W.C. No. 4-380-035Industrial Claim Appeals Office.
October 23, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied permanent total disability benefits and limited the claimant to medical impairment benefits based on 8 percent impairment of the right upper extremity. We affirm.
The ALJ found the claimant sustained a compensable injury to her right upper extremity from the aggravation of pre-existing right lateral epicondylitis. The injury was treated by Dr. Hart and Dr. Richards. The claimant was also examined by a rheumatologist-Dr. Eckland, a neurologist-Dr. Burnbaum, and a psychiatrist-Dr. Sammons, for complaints of gastrointestinal pain, depression, a bodily movement disorder and pain extending to her shoulders, and lower extremities. On December 10, 1998, Dr. Hart placed the claimant at maximum medical improvement (MMI) with 8 percent permanent medical impairment to the right upper extremity, and permanently restricted the claimant’s right elbow and grasping activities. Dr. Hart also opined the claimant’s gastrointestinal problems, and multiple joint pain were unrelated to the industrial injury.
On October 27, 1999, the claimant underwent a Division-sponsored independent medical examination (DIME) by Dr. Bralliar. Dr. Bralliar assigned a 29 percent whole person impairment rating due to 3 percent mental impairment, 11 percent impairment to the right upper extremity and 18 impairment to the cervical and thoracic spine. The right upper extremity impairment was based on 6 percent impairment of the right shoulder and 14 impairment of the ulnar nerve due to sensory and motor loss.
The claimant also underwent an IME by Dr. Orent. In a report dated January 18, 1999, Dr. Orent opined that the mechanism of the industrial injury did not support Dr. Bralliar’s rating of medical impairment to the cervical and thoracic spine or the right shoulder. Dr. Orent also disagreed with Dr. Bralliar’s finding that the claimant’s ulnar nerve impairment is causally related to the industrial elbow injury. Further, Dr. Orent opined that insofar as the claimant suffers from Crohn’s disease, a movement disorder, fibromyalgia or psychological problems, they are unrelated to the industrial injury.
In July 1999, the claimant underwent a psychological examination by Dr. Perry, who suspected a conversion disorder. On March 24, 2000, Dr. Dahlberg performed a psychiatric IME. Dr. Dahlberg was unable to make an axis I diagnosis under the DSM-IV. Consequently, Dr. Dahlberg was unable to determine whether the claimant was suffering from a conversion disorder or malingering. However, he opined the claimant has “minimal” residual psychological impairment. Furthermore, Dr. Dahlberg opined that Dr. Bralliar’s mental impairment rating report was “practically useless” because Dr. Bralliar failed to assign a 0-6 rating level to the activities of daily living she found to be impaired. Dr. Dahlberg also doubted there is any causal relationship between the claimant’s universal symptoms and the minor industrial injury to the right upper extremity.
At hearing the claimant admitted that the right elbow was the situs of the industrial injury. (Tr. p. 7). However, she complained of “horrible abdominal pain” and pain in her neck, shoulders, chest, right wrist, back, hips, knees and feet. The claimant attributed all of these symptoms to the industrial injury. (Tr. pp. 23, 25).
Crediting the opinions of Dr. Orent and Dr. Dahlberg, the ALJ determined the respondents overcame Dr. Bralliar’s medical impairment rating by “clear and convincing evidence,” and found the claimant’s complaints of diffuse body pain are unrelated to the right upper extremity lateral epicondylitis injury. Relying on Dr. Hart’s opinions, the ALJ further found that the injury caused 8 percent impairment to the right upper extremity. Therefore, the ALJ denied the claimant’s request for medical impairment benefits beyond the benefits due in accordance with Dr. Hart’s rating.
On the issue of permanent total disability, the ALJ found the claimant is capable of earning wages in the occupations of general office worker, social services aide, park entrance worker, receptionist, hostess, school aide and teacher’s aide. The ALJ also found that such jobs exist within the claimant’s commutable job market. Therefore, the ALJ determined the claimant failed to prove her entitlement to permanent total disability benefits.
I.
On review the claimant contends there is no evidence of any state park entrance jobs in her local community and therefore, the record fails to support the ALJ’s finding that the claimant is capable of earning wages in this occupation. The claimant also contends that the other jobs identified by the respondents’ vocational rehabilitation expert, Margot Hammar, (Hammar) whose opinions the ALJ implicitly credited, are not within the claimant’s mental and cognitive limitations. Therefore, the claimant argues the ALJ erred as a matter of fact and law in refusing to award permanent total disability benefits. We disagree.
