IN RE ANDERS, W.C. No. 4-524-416 (2/23/2005)


IN THE MATTER OF THE CLAIM OF LEE ANDERS, Claimant, v. RAYTHEON TECHNICAL SERVICES, Employer, and LIBERTY MUTUAL INSURANCE CO., Insurer, Respondents.

W.C. No. 4-524-416.Industrial Claim Appeals Office.
February 23, 2005.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) insofar as it denies an increase in the average weekly wage (AWW) based on the employer’s provision of board and housing. The claimant also contends the ALJ erred in denying the claim for medical benefits for treatment of sleep apnea, and in denying the claim for permanent total disability benefits (PTD) without considering the effects of sleep apnea. We affirm.

The claimant was employed as a janitor at McMurdo Station in Antarctica. He was paid $350 per week and provided a room and meals.

The claimant suffered three separate falls in October 2001, and was diagnosed with a cyst at the L4/5 level. The cyst caused back pain and necessitated the claimant’s transfer to New Zealand where he underwent surgery for the cyst. During the claimant’s presence in New Zealand from November 5, 2001 to February 2002, he was given a $100 per diem by the employer.

The claimant returned to the United States and was placed at maximum medical improvement (MMI) and assigned a 15 percent impairment for the back condition. The claimant then underwent a Division-sponsored independent medical examination (DIME).

The DIME physician assigned a 23 percent impairment for the back, but declined to assign any impairment based on the claimant’s report of left shoulder pain. The DIME physician declined to relate the shoulder condition to the October 2001 injuries because the medical records do not show the claimant complained about his shoulder until approximately six months after the October 2001 injuries.

The claimant applied for a hearing and sought to increase the AWW to include the value of the meals and housing which he received while working in Antarctica. The claimant argued the value of these fringe benefits was $100 per day, based on the payments the employer made to the claimant while he was in New Zealand.

Although the claimant conceded he was at MMI he also sought an order requiring the respondents to pay for treatment of the left shoulder condition and aggravation of preexisting, but previously latent, sleep apnea. The claimant presented the testimony of Dr. Summerlin who opined, based on the history she received from the claimant, that the shoulder injury occurred in Antarctica. Further, Dr. Summerlin opined the left shoulder injury prevented the claimant from sleeping on his side, which caused him to experience symptoms of sleep apnea.

Concerning the AWW, the ALJ found “no evidence” was presented regarding the value of room and board in Antarctica, nor any evidence that an Antarctic market exists for these benefits. Further, the ALJ found there was “no evidence” that the room and board “provided to the Claimant had any extraordinary value to Claimant or the general public.” Consequently, the ALJ concluded that “no evidence exists that there is a `reasonable value’ or any `value’ at all to Claimant for the room and board provided.” (Finding of Fact 12; Conclusion of Law 8).

The ALJ also denied the claim for medical and PTD benefits. In support, the ALJ found the “preponderance of the evidence” establishes that the claimant’s left shoulder condition is not related to the industrial injuries, and in any event it does not contribute to his “asserted inability to work.” Instead, the ALJ credited the opinions of the respondents’ vocational expert that, considering the results of the functional capacities examination, the claimant is not permanently and totally disabled.

I.
On review, the claimant first contends the evidence does not support the ALJ’s failure to include the value of room and board in the claimant’s AWW. Essentially, the claimant argues the evidence concerning the $100 per diem paid to the claimant while in New Zealand constitutes some evidence concerning the value of room and board in Antarctica. Further, the claimant also contends that he was denied due process because he was not given a fair opportunity to present evidence to counter the respondents’ argument that there is no market value for rooms in Antarctica. The claimant asserts that he could have presented such evidence had he known the respondents would make this argument in their post-hearing position statement. We are not persuaded.

Section 8-40-201(19)(b), C.R.S. 2004, provides that the term “wages” shall include the “reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case.” The “reasonable value” of housing and board “is a question of fact and will vary depending on the multitude of circumstances which may affect the possible costs of the benefits to the employer or to the employee.”Western Cultural Resource Management, Inc. v. Krull, 782 P.2d 870
(Colo.App. 1989). Of course, the claimant bears the burden of proof to establish the right to include board and housing in the AWW, and to provide a factual basis for determining the value of these fringe benefits. Section 8-43-201, C.R.S. 2004; Lutz v. Industrial Claim Appeals Office, 24 P.3d 29, 31 (Colo.App. 2000).

