W.C. No. 4-357-814.Industrial Claim Appeals Office.
September 11, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant is permanently and totally disabled. We affirm.
In October 1997, the claimant suffered a compensable low back injury while working as a school bus driver. The claimant had suffered a previous back injury in 1996, and x-rays showed the claimant had preexisting osteoporosis with compression fractures.
Dr. Ogrodnick opined the industrial injury was a temporary and minor aggravation of the 1996 injury, which did not preclude the claimant from performing his regular employment. However, on October 29, 1997, Dr. Ballard released the claimant from work. On November 21, 2000, Dr. Shoemaker placed the claimant at maximum medical improvement, imposed permanent work restrictions, and assigned 13 percent medical impairment. The claimant subsequently applied for permanent total disability benefits.
At the time of the hearing, the claimant was age 70, and had an 8th grade education with a GED. The claimant testified he has pain in his back and hip, can only sit a maximum of 1 hour and only stand a maximum of 30 minutes at a time.
It is undisputed that as a result of the industrial injury, the claimant is unable to return to his previous occupations. However, Carol Jenks (Jenks), the respondents’ vocational rehabilitation expert, opined the claimant can earn wages in part-time employment as a phone sales representative, interviewer, demonstrator, greeter, petition circulator, or phone collector.
Relying on the medical restrictions imposed by Dr. Shoemaker and Dr. Ballard, the claimant’s vocational rehabilitation expert, Rodney Wilson (Wilson), opined the claimant is physically unable to earn wages due to his advanced age, lack of transferrable skills, lack of computer skills, and the inability to perform a full range of sedentary or light category work due to sitting, standing, and bending limitations. Therefore, Wilson opined it is unlikely the claimant can earn wages in the part-time employment identified by Jenks.
Giving the greatest weight to the opinions of Wilson, the ALJ found the claimant is unlikely to be able to maintain the production pace required for part-time clerical employment, and cannot perform continuous seated work due to his need to change positions and periodically lie down. As a result, the ALJ determined that even though the claimant “probably could obtain employment,” he is not “likely to be able to sustain employment even in a part-time position.” Therefore, the ALJ determined the claimant is permanently and totally disabled.
On review, the respondents contend there is insufficient evidence to support the finding of permanent total disability. We disagree.
Under the applicable law, a claimant is permanently and totally disabled if he is unable “to earn any wages in the same or other employment.” Section 8-4-201(16.5)(a), C.R.S. 2002. In determining whether the claimant is unable to earn any wages, the ALJ may consider a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). 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). Contrary to the respondents’ contention, another human factor is the claimant’s ability to obtain and maintain employment within his physical abilities. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). This is because the ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired and sustaining employment. See Christie v. Coors Transportation Co., supra Cotton v. Econ. Lube N Tune, W.C. No. 4-220-395 (January 16, 1997) aff’d, Econ. Lube N Tune v. Cotton (Colo.App. No. 97CA0193, July 17, 1997). Consequently, 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).
The question of whether the claimant has proven permanent and total disability is factual in nature. Consequently, 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. Application of the substantial evidence test 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 Christie v. Coors Transportation Co., supra. Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ’s province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the record contains highly conflicting vocational evidence concerning the claimant’s ability to earn wages. Within his sole prerogative, the ALJ resolved the conflict in favor of the claimant by crediting Wilson’s testimony. Furthermore, there is substantial evidence in Wilson’s testimony to support the ALJ’s finding that the claimant is unable to perform the part-time employment identified by Jenks, and this finding supports the conclusion the claimant is permanently and totally disabled.
The respondents contend the ALJ’s finding that the claimant is unable to “sustain” employment is speculative because the claimant left work to retire and never tried to return to any employment. Again, we disagree.
Admittedly, the record contains evidence the claimant talked to Dr. Ogrodnick about retiring at age 65 instead of returning to his job as a bus driver. However, the claimant also testified he attempted to return to work for the employer, but the employer had no light duty work available within the restrictions imposed by Dr. Ballard. Further, the claimant stated he contacted the Pikes Peak Work Force for work. (See
Tr. p. 46). It was the ALJ’s province to determine the sufficiency and probative value of this evidence. Rockwell International v. Turnbull supra.
In any case, the cause of the claimant’s unemployment was a factual issue for resolution by the ALJ. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Based on this record, the ALJ was not compelled to find the claimant’s unemployment was caused by a lack of effort. Moreover, the ALJ could, and did reasonably infer from the evidence concerning the claimant’s need to change positions and periodically lie down, that the claimant would not be able to sustain employment at a production pace sufficient to satisfy a potential employer.
In this regard, Wilson also opined that all of the jobs identified by Jenks included some production pace expectation which the claimant was unlikely to be able to perform. (Tr. p. 96). Therefore, even if we assume there is no evidence the claimant is medically precluded from performing work that does not have a production pace requirement, as the respondents contend, the ALJ’s findings support the award of permanent total disability benefits because the ALJ was implicitly persuaded by Wilson’s testimony that there are no jobs available to the claimant which do not have a production pace.
Evidence that Dr. Ogrodnick never removed the claimant from work does not compel a contrary result. Admittedly, where the respondents seek to terminate temporary disability benefits, § 8-42-105(3)(c), C.R.S. 2002, affords special weight to the attending physician’s opinion of the claimant’s ability to perform his regular employment. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). However, the special weight afforded by § 8-42-105(3)(c) does not extend to the threshold issue of whether a claimant is temporarily or permanently totally disabled. Cf. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (presumptive weight of physician’s opinion applies only where expressly required by statute); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) (there is no requirement the claimant provide medical evidence in form of opinion of treating physician to sustain burden to prove initial entitlement to temporary disability benefits). Neither is there any requirement that a claimant prove entitlement to temporary disability benefits to recover permanent total disability benefits. Cf. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996) (receipt of permanent disability benefits not dependent on receipt of temporary disability benefits); Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995) (temporary and permanent disability benefits compensate for different wage losses). It follows that evidence Dr. Ogrodnick never removed the claimant from work did not preclude a finding of permanent total disability. See Sunny Acres Villa Inc., v. Cooper, 25 P.3d 44 (Colo. 2001) (resolution of “temporary” cause of condition does not preclude litigation of “permanent” cause of condition).
The respondents’ further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 27, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 11, 2003 to the following parties:
Earnest E. Clemons, 1315 Richards Ave., Colorado Springs, CO 80906
Harrison School District #2, 1060 Harrison Rd., Colorado Springs, CO 80906
Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
John V. Fitzsimons, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Patricia Jean Clisham, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado