W.C. No. 3-974-131Industrial Claim Appeals Office.
September 13, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits under former § 8-51-108(1), C.R.S. (1989 Cum. Supp.) (repealed 1991 Colo. Sess. Laws, Ch. 219 at 1312), based on 2 percent working unit disability. We affirm.
This claim involves admitted injuries sustained on February 21, 1990. In February 1992 Dr. Carlton placed the claimant at maximum medical improvement (MMI), released the claimant to return to work without restrictions, discharged the claimant from treatment and assigned a zero permanent disability rating. In 1995, the claimant suffered new disabling injuries in a head-on motor vehicle collision.
The claimant’s vocational rehabilitation expert, Martin L. Rauer (Rauer), opined the claimant sustained a 50 percent loss of access to the labor market as a result of the 1990 injuries. In a report dated October 24, 1997, the respondents vocational rehabilitation expert, Patricia Anctil (Anctil), opined the 1990 injuries caused the claimant to suffer a 17 percent loss of access to the labor market based upon Dr. Higginbotham’s 1997 opinion that the claimant is subject to permanent medical restrictions for the 1990 injuries. However, in the absence of Dr. Higginbotham’s opinions, Anctil testified the claimant suffered a 1 percent loss of access to the labor market.
Former § 8-51-108(1), C.R.S. (1989 Cum. Supp.), which governs this claim provides that the claimant’s permanent disability award shall be based upon the ALJ’s consideration of not only the:
“manifest weight of the evidence but also the general physical condition and mental training, ability, former employment and education of the injured employee.”
Crediting Anctil’s testimony, the ALJ found the claimant demonstrated aptitude and abilities to compete in the open labor market after the 1990 injuries. Further, the ALJ was not persuaded by Dr. Higginbotham’s opinions concerning the claimant’s medical restrictions from the 1990 injuries. Under these circumstances, the ALJ awarded permanent partial disability benefits based upon 2 percent disability as a working unit. The claimant timely petitioned for review of the ALJ’s order.
The claimant’s petition to review alleges the ALJ’s refusal to grant a greater permanent partial disability award is not supported by the applicable law. Specifically, the claimant contends Anctil’s testimony does not support the ALJ’s award because Anctil failed to consider the effects of inflation on the claimant’s increased wage earnings between 1990 and 1995. Therefore, the claimant argues the record does not support the ALJ’s order. However, the claimant did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under former § 8-51-108(1), the ALJ has wide discretion in determining the extent of the claimant’s loss of earning capacity from the industrial injury. American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
Substantial evidence is probative which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard we must defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence, including expert testimony.
Upon consideration of several factors, including the college training the claimant completed after the 1990 injuries, Anctil opined the claimant demonstrated increased employment skills and, thus, greater access to the labor market following the 1990 injuries. (Tr. pp. 90, 100, 108). Anctil testified the claimant was earning $3.50 per hour at the time of the 1990 injuries and earned $6.50 per hour plus benefits in 1995. In assessing the probative weight of Anctil’s testimony, the ALJ was free to consider Anctil’s admission that she did not factor in inflationary changes before concluding the claimant experienced “quite a leap” in actual earnings between 1990 and 1995. (Tr. pp. 91, 92). Furthermore, the ALJ is presumed to have considered the Anctil’s admission that minimum wage increases between 1990 and 1995 were greater than the claimant’s wage increases during the same period. (See Tr. pp. 111-113); cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). However, this evidence did not preclude the ALJ from crediting Anctil’s testimony that the claimant’s labor market access increased after the 1990 injuries.
In addition, Anctil’s opinions are buttressed by Dr. Carlton’s opinions that the 1990 injuries caused no permanent medical impairment and did not restrict the claimant from performing her regular employment. In turn, Dr. Carlton’s opinions are consistent with the claimant’s testimony that she was employed full-time and earning at least as much as she had prior to the 1990 industrial injuries immediately preceding the 1995 automobile accident. Consequently, we cannot say the ALJ erroneously relied on Anctil’s testimony as the basis for denying a greater award of permanent partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 24, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 13, 2000 to the following parties:
Christina R. O’Brien, c/o Steven R. Waldmann, Esq., 303 S. Circle Dr., #203, Colorado Springs, CO 80910-3026
S L Parts Plus, J. Anthony Ogden, Esq., 625 E. 16th Ave., #100, Denver, CO 80203
Anita Montoya, Insurance Company of North America, P. O. 2941, Greenwood Village, CO 80150-0141
Steven R. Waldmann, Esq., 303 S. Circle Dr., #203, Colorado Springs, CO 80910-3026 (For Claimant)
J. Anthony Ogden, Esq., 625 E. 16th Ave., #100, Denver, CO 80203 (For Respondents)
BY: A. Pendroy