W.C. No. 4-011-091Industrial Claim Appeals Office.
June 16, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) which reopened the claim based on an improved condition, and determined the claimant is no longer entitled to permanent total disability benefits. The claimant contends the respondents failed to demonstrate a change of condition sufficient to warrant reopening, and that the evidence does not support the ALJ’s findings of fact. We affirm.
In February 1991 the claimant sustained a compensable injury to his spinal cord. As result of this injury, the claimant was rendered a paraplegic and is permanently confined to a wheelchair.
In August 1994 the respondents filed a final admission of liability for permanent total disability benefits. In 1999 the respondents sought to reopen the claim arguing, among other things, that the claimant’s psychological condition had improved and he was no longer permanently and totally disabled. At the commencement of the hearing counsel for the respondents stated that the final admission for permanent total disability benefits was predicated on former § 8-42-111(2), which provides that loss of both legs creates a presumption of “total and permanent disability.” (Tr. July 27, 1999, pp. 6-7).
The claimant testified that, even before the 1994 final admission, he suffered from fear and anxiety concerning his future. Although the claimant stated that he was still fearful and anxious at the time of the 1999 hearing, he also admitted that he previously testified that the fear and anxiety were improving “up to the present date.” (Tr. July 27, 1999, pp. 19-20).
Commencing in 1995 the claimant began to acquire computer skills and knowledge of the Americans with Disabilities Act (ADA). This knowledge allowed the claimant to develop a consulting business in which he surveys buildings for compliance with the ADA and teaches classes about the ADA. The claimant also performs various volunteer activities which include answering phones, sales work, billing, and bookkeeping. The respondents’ vocational expert opined that these activities are indicative of the claimant’s “access to several employment options in well known branches of the labor market.” (Tr. July 27, 1999, p. 99).
The ALJ found that in 1994 the claimant suffered from fear and anxiety as result of the injury. However, the ALJ determined that the claimant’s “mental state has improved to the extent that he became motivated to become educated and self-taught in many aspects of computer operation and has led a full life engaged in both business and volunteer activities.” Under these circumstances, the ALJ reopened the claim based on a change of condition, and found the claimant is no longer entitled to permanent total disability benefits because he is regularly employable in well-known branches of the labor market.
I.
On review, the claimant first contends the ALJ erred in reopening the claim based on a change of condition. The claimant argues that a change of condition must be a change in a condition which affects the claimant’s ability to earn wages. In this case, the claimant asserts the respondents’ admission for permanent total disability was predicated on the statutory presumption that loss of both legs results in permanent total disability. Therefore, the claimant reasons that a change in the claimant’ mental condition does not show a change in any condition which resulted in the admission for permanent total disability benefits. We are not persuaded.
Pursuant to § 8-43-303(2)(a), C.R.S. 1999, an award of permanent disability benefits may be reopened, and benefits previously ordered may be ended, diminished, maintained, or increased, based on a showing of “change in condition.” A “change in condition” refers to a change in a physical or mental condition which can be causally connected to the original compensable injury. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987); Chavez v. Industrial Commission, 714 P.2d 1328, 1330
(Colo.App. 1985).
The decision to reopen is committed to the sound discretion of the ALJ, and we may not interfere unless there is a showing of fraud or clear abuse of discretion. Richards v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0593, January 20, 2000); Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Evaluation of the claimant’s first argument requires an examination of the statutes and case law governing awards of permanent total disability benefits prior to the enactment of SB-218. See 1991 Colo. Sess. Laws, ch. 219 at 1293, 1313, 1342 (enacting statutory definition of permanent total disability and repealing § 8-42-111(2), for injuries on or after July 1, 1991). Under the law applicable to this claim, permanent total disability exists if the claimant has not retained, and will not regain, efficiency in some substantial degree as a working unit in the fields of general employment. Weld County School District RE-12 v. Bymer, 955 P.2d 550, 553 (Colo. 1998); Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). When applying this standard, the ALJ must consider the mental and physical effects of the industrial injury in the context of the claimant’s human factors including the claimant’s general physical condition, mental ability, age, employment history, education, and the availability of work which claimant can perform. Weld County School District RE 12 v. Bymer, supra. The standard certainly incorporates the ALJ’s right to consider the psychiatric consequences of an industrial injury, including the effects of fear and anxiety. National Lumber and Creosoting Co. v. Kelly, 101 Colo. 535, 75 P.2d 144 (1938).
As a general matter, the claimant bears the burden of proof to establish a right to permanent total disability benefits. See City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985) (claimant in workers’ compensation case has the burden of proving entitlement to benefits by a preponderance of the evidence). However, in certain cases, the claimant is aided in proving permanent total disability by the operation of § 8-42-111(2). That statute provides as follows:
The loss of both hands or both arms or both feet or both legs or both eyes or any two thereof, by injury in or resulting from the same injury or occupational disease, shall create a presumption which may be rebutted by competent contrary evidence of total and permanent disability to be compensated according to the provisions of this section; except that were the disability comes under this section and where the employer or the division obtains suitable employment for such disabled person which the person can perform and which in all cases is subject to the sole approval of the director, the disabilities set out in this subsection (2) shall not constitute total disability during the continuance of the director’s approval of said employment but shall constitute such partial disability as may be determined by the director after a finding of the facts.
Section 8-42-111(2) creates a rebuttable presumption that a claimant who has lost both legs is permanently and totally disabled. The effect of this statutory presumption is to shift to the respondents the burden of going forward with evidence that loss of both legs has not substantially deprived the claimant of efficiency in the fields of general employment. However, the presumption does not alter the burden of proof, which remains with the claimant. See § 8-43-210, C.R.S. 1999 (Colorado Rules of Evidence apply in workers’ compensation cases); CRE 301; Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 204-205 (Colo. 1992).
