W.C. No. 4-111-529Industrial Claim Appeals Office.
December 5, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as it denied his claim for permanent total disability benefits. We affirm.
The claimant suffered a compensable heart attack on October 24, 1991, while working as a volunteer fire fighter. As a result, the claimant underwent a coronary artery bypass and implantation of a defibrillator.
The ALJ found that the treating physician, Dr. Podolak, restricted the claimant from returning to his pre-injury profession of building electronic motors, because the claimant’s exposure to large magnetic fields could interfere with the defibrillator, but added that the claimant could otherwise “perform normal activities.” The ALJ also found that the claimant was asymptomatic at the time he was evaluated by Dr. Vigoda for an impairment rating. Further, the claimant was evaluated by Dr. Bralliar, who opined that the claimant is capable of performing sedentary or light duty employment where he can sit half the time and stand or walk half the time.
From conflicting vocational rehabilitation evidence, the ALJ determined that the claimant failed to prove that he is “unable to earn any wages in the same or other employment” as required by § 8-40-201(16.5), C.R.S. (1995 Cum. Supp.). In making this determination, the ALJ relied upon the opinions of vocational rehabilitation consultant Mitchell Veeder, who concluded that the claimant is capable of returning to work as a security guard, parking lot attendant and small parts assembler. Mr. Veeder also testified that positions within these industries are currently available. Therefore, the ALJ concluded that the claimant failed to prove that he is permanently and totally disabled.
On review, the claimant essentially contends that there is not substantial evidence in the record to support the ALJ’s determination that the claimant is capable of earning wages. In support, the claimant relies upon the medical evidence cited by the ALJ, his own testimony concerning his current physical condition, and his wife’s testimony that no specific job has located for him. We reject the claimant’s contentions.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Where the record is subject to conflicting inferences it is the ALJ’s sole prerogative to determine the inference is to be drawn, and we are bound by the ALJ’s plausible inferences drawn from the record. Durocher v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. Nos. 94CE0024, 94CE0025, May 18, 1995); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995).
Initially, we note that the ALJ did not, and was not, required to credit the claimant’s testimony concerning his current physical condition Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). (Summary Order December 7, 1994). Instead, the ALJ found that the claimant is “deconditioned and has been encouraged to increase his activity level, which would improve his physical condition and stamina.”
Contrary to the claimant’s argument, the ALJ’s finding is a plausible inference from the evidence that the claimant has been inactive since the heart attack, and the claimant’s testimony that the doctors have told him to walk. (Tr. pp. 11, 12; Dr. Vigoda report April 5, 1993). The ALJ’s finding is also supported by the reports of Dr. Vigoda, Dr. Podolak and Dr. Carson’s July 28, 1992 report which lists the claimant’s treatment plan as “diet, exercise, cholesterol control.”
Next, we have previously stated that the lack of a specific job offer is a proper consideration in determining the credibility of a vocational expert concerning the availability of employment for the claimant. See Henneberg v. Valu-Rite Drugs, Inc., W.C. No. 4-148-050, September 26, 1995; Rencehausen v. City County of Denver, W.C. No. 4-110-764, November 23, 1993. However, we also stated in Henneberg and Rencehausen that §8-40-201(16.5), C.R.S. (1995 Cum. Supp.) does not require the respondents to locate a specific job for the claimant in order to overcome a prima facie showing of permanent total disability.
Here, Mr. Veeder did not locate a specific job for the claimant. However, he stated that the claimant is capable of earning wages working as an unarmed security guard or parking lot attendant, both of which represent occupations readily available in the local labor market. (Tr. pp. 60, 62, 68, 70, 75, 81, 83). In view of the claimant’s testimony that he has not looked for work, aside from his wife’s contacts with the two employer’s identified by Mr. Veeder, we cannot say that the ALJ erred in crediting Mr. Veeder’s testimony. (Tr. p. 20); Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Furthermore, Mr. Veeder’s testimony constitutes substantial evidence to support the ALJ’s determination that the claimant failed to sustain his burden of proof.
The evidence may have been interpreted differently. However, we have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative value of the evidence he found persuasive, and decline the claimant’s invitation to do so. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992); May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Consequently, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 13, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 5, 1995 to the following parties:
Fred W. Bonds, 5601 E. Amherst Ave., Denver, CO 80222
Skyline Fire Protection District, 6000 E. Yale, Denver, CO 80222-6338
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq., (Interagency Mail)
James A. May, Esq., 155 S. Madison, Ste. 330, Denver, CO 80203
(For the Claimant)
BY: _______________________