W.C. No. 4-541-544.Industrial Claim Appeals Office.
September 6, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated May 2, 2006 that ordered the respondents to pay to the claimant permanent total disability benefits. We affirm.
A hearing was held on the issues of the claimant’s entitlement to permanent total disability benefits and whether the claimant overcame the report of the Division-sponsored independent medical examination (DIME) concerning permanent impairment. Following the hearing the ALJ entered factual findings that may be summarized as follows. On April 4, 2002 the claimant sustained a compensable injury to his low back. He was determined to be at maximum medical improvement by his authorized treating physician on August 6, 2002, with permanent impairment of 13 percent of the whole person. A DIME determined that he was not at maximum medical improvement and he underwent further treatment. He again reached maximum medical improvement on March 17, 2005 and the respondents admitted for benefits based on a rating of 24 percent of the whole person. Despite treatment that included epidural injections, facet injections, chiropractic treatment, physical therapy, surgery, and numerous medications, the claimant continued to suffer pain and other symptoms as a result of his injury. The ALJ expressly credited the claimant’s testimony in this regard. The ALJ also credited the restrictions resulting from a functional capacity examination conducted on March 24, 2005. Those restrictions, which placed the claimant in the sedentary work category, included occasional lifting or carrying up to ten pounds, frequent lifting or carrying of five pounds, standing or walking for a period of one half hour for a total of one to two hours per day, sitting up to one half hour for a total of two hours per day, and a maximum “work capacity” of two hours per day. The ALJ also weighed the competing testimony offered by the parties’ vocational rehabilitation experts. He expressly credited the opinions of the claimant’s expert, finding them more persuasive than the opinions of the respondents’ expert. Based upon his findings the ALJ concluded that the claimant was permanently and totally disabled.
The respondents appealed and argue that the ALJ erred in using the claimant’s subjective work restrictions on which to base his conclusion that the claimant was permanently and totally disabled. We disagree that this was error.
Under the applicable law, a claimant is permanently and totally disabled if he is unable “to earn any wages in the same or other employment.” Section 8-4-201(16.5)(a), C.R.S. 2005. In determining whether the claimant is unable to earn any wages, 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 perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Another human factor is the claimant’s ability to obtain and maintain employment within his physical abilities. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). This is because the ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired and sustaining employment. See Christie v. Coors Transportation Co., supra; Cotton v. Econ. Lube N Tune, W.C. No. 4-220-395 (January 16, 1997), aff’d, Econ. Lube N Tune v. Cotton (Colo.App. No. 97CA0193, July 17, 1997). Consequently, if the evidence shows the claimant is not physically able to sustain employment, the ALJ need not find the claimant is capable of earning wages. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866
(Colo.App. 2001).
The question of whether the claimant has proven permanent and total disability is factual in nature. Consequently, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; Weld County School District RE-12 v. Bymer, supra. Application of the substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Christie v. Coors Transportation Co., supra.
Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ’s province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Here there is ample evidence supporting the ALJ’s conclusion that the claimant is permanently and totally disabled. The ALJ entered detailed findings crediting the opinions of the claimant’s vocational rehabilitation expert, Ron Brennan, and explaining the grounds for that credibility determination. Moreover, the ALJ described at some length his reasons for rejecting the opinions of the respondents’ expert. Although the ALJ is not required to state the basis for his credibility determinations, Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987), here he did so in detail. Brennan’s opinions provide substantial evidence supporting the ALJ’s conclusions and we perceive no basis for disturbing the ALJ’s order.
Moreover, we reject the respondents’ argument that the ALJ committed reversible error by relying on the claimant’s “subjective” restriction that he was able to work only two hours per day. The ALJ expressly credited the opinions of Pat Riley, the physical therapist who conducted the claimant’s functional capacity evaluation, which resulted in that particular restriction. Whether or not the respondents are correct that Riley relied on the claimant’s subjective reports in formulating the restriction, it was the ALJ’s prerogative to credit or reject that physical restriction. He articulated his reasons for believing Riley’s opinions, noting that the competing restrictions formulated by Dr. Worwag were three years old. Because the claimant’s condition had changed since those restrictions were imposed, and because the claimant had since undergone significant medical treatment, the ALJ adjudged those restrictions less reliable than Riley’s. This determination was certainly within the province of the ALJ and we have no basis for disturbing his findings in this regard. Merely because a restriction has its source in the claimant’s “subjective” judgment concerning his ability to work does not render it speculative or otherwise incompetent. Similarly, the existence of evidence in the record in the form of other physical restrictions, which might have supported findings or conclusions contrary to those reached by the ALJ does not afford any basis for relief on appeal. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). We decline the respondents’ invitation to substitute our judgment for that of the ALJ.
IT IS THEREFORE ORDERED that the ALJs order dated May 2, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Leland Case, Clifton, CO, The Earthgrains Company, c/o Sara Lee Bakery Group, Andi Wells, Commerce City, CO, Pacific Employers Insurance, Portland, OR, ESIS, Anita Fresquez-Montoya, Centennial, CO, Killian, Guthro, Jenson, P.C., J. Keith Killian, Esq. and Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).
Treece, Alfrey, Musat Bosworth, P.C., Kathleen Mowry Fairbanks, Esq., Denver, CO, (For Respondents).