W.C. No. 4-359-738Industrial Claim Appeals Office.
October 22, 2002
FINAL ORDER
The respondents seek review of a Corrected Order of Administrative Law Judge Coughlin (ALJ) dated July 27, 2001, which awarded benefits for permanent and total disability. We affirm.
The ALJ’s findings of fact may be summarized as follows. The claimant suffered admitted work-related injuries on November 6, 1997, during a rollover motor vehicle accident involving the tractor trailer he was driving for the respondent-employer. As a result of the accident the claimant has been diagnosed with a closed head injury, cognitive brain disorder, adjustment disorder, residual lung impairment, knee problems, hearing loss, chronic residual cervicofibromyositis and chronic low back pain. The claimant reached maximum medical improvement on March 13, 2000, with 37 percent whole person medical impairment.
The claimant has not returned to work since the industrial accident. The claimant’s vocational rehabilitation expert, Mary Ann Adams (Adams), opined that as a result of the “extraordinary combination” of the claimant’s residual physical limitations, and cognitive problems he is not capable of earning wages. The respondents’ vocational expert disagreed.
After considering the “human factors” relevant to the claimant’s condition, the ALJ found that:
“In order to work, Claimant would require frequent unscheduled breaks in a low pressure part-time job which would allow him to sit, stand, and move about freely. Claimant would require a work place with a filtered air system with limited distractions and job tasks that were repetitive in nature with little or no decision making.”
The ALJ also determined the claimant could be expected to experience frequent absences from work due to his chronic respiratory problems and chronic pain. Therefore, the ALJ determined it was “very unlikely that Claimant, a former truck driver, will be able to obtain and maintain employment in the competitive labor market. (Finding of Fact 14; Conclusion of Law 2). On July 26, 2001, the ALJ entered Specific Findings of Fact which concluded the claimant established an entitlement to permanent total disability benefits.
On July 27, 2001, the ALJ granted the respondents’ motion to reopen the record to submit newly discovered evidence that the Social Security Administration (SSA) denied the claimant’s application for social security disability benefits in 1999 and 2000. After considering the newly discovered evidence, the ALJ issued a Corrected Order which essentially incorporated the July 26 findings of fact and conclusions of law and awarded permanent total disability benefits. The respondents timely appealed.
The respondents’ Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. The respondents also contest the ALJ’s Finding of Fact 14. Further, the respondents contend the ALJ erred in failing to acknowledge and resolve the conflict in the evidence created by the 1999 and 2000 SSA notices denying the claimant’s application for social security disability benefits. Therefore, the respondents contend the ALJ erred as a matter of law in finding the claimant is permanently and totally disabled. We reject these arguments.
We note that the respondents have not filed a brief in support of their Petition to Review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under the applicable law, a claimant is permanently and totally disabled if he is “unable to earn any wages in the same or other employment.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is capable of earning wages in the same or other employment is a factual determination to be made by the ALJ based upon consideration of a number of “human factors.”Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perfor . Weld County School District RE-12 v. Bymer, 955 P.2d 550
(Colo. 1998). The availability of employment must be determined on a “case-by-case basis” and “will necessarily vary according to the particular abilities and surroundings of the claimant.” Ibid at 557.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992); Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (ALJ’s credibility determinations adequately informs reviewing court how ALJ resolved conflicts in the evidence).
The vocational evidence is subject to highly conflicting inferences. Within her sole prerogative, the ALJ resolved the conflict in favor of the claimant by crediting the opinions of the claimant’s vocational expert. There is substantial evidence in Adams’ testimony and her June 8 2000, Vocational Evaluation Report to support Finding of Fact 14 and the ALJ’s determination that the claimant is not capable of earning wages See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion).
Further, Adams’ opinions concerning the claimant’s cognitive difficulties are consistent with the claimant’s testimony and supported by some of Dr. Pendleton’s clinical observations. (See Dr. Pendleton’s Neuropsychological Evaluation dated December 12, 1999). Therefore, we cannot say the ALJ erred in crediting Adams’ testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony).
It is presumed the ALJ reviewed the evidentiary record prior to issuing her Corrected Order, and the party challenging the ALJ’s order bears the burden to establish an irregularity. Cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977); Wildwood Child and Adult Care Program, Inc., v. Department of Public Health and Environment, 985 P.2d 654, 655 (Colo.App. 1999); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). In this regard, the ALJ is not required to make findings of fact on every piece of evidence, or explicitly cite disputed evidence before rejecting it as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000); Jefferson County Public Schools v. Dragoo, 765 P.2d 636
(Colo.App. 1988).
Contrary to the respondents’ contentions, the ALJ was not required to afford any special weight to evidence the SSA denied the claimant’s application for permanent disability benefits in 1999 and 2000. Such evidence may be relevant, but it is not dispositive of the claimant’s entitlement to workers’ compensation benefits for permanent and total vocational disability. See Enriguez v. Autotron Products Inc., W.C. No. 4-221-576 (May 7, 1998).
In view of the ALJ’s July 27 order which states she “will consider” the newly discovered evidence concerning the claimant’s unsuccessful SSI application “before entry of an Order on the issue of permanent total disability,” we presume the ALJ considered the respondents’ newly discovered evidence prior to issuing the Corrected Findings of Fact but was not persuaded the 1999 and 2000 SSA decisions were the best evidence of the claimant’s residual vocational abilities in July 2001. The ALJ’s determination is a plausible inference from the fact that the SSA decisions were made without the expert vocational evidence presented at the hearing on June 18, 2001.
Moreover, the ALJ’s findings support the conclusion the claimant is unable to earn wages. Therefore, the ALJ did not err in finding the claimant is permanently and totally disabled.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated July 27, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 22, 2002 to the following parties:
Robert E. Callahan, 780 Burbank St., 6-202, Broomfield, CO 80020-7145
Iowa Tanklines, P. O. Box 1217, Ankeny, IA 50021-0975
Virginia Casualty, 123 N. Wacker Dr., Chicago, IL 60606
Cambridge Integrated Services Group, P. O. Box 52106, Phoenix, AZ 85072-2106
Jack Taussig, Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Bruce B. McCrea, Esq., 1777 S. Harrison, #1110, Denver, CO 80210 (For Respondents)
BY: ___A. Hurtado___