W.C. No. 4-276-592Industrial Claim Appeals Office.
April 26, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded benefits for permanent and total disability retroactive to November 6, 1996, the date of maximum medical improvement (MMI). We affirm.
The pertinent facts are undisputed. In 1995 the claimant suffered a compensable back injury. In February 1996 the claimant underwent lumbar surgery by Dr. Reilly. On November 6, 1996, Dr. Gray placed the claimant at MMI with 24 percent whole person impairment. Dr. Gray also released the claimant to return to modified work which did not require lifting more than 25 pounds at any time, lifting more than 5 pounds constantly, or frequent bending and stooping. The respondents admitted liability for permanent partial disability benefits consistent with Dr. Gray’s medical impairment rating.
On July 1, 1998, Dr. Reilly opined the claimant’s condition was unchanged from February 1996, and the claimant was permanently and totally disabled. Dr. Reilly added that vocational retraining was not likely to improve the claimant’s employability due to the claimant’s’ advanced age.
On February 1, 1999, the claimant accepted part-time, modified, clerical work with the employer. He continued the modified employment until April 26, 1999, when he returned to Dr. Reilly with complaints of sciatic pain. Dr. Reilly again opined the claimant was permanently and totally disabled and recommended he discontinue working. The claimant has not held any employment since April 1999.
On December 2, 1999, the respondents filed a Final Admission of Liability which admitted liability for permanent total disability benefits commencing November 4, 1999. The claimant objected and requested permanent total disability benefits retroactive to November 6, 1996, the date of MMI.
The ALJ found the part-time clerical work was a “trial period of sedentary work” which was “unsuccessful.” (Discussion and Conclusions of Law 2). Further, the ALJ found that Dr. Reilly and vocational rehabilitation expert, Rodney Wilson (Wilson), shared the opinion the claimant was permanently and totally disabled prior to the February 1, 1999, and that the failure of the claimant’s attempted return to modified employment confirmed their opinions. Under these circumstances, the ALJ determined that the three month period of part-time, modified employment did not preclude a finding the claimant met the definition of a permanently and totally disabled worker as of the date of MMI. Therefore, the ALJ ordered the respondents to pay permanent total disability benefits commencing November 6, 1996.
On review the respondents contend the ALJ’s findings are insufficient to permit appellate review because the ALJ made no specific findings concerning whether the claimant was capable of earning wages after November 6, 1996. The respondents also contend there is not substantial evidence in the record to support a finding that the claimant was unable to earn wages after November 6, 1996. Further, the respondents contend the ALJ’s findings do not support the award. 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 has sustained his 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). The test for determining the “availability of work” is whether employment exists “that is reasonably available to the claimant under his or her particular circumstances.”Id. at 558. However, the determination of whether the claimant is capable of earning wages includes consideration of the claimant’s ability to sustain employment. Thus, evidence the 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,
___ P.3d ___ (Colo.App. No. 00CA0718, February 1, 2001); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Here, the respondents voluntarily admitted liability for permanent total disability benefits. Therefore, it was undisputed the claimant is now unable to earn any wages, and the issue became at what point in time the claimant first became unable to earn any wages.
The question of when the claimant was first unable to earn “any wages” within the meaning of § 8-4-201(16.5)(a) is factual in nature. Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., supra. Application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Christie v. Coors Transportation Co., supra. Furthermore, the determination of the weight to be accorded expert testimony is a matter within the ALJ’s province as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
The respondents’ arguments notwithstanding, the ALJ expressly recognized the applicable legal standard. (Discussion and Conclusions of Law 1). The ALJ also determined the claimant sustained his burden to prove he was permanently and totally disabled as of the date of MMI. (Discussion and Conclusions of Law 4). It follows, the ALJ necessarily determined the claimant was unable to earn any wages as of November 6, 1996. 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). Consequently, we reject the respondents’ contention the ALJ’s findings are insufficient to permit appellate review. See George v. Industrial Commission, 720 P.2d 624
(Colo.App. 1986) (ALJ is not held to a crystalline standard in articulating the basis for his order).
Furthermore, there is substantial evidence from which the ALJ could reasonably infer the claimant was permanently and totally disabled as of November 6, 1996. A Functional Capacity Evaluation (FCE) dated August 24, 1998, placed the claimant in the sedentary level of work functioning. Similarly, in his report dated September 16, 1998, vocational rehabilitation expert Wilson described the claimant as an unskilled worker limited to sedentary employment. Wilson opined that, given the claimant’s level of physical functioning, advanced age, and academic history, the claimant is “unable to perform essential functions of occupations that would provide an opportunity to earn a wage.”
The claimant testified that his condition had not changed since November 1996. (Tr. pp. 9, 10). Similarly, on February 25, 1998, and July 1, 1998, Dr. Reilly reported the claimant’s condition and symptoms remained “unchanged.” However, Dr. Reilly noted that an MRI scan in May 1998 showed postoperative changes in the lower lumbar spine. Under these circumstances, Dr. Reilly rendered the opinion the claimant was permanently and totally disabled.
When Dr. Reilly reexamined the claimant in April 1999, he opined that the modified, part-time employment offered by the employer exacerbated the claimant’s sciatic pain. Consequently, Dr. Reilly reiterated his opinion that the claimant was permanently and totally disabled and added that it would be “futile to force [the claimant] back to work in any capacity.”
Admittedly, the claimant stated that he was capable of performing the part-time clerical work offered by the employer. (Tr. p. 10). However, the claimant complained to Dr. Reilly that the prolonged standing and bending required of the job exacerbated his back pain. (Reilly April 29, 1999). As a result, the claimant told Dr. Reilly it takes him a day of rest to recover from the effects of the part-time work. Thus, the record contains evidence the claimant is not physically capable of sustaining even part-time, sedentary work within his medical restrictions. The ALJ’s determination is buttressed by evidence the claimant was unemployed from November 1996 to February 1999, and has not been offered employment since April 1999.
Moreover, the court has held that evidence the claimant earned wages after the injury does not preclude an award of permanent total disability benefits. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, supra. In Joslins, the claimant held a job for more than two years after the industrial injury and, in fact, continued to be so employed at the time of the hearing on permanent total disability. Nevertheless, th Joslins court concluded that under circumstances where the evidence indicates the claimant is not physically able to sustain post-injury employment, evidence the claimant earned wages after the injury does not compel a finding the claimant is capable of “earning any wages” within the meaning of § 8-40-201(16.5). See also, Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999) (permanent total disability benefits awarded even though claimant held sheltered employment, since vocational expert opined that claimant probably could not secure a similar position if she lost that job). In so doing, the court stated that to hold otherwise would be contrary to the public policy of encouraging injured workers to return to the work force.
The respondents remaining arguments have been considered and are not persuasive. As we read the ALJ’s order, she found the claimant’s sciatic pain symptoms were exacerbated by the part-time employment in 1999, but that the claimant’s permanent condition from the industrial injury remained stable since November 1996. Therefore, we reject the respondents’ contention the ALJ’s findings compel the conclusion the claimant’s permanent total disability was the result of a worsened condition in 1999.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 6, 2000, 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. 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 April 26, 2001 to the following parties:
Luis Zamora, 117 County Road 117, Florence, CO 81226
K. R. Swerdfeger Construction, Inc., P. O. Box 440638, Aurora, CO 80044-0638
Northern Insurance Company of New York, 1400 American Ln., Schaunburg, IL 60196-1056
Valerie Doyle, Claim Specialist, Zurich Commercial Insurance Group, P. O. Box 37308, Denver, CO 80237
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy