W.C. No. 4-288-669Industrial Claim Appeals Office.
September 24, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant is permanently and totally disabled. We affirm.
The claimant suffered a compensable back injury on February 12, 1996, while working as an operating room nurse. The claimant was diagnosed with herniated discs at L5-S1 and L4-5 with impingement of the left L5 nerve root. The claimant was also diagnosed with a major depressive disorder.
The claimant underwent a laminectomy at L4 and a micro discectomy at L4-5. The claimant testified that the surgery provided temporary relief from back pain. However, at the time of the hearing on permanent disability, the claimant testified that he suffers pain in his low back, buttocks, and left thigh, and experiences numbness, tingling and weakness in his left ankle. (Tr. September 22, 1997, pp. 11, 16). Due to the left ankle weakness he wears a leg brace. The claimant stated that he also suffers from moderate headaches, and problems with concentration, sleeping and depression. (Tr. September 22, 1997 pp. 17-18, 20). He stated that he receives steroid blocks every 8 to 10 weeks to reduce his back pain, and that he is sick for 5 days after the blocks. (Tr. September 22, 1997, pp. 12-14). The claimant takes Percocet, Ultra, Motrin, Flexeril, and aspirin for pain. He also stated that he lies down a half a dozen times during the day to relieve pain. (Tr. September 22, 1997, p. 15).
Dr. Jenks placed the claimant at maximum medical improvement (MMI) on March 18, 1997, and released him to sedentary work with lifting, bending, stooping, standing, and sitting restrictions. A Functional Capacity Evaluation (FCE) was completed February 3, 1997. The FCE placed the claimant in the sedentary work category. The FCE also indicated that the claimant has an unstable gait, is “unsafe” for lifting and carrying activities, and is a “major safety risk.” The FCE further reported that neither standing nor sitting is “a functional activity” for the claimant because he can only sit 10 minutes and stand 3 minutes at a time.
While temporarily disabled from the effects of the injury, the claimant completed his Bachelor of Nursing degree. The claimant also began a Masters’ program in forensic nursing, which included two clinical internships.
Vocational rehabilitation expert Katie Grimler Montoya (Montoya) opined that the claimant’s academic success demonstrates the claimant’s residual employment capabilities. Montoya opined that the claimant is employable as a utilization review telephone case manager.
Vocational rehabilitation expert Kenneth James (James) opined that the claimant’s academic endeavors do not support a finding of residual vocational capacities and earning potential. James opined the claimant’s medical restrictions preclude him from all types of nursing jobs involving direct patient care. James further opined that the claimant’s exertional limitations, poor tolerances for sitting and standing/walking, chronic pain, frequency of bad days, and sleep problems preclude him from all lighter duty nursing jobs and all other work existing in the labor market. (James report dated June 26, 1997). Therefore, James opined the claimant is unable to earn any wages, including wages as a utilization review telephone case manager.
JoAnn Ruth, a nursing instructor at the Bethel College of Nursing, testified that the nursing school made accommodations to allow the claimant to finish his courses. She also opined that the claimant’s ability to think and concentrate was a detriment to his class work and would be a detriment to employment. (Tr. September 22, 1997, pp 101, 104).
Relying on the testimony of the claimant and JoAnn Ruth, the FCE results, and the opinions of vocational expert James, the ALJ found that the claimant has been successful in his academic activities because they were offered in a “protected” environment. Further, the ALJ determined that the claimant lacks the necessary concentration and functioning for employment. Therefore, the ALJ determined that the claimant is permanently and totally disabled. The respondent timely petitioned for review of the ALJ’s order, and the matter was transmitted to us for review.
I.
Following transmission of this case for our review, the respondent filed a “Motion to Stay Petition to Review.” The motion asserts that subsequent to the entry of the ALJ’s order, the claimant suffered a worsening of condition and is no longer at MMI. Therefore, the respondent contends that the issues on appeal are no longer ripe. The respondent requests that review of the ALJ’s order be “stayed” until the claimant reaches MMI. We deny the motion.
