W.C. No. 4-429-722.Industrial Claim Appeals Office.
May 27, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded the claimant permanent total disability (PTD) benefits. The respondents contend that neither the law nor the evidence supports the ALJ’s finding that claimant is entitled to PTD benefits. The respondents particularly dispute the ALJ’s conclusion that the claimant is not disqualified from receiving PTD benefits because she refused an offer of employment within the meaning of § 8-42-111(3), C.R.S. 2004. The respondents also argue the PTD benefits should be apportioned based on a preexisting nonindustrial condition. We affirm.
The ALJ’s findings may be summarized as follows. In 1999 the claimant was employed as a kitchen helper performing various functions including cleaning pots and pans. The claimant developed an occupational disease which affected both shoulders, and consequently the claimant left her employment in June 1999. The claimant was placed at maximum medical improvement (MMI) on June 27, 2001, with restrictions of lifting no more than 10 pounds with both arms, no pushing or pulling more than 20 pounds, no reaching above shoulder level, and no repetitive use of the arms.
In March 2002, with the assistance of the respondents’ vocational expert (Mr. Rauer), the respondents provided the claimant modified part-time employment at the employer’s residential dining facility. The claimant’s duties principally involved setting tables with glasses and utensils, serving food, filling drinking glasses and reaching overhead to obtain condiment baskets. The ALJ credited the claimant’s testimony that these activities caused her to experience increased symptoms, and the testimony of an authorized treating physician (ATP) that the job caused “bona fide pain.” In September 2000 the claimant was examined by the ATP, but the claimant’s work duties were not modified.
The ALJ credited the testimony of the claimant’s vocational expert that the claimant is not able to earn wages in any employment, and is therefore PTD. Further, the ALJ found the modified job provided by the employer was not “bona fide employment” available on the open labor market, and in any event the claimant was not capable of performing the job. Consequently, the ALJ concluded the respondents failed to establish the affirmative defense that the claimant refused employment.
I.
On review, the respondents contend that numerous findings of fact relevant to the ALJ’s issues of PTD and the affirmative defense are not supported by substantial evidence in the record. The respondents also assert the ALJ erred in crediting the testimony of the claimant’s vocational expert (Mr. Wilson) over that of Mr. Rauer. We reject these arguments.
A claimant is entitled to PTD benefits if the claimant is “unable to earn wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2004. Under the statute the claimant carries the burden of proof to establish PTD by a preponderance of the evidence. The overall objective is to determine whether employment is reasonably available to the claimant under his or her particular circumstances. In making this determination the ALJ may consider the effects of the industrial injury in light of the claimant’s “human factors” including the claimant’s general physical and mental condition, work history, age and education. Ultimately, the existence of PTD is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558
(Colo. 1998); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
If the claimant establishes a prima facie case of PTD, § 8-42-111(3) creates an affirmative defense where the respondents prove the claimant refused an offer of bona fide employment. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997); Robles v. Colorado Museum of Natural History, W.C. No. 4-205-358 (August 3, 2000); Seymour v. Pillow Kingdom, Inc., W.C. No. 3-925-175 (March 14, 1996). Of course, the respondents must establish that the claimant is physically capable of performing the modified employment Robles v. Colorado Museum of Natural History, supra. These issues are also factual in nature. Lobb v. Industrial Claim Appeals Office, supra.
Because these issues present factual questions, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Weld County School District RE-12 v. Bymer, supra. When entering findings of fact the ALJ need not address every piece of evidence or potential inference, and evidence not specifically addressed was presumably rejected. Further, we may consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The respondents make two arguments that the ALJ erred in crediting the testimony of Mr. Wilson over that of Mr. Rauer. First, the respondents assert the ALJ erred in failing to resolve a conflict between the experts concerning whether or not the claimant exceeded her restrictions against repetitive upper extremity motion when performing modified employment. The respondents also dispute the ALJ’s finding that Mr. Rauer’s labor market research was not supported by adequate research.
While the ALJ may not have resolved the dispute between the experts concerning whether or not the claimant’s activities were “repetitive” within the meaning of the medical restrictions imposed, we do not consider resolution of that conflict to be material to the ALJ’s decision to rely on Mr. Wilson’s testimony, and consequently to the order. The ALJ was persuaded that regardless of whether the claimant was performing within the medical restrictions, the resulting symptoms rendered her unable to continue the modified employment. Indeed, the ALJ credited the testimony of the ATP that he believed the claimant was experiencing “bona fide” pain. Further, the claimant was not required to produce “medical evidence” that the effects of the injury caused the PTD. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) (lay evidence traditionally accepted as sufficient to establish causation and inability to work). For the same reasons, the ALJ did not err in choosing to credit Mr. Wilson’s testimony.
