W.C. No. 4-127-345Industrial Claim Appeals Office.
November 19, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant permanent total disability benefits. We affirm.
The ALJ found that, in March 1992, the claimant sustained a back injury arising out of and in the course of her employment as a cook. One of the claimant’s treating physicians, Dr. Tyler, placed the claimant at maximum medical improvement in January 1996. He imposed permanent restrictions of lifting no more than twenty pounds occasionally and ten pounds frequently. Moreover, the claimant was restricted to sitting for no more than one hour at a time, and standing for no more than thirty minutes at a time. The claimant was also limited with respect to repetitive squatting, bending, and “pivot twisting.” It is undisputed that these restrictions preclude the claimant from returning to work as a cook.
However, in October 1996, Dr. Tyler responded to the respondents’ written inquiry concerning the claimant’s ability to perform several jobs. The respondents provided Dr. Tyler with a description of the jobs, and he opined that the claimant was capable of performing three of them “based upon the work requirements presented.” Specifically, he approved assembly positions at Quality Concepts Manufacturing (Quality) and Alpine Composites (Alpine). He also approved the position of “counter clerk” at Your Valet Dry Cleaners.
Ultimately, the ALJ found that Dr. Tyler’s “diagnosis, restrictions, and recommendations” are “credible.” Nevertheless, the ALJ concluded that the claimant is permanently and totally disabled because, based on various factors including the claimant’s medical condition, age, education, prior work experience, and availability of other work, the claimant is unable to earn any wages. In support of this conclusion, the ALJ made detailed findings of fact determining that the positions approved by Dr. Tyler were not actually available to the claimant either because she lacked the ability and experience to perform them, or because the job descriptions were inaccurate and the duties were beyond her restrictions.
On review, the respondents contend that the ALJ’s award of permanent total disability benefits is inconsistent with the ALJ’s factual findings. Specifically, the respondents argue that the ALJ could not credit Dr. Tyler’s “opinions with respect to the Claimant’s ability to earn any wages,” but find that the claimant is permanently and totally disabled. We are not persuaded.
Under the law applicable to this case, a claimant is permanently and totally disabled if she is unable to earn “any wages” in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 1997; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). In determining whether the claimant has lost the ability to earn any wages, the ALJ may consider not only the physical impairment caused by the injury, but “human factors” such as the claimant’s mental capacity, education, and employment history. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Ultimately, the question of whether the claimant is able to earn any wages is a question of fact for determination by the ALJ Best-Way Concrete Co. v. Baumgartner, supra. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Application of this standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, we perceive no inherent conflict between the ALJ’s decision to “credit” Dr. Tyler’s opinions, and the ultimate award of permanent total disability benefits. Although Dr. Tyler opined that the claimant was able to perform three of the jobs submitted by the respondents, he carefully stated that his opinion was predicated on the validity of the “work requirements presented to” him.
The ALJ has found that the job descriptions presented to Dr. Tyler did not fully explain the physical requirements of the positions, and that the claimant was otherwise disqualified from the jobs based on factors including her mental abilities and dexterity. The ALJ’s Findings of Fact 26, 27 and 28 fully describe the discrepancies, and these findings are supported by substantial, albeit conflicting, evidence in the record. Moreover, as the ALJ found, neither Quality nor Alpine had any positions available at the time of the hearing.
It is true that the evidence might have supported contrary findings and conclusions. However, this affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Moreover, the ALJ’s order involves no inherent inconsistency, and we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the claimant’s ability to earn any wages. Best-Way Concrete Co. v. Baumgartner, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 19, 1997 the following parties:
Martha Austin, 4640 Templeton Park Cir., Apt. 102, Colorado Springs, CO 80917
Bethesda Management Co., P.O. 440638, Aurora, CO 80044-0638
Barbara McDaniel, Travelers/Aetna Casualty Surety Co., P.O. Box 173762, Denver, CO 80217-3762
John R. Parsons, Esq., 1515 Arapahoe St., Tower Three, Ste. 600, Denver, CO 80202 (For the Respondents)
Renee C. Ozer, Esq., 25 N. Cascade, Ste. 215, Colorado Springs, CO 80903 (For the Claimant)
By: _______________________________