W.C. No. 4-636-107.Industrial Claim Appeals Office.
May 12, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated November 14, 2008, that denied the claimant’s claim for permanent total disability. We affirm.
A hearing was held on the issues of whether the claimant is permanently and totally disabled and, if not, whether her permanent impairment should be compensated based upon a whole person impairment rating. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained an admittedly compensable injury to her right shoulder on December 8, 2004. She was treated and restrictions were imposed and she returned to work on January 21, 2005 in a light duty position as a teacher’s aide. She underwent a surgery on her shoulder on April 12, 2005, which consisted of a debridement and decompression of the shoulder. The claimant again returned to work on May 19, 2005, performing light duty work in the employer’s transportation office. She reached maximum medical improvement on November 2, 2005, with physical restrictions. The employer notified the claimant that she could no longer work in the transportation office and she applied for an open position as a teacher’s aide, which she was given and worked at until the end of the school term in June 2006. A DIME was conducted and consistent with the DIME report, the claimant’s authorized treating physician, Dr. Watson, referred the claimant to a psychologist, Dr. Kaplan. The DIME physician, Dr. Shih, placed the claimant at maximum medical improvement on July 19, 2006. Dr. Shaw performed an independent medical examination of the claimant at the request of the respondents, who reported that the claimant was able to return to work as a teacher’s aide or in office work. On January
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9, 2007 the claimant underwent another surgery on her shoulder. The surgeon, Dr. Topper, reported that the claimant’s symptoms were 95 percent improved with the surgery and that her pain had resolved. Dr. Topper referred the claimant to Dr. Rook, who stated that she had impairment equal to 24 percent of the upper extremity, which was equal to 14 percent of the whole person. Dr. Rook also imposed permanent restrictions. The parties each retained vocational experts and the hearing officer weighed their respective opinions and credited those of the respondents’ expert, Margo Burns, as more persuasive than the opinions of Doris Shriver, the claimant’s expert.
Based upon his factual findings the ALJ concluded that the claimant failed to carry her burden of showing that she was permanently and totally disabled. Accordingly the ALJ denied the claim for permanent total disability benefits.
The claimant appealed the ALJ’s order and makes three arguments on appeal. The claimant argues that the ALJ abused his discretion in admitting into evidence the report of the respondents’ vocational rehabilitation expert. The claimant also argues that the ALJ abused his discretion in “adopting” work restrictions not supported by the record or by applicable law. Finally, the claimant argues that the ALJ abused his discretion by crediting the opinions of the respondents’ vocational rehabilitation expert. We have considered the claimant’s arguments and reviewed the record and we are unpersuaded that the ALJ committed reversible error or abused his discretion.
In general, the law applicable to the ALJ’s determination of permanent total disability is well-established. Section 8-40-201(16.5)(a), C.R.S. 2008, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” The burden of proof to establish permanent total disability is on the claimant. In determining whether the claimant has sustained his burden of proof, the ALJ may consider those “human factors” that define the claimant as an individual. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may 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). The overall objective of this standard 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 permanent total disability is generally factual, we must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. 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. Metro Moving Storage Co. v. Gussert,
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914 P.2d 411 (Colo.App. 1995). This standard of review requires that we consider the evidence in the 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 existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968). The substantial evidence standard of review does not permit a reviewing forum to reweigh the evidence with a view toward determining whether, given the evidence as a whole, “a mistake has been committed” in the weighing of the evidence. Rather, the existence of substantial evidence supporting a factual finding precludes the reviewing forum from disturbing it and renders it binding.
In this regard, the ALJ’s assessment of the probative value of the evidence and his credibility determinations are matters solely within his province. We may not set aside a credibility determination 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). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2001). We will neither reweigh the evidence nor substitute our judgment for that of the ALJ regarding the credibility of the competing witnesses.
