Opinion
W.C. No. 4-430-788
September 6, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated March 21, 2011 that found the claimant to be permanently and totally disabled, but apportioned her permanent disability so that only ten percent of her disability is attributable to her industrial injury. The ALJ also denied the claimant's request for certain medications. We affirm.
According to the ALJ's findings of fact, the claimant sustained a compensable injury to her left ankle on August 14, 1999. The claimant has had migraine headaches since 1981 and Complex Regional Pain Syndrome (CRPS) in her right upper extremity since 1998, both of which were disabling. The ALJ rejected the claimant's contention that her back condition contributed to her permanent total disability. The ALJ was persuaded that the claimant was permanently and totally disabled, but apportioned 90 percent of her disability to her headaches and right upper extremity problems. The ALJ denied the claimant's request for medications except for Lidoderm patches and Soma.
I.
The claimant takes issue with the ALJ's determination that the claimant's low back condition did not contribute to her permanent total disability. According to the claimant, the ALJ should have required the respondents to overcome by "clear and convincing" evidence the whole person impairment rating for the lumbar spine issued by the Division-sponsored independent medical examination (DIME) physician.
We have previously recognized that because permanent total disability concerns impaired access to the labor market, rather than medical impairment, medical evidence is not required to prove permanent total disability. Moreover, the statutory scheme for determining permanent total disability requires the claimant to prove permanent total disability by a preponderance of the evidence, rather than by clear and convincing evidence. Harris v. John And Diane Lyons Foundation, W.C. Nos. 4-440-977 4-323-662 (March 10, 2003), aff'd, (Colo. App. No. 03CA0627, May 27, 2004) (not selected for official publication). We adhere to our prior decision and conclude that the ALJ was not required to consider the claimant's low back condition under an elevated standard of proof or to place such a burden on the respondents.
The claimant also disputes the sufficiency of the record to uphold the ALJ's determination that the claimant's back condition resulted from an intervening event. We are not persuaded that the ALJ erred in this respect. Because such questions are factual in nature, we are bound by the ALJ's determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). The substantial evidence standard also requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). Similarly, this narrow standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). Where conflicting expert opinions are presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d. 1182 (Colo. App. 1990).
According to her position statement, the claimant argued before the ALJ that her current back pain and related physical limitations were the result of back surgeries undergone to implant a spinal cord stimulator to address her ankle injury. The ALJ framed his consideration of the claimant's low back condition in the context of whether the low back condition is causally related to the claimant's work injury and contributed to her overall disability.
In that regard, the ALJ noted the medical opinion that the claimant's low back problems were due to her Sjogren's syndrome, rather than a surgery related to her industrial injury as alleged by the claimant. Exhibit W at 156; Bisgard Depo. at 34-36. Moreover, the ALJ was not persuaded by the claimant's testimony that she experienced significant low back pain until after surgery. The ALJ found that there was a significant absence of complaints regarding the claimant's back pain in medical documentation after the claimant's surgery. Barolat Depo. at 72-73, 78. The ALJ concluded that the claimant's complaints of low back pain were either not credible or were not shown to be related to her back surgery by a preponderance of the evidence.
The ALJ was free to reject the claimant's assertions. Further, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). As stated above, where, as here, the medical evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to resolve the conflict. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo. App. 1998). Substantial evidence supports the ALJ's factual findings concerning the claimant's low back condition.
II.
It follows that we are not persuaded by the claimant's argument that the ALJ erred in not taking into account the claimant's back condition in awarding medical benefits. Nor are we persuaded that the ALJ erred in failing to authorize the continued narcotic medication the claimant sought.
Section 8-42-101(1)(a), C.R.S. provides that respondents are liable for authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). The question of whether medical treatment is reasonable and necessary is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999); see also Young v. Bobby Brown Bail Bonds, Inc., W.C. No. 4-632-376 (April 7, 2010) (the question of whether the continued use of narcotic medications is reasonable and necessary is one of fact for determination by the ALJ).
The ALJ found that the claimant had been prescribed narcotic medical prior to her ankle injury to address her migraine headaches. Exhibit EE at 372. Amongst several other findings about narcotic medication is the ALJ's finding that the surgeon who implanted a spinal cord stimulator to control the claimant's left ankle pain agreed that the narcotics the claimant took at the time were not having much impact on her ankle pain. Barolat Depo. at 64-66. There is substantial evidence in the record supporting the ALJ's determination regarding his denial of additional medications. Section 8-43-301(8), C.R.S. To the extent that the claimant argues there is evidence relating the claimant's back condition to her use of narcotics for the ankle injury, the ALJ was not required to credit any such evidence. See Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970) (ALJ not required to expressly cite evidence before rejecting it as unpersuasive).
III.
