W.C. No. 4-328-776Industrial Claim Appeals Office.
April 3, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ). The claimant contends the ALJ erroneously denied the claims for additional permanent partial disability benefits, permanent total disability benefits, and medical benefits after maximum medical improvement (MMI). We affirm the orders denying permanent partial and permanent total disability benefits, but set aside the denial of future medical benefits and remand the matter to the ALJ for a new order on that issue.
The ALJ’s pertinent findings may be summarized as follows. In February 1991 the claimant suffered a compensable lateral meniscus tear to the left knee while working as a groundsman/heavy equipment operator and commercial truck driver. Dr. Lewis was the designated provider. The claimant lost no time from work as a result of the injury for five years, and he did not seek any medical treatment between 1991 and 1994.
In 1994, the claimant returned to Dr. Lewis with pain complaints but declined surgical intervention until March 1996 when he underwent an arthroscopy. Thereafter, the claimant began losing time from work. The claimant was released to modified employment in December 1996 but he did not return to work for the respondent-employer because the mine where he was working at the time of the injury had closed. The claimant has not sought any regular employment since 1996.
In July 17, 1998, Dr. Lewis placed the claimant at MMI, assigned 25 percent impairment for the lower extremity, and released the claimant from treatment. The respondents filed a Final Admission of Liability for the payment of scheduled disability benefits consistent with Dr. Lewis’s lower extremity rating.
The ALJ found the claimant has not sought any regular employment since attaining MMI due to his reluctance to test his physical abilities and his choice of lifestyle, which includes passive income that makes it possible for him to decline to regular employment. The ALJ further found the claimant has demonstrated the ability to operate a variety of motor vehicles and has earned $60 per hour for periodic employment as an independent commercial hauler, dump truck driver, and heavy equipment operator. Noting that $60 per hour is more than three times the claimant’s hourly compensation rate at the time of the injury, the ALJ found the claimant failed to prove permanent total disability or a loss of earning capacity that would warrant a working unit award for permanent partial disability. Furthermore, in the absence of evidence the claimant sought or needed medical treatment during the four years following MMI and the lack of any “current medical prescription” for ongoing medical treatment, the ALJ found the claimant failed to prove an entitlement to future medical benefits as provided under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
I.
On review, the claimant first contests the denial of benefits for permanent total disability. The claimant contends the record does not support the ALJ’s finding that the claimant is not precluded from operating heavy equipment/commercial trucks on a regular, full-time basis and that his failure to return to work for the respondent-employer is due to the mine closure rather than the industrial injury. The claimant also contends the ALJ erred in finding that the industrial injury has not significantly restricted the claimant’s recreational activities. We are not persuaded by these arguments.
Because the injury occurred prior to July 1, 1991, the applicable legal standard provides that an injured worker is permanently and totally disabled if he has not retained and will not regain efficiency to some substantial degree in the fields of general employment. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). The burden of proof to establish permanent total disability rests with the claimant.
In determining whether the claimant has sustained his burden of proof, the ALJ may consider the claimant’s education, work experience, age, medical restrictions, and vocational abilities. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). We must uphold the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from circumstantial or direct evidence in the record. Section 8-43-301(8), C.R.S. 2002; Christie v. Coors Transportation Co. supra; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
Moreover, we must defer to the ALJ’s credibility determinations, and he is not required to credit the claimant’s testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Similarly, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Accordingly, we have no authority to reweigh the evidence on review as requested by the claimant.
The claimant’s arguments notwithstanding, the disputed findings of fact are plausible inferences from the record as a whole. Although the claimant denied an ability to perform full-time work, he admitted he had not looked for regular employment since the mine closed. Further, the record contains evidence that the claimant is not medically restricted from working as a heavy equipment operator, and the claimant admitted that he has earned wages as a heavy equipment operator since 1998 through “word of mouth” opportunities.
Vocational evidence that the claimant is unable to sustain employment does not compel a contrary determination. The vocational reports of Bob Van Iderstine indicate he was unaware the claimant earned wages as a backhoe operator at the rate of $60 per hour. (Van Iderstine reports February 6, 2002, February 12, 2001). Further, Van Iderstine’s opinions relied on the claimant’s subjective assessment of his limitations which the ALJ found unpersuasive.
Moreover, regardless of the claimant’s testimony that he reduced or restricted some of his recreational activities after the industrial injury, the testimony contains ample evidence to support the ALJ’s determination that the claimant failed to prove the industrial injury restricted his recreational activities to a degree that would be inconsistent with an ability to regain efficiency in a field of employment.
Reading the record as a whole, the claimant’s admitted failure to seek employment, evidence the claimant has not been medically restricted from working, and the claimant’s causal earnings as a heavy equipment operator support the ALJ’s determination that the claimant failed to prove an entitlement to permanent total disability benefits.
II.
Next, the claimant contends the ALJ erred in limiting him to a scheduled disability award for permanent partial disability. Again, we disagree.
This February 1991 injury is governed by former §§ 8-42-107 and 8-42-110, C.R.S. (1990 Cum. Supp.). Former § 8-42-107 provides that when the claimant suffers a loss set forth on the schedule of disabilities, the claimant shall receive a scheduled disability award. Where the claimant suffers a loss not listed on the schedule, the injury shall be compensated based upon his percentage of general disability and life expectancy in accordance with § 8-42-110(1)(b). Under §8-42-110 the term “permanent disability” refers to an industrial disability or the loss of earning capacity in the labor market, not merely to a physical impairment or functional disability. Vail Associates Inc. v. West, 692 P.2d 1111, 1114 (Colo. 1984); American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (Colo. 1978). Thus, where the injury causes no loss of earning capacity the claimant is limited to scheduled disability benefits. See World of Sleep, Inc. v. Davis, 188 Colo. 443, 536 P.2d 34 (1975); London v. El Paso County, 757 P.2d 169 (Colo.App. 1988).
