W.C. No. 4-129-646Industrial Claim Appeals Office.
May 3, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which awarded the claimant permanent total disability benefits. We affirm.
In support of the award, the ALJ found that the claimant sustained a compensable workers’ compensation injury which affected both of her upper extremities. The ALJ also found that the claimant’s permanent restrictions were those stated by Dr. Fernandez on June 23, 1995. Finally, the ALJ credited the opinion of the claimant’s expert, Mr. White, that the claimant is unemployable in view of her physical restrictions, low skills, and marginal education.
On review, the respondents contend that the ALJ’s order is not supported by substantial evidence. They point out that Mr. White’s opinion concerning the claimant’s disability was issued approximately six month before the report of Dr. Fernandez. We reject this argument.
The ALJ’s pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying the substantial evidence test we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996). Moreover, a vocational expert is competent to testify concerning the impact of physical restrictions on the claimant’s employability. See Chambers v. CFI Steel Corp., 757 P.2d 1171 (Colo.App. 1988).
Here, it is true that the restrictions which the ALJ found to be credible were imposed after Mr. White issued his opinion concerning the claimant’s degree of disability. However, the ALJ need not have concluded that the restrictions imposed by Dr. Fernandez were so different from those presumed to exist by Mr. White that White’s opinion was not credible. To the contrary, the restrictions imposed by Dr. Fernandez contain limitations which preclude the claimant from repetitive work with her upper extremities. Dr. Fernandez also limited the amount and frequency of lifting, as well as repetitive “fine manipulation.” To the extent there was any variation in the restrictions considered by Mr. White, it was for the ALJ to assess the impact of that variation on White’s credibility.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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 May 3, 1996 to the following parties:
Refugio G. Romero, 126 S. Perry, Denver, CO 80219
Vencor, Inc., P.O. Box 283, St. Louis, MO 63166-0283
Sentry Insurance, Attn: Carol Keim, P.O. Box 29466, Phoenix, AZ 85038
Elsa Martinez Tenreiro, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
John Lebsack, Esq., 1225 17th St., #2800, Denver, CO 80202-5528 (For the Respondents)
By: ____________________