Because the value assigned to fringe benefits is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and 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). It is true the ALJ’s finding that there is “no evidence” to support a factual proposition may not be converted to a finding that there is no “credible evidence” to support it. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132, 1133 (Colo.App. 1988). However, it is also true the ALJ need not make findings concerning every piece of evidence and every possible inference provided the basis of the order is apparent from the findings and conclusions which are entered. As the ALJ expressly noted in the order, evidence not specifically addressed is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).

Here, we understand the ALJ to have found the claimant failed to present any direct evidence there is an established market value for food or housing in Antarctica. Indeed, we agree with the ALJ that there is “no evidence” concerning a market value to the claimant or employer of these items on the continent of Antarctica. Moreover, we are satisfied the ALJ was not persuaded by the claimant’s argument that the $100 per diem paid to the claimant while he was in New Zealand represents a credible and persuasive basis for determining the value of rooms and food in Antarctica. Indeed, the ALJ recognized this argument in Finding of Fact 11, but states he was persuaded by the arguments contained in the respondents’ position statement. One such argument was that: “New Zealand is a market society featuring demand and supply forces for both lodging and food, it cannot be compared to Antarctica which is a completely artificial society made up exclusively of Raytheon employees.” (Conclusion of Law 8, Respondents’ Position Statement p. 6). The respondents’ argument and the ALJ’s adoption of it represents a plausible interpretation of the evidence and we may not substitute our judgment for that of the ALJ concerning the weight of the evidence. Wilson v. Industrial Claim Appeals Office, supra.

We disagree that the claimant was denied due process based on the ALJ’s adoption of arguments contained in the respondents’ position statement. As noted, the claimant had the burden of proof to establish the value of the fringe benefits in order to have them included in the AWW. Although there might be different methods of proving such value, the claimant elected to rely on the per diem he received in New Zealand as the standard of valuation. The respondents’ position statement merely makes arguments concerning the reliability of the claimant’s evidence, its probative force, and the absence of evidence supporting alternative methods of valuation. The claimant was afforded a full opportunity to produce whatever evidence he desired, and make argument concerning the inferences to be drawn from that evidence. The fact the respondents argued for different factual inferences based on the same evidence does not rise to the level of a due process violation. Cf. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (respondents did not waive argument that PTD was not caused by the injury by failing to raise the argument as an affirmative defense because claimant had burden of proof to establish causation, and sufficiency of the evidence on causation was necessarily before ALJ).

II.
The claimant next contends the ALJ erred by failing to address the claimant’s sleep apnea problem. Specifically, the claimant contends the findings are not sufficient to support appellate review because the ALJ made no findings concerning Dr. Summerlin’s opinion that the sleep apnea was caused by the claimant’s inability to sleep on his side, which in turn was caused by the alleged shoulder injury. We perceive no error.

The ALJ found by a preponderance of the evidence that the left shoulder injury was not caused by any work-related injury. (Conclusion of Law 4). In support, the ALJ relied on the “credible and persuasive opinions” of the DIME physician that the shoulder condition can’t be causally connected to the industrial injury. Implicit in the ALJ’s decision to credit the opinion of the DIME physician is the conclusion that Dr. Summerlin’s conflicting opinion concerning causation was not persuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra (we may consider findings necessarily implied by the order). Because the ALJ implicitly rejected Dr. Summerlin’s opinion that the industrial injury caused the shoulder injury, the ALJ necessarily rejected Dr. Summerlin’s opinion that the industrial injury caused or aggravated the sleep apnea.

Similarly, we infer the ALJ rejected Summerlin’s testimony insofar as it may be construed as evidence that the sleep apnea represents a part of the claimant’s overall physical condition which, in light of the industrial injury, renders the claimant PTD. Dr. Summerlin admitted the claimant is being successfully treated with a CPAP machine. The ALJ credited the restrictions established by the functional capacity evaluation and the opinion of the respondents’ vocational expert that, in light of these restrictions (which do not include sleep apnea) the claimant is able to work. These findings indicate the basis of the order and we conclude the ALJ considered but rejected Dr. Summerlin’s testimony.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 30, 2004, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain
______________________________ Kathy E. Dean

Lee Anders, Scottsbluff, NE, Raytheon Technical Services, Englewood, CO, Christina Greenwood, Liberty Mutual Insurance Company, Irving, TX, Pepe J. Mendez, Esq., Denver, CO, (For Claimant).

David G. Kroll, Esq., Denver, CO, (For Respondents).