W.C. No. 4-446-524.Industrial Claim Appeals Office.
June 3, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied benefits for permanent total disability (PTD). We affirm.
The claimant suffered an admitted industrial injury in 1999, when she hit her head on a steel beam. As a result of the injury, the claimant was medically restricted from lifting over 10 pounds repetitively, push/pulling over 10 pounds and reaching above the shoulders. Giving the greatest weight to medical and vocational evidence, the ALJ determined the claimant failed to prove she is PTD.
On review, the claimant contends the ALJ misapplied the law in failing to consider her “subjective circumstances.” The claimant also contends that relevant “human factors” compel a finding of PTD. We disagree.
Section 8-40-201 (16.5) (a), C.R.S. 2003, defines PTD as the inability “to earn any wages in the same or other employment.” In determining whether the claimant has sustained her burden to prove PTD, the ALJ may consider 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). As stated in Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001):
The crux of the test is the “existence of employment that is reasonably available to the claimant under his or her particular circumstances.” The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.”
Thus, we do not disagree with the claimant that the applicable legal standard contemplates consideration of the claimant’s particular circumstances. However, it would undermine the significance of various “human factors” if the claimant’s testimony that she is unable to perform any employment was sufficient to prove PTD.
Moreover, § 8-40-201 (16.5) (a) was enacted as part of the comprehensive amendments in Senate Bill 1991-218 to “tighten” and restrict eligibility for PTD benefits. Weld County School District RE-12 v. Bymer, 955 P.2d at 559; McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). The legislative intent of restricting eligibility to PTD would be jeopardized if the claimant was only required to present evidence that she considered herself unemployable. Consequently, we agree with the ALJ insofar as he determined that a claimant cannot establish entitlement to PTD solely by her subjective assessment of her limitations.
The question of whether the claimant has the ability to earn “any wages” within the meaning of § 8-40-201 (16.5) (a) is factual in nature. Therefore, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003 Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., supra. Application of the substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Christie v. Coors Transportation Co., supra.
Contrary to the claimant’s contentions, the ALJ did not refuse to consider the claimant’s subjective complaints. The ALJ expressly noted that the issue was whether to rely on the objective findings of the claimant’s medical providers or the claimant’s subjective complaints of pain. Findings of Fact 12, 18 (emphasis in original). However, the ALJ ultimately rejected the claimant’s subjective assessment of her residual earning capacity. In particular, the ALJ found that:
If Claimant is believed, one would expect the doctors to provide, or at least offer, substantial medical care. Clearly there is a reason the doctors did not do so and instead maintain that Claimant is discharged with minimal medical maintenance needs and restrictions which allow her to return to work. (Finding of Fact 18).
The ALJ was also persuaded by the opinions of the vocational experts that the medical restrictions imposed by the examining physicians allow the claimant to return to a wide variety of sedentary and light duty work, and there are numerous positions available to the claimant within these restrictions. In addition, the ALJ determined that the relevant “human factors” including the claimant’s age, employment history, and medical condition support a finding the claimant is able to return to work and earn wages. (Conclusions of Law d).
The claimant contends the ALJ’s findings are incomplete. However, the ALJ is not required to make findings on every piece of evidence, just the evidence he found persuasive and determinative. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Testimony not cited is deemed implicitly rejected. Magnetic Engineering Inc., v. Industrial Claim Appeals Office, supra.
The claimant also challenges the sufficiency of evidence to support the ALJ’s findings, but we are not persuaded. Further, the ALJ’s findings support the denial of benefits.
As we read the ALJ’s order, he was persuaded that the claimant’s medical condition was not as debilitating as the claimant represented it to be and that the claimant had a propensity to exaggerate her symptoms. For example, the ALJ relied on evidence that the claimant presented herself as more debilitated during a restaurant meeting with the respondents’ vocational expert than acquaintances at the restaurant were accustomed to seeing her. (Finding of Fact 16). Similarly, the ALJ determined that evidence the claimant complained of having a “bad” day during one doctor’s appointment and reported experiencing the first headache in three weeks during another appointment was illustrative of the claimant’s symptom magnification. (Finding of Fact 11). The ALJ’s findings reflect plausible inferences from the record and therefore must be upheld on review. See University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001).
The claimant also contends the record fails to support the ALJ’s finding that the claimant reported the onset of migraine headaches on October 1, 2002. In support, the claimant points out evidence that the claimant was treated for work-related migraine headaches as early as December 2001.
In Finding of Fact 7, the ALJ found:
On May 31, 2002, Claimant had completed five sessions of biofeedback evaluation and training without subjective improvement in her pain or sleep. She returned to Dr. Fall on October 1, 2002, reporting migraine headaches.
When read in context, we do not understand the ALJ as finding that the claimant reported the onset of migraine headaches in October 2002. Rather, the ALJ found that although the claimant had five biofeedback sessions she continued to report migraine headaches and that was consistent with her tendency to exaggerate her symptoms.
We agree with the claimant that the ALJ erred insofar as he found the October 7, 2002 “MRI” revealed no complications from the cervical surgery. The October 7 test was an x-ray, not an MRI. (See Respondents’ Hearing Exhibit K). However, the relevance of the ALJ’s finding appears to be that diagnostic testing indicated surgery for the work-related cervical injury was a success. Thus, the ALJ’s erroneous reference to the test as an MRI was harmless.
There was also a direct conflict between the claimant and the employer’s records (see Respondents’ Hearing Exhibit M) concerning the claimant’s employment resignation on November 4, 1999. The ALJ resolved the conflict in favor of the respondents, which was within his sole prerogative. See Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Further, there is substantial evidence in Exhibit M to support the ALJ’s finding that the employer made an offer of “transitional” employment on November 9, 1999, which the claimant refused.
The record is also subject to highly conflicting evidence concerning whether the claimant made a diligent effort to obtain employment. The respondents’ vocational expert testified that she contacted several of the employers the claimant allegedly called to request employment and discovered that the claimant had not contacted that employer. Based on this testimony the ALJ could, and did, reasonably infer that the claimant’s job search did not demonstrate “actual, unsuccessful efforts to obtain employment.” See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001) (ALJ’s resolution of conflicting evidence must stand on appeal). The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, based upon this record we cannot say the ALJ erred as a matter of law in rejecting the claimant’s testimony. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970).
The claimant’s further arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 15, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Karen Simpson, Platteville, CO, Marlene Romero, Ameriserve, Aurora, CO, Transcontinental Insurance, c/o Mary Koch, CNA, Denver, CO, William F. Garcia, Esq., Greeley, CO, (For Claimant).
David J. Dworkin, Esq., Denver, CO, (For Respondents).