Here, we are unpersuaded by the claimant’s specific arguments on appeal. The claimant first argues that the ALJ erred in admitting Burns’ vocational rehabilitation report. As we understand the claimant’s argument, it is that the ALJ abused his discretion in accepting the vocational rehabilitation report because it contained an incorrect date of injury and was therefore “irrelevant” to this matter. The claimant complains that the ALJ’s “assumption” that the incorrect date was merely a typographical error was unwarranted and that the report should have been excluded. However, § 8-43-210, C.R.S. 2008 permits the admission into evidence of “vocational reports . . . without formal identification if relevant to any issue in the case.” Here, the report sets forth the
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expert’s opinions regarding the claimant’s vocational prospects and it is unquestionably relevant to the disputed issue of permanent and total disability. In any event, the ALJ exercises wide discretion in making evidentiary rulings. See § 8-43-207(1), C.R.S. 2008; see also IPMC Transp. V. Industrial Claim Appeals Office, 753 P.2d 803, 804
(Colo.App. 1988). We therefore defer to the ALJ’s evidentiary determinations unless the ruling constitutes an abuse of discretion by “exceeding the bounds of reason.” See, Rosenberg v. Board of Education, 710 P.2d 1095, 1098-99 (Colo. 1985). Here, the expert testified regarding her report and her opinions, and we note that when respondents’ counsel asked whether the incorrect date of injury was merely a typographical error the expert replied that, “It is.” Tr. at 81. Under these circumstances, the ALJ’s ruling accepting the report into evidence cannot be said to “exceed the bounds of reason.”
The claimant next argues that the ALJ abused his discretion in crediting Burns’ opinions because she used physical restrictions in forming those opinions that had no basis in the record. In this regard the claimant also argues that certain of the physical restrictions relied upon by the ALJ were not in compliance with the rules of procedure and therefore may not support the ALJ’s findings. Again we are unpersuaded that the ALJ erred or abused his discretion in this respect.
The claimant supports this argument by noting that Dr. Rook’s physical restrictions are the only ones in the record and the claimant therefore argues that the experts (and the ALJ) were bound to accept them in formulating their opinions concerning the claimant’s employability. However, that is not the case. As correctly noted by the ALJ, he is not bound even by unrebutted testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, supra. And in fulfilling his responsibility to weigh the competing evidence and determine its probative value, the ALJ may resolve conflicts by crediting part or none of the testimony. Id. Here, the ALJ weighed the evidence and, as it was fully his prerogative to do, he rejected the opinions of Dr. Rook as unpersuasive. Accordingly, we disagree with the claimant’s argument that here reasonable minds could draw but a single inference from the factual record regarding the claimant’s permanent restrictions, if any.
Similarly, we disagree with the claimant’s arguments that Dr. Shaw’s restrictions failed to comply with the rules of procedure and therefore could not be relied upon by the ALJ. The claimant cites Workers’ Compensation Rule of Procedure 17, Exhibit 4 (B)(10), commonly referred to as the Medical Treatment Guidelines. She correctly notes that the cited guideline states that a practitioner should provide “detailed restrictions” prior to returning a patient to limited duty. However, in our view the Medical Treatment Guidelines do not constitute evidentiary rules, and an expert’s “compliance” with them
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does not dictate whether the expert’s opinions are admissible, or whether they may constitute substantial evidence supporting a fact finder’s determinations. Rather, compliance with the guidelines may affect the weight given the ALJ to any particular medical opinion. However, despite Dr. Shaw’s alleged non-compliance with the guidelines, the weight and credibility to be assigned expert medical opinion remains a matter within the fact-finding authority of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Consequently, we perceive no error in the ALJ’s crediting the opinions of Dr. Shaw.
Finally, the claimant argues that the ALJ abused his discretion in relying upon the “error-laden” report of the respondents’ vocational expert. However, the errors noted by the claimant go only to the weight and not to the admissibility of the report. As noted previously, we disagree with the claimant’s argument that the factual record permits only the single inference that the claimant is permanently and totally disabled. Because the ALJ’s factual findings are amply supported by substantial evidence and because he applied the correct legal standard to his determination we affirm his order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 14, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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DEANNA JIRON, CASTLE ROCK, CO, (Claimant).
DOUGLAS COUNTY SCHOOL DISTRICT RE 1, Attn: TJ. CRAWFORD, CASTLE ROCK, CO, (Employer).
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant).
CLISHAM, SATRIANA BISCAN LLC, Attn: PATRICIA CLISHAM, ESQ., DENVER, CO, (For Respondents).
CCMSI, Attn: HELEN SULLIVAN, GREENWOOD VILLAGE, CO, (Other Party).
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