Section 8-40-201(16.5)(a), C.R.S. 2000, defines permanent total disability as the inability to earn any wages in the same or other employment, and it is the claimant’s burden to prove permanent and total disability . Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Consequently, we have previously concluded that the respondents are not required to present evidence of a particular job opening to defeat a claim for permanent total disability. Beavers v. Windsor Gardens Association,
W.C. No. 4-163-718 (January 31, 1996), aff’d., Beavers v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0275, September 5, 1996) (not selected for publication).
The question of whether the claimant is unable to earn “any wages,” is one of fact for resolution by the ALJ. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Consequently, the pertinent issue is whether the ALJ’s finding that the claimant is able to earn wages is supported by substantial evidence in the record and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. 2000. If the finding is supported, it is immaterial that the record contains evidence, which if credited, might support a contrary conclusion.
Dr. Bralliar recommended the claimant avoid:
“prolonged, repetitive or more than occasional: flexion, extension, rotation or lateral flexion of the spine, lifting, carrying, pushing or pulling more than 15 pounds or so; squatting, crouching, or crawling; sitting longer than 15 to 20 minutes, standing or walking longer than 10 to 15 minutes and not without being able to use her cane as needed; right upper extremity gripping, squeezing, grasping, twisting or similar activities.”
The claimant agreed with the medical restrictions imposed by Dr. Bralliar. (Tr. p. 47). Relying on Dr. Bralliar’s restrictions Hammar opined that the claimant has transferrable skills in unskilled and semi-skilled occupations within a commutable labor market. The claimant’s arguments to the contrary, there is substantial evidence in Hammar’s testimony that the duties required of the occupations she identified for the claimant do not exceed the exertional limits established by Dr. Bralliar. (See
Tr. pp. 115, 124).
Hammar also testified that the claimant demonstrated inconsistencies in her memory skills and that the jobs she identified did not exceed the claimant’s cognitive limitations. (Tr. pp. 108, 126-127). Hammar’s opinions are buttressed by the claimant’s testimony that she was teaching herself how to use a computer, and taking a college level art course. (Tr. p. 52). Thus, the record did not preclude the ALJ from finding that jobs within the claimant’s limitations exist.
Furthermore, Hammar opined that the claimant’s commutable labor market includes Grand Junction and that Grand Junction has a greater supply of jobs within the claimant’s restrictions than the claimant’s local community of Hotchkiss. (Tr. p. 116). Because the claimant is not restricted from driving, Hammar’s testimony supports the ALJ’s finding that the claimant is capable of earning wages.
We also note the claimant made no job search between April 1998 and March 2000 even though she was released to modified work. (Tr. p. 55). In April 2000 she applied for three jobs. She was disqualified for one social service job because she did not speak Spanish. Another job was no longer available and at the time of the hearing no decision had been announced about her application for the third job. (Tr. pp. 28). Under these circumstances, evidence the claimant has received no job offers did not preclude the ALJ from finding that it is more probable than not that the claimant is capable of earning wages.
Next, the claimant challenges Finding of Fact 21 where the ALJ found that the:
“non-exertional factors identified in a functional capacity evaluation by Pat Riley, P.T., are not based upon restrictions imposed by any authorized treating physician.”
The claimant contends Dr. Richards’s clinic note dated August 12, 1998, refers to non- exertional limitations which exceed the limitations listed by Pat Riley (Riley). Therefore, the claimant contends Finding 21 is contrary to the record. Again we disagree.
In the Functional Capacity Evaluation dated January 19, 2000, Riley opined that in addition to the claimant’s exertional limitations, she is also subject to non-exertional limitations due to “pain” and “psychosocial restrictions.” Dr. Richards’s August 12 clinic contains some evidence which might support a finding that the claimant was subject to non- exertional limitations. However, permanent total disability is measured by the claimant’s residual abilities after MMI. Accordingly, we read Finding 21 to reflect the ALJ’s determination that the non-exertional limitations listed by Riley are not consistent with any permanent
restrictions imposed by an authorized treating physician. Because, Dr. Richards’s clinic note predated the determination of MMI, it is not inconsistent with the ALJ’s finding concerning Riley’s January 2000 report.
We also reject the claimant’s contention that Dr. Richards’s 1998 opinion that the claimant is unable to “perform any worthwhile work activities” compels an award of permanent total disability benefits. Contrary to the claimant’s contention the ALJ was not required to credit Dr. Richards’s opinions concerning the claimant’s ability to earn wages. In fact, the treating physician’s opinions are only afforded special weight on the issues of MMI and medical impairment. Cf. Faulkner v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1136, May 11, 2000).
