Opinion
W.C. No. 4-105-270
March 23, 1998
FINAL ORDER
The claimant seeks review of the final order of Administrative Law Judge Friend (ALJ), which denied her claim for permanent partial disability benefits. We affirm.
In an order dated March 7, 1994, the ALJ found that the claimant sustained a compensable occupational disease. In this regard, the ALJ found the claimant's "asthma was aggravated and made symptomatic" as a result of an occupational exposure to automobile exhaust. The ALJ awarded temporary disability benefits on account of this disease.
Subsequently, the claimant sought an award of permanent partial disability benefits. The ALJ determined that, since the onset of disability from the disease occurred prior to July 1, 1991, the case is controlled by the law as it existed prior to the enactment of the Senate Bill 91-218 amendments to the Workers' Compensation Act (Act).
At the hearing on permanent disability the claimant testified to numerous symptoms including respiratory problems, neurological problems, and depression which she attributed to the occupational exposure to automobile fumes in 1991. In support of her position, she produced medical evidence indicating that her symptoms are related to the 1991 exposure and that she has suffered permanent pulmonary and neuropsychiatric impairment as a result.
However, the ALJ concluded that the claimant failed to prove that she sustained a loss of earning capacity as a result of the 1991 exposure to automobile fumes. In support of this determination, the ALJ relied on the testimony of Dr. Repsher that the claimant's current respiratory problem is mild "obstructive airway disease" which does not preclude her from performing any type of work. The ALJ also credited Dr. Repsher's opinions that the claimant does not have cognitive impairment as a result of her exposure, and that the medical evidence to the contrary is flawed due to the absence of neuropsychological testing.
Further, the ALJ found that the claimant held several jobs subsequent to incurring the occupational disease. Although the claimant testified she lost her job at a recreation center due to symptoms caused by the industrial injury, the ALJ credited evidence to the contrary.
On review, the claimant contends that the ALJ applied an incorrect standard in assessing the claim for permanent partial disability because the denial of benefits fails to account for the fact she is physically unable to return to her preinjury employment. The claimant also contends that the denial of permanent partial disability benefits is inconsistent with the ALJ's 1994 order, which expressly rejected Dr. Repsher's opinions. We perceive no error.
Under the statutory scheme applicable to this claim, the ALJ had wide discretion in determining the degree of permanent partial disability, if any. American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978); former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.). In making this determination, the ALJ was obliged to consider the extent to which the injury impaired the claimant's employability on the open labor market, now and in the future. Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210 (Colo.App. 1990). Moreover, the ALJ was permitted to consider the claimant's post-injury earnings, although such evidence was not dispositive of lost earning capacity. Vail Associates, Inc. v. West, 692 P.2d 1111 (Colo. 1984).
The question of whether the claimant proved lost earning capacity as a result of the industrial injury was one of fact for determination by the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Thus, to the extent the ALJ's order is supported by substantial evidence in the record, we must uphold it on review. Section 8-43-301(8), C.R.S. 1997. This standard of review 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's order reflects consideration of the factors listed in former § 8-42-110(1)(b), as well as the applicable case law. Thus, we disagree with the claimant that the ALJ failed to appreciate that an award of permanent partial disability benefits is to be based upon a finding of lost earning capacity. Further, the basis of the order is sufficiently clear that we have no trouble reviewing it on appeal. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Moreover, the ALJ found the occupational disease did not preclude the claimant from returning to her preinjury employment. To the contrary, the ALJ credited Dr. Repsher's testimony that the claimant was not so restricted, and also noted the absence of any disabiling restrictions in the reports Dr. Fennely and Dr. Goldstein. Further, as the ALJ noted, the mere existence of some physical impairment does not require an ALJ to infer that there is a loss of earning capacity. Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App. 1980).
Neither do we perceive any fatal inconsistency between the ALJ's 1994 order and his denial of permanent partial disability benefits in 1997. The fact that the ALJ determined the claimant was temporarily disabled by an occupational disease did not require a later determination that the occupational disease caused permanent disability. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991) (finding of disability at one point in time does not govern the existence of disability at some other point in time). In fact, temporary and permanent disability benefits compensate for distinct losses. Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994).
Neither do we believe that the ALJ erred in crediting Dr. Repsher's testimony at the time of the 1997 order. It is true that, at the time of the 1994 order, the ALJ implicitly discredited Dr. Repsher's opinion that the claimant never had asthma. While Dr. Repsher maintained that same position at the time of the 1997 hearing, he also indicated that none of the claimant's existing symptoms could be attributed to asthma, and that the claimant was not restricted. The ALJ was certainly free to disbelieve Dr. Repsher insofar as he opined that the claimant never had asthma, but free to credit him insofar as he opined that asthma was not the cause of the claimant's current symptoms, and that the claimant was not permanently disabled as a result of the occupational disease. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit part but not all of the testimony of a witness).
Finally, we perceive no error in the ALJ's discussion of the claimant's preexisting conditions. The ALJ relied on the presence of preexisting conditions to refute evidence that all of the claimant's current symptoms are the result of the 1991 occupational disease. This determination is fully within the ALJ's fact finding authority.
IT IS THEREFORE ORDERED that the ALJ's order dated March 11, 1997, is affirmed. INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
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. 1997.
Copies of this decision were mailed March 23, 1998 to the following parties:
Debra Lee Willis, 4300 S. Huron, Englewood, CO 80110
Colorado Auto Auction Services Corp., 6955 E. 50th Ave., Commerce City, CO 80022-4711
National Union Fire Insurance, c/o Crawford Co., Attn: Gina Griego, P.O. Box 6502, Englewood, CO 80155
Charles W. Hemphill, Esq., 8441 W. Bowles Ave., #250, Littleton, CO 80123 (For the Respondents)
Pamela J. Adams Donnelly, Esq., 1777 S. Harrison St., Denver, CO 80210 (For the Claimant)
By: ________________________________