W.C. No. 4-542-441.Industrial Claim Appeals Office.
June 7, 2007.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Henk (ALJ) dated December 27, 2006 that denied the claimant temporary partial disability (TPD) benefits from March 7, 2001 through August 10, 2005, but awarded TPD benefits beginning August 11, 2005, and denied her claim for dental injuries. We affirm.
Several of the ALJ’s findings of fact are summarized as follows. The claimant has worked for the employer since 1989. Dr. Smith examined the claimant in April 2000, diagnosed a work-related disorder related to the claimant’s right forearm, and referred the claimant to physical therapy. The claimant changed physical therapists, but sustained an injury to her occipital nerve during therapy. Dr. Beatty began treating the claimant. Dr. Beatty referred the claimant to several physicians. Dr. Beatty eventually placed the claimant at maximum medical improvement (MMI) on March 7, 2001, and imposed restrictions on August 11, 2005.
The claimant experienced numerous health problems for which she saw several physicians. Her ailments included dental problems related to bruxism. However, the ALJ was not persuaded that the claimant’s additional ailments, including her dental problems, were related to her industrial injury. The ALJ awarded the claimant TPD benefits starting on August 11, 2005 and ending February 9, 2006, which appears to be the date on which Dr. Beatty again placed the claimant at MMI. Exhibit F at113.
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The claimant argues that the ALJ erred in starting her TPD benefits on August 11, 2005, when Dr. Beatty placed restrictions upon her activities. Instead, the claimant asserts, the ALJ should have started her TPD benefits on February 22, 2002, when she began taking time from work under the Family and Medical Leave Act (FMLA). The claimant therefore argues that the ALJ’s corresponding findings are not supported by the record.
To prove entitlement to temporary disability the claimant must prove the industrial injury caused a “disability.” § 8-42-103(1), C.R.S. 2006 PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Whether the claimant has proved a disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). We may only interfere with the ALJ’s credibility determinations in extreme circumstances, such as where the record contains such hard, certain evidence that it would be error as a matter of law for any fact finder to reject the evidence Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). That is not the case here and we are not at liberty to disturb the ALJ’s credibility determinations.
The ALJ noted that Dr. Beatty completed FMLA forms for the claimant and suggested that she needed to miss one or two days following injections, rather than on account of headaches. Findings of Fact, Conclusions of Law, and Order at 10 (unpaginated), ¶ 43. The claimant appears to assert that the ALJ misconstrued Dr. Beatty’s notes on the FMLA forms and should have determined that Dr. Beatty reported that the claimant would occasionally miss work for one or two days at a time due to her medical condition or her need for treatment. However, the evidence must be considered on review in a light most favorable to the prevailing party, and the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record are entitled to deference. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The FMLA forms completed by Dr. Beatty indicate that the claimant’s condition will require her to work less than a full schedule “1-2 days per event” and explains that the claimant would encounter “occasional incapacity lasting 1-2 days.” Dr. Beatty also indicates that the claimant will be absent from work or other daily activities due to treatment “on as needed bases up to 3 over the next year with 1-2 days incapacity.”
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Exhibit 3 at 3-4. Dr. Beatty further indicated that the claimant may miss work for occipital nerve blocks performed only on an as-needed basis. Exhibit 3 at 6. Insofar as the medical evidence is inconsistent or subject to conflicting interpretation, we are bound by the ALJ’s resolution of those inconsistencies and the plausible inferences the ALJ drew from the conflicts. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (fact finder to evaluate arguably inconsistent medical testimony and determine what portion, if any, to credit). arguably inconsistent. Furthermore, the ALJ is considered to possess expert knowledge which renders her competent to evaluate medical evidence and draw plausible inferences from it Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941). In any event, the record includes a written report from Dr. Beatty dated August 11, 2005 that places restrictions on the claimant’s work duties. Exhibit 3 at 130-32. The record therefore supports the ALJ’s determination that the claimant’s TPD benefits should commence on February 9, 2006.
The claimant also refers to evidence in the record that would support her assertion that her dental injuries are compensable. The claimant alleged at hearing that her occipital nerve injury, together with work stress and headaches, caused her bruxism and corresponding dental afflictions. However, the ALJ made extensive findings about the claimant’s history of dental complications and found that, contrary to the claimant’s testimony, the claimant had a history of problems with her teeth prior to her industrial injury. The ALJ further credited Dr. Roth’s opinion that the claimant suffered from what was described as a “non-work-related, non-injury related condition of somatization disorder.” Order at 5 (unpaginated), ¶ 21. The ALJ also found that Dr. Winber and Dr. Borris opined that the claimant’s dental issues, including bruxism, pre-dated her workers’ compensation claim. The medical reports and testimony cited by the ALJ provide ample evidence to support her order.
The respondents contended that the claimant’s petition to review was filed with the Office of Administrative Courts instead of the “Division” within twenty days as required by § 8-43-301(6), C.R.S. 2006 and therefore we are without jurisdiction to review the order. The supplemental order entered by the ALJ directs the parties to file any petition to review with the Office of Administrative Courts. Under the circumstances of this case we conclude that we are not deprived of jurisdiction to review the ALJ’s supplemental order. If the claimant erroneously filed the petition to review with the Office of Administrative Courts, she did so because the appeal directions of the ALJ were misleading. In our opinion we retain jurisdiction under the “unique circumstances” presented when the petitioner’s action was caused by the erroneous or misleading statements of the adjudicator. See Converse v. Zinke, 635 P.2d 882 (Colo. 1981); Chapman v. Dow Chemical, W.C. No. 4-102-842 (July 18, 1996).
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IT IS THEREFORE ORDERED that the ALJ’s order dated December 27, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________ John D. Baird
________________ Thomas Schrant
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Debra McClure, 4609 S. Kalispell Way Aurora, CO, Fremont Compensation c/o Western Guaranty Fund Services Michael Kramish 1720 S. Bellaire Street, #408 Denver, CO, Irwin Boesen, PC Lane N. Cohen, Esq., 501 So. Cherry Street Suite 500 Denver, CO, (For Claimant).
Clifton, Mueller Bovarnick, PC Holly M. Barrett, Esq., Suite 500 Denver, CO, (For Respondents).
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