W.C. No. 4-323-980 4-596-961.Industrial Claim Appeals Office.
July 24, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) dated February 28, 2006 that denied the claimant’s claim for death benefits. We affirm.
The claimant in this matter sought death benefits on account of the alleged permanent total disability of his wife (the decedent) at the time of her death from causes unrelated to her compensable injury. Following a hearing on the issue of death benefits, the ALJ entered factual findings that may be summarized as follows. The decedent sustained a compensable injury to her right knee in December 1996, and then subsequently injured her right ankle in a fall that was later determined to be caused by the compensable knee injury. She reached maximum medical improvement on February 4, 2002, and a Division-sponsored independent medical examination (DIME) determined that she sustained permanent impairment equal to 37 percent of her right lower extremity and 17 percent of her left lower extremity. The respondents admitted liability for permanent partial disability benefits based upon those impairment ratings. On April 10, 2003 the decedent died of pneumonia, which was probably a complication from her systemic lupus erythematosus (SLE), a condition that she suffered from since 1967. She had been hospitalized with pneumonia in 1997, which her doctors opined was an exacerbation of the SLE, and then continued to experience related health problems following that hospitalization. She underwent a functional capacity evaluation in October 1996, which resulted in restrictions that limited her to the sedentary work category. She also suffered from significant weakness and “severe loss of upper body strength.” The condition of the decedent’s upper body continued to deteriorate up until the date of her death. Neither the authorized treating physician nor the DIME physician had as a result of the compensable injury imposed any limitations on the decedent’s use of her hands or arms. The ALJ weighed competing testimony from the parties’ vocational rehabilitation experts and expressly rejected the opinions of the claimant’s expert as not persuasive. Conversely, the ALJ credited the opinions of the respondents’ expert, and found that the decedent was unemployable at the time of maximum medical improvement and at the time of her death, both as a result of the impairment resulting from the decedent’s SLE.
Based upon her factual findings the ALJ concluded that the claimant had failed to carry his burden of showing that the decedent was permanently and totally disabled as a result of her industrial injury. Accordingly, the ALJ denied the requested death benefits.
The claimant appealed and raises two arguments. First, the claimant contends that the ALJ applied an incorrect legal standard in determining whether the decedent was permanently and totally disabled as a result of the compensable injury. And, second, the claimant contends that the basis upon which the ALJ rejected the opinions of his vocational rehabilitation expert is not supported by the record. We are not persuaded that the ALJ erred.
Section 8-40-201(16.5)(a), C.R.S. 2005, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” Under the statute, the claimant carries the burden of proof to establish permanent total disability. However, the claimant is not required to establish that an industrial injury is the sole cause of her inability to earn wages. Rather the claimant must demonstrate that the industrial injury is a “significant causative factor” in her permanent total disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Under this standard, it is not sufficient that an industrial injury create some disability which ultimately contributes to permanent total disability. Rather Seifried requires the claimant to prove a direct causal relationship between the precipitating event and the disability for which the claimant seeks benefits. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) rev’d. on other grounds Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). In determining whether a claimant is permanently and totally disabled the ALJ may consider a wide range of factors including the claimant’s age, work experience and training, the claimant’s overall physical condition and mental abilities, and the availability of work the claimant can perform. The ALJ is given the widest possible discretion in determining the issue of permanent total disability, and ultimately the issue is one of fact Professional Fire Protection, Inc. v. Long, 867 P.2d 175
(Colo.App. 1993). Further, evidence that the claimant developed an independent, intervening, nonindustrial condition after reaching MMI for the industrial injury may support a finding that the industrial injury is not a significant causative factor in the claimant’s permanent and total disability. Post Printing and Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934) Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo.App. 1984).
Of course, the claimant bears the burden of proof to establish that the industrial injuries are a “significant causative factor” in the permanent total disability. This means the claimant must establish a “direct causal relationship” between the industrial injury and the PTD. Under this test, the ALJ must determine the residual impairment caused by the industrial injury, and determine whether it was sufficient to result in permanent total disability without regard to the effects of subsequent intervening events. Resolution of the causation issue is one of fact for the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 869 (Colo.App. 2001); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986); Heggar v. Watts-Hardy Dairy, 685 P.2d 235 (Colo.App. 1984).
Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The ALJ need not enter findings concerning every piece of evidence if the bases of the order are clear from the findings and conclusions which are entered. Evidence and inferences not specifically mentioned were presumably rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Finally, the ALJ is presumed to have considered the relevant legal standards unless the contrary affirmatively appears from the order. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
The claimant argues the ALJ applied the wrong legal standard in determining that the decedent’s permanent total disability was not caused by the industrial injuries, but rather by the worsening of claimant’s SLE. The claimant’s assertion notwithstanding, Conclusions of Law 3 and 5 contain an accurate statement and application of the law in permanent total disability cases. The ALJ correctly stated the legal standard in those conclusions. Moreover, she recognized that the dispositive question was whether the claimant’s industrial injuries were a “significant factor causative of Decedent’s PTD,” or whether the permanent total disability occurred because subsequent worsening of the decedent’s SLE produced additional disability resulting in the permanent total disability. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra; Vercher v. Exabyte Corp., W.C. No. 4-204-925 (May 5, 2003). Under these circumstances, we do not view the ALJ’s occasional references to the contribution of the industrial disability as a “substantial” factor rather than a “significant” factor as compelling the conclusion that she misunderstood the correct legal standard.
Further, we have reviewed the ALJ’s findings of fact and the record. The ALJ’s pertinent findings are supported by substantial evidence in the testimony of the respondents’ vocational rehabilitation expert, and therefore must be upheld. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Furthermore, the ALJ’s findings support her determination that the compensable knee and ankle injuries were not a significant causative factor in the decedent’s inability to earn any wages prior to her death. Consequently, the ALJ did not err in denying death benefits based on the decedent’s permanent total disability. The existence of evidence which, if credited, might support a contrary result does not afford us grounds to grant appellate relief. Seifried v. Industrial Commission, supra.
The claimant also complains that Finding of Fact No. 9 misstates the opinion of the his vocational rehabilitation expert and that as a consequence the ALJ’s order should be set aside and the matter remanded. Specifically, the claimant contends that the ALJ did not correctly characterize the expert’s opinion when she stated that “Mr. Orbino appears to have concluded that SLE was either not a relevant factor in causing Decedent’s disability, or that it was exacerbated by the knee injury of December 1996.” The claimant’s argument notwithstanding, when the expert’s testimony is viewed in its totality, the ALJ’s inference is a reasonable one. The expert’s testimony was lengthy and the ALJ repeatedly questioned him to clarify his opinions. He repeatedly asserted that in his opinion the contribution of the industrial injury was significant because the claimant was previously able to work. The ALJ’s inference from his testimony that he viewed the SLE as “irrelevant” to the total disability, while perhaps an overstatement of his opinions, does not compel reversal of the order.
In any event, whether or not the disputed finding is a correct statement of the expert’s opinion, the ALJ correctly understood his opinion to be that the contribution to the decedent’s disability of the industrial injury was “significant.” She expressly found that “Mr. Orbino is of the opinion that the 1996 work injury was significant because Decedent was thereafter unable to return to any work.” Specific Findings of Fact, Conclusions of Law, and Order at 3, ¶ 9. Moreover, the ALJ also correctly stated the opinions of the respondents’ expert and expressly credited those opinions as persuasive.
Further, we note that the ALJ is not required to articulate the basis for her credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987). Rather, the ALJ’s credibility determinations must merely be sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991). The ALJ is not held to a standard of absolute clarity in expressing findings of fact so long as the basis of the award is clear from the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Here, it is clear that the ALJ resolved the conflicts in the expert testimony in favor of the respondents’ position, and we may not reweigh the evidence and disturb her credibility determinations.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 28, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
William Dickerson, Englewood, CO, Cassandra Conforti, Dover Elevator Company, Tamarac, FL, Genie Taylor, Liberty Mutual Insurance Company, Irving, TX Mark D. Elliott, Esq., Arvada, CO (For Claimant).
Benjamin P. Kramer, Esq., Denver, CO (For Respondents).