W.C. No. 4-614-843.Industrial Claim Appeals Office.
July 25, 2007.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated February 2, 2007 that denied the claimant’s request for permanent total disability (PTD) benefits. We set the order aside and remand for entry of a new order.
The ALJ’s pertinent findings of fact are as follows. The claimant injured his back in a compensable accident on April 24, 2004 and reached maximum medical improvement on January 25, 2006. The claimant had a high school degree, some college classes and was 50 years old at the time of the hearing. As a result of the compensable injury the claimant has permanent restrictions of not lifting more than 15 pounds from twelve inches off the ground to shoulder level. At the time of the accident the claimant worked as a heavy equipment operator, mechanic, and shop foreman. The claimant was unable to return to the employment he held at the time of the accident or to any similar employment. The claimant applied for a few jobs since the injury, but did not seek work from openings listed at the State employment office.
The ALJ found the claimant was capable of performing some light duty jobs on a part-time basis and that these jobs existed in the claimant’s labor market. The ALJ concluded that the claimant was capable of obtaining and maintaining employment that was within his restrictions. Therefore, the ALJ denied the claimant’s request for permanent total disability benefits.
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On appeal the claimant contends the ALJ’s conclusion that he is not permanently and totally disabled was not supported by his findings of fact or substantial evidence. Section 8-43-301(8), C.R.S. 2006, authorizes the Panel to correct, set aside or remand an ALJ’s order if the findings are insufficient to permit appellate review, conflicts in the evidence are not resolved, the findings are not supported by the record, the findings do not support the order, or the order is not supported by applicable law. Evidentiary determinations are, by and large, left to the trier of fact. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867, 870 (Colo.App. 2001) (ALJ’s sole prerogative to draw inferences from conflicting evidence), citing Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
The claimant argues that he proved by a preponderance of the evidence that he is permanently and totally disabled. A claimant is entitled to PTD benefits if the claimant is “unable to earn wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2006. Under the statute the claimant carries the burden of proof to establish PTD by a preponderance of the evidence. The overall objective is to determine whether employment is reasonably available to the claimant under his particular circumstances. In making this determination the ALJ may consider the effects of the industrial injury in light of the claimant’s “human factors” including the claimant’s general physical and mental condition, work history, age and education. Ultimately, the existence of PTD is an issue of fact for resolution by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Because the question of whether the claimant proved he is entitled to PTD benefits is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8). 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.
The claimant asserts that the permanent work restrictions found by the ALJ were inconsistent with the jobs which the ALJ determined the claimant could perform. The claimant contends that the ALJ determined that the claimant had a 15-pound lifting restriction while at the same time the jobs the ALJ determined the claimant could do all require lifting of 20 pounds. Therefore the claimant argues there is no substantial evidence to support the ALJ’s conclusion that he is likely capable of obtaining and maintaining employment that is within his restrictions. We conclude that the ALJ’s findings of fact are insufficient to permit a resolution of the claimant’s contention. Therefore, we must remand the matter for additional findings of fact. Section 8-43-301(8); Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The ALJ found that the claimant has permanent restrictions as a result of the compensable injury. Specifically the claimant is restricted from lifting not more than 15
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pounds from twelve inches off the ground to shoulder level. Claimant must change positions after sitting for ten minutes or standing for 25 minutes. Claimant must avoid lifting from the floor, bending, pulling, lifting overhead, kneeling, and crawling. Findings of Fact, Conclusions of Law, and Order at 2, ¶ 2. These restrictions may have come from a functional capacity evaluation entered into evidence. Exhibit F.
With regard to specific jobs the ALJ found that the claimant is capable of performing some light duty jobs on a part-time basis. The claimant can work as a ticket seller, hotel desk clerk, restaurant host, pizza deliverer, customer service clerk, cashier, automobile salesperson, and sales clerk. These jobs exist in the claimant’s labor market, which includes Durango. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 12. These were jobs identified by the respondent’s vocational expert from his labor market research, which existed in the claimant’s geographic area and were compatible with his physical capabilities, and were generally classified as light duty with a 20-pound maximum lifting restriction. Exhibit A at 50-58. We note that the cashier position only had a ten-pound maximum lifting requirement. Exhibit A at 56.
The 15-pound restriction accepted by the ALJ is inconsistent with a finding of ability to perform light duty jobs. Consequently, further findings are necessary to permit appellate review. We are unable to identify the findings of fact on which the ALJ based the conclusion that the claimant was capable of performing some light duty jobs while at the same time finding the claimant was limited to lifting no more than 15 pounds. Dr. Lopez testified that the claimant should limit his lifting to 20 pounds. Tr. 147. Dr. Lopez also testified regarding the claimant’s ability to perform a number of specific jobs that would not exceed this 20 pound work restrictions. Tr. 158-161. These were the same jobs the ALJ found the claimant was capable of performing. Dr. Lopez had even at one point placed the claimant with the more liberal work restrictions contained in the medium category for physical exertion. Exhibit 18 at 58.
While the testimony of Dr. Lopez alone might be sufficient to support the ALJ’s conclusion that the claimant is not permanently and totally disabled, the ALJ found at the same time that the claimant was limited to lifting no more than 15 pounds. Because of this inconsistency, we are unable to discern the basis for the ALJ’s order, and we are required to remand for additional findings. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
On remand, the ALJ must resolve the inconsistency between the findings of fact and the order. The ALJ must also make additional findings of fact concerning the evidence he found dispositive on the claimant’s permanent restrictions and whether the claimant is capable of earning wages in other employment.
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IT IS THEREFORE ORDERED that the ALJ’s order dated February 2, 2007 is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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Fred S. Poole, Bayfield, CO, Elliott L. Bloodsworth, Esq., Dawes and Harriss PC, Durango, CO (For Claimant).
Pinnacol Insurance, Harvey D. Flewelling, Esq., Denver, CO (For Respondents).
Craig R. Anderson, Esq., Ruegsegger, Simons, Smith Colorado Springs, CO.
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