W.C. No. 4-423-638Industrial Claim Appeals Office.
May 17, 2001
FINAL ORDER
The claimant seeks review of an order issued by Administrative Law Judge Wheelock (ALJ) which denied permanent total disability benefits. We affirm.
The claimant sustained an occupational disease to her upper extremities and neck in December 1998. She attained maximum medical improvement in June 1999, and her treating physician, Dr. Schwender, imposed permanent restrictions. The respondents admitted liability for permanent partial disability benefits based on 14 percent permanent medical impairment in accordance with an independent medical examination rating. The claimant objected and sought permanent total disability benefits.
Among other things, the ALJ found the respondents’ vocational expert opined that the claimant was able to earn wages in employment as a telemarketer, appointment setter, admissions representative, and translator. The ALJ also found that Dr. Schwender approved jobs for the claimant as a telemarketer, parking lot attendant, and admissions representative. Based on those opinions and other evidence of the claimant’s work skills, the ALJ concluded the claimant had failed to prove she is unable to earn any wages as a result of her industrial injuries and therefore denied the claim for permanent total disability benefits.
On appeal, the claimant argues that the evidence fails to show the job analyses on which Dr. Schwender relied and, therefore, his opinion the claimant is able to perform certain jobs is not supported by substantial evidence in the record. The claimant also argues that because the ALJ failed to find that the job analyses on which Dr. Schwender relied were accurate, the findings fail to resolve conflicts in the evidence and are insufficient to permit appellate review. The claimant’s arguments do not persuade us there is any reversible error in the denial of benefits.
The ALJ’s findings concerning the opinions of Dr. Schwender are supported by the record. The claimant’s arguments essentially concern the weight to be accorded those opinions, but such assessment is a matter solely within the province of the ALJ. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
In any event, the ALJ’s order is not based solely on the vocational opinions of Dr. Schwender, but also is supported by the opinions of the respondents’ vocational expert, who concluded the claimant was capable of performing various jobs within the restrictions that had been imposed. To the extent the claimant presented evidence to the contrary, it was the ALJ’s prerogative to determine which evidence was more persuasive.
It was the claimant’s burden to persuade the ALJ that she is unable to earn any wages, and therefore is entitled to permanent total disability benefits. See McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). The claimant’s evidence failed to persuade the ALJ, and we cannot say the evidence compels a contrary determination. The denial of benefits was therefore proper.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 7, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ 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. 2000. 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 decision were mailed May 17, 2001 to the following parties:
Esmeralda Soto, 8683 Garrison Rd., Falcon, CO 80831
Ford Microelectronics Inc., 9965 Federal Blvd., Colorado Springs, CO 80921
CIGNA, Carol Schwartz, ACE USA, P. O. Box 2941, Greenwood Village, CO 80150
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80919 (For Claimant)
Karen Gail Treece, Esq. and Craig P. Henderson, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY A. Pendroy