W.C. No. 4-167-375Industrial Claim Appeals Office.
December 10, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) insofar as it denied benefits for permanent and total disability. We set aside the disputed portion of the order and remand.
In 1993, the claimant suffered a compensable back injury while working as a dental assistant. Dr. Woods diagnosed left L5 radiculopathy secondary to degenerative disc disease. In October 1993, Dr. Woods performed a laminectomy, diskectomy and fusion at the L4-5 level. The 1993 fusion was considered failed and on February 21, 1996, Dr. Gebhard performed a repeat fusion.
Although the claimant continued to experience pain symptoms in her back and left leg Dr. Gebhard placed the claimant at maximum medical improvement in April 1999 and referred the claimant to Dr. Shenoi for pain management. Dr. Gebhard also recommended continued psychological treatment from Dr. Alexander.
The claimant testified that as a result of the industrial injury she must lie down frequently, and only has about two days a week when her symptoms are sufficiently controlled to allow her to work. However, Dr. Shenoi opined that it would be psychologically beneficial for the claimant to return to work.
The claimant’s vocational rehabilitation expert, Helen Woodward (Woodward) opined the claimant is unlikely to maintain employment because the claimant’s condition causes unpredictable and unscheduled absences from work. The respondents’ vocational rehabilitation expert, Sara Nowotny (Nowotny) opined that the claimant retains access to part-time or temporary employment in a number of occupational approved by Dr. Shenoi.
The ALJ found the opinions of Nowotny more persuasive than the opinions of Woodward. Further, the ALJ credited the opinions of Dr. Shenoi concerning the claimant’s physical capacity to return to work over the contrary opinions of Dr. Alexander and the claimant’s subjective assessment of her limitations. Consequently, the ALJ determined the claimant failed to sustain her burden to prove she is permanently and totally disabled.
On review the claimant contends, inter alia, the record does not support some of the ALJ’s findings of fact. We conclude the ALJ’s findings of fact are insufficient to permit appellate review and, therefore, we remand for additional findings.
Under the applicable law, permanent total disability is defined as the inability to earn “any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. 2001; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant has sustained her burden to prove permanent and total disability is a factual determination to be made by the ALJ based upon consideration of 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 perfor . Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
Here, the ALJ explicitly credited Dr. Shenoi’s opinion concerning the claimant’s ability to return to work. However, Dr. Shenoi’s opinion that it would be psychologically beneficial for the claimant to return to work is not determinative of the crucial issue.
The determination of whether the claimant is capable of earning wages includes consideration of the claimant’s ability to sustain employment. Thus, evidence a claimant has made efforts to return to work does not preclude a finding of permanent total disability where the evidence indicates the claimant is unable to sustain those activities for a sufficient period of time to maintain employment and earn wages Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866
(Colo.App. 2001); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194
(Colo.App. 1995).
Dr. Shenoi opined the claimant is capable of functioning the “light to medium category” of work which does not require lifting more than 25 pounds on an occasional basis. On September 13, 2000, Dr. Shenoi also wrote,
“Nancy will need to change positions frequently and take 5 minute stretch breaks every hour. She may have flareups for her neck back and may need some time off for exacerbations.”
Vocational expert Nowotny testified that she relied on Dr. Shenoi’s opinions to conclude the claimant remains capable of earning wages. In so doing, Nowotny was aware of Dr. Shenoi’s opinion that the claimant may need time off work for exacerbations. Nevertheless, Nowotny did not ask potential employers about their tolerance for unscheduled absences from work. (Tr. pp. 200-202). Furthermore, Nowotny admitted employers normally allow only 6-10 unscheduled absences and that based upon the claimant’s testimony the claimant would experience unscheduled absences which would exceed that range. (Tr. pp. 202, 207, 208).
The ALJ’s decision to credit Dr. Shenoi’s opinion there would be a psychological benefit to the claimant’s return to work does not resolve whether, in fact, the potential psychological benefit of working would reduce the claimant’s need to take off of employment due to exacerbations of the injury or whether the claimant could sustain employment long enough to achieve a psychological benefit from the return to work. Consequently, the ALJ’s findings of fact are insufficient to permit appellate review of whether the ALJ properly denied the claim for permanent total disability benefits and the matter must be remanded to the ALJ for additional findings on this issue.
For the purposes of judicial economy we shall also address the claimant’s contention the record fails to support the ALJ’s determinations that Dr. Wong’s opinions “undermine the claimant’s testimony concerning her physical capabilities and pain” and “supports Dr. Shenoi’s opinion that the claimant may return to work within restrictions.” (Finding of Fact 27). The claimant testified to symptoms of chronic pain and psychological difficulties from the industrial injury. Dr. Wong’s report dated February 20, 2001 indicates the claimant reported essentially constant pain which limited her daily activities to a significant degree. Further Dr. Wong recommended the claimant continue in a “comprehensive rehab/chronic pain” setting. However, Dr. Wong did not render an opinion concerning the accuracy of the claimant’s reported symptoms whether objective or nonorganic, the claimant’s work restrictions or her employability. Thus, we are unable to ascertain the basis for Finding of Fact 27.
In addition the record contains substantial medical evidence the 1996 surgery produced a solid fusion at L4-5. Nevertheless, the claimant continued to experience symptoms in her low back and left leg. Consequently, we are unable to ascertain the evidentiary basis for the ALJ’s determination that the surgery performed on February 21, 1996 “cured and relieved claimant’s lumbar symptoms from her February 25, 1993, industrial injury.” (Finding of Fact 28). On remand the ALJ shall enter additional findings of fact which articulate the evidentiary basis for Findings of Fact 27 and 28.
In view of our remand it is premature to consider the claimant’s remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 31, 2001, is set aside insofar as it denied permanent total disability benefits and the matter is remanded to the ALJ for the entry of a new order on the issue which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Copies of this decision were mailed December 10, 2001 to the following parties:
Nancy Virgil Unrein, 730 Henry Rd., Route 2, Box 177, Marrill, N.E. 69358
G. W. Coleman, D.D.S., 2632 11th Ave., Greeley, CO 80631-8441
The Dentists Workers’ Compensation Trust, 222 S. 9th St., #1300, Minneapolis, MN 55402
John Taussig, III, Esq., 1919 14th St., #803, Boulder, CO 80302 (For Claimant)
Fred Ritsema, Esq. and Sarah K. Downey, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy