W.C. No. 4-283-201Industrial Claim Appeals Office.
June 21, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied his claim for temporary total and temporary partial disability benefits from September 11, 1995, through March 7, 1997. The claimant argues the ALJ applied an incorrect standard of law because he failed to determine whether the industrial injury caused restrictions, and whether these restrictions impaired the claimant’s ability to earn wages after September 11. We affirm.
The claimant sustained a compensable injury to his right wrist while employed as a salesman for respondent Rocky Mountain Safety, Inc. (Rocky Mountain). The claimant testified the job with Rocky Mountain required extensive driving, and that he incurred the injury because he was required to drive a company truck equipped with a standard transmission and no power steering. The claimant first experienced symptoms of the injury in approximately May 1995.
Nevertheless, the ALJ found that the claimant continued to work “his regular full-time unmodified job” until he was terminated in September 1995. Thereafter, the claimant obtained two sales jobs, both of which required “a great deal of driving.” The second of these jobs ended in February 1997.
In January 1997, the claimant’s treating physician, Dr. Foster, imposed restrictions which prohibited the claimant from lifting more than 20 pounds, carrying more than 10 pounds, or doing “any repetitive work.” Although no physician had previously placed restrictions on the claimant, Dr. Foster stated that the “restrictions have been in place since the time of [the claimant’s] injury and until the time that I saw him, namely January 8, 1997.”
The ALJ found that the claimant’s condition worsened in 1997, and that Dr. Foster performed a wrist fusion in April 1997. The respondents voluntarily admitted liability for temporary total disability benefits commencing March 8, 1997.
The ALJ denied the claim for temporary total and temporary partial disability benefits from September 11, 1995, through March 7, 1997. In support, the ALJ found that the claimant failed to prove he was “disabled” from engaging in his “regular employment”at any time prior to the respondents’ admission of liability. Further, the ALJ found that the opinions of Dr. Foster concerning the claimant’s “restrictions during the disabled time period, are not credible.”
On review, the claimant contends the ALJ applied an incorrect legal standard in assessing his entitlement to temporary disability benefits during the disputed period of time. Specifically, the claimant asserts the ALJ failed to make any findings concerning whether or not the injury resulted in “restrictions,” and whether those restrictions “to some degree” impaired the claimant’s ability to earn wages after his separation from employment on September 11, 1995. The claimant also contends the evidence does not support the ALJ’s finding that he was able to return to his regular job, and that the ALJ failed to consider the testimony of his vocational expert. We find no error.
In order to establish the right to temporary disability benefits the claimant must prove that the injury “caused disability.” Section 8-42-103(1), C.R.S. 1998; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term disability, as used in workers’ compensation cases, connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by a claimant’s inability to “resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of “disability” may be evidenced by a complete inability to work, or by restrictions which impair the claimant’s ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999).
The question of whether the claimant has proven the existence of restrictions comprising the “medical incapacity” element of disability is one of fact for determination by the ALJ. In making this determination the ALJ is not restricted to considering medical evidence, nor is he required to give any special weight to the opinions of the treating physician. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) (claimant need not produce medical evidence of restrictions to establish disability); Meagher v. City County of Denver, W.C. No. 4-274-962 (May 21, 1998) (in view o Lymburn, ALJ need not credit opinion of treating physician concerning claimant’s restrictions when deciding initial question of disability). Similarly, the question of whether the restrictions actually impaired the claimant’s ability to perform his regular employment is one of fact for the ALJ. See Ziel v. Eastman Kodak Co., W.C. No. 4-313-166 (June 12, 1998).
Because these issues are factual in nature, we must uphold the ALJ’s order if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 1998. This standard requires us to defer to the ALJ’s resolution of conflicts of 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). Moreover, the ALJ is not held to a standard of absolute clarity in expressing his findings so long as the basis of the order is apparent from those findings which were entered. Riddle v. Ampex Corp., 839 P.2d 409 (Colo.App. 1992). Testimony and evidence not mentioned in the findings is considered to have been implicitly rejected by the ALJ. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999).
In view of these principles we see no basis for concluding that the ALJ applied an incorrect standard of law when assessing the claim for temporary disability benefits. To the contrary, the ALJ expressly found that the claimant failed to prove that any restrictions rendered him unable to perform the duties of his regular employment before March 8, 1997. Consequently, to the extent the claimant sustained any limitations of physical function as a result of the injury, those limitations did not become temporarily disabling until March 1997. Thus, the ALJ determined that the claimant failed to establish any impairment of his wage earning capacity during the disputed period.
The claimant’s assertion notwithstanding, we do not understand the ALJ to have relied solely on the fact that the claimant sought and obtained “post-termination” employment “in his chosen field of sales.” To the contrary, the ALJ determined that the type of jobs which the claimant sought and obtained after September 11, 1995, tended to discredit the claimant’s testimony that he was restricted from performing his pre-injury duties. This constituted a plausible inference from the evidence, and we are not at liberty to interfere with it.
Finally, the evidence fully supports the ALJ’s factual findings concerning the claimant’s ability to perform his pre-injury job prior to March 8, 1997. Although the claimant testified that the injury impaired his ability to perform some duties with Rocky Mountain, the ALJ was not required to credit this testimony. Neither was the ALJ required to credit the testimony of the claimant’s vocational expert. Instead, the ALJ was persuaded by evidence that the claimant remained employed by Rocky Mountain for several months after incurring the injury, and apparently continued to perform extensive driving duties. Moreover, after leaving Rocky Mountain, the claimant obtained other jobs which also required extensive driving. Finally, the ALJ was unpersuaded by Dr. Foster’s medical opinions in light of the claimant’s actual activities. The mere fact that other findings of fact were possible affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office 752 P.2d 589
(Colo.App. 1988).
Insofar as the claimant makes other arguments, we find to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 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 June 21, 1999 to the following parties:
James A. Davisson, 5401 E. Braden Rd., Byron, MI 48418
Rocky Mountain Safety, Inc., Attn: Ron Smith, 2411 E. Fox Farm Rd., Cheyenne, WY 82007-2541
Stephen Jones, Esq., 1700 Broadway, #1910, Denver, CO 80290
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
BY: jls