W.C. No. 4-505-136Industrial Claim Appeals Office.
May 9, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) insofar as the ALJ determined the claimant is permanently and totally disabled. We affirm.
In November 2000, the claimant, a right-hand dominant, 56 year-old male, suffered a compensable injury to his right upper extremity from repetitive activities required in his job as an electronics tester. The claimant testified that as a result of the industrial injury he has weakness in his right upper extremity and pain with grabbing activities. (Tr. p. 14). He also stated that, consequently he uses his left hand for many activities and just uses the right hand for support. (Tr. p. 26). The claimant added that he experiences pain in his joints, toes, elbows and feet due to gout. (Tr. p. 18).
Because of the industrial injury, the claimant left the employment in May 2001. The claimant testified that he subsequently applied for 25 jobs and received no job offers. (Tr. p. 25).
Dr. Healy assigned a 15 percent upper extremity impairment rating which converts to 9 percent whole person impairment. Dr. Healy also assigned permanent lifting restrictions which preclude the claimant from lifting more than 10 pounds, pushing or pulling more than 20 pounds and repetitive gripping and grasping more than 20 minutes per hour.
Dr. Shaw performed a Division-sponsored independent medical evaluation (DIME). Dr. Shaw diagnosed ulnar neuropathy at the wrist and elbow with substantial motor and sensory deficiencies, chronic tophaceous gout and chronic adjustment disorder. (Shaw depo. pp. 7, 9). Dr. Shaw opined that as a result of the industrial injury the claimant is limited from pinching with the thumb, has significant reduction of sensation along the little finger side of the hand, and impaired ability to grip, touch, and engage in power gripping and grasping. (Shaw depo. pp. 19, 24). Consequently, Dr. Shaw opined the claimant’s right hand is substantially useless for anything other than the lightest grip and non-dexterous movement. (Shaw depo. p. 18). Further, Dr. Shaw opined the claimant is at risk to lose all use of the right hand. (Shaw depo. p. 26). Dr. Shaw assigned 30 percent impairment to the right upper extremity and 3 percent psychological impairment, which converts to a total of 20 percent whole person impairment.
The respondents’ vocational expert, Lawrence Montoya (Montoya), opined the claimant remains capable of earning wages in several occupations. Montoya also provided descriptions of several “light duty” occupations to Dr. Healy who opined the claimant is physically capable of performing the described occupations.
Vocational rehabilitation expert, Mark Litvin (Litvin), conducted academic and dexterity testing during his vocational evaluation of the claimant. Based upon low test scores and the claimant’s permanent medical restrictions, Litvin opined the claimant is restricted to unskilled sedentary work that does not require good use of the hands, a good command of the English language or basic math skills. Further, Litvin stated he was unaware of any jobs that met these requirements and added that the claimant’s age and limited English skills are major obstacles to the claimant’s ability to secure employment. (Tr. p. 55; Claimant’s Hearing Exhibits 3).
Litvin also opined that the job descriptions provided by Montoya to Dr. Healy did not accurately reflect the requirements of the occupations. (Tr. pp. 34-51). Moreover, Litvin stated that those “light duty” occupations contemplate the ability to lift up to 20 pounds. Therefore, Litvin opined the jobs identified by Montoya are inappropriate because they exceed the claimant’s 10 pound lifting restriction.
The ALJ found that as a result of the industrial injury the claimant is physically unable to return to his former employment. The ALJ also found the claimant speaks very little English and the residual effects of the industrial injury limit the claimant’s ability to perform many activities of daily living. Crediting the testimony of Litvin, the ALJ found the occupations identified by Montoya are inappropriate because they involve lifting 20 pounds. Consequently, the ALJ determined Montoya’s opinions were unpersuasive because they were based on “improper job descriptions.” Further, the ALJ determined that surveillance video of the claimant’s activities did not show the claimant is employable. Rather, the ALJ determined that the activities depicted in the video are within the claimant’s medical restrictions. Therefore, the ALJ determined the claimant sustained his burden to prove he is permanently and totally disabled and ordered the respondents’ to pay benefits for permanent and total disability.
On review the respondents contend the ALJ’s findings of fact are not supported by the record and, thus, do not support the award of benefits. We disagree.
Under the applicable law, a claimant is permanently and totally disabled if he is “unable to earn any wages in the same or other employment.” 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 is capable of earning wages in the same or other employment 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).
Because the issue is factual in nature, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review is narrow and requires us to view the evidence in a light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). Further, we must defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995)
In Finding of Fact 11 the ALJ found that surveillance video of the claimant established the claimant can “assist his 20-pound granddaughter in and out of his van.” The respondents contend the video shows the claimant’s ability to lift his granddaughter into the van. Accordingly, the respondents contend the evidence compels the conclusion the claimant is capable of employment that requires lifting 20 pounds. Moreover, the respondents argue that because the claimant demonstrated the ability to lift 20 pounds, the ALJ erred in finding the jobs identified by Montoya exceed the claimant’s physical limitations.
