W.C. No. 4-493-405.Industrial Claim Appeals Office.
June 10, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied permanent total disability (PTD) benefits. We affirm.
The claimant was employed as an alarm installer when she suffered a compensable right shoulder injury while pulling wire. The claimant reached maximum medical improvement (MMI) in August 2001. As a result of the injury the claimant is permanently restricted from lifting more than eight pounds. Consequently, the claimant is medically restricted from resuming her pre-injury employment.
However, the claimant was employed as a full-time clerk at a 7-Eleven store for approximately one year after MMI. The claimant was being trained for a shift manager position, when she was terminated for reasons unrelated to the industrial injury.
Crediting the opinions of the respondents’ vocational expert, the ALJ found the claimant is capable of “performing clerical work, light assembly, customer service and other employment.” (Finding of Fact 11). Therefore, the ALJ determined the claimant failed to prove entitlement to PTD benefits.
On review the claimant contends the ALJ misapplied the law in denying PTD. We disagree.
Under the applicable law, a claimant is entitled to PTD benefits if the claimant is unable to “earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), 2003. In determining whether the claimant has satisfied her burden of proof, 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).
Further, the industrial injury need not be the sole cause of the claimant’s PTD. This is true because under the “full responsibility rule” an employer takes an injured worker as it finds her, and PTD can be a combination of personal factors, such a pre-existing physical condition and a work-related injury. Climax Molybdenum Co. v. Walter, 812 P.2d 1168
(1991); Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). The only exception to the rule is where the industrial injury is not a significant causative factor in the claimant’s disability. Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995).
Because the question of whether the claimant has the ability to earn “any wages” 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. 2003; Weld County School District RE-12 v. Bymer, 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. 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).
Here, the ALJ was not required to determine if the industrial injury was a significant causative factor in the claimant’s PTD because the ALJ determined the claimant was not PTD. In so doing, the ALJ explicitly recognized evidence of the claimant’s pre-existing psychological condition. However, the ALJ was not persuaded the condition was permanently disabling. Rather, the ALJ determined it was a temporary condition that “waxed and waned.”
There is substantial, albeit conflicting, medical and vocational evidence in the record to support the ALJ’s finding that the claimant is not PTD. Consequently, we need not address the medical and vocational evidence the claimant relies upon which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985); Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995) (ALJ is sole arbiter of conflicting medical evidence).
We also specifically reject the claimant’s challenge to the sufficiency of evidence to support the ALJ’s Finding of Fact 11. The claimant testified that after the industrial injury she performed “paperwork” for the respondent-employer. (Tr. p. 9). She also stated that during her employment at 7-Eleven she “did paperwork, some cashier, [and] did orders.” (Tr. p. 14). Indeed, she testified that during management training she was trained to prepare orders, prepare schedules, and track bills. (Tr. p. 29).
Further, the respondents’ vocational expert opined the claimant might be able to do customer service work if her pre-existing psychological condition waned. (Tr. p. 82). Based upon this testimony the ALJ reasonably inferred that the claimant is capable of earning wages as a “clerical worker, or customer service representative.”
IT IS THEREFORE ORDERED that the ALJ’s order dated December 29, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
Jean Sydney, c/o William A. Alexander, Jr., Esq., Colorado Springs, CO.
Personnel Department, P.E.S.P., Resumes On Line, Englewood, CO, Colorado Insurance Guaranty Association, c/o Bea Calvert, Western Guaranty Fund, Denver, CO, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Robert Hinckley, Jr., Esq., Denver, CO, (For Respondents).