permanent partial disability benefits based upon a comparison of the claimant's preinjury and postinjury wages. Rather, as recognized by ALJ Stuber, former § 8-51-108(1)(b), C.R.S. (1986 Repl. Vol. 3B), allowed ALJ Stuber to base the award on consideration of the same "human factors" which were pertinent to the issue of permanent total disability.
Although the claimant is dissatisfied with the result, ALJ Stuber's order reflects his consideration of the pertinent factors. See Conclusions of Law 2. Furthermore, ALJ Stuber's finding of a 5 percent disability from the burn injury is supported by substantial evidence in the medical records of Dr. Tsoi and vocational consultant Janet Heitsmith. Therefore, we may not disturb the award of permanent partial disability benefits. See American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978).
To the extent that the claimant has further arguments, they are not persuasive.
IT IS THEREFORE ORDERED that ALJ Stuber's order dated February 5, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed April 24, 1997 to the following parties:
Robin Smith, 310 Chimney Park Dr., Windsor, C 80550
Burns International Security, Robert H. Coate, Esq., 1225 17th St., 28th Flr,
Denver, CO 80202-5528
Pam DeSantis, CNA Insurance Companies, P.O. Box 17369, T.A., Denver, CO 80217
Subsequent Injury Fund (Interagency Mail)
Rebecca Bradley, Esq., 50 South Steele St., Ste. 820, Denver, CO 80209 (For the Claimant)
Robert H. Coate, Esq. John M. Lebsack Esq., 1225 17th St., 28th Flr, Denver, CO 80202-5528
(For the Respondents)
Mike Serruto, Esq., Attorney General's Office, 1525 Sherman St., 5th Flr., Denver, CO 80203
(For SIF)
BY: _______________________