W.C. No. 4-400-402.Industrial Claim Appeals Office.
July 25, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied permanent total disability (PTD) benefits. The claimant contends the ALJ failed to resolve conflicts in the evidence concerning her return to work efforts, her need for vocational rehabilitation, and whether she is unable to sustain employment due to chronic pain caused by the industrial injury. We disagree, and therefore, affirm.
In 1998, the claimant injured her low back while employed as a part-time housekeeper for the respondent-employer. As a result of the injury, the claimant underwent a posterior fusion surgery with placement of an allograft at L5-S1. Later, Dr. Youssef found that the facet screws implanted during the fusion surgery had broken. Therefore, Dr. Youssef performed a revision surgery in May 2002. In February 2003, Dr. Youssef opined that as a result of the claimant’s physical limitations from the industrial injury, she would likely miss 7 to 9 workdays a month. On April 4, 2003, Dr. Youssef opined the fusion was solid and placed the claimant at maximum medical improvement (MMI) with permanent restrictions precluding the claimant from lifting greater than 50 pounds and repetitive bending, twisting, or work in awkward positions.
A functional capacity evaluation (FCE) was then performed by John McAward (McAward). The FCE concluded the claimant was capable of sedentary work initially 3 hours per day. Dr. Gilman, who conducted a Division-sponsored independent medical examination (DIME), opined the physical activity recommendations in the FCE were reasonable for the claimant.
The ALJ found the FCE accurately reflected the claimant’s physical abilities. (Finding of Fact 19). Therefore, the ALJ determined the claimant is capable of returning to work in the sedentary category which does not require lifting more than 10 pounds, sitting more than 40 minutes at a time, or standing more than 60 minutes at a time. Based on the FCE, the ALJ also determined the claimant is capable of working 3 hours and progressing up to full-time work.
Crediting the opinions of the respondents’ vocational rehabilitation expert, John Drew (Drew), the ALJ also found the claimant retains transferable skills consistent with what is represented on her resume, and that there are a number of jobs available to the claimant within her physical restrictions. Further, the ALJ relied on Drew’s testimony to find the claimant has not put forth a good effort to return to the workforce. (Finding of Fact 23). Therefore, the ALJ found the claimant failed to prove she is PTD. (Finding of Fact 18).
The claimant’s Petition to Review contains general allegations of error under § 8-43-301(8), C.R.S. 2004. However, the claimant’s Brief in Support of the Petition to Review argues solely that the ALJ failed to resolve pertinent conflicts in the evidence. We reject this argument.
Section 8-40-201(16.5)(a), C.R.S. 2004, defines PTD as the claimant’s inability “to earn any wages in the same or other employment.” Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained her burden of proof, the ALJ may consider 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 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.
We must uphold the ALJ’s determination that the claimant failed to sustain her burden of proof if supported by substantial evidence in the record. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995). Under the substantial evidence standard, we must defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995). Further, insofar as the record is subject to conflicting inferences, the ALJ’s resolution of the conflicts is binding Christie v. Coors Transportation Co., supra. However, the ALJ is not required to cite 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. (Conclusions of Law p. 8) Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Contrary to the claimant’s contention, we perceive no conflict in Drew’s testimony concerning whether the claimant was employable without vocational rehabilitation. The ALJ recognized Drew’s testimony that he provided “voc rehabilitation” and “job placement” services to chronic pain patients because returning to suitable work provides a therapeutic benefit. (Finding of Fact 22). Furthermore, Drew stated that he provided job placement services to the claimant by obtaining a list of available jobs within her physical limitations. (Depo. p. 203). Therefore, insofar as Drew testified that he recommended the respondents provide vocational rehabilitation services to the claimant, the ALJ was not persuaded such services were necessary because he found jobs were available to the claimant within her physical restrictions. (Finding of Fact 24). Furthermore, the ALJ expressly rejected Dr. Youssef’s opinions concerning the claimant’s work capacity, and the ALJ’s failure to cite Dr. Youssef’s recommendation for vocational rehabilitation is consistent with that determination. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966).
Next, it is implicit that the ALJ resolved conflicts in the record concerning the claimant’s return to work efforts against the claimant. For example, the ALJ rejected the claimant’s testimony that she did not possess sufficient proficiency to successfully complete the final exam for a home study accounting course, because the claimant had scored 86 to 100 points on nearly all of the course study quizzes. (Finding of Fact 16). Instead, the ALJ was persuaded by evidence that the claimant failed to begin her job search until 1½ months before the hearing, and that the claimant did not attempt to contact any of the 27 employers identified in Drew’s in a labor market survey until 3 days before the hearing. The ALJ also relied on evidence that the claimant did not complete the job applications for the potential employers, and listed an old address on the resume submitted to potential employers. (Finding of Fact 23). Under these circumstances, the omission from the ALJ’s findings of the claimant’s failed employment at Granite Peaks Ranch plainly reflects that he found it unpersuasive of a diligent attempt at re-employment. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Neither is there any unresolved conflict between Dr. Youssef’s opinion that the claimant would probably miss 7 to 9 workdays a month due to pain from the industrial injury, and the ALJ’s decision to credit Drew’s testimony that the claimant is capable of sustaining employment. When Drew stated “I completely agree” with Dr. Youssef” that the claimant would miss some workdays as a result of the injury, he qualified his answer by adding that the lost days would occur only in the “in the beginning” of a new job. (Drew depo. p. 103). We also note the ALJ’s finding that at MMI, Dr. Youssef no longer opined the claimant would miss 7 to 9 days of work per month. Therefore, the ALJ’s decision to credit Drew’s testimony is not inconsistent with his decision to reject Dr. Youssef’s opinions concerning the claimant’s inability to sustain employment.
Finally, the ALJ’s factual determinations are supported by substantial evidence in the expert testimony he found persuasive, and the findings support the conclusion the claimant is not permanently totally disabled. Therefore, the claimant has failed to establish grounds on which to disturb the ALJ’s order denying PTD benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Debbie Robinette, Bayfield, CO, Wit’s End Guest Ranch and Resort, Glendale, AZ, Legal Department, Pinnacol Assurance — Interagency Mail Gail C. Harriss, Esq., Durango, CO, (For Claimant).
Nancy C. Hummel, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).