II.
The claimant’s remaining arguments essentially challenge the weight the ALJ afforded the opinions of Dr. Orent and Dr. Dahlberg to find that the respondents overcame Dr. Bralliar’s medical impairment rating. The claimant does not contest the ALJ’s finding that Dr. Bralliar erroneously assigned a rating for cervical, thoracic and mental impairment. However, the claimant contends that Dr. Bralliar’s rating for impairment of the right shoulder and ulnar nerve is supported by substantial evidence including the opinions of Dr. Burnbaum. The claimant also contends the ALJ erred in crediting the opinions of Dr. Orent and Dr. Dahlberg because they performed only a brief physical examination which was not as thorough as the DIME by Dr. Bralliar. Further, the claimant contends the ALJ “ignored” the bulk of the opinions of Dr. Richards, Dr. Eckland, and Dr. Sammons because he failed to make any specific findings of fact concerning this evidence. We are not persuaded.
A DIME physician’s medical impairment rating may only be overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S. 2000; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). “Clear and convincing evidence” is evidence which is unmistakable and is free from serious or substantial doubt. Metro Moving Storage Co. v. Gussert, supra. Whether the DIME physician’s rating has been overcome by clear and convincing evidence is a question of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, supra. Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8).
Substantial evidence is not determined by the number of expert witnesses presented by each party. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961). Furthermore, the ALJ was free to credit one medical opinion to the exclusion of a contrary medical opinion. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992). We may not interfere with the ALJ’s credibility determinations unless the testimony he credited is rebutted by such hard, certain evidence that it would be error as a matter of law to believe the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Furthermore, the assessment of the credibility and sufficiency of the expert witnesses are matters within the sole discretion of the ALJ as the fact finder and we have no authority to substitute our judgment for that of the ALJ. See City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997).
In the absence of specific evidence to the contrary, the ALJ is presumed to have considered all relevant evidence. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985).
However, the ALJ is not required to make specific findings of fact concerning every piece of evidence, but only the evidence he found determinative of the issues. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). In fact, opinions not specifically credited are implicitly rejected.
The record does not support the claimant’s bold allegation the ALJ ignored the disputed medical evidence. Rather, it is apparent, the ALJ was not persuaded by the medical records, which supported Dr. Bralliar’s medical impairment rating. See Dow Chemical Co. v. Industrial Claim Appeals Office, supra.
Further, the medical evidence is subject to highly conflicting inferences about the nature, cause and severity of the claimant’s various physical and mental complaints. Within his sole prerogative, the ALJ resolved the conflicts in favor of the respondents. In so doing the ALJ was free to consider whether Dr. Orent and Dr. Dahlberg’s examinations were sufficiently thorough to support their opinions. However, the ALJ was not precluded from crediting their testimony solely because these doctors did not address every one of the claimant’s physical complaints.
Moreover, Dr. Orent’s opinions are buttressed by substantial evidence in the April 11, 1999, Delta Count Memorial Hospital Emergency Room report and Dr. Kumar’s June 9, 1999 letter. Under these circumstances, we have no authority to interfere with the ALJ’s credibility determinations. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
The claimant’s remaining arguments have been considered and do not alter our conclusions. Even though she used an inclinometer, Dr. Bralliar found no rateable range of motion deficits in the right elbow. Under these circumstances, the ALJ could reasonably infer that Dr. Orent’s opinion was not fatally impeached by evidence he “eyeballed” the claimant’s range of motion as totally normal.
Moreover, regardless of whether Dr. Hehmann’s opinions were alone sufficient to overcome Dr. Bralliar’s rating, we perceive no basis to interfere with the ALJ’s determination that the testimony of Dr. Orent together with the medical records of Dr. Hehmann and Dr. Dahlberg rose to the level of “clear and convincing evidence” to overcome Dr. Bralliar’s rating.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 11, 2000 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 October 23, 2000 to the following parties:
Cindy A. Turner, P. O. Box 153, Hotchkiss, CO 81419
Delta County Joint School District #50, 765 2075 Road, Delta, CO 81416-8367
Lauren Jordan, Great States Insurance Company, 6455 S. Yosemite St., #960, Englewood, CO 80111
Susan Warren, I.M.E. Unit, Division of Workers’ Compensation — Interagency Mail
Luke A. Brennan, Esq., P. O. Box 579, 123 N. 7th St., #130, Grand Junction, CO 81502 (For Claimant)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy