W.C. No. 4-299-124Industrial Claim Appeals Office.
February 5, 1999.
FINAL ORDER
The respondent seeks review of a final order or of Chief Administrative Law Judge Felter (ALJ) which awarded the claimant permanent total disability benefits. The respondent asserts that the award is not supported by the evidence. We affirm.
The claimant, a fireman, sustained compensable injuries to his neck and low back in December 1995. The ALJ found that the treating physician, Dr. Machanic, placed the claimant at maximum medical improvement (MMI) on April 18, 1996, with a twenty-two percent whole person medical impairment rating. The ALJ further found that Dr. Machanic restricted the claimant to working Monday, Wednesday, and Friday, four hours per day, with no lifting of more than 25 pounds, and rest breaks of ten to fifteen minutes every two hours.
Following the imposition of these restrictions, the claimant returned to light duty employment with the respondent’s fire department for approximately four months. The claimant testified that he had difficulties performing the light duty even though he took frequent breaks to lie down. The claimant also testified that the sedentary work was difficult despite working a Monday, Wednesday, and Friday schedule.
The claimant’s vocational expert, Mr. Best, testified the claimant is unable to earn any wages in light of the restrictions imposed by Dr. Machanic. The ALJ credited Best’s testimony, and discredited the conflicting testimony of the respondent’s expert. Consequently, the ALJ concluded that the claimant is unable to earn any wages in his geographical labor market and is entitled to permanent total disability benefits.
On review, the respondent contends the ALJ’s order is not supported by substantial evidence in the record. Specifically, the respondent asserts that the ALJ misinterpreted the restrictions imposed by Dr. Machanic and, therefore, improperly credited the testimony of the claimant’s vocational expert. The respondent further asserts that the ALJ erroneously discredited the testimony of its expert because the expert did not actually find a job for the claimant. We disagree with these arguments.
Section 8-40-201(16.5) (a), C.R.S. 1998, defines permanent total disability as the inability “to earn any wages in the same or other employment.” This is a strict definition which precludes an award of permanent total disability benefits if the claimant is capable of earning wages in any amount. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). However, this definition does not preclude the ALJ from considering the claimant’s general physical condition, mental training and ability, former employment, education, and the availability of work which the claimant is capable of performing. The overall objective 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, supra.
The question of whether the claimant is able to earn any wages is one of fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, supra; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Weld County School District RE-12 v. Bymer, supra.
Further, it is the unique province of the ALJ to assess the credibility of expert testimony, and to resolve internal inconsistencies found in the testimony of a particular expert Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ need not make findings of fact concerning every piece of evidence in the record. It is sufficient for the ALJ to make findings concerning that evidence which he finds to be dispositive of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The respondent asserts that the ALJ incorrectly interpreted the testimony and reports of Dr. Machanic concerning restrictions imposed on the claimant. The respondent points out that Dr. Machanic considered the functional capacities evaluation to have been invalid, and testified that the restrictions he imposed were a mere approximation of the claimant’s actual limitations. The respondent also argues that the Monday, Wednesday, Friday restriction was only a “suggestion” based on the claimant’s “subjective desires.”
However, the ALJ’s finding concerning the claimant’s restrictions constitutes a plausible interpretation of the evidence and resolution of conflicting inferences which could be drawn from Dr. Machanic’s testimony and reports. Dr. Machanic testified to the restrictions cited by the ALJ. (Machanic depo. pp. 14-15). Further, Dr. Machanic admitted that the claimant’s pain was essentially self-limiting, and the claimant had a great deal of difficulty performing the sedentary job at the fire department. (Machanic depo. pp. 35, 51). We may not set aside the ALJ’s finding merely because he could have interpreted the evidence differently.
Moreover, the ALJ was not bound by Dr. Machanic’s opinion that the claimant is not permanently and totally disabled. As Dr. Machanic himself recognized, the existence of permanent total disability involves both medical and vocational issues, and Dr. Machanic admitted that he is not an expert in vocational matters. Thus, the ALJ was free to credit Dr. Machanic’s medical opinion while disregarding his vocational opinion.
It follows that we find no error in the ALJ’s decision to credit testimony of the claimant’s vocational expert rather than the respondent’s expert. The restrictions on which the claimant’s expert relied in opining that the claimant is unable to earn any wages are supported by the evidence. Further, the ALJ reasonably discredited the testimony of the respondent’s expert because she did not advise potential employers that the claimant was limited to working three days per week. We decline the respondent’s invitation to substitute our judgment for that of the ALJ concerning the credibility of the expert witnesses.
Moreover, the ALJ did not discredit the respondent’s expert simply because she failed to find a job for the claimant. Rather, the ALJ was unpersuaded by the expert’s testimony because she did not properly communicate the claimant’s restrictions to potential employers. (Tr. p. 76).
The respondent’s argument that the ALJ did not consider the testimony of Chief McMillan is without merit. The ALJ considered this testimony but rejected it for the reasons stated in Finding of Fact 15. The mere fact that the ALJ did not make findings concerning every aspect of this testimony does not warrant interference with the order. Riddle v. Ampex Corp., supra.
Insofar as the respondent made other arguments, they are purely factual in nature. Because the findings of fact are supported by the evidence, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 20, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
_________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1998.
Copies of this decision were mailed February 5, 1999
to the following parties:
Ross J. Bachofer, 11566 WCR 18, Fort Lupton, CO 80621
City and County of Denver, 1445 Cleveland Place, Room 200, Denver, CO 80202-5306
Robert W. Turner, Esq., 1120 Lincoln Street, Suite 1001, Denver, CO 80203 (For Claimant)
Olivia Hudson Smith, Esq., 1445 Cleveland Place, Suite 200, Denver, CO 80202 (For Respondent)
By: _______________