W.C. No. 4-372-760Industrial Claim Appeals Office.
April 10, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied permanent total disability benefits. We affirm.
In March 1998 the claimant suffered an admitted injury while bending over a manhole cover to install a water meter. As a result of the injury the claimant underwent hernia surgery. The claimant was subsequently diagnosed with depression secondary to the industrial injury. It is undisputed that as a result of the injury the claimant is physically unable to perform his pre-injury occupation.
The results of a Functional Capacity Evaluation (FCE) indicated the claimant is limited to sitting 50 minutes, standing 20 minutes, walking 30 minutes, and lifting 10 pounds. The FCE also restricted the claimant from pushing, pulling, climbing, squatting, crouching, crawling, and permits only occasional bending. In August 1999, Dr. Caughfield placed the claimant at maximum medical improvement and restricted the claimant to sedentary employment. Dr. Finn, who conducted a Division-sponsored independent medical examination (DIME), assigned a 2 percent rating due to genitofemoral nerve involvement and a 5 percent mental impairment rating. The respondents filed a final admission of liability consistent with Dr. Finn’s rating. The claimant subsequently applied for a hearing on permanent total disability.
At the hearing, the respondents’ vocational rehabilitation expert, Patricia Anctil (Anctil), opined that the claimant is employable and capable of earning wages as an order taker, telemarketer, or in a potato warehouse as a sorter, bagger, or bagger/clipper. Dr. Caughfield agreed the claimant is physically capable of performing these jobs. Anctil stated that she performed an on-site job analysis of the job of potato sorter at the Grower Shipper and Mountain King warehouses. Anctil testified that a sorter stands or sits next to a conveyor belt and is required to remove rocks, dirt and bad potatoes weighing no more than 1 pound from the belt.
The claimant has prior experience working in potato warehouses. He stated that as a result of the injury, he could not work at a potato warehouse. Nevertheless, he admitted he applied for work at Mountain King.
Sam Valdez, a supervisor at Mountain King, testified that Mountain King has no job restricted to sorting potatoes and that it was unlikely Mountain King would hire a person, such as the claimant, who is restricted to lifting 10 pounds. However, Valdez admitted he would hire a person with a disability.
The claimant’s vocational rehabilitation expert, Rodney Wilson, admitted the claimant is probably “employable, given the restrictions.” However, Wilson opined the claimant is not capable of earning wages because he is unable to effectively compete, and thus, get hired for modified employment.
The ALJ found that a result of the injury, the claimant suffers from constant groin and testicular pain which radiates into the right hip and lower back. The ALJ also found the claimant is limited to sedentary employment. However, implicitly crediting the testimony of Anctil, the ALJ found the claimant is capable of earning wages as a potato sorter. Therefore, the ALJ denied the claim for permanent total disability benefits.
On review, the claimant contends the ALJ `s findings are insufficient to ascertain the basis for the ALJ’s finding that the claimant is capable of earning wages as a potato sorter. The claimant also contends the ALJ failed to resolve conflicts in the evidence concerning whether he can work as a potato sorter. Further, relying on Valdez’s testimony that the job of potato sorter requires lifting up to 100 pounds, the claimant contends the job of potato sorter, as described by Anctil does not exist in his local labor market. Finally, the claimant contends the ALJ failed to consider evidence the claimant is unable to effectively compete for employment. Therefore, the claimant contends the ALJ erred in finding the claimant is capable of earning wages. We reject these arguments.
