W.C. No. 3-950-160Industrial Claim Appeals Office.
November 3, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which requires them to pay permanent total disability benefits. We affirm.
The claimant suffered admitted injuries in 1989, when she fell from a 12 foot ladder during the course and scope of her employment for Wal-Mart Stores, Inc. In a previous order which was upheld on appeal, it was determined that the fall resulted in a closed head injury, and that the injury caused the claimant to suffer a disabling post-traumatic depression neurosis.
From conflicting medical evidence, the ALJ found that the claimant’s physical, emotional, psychological and intellectual restrictions from the injury preclude the claimant from being regularly employable in any well known branch of the labor market. Consequently, the ALJ determined that the claimant is permanently and totally disabled.
In support of his determination, the ALJ credited the medical reports of authorized treating physicians including Dr. Thomas, Dr. Reicks, Dr. Khan and Dr. Hopple as well as the opinions of Dr. Hasan, Dr. Ryals, and Dr. Bowen. The ALJ also explicitly rejected the contrary opinions of Dr. Sheplay and the testimony of vocational rehabilitation expert Ronald Brennan, insofar as their conclusions were inconsistent with the opinions of the authorized treating physicians. The ALJ also relied upon his observations of the claimant during the hearing.
On review, the respondents contend that 1) the claimant’s testimony is the only evidence the claimant is permanently and totally disabled; 2) that the opinions of Dr. Reicks and Dr. Hopple lack evidentiary value because their opinions are based upon the claimant’s subjective statements; and 3) that the claimant failed to present credible evidence to refute the opinions of Dr. Sheplay and Ronald Brennan. Based upon these assertions the respondents argue that the ALJ’s finding of permanent total disability is not supported by substantial, credible evidence in the record, or reasonable inferences drawn from conflicts in the evidence. We disagree.
Initially, we reject the respondents’ contention that the ALJ failed to determine the cause of the claimant’s disability. The ALJ expressly determined that the industrial injury is the proximate cause of the claimant’s permanent and total disability. (Finding of Fact 3). The ALJ also explicitly resolved the evidentiary conflicts concerning the causation issue by crediting the reports of Dr. Thomas. Specifically, the ALJ was persuaded by Dr Thomas’ discharge summary diagnosis of “head injury, possible subdural hematoma, multiple contusion and abrasions.” Findings of Fact 3, 4, 5; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion) Regional Transportation District v. Jackson, 805 P.2d 1190
(Colo.App. 1991) (ALJ’s credibility determinations adequately informs reviewing court how ALJ resolved conflicts in the evidence).
Next, we reject the respondents’ assertion that “credible” evidence of permanent total disability is limited to expert medical and vocational evidence. A claimant may establish permanent total disability entirely through lay testimony including her own testimony. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Similarly, the respondents mistakenly assume that uncontroverted evidence is binding on the ALJ. To the contrary, the ALJ is free to reject even uncontroverted medical or vocational evidence if he finds the evidence unpersuasive. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
It is clear that the respondents are dissatisfied with the ALJ’s failure to credit the opinions of Dr. Sheplay and Mr. Brennan. However, it is the ALJ’s sole prerogative to evaluate the sufficiency, credibility and probative value of conflicting medical and vocational evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). We have no authority to reweigh the evidence to reach the conclusions sought by the respondents. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Moreover, we must uphold the ALJ’s credibility determinations unless the testimony he credited is rebutted by such hard, certain evidence that it would be error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Notwithstanding the respondents’ arguments, there is substantial evidence in the medical records the ALJ explicitly relied upon, to support the ALJ’s finding that the claimant is permanently and totally disabled. Furthermore, we cannot say that the testimony of Dr. Sheplay and Mr. Brennan constitutes such hard, certain evidence as to render the ALJ’s credibility determinations erroneous as a matter of law. Halliburton Services v. Miller, supra. Consequently, the respondents have failed to establish grounds which afford us a basis to set aside the ALJ’s order F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 5, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 3, 1995 to the following parties:
Wilma Samora, 476 Melody Lane, Grand Junction, CO 81501
Wal-Mart Stores, Inc., 148 Craft, Alamosa, CO 81101
Claims Management, Inc., Attn: Merry Jones, P.O. Box 1288, Bentonville, AR 72712-1288
Edwin J. Lobato, Esq., P.O. Box 1302, Alamosa, CO 81101
(For the Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227
(For the Respondents)
BY: _______________________