We have viewed the surveillance video. Although the video depicts some use of the claimant’s right hand it is subject to highly conflicting inferences concerning the exact nature of the claimant’s right hand function.
The claimant testified he was using his left hand to hold onto his grandchild and only used his right hand to support her while she got in his van. (Tr. p. 17). Litvin perceived the claimant as “assisting” his granddaughter in getting in the van. (Tr. p. 54). Whereas, Dr. Shaw testified that it was essentially impossible to determine what level of function was being performed by the claimant with each hand. (Shaw depo. p. 20).
Indeed, Dr. Shaw stated that he was “unimpressed” by the claimant’s activities on the video surveillance and was unable to discern what level of activity the claimant was performing with his left hand and what activity he was performing with his right hand at the time of the video. (Shaw depo pp. 20, 23). In any case, Dr. Shaw opined that the activities depicted in the video do not undermine his conclusion the claimant’s right hand is useless for anything “other than the lightest grip and nondexterous movement” and most activities require critical force and dexterity which the claimant is unable to do. (Shaw depo. pp. 18-19). It follows, the ALJ’s finding that the claimant was “assisting” his granddaughter into the van is a plausible inferences drawn from the evidence. Consequently, the finding must be upheld on review. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Accordingly, we reject the respondents’ contention the ALJ was compelled to find the claimant is capable of “lifting” 20 pounds.
Moreover, the “Physical Demands Reports” Montoya sent to Dr. Healy indicate that all of the occupations approved by Dr. Healy require “strength” sufficient to perform “light work.” The Reports explicitly state that “light work” is defined as the ability to occasionally exert up to 20 pounds by force. (Respondents’ Exhibit Packet A).
Because the ALJ was not persuaded the surveillance video demonstrated the claimant’s ability to lift 20 pounds occasionally, the ALJ reasonably inferred that the physical demands of the occupations identified by Montoya exceeded the claimant’s physical limitations and, thus, were inappropriate. Consequently, we cannot say the ALJ erred in failing to credit Montoya’s opinions to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The respondents also contend that in finding the claimant sustained his burden to prove permanent and total disability the ALJ erroneously relied on Litvin’s opinions regarding the vocational effects of gout. The respondents’ argument is based on evidence the gout predated the industrial disability. Again, we perceive no error.
In Finding of Fact 14 the ALJ found that, according to Litvin, the claimant:
“has had gout since 1981 and it affects his feet, knees, ankles and hands. He had a sixty percent kidney failure, which resulted from using gout medication. While his gout symptoms sometimes interfered with his ability to be a technician because of his problems with standing, stooping, bending and crawling, the assembly work was done at a table while sitting.”
We do not dispute the respondents’ contention that Litvin admitted restrictions on the claimant’s ability to stand, sit and walk were imposed for the gout and not the industrial injury. (Tr. pp. 58-59). Nevertheless, the ALJ was free to rely on Litvin’s opinions concerning the vocational effects of the claimant’s gout as some evidence of the claimant’s general physical condition, one of the “human factors” relevant to the claimant’s ability to secure and maintain employment.
Finally, we reject the respondents’ contention the ALJ misapplied the law by failing to require the claimant to prove that his industrial disability is a significant cause of his permanent and total disability. As argued by the respondents, an award of permanent total disability benefits is dependent on proof the industrial injury is a significant causative factor in the claimant’s permanent disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). In this regard, the industrial injury does not have to be the sole cause of the claimant’s disability. Rather, the industrial disability must bear a direct relationship to the claimant’s permanent and total disability Seifried v. Industrial Commission, supra.
The ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Here, the ALJ found the claimant’s congenital non-industrial bilateral hearing loss and preexisting gout are “human factors” to be considered in determining whether the claimant is permanently and totally disabled. The ALJ also found the gout did not preclude the claimant from working prior to the industrial injury. Based on these findings we understand the ALJ as having found that the industrial injury is a significant causative factor in the claimant’s permanent total disability because, unlike the claimant’s preexisting conditions, the industrial injury was disabling. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 1, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2002. 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 May 9, 2003 to the following parties:
Ying Her, 8192 Umatilla, Denver, CO 80221
Phil Rayburn, Lockheed Martin Corp., P. O. Box 179, Mail Stop DC 1398, Denver, CO 80201
Bankers Standard Insurance Company, c/o Anita Fresquez-Montoya, ESIS, 8200 S. Quebec, A-3, #278, Englewood, CO 80112
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado