W.C. No. 4-023-287Industrial Claim Appeals Office.
April 27, 1999.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which awarded the claimant permanent total disability benefits for a 1989 injury. The respondents argue that the ALJ failed to determine whether the permanent total disability was caused by an intervening injury which occurred while the employer was covered by another insurer. We affirm.
The claimant sustained a compensable back injury on August 24, 1989, while the employer was insured by respondent Liberty Mutual Fire Insurance. Following the injury the claimant was able to return to drywall work, albeit with continuing back symptoms. However, in October 1993 the claimant was required to undergo a lumbar fusion at the L5-S1 level. After the 1993 surgery the claimant was promoted to a supervisory position, which apparently was less strenuous than the drywall work.
In February 1995 the claimant’s physicians advised him to undergo a second surgery to remove hardware implanted during the first surgery. However, prior to the time the surgery could be performed, the claimant suffered a work-related injury to his knee on November 15, 1995. At that time, the employer was covered by another insurer.
The claimant underwent knee surgery in December 1995 and was placed at maximum medical improvement (MMI) on June 6, 1996. The claimant was assigned a 30 percent lower extremity impairment rating, which converted to a 12 percent whole person rating. The claimant was also restricted from walking and standing for more than forty minutes per hour, restricted from climbing stairs, and prohibited from carrying more than fifteen pounds on an occasional basis. (Report of Dr. Paz, June 7, 1996).
After the claimant was placed at MMI for the knee surgery he did not return to work, but elected to have the previously recommended back surgery. (Tr. p. 15). The claimant underwent surgery on October 31, 1996, and a third surgery in October 1997. The claimant was placed at MMI for the back injury on December 16, 1997, and assigned a 29 percent whole person impairment rating. The claimant was also given restrictions against lifting more than twenty pounds, restricted from frequent bending and twisting, and restricted from walking, standing, or sitting for more than thirty minutes at a time.
The claimant’s vocational expert opined that the claimant is unemployable in any well known branch of the labor market “as a result of an August 24, 1989 lower back injury.” This expert, who was cognizant of the 1995 knee injury, stated that the claimant “has difficulty with extended sitting and sitting in a position leaning forward, which is usually required for work.” The respondents’ vocational expert opined that the claimant is permanently and totally disabled due to the combined effects of the knee injury and the back injury. This expert concluded that the claimant lost 75 percent of his access to the labor market on account of the back injury, and 25 percent on account of the knee injury.
The ALJ credited the opinion of the claimant’s vocational expert, and discredited the respondents’ expert insofar a she concluded “that the back condition alone does not make the claimant permanently and totally disabled.” Consequently, the ALJ found the claimant “is permanently and totally disabled as a result of the back injury which occurred on August 24, 1989,” and awarded benefits accordingly.
On review, the respondents contend the ALJ failed to determine whether the 1995 knee injury caused permanent total disability prior to the time the claimant reached MMI for the 1989 back injury. The respondents argue the permanent restrictions resulting from the 1995 knee injury are similar to those imposed for the back injury, and the claimant reached MMI for the knee injury before the back injury. Therefore, the respondents reason that the ALJ should have found that the knee injury was the sole cause of the claimant’s permanent total disability. We find no error.
As a general rule, an award of permanent total disability benefits requires that an injury be significant “in that it must bear a direct causal relationship between the precipitating event and the resulting disability.” Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). It is the claimant’s burden to establish that an injury was a “significant causative factor” in the permanent total disability. The question of whether the claimant carried the burden of proof is one of fact for determination by the ALJ. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999).
Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard 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 evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, 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 enter findings concerning the evidence which he finds determinative of the issues involved, and contrary evidence and inferences are considered to have been implicitly rejected. Cooper v. Industrial Claim Appeals Office, supra.
Here, we hold that the ALJ implicitly rejected the respondents’ argument that the 1995 knee injury was the sole cause of the claimant’s permanent total disability. Although there are similarities between the restrictions imposed for the knee injury and the back injury, the restrictions are not identical. The claimant’s vocational expert, whose testimony the ALJ credited, noted that the back-related restrictions against sitting and bending are particularly significant in terms of the claimant’s ability to find employment. Thus, the ALJ could plausibly conclude that the knee injury was insufficient, standing alone, to cause permanent total disability. Further, the ALJ explicitly rejected the opinion of the respondents’ vocational expert that the permanent total disability was caused by a combination of both injuries, and found that the back injury was the sole cause. Implicit in these findings is a rejection of the respondents’ theory of the case, and the ALJ was not required to make more detailed findings. Cooper v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 8, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Bill Whitacre
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 April 27, 1999
the following parties:
Glen Clark, 7041 Xavier St., Westminster, CO 80030
Rocky Mountain Drywall, Inc., 597 Olathe St., Suite C, Aurora, CO 80111-9327
Liberty Mutual Fire Insurance, Attn: Shannon Wrage, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: AP