Here, the ALJ found with record support that the claimant failed to prove the industrial injury caused a loss of earning capacity. Therefore, the ALJ did not err in denying the claimant permanent partial disability benefits based a working unit disability. Vail Associates Inc. v. West, supra.
The claimant’s further arguments have been considered and are unpersuasive. Contrary to the claimant’s contention, the ALJ did not consider the claimant’s passive income as evidence supporting his finding that the claimant failed to prove a wage loss. The ALJ merely determined that the claimant’s receipt of passive income was relevant to the claimant’s lack of motivation to seek regular employment. (Finding of Fact 18).
III.
The claimant also contends the record is insufficient to support the ALJ’s finding that there is no prescription for future medical treatment. In particular, the claimant contends the ALJ misstated the evidence in finding that Dr. Clarke opined a high tibial osteotomy procedure was an “experimental” and “high risk procedure.” We conclude the ALJ’s findings are insufficient to permit review and, therefore, we remand the matter for additional findings. Section 8-43-301(8).
The obligation to provide medical benefits terminates at MMI. However, a claimant is entitled to future medical benefits if there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. Section 8-42-101(1)(a), C.R.S. 2002; Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
Here, the ALJ found the claimant has not been recommended for a medical procedure in the foreseeable future. In support, the ALJ found the claimant was examined by Dr. Clark on March 28, 1997, to determine whether he should proceed with a high tibial osteotomy. The ALJ found Dr. Clark opined the procedure involved a “transplantation of cartilage” which was “still experimental” and had an “unproved success rate.” (Finding of Fact 8).
Contrary to the ALJ’s determination, Dr. Clark did not refer to the high tibial osteotomy as “experimental.” Rather, Dr. Clark’s March 28, 1997 clinic notes stated:
“I discussed with [the claimant] my impressions. Options noted to him include the following: a) Live with the problem. He may use anti-inflammatory medicines and Tylenol. He should be encouraged to lose weight. b) Operative intervention includes traditional high tibial osteotomy. I have explained to him the methods of doing this including Coventry type procedure and/or hybrid fixation. In addition I have explained to him a cartilage transplantation is being done in certain centers for this problem. However in my opinion this is still an experimental type procedure and the success rate is unproven. ” (Emphasis added).
Dr. Clark added that if the claimant wished to maintain his activity level it would be best to proceed with an osteotomy. Under these circumstances, the ALJ erred insofar as he relied on Dr. Clark’s opinions to find that a high tibial osteotomy was not reasonable or necessary treatment to relieve the effects of the industrial injury.
The ALJ also found that Dr. Lewis described the “risk to Claimant for a high tibial osteotomy as `high,’ and did not recommend the procedure for claimant.” (Finding of Fact 9). However, as we read Dr. Lewis’s July 17, 1998 report, he determined that the claimant elected to undergo Hyalgan injections into the knee joint and defer consideration for a high tibial osteotomy until it was determined whether the Hyalgan injections were successful. Dr. Lewis added that he could not predict whether the Hyalgan injections would work in reducing the claimant’s pain symptoms. Therefore, he opined “the risk is fairly high” the claimant will need a proximal tibial osteotomy.
We cannot ascertain how the ALJ would have resolved the question of whether future medical treatment is likely to be reasonably necessary to relieve the effects of the industrial injury had the ALJ not misconstrued the medical reports of Dr. Lewis and Dr. Clark. Consequently, we remand the matter to the ALJ for additional findings and the entry of a new order concerning the claimant’s entitlement to these benefits.
IV.
Finally, the claimant contends the ALJ erroneously failed to increase the average weekly wage (AWW) from $628.57 to $694 based on the employer’s first report of injury which stated the claimant earned $17.34 per hour and worked 40 hours a week at the time of the industrial injury. We perceive no reversible error.
The ALJ determined the claimant’s AWW at the time of the injury was $628.57 as set forth in the respondents’ Final Admission of Liability. The claimant does not dispute the respondents’ assertion that an AWW of $628.57 entitled him to disability benefits at the maximum rate allowed by law at the time of the injury, or that all admitted liability was paid at the maximum rate. (Tr. March 5, 2000, p. 44). Consequently, for purposes of all admitted liability it is immaterial whether the claimant’s average weekly wage is $694 instead of $628.57.
Furthermore, the ALJ could reasonably infer that regardless of whether the claimant’s AWW was $628.57 or $694, the evidence the claimant was physically capable of earning $60 per hour as a heavy equipment operator was sufficient to support the finding that the claimant failed to prove any loss of earning capacity as a result of the industrial injury. Consequently, the ALJ’s error, if any, in failing to find that the claimant’s AWW was $694 was harmless and shall be disregarded. Section 8-43-310 C.R.S. 2002; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 18, 2002, is set aside insfoar as it denied medical benefits after MMI, and the matter is remanded to the ALJ for further findings and a new order on this issue, as directed herein.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ 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. 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 April 3, 2003 to the following parties:
Ronald Crawford, P. O. Box 548, Oak Creek, CO 80467
Pittsburgh and Midway Coal Company, c/o W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222
Insurance Company of North America, c/o Anita Fresquez-Montoya, ACE USA/ESIS, Inc., P. O. Box 2941, Greenwood Village, CO 80150-2941
Jonathan Wilderman, Esq., 4155 E. Jewell Ave., #500, Denver, CO 80222 (For Claimant)
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado