W.C. No. 4-198-272Industrial Claim Appeals Office.
July 18, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied her claim for permanent total disability benefits. The claimant argues the ALJ gave insufficient weight to medical restrictions imposed by the treating physician, disregarded the legal effect of the respondents’ admission for permanent partial disability benefits, and improperly credited opinions of medical experts which were predicated on assumptions inconsistent with the actual facts of the case. We affirm.
This case has a complex procedural history. We review that portion of the history which is pertinent to the issues before us. The ALJ found that on January 7, 1994, the claimant sustained an injury to her right upper extremity and lumbar spine while sorting onions. Apparently, the injury was in the nature of an occupational disease because the ALJ found there was “no single, identifiable traumatic injury.”
On November 7, 1994, the claimant’s treating physician placed the claimant at maximum medical improvement (MMI) with a 26 percent whole person impairment based on injury to the right upper extremity and lumbar spine. The treating physician also imposed substantial work restrictions which limited the claimant to the “sub-sedentary level of employment.” Based on these restrictions, the claimant’s vocational expert opined the claimant is unable to earn any wages.
In June 1997, the respondents filed a final admission of liability which admitted an injury date of January 7, 1994, and admitted for permanent partial disability benefits based on medical impairment of 26 percent of the whole person. The claimant contested this admission on grounds that she was suffering from an injury-related psychological impairment, and because she claimed entitlement to permanent total disability benefits. The claimant then underwent a Division-sponsored independent medical examination (DIME) on the issue of permanent psychological impairment. On October 9, 1999, the DIME physician diagnosed the claimant as suffering from a “pain disorder associated with psychological factors,” and opined the claimant’s “alleged work injury” was unlikely to have caused the level of “dysfunction and pain that this individual is presenting.” The DIME physician also stated he did not believe the claimant’s psychiatric complaints “are related to injury, since I am not convinced that she was injured in the workplace.” The DIME physician assessed a zero percent psychological impairment.
The claimant also underwent an IME performed by Dr. Entin, a psychiatrist selected by the respondents. Dr. Entin opined the claimant is suffering from a pain disorder caused by personal psychological stressors unrelated to the industrial injury. Thus, Dr. Entin related the claimant’s incapacity and substantial limitations to a non-industrial psychological condition.
The ALJ found that, although the respondents admitted for a 26 percent whole person “physical impairment,” the claimant maintained the burden of proof to establish that she lacked the ability to earn any wages as a result the industrial injury. Resolving conflicts in the evidence and crediting the opinion of Dr. Entin, the ALJ found the claimant’s “physical incapacity, if any, is due to her current psychiatric condition, which is non-work-related.” Thus, the ALJ concluded the claimant failed to meet her burden of proof to establish entitlement to permanent total disability benefits.
On review, the claimant contends the ALJ’s denial of permanent total disability benefits was erroneous because the ALJ “disregarded” the medical restrictions imposed by the treating physician. In support of this position, the claimant asserts the ALJ erred in relying on Dr. Entin’s testimony and reports because Dr. Entin based his opinion on the incorrect assumption that the claimant did not sustain any work-related injury. The claimant reasons Dr. Entin’s opinion is contrary to the respondents’ own admission that the claimant sustained a compensable injury on January 7, 1994, and that this injury resulted in a 26 percent whole person medical impairment. We disagree with these arguments.
The claimant is permanently and totally disabled if she is “unable to earn any wages in the same or other employment.” The claimant bears the burden of proof to establish permanent total disability. Section 8-40-201(16.5)(a), C.R.S. 2000. In determining whether permanent total disability exists, the ALJ must consider the residual effects of the industrial injury in light of the claimant’s personal circumstances, including the claimant’s education, ability, and former employment. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.d. 701 (Colo. A.P. 1999). The crux of the test is whether employment exists which is reasonably available to the claimant given his or her circumstances. Weld County School District RE-12 v. Bymer, 955 P.d. 550 (Colo. 1998). The determination of whether the claimant has proven permanent total disability is one of fact for the ALJ. Weld County School District RE-12 v. Bymer, supra.
Further, the claimant must show that the industrial injury is a “significant causative factor” in the permanent total disability Seifried v. Industrial Commission, 736 P.d. 1262 (Colo. A.P. . 1986). This question is also one of fact for determination by the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo. A.P. . 2001).
Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record Weld County School District RE-12 v. Bymer, supra.
As the claimant argues, the opinion of a medical expert based on assumed facts at variance with the actual facts of the case does not constitute substantial evidence. High v. Industrial Commission, 638 P.d. 818 (Colo.App. 1981). However, we disagree with the claimant that the probative value of Dr. Entin’s opinion was entirely dependent on the incorrect assumption the claimant did not sustain any work-related injury. Rather, the ALJ could plausibly interpret Dr. Entin’s opinion to be that, even if the claimant sustained an industrial injury in January 1994, the injury cannot explain the severe physical limitations which the claimant currently experiences. Indeed, Dr. Entin testified that, “even if there was some type of strain, or something like that, its not medically probable that, here, six years later, she would have total body complaints.” (Tr. at 76). After reviewing the claimant’s medical history, including evidence related to the diagnosis and treatment of the industrial injury, Dr. Entin opined the claimant’s limitations are attributable to a non-industrial psychological condition. Thus, Dr. Entin’s opinion constitutes substantial evidence in support of the ALJ’s conclusion the claimant failed to prove the industrial injury is a “significant causative factor” in the alleged permanent total disability. Siefried v. Industrial Commission, supra.
Insofar as the ALJ relied on the DIME physician’s opinion, we understand that reliance was for the purpose of corroborating Dr. Entin’s diagnosis and reasoning. Thus, even if the DIME physician erroneously believed there was no compensable injury, that belief did not prevent the ALJ from relying on the DIME physician’s opinion insofar as it tends to corroborate Dr. Entin’s analysis. (See Conclusion of Law 7).
Neither was the ALJ required to conclude that because the respondents admitted liability for medical impairment benefits the claimant’s alleged “physical restrictions” were caused by the injury. It is generally true that once liability is admitted, payments must continue according to the admission until such time as the respondents are permitted to withdraw the admission. See Pacesetter Corp. v. Collett, ___ P.3d ___ (Colo.App. No. 00CA2099, May 10, 2001). Under the statutory scheme medical impairment is initially determined by the treating physician in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Section 8-42-107(8)(c), C.R.S. 2000. The AMA Guides define medical impairment as the “alteration of an individual’s health status that is assessed by medical means.” Medical impairment is distinguished from “disability,” which represents “an alteration of an individual’s capacity to meet personal, social, or occupational demands,” and is assessed by nonmedical means. Further, an individual who is “impaired” is not necessarily “disabled.” Askew v. Industrial Claim Appeals Office,
927 P.d. 1333 (Colo. 1996). Because permanent total disability depends on proof that the claimant has been rendered unable to earn wages in any employment, permanent total disability is a “disability”concept, not an “impairment” concept.
It follows the respondents’ willingness to admit the claimant sustained permanent medical impairment under the AMA Guides does not amount to an admission the impairment resulted in any disabling restrictions, or that any alleged physical limitations are the result of the admitted medical impairment. To the contrary, determining whether the admitted injury and resulting medical impairment caused disabling physical limitations, and ultimately permanent total disability, remain questions of fact for the ALJ. Weld County School District RE-12 v. Bymer, supra. The ALJ resolved these questions adversely to the claimant, and we conclude this resolution is supported by substantial evidence in the record. Further, because the issue is factual, the ALJ was not required to credit the treating physician’s opinion concerning the cause of the claimant’s disability.
We note the respondents’ brief addresses the question of whether the claimant overcame the DIME physician’s zero percent psychiatric impairment rating by clear and convincing evidence. However, as we read the claimant’s brief, that issue has not been raised on appeal. Indeed, the claimant’s brief explicitly states the claimant “filed a petition to review the denial of permanent total disability benefits.” (Claimant’s Brief at p. 2).
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 23, 2000, 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. 2000. 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 July 18, 2001 to the following parties:
Matilde Almodovar, 27650 Frontage Road #14, La Junta, CO 81050
Suzy M. Kamps, Resource Management Systems, Inc., 7447 E. Berry Ave., #200, Greenwood Village, CO 80111
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Steven J. Picardi, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent)
BY: A. Pendroy