W.C. Nos. 4-231-227, 4-279-308.Industrial Claim Appeals Office.
June 6, 2005.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Harr (ALJ), which denied and dismissed the claim for permanent total disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained two compensable injuries, one to her right shoulder in August 1994 and one to her low back in September 1994. She underwent right shoulder surgery and reached maximum medical improvement regarding that condition on September 16, 1994. William Griffis, D.O. conducted a division-sponsored independent medical examination (DIME), and reported that the claimant had sustained permanent impairment of five percent at the cervical spine and six percent at the right upper extremity. The respondents admitted for a combined rating of nine percent whole person rating. Ken Stone, M.D. placed the claimant at maximum medical improvement on January 22, 1996 for her back injury, and opined that the claimant sustained permanent medical impairment of twenty percent of the whole person. Dr. Stone also imposed permanent physical restrictions as a result of the back injury. The respondents admitted liability consistent with Dr. Stone’s medical impairment rating.
The ALJ also found that the claimant sustained injuries during an intervening motor vehicle accident. As a result the claimant’s neck condition permanently worsened.
The claimant was evaluated by two vocational experts, Reva Payne (Payne) and Margot Burns (Burns). Burns testified numerous jobs were available in the Las Vegas area, where the claimant resided at the time of the hearing. The ALJ expressly credited Burns’ testimony. Based upon these findings the ALJ concluded that the claimant had failed to show that she is unable to earn wages in employment reasonably available to her. Accordingly, the ALJ denied her claim for permanent total disability benefits.
The claimant’s Petition to Review contains factual assertions concerning the claim. However, our review is limited to the record before the ALJ. Therefore, we may not consider any factual assertions raised for the first time on appeal. Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988). Further, the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Our authority to review the ALJ’s order is defined in § 8-43-301(8), C.R.S. 2004. That statute precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
A claimant is entitled to permanent total disability benefits if the claimant is “unable to earn wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2004. Under the statute the claimant carries the burden of proof to establish permanent total disability by a preponderance of the evidence. The overall objective is to determine whether employment is reasonably available to the claimant under his or her particular circumstances. In making this determination the ALJ may consider the effects of the industrial injury in light of the claimant’s “human factors” including the claimant’s general physical and mental condition, work history, age and education. Ultimately, the existence of permanent total disability is an issue of fact for resolution by the ALJ Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
In addition, the claimant has not provided a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Insofar as the claimant argues in her petition to review that the opinion of Burns should have been discounted because she “did not have claimant’s most recent medical history,” we disagree. The fact that an expert may possess an incomplete understanding of a claimant’s medical history goes to the weight of her testimony Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). And it is the ALJ as the fact finder who is solely responsible for determining the weight to be given expert testimony. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Further, the ALJ’s dispositive findings support the conclusion the claimant failed to prove entitlement to permanent total disability benefits. Consequently, we have no basis for disturbing his order.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 21, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Curt Kriksciun
Doris Hazard-Ross, Colorado Springs, CO, IHS of Colorado Springs, Colorado Springs, CO, Reliance Insurance c/o Cambridge Integrated Services, c/o Western Guaranty Fund Services, Denver, CO, Keith E. Mottram, Esq., Denver, CO, (For Respondents).