W.C. No. 4-102-842Industrial Claim Appeals Office.
May 12, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ), dated December 2, 1999, which awarded ongoing temporary total disability benefits commencing November 11, 1997. The respondents contend the ALJ’s finding that the claimant sustained injury-related depression which caused a temporary loss of earning capacity is unsupported by the evidence. We affirm.
This case is before us for the third time. Our Orders of Remand dated February 25, 1999, and July 9, 1999, contain outlines of the facts, and we incorporate those outlines in this order. In the July 9 order, we remanded the matter with directions for the ALJ to determine whether the claimant’s “depression caused additional impairment of [the claimant’s] temporary earning capacity,” in that it “decreased the claimant’s opportunities for employment beyond those which existed at the time of MMI.”
In the December 2 order, the ALJ found the claimant began having problems with depression in October and November 1997, and that the depression resulted from his occupational disease (Chronic Beryllium Disease or CBD). The ALJ also found the symptoms of the depression included “fatigue, waking early from sleep, feeling irritable and withdrawn, and loss of appetite.” Finally, the ALJ credited the testimony of Dr. Kinsman that the claimant’s “symptoms of depression” would “make it more difficult for the claimant to engage in any effective job search as compared to March 15, 1995, when he first reached maximum medical improvement or August 28, 1995, when he was laid off.”
Under these circumstances, the ALJ concluded the claimant was entitled to temporary total disability benefits commencing November 11, 1997, when the depression reduced the claimant’s ability to engage “in an effective job search.” Specifically, the ALJ determined that depression “decreased the claimant’s opportunities for employment beyond those” which previously existed.
On review, the respondents contend the record lacks substantial evidence to support the ALJ’s determination that the claimant’s injury-related depression was the cause of any temporary loss of earning capacity. Specifically, the respondents assert the ALJ’s reliance on the opinions of Dr. Kinsman was erroneous because Dr. Kinsman believed the claimant’s decreased “energy level” was caused by the physiological effects of CBD, not depression. We find no error.
Where, as here, the claimant seeks to reopen for additional temporary disability benefits based on a worsened condition, the claimant must show that the worsened condition causes additional temporary loss of wages beyond that which existed at MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997). As we held in our July 9 order, temporary disability may be proven by the claimant’s inability to obtain employment, even if the claimant has the hypothetical ability to perform some work if it can be found. 4 Larson’s Workers’ Compensation Law, § 84.01; Schlage Lock v. Lahr, 870 P.2d 615
(Colo.App. 1993). Further, the industrial injury need not be the sole cause of the temporary wage loss so long as it is a contributing cause. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
The question of whether the claimant proved injury-related disability was one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). In this regard, we note the ALJ may resolve inconsistencies in the testimony of an individual witness. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Here, the record contains substantial evidence that in October and November 1997 the claimant sustained a worsened condition in the form of injury-related depression. Although there was disagreement among experts concerning whether the depression resulted from medication taken for CBD or was psychological in origin, there is expert opinion that the injury caused the depression. (Kelley Depo. p. 15; Newman Report November 11, 1997). The respondents’ assertion notwithstanding, a portion of Dr. Kinsman’s testimony supports the conclusion that the claimant’s depression was, at least partially, the result of the industrial injury. (Kinsman Depo. p. 44-45). The fact that other inferences and findings were possible affords no basis for relief on appeal.
The respondents also contend the ALJ’s findings are insufficient to determine the basis of the ALJ’s conclusion that the claimant’s depression caused temporary disability. However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning the evidence which he finds dispositive of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ was persuaded that the claimant’s injury-related depression caused symptoms of withdrawal and reduced energy. Virtually every expert who presented evidence in the case agreed that these symptoms may be associated with depression. (Kelley Depo. p. 13, 48; Kinsman Depo. pp. 45, 61; Gutterman Depo. pp. 52-53). Further, Dr. Kinsman testified that these symptoms are likely to be “deleterious, or damaging to [the claimant], in looking for employment.” (Kinsman Depo. p. 61).
It is true, as the respondents point out, that Dr. Kinsman believed the principal cause of the claimant’s reduced energy was the physiological effects of CBD. However, Dr. Kinsman also testified that the depression was a causative factor in the decreased energy. (Kinsman Depo. p. 58). Therefore, there is substantial evidence in the record to support the ALJ’s conclusion that, to some degree, the depression decreased the claimant’s access to the labor market and caused temporary disability. Thus, the award of temporary total disability benefits commencing November 11, 1997, is in accordance with the law.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 2, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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. 1999. 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 May 12, 2000
to the following parties:
William J. Chapman, 1223 Lincoln St., Longmont, CO 80501
Dow Chemical Company, Al Jerman, Kaiser-Hill LLC, P. O. Box 464, Golden, CO 80402
Jerry McClory, Travelers Insurance Company, P. O. Box 17360, Denver, CO 80217
Joseph M. Goldhammer, Esq., and Ellen M. Kelman, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)
BY: A. Pendroy