The respondents assertion that the ALJ erred in finding that Mr. Rauer’s labor market research was inadequate is without merit. The ALJ found that Rauer’s labor market research largely consisted of second-hand data and was not based on providing potential employers with complete information concerning the extent of the claimant’s limitations. (Finding of Fact 7). This finding and corresponding credibility determination are amply supported by the record, particularly the cross-examination of Mr. Rauer. In these circumstances, the relative weight to be assigned the two expert vocational opinions was a matter for the ALJ. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The respondents argue the ALJ erred in finding the claimant was physically unable to perform the modified job. Instead, they assert the evidence compelled the ALJ to find the claimant quit because of a December 2002 flare-up of her preexisting psychological condition. However, resolution of this question was an issue of fact. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (question of whether PTD was caused by industrial injury or intervening event was one of fact for ALJ). Although there were some internal inconsistencies in the claimant’s testimony, she stated that she left the employment because the duties of the job were aggravating her condition. (Tr. June 4, 2005, P. 35). Further, the respondents’ psychiatric expert testified that pain can trigger stress-related emotional reactions, and the ALJ so found. (Tr. September 9, 2004, P. 89; Finding of Fact 6).
The respondents next assert that Finding of Fact 4 is erroneous because the ALJ incorrectly found that the ATP’s restrictions imposed in September 2002 required modification of the claimant’s job duties. However, we agree with the claimant that the ALJ did not find the newly issued medical restrictions required any modification of the claimant’s duties. Rather, the point of the finding is that regardless of the physical restrictions the employer did not modify the duties after the claimant reported the increase in symptoms.
The respondents next contend the evidence does not support the ALJ’s finding that the modified job was not “bona fide employment” available on the open labor market. However, this finding represents a plausible inference from evidence that the job was formulated after the respondents’ expert engaged in extensive efforts to devise a job within the claimant’s restrictions. Further, the job was composed of tasks taken from various other jobs, it was part-time, and the claimant performed the work with the assistance of other employees.
In any event, we agree with the claimant that even if this finding were erroneous the result would not change. The ALJ found the claimant was not able to perform the modified job. Therefore, the claimant was not able to earn wages in the job, nor did the claimant refuse available employment which she was capable of performing for purposes of § 8-42-111(3).
Consequently, we conclude that substantial evidence supports the ALJ’s finding that the claimant is PTD as a result of the industrial injury. Further, the evidence supports the finding that the respondents failed to prove the affirmative defense afforded by § 8-42-111(3).
III.
The respondents contend the ALJ erred because he failed to consider whether the claimant’s PTD benefits should be apportioned under former §8-42-104(2), C.R.S. 1998 [in 1999 statute was amended for injuries occurring on or after July 1, 1999]. We perceive no error.
In United Airlines v. Industrial Claim Appeals Office, 993 P.2d 1152, 1162 (Colo. 2000), the court did not determine, but expressed doubt, that § 8-42-104(2) should be construed as permitting apportionment of PTD benefits based on “preexisting symptomatic nonindustrial disabilities.” Indeed, the court stated that through the date of the United Airlines
decision the court “presumed that the Act imposes full responsibility on the last employer in such cases.” However, because we consider the court’s remarks to be dictum, we have continued to address this apportionment issue on the merits when it arises. See Cisneros v. Diamond Shamrock, Inc., W.C. No. 4-503-539 (October 23, 2003); Ragsdale v. Western Co., W.C. No. 3-114-839 (February 3, 2000) (specifically discussing impact of United Airlines decision on cases raising apportionment where claimant suffers from preexisting nonindustrial disabilities).
Assuming that § 8-42-104(2) does permit apportionment of PTD based on nonindustrial conditions, the statute requires that condition represent a “previous disability” at the time of the subsequent [industrial] injury. As the courts have held on numerous occasions, a “previous disability” exists if the condition impaired the claimant’s ability to earn a wage in the same or other employment. See Absolute Employment Services, Inc. v. Industrial Claim Appeals Office, 997 P.2d 1229 (Colo.App. 1999); Mountain Meadows Nursing Center c. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999); Baldwin Construction Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997); Cisneros v. Diamond Shamrock, Inc., supra.
The respondents’ argument notwithstanding, we believe the ALJ’s order implicitly and necessarily rejects any argument based on apportionment to the claimant’s preexisting psychological problems. The ALJ found that before the claimant developed the occupational disease in February 1999 she had been steadily employed since at least 1987. This was true despite the fact the ALJ found the claimant had “depression most of her life.” Moreover, the ALJ found the claimant left the modified employment because of the symptoms caused by the industrial injury, not the depression. In fact, the ALJ found the injury and resulting pain may have aggravated the depression. Thus, the ALJ necessarily determined that the depression was not disabling at the time the claimant developed the occupational disease and is not subject to apportionment under § 8-42-104(2).
IV.
The respondents seek to amend the caption to reflect the “insurer of record,” Colorado Hospital Association Trust for Workers’ Compensation. The claimant does not object, and the request is granted.
V.
The respondents also object to the ALJ’s decision to reserve issues not determined by the order. According to the respondents, this language may have the effect of keeping the claim open on an indefinite basis. However, this aspect of the order is not final and reviewable. The reservation language does not award or deny any benefits or penalties, and we cannot speculate on what effect the language may or may not have in some hypothetical litigation. Consequently, we do not address this issue. See § 8-43-301(2), C.R.S. 2004; Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 27, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Annie Castrellon, LaJunta, CO., Arkansas Valley Regional Medical Center, LaJunta, CO., Mary Ann Donelson, Support Services, Inc., Greenwood Village, CO., James M. Anderson, Esq., Colorado Springs, CO., (For Claimant).
Clyde E. Hook, Esq., Denver, CO., (For Respondents).