W.C. No. 4-685-158.Industrial Claim Appeals Office.
March 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated September 18, 2007, that denied the claim for permanent total disability benefits and denied the claimant’s request for maintenance medical benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant is a 37-year-old male who understands and speaks little English. The claimant has a ninth grade education and was trained as a welder and worked in maintenance, drywalling and as a mechanic. The claimant suffered a compensable injury when he fell off a ladder. The claimant was seen by a physician about one hour after his fall. The claimant reported a head injury to this doctor and it was noted that he suffered a laceration of his upper lip. On a return visit, the claimant complained of right upper extremity and low back pain. The claimant was diagnosed with contusion of his back, shoulder and elbow and Dr. Winslow returned the claimant to light duty. Numerous treating physicians and other medical care providers noted that the claimant had exaggerated pain behaviors and no physiologic symptoms. The medical providers found that the claimant’s complaints were out of proportion to objective findings, and the doctors could find no objective etiology for his complaints. Similarly, both the physical therapists that tested the claimant’s functional capacity reported that objective criteria such as Waddell’s signs and Korbon’s protocols indicated symptom magnification and poor reliability of the patient’s subjective reporting or borderline invalid functional capacity evaluation results. The respondent’s vocational expert testified that considering the claimant’s functional capacities and restrictions, he was employable and capable of earning a wage within his commutable labor market. There was no credible or persuasive evidence that the claimant required additional medical treatment.
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The ALJ concluded that the claimant failed to sustain his burden of proof to establish permanent total disability. The ALJ denied the claimant’s request for an order awarding maintenance medical benefits. The claimant filed a petition to review contending that the ALJ erred in denying the claimant’s claims for permanent total disability benefits and maintenance medical benefits. Otherwise, the petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2007. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
I. The claimant first contends the ALJ erred in denying permanent total disability benefits. Section 8-40-201(16.5)(a), C.R.S. 2007, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” The burden of proof to establish permanent total disability is on the claimant. In determining whether the claimant has sustained his burden of proof, the ALJ may consider those “human factors” that define the claimant as an individual. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
Because the issue of permanent total disability is generally factual, we must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v.
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Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions she found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
In this regard, the ALJ’s assessment of the probative value of the evidence and her credibility determinations are matters solely within her province. We may not set aside a credibility determination unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Here there was ample evidence supporting the ALJ’s conclusion that the claimant was not permanently and totally disabled. The ALJ entered detailed finding concerning evidence that the claimant had exaggerated pain behaviors and non-physiologic symptoms. These findings were supported by the record.
In June 2006, the claimant was evaluated by an orthopedic specialist who found it difficult to sort out the claimant’s pains or ascertain the organic etiology of his continued pain problems. Exhibit C at 29. On July 25, 2006, Dr. Aschberger reported concerns regarding the patient’s presentation and issues of symptom magnification. Exhibit C at 25. On July 27, 2006, Dr. Winslow reported lack of progress with limited objective findings and concerns over an altered prescription. Dr. Winslow felt uncomfortable about continuing to treat the claimant feeling that the significant trust relationship was broken and discharged the claimant. Exhibit C at 23.
Dr. Hattem noted in August 2006 the there were many “red flags” in the case. The claimant claimed he fell 20 feet when the employer reported he fell only two feet. The claimant altered a prescription and there has been no improvement in his condition. Exhibit C at 21-22.
The functional capacity evaluation arranged for by the claimant’s counsel showed positive Waddell’s signs Exhibit E at 49. The therapist noted that these positive signs are suggestive of non-organic presentation and may indicate poor reliability of the patient’s subjective reporting and/or inappropriate pain behaviors. Exhibit E at 49. In a functional capacity evaluation conducted in October 2006, it was noted that the claimant exhibited symptom/disability exaggeration behavior and scored 4/5 by Waddell’s and 6/21 by Korbon’s protocols indicating that there was a non-organic component to his pain, medical impairment and disability. The validity criteria suggested poor demonstrated effort and borderline invalid functional capacity results. Exhibit F at 54.
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The vocational rehabilitation expert for the respondent expressed the opinion that the claimant retained the ability to earn a wage within his commutable labor market and to sustain working. Exhibit G at 77. The opinions of this vocational rehabilitation expert provide substantial evidence supporting the ALJ’s conclusion that the claimant was not permanently and totally disabled. We perceive no basis for disturbing the ALJ’s conclusion.
Further, we note that the claimant failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Since the ALJ’s factual findings are supported by substantial evidence, and since those findings in turn support the ALJ’s conclusion we decline to disturb the order.
II.
The claimant next contends the ALJ erred in denying ongoing medical benefits after MMI pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The burden of proof was on the claimant to establish entitlement to Grover medical benefits. Grover v. Industrial Commission, supra; Cordova v. Foundation Builders Inc., W. C. No. 4-296-404 (April 20, 2001). In order to be entitled to receive Grover medical benefits the claimant must present, at the time permanent disability benefits are determined, substantial evidence that future medical treatment is or will be reasonably necessary to relieve the claimant from the effects of the injury or to prevent deterioration of the claimant’s condition See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003) Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). The question of whether the claimant met the burden of proof to establish an entitlement to ongoing medical benefits is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Renzelman v. Falcon School District, W. C. No. 4-508-925 (August 4, 2003),
The ALJ found with record support that Dr. Hattem reported in October and November 2006, when the claimant was released from care, that he did not require maintenance medical benefits. Exhibit C at 15. Dr. Hattem’s expert opinion contains substantial evidence to support the ALJ’s finding. We perceive no reversible error in the ALJ’s determination that the claimant failed to meet his burden of establishing entitlement to ongoing medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order issued September 18, 2007, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
ROBERTO RAMIREZ, CLAYTON STREET, THORNTON, CO, (Claimant).
FENIMORE DRYWALL, Attn: BRIAN FENIMORE, NEWLAND WAY, ARVADA, CO, (Employer).
AIG CLAIMS SERVICES, INC., Attn: CAROL KEIM (PHOENIX, AZ OFFICE), SHAWNEE MISSION, KS, (Insurer).
THE LAW OFFICE OF MIGUEL MARTINEZ, Attn: CAMERON CURRY, ESQ., SUITE A, GREELEY, CO, (For Claimant).
SENTER GOLDFARB RICE, LLC, Attn: JJ. FRASER, III, ESQ., DENVER, CO, (For Respondents).
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