W.C. No. 4-320-104.Industrial Claim Appeals Office.
January 30, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which awarded permanent total disability (PTD) benefits and required the respondents to pay for certain medications. The respondents contend the ALJ applied an incorrect legal standard in awarding PTD benefits, and that the record does not support the findings of fact. The respondents further contend the record does not support the ALJ’s determination that the need for the medications was caused by the injury. We affirm.
The claimant, who was employed as dental hygienist for 20 years, sustained a compensable occupational disease in February 1996. The disease affected the claimant’s right upper extremity (RUE), and she underwent four operations on the RUE. Eventually, the claimant’s left upper extremity (LUE) was also affected because of overuse.
The claimant reached maximum medical improvement (MMI) in July 1999 and underwent a Division-sponsored independent medical examination (DIME). The DIME physician assessed a 20 percent whole person impairment based on reduced range of motion in the right wrist, instability of the right wrist joint, and ulnar neuropathy at the right elbow. The DIME physician also assessed 2 percent whole person impairment for depression. In October 2002 the claimant attended a pain clinic program and the treating physician at that facility restricted the claimant from using the RUE to lift any weight, and limited lifting with the LUE to 7 pounds.
At hearing the claimant testified that she has attempted to perform three jobs since the onset of the disease but has been unsuccessful in each of them. The claimant stated that she could only work part-time in these jobs and that some of the jobs required activities beyond her capacity. The claimant also testified that she experiences constant pain in her right wrist, migraine headaches approximately once per month, and bouts of depression once or twice per month, some of which may last a week. The claimant estimated that if she returned to work she would miss 2 to 5 days per week because of these conditions. (Tr. p. 62).
The respondents presented expert vocational testimony indicating the claimant could perform various jobs available in her local labor market. The claimant presented expert vocational testimony that the claimant is unable to earn any wages in her labor market. The claimant’s vocational expert opined that the jobs identified by the respondents’ expert are beyond the claimant’s physical capacity, or that the claimant’s symptoms would cause her to miss so much work that she could not retain the jobs within her physical capacity.
The claimant continues to receive treatment from a psychiatrist, Dr. Partridge. Dr. Partridge prescribes various medications which include Neurontin for pain and Ritalin to treat the side effects of Neurontin. Dr. Partridge also prescribed Depakote, and later Topamax, for treatment of the claimant’s headaches, and Ambien to aid in sleep. Dr. Partridge stated the need for these medications is one-hundred percent related to the occupational disease. Dr. Partridge also opined the claimant’s chronic pain will affect her ability to concentrate at work and the claimant wouldexperience “quite a bit of absenteeism” from work because of the pain. (Partridge Depo. P. 24).
The ALJ found the claimant proved she is unable to earn wages in any employment, and therefore is entitled to PTD benefits. In so doing, the ALJ credited the claimant’s testimony concerning her physical and psychological limitations and the medical restrictions imposed at the pain clinic. The ALJ further credited the testimony of the claimant’s vocational expert that the claimant’s physical limitations and propensity for absenteeism render her unable to obtain and/or maintain employment.
The ALJ also credited Dr. Partridge’s testimony and reports concerning the need for the various medications. Consequently, she ordered the respondents to reimburse the claimant for the purchase of these drugs.
I.
On review, the respondents first contend the ALJ applied an erroneous standard of law in determining that the claimant is entitled to PTD benefits. The respondents assert the award is based on “speculation” that high rates of absenteeism would render the claimant unable to maintain employment in jobs which are otherwise within her limitations. We disagree.
Pursuant to § 8-40-201(16.5)(a), C.R.S. 2003, in order to receive PTD benefits the claimant must prove the industrial injury rendered her unable to earn any wages in the same or other employment. In resolving this issue, the ALJ may consider a number of “human factors” including the claimant’s overall physical condition, mental condition, education, and prior experience, and the availability of work which the claimant is able to perform. Indeed, the crux of the test is the existence of employment which is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998). Thus, it is proper for the ALJ to consider the likelihood that the claimant’s condition, including debilitating pain, will render her unable to sustain the post-injury employment. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 868 (Colo.App. 2001).
The question of whether the claimant has proved PTD is ultimately one of fact for determination by the ALJ. Weld County School District RE-12, supra. Consequently, we must uphold the ALJ’s determination of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003).
Contrary to the respondents’ contention, the ALJ’s finding that the claimant will probably not be able to maintain employment because of injury-related absenteeism does not reflect a misapplication of these principles. As we have previously held, the question of whether employment will be reasonably available in light of the claimant’s particular circumstances does not involve impermissible “speculation” if there is substantial evidence to support the ALJ’s determination. The following language from Calvert v. Roadway Express, Inc.,
W.C. No. 4-355-715 (June 25, 2003), is pertinent.
Contrary to the claimant’s contentions, the ALJ is not required to determine with absolute certainty that the claimant would be successful in obtaining and maintaining employment. Instead, the ALJ is required to determine whether it is more probable than not the claimant is capable of earning wages. Duran v. MG Concrete, Inc., W.C. No. 4-222-069 (September 17, 1998); Bonds v. Skyline Fire Protection District, W.C. No. 4-111-529
(December 5, 1995). This standard necessarily requires the ALJ to predict the claimant’s future employment prospects. See Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087
(1940).
Here, the ALJ’s order reflects a correct understanding of the applicable legal principles. Further, for the reasons stated below, we conclude the ALJ’s resolution of the issue of entitlement to PTD benefits is supported by the evidence.
II.
The respondents next contend the award of PTD benefits is not supported by substantial evidence. The respondents argue the “overwhelming” evidence demonstrates the claimant is capable of employment in one or more of the jobs identified by their vocational expert. The respondents also dispute certain specific findings. We perceive no error.
Contrary to the respondents’ argument concerning the “weight of the evidence,” the ALJ’s finding that any prospective employer would have to accept a high level of absenteeism is supported by substantial evidence. Dr. Partridge’s testimony supports the finding that the claimant’s pain will probably result in absenteeism. The claimant’s own testimony that she would probably miss 2 to 5 days per month because of her symptoms, and that her pain caused her to miss working days when she was in the homemade soap business supports the determination. Moreover, the claimant’s husband testified to the disabling effects of depression.
The claimant’s vocational expert testified that the expected level of absenteeism would probably be too high for employers to maintain the claimant as an employee. (Tr. Pp. 126, 149). Even the respondents’ vocational expert opined the claimant would not be able to do the jobs which he identified if the ALJ were to credit the claimant’s testimony concerning her condition. (Tr. Pp. 203-204).
Contrary to the respondents’ contention, the evidence does support the ALJ’s finding that the claimant would “not be able to sustain employment.” (Conclusion of Law 4). The claimant testified that when she was self-employed in the soap business she would “miss a day or two” because of pain, which in turn would cause her to be unable to fulfill her orders. (Tr. P. 50). Further, the claimant testified that when she worked in the tile store the employer, the claimant’s friend, did all she could to accommodate the claimant, but the claimant couldn’t be effective, particularly with regard to the computer requirements. (Tr. Pp. 52-53). Much the same scenario occurred when the claimant worked for Dr. Irish. Moreover, the claimant testified to missing various volunteer and social functions because of disabling pain.
Further, there is no inherent inconsistency between the claimant’s testimony that she would accept “flexible employment” and the ALJ’s conclusion that the claimant is PTD. The fact that the claimant would be willing to work under extremely limited and flexible conditions does not mean that any jobs are reasonably available within the claimant’s limitations.
