Opinion
W.C. No. 4-250-023
June 1, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied his claim for permanent total disability benefits. We affirm.
The claimant was employed as a delivery driver for Meadow Gold Dairies Inc. on March 4, 1995, when he reported severe back pain at the end of his work shift. The respondents admitted liability for a work-related back injury and provided medical benefits. Dr. Britton prescribed physical therapy and medication, but the claimant declined medication due to his religious beliefs. The claimant's pain continued despite physical therapy. A CT scan revealed a disc fragment at L4-5.
On August 4, 1995, the claimant was placed at maximum medical improvement and a functional capacity evaluation (FCE) was performed. The FCE limited the claimant to sedentary employment. However, the evaluator considered the FCE invalid due to inconsistent results and symptom magnification.
The claimant was subsequently evaluated by Dr. Ragsdale who diagnosed a somatoform disorder, chronic pain disorder, and a major depressive disorder. Dr. Ragsdale opined that these disorders are related to the industrial injury because the injury pushed the claimant "over the edge" and the claimant was no longer able to cope with the personal stressors in his life.
Psychiatrist, Dr. Gary Gutterman examined the claimant on December 2, 1996. Dr. Gutterman opined that the claimant's psychological condition is not related to his industrial injury and is due to "more long standing attitudes and issues." Thus, Dr. Gutterman opined that the claimant's psychological problems would have occurred regardless of the industrial injury. (Tr. July 18, 1997, p. 135).
Dr. Silva rated the claimant's permanent medical impairment as 9 percent of the whole person based on an unoperated intervertebral disc lesion. A Division sponsored independent medical examination was then completed by Dr. Ryan. In his report dated January 8, 1996, Dr. Ryan opined that the claimant presented a "globally debilitated" patient from a work-related injury of "minimal insult." Dr. Ryan testified that the claimant complained of pain in almost every part of his body, but stated that, the claimant's complaints were inconsistent with the medical records and his physical findings. (Tr. July 18, 1997 p. 27). Dr. Ryan also opined that the claimant's medical restrictions were inconsistent with the physical findings, and were not related to the industrial injury. (Tr. July 18, 1997, pp. 33-34). Therefore, Dr. Ryan disregarded his impairment measurements and adopted the impairment rating of Dr. Silva.
The claimant was also evaluated by Dr. Roth. In a report dated July 16, 1996, Dr. Roth diagnosed the claimant with a "nonspecific lumbar pain syndrome, and chronic pain syndrome unrelated to the industrial injury. Dr. Roth also found no evidence of a work-related psychological injury and noted symptom magnification in which the claimant "verbally and physically escalated his subjective presentation." Moreover, Dr. Roth opined that the CT scan results do not explain the claimant's "global" symptoms, and could be a normal age related condition.
The ALJ found that the claimant's psychological condition is not causally related to the industrial injury. Instead, the ALJ found that the fact the onset of psychological disability occurred after the industrial injury was "coincidental." Consequently, the ALJ concluded that the respondents have no liability for the claimant's psychological condition.
Crediting the opinions of Dr. Roth and vocational rehabilitation expert, Ronald Brennan, the ALJ also found that the claimant is capable of earning wages in "other employment." Therefore, the ALJ determined that the claimant is not permanently and totally disabled within the meaning of § 8-40-201(16.5), C.R.S. 1997.
I.
On review, the claimant contends that he is permanently totally disabled as a result of the industrial back injury, the chronic pain syndrome and his psychological condition. The claimant contends that his psychological condition pre-dated the industrial injury, and therefore, concedes that the industrial injury did not "cause" the psychological condition. However, the claimant contends that the ALJ failed to consider whether the industrial injury intensified or aggravated the psychological condition. Therefore, the claimant contends that the ALJ failed to apply the correct legal standard in finding that he did not suffer a compensable psychological injury. We disagree.
The claimant bears the burden to prove his entitlement to benefits. Qual-Med, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1440, May 28, 1998). To sustain his burden of proof, the claimant was required to prove a causal connection between the industrial injury and his disability. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). Whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ, and the ALJ's determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Furthermore, in articulating his determination, the ALJ was not required to explicitly discuss theories he rejected. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988).
Here, the ALJ was not persuaded that the claimant's psychological condition pre-dated the industrial injury. Rather, the ALJ found that the psychological problem developed "alongside" the industrial injury. Furthermore, the ALJ expressly found that the claimant's psychological condition "is not causally related" to the industrial injury. (Conclusions of Law 1). This finding necessarily reflects the ALJ's determination that he was not persuaded the industrial injury intensified or aggravated the claimant's psychological condition. Because the ALJ's determination is supported substantial albeit, conflicting evidence in the record, it must be upheld. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). Consequently, it is immaterial whether the record contains some medical and lay testimony, which if credited, might support a contrary determination. F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985).
II.
Next, the claimant contends that his chronic pain syndrome is the result of the industrial back injury and argues that the ALJ failed to determine the compensability of the chronic pain syndrome or its affect on his ability to earn "any wages." Again we disagree.
As found by the ALJ, there is substantial evidence in the record that the chronic pain syndrome is the result of the claimant's psychological condition and not his back injury. For example, Dr. Gutterman, opined that the claimant's "longstanding struggle with aggression, dependency, ambition and adaptation to lifestyle" manifested as a chronic pain disorder. Dr. Gutterman also stated that the claimant's emotional conflicts about his employment contributed minimally to his development of chronic pain. (Tr. July 18, 1997, pp. 141, 142). Similarly, Dr. Wechsler, who is a licensed clinical psychologist, opined that the claimant's chronic back pain is a "direct consequence of personality organization and a variety of more unconscious conflicts" and only "indirectly" related to the industrial injury.
Dr. Roth agreed with the diagnosis of "somatoform disorder." (Tr. July 18, 1997, p. 106-107). However, Dr. Roth opined that there was no correlation between the claimant's employment activities on March 4, 1995 and his pain complaints. (Tr. July 18, 1997, pp. 81-84). Further, Dr. Roth testified that medical treatment for the chronic pain is not related to the industrial injury. (Tr. July 18, 1997, pp. 100, 108).
Because the ALJ implicitly credited the medical evidence that the claimant's psychological condition is not related to the industrial injury, and that evidence also indicates that the psychological condition is the cause of the chronic pain syndrome, we read the ALJ's order as inherently rejecting the claimant's argument that his chronic pain syndrome is a result of the back injury. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986) (industrial injury must bear some direct causal relationship to disability for which benefits are sought).
III.
The claimant also contends that the matter must be remanded for the ALJ to resolve his argument that the chronic pain syndrome is the result of work-related stress. We disagree.
The claimant does not dispute that a claim of mental impairment due to work-related stress is governed by the provisions of § 8-41-301(2), C.R.S. 1997. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996); McCallum v. Dana's Housekeeping, 940 P.2d 1022 (Colo.App. 1996). However, the claimant contends that § 8-41-301(2) is not applicable to this claim because the work-related stress resulted in a physical injury diagnosed as chronic pain syndrome.
In a series of decisions we have held that where the claimant alleges a physical injury from work-related stress, the claim is governed by the provisions in § 8-41-301(2). Del Real v. City and County of Denver, W.C. No. 4-293-607 (October 28, 1997); DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217, July 17, 1996, aff'd, DuShane v. Beneficial Colorado, Inc., (Colo.App. No. 96CA1404, December 27, 1996) (not selected for publication); Pate v. Regional Transportation District, W.C. No. 4-222-307 (December 7, 1995). The claimant's arguments do not persuade us to depart from our prior conclusions. Therefore, insofar as the claimant alleges that his chronic pain syndrome is due to work-related stress, the claimant is required to establish the proof required by § 8-41-301(2).
The claimant does not assert that he established the proof required by § 8-41-301(2). Accordingly, we conclude that as a matter of law the claimant did not sustain compensable mental impairment resulting in chronic pain.
Furthermore, the ALJ expressly credited the opinions of Dr. Roth and Ronald Brennan that the chronic pain syndrome does not preclude the claimant from earning wages. Consequently, regardless of whether the chronic pain is the result of the industrial injury, the ALJ has found that the condition does not support an award of permanent total disability benefits. Therefore, it is not necessary to remand the matter for additional findings.
IV.
Lastly, the claimant contends that the ALJ erroneously disregarded the testimony of he and his wife concerning the extent of his disability. We perceive no error.
The ALJ is not required to credit the claimant's testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Neither is the ALJ required to explicitly cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). Rather, the ALJ was only required to make findings of fact concerning the evidence he found persuasive and dispositive. General Cable Co. v. Industrial Claim Appeals Office, supra. Levy v. Everson Plumbing Co., Inc., supra.
Admittedly, the ALJ did not make any factual determinations concerning the testimony of the claimant and his wife. However, the ALJ's order expressly states that the ALJ's findings of fact and conclusions of law are based upon the "testimony at hearing." Therefore, we must presume that the ALJ considered the testimony of the claimant and the claimant's wife, and did not find it persuasive. Cf. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995) (ALJ presumed to be competent and unbiased until contrary shown).
IT IS THEREFORE ORDERED that the ALJ's order dated October 31, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. DeanNOTICE 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 1, 1998 to the following parties:
Joseph F. Burris, 25130 County Road, F2, Cortez, CO 81321
Chuck Thompson, Meadow Gold Dairies, P.O. Box 4-0448, Grand Junction, CO 81504
Meadow Gold Dairies, Inc., 1104 Country Hills Dr., Ste. 108, Ogden, UT 84403-2400
John Bearss, ESIS, Inc., P.O. Box 2941, Greenwood Village, CO 80150-0141
Julie D. Swanberg, Esq., 3900 East Mexico Ave., Ste. 1300, Denver, CO 80210 (For the Respondent)
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
BY: _______________________