W.C. No. 4-240-066Industrial Claim Appeals Office.
June 24, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ), insofar as the ALJ denied and dismissed her claim for permanent total disability benefits, and refused to increase her average weekly wage. We affirm.
The claimant suffered several compensable injuries while working as a milker for the employer. The claimant suffered injuries in 1987, 1989, 1990, 1991, and 1992. The claimant had permanent medical restriction as a result of these injuries, and returned to part-time work for the employer following the 1992 injury.
On January 24, 1995, the claimant was injured when she was struck by a swinging gate and thrown to the ground. The respondents admitted liability for temporary total disability benefits for the period January 25 to April 4, 1995, based upon an average weekly wage of $108.44.
On April 4, 1995, Dr. Hunter released the claimant to return to work and imposed no medical restrictions resulting from the 1995 injury. Dr. Hunter also reported there is no objective evidence of any permanent impairment from the 1995 injury. Dr. Burkley reached similar conclusions in a report dated April 11, 1995.
Dr. Lockwood performed a Division-sponsored independent medical examination (IME). Dr. Lockwood opined that the claimant sustained no permanent medical impairment from the 1995 injury and was capable of performing light duty employment. Further, Dr. Lockwood opined that the claimant’s psychological problems pre-dated the industrial injury.
Implicitly crediting the opinions of Dr. Hunter, Dr. Burkley, and Dr. Lockwood, the ALJ found that the claimant suffered no permanent impairment as a result of the 1995 injury. Further, the ALJ rejected the opinion of vocational rehabilitation consultant, Joe Blythe, that the claimant is unemployable because Mr. Blythe’s opinions are inconsistent with the medical evidence. Instead, the ALJ was persuaded by the testimony of vocational rehabilitation consultant Cynthia Bartmann, who concluded that the claimant is capable of earning wages in the same or other employment. Therefore, the ALJ determined the claimant is not permanently totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. 1997.
The ALJ also declined to increase the claimant’s average weekly wage to include the reasonable value of the claimant’s housing as provided by § 8-40-201(19)(b), C.R.S. 1997. The ALJ found the claimant had free housing because she was a “guest” of her nephew who was a co-worker whose wages included housing.
I.
On review, the claimant points out that she suffered at least three significant injuries during her employment and that these injuries resulted in permanent medical restrictions. Therefore, the claimant argues the ALJ erred in finding she is not permanently and totally disabled. We perceive no error.
Under § 8-40-201(16.5)(a), a claimant is permanently and totally disabled if she is “unable to earn any wages in the same or other employment.” Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is capable of earning wages in the same or other employment is a factual determination to be made by the ALJ based upon consideration of 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, ___ P.2d ___ (Sup.Ct. No. 97SC36, March 9, 1998).
Because the determination is factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. See § 8-43-301(8), C.R.S. 1997; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Furthermore, the substantial evidence standard requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The ALJ’s order reflects his consideration of the pertinent factors, and his findings are supported by substantial medical and vocational evidence. See Best-Way Concrete Co. v. Baumgartner supra. Specifically, there is substantial evidence in the medical reports of Dr. Hunter, Dr. Rook, Dr. Burkley and Dr. Lockwood to support the ALJ’s finding that the claimant is not medically restricted as a result of the 1995 injury. Further, the ALJ’s determination is consistent with Dr. Borrego’s report dated October 9, 1995, which contains his opinion that tests results do not suggest the claimant sustained any “neuropsychological sequelae” from the 1995 “mild closed head injury.” In addition, Dr. Rook issued a report dated September 17, 1996, in which he stated that the claimant “had all of the current complaints before the January 1995 on-the-job injury.”
Ms. Bartmann testified that the claimant is capable of returning to work as a milker. She also concluded that the claimant is capable of earning wages as a cashier or child care worker. We may not substitute our judgment for that of the ALJ concerning the credibility of the various experts or the probative value of their testimony, and decline the claimant’s invitation to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994 ). Moreover, Ms. Bartmann’s testimony amply supports the ALJ’s determination that the claimant failed to prove she is unable to earn “any wages.” Consequently, the ALJ did not err in denying the claim for permanent total disability benefits.
Because the claimant has failed to establish grounds which afford us a basis to interfere with the ALJ’s determination that she is not permanently totally disabled, we need not address the claimant’s remaining arguments on the issue. Therefore, we do not consider whether the ALJ erred in finding that if the claimant is permanently and totally disabled, all of her disability is attributable to the pre-1995 injuries. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
II.
We also reject the claimant’s contention that there is no evidence to support the ALJ’s finding that she received free housing as a guest of her nephew. The claimant testified that after the 1992 injury she lived in a house with two other milkers and her nephew who was the employer’s only full-time milker. (Tr. pp. 9, 24). The claimant could not remember whether she was a full-time milker in 1995, but she admitted that the employer only provided free housing to full-time milkers. (Tr. p. 23). Under these circumstances, the ALJ could reasonably infer that housing was not part of the wages paid to the claimant at the time of the 1995 injury, and that she had no housing expenses because she was a “guest” of her nephew, whose wages included housing.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 7, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 24, 1998 to the following parties:
Maria C. Martinez, 121 — 14th Ave., #2-D, Greeley, CO 80631
Elaine E. Foss, 32970 Weld County Rd. 59, Gill, CO 80624
Colorado Compensation Insurance Authority, Attn: Michael Steiner, Esq. (Interagency Mail)
James A. May, Esq., 155 S. Madison St., #330, Denver, CO 80203 (For the Claimant)
David L. Smith, Esq., 1700 Broadway, #1700, Denver, CO 80290-1700 (For the Respondents)
BY: _______________________