W.C. No. 4-382-050.Industrial Claim Appeals Office.
September 26, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which awarded permanent total disability benefits. We affirm.
In 1998 the claimant suffered a crush injury when he was pinned between a roller and a bobcat. As a result of the injury, the claimant underwent surgery to repair a severe laceration to the lower abdominal wall. The claimant later underwent additional surgery for a possible hernia. No hernia was discovered. However, the surgeon found a general laxity of the abdominal muscle wall.
The treating physician, Dr. Weber, placed the claimant at maximum medical improvement on June 7, 2000 and released the claimant to sedentary work up to a maximum of 6 hours a day, provided the job does not require lifting more than 15 pounds. Dr. Weber also noted the claimant needs to frequently change positions. The claimant subsequently reported a significant weight gain, and increased pain and abdominal swelling with activity, which was not relieved by medication prescribed for the industrial injury.
It is undisputed that as a result of the injury the claimant is unable to resume his pre- injury employment as a laborer. At the respondents’ request, Bob Van Iderstine (Iderstine) provided vocational rehabilitation services to the claimant between May 2001 and November 2001. Despite a broad range of efforts, Iderstine was unable to locate employment for the claimant. However, Iderstine opined the claimant’s chances of getting unskilled employment would improve if the claimant aggressively engaged in a job search.
Vocational rehabilitation expert, Ronald Brennan (Brennan), opined the claimant has no transferable jobs skills and is unable to secure and maintain employment in unskilled position because he is unlikely to meet production pace requirements and frequently needs to alternate between sitting, standing and walking. Therefore, Brennan opined the claimant is unable to earn any wages.
At the time of the hearing the claimant was 49 years old. The ALJ found the claimant has a 5th grade education, does not speak fluent English, has limited ability to read and write Spanish and possessed only basic math skills. The ALJ also found the claimant suffered an unusual injury which has resulted in chronic abdominal pain. In so doing, the ALJ credited the claimant’s testimony that he has a very sharp, heavy pain that extends across the left abdomen, extends left to the spine and down the left leg. The ALJ further found the pain in aggravated by bending, walking and reduced by changing positions and lying down. Therefore, the ALJ determined the claimant’s physical capabilities were most accurately reported by Dr. Weber.
Crediting Brennan’s testimony, and upon consideration of the claimant’s physical condition, the claimant’s age, lack of education, work experience, language barrier and Iderstine’s unsuccessful efforts to find employment for the claimant, the ALJ determined that employment is not readily available to the claimant. Therefore, the ALJ determined the claimant sustained his burden to prove he is permanently and totally disabled.
On review, the respondents contend the ALJ erroneously relied on the claimant’s subjective assessment of his limitations in finding the claimant is permanently and totally disabled. The respondents argue the claimant has adopted a disabled lifestyle and the claimant’s physical abilities far exceed his subjective complaints. The respondents also contend the claimant’s obesity and lack of motivation are the primary cause of his wage loss. We perceive no basis to disturb the ALJ’s order.
Section 8-40-201(16.5)(a), C.R.S. 2002, defines permanent total disability as the inability 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 incapable of earning wages in the same or other employment is to be based upon the ALJ’s consideration of a number of “human factors.” Christie v. Coors Transportation Co., supra; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). 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 test for determining the “availability of work” is whether employment exists “that is reasonably available to the claimant under his or her particular circumstances.” Id. at 558. Furthermore, if the evidence shows the claimant is not physically able to sustain employment the ALJ need not find the claimant is capable of earning wages. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
Because the critical issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., supra. Application of the substantial evidence test 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. Christie v. Coors Transportation Co., supra; 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). Under this standard the mere existence of contradictory evidence does not afford a basis to interfere with the ALJ’s credibility determinations. Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, supra.
Moreover, because permanent total disability is based upon a claimant’s impaired access to the labor market, medical evidence is neither required nor dispositive of permanent total disability. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). To the contrary, the claimant’s testimony, if credited, may alone be sufficient to support a finding of permanent total disability. However, to the extent medical evidence is presented, the ALJ is the final abiter of conflicts in the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ explicitly recognized that the claimant limits his activities due to fear of pain. However, we cannot say the claimant’s testimony that he experiences pain is rebutted by hard, certain evidence to the contrary. Rather, the record contains highly conflicting medical and vocational evidence concerning the residual effects of the industrial injury. Within his sole prerogative, the ALJ resolved the conflict against the respondents. See MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002). Under these circumstances, we cannot say the ALJ erred in crediting the claimant’s testimony.
Further, there is substantial evidence in Brennan’s testimony and the medical reports of Dr. Weber to support the ALJ’s determination the claimant is unlikely to obtain and sustain employment. Brennan’s opinions are buttressed by evidence that the claimant was cooperative with the vocational services of Iderstine and yet Iderstine was unable to produce any job offer for the claimant. Consequently, we may not disturb the ALJ’s finding that the claimant’s wage loss is the result of the industrial injury and not a lifestyle choice or a lack of motivation. Therefore, it is immaterial the record contains some medical and vocational evidence which, if credited, might support a contrary determination. See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985) (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).
Finally, the determination of the weight to be accorded the various pieces of evidence is a matter within the ALJ’s province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). We may not substitute our judgment for that of the ALJ concerning the probative value of the evidence, and we decline the respondents’ implicit request to do so. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 8, 2003, 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 September 26, 2003 to the following parties:
Guadalupe Chacon, P. O. Box 4106, Durango, CO 81302-4106
Melco, Inc., P. O. Box 2901, Durango, CO 81302
Reliance National Indemnity, c/o Raymond Abril, Cambridge Integrated Services Group, Inc., P. O. Box 52106, Phoenix, AZ 85072
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Margaret Keck, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado