W.C. No. 4-447-698.Industrial Claim Appeals Office.
September 16, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) insofar as the ALJ awarded benefits for permanent and total disability (PTD) and medical benefits after maximum medical improvement (MMI). We affirm.
In 1999 the claimant sustained a compensable back injury. In 2002 Dr. Gutterman diagnosed depression caused by the industrial injury. Dr. Saathoff began treating the claimant for a major depressive disorder and anxiety in 2003.
In 2004 the respondents filed a Final Admission of Liability for the payment of medical impairment benefits based on Dr. Dallenbach’s opinion that the claimant suffered 24 percent whole person medical impairment from the back injury. The claimant did not contest the award of medical impairment benefits and subsequently requested PTD benefits.
The ALJ found that as a result of the industrial injury the claimant has pain in the lower right quadrant extending to the right foot, experiences numbness in the right leg which causes the claimant to fall. The ALJ also found the claimant’s back occasionally feels as if it is “locking up.” Due to these symptoms the ALJ found the claimant cannot bend, stoop, lift more than 1 gallon, sit more than 15 minutes, stand more than 20 minutes, and walk more than 1.5 blocks.
In addition the ALJ found the claimant is irritable, defensive, and has problems with concentration, memory, and nervousness as a result of the industrial injury. In so finding, the ALJ recognized the claimant experienced some personal stressors after the industrial injury. However, the ALJ determined the resulting sadness and anxiety were normal, situational feelings which did not contribute to the claimant’s psychological condition at the time of the hearing on PTD benefits.
Crediting the opinions of Dr. Saathoff and vocational expert Dennis Duffin (Duffin) the ALJ determined the claimant is unable to earn any wages in the same or other employment due to the combined effect of her age of 61 years, her chronic pain, and the physical and mental limitations caused by the industrial injury. Therefore, the ALJ awarded PTD benefits. The ALJ also awarded future medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
I.
On review the respondents contest the ALJ’s credibility determinations and argue there is insufficient credible evidence to support the awards of PTD and Grover-type benefits. We reject these arguments.
Under the applicable law, a claimant is permanently and totally disabled if she is “unable to earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2005; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is capable of earning wages is a factual determination to be made by the ALJ based upon consideration of a number of “human factors.” Christie v. Coors Transportation Co., supra. These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550
(Colo. 1998).
However, the industrial injury does not have to be the sole cause of the claimant’s inability to earn wages. Rather, the claimant must only demonstrate that the industrial injury is a “significant causative factor” in the PTD to recover benefits. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Christie v. Coors Transportation Co., supra. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122
(Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
Here, there was a direct conflict between the medical and vocational experts. The ALJ resolved the conflict in favor of the claimant by crediting the claimant’s testimony and the opinions of Dr. Saathoff and Duffin. We may not reweigh the evidence on review and, therefore, decline the respondents’ invitation to do so. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inferences may be drawn from the evidence, we may not substitute our judgment for that of the ALJ). Further, the ALJ’s credibility determinations are binding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997).
Dr. Saathoff’s opinions are consistent with the independent medical examination of Dr. Gutterman. Under these circumstances, we cannot say the ALJ erred as a matter of law in relying on Dr. Saathoff’s opinions.
Furthermore, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers’ compensation claims and it was the ALJ’s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication). In resolving inconsistencies the ALJ may credit all, part or none of an expert’s testimony, and the ALJ’s failure to cite an expert’s opinion inherently reflects that the ALJ did not find it persuasive. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
There is substantial evidence in the medical reports of Dr. Saathoff and Dr. Gutterman to support the ALJ’s finding that the claimant’s psychological dysfunction was the product of the industrial injury and not the product of either a pre-existing disorder or an efficient intervening event. This medical evidence, together with Duffin’s opinion that the claimant’s psychological dysfunction precludes the claimant from sustaining even sedentary employment constitutes substantial evidence supporting the ALJ’s finding of PTD.
The respondents’ further arguments have been considered and do not alter our conclusions. C.R.E. 703 permits an expert to base his opinion on “facts or data” made known to him before the hearing. Further, the facts or data need not be admissible in evidence “if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” In view of this rule, the courts have permitted expert witnesses to express opinions based on out-of-court reports of other experts. See Fenton v. Fireboard Corp., 827 P. 2d 564
(Colo.App. 1991); Gold Rush Investments, Inc. v. G.E. Johnson Construction Co., 807 P.2d 1169 (Colo.App. 1990); Southland Corp. v. Industrial Claim Appeals Office, Colo. App. No. 94CA642, March 16, 1995 (not selected for publication). It follows that the ALJ was not precluded from crediting Duffin’s opinions insofar as the opinions were based on a “June 15, 2003” report by Dr. Saathoff which was not admitted in the record.
Nevertheless, the ALJ could reasonably infer that Duffin’s reference to a “June 15” Work Capacity Evaluation (Mental) report and the listed quotations were actually references to the September 15, 2003, Work Capacity Evaluation (Mental) by Dr. Saathoff, which was part of the record. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order). The fact the September 15 report was never supplemented went to the weight of the report, not its admissibility.
Moreover, under the full-responsibility rule, the respondents took the claimant as they found her. Therefore, evidence the claimant was depressed as a result of personal stressors prior to the 1999 injury does not preclude an award of PTD. See United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000); Colorado Fuel and Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962).
Contrary to the respondents’ further contention the ALJ explicitly acknowledged the respondents’ contention the claimant’s depression was caused by subsequent, intervening non-industrial stressors. However, the ALJ was not persuaded and based on this record, we cannot say the ALJ erroneously rejected this argument. (See Finding of Fact 24).
Finally, we do not read the ALJ’s finding that the claimant’s PTD was “due to a combination” of various physical and mental limitations as inherently finding the claimant had pre-existing mental impairment which combined with the industrial impairment to cause PTD. Therefore, we reject the respondents’ contention that this finding is inconsistent with the absence of pre-existing permanent mental impairment.
II.
The respondents’ obligation to provide medical benefits terminates at MMI, except where 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. Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the respondents’ right to contest the compensability of any particular treatment on grounds the treatment is not authorized or not reasonably necessary. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997).
Whether the claimant sustained her burden to prove entitlement t Grover-type medical benefits is a question of fact for resolution by the ALJ which governed by the substantial evidence rule. Section 8-43-301(8). Further, the special weight afforded the opinions of the treating physician concerning the need for additional treatment is restricted to the issues of MMI and medical impairment. Section 8-42-107(8)(c), C.R.S. 2005. Consequently, evidence Dr. Dallenbach did not recommend Grover-type treatment was not binding on the ALJ. To the contrary, Dr. Saathoff’s recommendation for continuing medication after the date of MMI is sufficient to support the general award of Grover-type benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 25, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Curt Kriksciun
Dora Donley, Florence, CO, Swinerton Walberg Company, Oakland, CA, Insurance Company of the State of Pennsylvania, c/o Tina Gustafson, AIG Claim Services, Rick P. Sauer, Esq., Canon City, CO, (For Claimant).
Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).