W.C. No. 4-137-498Industrial Claim Appeals Office.
September 29, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Henk (ALJ), which awarded the claimant permanent total disability benefits. The respondents contend the ALJ erred in considering a doctor’s opinion that the claimant is incapable of employment. The respondents also argue that the record lacks substantial evidence to support the ALJ’s finding that the claimant is unable to earn any wages. We affirm.
The claimant, who was sixty-six years of age at the time of the hearing, sustained a compensable injury to her back when she fell on March 18, 1992. As a result of the injury, the claimant has constant back and neck pain which has worsened over time. It is undisputed that the claimant cannot return to her preinjury employment at a laundry.
The ALJ also found that the claimant’s industrial injury aggravated a preexisting anxiety disorder. The anxiety disorder has worsened to the point that the claimant is confined to bed several times a week.
There was conflicting evidence concerning the extent of the physical restrictions stemming from the back injury. A 1993 Functional Capacities Evaluation (FCE) indicated that the claimant is able to do light work. The respondents’ vocational expert testified that work is available to the claimant within these restrictions.
In contrast, the claimant presented evidence from a treating physician, Dr. Hurley, who opined the claimant is “unable to work full time or part-time in any capacity (even sedentary) due to pain, muscular stiffness, and fatigue,” (Hurley report, March 27, 1997). On July 3, 1997 Dr. Hurley stated that the claimant is “totally disabled” due to a “combination of physical impairment and anxiety disorder.” The claimant also presented the testimony of a vocational expert, Rodney Wilson, who opined the claimant is unable to earn any wages in view of her physical problems and anxiety disorder. (Tr. pp. 38-40).
The ALJ found that the claimant proved she is unable to earn wages in any employment and awarded the permanent total disability benefits. In so doing, the ALJ relied on Dr. Hurley’s opinions concerning the claimant’s inability to work and the detrimental influence of the anxiety disorder. The ALJ also credited the testimony of the claimant’s vocational expert. The ALJ specifically discredited the results of the FCE stating that the “evaluation is over four years old and the issue of permanent total disability in this case cannot be based on physical restrictions alone.”
I.
On review, the respondents first contend that the ALJ erred in relying on Dr. Hurley’s opinion that the claimant is not employable. The respondents assert that Dr. Hurley, whose reports were admitted as medical evidence, lacks sufficient expertise to comment on the question of whether the claimant’s condition renders her unable to find employment in the labor market. The respondents suggest that opinions on employability are solely within the province of vocational experts, not medical experts. We reject this argument.
CRE 702 permits a qualified expert to offer an opinion if he possesses scientific, technical, or other specialized knowledge which will assist the trier of fact to understand the evidence or determine a fact in issue. The ALJ has wide discretion in determining whether a witness is qualified as an expert, and whether the expert’s opinion will assist in resolving an issue in the case. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Because the determination of these matters is committed to the ALJ’s sound discretion, we may not interfere with her decision unless an abuse is shown, as where the order is beyond the bounds of reason. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
In cases where permanent total disability is an issue, the ALJ may consider the extent to which the injury has affected the claimant’s general physical and mental condition. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Here, the ALJ found that Dr. Hurley’s opinion that the claimant is unable to work constitutes a medical opinion predicated on an expert understanding of the claimant’s physical and mental problems. Under such circumstances, the ALJ was not precluded from relying on Dr. Hurley’s opinion that the claimant’s condition is so unfavorable that no employmentmedically possible. Thus, the ALJ did not abuse her discretion in considering Dr. Hurley’s reports. Cf. Chambers v. CFI Steel Corp., 757 P.2d 1171
(Colo.App. 1988) (ALJ erred in excluding vocational rehabilitation counselor’s opinion that the claimant’s physical restrictions rendered him unemployable from a vocational, rather than a medical, standpoint).
II.
The respondents next contend that the record lacks sufficient evidence to support the ALJ’s finding that the claimant is permanently and totally disabled. In support of this argument, the respondents cite the testimony of Dr. Kinnett who stated in 1997 that the results of the 1993 FCE are still a valid measure of the claimant’s physical capacity. (Kinnett depo. pp. 20, 33). The respondents also assert that the claimant’s anxiety disorder is an “unreliable indicator” of permanent total disability because the disorder predated the industrial injury, and because the respondents’ vocational expert testified that no specific medical restrictions were imposed because of the disorder. We are unpersuaded.
Section 8-40-201(16.5)(a), C.R.S. 1998, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” Under this statute, the claimant bears the burden of proof to establish permanent total disability. In determining whether the claimant is permanently and totally disabled, the ALJ may consider the claimant’s general physical condition, mental ability, age, employment history, education, and the availability of work which the claimant can perform. Weld County School District RE-12 v. Bymer, supra. The question of whether the claimant has proven permanent total disability is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997).
Because the issue of permanent total disability is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 1998. In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Weld County School District RE-12 v. Bymer, supra. We specifically note that the determination of the weight and credibility to be afforded expert testimony is a matter within the ALJ’s province as fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Here, the ALJ was not persuaded that the results of the 1993 FCE were still valid in 1997. Although Dr. Kinnett testified that the 1993 FCE was the “best tool” he had to measure the claimant’s physical capacity, he also stated that it would be best to complete a new FCE in light of the claimant’s deteriorating condition. (Kinnett depo. pp. 32-33, 40).
In light of Dr. Kinnett’s equivocation, and Dr. Hurley’s opinion that the claimant is physically unable to work, the ALJ was not required to credit the results of the 1993 FCE. Further, to the extent the respondents’ vocational expert relied on the results of the FCE, the ALJ was not required to credit his testimony over that of the claimant’s vocational expert.
Moreover, there was no error in the ALJ’s reliance on the claimant’s anxiety disorder as one basis for awarding permanent total disability benefits. As we have noted, the ALJ may consider the industrial injury’s affect on the claimant’s overall physical and mental condition. Here, the record contains expert opinion that the industrial injury aggravated the claimant’s anxiety disorder, and Dr. Kinnett testified that the anxiety disorder may alone be sufficient to render the claimant unemployable. (Kinnett depo. p. 42). Moreover, the claimant testified that the anxiety is so disruptive that she is often required to go to bed. Under these circumstances, the significance of the anxiety disorder was a factual matter for determination by the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed September 29, 1998 to the following parties:
Mary M. Manzanares, P.O. Box 877, Monte Vista, CO 81144
Kelloff Enterprises, Inc., 2830 W. Highway 160, Monte Vista, CO 81144
John A. Grenardo, Mid Century Insurance Co., 5575 Tech Center Drive, #111, Colorado Springs, CO 80919
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
Chad J. Hessel, Esq., 108 E. St. Vrain St., Ste. 20, Colorado Springs, CO 80903 (For the Respondents)
BY: _______________________