W.C. No. 4-437-176Industrial Claim Appeals Office.
April 4, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) insofar as it denied and dismissed a claim for permanent total disability benefits. The claimant contends that two of the ALJ’s findings of fact are not supported by the evidence. We affirm.
The claimant alleged that he was permanently and totally disabled by the effects of industrial injuries which occurred in November 1998 and/or August 1999. However, the ALJ credited the opinion of the treating physician concerning the claimant’s physical restrictions, and found the claimant was able to perform several types of employment identified by the respondents’ vocational rehabilitation expert. The ALJ also found, based on the claimant’s testimony at the hearing, that the claimant did not exhibit “flightiness” and tangential speech patterns. Consequently, the ALJ concluded the claimant failed to prove permanent total disability.
I.
On review, the claimant contends the ALJ erred as a matter of law in crediting the physical restrictions imposed by the treating physician rather than the restrictions cited by the claimant’s vocational rehabilitation expert. We disagree.
The claimant had the burden to prove permanent total disability by proving that he is unable to earn wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2002. The question of whether the claimant met the burden is one of fact for determination by the ALJ Weld County School District v. Bymer, 955 P.2d 550 (Colo.App. 1998).
Because the issue is factual, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ’s power extends to resolving conflicts between qualified expert witnesses. See Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701
(Colo.App. 1999).
Here, the treating physician, an expert in physical and rehabilitation medicine, explained that the restrictions he imposed were based on his clinical observations, the medical records, the results of the functional capacities evaluation (FCE), and his experience. The physician noted the FCE suggested the claimant had more extensive limitations, but the physician noted that three out of five FCE “validity checks” were invalid. (Tr. P. 78). Under these circumstances, the ALJ was free to find the treating physician’s opinion concerning the claimant’s physical restrictions to be more credible than the opinion of the claimant’s vocational expert, and there is no basis for us to interfere with that determination.
II.
The claimant next contends that unrebutted medical evidence compelled the ALJ to find that he was flighty and given to tangential speech. However, the ALJ as the finder of fact was entitled to observe the claimant’s courtroom demeanor and compare it to other evidence in the case. People v. Sandoval, 709 P.2d 90 (Colo.App. 1985); Marquez v. Inverness Hotel Golf Club, W.C. No. 4-498-415 (March 25, 2003) (ALJ was free to consider that claimant’s neck motion was more limited when asked to demonstrate on cross- examination than when the claimant did not realize she was being observed by the ALJ).
Here, the ALJ did not find the claimant’s answers to be flighty or tangential. Our review of the record indicates that, although the claimant could not recall various events, his answers during direct and cross-examination were largely on point. Thus, the record supports the ALJ’s observations. Moreover, the treating physician, who observed the claimant’s testimony, stated that the claimant’s ability to be responsive to questions during the hearing was greater than he observed during prior medical examinations. (Tr. P. 125). Thus, this is not a case in which undisputed evidence leads to a single conclusion, and we may not interfere with the ALJ’s resolution of the conflicts in the evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 4, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 4, 2003 to the following parties:
Onofre A. Chacon, 1202 Lilac Dr., Brighton, CO 80601
Integrated Electrical Finance Company, 1220 Valley St., Colorado Springs, CO 80915
Transportation Insurance Company, c/o Wendy Stalkfleet, RSKCo, P. O. Box 5408, Denver, CO 80217-5408
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado