W.C. No. 3-990-123Industrial Claim Appeals Office.
October 26, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ), insofar as it awarded permanent total disability benefits. We affirm.
As a result of his employment, the claimant sustained bilateral ganglion cysts. The cysts were surgically removed in 1990. The claimant testified that since the surgery he experiences pain in both upper extremities and the pain is disabling.
The claimant’s testimony was corroborated by the report of an examining physician, Dr. Schmidt, who opined that the claimant has disabling upper extremity pain although “the exact etiology is not clear.” The claimant also underwent a functional capacity assessment, reported as “conditionally valid,” which indicates that the claimant “failed to meet strength levels consistent with seventy-five percent of the adult population in all six positions” tested. Further, two vocational experts testified that if Dr. Schmidt’s restrictions are accepted the claimant is unemployable.
The ALJ credited the claimant’s testimony and the opinion of Dr. Schmidt. Consequently, the ALJ concluded that the claimant is permanently and totally disabled.
On review, the respondent contends that the award of permanent total disability benefits is not supported by substantial evidence. In support of this contention, the respondent relies on the opinions of several physicians that the claimant’s pain complaints are inconsistent with the objective physical findings. The respondent also relies on a videotape which purportedly shows the claimant performing work activities inconsistent with pain. We reject the respondent’s arguments.
As the respondent concedes, the ALJ has wide discretion in determining whether the claimant is permanently and totally disabled. In determining the issue, the ALJ may consider a wide variety of factors involving the claimant’s physical condition, work history, age and other pertinent matters. Professional Fire Protection, Inc. v. Long, 867 P.2d 175
(Colo.App. 1993).
In evaluating whether the ALJ has abused his discretion, we must uphold his findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Under this standard it is for the ALJ to determine the weight, credibility and inferences to be drawn from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Insofar as expert medical testimony is involved, the ALJ is not bound to credit any expert, and is free to resolve conflicts between competing experts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondent’s argument emphasizes those portions of the evidence which are favorable to it, while discounting the evidence which the ALJ found credible and persuasive. We have reviewed the record and conclude that the ALJ’s findings are supported by substantial, albeit conflicting, evidence in the record. Therefore, we decline the respondent’s invitation to substitute our judgment for that of the ALJ concerning the extent of the claimant’s disability. Monfort, Inc. v. Rangel, supra.
Similarly, we reject the respondent’s argument that the ALJ erred in finding that the videotape depicted the claimant’s cousin, not the claimant. This finding was supported by the testimony of Carmen Ramirez, and it was for the ALJ to assess the credibility of this testimony.
Following transmission of this case for our review, the respondent filed a “Motion to Stay Appeal and Remand.” This motion asserts that, subsequent to the hearing, the respondent obtained evidence proving that the claimant was untruthful in testifying that he did not work after the industrial injury. The respondent requests that we “stay” our review and remand the matter so that the respondent may litigate a petition to reopen based on newly discovered evidence. We deny the motion.
Pursuant to § 8-43-301(8), we have sixty days in which to enter our order. The only provision permitting an extension of time for entry of an order is § 8-43-301(9), C.R.S. (1995 Cum. Supp.), which permits us to extend the time by thirty days upon the filing of a “stipulated motion requesting that consideration of the appeal be deferred pending ongoing settlement negotiations.” There is no statutory authority which permits us to “stay” an appeal pending resolution of a petition to reopen or to remand for litigation of a petition to reopen. Consequently, we deny the respondent’s Motion to Stay Appeal and Remand.
IT IS THEREFORE ORDERED that the ALJ’s order, dated April 28, 1995, is affirmed.
IT IS FURTHER ORDERED that the respondent’s Motion to Stay Appeal and Remand is denied.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 26, 1995 to the following parties:
Juan Ramirez, 1104 6th St., #2, Greeley, CO 80631
EXCEL Corp., Attn: Erin Hatfield, C.S. 4100, Ft. Morgan, CO 80701
Crawford Co., Attn: Gina Griego, P.O. Box 340, Greeley, CO 80632-0340
Allen J. Kincaid, Esq., 6312 S. Fiddler’s Green Cr., #270N, Englewood, CO 80111 (For the Claimant)
Tama L. Levine, Esq., 1290 Broadway, #708, Denver, CO 80203 (For the Respondent)
By: ________________________