W.C. No. 4-590-717.Industrial Claim Appeals Office.
December 15, 2005.
FINAL ORDER
The respondents seek review of an order dated July 6, 2005 of Administrative Law Judge Jones (ALJ) that awarded permanent total disability benefits.
The ALJ’s pertinent findings of fact are as follows. The claimant, who is 50 years old, was employed as a potato sorter for 23 years. On February 15, 2003, she developed bilateral carpal tunnel as a result of her repetitive job duties, and she subsequently underwent surgical releases on both wrists. She reached maximum medical improvement (MMI) on April 26, 2004, with 12 percent permanent impairment of the upper extremities, which was equal to seven percent whole person impairment. Permanent lifting, carrying, pushing and pulling restrictions were imposed and she was restricted from performing repetitive work.
The employer attempted to accommodate the claimant’s restrictions by offering her a position in which she was required to hang empty potato bags and fold empty boxes. Because the job required repetitive use of the claimant’s wrists, she was unable to continue and she quit. She subsequently submitted 40 applications for employment in and around Center, Colorado, where she resided. On one occasion she was assigned by the job service center to a position picking up pinecones in Salida, and on another harvesting potatoes in Hooper; however, both jobs caused pain and discomfort and she was unable to continue either. The claimant was unable to obtain any other employment.
The ALJ also expressly credited the opinion of Lee White, a vocational rehabilitation expert who testified on behalf of the claimant. In light of the claimant’s education, commutable labor market, experience, and symptoms White opined that the claimant was unable to earn any wages. Based upon her factual findings, the ALJ concluded that the claimant was permanently and totally disabled.
On appeal the respondents contend that the ALJ’s determination that the claimant is permanently and totally disabled is not supported by substantial evidence in the record. In connection with this argument, the respondents also assert that the claimant’s condition has “completely resolved” and that her injury is not a significant causative factor in her disability. We are not persuaded that the ALJ committed reversible error.
Section 8-40-201(16.5)(a), C.R.S. 2005, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” The burden of proof to establish permanent total disability is on the claimant. In determining whether the claimant has sustained his burden of proof, the ALJ may consider those “human factors” that define the claimant as an individual. Christie v. Coors Transportation Co., 933 P.2d 1330
(Colo. 1997). These factors may include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
Because the issue of permanent total disability is factual, we must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. 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). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). The existence of evidence which, if credited, might support a determination to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28
(1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Although the claimant’s testimony is subject to conflicting inferences, she testified that despite her attempts to return to work following her injury, her hands hurt and she eventually required surgery, after which her doctor restricted her from doing her regular work. Tr. (1/7/05) at 19-20, 21. She further testified that she applied for numerous jobs in her hometown of Center, Colorado and was interviewed for three positions as a result, receiving no job offers. Tr. (1/7/05) at 26-28. At the time of the hearing the claimant’s pain had gotten progressively worse and her hands hurt “whatever [she] tried to do,” requiring her to soak them in water and wrap them in hot towels, then using a hot water bottle for “about two hours.” Tr. (1/7/05) at 29. She stated that she was unable to perform many routine household tasks such as preparing meals, vacuuming, dusting, laundry, and stated that she was unable to drive because of the pain in her hands. Tr. (1/7/05) at 30-32. Her testimony was that, despite more liberal medical restrictions from her treating doctors, she could not do “any lifting because [her] hands would hurt,” and that “anything that [she] did with [her] hands would cause [her] hands to hurt.” Tr. (1/7/05) at 35. When applying for jobs she told employers that “just moving [her] hands would make [her] hurt.” Tr. (1/7/05) at 36. She testified that, although she actually procured several jobs, such as picking up pine cones, she was unable to keep those positions because of the pain in her hands, which interfered with her job performance. Tr. (1/7/05) at 53, 54,58-59. And she was rejected for several jobs after explaining to the employer that she was unable to “do anything with [her] hands without them hurting.” Tr. (1/7/05) at 60.
The claimant also presented the testimony of Gregory Lee White, certified as an expert in vocational rehabilitation. White testified that, based upon the claimant’s commutable labor market and her past job experience, she was not “able to work.” Tr. (1/7/05) at 78. White explained that his opinion was largely based upon the claimant’s restriction from repetitive activity and the location of her residence, and when asked whether it was his opinion that she was permanently and totally disabled, he replied, “very much so.” Tr. (1/7/05) at 78-79, 81.
As noted, it is the ALJ’s sole prerogative to determine the weight and sufficiency of the evidence. The ALJ’s credibility determinations are binding unless rebutted by hard, certain evidence to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) ; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Therefore, we may not interfere with an ALJ’s credibility determinations except in extreme circumstances. Although, unquestionably, there is evidence from which the ALJ could have drawn contrary inferences, there are no extreme circumstances here which would warrant our disturbing the ALJ’s credibility determinations. She expressly credited the claimant’s testimony as persuasive and, in conjunction with that of the claimant’s vocational rehabilitation expert, there is ample support in the record for the ALJ’s findings. Those findings support the conclusion that the claimant is permanently totally disabled and we perceive no basis on which to interfere with the ALJ’s order.
We have also considered the respondents’ argument that the ALJ erred in relying on White’s expert testimony because his opinions “simply are not valid.” Respondents’ Brief at 9. The extent of White’s knowledge of, and reliance on, the medical restrictions as opposed to the claimant’s anecdotal reports of her symptoms and her perceptions of her own limitations is a matter for the ALJ to consider in weighing the evidence. Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968) (expert’s reliance on incomplete medical history goes to the weight not admissibility of opinion testimony). It is evident from the order that she did so, and the respondents’ argument provides no basis for relief on appeal.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 6, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Curt Kriksciun ____________________________________ Thomas Schrant
Marlene Arellano, Center, CO, Sandy Tonso, Canon Potato Company, Center CO, Legal Department, Pinnacol Assurance — Interagency Mail, Michelle L. LaForett, Esq. and Pepe J. Mendez, Esq., Denver, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).