W.C. No. 4-456-987Industrial Claim Appeals Office.
April 30, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gartland (ALJ) which denied the claim for permanent total disability benefits. The claimant contends the ALJ’s order is not supported by substantial evidence, and that the ALJ failed to resolve pertinent conflicts in the evidence. We affirm.
The claimant sustained a back injury which resulted in ongoing pain and substantial restrictions. A functional capacities evaluation was performed in August 2001, and the claimant was found to be limited to the “light demand classification.” Specifically, the claimant was limited to lifting 25 pounds occasionally, and was restricted to occasional sitting and standing. The physical therapist who performed the functional capacities evaluation also stated the claimant should work part-time, and would “be best in a job that allows him to sit and stand as needed as well as providing an area for him to lie down during his breaks.” As a result of the injury, the claimant is unable to return to his preinjury employment performing property maintenance.
The respondents submitted the testimony and report of a vocational expert. This expert conducted labor market research, and opined there were several types of jobs available to the claimant within his commutable labor market. The vocational expert stated that he advised the potential employers of the claimant’s physical limitations reflected in the functional capacities evaluation, and the potential employers indicated their willingness to accommodate the claimant’s limitations. (Tr. pp. 109, 121; Respondents’ Exhibit H at p. 8).
The ALJ credited the testimony of the respondents’ vocational expert that he was “able to identify specific jobs within claimant’s restrictions in the commutable labor market,” and that the employers have “expressed a willingness to accommodate claimant’s restrictions, identified in the” functional capacities evaluation. (Findings of Fact 17, 18). In light of these findings, the ALJ determined it is “more probable than not the claimant is capable of earning wages” within the meaning of §8-40-201(16.5)(a), C.R.S. 2001. Therefore, the ALJ denied the claim for permanent total disability benefits.
On review, the claimant contends the ALJ’s order is not supported by substantial evidence in the record, and that the findings are not sufficient to support appellate review. The claimant argues his “unrebutted” testimony establishes he must lie down for 2 hours per day, and that he experiences exacerbations of his back pain which would require him to miss work for up to three days per week. (Tr. pp. 25, 29, 31). The claimant also cites the testimony of his vocational expert who opined the claimant was unlikely to retain employment in light of his limitations and the number of days he would be unable to work. (Tr. pp. 61-62). The claimant argues this evidence establishes permanent total disability, and that the ALJ’s order fails to address the significance of this evidence with regard to the issue of permanent total disability. We are not persuaded by these arguments.
In order to receive permanent total disability benefits, the claimant must prove the injury has rendered him “unable to earn any wages in the same or other employment.” Section 8-40-201(16.5)(a). When evaluating a claim for permanent total disability benefits the crux of the issue is whether employment “is reasonably available to the claimant given his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d 550, 558 (Colo. 1998). This test contemplates consideration of “human factors,” which may include an evaluation of whether or not the claimant’s condition will enable the claimant “to sustain the post-injury employment.” Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866
(Colo.App. 2001).
Ultimately, the question of whether the claimant proved permanent total disability is one of fact for determination by the ALJ. Consequently, the ALJ’s pertinent findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Weld County School District RE- 12 v. Bymer, supra. The ALJ is under no obligation to credit testimony or evidence, even if it is unrebutted and uncontradicted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
We also note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. The ALJ is under no obligation to address every issue raised by the evidence, nor expressly reject specific evidence which she finds to be unpersuasive. All that is required is the ALJ enter findings of fact and conclusions of law which are sufficient to indicate the basis of the order. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ explicitly credited the testimony of the respondents’ vocational expert that based on the limitations cited in the functional capacities evaluation, the claimant could obtain part-time employment within his commutable labor market. Implicit in this finding is the rejection of the claimant’s testimony that he was required to lie down for 2 hours per day, and that his symptoms would require him to miss 3 days of work per week. Indeed, the functional capacities evaluation itself provides evidence the claimant was capable of part-time employment of 3 to 4 hours per day, and might need to “lie down during his breaks.” Further, there was evidence the claimant performed full-time light duty employment until he was laid off in February 2001.
The ALJ’s findings are supported by substantial evidence in the record. Further, the basis for the ALJ’s denial of permanent total disability benefits is apparent from the findings entered. Consequently, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 29, 2001, is 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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 30, 2002 to the following parties:
Wiley L. Seale, 121 Inspiration Dr., Pagosa Springs, CO 81147
David J. Brown d/b/a Bootjack Management Co., 12500 East Highway 160, Pagosa Springs, CO 81147
Michael J. Steiner, Esq., CCIA d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
By: A. Hurtado