W.C. No. 4-404-589.Industrial Claim Appeals Office.
June 1, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated November 2, 2006 that denied the claimant’s claim for permanent total disability benefits. We affirm.
A hearing was held on the issues of whether the claimant was permanently and totally disabled and, if so, whether his benefits should be apportioned. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury to his low back on November 24, 1998, when he slipped and fell onto some rocks. He underwent medical treatment that included surgeries on his back in June 2000 and again in November 2001. He developed carpal tunnel syndrome following the first surgery and in January and February 2003 he underwent surgical releases on his wrists. The respondents referred the claimant to a psychologist, David Hopkins, for an evaluation. He reported that the claimant was not suffering any significant emotional or psychological distress as a result of the injury. The claimant reached maximum medical improvement on April 23, 2003, with 34 percent whole person impairment. A functional capacity evaluation was performed, which resulted in physical restrictions placing the claimant in the medium work category. He returned to his authorized treating physician, Dr. Caughfield, on May 20, 2003, and the latter stated that he was probably not capable of assembly line work or manual labor. He returned to Dr. Caughfield again on August 20, 2003, in an extremely emotional and tearful state. Dr. Caughfield stated that the claimant was suffering from an anxiety response and depression as
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a result of having been placed at maximum medical improvement. He stated that the claimant was no longer at maximum medical improvement and he referred him for a psychological evaluation. The claimant began receiving treatment from a psychiatrist, Dr. Bonney, who diagnosed panic disorder, major depression, dysthymic disorder, anxiety disorder, and chronic pain syndrome. He received prescription medications and underwent psychotherapy with Dr. Rodriguez. The respondents referred the claimant for an independent psychiatric evaluation, performed by Dr. Entin. Dr. Entin stated that the claimant had developed a number of emotional symptoms since the compensable injury, including depression, panic attacks, anxiety, agoraphobia, avoidance behaviors, facial tics, guttural sounds, and lack of libido. Dr. Entin opined that the symptoms were 50 percent attributable to the compensable injury and 50 percent attributable to preexisting factors. He stated that the claimant had no work restrictions on account of psychological symptoms, and that he had sustained permanent impairment equal to eight percent, half of that attributable to the compensable injury. On July 5, 2005, Dr. Bonney placed the claimant at maximum medical improvement for his psychological condition and Dr. Sparr placed him at maximum medical improvement for his physical condition on July 20, 2005. Dr. Sparr stated that he had 34 percent whole person impairment and four percent psychological impairment.
The ALJ weighed the conflicting expert evidence concerning the claimant’s vocational prospects. The claimant’s expert, Martin Rauer, stated that the claimant faced “insurmountable obstacles” to obtaining employment. However, the ALJ rejected Rauer’s opinions as unpersuasive and, conversely, credited those of the respondents’ expert, Patrick Renfro. Renfro opined that the claimant was capable of earning wages in a number of occupations in the sedentary to light work category. The ALJ also found that the claimant’s psychological problems were largely the result of the claimant’s reaction to legal developments in his claim. The ALJ found, in any event, that the claimant had no work restrictions attributable to his psychological conditions.
Based upon her factual findings the ALJ concluded that the claimant was not permanently and totally disabled. Accordingly, she denied those benefits. The claimant appealed the ALJ’s order.
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.” The burden of proof to establish permanent total disability is on the claimant. In determining whether the claimant has sustained his burden of proof, the ALJ may consider those “human factors” that define the claimant as an individual. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors may include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform.
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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, 955 P.2d at 558.
Because the issue of permanent total disability is factual, we must uphold the ALJ’s findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). 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). The existence of evidence which, if credited, might support a determination to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that a witness’s testimony was inconsistent, the ALJ was free to rely on those portions he found persuasive and to reject other portions. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The ALJ’s assessment of the probative value of the evidence and his credibility determinations are matters solely within his province. We may not set aside a credibility determination unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err 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). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2001). And, of course, the party with the burden of proof “naturally should be expected to bear the risk of failure of proof or persuasion.” Alaska Department of Environmental Conservation v. E.P.A., 540 U.S. 461, 511, 124 S.Ct. 983, 1014 (2004).
The ALJ was not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility. See Wells v. Del Norte School District C-7,
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753 P.2d 770(Colo.App. 1987). Further, the ALJ is not required to credit the testimony of a witness, even if it is uncontradicted and unrebutted Levy v. Everson Plumbing, Co., Inc., 171 Colo. 468, 468 P.2d 24 (1970) Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). We also note that ALJs are presumed to possess special expertise and competence in dealing with medical evidence. Thus, we presume that the ALJs are competent to evaluate evidence in cases of this character. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).
Here, the ALJ’s factual determinations are supported by substantial evidence in the vocational and medical expert testimony he found persuasive, and the findings support the conclusion that the claimant is permanently and totally disabled. The ALJ expressly credited the expert opinions of Renfro, the respondents’ expert in vocational rehabilitation. He testified that the claimant was able “to work generally in a light physical demand level.” Tr. at 139. He explained that he relied upon the physical restrictions of Dr. Sparr, and the report of Dr. Entin that the claimant had no restrictions resulting from any psychological impairment. Tr. at 139-40. Moreover, he explained at some length the reasons for his having been persuaded by the reports of Drs. Sparr and Entin. Tr. at 133-43. Renfro also testified in considerable detail regarding the specific jobs that, in his opinion, were available to the claimant within his commutable labor market. Tr. at 144-49. It was certainly the ALJ’s prerogative to credit Renfro’s opinion and to conclude that the claimant was not permanently and totally disabled. Renfro’s testimony, his reports, and the medical reports of Dr. Sparr and Dr. Entin provide ample evidence to support the ALJ’s order.
Moreover, we reject the claimant’s arguments that the record lacks substantial evidence supporting the ALJ’s findings that the claimant’s psychological impairment is not related to his injury and, in any event, is not disabling. As Renfro testified, the medical reports of Dr. Entin support the finding that the claimant’s prospects for employment were not impaired by his psychological condition. That evidence is sufficient to support the ALJ’s conclusion that the claimant’s psychological impairment did not combine with his physical restrictions to render him permanently and totally disabled. Of course, the existence in the record of evidence that would have supported a contrary inference provides no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Similarly, we reject the claimant’s argument that the ALJ erred in failing to credit the expert opinions of Dr. Bonney rather than those of Dr. Entin. Weighing the evidence and evaluating its probative value is exclusively the province of the ALJ and we may not usurp that function by reweighing the evidence and concluding that Dr. Bonney’s opinions are more persuasive.
We have considered the claimant’s remaining arguments and they do not persuade us
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to reach a different result.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Thomas Wilcox, Florence, CO, Energy Fuels, Florence, CO, Old Republic Insurance Co. c/o GAB Robins North America, Inc. Deanna Cuerden Fischer, Denver, CO Rick P. Sauer, Esq., Canon City, CO (For Claimant).
Treece, Alfrey Musat Bosworth, PC Karen Gail Treece, Esq., Denver, CO (For Respondents).