W.C. No. 4-205-537Industrial Claim Appeals Office.
March 3, 1999.
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Stuber (ALJ), which awarded the claimant permanent total disability benefits. The respondent argues that the award is unsupported by the evidence, that the claimant is barred from receiving permanent total disability benefits because he refused an offer of employment, and that the ALJ improperly admitted a late vocational report and the testimony of a vocational expert. We affirm.
The ALJ found that the claimant sustained two separate industrial injuries while employed by the respondent as a mechanic. In October 1991 the claimant injured his left shoulder. In February 1994 the claimant sustained a “degloving injury” when his right hand was caught in a conveyor belt. By August 16, 1996, the claimant reached maximum medical improvement (MMI) for both injuries. On August 30, 1996, Dr. Kleen assigned a fifty-five percent whole person impairment rating as a result of the combined injuries.
In May 1995 the respondent offered the claimant an opportunity to return to work advising other technicians. However, the ALJ found that the claimant “left after a few days due to his frustration and his desire to spend time with his family.” In February 1997, the respondent offered the claimant another job as a parts clerk. Dr. Kleen opined that the claimant was not physically capable of performing this work in view of restrictions established by a March 1997 functional capacities evaluation.
The ALJ credited Dr. Kleen’s opinion that the claimant is unable to perform the job offered in February 1997, and is so functionally impaired that he is unable to perform any work. Consequently, the ALJ awarded permanent total disability benefits. The ALJ also concluded the respondent failed to prove that the claimant refused an offer of employment within the meaning of §8-42-111 (3), C.R.S. 1998. In so doing, the ALJ stated that the claimant’s “1995 resignation from work is irrelevant” because the claimant had not reached MMI when the job was offered.
I.
On review, the respondent contends the ALJ erred in finding that the claimant’s decision to leave work in 1995 was “irrelevant.” The respondent argues that the evidence proves the claimant “voluntarily retired,” and therefore, his subsequent wage loss was not caused by his injuries. The respondent cites PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), as support for this proposition. We are not persuaded.
The claimant is entitled to permanent total disability benefits if, as a result of the injury, he is unable to earn wages in any employment. Section 8-40-201 (16.5) (a), C.R.S. 1998. Permanent total disability benefits are payable for the claimant’s lifetime. Industrial Claim Appeals Office v. Romero, 912 P.2d 62
(Colo. 1996). As such, they compensate for the claimant’s complete loss of earning capacity due to the claimant’s inability to return to the work force. See Culver v. Ace Electric, ___ P.2d ___ (Sup.Ct. No. 97SC891, January 19, 1999).
The claimant’s eligibility for permanent total disability benefits is not determinable until the claimant reaches MMI Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). This is true because the claimant’s condition does not become stable, and the permanent restrictions cannot be established, until the claimant attains MMI. Section 8-40-201(11.5), C.R.S. 1998.
It follows that we agree with the ALJ’s conclusion that the claimant’s alleged “voluntary retirement” in 1995 is not relevant in determining the cause of the claimant’s permanent total disability in 1996. Whatever the claimant’s intentions were in 1995, the issue in the case is whether the claimant was permanently and totally precluded from earning any wages when he attained MMI in 1996. In this sense, the claimant’s actions in 1995 cannot be seen as an “intervening cause” of the claimant’s subsequent, permanent and total wage loss. Further, permanent total disability benefits are payable for the claimant’s loss o capacity to earn wages in the future, and his election to withdraw from the labor market at a particular point in the past
is not determinative of whether he has lost the ability to earn wages in the future.
Moreover, the statute does not contemplate any inherent conflict between retirement and permanent total disability benefits. To the contrary, the statute provides for offset of social security and employer paid retirement benefits against awards of permanent total disability benefits. Section 8-42-103(1)(c)(II), C.R.S. 1998; Culver v. Ace Electric, supra. PDM Molding, Inc. v. Stanberg, supra, and the other cases cited by the respondent are not pertinent because they concern awards of temporary disability benefits. Consequently, the claimant’s “voluntary” decision to leave work before MMI did not preclude the ALJ from awarding permanent total disability benefits.
II.
Respondent next contends that the ALJ’s award of permanent total disability benefits is not supported by the evidence. The respondent argues that the functional capacities evaluations, the opinion of Dr. Kleen, and the opinion of the claimant’s vocational expert, are all predicated on the false assumption that the claimant had a tear of the left rotator cuff. The respondent asserts that because the claimant did not have a tear of the rotator cuff the ALJ’s order must be set aside as speculation. We disagree.
The ALJ’s findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Here, the ALJ expressly found that the claimant’s ultimate diagnosis was “chronic rotator tendinitis and impingement syndrome” of the left upper extremity. (Finding of Fact 5). This finding is a plausible inference drawn from Dr. Failinger’s December 23, 1997, report and testimony, and a December 16, 1997, report of Dr. Kleen. Recognizing this diagnosis, Dr. Kleen opined that the functional capacities evaluations establish the true extent of the claimant’s physical limitations. Although there is some evidence from which the ALJ might have found that the functional capacities evaluations were based on an incorrect diagnosis, and therefore reflected excessive restrictions, the ALJ was not required to credit this evidence.
The respondent’s remaining arguments concerning the sufficiency of the evidence are factual in nature. Our review of the record indicates that the ALJ’s findings are supported by the evidence, and there was no error in the ALJ’s refusal to adopt the respondent’s interpretation of the record.
III.
The respondent next contends that the ALJ erred in finding that the claimant did not refuse an offer to return to work in 1997. In light of this alleged refusal, the respondent asserts that the claimant is barred from receiving permanent total disability benefits under § 8-42-111(3). We disagree.
The question of whether an employer has made a bona fide
offer of employment under this statute is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). We previously noted that an offer of employment is not “bona fide” if the job duties exceed the claimant’s physical capacities. Jones v. S B Stagelines, Inc., W.C. No. 4-209-265 (May 7, 1997).
Here, the record contains Dr. Kleen’s opinion that the claimant was not able to perform the proffered employment because it exceeded the restrictions established by the functional capacities evaluations. Although Dr. Kleen’s opinion was vigorously disputed, we may not substitute our judgment for that of the ALJ concerning the credibility of this expert testimony. Thus, there was no error.
IV.
The respondent’s remaining arguments concern the admission of evidence and testimony. The respondent first argues that the ALJ erred in admitting the results of Pat McKenna’s functional capacities evaluation, which was attached to Dr. Kleen’s report of December 11, 1997. We find no error.
Rule of Procedure VIII (I) (1), 7 Code Colo. Reg., 1101-3 at 26, provides that medical reports should be provided to opposing counsel 20 days prior to the hearing “absent a showing of good cause.” The ALJ is vested with wide discretion in determining whether a party has shown good cause, and we will not interfere with his decision to admit evidence unless an abuse of discretion shown. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). One factor which the ALJ may consider in deciding if there is good cause is whether the evidence could be outcome determinative. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
Here, the ALJ permitted the introduction of the McKenna evaluation because the claimant was surprised by a change of opinion by of one of the treating physicians. Because the physician changed his opinion shortly before the first hearing, the ALJ permitted the claimant to obtain and introduce a report from Dr. Kleen as a means of rebutting the new evidence. Dr. Kleen advised claimant’s counsel that in order to render an updated opinion it would be necessary to obtain an additional functional capacities evaluation. Under these circumstances, the ALJ did not abuse his discretion in concluding that the results of the functional capacities evaluation should be admitted as an adjunct of Dr. Kleen’s report. This is particularly true since the ALJ found that Dr. Kleen’s opinion is determinative of the issues. The respondent was afforded ample opportunity to challenge and rebut the McKenna report, and attempted to do so.
Neither do we perceive any error in the ALJ’s decision to admit the “rebuttal” testimony of vocational expert Varga. The ALJ has authority to alter the order of proof when circumstances warrant. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. Further, the ALJ has the authority to grant continuances for the purpose of taking additional evidence. Section 8-43-207(1)(j), C.R.S. 1998.
The ALJ altered the ordinary order of proof due to the unusual procedural course of the case, and Varga’s deposition was taken after the conclusion of the hearing. However, the respondent was afforded ample opportunity to cross-examine Varga and was allowed to present rebuttal testimony from its vocational expert. Under these circumstances, we perceive no abuse of discretion.
We would not reach another conclusion even if the claimant failed to make full disclosure of Varga’s opinions in response to be respondent’s request for discovery. Section 8-43-207(1) (e), C.R.S. 1998, provides that an ALJ may “impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery.” C.R.C.P. 37 permits a judge to impose various sanctions and to make such orders as are just. Here, the ALJ afforded the respondent ample opportunity to confront and rebut the Varga’s testimony, and we cannot say he erred by failing to impose more rigorous sanctions for the alleged violation.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 28, 1998, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 03, 1999
to the following parties:
Dick Andrews, 195 Flint Way, Broomfield, CO 80020
Carol Mielke, Jackson Ice Cream, 400 Yuma, Denver, CO 80204-4820
Renee Halliburton/Marc Gallegos, King Soopers, P.O. Box 5567, TA, Denver, CO 80217
David W. Doyle, Esq., 4465 Kipling St., Wheat Ridge, CO 80033 (For Claimant)
Scott A. McGath, Esq., Brandon P. Hull, Esq., 1675 Broadway, Suite 2350, Denver, CO 80202 (For Respondents)
BY: _______________