W.C. No. 4-385-093.Industrial Claim Appeals Office.
September 19, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied a petition to reopen and request for permanent total disability. The claimant argues that the ALJ erred in finding the claimant had not demonstrated a worsening in his condition and that the ALJ erred in his conclusion that the claimant is not permanently totally disabled. We affirm.
The claimant injured his right knee on October 13, 1997 while in the course and scope of his employment with employer and on June 26, 1998 re-injured the same knee again in the course and scope of his employment with employer. The claimant underwent various surgical procedures.
The claimant’s primary authorized treating physician Joseph Quintana, M.D., on March 29, 2001 determined that claimant was at maximum medical improvement and assigned a sixteen percent (16%) whole person impairment for claimant’s right knee. Dr. Quintana’s impairment rating was challenged and a Division Independent Medical Examination (“DIME”) was done by John T. Sacha, M.D., who issued a report on August 3, 2001. Dr. Sacha concluded that the claimant had properly been placed at maximum medical improvement on March 29, 2001 and that the impairment of his right knee was equal to sixteen percent (16%) whole person impairment.
The respondents filed a Final Admission of Liability based on Dr. Sacha’s conclusions, and admitted for medical maintenance benefits on September 10, 2001. A hearing was held on March 28, 2002, before Administrative Law Judge Muramoto where the claimant sought to overcome by clear and convincing evidence Dr. Sacha’s findings. In an order dated May 20, 2002, ALJ Muramoto affirmed the conclusions of Dr. Sacha, ruling that the claimant’s back condition was not related to the industrial injury and ordering the respondents to pay permanent partial disability benefits based on a forty percent lower extremity impairment rating.
At hearings held before the ALJ on November 10, 2004 and January 27, 2005 the claimant sought to prove that his claim should be reopened pursuant to section 8-43-303, C.R.S.(2004) and that he was permanently and totally disabled. Post hearing depositions of vocational rehabilitation experts were allowed, and Martin Rauer’s was taken on January 28, 2005, and Mark Litvin’s on February 10, 2005. The claimant argued in his position statement that he sustained a significant worsening in his condition that has changed his vocational capacity.
The ALJ found that the claimant had been examined by Dr. Quintana only five times since the date of the DIME and only for management of claimant’s prescriptive care, and a prescription for a new knee brace. The ALJ noted that Dr. Quintana categorized the claimant’s complaints of increasing pain under the “Subjective” portion of his report. The ALJ also observed that Dr. Ciccone found no significant degenerative changes in the right knee and that the claimant was not a candidate for a total knee replacement because his pain complaints were unreliable.
The ALJ also found that the August 6, 2001 range of motion tests conducted by Dr. Sacha and by Dr. Ciccone on June 1, 2004 showed that the range of motion in claimant’s right knee had not significantly worsened. The physical restrictions assigned to claimant by Dr. Quintana were found by the ALJ not to have changed and in some cases to have improved between the time of maximum medical improvement on March 29, 2001 and September 23, 2004.
The ALJ found the opinions of respondents’ vocational expert Martin Rauer that the claimant was not permanently and totally disabled to be credible and persuasive. In contrast the ALJ found the opinions of claimant’s vocational expert Mark Litvin not credible or persuasive.
I.
On review the claimant argues that the ALJ abused his discretion and ignored significant evidence in the record showing the claimant suffered a worsening in his condition, which the claimant attributes to the development of osteoarthritis. The claimant contends that, in concluding that his condition had not worsened, the ALJ erred in relying primarily on the evidence of the range of motion tests. He further argues that even if his worsened condition is not evidenced by the loss of range of motion, it is established by the significantly increased pain levels with motion. We are unpersuaded that the ALJ erred.
Section 8-43-303(1), C.R.S. 2004, permits a claim to be reopened based on a worsened condition. In order to reopen, the claimant bears the burden of proof to establish the worsening of a physical or mental condition which is causally-related to the original industrial injury Osborne v. Industrial Commission, 725 P.2d 1033 (Colo.App. 1986). We agree with claimant that proof of worsening is not restricted to medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, the ALJ is not bound to accept the claimant’s testimony. The ALJ’s findings that claimant’s subjective complaints of a worsened condition were not persuasive and did not outweigh the objective medical evidence, are supported by substantial evidence in the record. Contrary to the assertions of the claimant the ALJ is at liberty to draw inferences from the fact that no physician has opined that claimant is no longer at maximum medical improvement.
The ALJ is granted wide discretion in determining whether the claimant met his burden of proof, and we must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082
(Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000).
The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that the ALJ erred as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). In view of the direct conflict between the vocational experts and the various medical opinions, we cannot say those extreme circumstances exist here.
We have no authority to reweigh the evidence on review. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Accordingly, we reject the claimant’s arguments insofar as he requests we substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the medical, vocational and other evidence. The ALJ could reasonably infer from this evidence that claimant’s condition has not worsened since he was placed at maximum medical improvement and that claimant is not permanently and totally disabled. While there is some evidence in the record which might support a contrary conclusion, the ALJ both explicitly and implicitly rejected that evidence. Because the ALJ’s findings are supported by substantial evidence, and because they support the legal conclusion, the order must be affirmed.
II.
The claimant also argues that the ALJ erred in finding that the claimant is not permanently and totally disabled, alleging that the ALJ’s findings are not supported by substantial evidence. Initially, we note that, although the issue of permanent total disability benefits was tried and the ALJ entered findings on that issue, he did not enter an order granting or denying an award for those benefits. Rather, the ALJ correctly noted that because the Petition to Reopen had been denied it was unnecessary for him to address the remaining issues. See Findings of Fact, Conclusions of Law, and Order at 6, ¶ 5. Hence he did not finally adjudicate the issue of permanent total disability benefits, and there is no order on that issue properly appealed.
However, as noted, the ALJ did enter factual findings and conclusions of law rejecting the claimant’s contention that he was permanently and totally disabled. Even if the ALJ’s order could be construed as implicitly resolving that issue and denying permanent total disability benefits, we would nonetheless affirm.
Section 8-40-201(16.5)(a), C.R.S. 2004, defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained his 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). 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.” Weld County School District RE-12 v. Bymer, supra.
Because the issue of permanent total disability is largley factual, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). Here, the ALJ’s factual determinations are amply supported by substantial evidence in the vocational and medical expert testimony he found persuasive, and the findings support the conclusion that the claimant is not permanently totally disabled. Therefore, even if the order can be construed as resolving that issue, the claimant has failed to establish grounds on which to disturb the ALJ’s findings and conclusions concerning permanent total disability benefits.
Similarly, it is unnecessary for us to address the claimant’s argument that the ALJ erred in admitting evidence of a labor market survey performed by the respondents’ vocational rehabilitation expert. That alleged error was relevant only to the ALJ’s consideration of the claimant’s employability and, hence, the question of permanent total disability. Since the ALJ did not adjudicate that issue, no evidentiary error could affect the substantial rights of any party. See CRE 103(a) (error may not be predicated on evidentiary ruling unless a substantial right of the party is affected).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 16, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Paul Vigil, CO, Irrigation Supply, Inc., Monte Vista, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Michael S. Porter, Esq., Wheat Ridge, CO, (For Claimant).
Margaret Garcia, Esq., Denver, CO, (For Respondents).