W.C. No. 4-250-485Industrial Claim Appeals Office.
May 30, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed his claim for permanent total disability benefits. We affirm.
The ALJ’s pertinent findings may be summarized as follows. The claimant injured his back and neck on February 6, 1995, while working as an equipment mechanic for the respondent. However, the claimant had pre-existing degenerative changes to the lumbar, thoracic and cervical areas of his spine with “moderate kyphosis” of the thoracic spine and cervical spondylosis. These degenerative changes were not aggravated or accelerated by the industrial injuries.
Following an examination on April 4, 1995, Dr. Cambe diagnosed the industrial injury as a “back strain.” Dr. Cambe reported that as of April 4 the claimant’s pain was localized in the “thoracolumbar junction with pain ascending to the cervical area.” However, Dr. Cambe noted that the claimant’s range of motion in the cervical, thoracic and lumbar areas of the spine were normal, with no neurologic deficits.
Dr. Primack diagnosed the industrial injury as a “strain/sprain” injury to the neck and thoracic spine. Dr. Primack also opined that the claimant’s cervical spondylosis was not related to the industrial injury.
On September 6, 1995, the claimant underwent an independent medical examination (IME) by Dr. McLaughlin. At the time of the examination, the claimant reported improvement in his neck. The claimant also reported occasional burning in the soles of both feet with prolonged walking, but denied any other symptomology in his legs and arms. Dr. McLaughlin diagnosed the claimant as suffering from chronic thoracolumbar discomfort, multi-level degenerative changes, thoracic kyphosis, severe chronic spondylosis. However, Dr. McLaughlin reported that neurological, muscular and sensory exams of the claimant’s spine were essentially normal and the claimant had no evidence of radiculopathy.
At a hearing on July 9, 1996, the claimant testified that he is unable to work due to pain in his neck and back. He also stated that he experiences numbness in his hands, headaches and sharp pain and numbness in his legs which make it difficult to stand. The ALJ also found that the claimant’s ability to work is limited by a blood disorder, partial blindness and hearing deficiencies, none of which are related to the industrial injury.
Based upon these findings the ALJ determined that “if the claimant is permanently totally disabled, the industrial injury has not been shown to be a significant factor in the permanent total disability.” Therefore, the ALJ determined that the claimant failed to sustain his burden to prove that he is permanently and totally disabled as a result of the industrial injury.
On review the claimant concedes that he was required to prove that the industrial disability is a “significant” factor in his permanent total disability. See Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986). In this context, the term “significant” requires the claimant to prove “a direct causal relationship” between the industrial injury and the resulting disability. Seifried v. Industrial Commission, 736 P.2d at 1263; 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).
Furthermore, the claimant does not dispute that the determination of whether he sustained his burden of proof was a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). However, the claimant contends that the “great weight of the evidence” establishes that the industrial injury is a significant factor in his permanent total disability. In support the claimant cites evidence which indicates that he continues to experience back pain as a result of the industrial injury, that he was not medically restricted from performing his regular employment until after the industrial injury, and that Dr. McLaughlin rated his medical impairment from the industrial injury as 13 percent of the whole person. Therefore, the claimant argues that the ALJ erred in finding that he failed to sustain his burden of proof. We disagree.
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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we must defer to the ALJ’s credibility determinations, and his assessment of the sufficiency and probative value of the evidence. Christie v. Coors Transportation Co., 919 P.2d 857
(Colo.App. 1995). Furthermore, where the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to determine the inference to be drawn. Christie v. Coors Transportation Co., supra.
Under the applicable law, permanent total disability is defined as the inability to earn any wages. Section 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.); McKinney v. Industrial Claim Appeals Office, 894 P.2d 42
(Colo.App. 1995). The claimant’s arguments notwithstanding, there is substantial evidence in the medical record to support the ALJ’s findings of fact. Furthermore, the ALJ’s findings support his determination that the industrial injury is not a significant factor in the claimant’s inability to earn any wages.
The claimant testified that his headaches are caused by neck pain. (Tr. p. 21). However, the ALJ credited Dr. McLaughlin’s opinion that the claimant’s cervical problems are unrelated to the industrial injury. Under these circumstances the ALJ could infer that insofar as the headaches disable the claimant from working, that disability is not causally related to the industrial injury.
Further, on May 23, 1996, Dr. Primack reported that the claimant’s thoracic spine injury had resolved. It follows that Dr. Primack’s opinion supports a conclusion that the industrial injury to the claimant’s thoracic spine is not the proximate cause of his inability to work.
Moreover, the claimant testified that his leg and hand problems only began four months before the July 1996 hearing. (Tr. pp. 14, 50, 51). Thus, the claimant’s testimony supports the ALJ’s inference that the claimant’s leg and arm problems are not the result of the industrial injury.
We also conclude that the evidence cited by the claimant does not compel a contrary result. Admittedly, Dr. Primack limited the claimant to sedentary employment and restricted the claimant from lifting over 15 pounds or sitting longer than sixty minutes at a time. Further, Dr. Bralliar recommended that the claimant avoid bending, stooping and climbing. However, the ALJ was persuaded by the testimony of vocational rehabilitation experts Daniel B. Best and Robert Schmidt, that there are jobs available to the claimant within these medical restrictions. Therefore, insofar as the industrial injury to the claimant’s lumbar spine has resulted in permanent medical impairment, the vocational evidence supports the ALJ’s implicit determination that the lumbar injury does not preclude the claimant from earning “any wages.”
Moreover, as we have previously held in a series of decisions, the special weight afforded to the IME physician’s medical impairment rating only applies to claims for “medical impairment benefits” under §8-42-107(8), C.R.S. (1996 Cum. Supp.). Chartier v. Stationers Distributing Co., Inc., W.C. No. 4-121-800, October 31, 1994 Gonzales-Rivera v. Beacon Hill Investments Inc., W.C. No. 4-124-250, September 27, 1994; Mestas v. Curtice Burns Meat Snacks, Inc., W.C. Nos. 4-000-190 4-159-948, May 24, 1994. It follows that Dr. McLaughlin’s medical impairment rating was not binding on the ALJ’s determination of whether the claimant is permanently totally disabled.
In any case, the existence of medical impairment from an industrial injury does not compel the conclusion that it was a significant factor in causing the claimant’s permanent total disability. Such medical impairment is only one of several factors to be considered in determining permanent total disability. See Christie v. Coors Transportation Co., supra; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 31, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial Claim AppealsOffice and all other parties, within twenty (20) days after the date thisOrder is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996Cum. Supp.).
Copies of this decision were mailed May 30, 1997 to the following parties:
Paul Dighero, 7635 Vance Dr., Arvada, CO 80003
Jefferson County, Attn: Sharon Floistad, 100 Jefferson County Parkway, Golden, CO 80419
Jefferson County, CDS of Colorado, Attn: Rillia Green, 6455 South Yosemite, Ste. 960, Denver, CO 80111
Jon C. Boesen, Esq., 501 S. Cherry St., Ste. 500, Denver, CO 80222 (For the Claimant)
Patricia H. Clisham, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondent)
BY: ___________________________