W.C. No. 4-205-358Industrial Claim Appeals Office.
August 3, 2000
FINAL ORDER
The respondents seek review of two orders of Administrative Law Judge Friend (ALJ) which awarded the claimant permanent total disability benefits. The respondents argue the record lacks substantial evidence to support the ALJ’s finding the claimant is psychologically unable to earn any wages. They further contend the ALJ erred in failing to bar the claim based on the claimant’s refusal to accept an offer of employment. We affirm.
The claimant sustained a compensable back injury in March 1994. The treating physician placed the claimant at maximum medical improvement in March 1995, with a diagnosis of chronic low back pain syndrome and degenerative spinal changes. The physician restricted the claimant to lifting 15 pounds occasionally and 10 pounds frequently, limited her to occasional bending and twisting, and recommended the claimant alternate between sitting and standing. Apparently, it is undisputed that these restrictions prohibit the claimant from performing her preinjury duties as a bus person in a restaurant. However, in May 1995, the employer offered modified employment as a bus person which was within the claimant’s physical restrictions. The claimant declined this offer.
Citing the reports of numerous medical experts, the ALJ found the injury resulted in a “psychological condition” which causes the claimant to experience chronic pain. Specifically, the ALJ found the claimant failed to make a satisfactory “adjustment to her physical problems” and suffers from a “severe mental impairment.”
Under these conditions, the ALJ concluded that, although the claimant is capable of finding employment within her physical restrictions, she is not psychologically able to obtain or retain employment. Therefore, the ALJ awarded permanent total disability benefits. Similarly, the ALJ determined the claim for permanent total disability benefits is not barred by § 8-42-111(3), C.R.S. 1999, which prohibits an award of permanent total disability benefits where the claimant is capable of rehabilitation and refuses an offer of employment. Specifically, the ALJ determined that, although the offered employment was within the claimant’s physical capacity, she was not psychologically able to perform it.
I.
On review, the respondents contend the record lacks substantial evidence to support the ALJ’s finding that, although the claimant is physically able to obtain employment, she is not psychologically capable of “obtaining and retaining employment.” Essentially, the respondents argue that neither the claimant, nor any of the physicians or vocational experts, testified that the claimant’s psychological condition disables her from performing employment. We reject this argument.
Section 8-40-201(16.5)(a), C.R.S. 1999, defines permanent total disability to mean the claimant “is unable to earn any wages in this same or other employment.” In applying this test, the ALJ may consider the effects of the industrial injury in the context of the claimant’s individual “human factors,” including the claimant’s physical condition, mental ability, age, employment history, education, and the availability of work the claimant is able to perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The “crux of the inquiry is whether employment exists that is reasonably available to the claimant given his or her circumstances.” Id. at 557; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701
(Colo.App. 1999).
Implicit in the rule that “human factors” are relevant to claims for permanent total disability is the conclusion that a mental disability may be as disabling as restrictions resulting from a physical injury. See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Further, when considering permanent total disability benefits, there is no requirement that the claimant prove the existence of disability by expert testimony. See Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1993); but see, § 8-41-301 (2)(a) and (a.5), C.R.S. 1999 (concerning mental impairment arising from physical injuries incurred on or after July 1, 1999).
The question of whether the claimant has proven permanent total disability is one of fact for determination by the ALJ. Therefore, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Weld County School District RE-12 v. Bymer, supra.
Here, the record contains substantial evidence from which the ALJ could reasonably infer the claimant’s psychological condition renders her incapable of obtaining or retaining employment. Numerous medical experts opined the claimant suffers from a psychological condition, variously diagnosed as a pain syndrome, depression, and an anxiety disorder, which is related to the effects of the industrial injury. In 1997 Dr. Borrego observed the claimant has “difficulty with sustained attention/concentration as well as the inability to sustain performance over extended periods,” and the claimant “has made an unsatisfactory adjustment to her physical problems.” Dr. Bralliar rated the claimant as suffering from a 5 percent whole person impairment caused by injury-related depression. Dr. Bralliar opined the claimant’s depression affects the claimant’s ability to interact in group activities, perform simple repetitive tasks, make decisions, and manage conflicts with others. (Impairment Rating Worksheet). She also stated that depression affects concentration, motivation, and work tolerance. (Bralliar Depo. p. 39). The claimant’s vocational expert opined the claimant is unable to earn any wages, and attributed part of this inability to the claimant’s psychological condition. (Litvin Report, June 5, 1995 at p. 7). The claimant, and the claimant’s husband, testified the claimant has difficulty with concentration and social activity. (Tr. September 14, 1998, p. 50: Tr. October 6, 1998, p. 12-13).
Thus, even if no medical or vocational expert explicitly testified the claimant’s psychological condition renders her unable to earn wages, the ALJ could logically draw that inference. This is particularly true because the ALJ found, on substantial evidence, that the claimant has unsuccessfully applied for a number of jobs. The mere fact the ALJ could have drawn other inferences affords no basis for relief on appeal.
II.
The respondents next contend the ALJ erred in failing to bar the claim on the basis the claimant refused an offer of employment within her restrictions. Section § 8-42-111(3). According to the respondents, the ALJ found the claimant was physically capable of performing the job offered by the employer, but erroneously found the psychological condition prohibited acceptance of the job. The respondents further argue there is “no substantial evidence in the record to support a finding that the claimant would not be capable of rehabilitation from a psychological standpoint.” We find no error.
Section 8-42-111(3) provides a claimant shall not be awarded permanent total disability benefits if the claimant is “capable of rehabilitation” and “refuses an offer of employment.” We have previously held on numerous occasions that § 8-42-111(3) creates an affirmative defense to a claim for permanent total disability benefits, and the respondents bear the burden of proof to establish the conditions of the defense. E.g. Seymour v. Pillow Kingdom, Inc., W.C. No. 3-925-175 (March 14, 1996); Mason v. Sinclair Bowl, W.C. No. 3-962-083 (February 4, 1994). Here, there is substantial evidence to support the ALJ’s determination the claimant is not psychologically capable of maintaining employment, including the job offered by the employer. Therefore, there is substantial evidence the claimant is not “capable of rehabilitation” despite the offer of employment, and the respondents failed to carry their burden of proof to demonstrate the applicability of § 8-42-111(3).
Insofar as the respondents make other arguments, they are purely factual and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s orders dated November 17, 1999, and November 12, 1998, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 3, 2000 to the following parties:
Susana Robles, 3610 Fairfax St., Denver, CO 80207
Colorado Museum of Natural History, 2001 Colorado Blvd., Denver, CO 80205-5732
American Motorists Insurance Co., Kemper Insurance, P. O. Box 5347, Denver, CO 80217
Elsa Martinez Tenreiro, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Ted Krumreich, Esq., 950 17th St., 21st floor, Denver, CO 80202-2804 (For Respondents)
BY: A. Pendroy