Pursuant to § 8-43-301(8), C.R.S. 1998, we have sixty days in which to enter our order on a petition for review. The only provision permitting an extension of time for entry of an order is § 8-43-301(9), C.R.S. 1998, which permits us to extend the time by thirty days upon the filing of a “stipulated motion requesting that consideration of the appeal be deferred pending ongoing settlement negotiations.” Here, there is no stipulated motion to stay the appeal pending “settlement negotiations.” Consequently, the respondent’s factual assertions do not afford us grounds to “stay” our review of the ALJ’s order. See Ramirez v. Excel Corporation, W.C. No. 3-990-123 (October 26, 1995). Therefore, we deny the respondent’s motion.
II.
The respondent contends that the “overwhelming evidence” establishes that the claimant has substantial residual employment capabilities. Therefore, the respondent contends the ALJ erred in awarding permanent total disability benefits. We perceive no error.
Section 8-40-201(16.5)(a), C.R.S. 1998, defines permanent total disability as the inability to earn “any wages in the same or other employment.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is incapable of earning wages in the same or other employment is to be based upon the ALJ’s consideration of a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The test for determining the “availability of work” is whether employment exists “that is reasonably available to the claimant under his or her particular circumstances.” Id. at 558.
The question of whether the claimant has the ability to earn “any wages” within the meaning of § 8-40-201(16.5)(a) must be decided on a case-by-case basis and varies according to the particular abilities of the claimant. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Because the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., 933 P.2d 1330
(Colo. 1997).
Application of the substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Christie v. Coors Transportation Co., supra. Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ’s province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We have reviewed the ALJ’s findings of fact and the record. The ALJ expressly rejected Montoya’s opinion that the claimant can earn wages as a utilization case manager because Montoya reviewed the job description with Dr. Kendall who had not examined the claimant for a year, and did not review the job description with Dr. Jenks who was treating the claimant at the time of the hearing. Further, the ALJ determined that Montoya did not advise potential employers of the claimant’s complete physical and emotional condition and limitations.
The ALJ’s findings are supported by substantial, albeit
conflicting evidence, and therefore must be upheld. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Furthermore, the ALJ’s finding that the claimant is unable to earn any wages is a plausible inference from the record.
However, the respondent contends the ALJ erroneously failed to consider whether the claimant is precluded from receiving permanent total disability benefits, because he voluntarily removed himself from the labor market. The respondent argues that the claimant’s school enrollment constitutes an “intervening event” which severs the causal connection between the industrial injury and the claimant’s wage loss. We are not persuaded.
The ALJ is presumed to have considered all of the evidence See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). The ALJ is not required to explicitly discuss evidence or theories she rejected as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). Therefore, we presume the ALJ was not persuaded the claimant’s school attendance constituted an intervening event, and that determination is supported by the record.
As a result of the industrial injury, the claimant was temporarily restricted from all work. Thus, the claimant was removed from the labor market as a result of the injury, not his decision to return to school. Furthermore, the respondent does not contend that the claimant rejected an offer of employment between the Spring of 1996 and January 1997, when he was attending school. To the contrary, the respondent’s Final Admission of Liability dated May 20, 1997, admits liability for temporary total disability benefits from February 20, 1996, to the date of MMI. The respondent has not sought to withdraw the Final Admission. Under these circumstances, the ALJ could reasonably infer that the claimant’s wage loss is not the result of his decision to attend school.
IT IS THEREFORE ORDERED that the respondent’s motion to stay the petition to review is denied.
IT IS FURTHER ORDERED that the ALJ’s order dated October 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed September 24, 1998 to the following parties:
A.J. Silvia, 11913 Laurelwood Dr., #3, Studio City, CA 91604
Penrose Hospital, P.O. Box 7021, Colorado Springs, CO 80933
Sisters of Charity, 4815 List Dr., Ste. 111, Colorado Springs, CO 80919
Debra Howie, Alternative Management Services, 1115 Elkton Dr., Ste. 400, Colorado Springs, CO 80907
Susan K. Reeves, Esq., 111 So. Tejon, Ste. 700, Colorado Springs, CO 80903 (For the Respondents)
H. Clifford Potter, Esq., 115 E. Vermijo, Ste. 101, Colorado Springs, CO 80903 (For the Claimant)
BY: _______________________