W.C. No. 4-104-524Industrial Claim Appeals Office.
April 26, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) insofar as it denied the claim for permanent total disability benefits. The respondents seek review of the order insofar as it awarded medical impairment benefits based upon a disability of twenty-nine percent of the whole person. We affirm.
The ALJ found that the claimant sustained a work-related back injury in August 1991. The injury resulted in at least three separate surgeries, including the insertion of a “spinal stimulator” to alleviate pain.
The claimant’s treating physician, Dr. Light, opined that the claimant reached maximum medical improvement (MMI) in September 1993. Dr. Light also stated that the claimant had a twenty-nine percent impairment of the whole person.
In October 1993, the respondents requested that the claimant undergo an independent medical examination (IME) by Dr. Bender. Dr. Bender performed range of motion tests on the claimant but stated that the results were invalid. He also opined that range of motion tests performed by Dr. Light, upon which her impairment rating was based, were invalid under the AMA Guides.
Finally, the claimant underwent an IME sponsored by the Division of Workers’ Compensation. The division-sponsored IME was performed by Dr. Dewell who opined that the claimant had a twenty-one percent whole person impairment. However, in a report dated January 6, 1995, Dr. Bender opined that Dr. Dewell’s range of motion tests were invalid and that the claimant actually had a ten percent impairment under the AMA Guides.
Finally, the claimant was evaluated by the respondents’ vocational expert, Mr. Macurak. Macurak opined that the claimant was capable of employment as a sales representative, particularly in the telemarketing area.
The ALJ rejected the claimant’s argument that he is permanently and totally disabled. In so doing, the ALJ credited Macurak’s testimony that the claimant is employable in view of his sales experience and despite his restrictions. The ALJ also found that Dr. Dewell’s impairment rating was overcome by clear and convincing evidence. In support of this determination, the ALJ cited Dr. Bender’s January 6 report that Dr. Dewell’s range of motion tests were invalid. However, the ALJ went on to “adopt” Dr. Light’s rating of twenty-nine percent of the whole person.
I.
On review, the claimant contends that the denial of permanent total disability benefits is contrary to law because the ALJ failed to consider evidence of the claimant’s debilitating pain. The claimant argues that the ALJ was required to consider the pain evidence, and that the findings do not reflect that the ALJ did so. We disagree with this argument.
In determining whether the claimant was permanently and totally disabled, the ALJ was required to determine whether the claimant was capable of earning “any wages.” McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). In considering this question the ALJ was not confined to medical evidence, but was entitled to consider numerous factors including the extent to which the claimant’s pain affected his ability to earn wages. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). The ultimate determination of whether or not the claimant was permanently and totally disabled was one of fact for resolution by the ALJ. Christie v. Coors Transportation Co., ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995).
Because the issue was factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we must accept the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences he drew from the evidence Best-Way Concrete Co. v. Baumgartner, supra. Further, the ALJ was not required to make specific findings concerning every aspect of the evidence so long as the order describes the evidence which the ALJ found determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
Here, we are not persuaded that the ALJ failed to consider the evidence concerning the claimant’s pain. Instead, the ALJ credited the opinions of Dr. Light and Mr. Macurak concerning the extent of the claimant’s limitations. As Macurak himself testified, it may be inferred that the claimant’s pain was a factor which Dr. Light took into account when establishing the permanent restrictions. Furthermore, Macurak’s testimony provides substantial evidence in support of the denial of permanent total disability benefits. Christie v. Coors Transportation Co., supra.
II.
For their part, the respondents contest the ALJ’s determination that the claimant has a medical impairment of twenty-nine percent of the whole person. They argue that the ALJ’s determination that Dr. Dewell’s rating was overcome by clear and convincing evidence is inconsistent with his decision to credit Dr. Light’s impairment rating. The respondents reason that the ALJ could not reasonably credit Dr. Bender’s opinion that Dr. Dewell’s range of motion ratings were invalid while discrediting Dr. Bender’s opinion that Dr. Light’s range of motion measurements were invalid. We reject this argument.
The respondents correctly state that once the ALJ determined that Dr. Dewell’s rating was overcome by clear and convincing evidence it was for the ALJ to determine, as a matter of fact, which of the remaining ratings accurately reflected the claimant’s impairment under the AMA Guides. See Metro Moving Storage Co. v. Gussert, ___ P.2d ___ (Colo.App. No. 94CA1926, June 15, 1995). Because determination of the proper rating is a factual question, we are again obliged to defer to the ALJ’s resolution of conflicts in the evidence and his credibility determinations. Section 8-43-301(8). Moreover, we note that an ALJ may credit all, part or none of the testimony of a witness. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Here, we disagree with the respondents’ assertion the ALJ’s decision to credit Dr. Bender’s opinion concerning the rating of Dr. Dewell required the ALJ to credit Bender’s opinion concerning Dr. Light’s rating. Our review of the medical reports indicates that, although Dr. Bender gave a detailed explanation of why he believed Dr. Dewell’s range of motion measurements were invalid, he did not give a similar explanation with respect to Dr. Light’s measurements. (See Bender Report, October 27, 1993). Moreover, the range of motion rating sheet which accompanied Dr. Light’s report contains a detailed statement of the validity criteria involving the range of motion measurements.
Neither was the ALJ’s required to give an explanation of why he credited Dr. Light’s opinion over that of Dr. Bender. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987). At most, the evidence presented conflicting opinions between qualified medical experts, and we will not interfere with the ALJ’s resolution of this conflict Wells v. Del Norte School District C-7, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 26, 1996 to the following parties:
Thomas G. Richards, 402 Dean Drive, Widefield, CO 80911
Coca-Cola Bottling Co., 415 W. Pikes Peak Ave., Colorado Springs, CO 80905-1524
Wichita Coca-Cola Bottling Co., Attn: Karen Gibson, P.O. Box 365, Wichita KS 67201
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349
(For the Claimant)
Douglas J. Kotarek, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
By: _______________________