W.C. No. 4-293-120Industrial Claim Appeals Office.
March 26, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Atencio (ALJ), which denied her claim for permanent total disability benefits. The claimant contends that the ALJ’s findings of fact are not supported by the evidence with regard to the claimant’s alleged mental impairment. The claimant further contends the ALJ failed to consider numerous “human factors” militating in favor of a finding of permanent total disability. Finally, the claimant argues that the ALJ erred in crediting the testimony of the respondents’ vocational expert. We affirm.
The ALJ found the claimant sustained occupational asthma as a result of her exposure to dust at the hospital were she worked as a housekeeper. Consequently, the claimant has been medically restricted from returning to any employment (including the preinjury employment) which would expose her to dust, chemical irritants, or “sensitizers” such as latex.
The claimant’s treating physicians, Dr. Mueller and Dr. Balkissoon, agreed that the claimant has a 25 percent whole person medical impairment attributable to the asthma. The claimant was independently examined by Dr. Krause who opined that the claimant also suffers from injury-related depression and has a five percent whole person psychiatric impairment. A Division-sponsored independent medical examination (IME) was performed by Dr. Straight, and he opined that the claimant has a 25 percent whole person impairment attributable to the asthma, but no impairment rating was assigned for depression.
At the hearing on permanent partial and permanent total disability the claimant and the respondents presented expert vocational testimony. The claimant’s expert opined that the claimant is not able to earn any wages. The respondents’ expert opined the claimant is employable in an office environment, and is capable of performing such jobs as customer service representative and hotel desk clerk.
The ALJ concluded that the claimant failed to carry her burden of proof to establish permanent total disability. Specifically, the ALJ found the claimant is capable of “earning wages in the same or other employment.” In support of this conclusion the ALJ credited the testimony of the respondents’ vocational expert concerning the claimant’s ability to obtain work. The ALJ also discredited Dr. Krause’s opinion that the claimant has ratable mental impairment attributable to the injury. Instead, the ALJ was persuaded by the reports of Dr. Mueller and Dr. Gutterman that the claimant has sustained no mental impairment because of the injury. (Finding of Fact 17).
The ALJ also considered the issue of permanent partial disability benefits. In this regard, the ALJ found that the claimant failed to overcome Dr. Straight’s 25 percent whole person impairment rating by clear and convincing evidence.
I.
The claimant’s first argument is that the ALJ failed to consider a number of “human factors” which, in conjunction with the disabling effects of the industrial injury, render her permanently and totally disabled. In support of this argument the claimant cites evidence that she suffers from insomnia, previously had a portion of her lung removed due to tuberculosis, was sixty years of age at the time of the hearing, and takes numerous medications for her asthma. We find no error.
Section 8-40-201(16.5)(a), C.R.S. 1998, defines permanent total disability to mean that the claimant “is unable to earn any wages in the same or other employment.” The statute also places the burden of proof on the claimant to establish permanent total disability.
The question whether the claimant is unable to earn wages in the same or other employment is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115
(Colo.App. 1997). The ALJ must decide whether, in view of the claimant’s particular circumstances, employment is reasonably available which will enable the claimant to earn wages. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). In resolving this issue the ALJ may consider the so-called “human factors” including the claimant’s general physical condition, mental ability, age, employment history, education, and the availability of work which the claimant can perform. Weld County School District RE-12 v. Bymer, supra.
Because the question of whether the claimant proved permanent total disability is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Weld County School District RE-12 v. Bymer, supra; § 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Weld County School District RE-12 v. Bymer, supra. In this regard, we note that the credibility of expert witnesses is a matter within the province of the ALJ as factfinder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. The ALJ need not enter findings concerning every piece of evidence so long as she makes findings concerning that evidence which is determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. the 1992). Evidence not expressly credited is considered implicitly discredited. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343 March 18, 1999). Finally, the ALJ is presumed to have considered and given due weight to all criteria relevant to the legal determination. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345
(1977).
The claimant’s argument notwithstanding, the record contains substantial evidence supporting the ALJ’s conclusion that the claimant is not permanently and totally disabled. The respondents’ vocational expert testified that the claimant is capable of performing various jobs which are available in the labor market. Dr. Balkissoon testified that he is aware of people who are employed despite suffering from asthma which is similar to that experienced by the claimant. (Tr. p. 17). We decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the weight of the expert testimony or the inferences to be drawn from the record.
Further, the ALJ did not err by failing to consider relevant “human factors.” Finding of Fact 5 indicates the ALJ was aware of the claimant’s various preexisting conditions, but was unpersuaded that they were serious enough to warrant a finding of permanent total disability when taken in conjunction with the occupational asthma. The claimant herself testified that the preexisting hypertension and removal of a portion of her lung did not affect her ability to work prior to the industrial injury. (Tr. pp. 59-60). The mere fact that the ALJ did not make detailed findings of fact concerning every preexisting condition or alleged contribution to the permanent total disability does not warrant interference with the order. The order contains explicit findings concerning the evidence which the ALJ found determinative of the issues, and therefore, it is sufficient to support appellate review. Riddle v. Ampex Corp., supra.
Insofar as the claimant argues that Conclusions of Law 24, 25 and 26 prove that the ALJ did not consider the “human factors,” we disagree. Conclusions 24 and 25 merely recite the legal standard for permanent total disability and the ALJ’s ultimate finding that the claimant failed to carry her burden of proof. Conclusion 26 pertains to permanent partial disability and the ALJ’s finding that the claimant failed to overcome the impairment rating of the IME physician by clear and convincing evidence. See §8-42-107(8)(c), C.R.S. 1998.
II.
The claimant specifically disputes Finding of Fact 17 where the ALJ credited the opinions of Dr. Mueller and Dr. Gutterman “that the claimant has sustained no permanent mental impairment due to the injury in this case.” The claimant alleges that the ALJ misinterpreted Dr. Mueller’s June 17, 1997, report in which the doctor stated that the 25 percent pulmonary impairment rating “takes into account psychological adjustment for her condition.” The claimant argues that this sentence must be read to mean that Dr. Mueller believes the claimant has psychological impairment. We disagree.
As we have pointed out, the weight and inferences to be drawn from expert testimony are matters within the fact-finding authority the ALJ. Insofar as particular medical testimony contains internal inconsistencies it is for the ALJ to resolve the inconsistency by crediting part or none of the testimony. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Dr. Mueller’s June 17 report is not fatally inconsistent with Finding of Fact 17. Indeed, Dr. Mueller’s report explicitly states that the claimant does not have “a separate psychiatric diagnosis that requires an impairment rating, since her current symptoms are related only to her inability to perform actions secondary to breathing problems.” The ALJ apparently interpreted the report to mean that, insofar as the claimant has any psychiatric symptoms, those symptoms are fully accounted for by the rating given for the claimant’s asthma. Thus, a separate rating for psychological impairment would constitute a double award. The mere fact that the report might have been interpreted differently affords no basis for relief on appeal.
III.
The claimant also disputes the ALJ’s decision to credit the testimony of the respondents’ vocational expert. The claimant argues that the testimony is incredible as a matter of law because the expert did not visit any of the premises where she said the claimant could work, nor did the expert administer vocational testing. Further, the claimant notes that the vocational expert did not provide a report prior to the hearing. Again, we perceive no error.
We may not find testimony incredible as a matter of law unless it is rebutted by such hard, certain evidence that it would be error as a matter of law for the ALJ to believe the testimony Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). So long as an expert’s opinion is reasonably grounded in the evidence it is not inadmissible. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992).
Here, the record reflects that the testimony of the respondents’ vocational expert was based on her understanding of the claimant’s medical restrictions and the expert’s own market research. The fact that the expert did not go to any employer’s premises or conduct vocational testing went to the weight, not the admissibility of her testimony. Thus, the ALJ acted within her authority by crediting this testimony.
Neither did the absence of a prehearing report require the ALJ to disregard the expert’s testimony. First, as the respondents point out, the claimant made no objection to the testimony based on the absence of a report. Consequently, the claimant waived any possible objection. C.R.E. 103(1)(a). Further, neither the statute nor the rules requires an expert to provide a report prior to testifying at the hearing. See Reed v. Demetre Painting, W.C. No. 3-069-138 (January 15, 1993).
Insofar as the claimant makes other arguments they are factual in nature, and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 2, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
_________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed March 26, 1999
to the following parties:
Juanita Chapman, 1324 South Fulton Way #D-207, Denver CO 80231
Joanne Wilkes, University of Colorado Insurance, 4840 Pearl E. Circle Ste. 103, Boulder, CO 80301
Kathryn Keim, R.N., University Hospital 5250 Leetsdale Dr. Ste. 110, Denver CO 80222
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
David L. Lavinder, Esq., PO Box 609, Franktown, CO 80116 (For Respondents)
BY: ______________