W.C. No. 4-220-395Industrial Claim Appeals Office.
January 16, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ awarded permanent total disability benefits. We affirm.
The ALJ made extensive findings of fact which may be summarized as follows. The claimant suffered a compensable injury to his left leg in 1994, which was treated by Dr. Pitzer. During the course of treatment, the claimant was diagnosed with Reflex Sympathetic Dystrophy.
As a result of the injury the claimant suffers from chronic, unremitting pain in his leg, and has trouble standing, walking, sitting and lying for more than short periods of time. The claimant takes ten daily medications to control pain, high blood pressure, and stomach discomfort. Some of the medications are narcotics. The claimant also takes psychotropic medications to help him sleep and to control severe depression. Due to the effects of the medications, the claimant has concentration problems, and therefore, needs assistance performing most daily living activities, does not engage in any recreational activities, is socially isolated, and no longer drives on public streets. The claimant also suffers sudden “attacks” or “seizures,” lasting up to forty five minutes, during which his body stiffens and he is unable to control his movement.
Vocational rehabilitation expert Avery Bradley Davis (Davis) concluded that the claimant is unable to earn any wages based upon his physical limitations, mental confusion, memory problems, irritability, lack of stamina, and associated problems getting ready for work and getting to work. Dr. LaCerte, who treated the claimant’s psychological injury, testified that the industrial injury has caused the claimant to sustain short-term memory impairment, and has compromised the claimant’s communication, social functioning, concentration, and judgment. Further, Dr. LaCerte opined that due to the claimant’s current condition, he could not hold a job. Dr. Ristig, the claimant’s treating psychiatrist, concurred with Dr. LaCerte’s diagnosis. Dr. Ristig also agreed with Dr. LaCerte that the claimant’s current condition precludes him from holding a job.
Dr. Pitzer stated that the claimant’s physical injury restricts him to sedentary employment. However, Dr. Pitzer deferred to Dr. Ristig concerning the impact of the claimant’s psychological injury.
Crediting the opinions of Dr. Pitzer, Dr. Ristig, Dr. LaCerte and Davis, the ALJ determined that the claimant’s physical injury restricts him to sedentary employment, and that the claimant’s “mental condition, including his depression and the `attacks’ he experiences preclude him from `obtaining and maintaining’ even sedentary employment.” Consequently, the ALJ determined that the claimant is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.).
I.
On review there is no dispute that the claim for permanent total disability benefits is governed by § 8-40-201(16.5)(a), which provides that a claimant is permanently and totally disabled if he is “unable to earn any wages in the same or other employment.” However, the respondents contend that “obtaining and maintaining” employment are not statutory factors in determining whether a claimant is permanently and totally disabled under §8-40-201(16.5)(a). Therefore, the respondents contend that the ALJ applied the wrong legal standard in considering whether the claimant was capable of obtaining and maintaining employment. We disagree.
The determination of whether the claimant is capable of earning wages is a factual determination for the ALJ. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995), cert. granted July 1, 1996; McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). In resolving this issue the ALJ may consider a myriad of “human factors,” pertaining to the claimant’s ability to earn wages. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). One such factor is the claimant’s “access” to employment. See Brush Greenhouse Partners v. Godinez, ___ P.2d ___ (Colo.App. No. 96CA0266, December 27, 1996); Weld County School District RE-12 v. Bymer, ___ P.2d ___ (Colo.App. No. 96CA0041, October 31, 1996).
Contrary to the respondents’ argument, the claimant’s residual “efficiency” to compete for available employment is a pertinent consideration if the industrial injury has rendered the claimant so inefficient that he lacks the ability to earn any wages. Christie v. Coors Transportation Co., 919 P.2d at 860. Furthermore, the claimant’s ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired for, and sustaining employment. See Bond v. Mesa County School District, W.C. No. 3-103-251, December 8, 1993. Therefore, we believe that the claimant’s ability to obtain and maintain employment is a relevant “human factor” for the ALJ’s consideration in determining whether the claimant is permanently and totally disabled under § 8-40-201(16.5)(a).
