W.C. No. 4-253-729Industrial Claim Appeals Office.
February 10, 1997
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ), insofar as the ALJ found that the claimant is permanently totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.). We affirm.
Section 8-40-201(16.5)(a), defines permanent total disability as the inability “to earn any wages in the same or other employment.” The determination of whether the claimant is able to earn wages is a factual matter for resolution by the ALJ Christie v. Coors Transportation Co., 919 P.2d 857
(Colo.App. 1995), cert. granted, July 1, 1996. In resolving this issue, the ALJ may consider the “human factors,” which were pertinent to a determination of permanent total disability under the law as it existed prior to the enactment of § 8-40-201(16.5)(a). See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). These factors include the claimant’s general physical condition and mental training, former employment and education Best-Way Concrete Co. v. Baumgartner, supra.
The respondents do not dispute the applicable law. Rather, the respondent contend that in this case, the “human factors” indicate that the claimant is capable of earning wages. In support, the respondents cite the claimant’s testimony that he is willing and would like an opportunity to work. The respondents also cite the opinions of a vocational expert, William Hartwick, who concluded that there are jobs available to the claimant in the Denver labor market. Consequently, the respondents argue that the record is insufficient to support the ALJ’s finding of permanent total disability. We disagree.
Because the determination of permanent total disability is a question of fact, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Best-Way Concrete Co. v. Baumgartner, supra. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995).
Here, the ALJ found that claimant sustained an occupational disease which affected his neck, upper back and both upper extremities, and that the claimant was last injuriously exposed while employed with the respondent. At the time of maximum medical improvement, Dr. Reichhardt restricted the claimant from lifting over twenty pounds, lifting over five pounds frequently, continuous forceful activities with the upper extremities, use of vibrating tools, and repetitive activities over fifteen minutes at a time or over two hours per day. The claimant was also required to change positions every twenty minutes.
Following the injury, the claimant returned to modified work with the respondent. On April 26, 1996, the respondent informed the claimant that employment within his restrictions was no longer available. Consequently, the claimant’s employment was terminated. At the time of the termination the claimant had been employed by the respondent for over twenty years.
Notwithstanding the respondents’ arguments, the ALJ’s findings of fact reflect his consideration of the pertinent “human factors.” The ALJ found that the claimant was age fifty-two at the time of the hearing, and that his physical limitations, “especially the restriction of repetitive upper extremity activity” established the claimant’s inability to earn wages.
Admittedly, the claimant stated that he is eager to get his “career back” and is “hopeful” that he will return to work. (Tr. pp. 25, 33). Further, the ALJ found that the claimant was willing to accept work outside of his restrictions. In fact, the ALJ found that in an effort to get a job which required lifting up to forty pounds, the claimant requested that Dr. Reichhardt increase his lifting restriction to forty pounds. However, even with the increase, the claimant was not offered employment. Consequently, the ALJ determined that the claimant’s motivation and desire to work did not establish that “he will probably” be able to earn wages.
The ALJ also credited the claimant’s testimony that he had made over ninety job contacts since April 1996. However, the ALJ found that the claimant’s job search was unsuccessful, and that the respondent had not offered the claimant employment or vocational rehabilitation. The ALJ further noted that the terms of the respondents’ pension plan preclude the claimant from working for one of the respondents’ competitors for two years. Under these circumstances, the ALJ determined that the claimant’s ability to earn wages was a “mere possibility” at the time of the hearing.
Moreover, vocational experts Mark Litvin (Litvin) and William Hartwick (Hartwick) had conflicting opinions concerning the claimant’s disability. The ALJ resolved the conflict by crediting the opinions of Litvin and rejecting the contrary opinions of Hartwick. Litvin concluded that the claimant was unable to earn any wages. (Tr. p. 50). Specifically, Litvin concluded that the claimant’s physical limitations have rendered his transferrable skills “useless.” See (Litvin report July 22, 1996). In reaching this conclusion, Litvin recognized that in 1989 the claimant earned an associate degree in drafting. However, the claimant testified and Litvin noted that he has never worked as a draftsperson. (Tr. pp. 45, 50). Litvin also concluded that even if the claimant could be retrained to be a draftsman, the physical requirements of the job would exceed the claimant’s restrictions. (Tr. p. 50).
Further, the ALJ credited Litvin’s opinion that the claimant is not physically capable of performing the jobs identified by Hartwick due to his inability to engage in bilateral upper extremity repetitive activity as well as his lack of skills in the use of a computer and other business machines. (Tr. pp. 51-52, 56). Similarly, the ALJ was persuaded by Litvin’s testimony that positions such security guard require pre-employment physical examinations and that the claimant would probably be eliminated from consideration for such jobs based upon his medical condition and his prior arrest record. (Tr. pp. 53-54).
The record could have been interpreted differently. However, the ALJ’s findings are amply supported by the record and we may not substitute our judgment for that of the ALJ in determining the credibility of the witnesses or the sufficiency and probative value of the evidence. Christie v. Coors Transportation Co, supra. Furthermore, the ALJ’s findings support his determination that the claimant is “unable to earn any wages,” and the respondents’ further arguments to the contrary are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 11, 1996, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed February 10, 1997
to the following parties:
Franz H. Parks, 5974 S. Taft Way, Littleton, CO 80127
Snap-On Tools Corporation, 6632 Fig St., Unit B, Arvada, CO 80004-1044
Transamerica Insurance Group, P.O. Box 17005, Denver, CO 80217
Julie Swicegood, GAB Robins North America, Inc., 789 Sherman St., Ste. 100, Denver, CO 80203-3548
Alexsis Risk Management Services, Inc., One Park Central Building, Ste. 410, 1515 Arapahoe St., Denver, 80202-2117
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
BY: _______________________