There is also credible evidence to support the finding that the jobs identified by the respondents’ expert are not “often” available in Durango. The claimant’s expert testified that many of the employers in the claimant’s labor market are small employers and are not required to accommodate restrictions, (Tr. Pp. 136-137). Thus, the fact that the respondents’ expert identified certain jobs as being available did not negate the possibility that such jobs are not “often” available. The ALJ resolved the conflict in the evidence in favor of the claimant. As noted, the “relevant inquiry” is not limited to whether any jobs are available at the time of the hearing, but may also include the likelihood that the claimant can sustain the employment. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra.
It follows that we disagree with the respondents’ assertion that the “overwhelming” weight of the evidence compelled the ALJ to find that the claimant is able to earn wages and not entitled to PTD benefits. To the contrary, the record is replete with conflicting evidence and testimony, including conflicting expert testimony, concerning the claimant’s ability to obtain and maintain employment in her labor market. Thus, the issue was one of fact for the ALJ, and the mere possibility that the evidence could support a different result affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, supra.
III.
The respondents next contend the ALJ erred in ordering them to pay for Depakote, Topamax, Neurontin, Ritalin and Ambien. The basis of this contention is apparently that the claimant experienced migraine headaches before developing the occupational disease, and would therefore require Depakote and Topamax regardless of the injury. The respondents also assert that the claimant was prescribed Neurontin when she was hospitalized for a bi-polar disorder in 1995. We are not persuaded.
The claimant must prove that the need for medical treatment was caused by an injury arising out of and in the course of the employment. Section 8-41-301(1)(c), C.R.S. 2003; Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). The mere existence of a preexisting condition or disease does not defeat a claim for benefits if the industrial injury aggravates, accelerates or combines with the preexisting condition so as to cause the need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). The question of whether the claimant has proven causation is one of fact for determination by the ALJ, and we must uphold that determination if supported by substantial evidence. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Here, the claimant testified that although she had one or two migraines per year before developing the occupational disease, the pain from her condition increased the frequency and severity of the headaches so as to necessitate the need for Depakote, and later Topamax. Dr. Willner corroborated the claimant’s testimony concerning the aggravation of the preexisting migraine condition, and explained that the medications help prevent headaches. (Claimant’s exhibit 38, pp. 3-4). Dr. Partridge testified and reported that the need for these medications was “one hundred percent” attributable to the industrial injury. (Partridge Depo. Pp. 12, 14-15).
It is true that there is some evidence that the claimant was prescribed Depakote when she was hospitalized for bi-polar disorder in 1995. (See Respondents’ exhibit F, p. 86). However, Dr. Willner explained that Depakote is an anticonvulsant which has value in the treatment of bi-polar disorder and the prevention of migraine headaches. (Claimant’s Exhibit 38 P. 3). Indeed, it appears that when Depakote was first prescribed in 1995 it was for treatment of bi-polar disorder, not headaches. At the time the ALJ entered the order she reasonably found the medication was needed to help prevent headaches and the claimant was receiving other medications to treat her ongoing psychological conditions. Thus, the ALJ was not required to find the claimant would have continued to take Depakote or its substitute regardless of the occupational disease.
Similarly, Neurontin, also an anticonvulsant, was first prescribed in 1995 to treat the claimant’s bi-polar diagnosis. However, by the time of the ALJ’s order, Dr. Partridge was prescribing the drug to treat nerve pain caused by the injury. (Partridge Depo. Pp. 7-8). Thus, there is substantial evidence to support the order with respect to Neurontin and Ritalin (prescribed for treatment of Neurontin’s side effects). Finally, Dr. Partridge testified that Ambien is necessary because it relieves sleep difficulties caused by pain. It follows there is substantial evidence to support the award of medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 3, 2003, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at theaddresses shown below on January 30, 2004 by A. Hurtado.
Cynthia Scholfield, 3795 County Road 203, Durango, CO 81301
Brian West, D.D.S., 2323 W. 2nd Ave., #D, Durango, CO 81301
Rhonda Norris, State Farm Insurance Companies, P. O. Box 266004, Littleton, CO 80163
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Cheryl A. Martin, Esq. and Gary L. Fleming, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)