W.C. No. 4-430-639Industrial Claim Appeals Office.
April 23, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Schulman (ALJ) which denied and dismissed a claim for permanent total disability (PTD) benefits. The claimant contends the ALJ applied an erroneous standard of law, failed to consider pertinent evidence, and that relevant findings of fact are not supported by substantial evidence. We affirm.
The claimant had a long employment history as a nightclub manager. In 1999 he developed hearing loss from exposure to live music, as well as tinnitus. The claimant has also developed a sleep disorder resulting from the tinnitus.
A Division-sponsored independent medical examination physician assessed a 5 percent whole person impairment rating consisting of 3 percent for hearing loss and tinnitus and 2 percent for mental impairment caused by the sleep loss.
At the time of the hearing in August 2000 the claimant was still employed by respondent Brewski’s Pub and Grill (Brewski’s) as a manager. However, because of his hearing loss and difficulty with exposure to music his duties were limited. The ALJ found that his retention as an employee was a personal favor provided by Brewski’s owner, and that a sale of Brewski’s was pending.
Nevertheless, the ALJ credited the opinion of the respondents’ vocational expert that the claimant is employable in a number of jobs approved by the treating physician, particularly janitorial work. Moreover, the ALJ discredited evidence that the sleep disorder is so disabling that it renders the claimant unemployable. Instead, the ALJ credited the testimony of Dr. Krause that there are numerous treatment options available for sleep disorders which have not been pursued by the claimant. These include recently developed medications and abstention from drinking coffee in the evenings. Under these circumstances, the ALJ found the claimant failed to prove entitlement to PTD benefits.
I.
On review, the claimant contends that the sleep disorder, considering the claimant’s hearing limitations and other “human factors,” renders him permanently and totally disabled. In particular, the claimant asserts the ALJ failed to consider the impact of § 8-42-112(1)(d), C.R.S. 2003, on the claimant’s employability. The claimant also argues the order is based on the claimant’s medical restrictions and does not account for the human factors. We find no error.
The claimant has the burden to prove entitlement to PTD benefits buy showing that he is unable to earn wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2003. In determining whether the claimant has proven PTD the ALJ may consider the effects of the industrial injury in light of the claimant’s individual human factors. These factors include, but are not limited to, the claimant’s age, work history, general physical condition, and prior training and experience. The essence of the test is whether employment is reasonably available to the claimant under his or her particular circumstances. Weld County School District v. Bymer, 955 P.2d 550 (Colo. 1998); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
The question of whether the claimant has proven entitlement to PTD benefits is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Weld County School District v. Bymer, supra. This standard of review requires us to view the evidence in a light most favorable to the prevailing party and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, the ALJ is not held to a standard of absolute clarity when entering findings of fact, and need not address every piece of evidence or possible inference. Rather, it is sufficient if the ALJ enters findings which reveal the factual and legal bases of the order, and evidence and inferences not specifically addressed are considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, we discern no misapplication of the law by the ALJ. To the contrary, the ALJ’s order recognizes the correct legal standard, including the responsibility to consider the effects of the injury in light of the claimant’s human factors. (Conclusion of Law 2, 3). The claimant’s assertion notwithstanding, the ALJ did not base the order solely on medical restrictions, but credited the testimony of the respondents’ vocational expert that the restrictions do not preclude employment.
Neither was there any error with respect to consideration of §8-42-112(1)(d). That statute imposes a fifty percent reduction in compensation if the claimant willfully misleads an employer concerning physical ability to do the job, and the undisclosed disability subsequently results in injury on the job. The claimant asserts that if he discloses his limitations he cannot get a job. As the respondents argue, the claimant advanced this theory at the hearing, and questioned the respondents’ vocational expert concerning this issue. (Tr. P. 91). However, the ALJ did not discuss the claimant’s theory in the order, and therefore, implicitly rejected it. Because the weight to be assigned this factual theory was for the ALJ, we may not substitute our judgment for hers concerning the weight to be assigned this possible interpretation of the evidence. Wilson v. Industrial Claim Appeals Office, supra.
II.
The claimant also challenges specific finding of fact. We consider these arguments in turn.
The claimant disputes Finding of Fact 14, in which the ALJ found the claimant admitted he is not PTD because of the hearing loss but believes he is PTD “as a result of his sleep disorder.” However, this is a plausible interpretation of the claimant’s testimony that the “biggest problem” affecting his ability to work is that he “can’t get the right amount of rest.” (Tr. Pp. 9-10).
The claimant next disputes Findings of Fact 16, 17, 18, 21, and 23. The essence of the claimant’s argument is that the ALJ “overlooked” that here is no treatment for tinnitus.
Therefore, the claimant reasons the ALJ erroneously concluded the claimant is not PTD because of the sleep disorder.
Regardless of whether tinnitus may be treated directly, the ALJ found the claimant failed to pursue treatments which are available for the sleep disorder and are likely to allow him to sleep and avoid the allegedly disabling consequences of the tinnitus. This inference is supported by the testimony of Dr. Krause, and the claimant’s own testimony that he has pursued no treatment after stopping the first medication prescribed for the sleep problem. On this state of the record, the ALJ was certainly not compelled to find the claimant met his burden of proof to establish that the sleep disorder is so disabling that it prevents the claimant from returning to work.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 25, 2001, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on April 23, 2004 by A. Hurtado.
Charles A. Persichitte, c/o Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204
Brewski’s Pub and Grill, Inc., 1451 Cortez, Unit F, Denver, CO 80221
Legal Department, Pinnacol Assurance — Interagency Mail
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)