W.C. No. 4-002-890Industrial Claim Appeals Office.
March 1, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Schulman (ALJ) which determined the claimant is permanently and totally disabled, and awarded benefits. We affirm.
On October 2, 1990, the claimant suffered an admitted right wrist injury. As a result of the injury the claimant underwent more than 20 surgeries to her right upper extremity and has been diagnosed with reflex sympathetic dystrophy, radial sensory neuralgia and sympathetically aggravated neuralgia. The claimant also suffers from depression. At maximum medical improvement the treating physician assigned a 37 percent whole person impairment rating and imposed numerous work restrictions. It is undisputed that as a result of the industrial injury the claimant is physically unable to perform her pre-injury employment.
The ALJ found that as a result of the injury the claimant continues to suffer a significant loss of function in her right upper extremity and experiences intractable pain which has steadily worsened. Upon consideration of the claimant’s physical limitations from the industrial injury, her age, education, job skills, and prior work experience, the ALJ found the claimant has not retained and would not regain efficiency in some substantial degree in the fields of general employment. Furthermore, the ALJ was not persuaded the claimant’s ability to provide day care for her nephew was indicative of the claimant’s ability to compete for and secure employment in the open labor market. Therefore, the ALJ determined the claimant is permanently and totally disabled. In so doing the ALJ expressly credited the opinions of the claimant’s vocational rehabilitation expert, Dr. Anthony Manuele and rejected the contrary opinions of the respondent’s expert, Cindy Longfellow. The respondent timely appealed.
On review, the respondent contends the ALJ erred in finding that the claimant’s condition precludes her from obtaining employment as a day care provider. Furthermore, relying on the testimony of vocational expert, Cindy Longfellow, the respondent contends there is substantial evidence the claimant is capable of securing employment in several different fields of employment.
As determined by the ALJ, the applicable legal standard provides that an injured worker is permanently and totally disabled if she has not retained and will not regain efficiency to some substantial degree in the fields of general employment Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087
(1940); Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). In determining whether the claimant has sustained her burden to prove permanent and total disability the ALJ may consider the claimant’s education, work experience, age, medical restrictions, and vocational abilities. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
The question of whether the claimant has sustained her burden of proof is one of fact for the ALJ. We must uphold the ALJ’s determination if supported by substantial evidence in the record. § 8-43-301(8) C.R.S. 2000; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Under this standard we must defer to the ALJ’s credibility determinations and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Furthermore, where the expert testimony is conflicting, it is the ALJ’s sole prerogative to resolve the conflict. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We have no authority to reweigh the evidence on review and therefore, decline the respondent’s invitation to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
There is substantial evidence in the testimony of Dr. Anthony Manuele to support the ALJ’s finding that the claimant is unable to effectively compete in the labor market, even in the field of day care. Furthermore, Manuele’s testimony supports the ALJ’s determination that the claimant is permanently and totally disabled. The existence of conflicting evidence does not lessen the import of substantial evidence in favor of the ALJ’s determination. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999). Therefore, it is immaterial on review that Cindy Longfellow’s testimony, if credited might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Moreover, the ALJ’s factual determinations support the award of benefits. Therefore, we may not disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 19, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 March 1, 2001 to the following parties:
Helen Paez, 2325 S. Lowell Blvd., Denver, CO 80219
King Soopers, Inc., 65 Yuma St., Denver, CO 80223-1203
Dennis Hearst, King Soopers, Inc., P. O. Box 5567 T. A., Denver, CO 80217-5567
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
Pamela Musgrave, Esq., 1410 Grant St., #C206, Denver, CO 80203 (For Respondent)
BY: L. Epperson.