Section 8-40-201(16.5)(a), C.R.S. 2000, 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. This is a strict definition which precludes an award of permanent total disability benefits if the claimant is capable of earning wages in any amount. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). In determining whether the claimant has sustained his burden of proof, the ALJ may consider a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perfor . Weld County School District RE-12 v. Bymer, supra. The overall objective is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
Because the issue of whether the claimant is able to earn any wages is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000 Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997) Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Weld County School District RE-12 v. Bymer, supra. The credibility of expert witnesses, and the conclusions to be drawn from their testimony, are matters particularly within the ALJ’s province. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We also note that the ALJ is not held to a crystalline standard in articulating the basis for her order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Rather, the ALJ’s order is sufficient if the basis for the award is apparent from the findings of fact. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Contrary to the claimant’s argument, the ALJ’s order explicitly reflects her consideration of the proper legal standard. The ALJ determined that the claimant’s local labor market includes “many potato warehouses.” (Finding of Fact 7). The ALJ found that the job of potato sorter requires the “worker to either stand, or sit on a stool as desired, and sort potatoes on a conveyor belt.” The ALJ found the claimant has no impairment to his upper extremities or back. Further, the ALJ found the claimant is of “at least average intelligence and does not appear to be limited in the ability to learn new skills. The ALJ also found the claimant is articulate and described as a good worker.” Under these circumstances, the ALJ was persuaded the claimant is capable of effectively competing for work as a potato sorter. Thus, the ALJ’s order explicitly reflects her consideration of the claimant’s actual access to employment.
As argued by the claimant, the record is subject to conflicting inferences concerning the claimant’s ability to earn wages as a potato sorter. The ALJ inherently resolved conflicts in the evidence concerning the claimant’s residual vocational capacity by crediting Anctil’s testimony that the job of potato sorter was within the claimant’s physical abilities. See Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995). Moreover, Anctil’s testimony constitutes substantial evidence to support the ALJ’s pertinent findings. Therefore, the ALJ did not err in denying permanent total disability benefits.
The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, on this record, we cannot say the ALJ erred as a matter of law in relying on Anctil’s testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony).
Valdez denied Mountain King had a job position restricted to sorting potatoes and lifting less than 10 pounds. However, Anctil testified Valdez told her just the opposite. Anctil also stated that one of the sorters at Mountain King told her she does nothing else but sort potatoes “all day long.” (Tr. p. 165).
In any case, Valdez admitted he was not familiar with the operation at Grower Shippers and did not know if that warehouse had a job restricted to sorting potatoes. (Tr. p. 157). The claimant admitted he did not apply for work at Grower Shippers, even though he near that warehouse when he applied for work at Mountain King. (Tr. p. 56). Under these circumstances, the ALJ was not compelled to find the claimant sustained his burden to prove that he is unable to effectively compete for employment as a potato sorter.
Finally, we reject the claimant’s assertion there is not substantial evidence in the record to support the ALJ’s finding the claimant has no impairment to his back. The claimant testified that he suffers low back pain as a result of the industrial injury. However, at hearing, the claimant’s attorney confessed that the claimant was not going to prove an injury to his back. (Tr. p. 26).
Dr. Conyers was unable to relate the claimant’s back pain to the industrial injury. (Conyers depo. pp. April 10, 2000, p. 24, 48; April 19, 2000 p. 64). The DIME physician assigned a 2 percent whole person rating. However, Dr. Finn reported that he found no evidence of a low back injury or subsequent impairment. (Finn October 28, 1999).
Further, Dr. Carbaugh testified that his psychological evaluation of the claimant was suggestive of symptom magnification. (Tr. pp. 99). Similarly, Dr. Caughfield opined the claimant’s physical limitations are set by a “factitious pain disorder,” and did not include a rating for medical impairment. We also note that even though Dr. Caughfield restricted the claimant to sedentary employment, Dr. Caughfield opined the claimant is capable of exceeding that restriction. Dr. Caughfield added that is was impossible to tell the claimant’s actual functional limits due to symptom magnification. (Caughfield August 30, 1999).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 30, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 2000. 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 10, 2001 to the following parties:
Leroy Duran, 603 Madison, Monte Vista, CO 81144
City of Monte Vista, 4 Chico Camino St., Monte Vista, CO 81144-1016
Marla Myers, CIRSA, 3665 Cherry Creek North Drive, Denver, CO 80209
James M. Anderson, Esq., 559 E. Pikes Peak Ave., #212, Colorado Springs, CO 80903 (For Claimant)
Susan Kurachi Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
BY: L. Epperson