W.C. No. 4-422-129Industrial Claim Appeals Office.
November 5, 2001
FINAL ORDER
The claimant and the respondents separately petition for review of orders of Administrative Law Judge Felter (ALJ). The respondents seek review of an order dated March 19, 2001, which required them to pay permanent total disability benefits. The claimant seeks review of an order dated August 21, 2001, which denied his request for an order requiring the immediate payment of benefits awarded on March 19. We affirm the award of permanent total disability benefits and dismiss the claimant’s petition to review.
The claimant suffered an admitted industrial back injury in 1998. At the time of the injury, the claimant was employed as a glazer which had been his occupation for the last 39 years.
The injury was treated by Dr. Sacha who diagnosed a lumbosacral strain with evidence of stenosis and degenerative disc changes. On March 3, 1999, Dr. Sacha placed the claimant at maximum medical improvement with 12 percent whole person impairment due to a specific disorder and lost range of motion to the lumbar spine. Dr. Sacha also imposed permanent medical restrictions.
The respondents admitted liability for permanent partial disability benefits consistent with Dr. Sacha’s medical impairment rating. The claimant objected and requested benefits for permanent total disability. At the time of the hearing on permanent disability, the claimant was 61 years old and had been diagnosed with cardiomegaly resulting in decreased left ventricular function.
The respondents’ vocational expert, Sara Nowotny (Nowotny), opined the claimant is capable of earning wages in a variety of occupations approved by Dr. Sacha. The claimant’s vocational expert, Mark Litvin (Litvin), opined the claimant’s return to work is hampered by his limited tolerance for lifting, prolonged sitting, prolonged periods of time on his feet, driving, and the effect of medications on his concentration. Based upon these limitations, the claimant’s age, and the lack of transferable job skills, Litvin opined the claimant is unable to earn any wages.
The ALJ found Litvin’s opinions the most persuasive and rejected the contrary opinions of Nowotny and Dr. Sacha. Furthermore, the ALJ found the industrial injury was a significant causative factor in the disability. Consequently, the ALJ awarded permanent total disability benefits. The ALJ also awarded disfigurement and future medical benefits. The respondents timely appealed the order.
The claimant subsequently filed a motion requesting an order requiring the respondents to immediately pay the awarded benefits despite the pendency of an appeal. On August 21, 2001, the ALJ denied the claimant’s motion. The claimant timely appealed that order.
I.
On review, the respondents contend the claimant is more severely limited by his heart condition than the low back injury. They argue the ALJ erroneously failed to distinguish between the restrictions imposed for the industrial injury and restrictions imposed for the heart condition. The respondents also contend the ALJ failed to explain the basis for his finding that Dr. Sacha’s opinions, and thus the opinions of Nowotny, were unpersuasive. Therefore, they argue the ALJ’s findings are insufficient to permit appellate review of whether the ALJ erroneously determined the cause of the claimant permanent total disability. We reject these arguments.
Initially, we note that the respondents’ Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
Section 8-40-201(16.5)(a), C.R.S. 2001, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” Under the statute, the claimant has the burden of proof to establish permanent total disability. In determining whether the claimant has satisfied that 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, 955 P.2d 550 (Colo. 1998). As argued by the claimant, the overall objective of this standard is to determine whether, in view of all 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.
However, the claimant is not required to establish that an industrial injury is the sole cause of his inability to earn wages. Rather, the claimant must demonstrate that the industrial injury is a “significant causative factor” in the permanent total disability Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Specifically, 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). Consequently, evidence that the claimant’s permanent total disability is the result of an efficient, intervening nonindustrial condition may support a finding that the industrial injury is not a significant causative factor. 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).
The determination of whether the claimant proved the requisite causal relationship, or whether there is an efficient intervening cause of the permanent total disability, are issues of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s order if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2001; Seifried v. Industrial Commission, supra.
In his report dated March 3, 1999, Dr. Sacha permanently restricted the claimant from lifting more than 30 pounds, and more than occasional twisting. Dr. Sacha reported that the restrictions were based the claimant’s “clinical status as well as a lifting evaluation performed.”
In February 1999 the claimant underwent a Functional Capacity Assessment (FCA). The FCA lists a history of low back injury in 1998. The FCA placed the claimant in the sedentary work category and restricted the claimant from crouching, crawling, kneeling, reaching overhead, push/pulling, carrying over 2 pounds and lifting more than 11 pounds. The FCA also concluded the claimant was unable to sit longer than 15 minutes, stand longer than 45 minutes, or walk more than 10 minutes without changing position.
