W.C. Nos. 4-314-025, 4-345-027Industrial Claim Appeals Office.
February 12, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied the claim for permanent total disability benefits. The claimant argues the order is not supported by substantial evidence because it relies on a “flawed” functional capacities evaluation (FCE). We affirm.
The claimant sustained separate industrial injuries which affected her left lower extremity and both upper extremities. On February 8, 1999, the treating physician pronounced the claimant at maximum medical improvement, and restricted the claimant to a 20 hour workweek, with a maximum shift of 5 hours. He further imposed restrictions in accordance with an FCE performed in January 1999. The FCE placed the claimant in the “light” work category.
The claimant returned to her pre-injury duties as a cashier, but worked within the limitations imposed by the treating physician. However, the claimant quit work on March 27, 1999, and moved to Alaska. The claimant testified that she believed she was not physically able to continue work.
The respondents presented the testimony of a vocational expert who opined the claimant is capable of obtaining part-time work in Alaska within the restrictions imposed by the treating physician and the FCE. The claimant presented the testimony of a vocational expert who opined the claimant is not capable of obtaining any employment. The opinion of the claimant’s expert was predicated upon medical restrictions imposed by Dr. Rook on November 22, 1999. Dr. Rook’s restrictions placed the claimant in the “sub-sedentary work” category, and precluded her from using her hands for grasping, pushing and pulling, and fine manipulation.
Crediting the testimony of the claimant’s vocational expert, the ALJ found the claimant is capable of earning wages in various occupations; therefore, the ALJ denied the claim for permanent total disability benefits. In so doing, the ALJ found that the “objective evidence” concerning the claimant’s capacity to use her hands was “incomplete.” However, the ALJ was not persuaded by the restrictions imposed by Dr. Rook because they were not based on a recent physical examination or other “objective evidence.” The ALJ was also unpersuaded by the claimant’s testimony because she failed to return to the treating physician after stating she could no longer continue work, and because the claimant performed her regular job duties without complaint until she “decided to move to Alaska.”
On review, the claimant contends the ALJ’s order is not supported by substantial evidence because the FCE, on which the claimant’s vocational expert relied, was fatally flawed. The claimant argues the FCE is not reliable because it was reported as “invalid” with respect to various measures of the claimant’s use of her upper extremities, and because certain hand movements were not rated. The claimant also asserts the FCE establishes that she was incapable of returning to work as a cashier because she was unable to walk and stand for sufficient periods of time. We reject these arguments.
A claimant is permanently and totally disabled if she proves the industrial injury has rendered her unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2000. In assessing permanent total disability, the ALJ may consider the effects of the industrial injury in light of the claimant’s human factors, including the claimant’s age, work history, general physical condition, and prior training and experience. Ultimately, the question of whether the claimant has proven permanent total disability is one of fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Joslins Dry Goods Co. v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 00CA0718, February 1, 2001).
Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record Weld County School District RE-12 v. Bymer, supra.
It is true the FCE was reported as “invalid” with respect to certain upper extremity activities and movements, and that certain hand activities were not rated. Therefore, no specific restrictions were imposed for these activities. However, viewing the totality of the evidence, the ALJ was not persuaded the claimant proved that she had any upper extremity limitations which would preclude her ability to earn wages. The ALJ found the hand restrictions imposed by Dr. Rook, and relied upon by the claimant’s vocational expert, are not credible because they were not based on a recent examination or objective test. Further, the ALJ found the claimant performed her regular duties, without complaint, after returning to work. Under these circumstances, we may not interfere with the ALJ’s resolution of conflicts in the evidence and the inferences she drew therefrom.
The claimant also argues the FCE restricted her standing and walking activities so as to preclude her return to work as a cashier. However, at page 4 of the FCE the examiner reported the claimant gave a history of “10/hours of standing/walking tolerance over 24 hours,” and the claimant “met the job goal using normal movement patterns.” In any event, the ALJ was persuaded by evidence the claimant was able to perform her regular duties within the limitation on hours imposed by the treating physician. Therefore, we find this argument to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 14, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
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 February 12, 2001 to the following parties:
Mary Peters, 4544 Tundra Way, North Pole, AK 99705
City Market, Inc., 1703 Fremont Dr., Canon City, CO 81212-2405
City Market, Inc., P. O. Box 729 W.C. Dept., Grand Junction, CO 81502
Phyllis Harrell, RSKCo, P. O. Box 5567 T. A., Denver, CO 80217
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Frederick G. Aldrich, Esq., P. O. Box 40, Grand Junction, CO 81502 (For Respondent)
BY: A. Pendroy