The claimant contends that the ALJ erred in crediting a vocational expert's opinion as to the claimant's work restrictions from the ankle condition, because the opinion did not refer to work restrictions discussed by a surgeon who treated the claimant. The claimant's challenge to the opinion of the respondents' vocational expert goes to the weight of her opinion. See Yeager Garden Acres, Inc. v. Summit Constr. Co., 32 Colo. App. 242, 244-45, 513 P.2d 458, 459 (1973).
The ALJ found that the respondent's vocational expert relied on work restrictions imposed by a certain physician in determining the claimant's impairment due to her ankle injury. The vocational expert opined that the 90 percent of the claimant's overall impairment was due to her migraine headaches and right upper extremity condition, and that only ten percent of her impairment was due to her left ankle injury. The ALJ credited the expert's apportionment opinion and found it was consistent with other evidence, such as the claimant's report of reduced pain levels and few restrictions for the claimant's ankle injury alone. The ALJ is vested with the broadest discretion in assessing the weight and sufficiency of the evidence. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo. App. 1985). We find no basis for disturbing the ALJ's apportionment of the claimant's permanent total disability as it pertains to the weight he afforded the opinion of the respondents' vocational expert.
IV.
According to the claimant, the ALJ applied an incorrect legal standard in apportioning 90 percent of the claimant's permanent total disability to conditions not related to the claimant's compensable ankle injury. The claimant asserts that the ALJ was required to make findings about the disabling effects of her non-industrial conditions prior to the time the claimant sustained her work-related injury, but failed to do so. We are not persuaded that the ALJ applied an apportionment standard contrary to case law or the governing statutes.
The claimant's work injury occurred on August 14, 1999. The applicable version of the apportionment statute, § 8-42-104(2)(a), C.R.S., provided as follows:
In cases of permanent total disability, when there is a previous disability, the percentage of the disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it exited at the time of the subsequent injury. In such cases awards shall be based on said computed percentage.
1999 Colo. Sess. Laws, ch. 141, pp. 410-11, § 8-42-104(2)(a).
As recognized by the claimant, in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the Supreme Court interpreted the statute as precluding any apportionment unless pre-existing medical impairment caused a "disability." In reaching this result, the court held that "medical impairment" cannot be equated to "disability." As authority, the court relied on the AMA Guides for the proposition that "impairment" relates to an alteration of an individual's health status as assessed by medical means, while "disability" pertains to a person's ability to meet "personal, social or occupational demands," and is assessed by non-medical means. In other words, "impairment" is a medical determination for physicians while "disability" is a non-medical determination to be made by an ALJ through application of the appropriate legal standard. See Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo. App. 1998). As the courts have held on numerous occasions, a "previous disability" exists if the condition impaired the claimant's ability to earn a wage in the same or other employment. See Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo. App. 1999); Mountain Meadows Nursing Center c. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999); Baldwin Construction Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo. App. 1997).
The ALJ applied the proper analysis when determining apportionment. The ALJ found that the claimant's headaches and upper extremity condition were independently disabling at the time of her ankle injury. The ALJ based his findings on the claimant's symptoms and limitations as shown by her social security disability application, and by corresponding medical evaluations imposing restrictions due to her headaches and right upper extremity problems. The ALJ made detailed factual findings concerning the disabling effects of the claimant's headaches and upper right extremity condition by the time of the claimant's ankle injury. Specific Findings of Fact, Conclusions of Law, and Order at 2-6, 12. The ALJ's apportionment of the claimant's permanent total disability benefits comports with the legal requirements for apportioning the claimant's permanent total disability.
The claimant also disputes the sufficiency of the findings to support the ALJ's apportionment, but we may not reevaluate the evidence. See Metro Moving Storage Co. v. Gussert, supra. The ALJ credited, among other portions of the record, the apportionment opinion of the respondents' vocational expert. Beil Depo. at 41-43, Depo. Exhibit 1. There is record support for the ALJ's findings.
V.
The claimant takes issue with the ALJ's determination of the method for calculating her permanent total disability payment, including the amount of her temporary total disability rate. However, the ALJ expressly declined to calculate the amount of the claimant's permanent total disability payment, and suggested the matter be set for hearing in the event the parties were unable to stipulate to the amount. It would therefore be premature for us to consider the payment rate for the claimant's permanent total disability benefits at this time.
IT IS THEREFORE ORDERED that the ALJ's order dated March 21, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ John D. Baird
___________________ Dona Rhodes KIMBERLY MAHANA, P.O. BOX 953, KREMMLING, CO, (Claimant), GRAND COUNTY, HOT SULPHUR SPRINGS, CO, (Employer), COUNTY WORKERS COMPENSATION POOL, Attn: SID HUST, C/O: COUNTY TECHNICAL SERVICES, DENVER, CO, (Insurer), THE BREWER LAW OFFICES PC, Attn: AMY L. BREWER, BRECKENRIDGE, CO,(For Claimant), DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS PC, Attn: GREGORY K. CHAMBERS, DENVER, CO, (For Respondents).
COUNTY TECHNICAL SERVICES, Attn: DEBBIE MCDERMOTT, DENVER, CO, (Other Party).