The claimant also underwent a FCA in August 1999 in connection with his application for Social Security disability benefits. The August 1999 FCA restricted the claimant from lifting more than 20 pounds, standing or walking more than 6 hours in a workday, and sitting more than 6 hours in a workday. Furthermore, on April 12, 1999, Dr. Beck restricted the claimant from lifting more than 25 pounds, pushing more than 50 pounds, hammering and climbing.
We have no trouble ascertaining the reasons the ALJ rejected the opinions of Dr. Sacha and Nowotny concerning the claimant’s physical capabilities. The ALJ found Dr. Sacha’s opinions were not persuasive because he did not mention the February FCA restrictions in his March 3 report and did not explain why the restrictions listed in the February FCA were not reflected in his report. The ALJ also determined Dr. Sacha’s opinions were “divergent from the rest of the medical evidence.” (Finding of Fact 9). Instead, the ALJ relied on the February FCA restrictions because they were consistent with the claimant’s subjective complaints and the opinions of Dr. Beck. (Finding of Fact 10). Furthermore, because the February FCA concluded the listed restrictions were reliable, the ALJ found the FCA restrictions more persuasive than the opinions of Dr. Sacha and the opinions of Nowotny who relied primarily on Sacha’s medical restrictions in concluding the claimant was capable of earning wages. (Finding of Fact 11). Thus, the ALJ’s findings are sufficient to permit review of the basis for his order. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992)
Next, it is true the ALJ did not attempt to precisely delineate which medical restrictions were imposed for the industrial injury. However, assuming arguendo that more severe medical restrictions were imposed for the claimant’s heart condition than the industrial injury, that did not preclude the ALJ from finding that the industrial injury was a significant causative factor in the permanent total disability. Furthermore, the ALJ’s findings amply articulate the basis for his implicit determination that the industrial injury was a direct cause of the permanent total disability.
The ALJ found that at the time of the industrial injury the claimant was performing heavy full-time work as a glazer, and the cardiac condition did not preclude him from that employment. (Finding of Fact 13). Dr. Beck opined that the heart problems began prior to 1992. However, the heart problems were not discovered, treated or disabling prior to the industrial injury. Accordingly, the ALJ determined that were it not for the back injury, the claimant could have continued to work See Tr. March 7, 2001, pp. 20, 21, 25; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Furthermore, the ALJ found that as a result of the industrial injury the claimant suffers serious low back pain, and other symptoms in his left buttock and left lower extremity. The ALJ also found the back injury has caused the claimant to walk with an antalgic gait, use a cane, sit largely on his right buttock, and requires his use of narcotic medication. (Finding of Fact 7). Moreover, the ALJ noted that neither party disputed the industrial injury caused 12 percent permanent medical impairment. (Finding of Fact 2). There is substantial evidence in the record to support these findings, and these findings support the ALJ’s determination that the back injury played a significant role in the claimant’s permanent total disability. Therefore, we perceive no error in the ALJ’s determination that the claimant proved his entitlement to permanent total disability benefits.
II.
In his appeal from the August 21 order, the claimant contends the ALJ erroneously denied his motion for an order requiring the respondents to immediately pay disfigurement and permanent total disability benefits pending the respondents’ appeal. We dismiss the claimant’s appeal because the order is not subject to review.
Section 8-43-301(2), C.R.S. 2001, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
The ALJ’s order dated March 19, 2001, directed the respondents to pay permanent total disability benefits at the rate of $519.61 per week commencing March 3, 1999, less all applicable credits and offsets. The ALJ also ordered the respondents to pay benefits of $1,000 for bodily disfigurement. Further, the ALJ ordered the respondents to pay interest at the rate of 8 percent per annum on all compensation not paid when due.
In contrast, the August 21 order does not award or deny a benefit or penalty. Specifically, the order does alter the amount of the benefits previously awarded or the date such benefits commence. The ALJ’s refusal to order the benefits be paid during the pendency of an appeal did not constitute a denial of benefits, because the respondents continued to remain liable for the benefits under the previous order. Thus, the August 21 order is not subject to review under § 8-43-301(2).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 19, 2001, is affirmed.
IT IS FURTHER ORDERED that the claimant’s petition to review the ALJ’s order dated August 21, 2001, is dismissed.
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. 2001. 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 November 5, 2001 to the following parties:
Norman Elliott, P. O. Box 607, Empire, CO 80438
A-1 Glass, National Human Resource Committee, 2851 High Meadow Circle, Auburn Hills, MI 48326-2773
Gayle Trottnow, Zurich U.S. P. O. Box 370308, Denver, CO 80237
William J. Macdonald, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Raymond A. Melton, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Pendroy