Opinion
W.C. No. 4-191-303
August 30, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ), insofar as the ALJ denied the claim for permanent total disability benefits. We affirm.
In April 1993, the claimant suffered a compensable right arm injury during her employment as a deputy sheriff. The claimant was subsequently diagnosed with right upper extremity Reflex Sympathetic Dystrophy (RSD). The claimant also developed depression and psychological problems secondary to pain from the industrial injury. The claimant reached maximum medical improvement in October 1997 at which time a work capacities evaluation placed the claimant in the light duty work category.
The claimant's vocational rehabilitation expert, Daniel Best (Best), opined that as a result of the industrial injury the claimant is physically incapable of earning any wages. The respondent's vocational expert, John Drew (Drew), opined that the claimant has extensive physical and psychological restrictions. Drew also opined the claimant is limited to sedentary employment which allows the claimant to alternate between sitting and standing and does not require any repetitive hand activities, repetitive grasping with the right hand, or prolonged writing. However, Drew testified that there are numerous sedentary level part-time jobs available to the claimant within her medical restrictions.
The ALJ found, and it is undisputed, that as a result of the industrial injury the claimant is physically incapable of returning to her preinjury employment. However, the ALJ found the claimant failed to prove that she is permanently and totally disabled. In support, the ALJ found the claimant has not looked for any work since March 1995. Giving the greatest weight to the opinions of Drew, the ALJ also found that there are part-time jobs available to the claimant, such as the job of proof reader, which are within her psychological and physical limitations.
On review, the claimant contends the ALJ failed to resolve conflicts in the record and there is no credible evidence that employment within her medical restrictions is reasonably available. In particular, the claimant contends Drew did not find an available proof reading job. The claimant also contends Drew's testimony is incredible as a matter of law because it is contradicted by the opinions of the authorized treating physicians and expert Best. Further, the claimant contends Drew failed to consider Dr. Brown's opinion that she must avoid employment "stress." Therefore, the claimant argues there is not substantial, credible evidence she is capable of earning wages. We reject these arguments.
The applicable legal standard is undisputed. Section 8-40-201(16.5)(a), C.R.S. 1999, provides that a claimant is permanently and totally disabled if the claimant is "unable to earn any wages in the same or other employment." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). The term "any wages" refers to the claimant's ability to earn more than zero wages. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). Section 8-40-201(16.5)(a) also expressly provides that the claimant bears the burden to prove permanent total disability.
Whether the claimant is capable of earning wages in the same or other employment is a factual determination to be made by the ALJ based upon consideration of a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors 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) . Bymer provides that the test for determining the "availability of work" is "whether employment exists that is reasonably available to the claimant given his or her circumstances." Bymer also states that this determination must be made on a "case-by-case basis," and "will necessarily vary according to the particular abilities and surroundings of the claimant (e.g., whether and how far the claimant is able to commute)."
Because the question of whether the claimant proved that she is unable to earn any wages is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. Thus, we must defer to the ALJ's resolution of conflicts in the evidence, her assessment of the sufficiency and probative weight of the evidence, and the plausible inferences she drew from the record. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
The ALJ is not required to resolve every conflict in the evidence, just the pertinent conflicts. Ralston v Purina-Keystone v. Lowry, 821 P.2d 910 (Colo.App. 1991). The claimant does not identity the evidentiary conflicts the ALJ failed to resolve. However, the ALJ recognized the direct conflict between vocational experts Best and Drew concerning the claimant's employability, and resolved the conflict in favor of Drew. Thus, we reject the claimant's bald assertion the ALJ failed to resolve conflicts in the evidence.
We may not interfere with the ALJ's credibility determinations 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). Under this standard the mere existence of contradictory evidence does not afford a basis to interfere with the ALJ's credibility determinations. Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000). The claimant's arguments notwithstanding, we find no extreme circumstances here.
The record contains a direct conflict between the opinions of vocational experts Drew and Best. Drew testified that his office contacted numerous employers and confirmed the availability of jobs requiring little or no use of the right upper extremity. (Tr. Vol. 2 pp. 75-80). Furthermore, in his September 11, 1998, Vocational Evaluation (page 30), Drew reported that a labor market survey revealed the availability of proof reading jobs in the claimant's local community. The claimant's arguments notwithstanding, the ALJ could reasonably infer from Drew's testimony that part-time, one-handed employment is readily accessible to the claimant. The mere fact that Best disagreed with Drew's conclusion did not require the ALJ to find that Drew's opinion was overwhelmingly rebutted by Best.
Furthermore, Drew's opinion is buttressed by Dr. Gutterman's opinion that the claimant is capable of part-time work, and she may gradually increase to full-time work. (Gutterman October 9, 1994). Similarly, Dr. Pitzer testified the claimant is capable of employment in the light duty category. Moreover, the ALJ expressly relied on the reports of Dr. Krause, Dr. Fink and Dr. Casper, who although they opined the claimant suffers from ongoing depression, did not medically restrict the claimant from working.
In addition, Drew's testimony is not inconsistent with the medical restrictions imposed by Dr. Brown. The ALJ explicitly recognized Dr. Brown's opinion that stress from employment could aggravate the claimant's condition. ( See Finding of Fact 15). However, Dr. Brown also opined that one handed work would be within the claimant's medical restrictions and would help "keep her mind off the pain." (Tr. Vol. II, pp. 44). As we read the ALJ's order, she interpreted Dr. Brown's testimony to reflect his opinion that part-time employment which did not require the claimant to use her right arm would meet the claimant's need for stress-free employment and would actually benefit her chronic pain syndrome.
Nevertheless, the claimant argues Drew's opinions lack probative value because he failed to consider evidence that due to incapacitating pain flareups the claimant is not capable of being a reliable employee. The ALJ is presumed to have considered the evidence. However, the ALJ was not persuaded the claimant's medical condition prevents her from being a reliable employee. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories he rejected); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988) (ALJ not required to cite disputed evidence before rejecting it as unpersuasive). Thus, evidence Drew failed to consider the effect of the claimant's "flareups" did not preclude the ALJ from finding his testimony persuasive.
The claimant is obviously dissatisfied with the ALJ's credibility determinations. However, based upon this record, we cannot say as a matter of law the ALJ erroneously credited the opinions of vocational expert Drew. Moreover, the ALJ could reasonably infer from Drew's testimony the claimant is capable of earning some wages in "other employment."
Finally, the claimant contends the ALJ's factual determinations reflect an "enormously liberal" interpretation of the record in violation of § 8-43-201 C.R.S. 1999. We are not persuaded
The ALJ is presumed to be competent and unbiased until contrary shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Admittedly, the evidence could have been interpreted differently. However, the record does not compel a finding of permanent total disability. Therefore, we decline to conclude the ALJ violated § 8-43-201, simply because she refused to credit the evidence the claimant relies upon in support of her claim for permanent total disability benefits. See Kiewit Western Inc. v. Patterson, 768 P.2d 1272 (Colo.App. 1989) (court held ALJ's resolution of evidentiary conflicts, by itself, did not reflect bias).
To the extent the claimant has further arguments, they have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated August 4, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 1999. 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 August 30, 2000 to the following parties:
Carron Work, 316 Medinah Ave., Johnstown, CO 80534
Adams County, Risk Management, 450 S. 4th Ave., Brighton, CO 80601-3123
Regina M. Walsh Adams, Esq., 1011 37th Ave. Court, #201, Greeley, CO 80634 (For Claimant)
William A. Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For Respondent)
BY: A. Pendroy