W.C. No. 4-268-596Industrial Claim Appeals Office.
April 9, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which denied permanent total disability benefits. We affirm.
The claimant suffered admitted injuries on September 27, 1995, when he fell from a crane. The claimant reached maximum medical improvement (MMI) on September 12, 1997, with 34 percent permanent medical impairment.
On conflicting evidence the ALJ found that the residual effects of the injury do not preclude the claimant from earning wages in employment other than his pre-injury employment. Therefore, the ALJ determined that the claimant failed to prove an entitlement to permanent total disability benefits.
The claimant filed a “Partial Petition for Review” which alleges that the ALJ’s findings of fact and conclusions of law are erroneous. The claimant also contends that the ALJ ignored the side effects of his medications and erroneously relied on outdated medical records that do not address the relevant issues. Further, the claimant contends that the ALJ failed to consider relevant “human factors” in finding that the claimant is not permanently and totally disabled.
The claimant did not file a brief in support of his petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under the applicable law, a claimant is permanently and totally disabled if he is “unable to earn any wages in the same or other employment.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is capable of earning wages in the same or other employment is a factual determination to be made by the ALJ based upon consideration of a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perfor . Weld County School District RE-12 v. Bymer, supra.
Whether the claimant has sustained his burden to prove that he is unable to earn any wages, is a question of fact for resolution by the ALJ. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995.
Contrary to the claimant’s argument, the ALJ’s order expressly reflects his consideration of the proper legal standard including the pertinent “human factors.” Furthermore, the ALJ’s findings of fact are supported by substantial albeit conflicting, evidence in the record and the pertinent findings support the conclusion that the claimant failed to prove an entitlement to permanent total disability benefits.
Furthermore, the ALJ is presumed to have considered all the evidence unless the contrary is established. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). The claimant’s bald assertions do not persuade us that the ALJ failed to consider the relevant evidence.
Moreover, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence, and decline the claimant’s invitation to do so Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Therefore, we may not interfere with the ALJ’s order denying permanent total disability benefits.
Next, we have no authority to resolve the claimant’s constitutional challenges. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Therefore, we do not consider the claimant’s contention that “SB 218 violates due process, equal protection and other constitutional provisions.”
Finally, the claimant asserts that the ALJ “did state there are to be Grover, continuing medical benefits.” To the extent the claimant argues that the ALJ erred in failing to award future medical benefits, we disagree.
At the commencement of the hearing on October 15, 1998, claimant’s counsel pointed out that the respondents Final Admission of Liability dated April 21, 1998, admitted liability for future medical benefits. The respondents’ counsel agreed. (Tr. p. 4). The ALJ incorporated the parties’ agreement in her order. See Conclusions of Law 3; Summary Order dated October 29, 1998.
Moreover, claimant’s counsel stated that the only issue for adjudication was permanent total disability. (Tr. p. 3). Under these circumstances, the ALJ did not err in failing to enter a specific order awarding future medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 25, 1998, 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, 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. 1998.
Copies of this decision were mailed April 9, 1999
the following parties:
Michael G. Powers, 2609 S. Patton Ct., Denver, CO 80219
A Skyhook Company, Attn: Dave Bell, 5075 Tabor St., Wheat Ridge, CO 80033
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Raymond F. Callahan, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043
BY: AP