In view of these principles, we reject the claimant’s assertion that the respondents’ final admission of liability was predicated solely on the claimant’s physical impairment represented by the loss of both legs. Rather, the claimant’s loss of both legs created an evidentiary presumption of permanent total disability, and the respondents were entitled to go forward with evidence to rebut the presumption. In determining whether to admit liability for permanent total disability benefits or attempt to rebut the presumption, the respondents presumably considered the test for permanent total disability and evaluated the evidence concerning the physical and mental effects of the injury in light of the claimant’s human factors. Having conducted this evaluation, the respondents apparently decided they lacked evidence from which it could be inferred the claimant retained efficiency in fields of general employment and, therefore, admitted for permanent total disability benefits. The critical point is that the final admission was not based solely on the claimant’s physical impairment, but on consideration of the totality of the circumstances, including the claimant’s mental condition, relevant to a finding of permanent total disability.
It follows that, to the extent the evidence supports a finding the claimant’s psychological condition was related to the injury, any improvement in the claimant’s psychological condition would constitute a “change in condition” for purposes of reopening under § 8-43-303. This is true because the claimant’s psychological condition was a factor relevant to the respondents’ decision to admit for permanent total disability rather than attempt to rebut the statutory presumption. Therefore, the ALJ did not abuse his discretion because his decision was in accord with applicable law.
II.
The claimant’s next contention is that the respondents’ failure to offer employment or vocational rehabilitation, after the admission for permanent total disability benefits, precludes a reopening. The claimant argues that §§ 8-42-111(2) and (3) condition reopening on an offer of employment or vocational rehabilitation. We reject this argument.
The reopening provisions of § 8-43-303 are indicative of a strong legislative policy favoring fairness and just results over principles of finality. Thus, an award is final only to the extent that it has not been reopened under the applicable statutory criteria. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Moreover, the purpose of reopening a claim based on a change in condition is to permit an equitable adjustment of benefits based on the changed circumstances. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
The claimant’s argument notwithstanding, §§ 8-42-111(2) and (3) do not conflict with the reopening statute, and need not be reconciled with it. Rather, §§ 8-42-111(2) and (3) create affirmative defenses to claims for permanent total disability. Indeed § 8-42-111(2) expressly states that the provision of suitable employment constitutes an “exception” to total disability during the continuance of the employment. Thus, the respondents may present evidence of an offer of vocational rehabilitation or the provision of employment to defeat a claim for permanent total disability benefits where the claimant has otherwise met his burden to prove permanent total disability. Industrial Commission v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966); Remek v. Adams County School District 50, W.C. No. 3-938-393 (September 3, 1993).
Sections 8-42-111(2) and (3) do not explicitly or implicitly create any obligation to offer vocational rehabilitation or employment, nor do they operate as an impediment to the respondents’ right to reopen based on an improved condition. Rather, the statutes provide potential affirmative defenses if the evidence establishes the claimant remains permanently and totally disabled despite improvement in his condition. These circumstances are not present in this case, and the ALJ did not abuse his discretion in interpreting the statutes.
III.
The claimant next contends the record contains no evidence that he suffered from a psychological condition which improved so as to support the ALJ’s finding of a change in condition. Indeed, the claimant argues that all of the evidence in the record, including his testimony and the report of Dr. Ginsberg dated July 3, 1995, shows that the claimant’s mental condition deteriorated after the final admission. We disagree.
The question of whether the claimant proved a worsening of condition causally related to the industrial injury is generally one of fact for determination by the ALJ. See Chavez v. Industrial Commission, supra. Thus, we must hold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. When applying this standard of review, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We specifically note that the ALJ is free to resolve inconsistencies in the testimony of a particular witness. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
The claimant admitted he was fearful and anxious about his future prior to the filing of the final admission. At the hearing he testified that he remained fearful, and this condition had improved “just a little” if at all. However, the claimant also admitted that he previously stated, in his deposition, that his psychological condition was improving up to the present time. The ALJ resolved the inconsistencies in the claimant’s statements and found the claimant suffered from fear and anxiety at the time of the final admission, but that these conditions improved beginning in 1995. This conclusion was corroborated by evidence of the claimant’s increasing level of economic and social activity commencing in 1995.
Moreover, the respondents’ vocational expert opined that it is logical for a disabled claimant to experience higher levels of anxiety shortly after an injury, but experience a lessening of anxiety with the passage of time. Further, the expert stated that the medical evidence which she reviewed supports the conclusion that the claimant was dealing with psychological problems in March 1995. (Tr. July 27, 1999, p. 80). Moreover, a plausible interpretation of Dr. Ginsberg’s July 3, 1995, report, was that the claimant’s psychological condition was improving. Dr. Ginsberg reported the claimant was “focusing on the interaction of his personality characteristics and his goal of achieving a full life given the spinal cord injury.” Dr. Ginsberg stated that the claimant was “making significant progress on this goal.”
Under the circumstances, the record contains substantial evidence to support the ALJ’s determination that the claimant’s psychological condition existed in 1994, and improved over time. The mere existence of contrary evidence and conflicting inferences does not support relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Consequently, the ALJ did not abuse his discretion in granting the petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 6, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain ____________________________________ Robert M. Socolofsky
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 June 16, 2000
to the following parties:
Robert E. Alexander, 4294 W. 111th Circle, Westminster, CO 80031
Friedly, Inc., 2842 Lost Lake Trail, Franktown, CO 80116-9640
Laurie A. Schoder, Esq., and Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Dawn M. Yager, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Pendroy