In this case, the ALJ’s findings of fact reflect his determination that the residual effects of the claimant’s psychological injury as well as his “seizures” render the claimant so inefficient that he currently lacks the skills to obtain and sustain employment. Notwithstanding the respondents’ argument to the contrary, there is substantial evidence in the record to support this determination, and thus, the ALJ’s determination is binding on appeal. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) Christie v. Coors Transportation Co., supra. Furthermore, the ALJ’s determination supports a conclusion that the claimant is unable to “earn any wages.” Consequently, we reject the respondents argument the ALJ’s order is contrary to the applicable law.
The respondents’ remaining arguments have been considered and are not persuasive. Admittedly, Dr. LaCerte encouraged the claimant to be active and believed there is a possibility that the claimant’s depression can be improved so that he could return to work. However, Dr. LaCerte testified that, at the time of the hearing, the claimant’s ability to function in the workplace was poor, and that until the claimant’s pain and depression were better controlled he could not “tolerate a work environment well at all.” (Tr. March 19, 1996, p. 80). Dr. LaCerte added that the claimant’s psychological problems were such that he would it would be “quite difficult for [the claimant] to hold a job.” (Tr. March 19, 1996, pp. 80-81). Because Dr. LaCerte did not consider the claimant capable of employment, the fact that Dr. LaCerte did not impose any work “restrictions” in connection with the claimant’s psychological injury is inconsequential.
Moreover, we are not persuaded that the ALJ erroneously failed to resolve conflicts in the evidence concerning whether the claimant’s “seizures” were proximately caused by the industrial injury. Reading the ALJ’s findings as a whole, the ALJ implicitly determined that the seizures were causally related to the industrial injury. This conclusion is illustrated by the fact that the ALJ credited the claimant’s testimony concerning the nature of the seizures. (Finding of Fact 7). The claimant specifically stated that the effects of the industrial injury worsened in August 1995, when began experiencing the seizures. (Tr. March 19, 1996, pp. 18, 45). Moreover, the claimant testified that he had no health problems before the injury. (Tr. March 19, 1996, p. 44).
Further, the ALJ expressly recognized Dr. Ristig’s testimony that she did know the exact cause of the claimant’s seizures. (Finding of Fact 12). However, the ALJ noted Dr. Ristig’s statement that the seizures may be related to problems controlling the claimant’s hypertension or were an atypical anxiety attack.
Dr. Pitzer admitted that the problems controlling the claimant’s hypertension were causally related to the industrial injury. (Pitzer depo. pp. 28-30; Ristig report January 27, 1996). Dr. Pitzer also deferred to Dr. Ristig on the cause of the seizures, and the ALJ so found. (Finding of Fact 10). Under these circumstances, the ALJ implicitly rejected Dr. Pitzer’s testimony suggesting that the seizures are unrelated to the industrial injury. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994 ) (ALJ not required to make findings of fact on every piece of evidence, just those found persuasive and determinative).
In any event, the respondents did not affirmatively argue to the ALJ, as they do on appeal, that the claimant’s “seizures” constituted a subsequent, intervening, non-industrial condition which precluded an award of permanent total disability benefits. Nor did the respondents request that the ALJ make such a determination. See (Tr. March 12, 1996, pp. 5-12). Consequently, they may not raise this defense for the first time on appeal Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990) (ALJ entitled to rely on parties’ representations concerning the issues to be determined at the hearing).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed January 16, 1997 to the following parties:
Timothy W. Cotton, 4453 S. Hannibal Way, #453, Aurora, CO 80015
Denco Enterprises, 13515 West Ave., Apt. 625, San Antonio, TX 78216-2086
Mid-Century Insurance Co., P.O. Box 378230, Denver, CO 80237-8230
Marlin W. Burke, Esq., 1700 Broadway, Ste. 1800, Denver, CO 80290 (For the Claimant)
Michael Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
By: ______________________________________________