Opinion
W.C. No. 4-102-842
January 27, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) insofar as the ALJ denied and dismissed his claim for permanent total disability benefits. We affirm.
This matter was previously before us. In an Order of Remand dated July 18, 1996, we set aside the ALJ's prior order in which he determined that the claimant is not permanently and totally disabled. We stated that additional findings of fact were necessary to determine whether the ALJ properly found that the claimant's "onset of disability" from an occupational disease occurred after July 1, 1991. Therefore, we concluded that the order was insufficient to determine whether the ALJ erred in resolving the claim for permanent total disability benefits under the statute currently codified at § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), which applies to occupational diseases arising on or after July 1, 1991. See McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). Consequently, we remanded the matter for a new order.
On remand, the ALJ entered an order dated September 4, 1996, in which he determined that the claimant failed to prove that he experienced the onset of disability from the occupational disease prior to July 1, 1991. Instead, the ALJ found that the onset did not occur until July 8, 1992, the date the claimant was medically restricted from performing work which required use of a respirator. Accordingly, the ALJ reinstated his conclusion that the claim is governed by § 8-40-201(16.5)(a). Because the ALJ found that the claimant failed to sustain his burden to prove that he is permanently totally disabled within the meaning of § 8-40-201(16.5), the ALJ denied the claim for permanent total disability benefits.
On review, the claimant contends that there is "overwhelming" evidence that he suffered the onset of disability prior to July 1, 1991. Based upon this contention, the claimant renews his argument that the claim is governed by the legal standard for permanent total disability which existed prior to July 1, 1991, and that he is permanently and totally disabled under this standard. Alternatively, the claimant contends that he is unable to earn any wages in the "open labor market," and therefore, is permanently and totally disabled as defined by § 8-40-201(16.5)(a). We reject these arguments.
The claimant does not dispute the applicable law. Specifically, a workers' compensation claim based upon an "occupational disease" is governed by the law in effect on the date of the "onset of disability." See SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994). The "onset of disability" occurs when the claimant is physically incapacitated by the disease. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). That incapacity may be evidenced by various factors including lost time from work, reduced efficiency in the performance of regular duties, or medical restrictions affecting the claimant's ability to perform his regular duties. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986).
I. A.
The claimant first contends that the occupational disease resulted in lost time from work prior to July 1, 1991. In support, he cites his testimony that he lost time from work in April and May 1991, while undergoing testing at the National Jewish Center for Immunology and Respiratory Medicine for respiratory complaints which were subsequently diagnosed as chronic beryllium disease. The claimant argues that it was error for the ALJ to reject his testimony solely because it was not corroborated by documentary evidence.
The claimant bore the burden to prove his entitlement to benefits by a "preponderance of the evidence." Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). Accordingly, insofar as the claimant sought benefits under the law as it existed prior to the enactment of § 8-40-201(16.5)(a), the claimant was required to prove that he suffered the onset of disability prior to July 1, 1991.
The question of whether the claimant sustained his burden of proof was a matter for resolution by the ALJ. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.)
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). Where the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to decide the inference to be drawn, and we may not interfere if the ALJ's inference is permissible in light of the totality of the circumstances. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985); Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981).
We must also defer to the ALJ's credibility determinations and his assessment of the sufficiency and probative value of the evidence. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995), cert. granted July 1, 1996 ; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). In this regard, we note that the ALJ was not required to credit the claimant's testimony, even if the testimony was "unrefuted." Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
Here, the ALJ did not credit the claimant's testimony that prior to July 1, 1991, he lost time from work or lost wages as a result of the beryllium disease. The ALJ also found that the claimant did not present documentary evidence of lost time, which would have increased the claimant's credibility. (Findings of Fact 15).
The claimant does not dispute the fact that he did not offer any documentary evidence to support his testimony. Rather, the claimant contends that the ALJ imposed an "unreasonable evidentiary burden" on the claimant by requiring him to corroborate his testimony with payroll records which were in the possession of the respondents.
As we read the ALJ's order, he did not require the claimant to establish the onset of disability by documentary evidence. Rather, he determined that the claimant's testimony was not credible, and that in the absence of any documentary evidence which would corroborate the claimant's testimony, the claimant failed to prove by a preponderance of the evidence that he suffered lost time from work prior to July 1, 1991.
Nor are we persuaded that the ALJ misconstrued the law in considering the absence of "lost wages" as evidence that the claimant did not experience the "onset of disability" prior to July 1, 1991. Despite the claimant's testimony that he was paid his regular wages while off work for treatment of the occupational disease, we do not disagree with the ALJ's implicit determination that, in some circumstances, lost wages may reflect lost time from work.
B.
Similarly, we are not persuaded that the record compels a finding that the beryllium disease resulted in reduced work efficiency before July 1, 1991. The claimant testified that he was experiencing fatigue and shortness of breath prior to July 1, 1991, which resulted in a reduced efficiency at work. (Tr. p. 10). The ALJ expressly considered this testimony, but found that it was inconsistent with the "objective findings" in Dr. Newman's May 28, 1991 report. Contrary to the claimant's arguments, we do not believe this finding indicates that the ALJ "mischaracterized parts of the factual record." In his report of May 28, Dr. Newman diagnosed the claimant as suffering from a "very mild stage" of chronic beryllium disease including "symptoms of fatigue and shortness or breath with intermittent cough." However, Dr. Newman reported "No evidence of gas exchange or pulmonary function abnormalities at this time." Further, Dr. Newman stated:
"Although he is symptomatic with fatigue, shortness of breath, and intermittent cough, he obviously still has a great deal of pulmonary reserve given the normalcy of his oxygenation at maximum exercise testing, his pulmonary function tests, and diffusing capacity."
In view of this evidence, the ALJ's finding that the claimant's "subjective" complaints of fatigue and shortness of breath, are inconsistent with the "objective" test results reflects a plausible interpretation of Dr. Newman's report. See Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess expert knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it).
Furthermore, the ALJ resolved the conflict between Dr. Newman's subjective and objective findings, by crediting Dr. Newman's opinion that the claimant did not show abnormal pulmonary function prior to July 1, 1991. Therefore, the ALJ inferred that the disease had not yet resulted in impairment and was not causing the claimant to suffer a reduced work efficiency prior to July 1, 1991. Under these circumstances, we reject the claimant's argument that Dr. Newman's reports corroborate rather than refute his assertion of reduced work efficiency before July 1, 1991.
C.
Next, the claimant contends that prior to July 1, 1991, the occupational disease restricted him from performing his regular job duties. The claimant's argument is based upon his testimony that his regular job duties required him to go into various buildings on the employer's premises, and that Dr. Furman's May 30, 1991 restriction from being "exposed to beryllium dust or aerosol," prevented him from going into buildings where beryllium was handled.
The ALJ determined that the claimant was last injuriously exposed to beryllium in 1971, and that the claimant failed to present persuasive evidence that his regular job duties in May 1991, required him to go into buildings where he could be exposed to beryllium. (Discussion and Conclusions of Law 4). These findings constitute plausible inferences from the record.
The claimant testified that prior to May 30 he was "permitted" to go into buildings where beryllium had been handled in the past, but he was longer "permitted" access to these buildings after the May 30 restriction. (Tr. p. 15). However, he did not state that his regular job duties required him to go into buildings where beryllium had been handled. (Tr. pp. 8-9, 29-30).
As a corollary argument, the claimant contends that if the May 30 restriction did not impair his ability to perform his regular employment, then likewise, the July 8, 1992, medical restriction which precluded him from "using a respirator," was insufficient to establish the "onset of disability." However, the claimant specifically testified that as a result of the July 8, 1992 restriction he was limited in his ability to perform the duties of a maintenance foreman and his job was changed to that of a technical support person. (Tr. p. 31). In view of this testimony, the ALJ could, and did, infer that the July 8 restriction impaired the claimant's ability to perform his regular work.
D.
Moreover, insofar as the claimant alleges that the ALJ's order reflects that he was denied due process, we disagree. We may not infer that the ALJ failed to consider the evidence which supported the claimant's position merely because the ALJ did not discuss that evidence in his order. See Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970) (ALJ not required to make findings of fact on every piece of evidence, just the evidence found to be persuasive and determinative.).
The ALJ is also entitled to the presumption of integrity, honesty and impartiality. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). Our review of the record and ALJ's order does not support the claimant's assertion that the ALJ made a "conscious search of the record" for evidence to support a "preconceived conclusion," or that the ALJ's determination was based upon a "carefully selected reading of the medical record." See also, In Re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977) (adverse rulings alone are insufficient to show bias).
We also note that the matter was remanded to the ALJ for additional findings of fact and a new order and that in the new order the ALJ specifically articulated the legal standard he applied in determining the date of the "onset of disability." Accordingly, the ALJ's order is consistent with our directions on remand. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (reviewing court in best position to determine scope of its own remand).
We have considered the claimant's remaining arguments, and the arguments are not persuasive. Therefore, we conclude that the record supports the ALJ's determination that the claimant failed to sustain his burden to prove that the "onset of disability" occurred prior to July 1, 1991.
II.
Because we must uphold the ALJ's finding that the claimant did not suffer the onset of disability prior to July 1, 1991, the ALJ did not err in concluding that the claim for permanent total disability benefits is governed by § 8-40-201(16.5)(a). Consequently, we need not consider the claimant's arguments concerning the legal standard for permanent total disability which existed prior to July 1, 1991.
III.
Section 8-40-201(16.5)(a), defines permanent total disability as the inability to earn "any wages in the same or other employment." The claimant contends that the statute requires an award of permanent total disability benefits if the claimant is unable to earn wages in the "open labor market." Relying on the opinions of vocational experts Helen M. Woodward and Mark Litvan, the claimant argues that he is unemployable in the open labor market. Therefore, the claimant argues that the ALJ erroneously determined that he failed to sustain his burden of proof under § 8-40-201(16.5)(a). We perceive no error.
Ultimately, the question of whether the claimant has the ability to earn "any wages" is one of fact for the ALJ. Christie v. Coors Transportation Co., supra; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). As argued by the claimant, the ALJ's resolution of this question may include consideration of the myriad of factors which were pertinent to permanent total disability determinations under the prior law. Best-Way Concrete Co. v. Baumgartner, supra. The court has also concluded that these factors include consideration of whether the claimant has access to employment in the local labor market. Brush Greenhouse Partners v. Godinez, ___ P.2d ___ (Colo.App. No. 96CA0266, December 27, 1996); Weld County School District RE-12 v. Bymer, (Colo.App. No. 96CA0041, October 31, 1996) (not selected for publication). In so doing, the court rejected an argument that the proper test under § 8-40-201(16.5)(a) is whether the claimant can earn any wages in "any labor market." Instead, the court concluded that the test is whether the claimant has access to employment within his local labor market. Brush Greenhouse Partners v. Godinez, supra; Weld County School District RE-12 v. Bymer, supra.
It is undisputed that from 1993 to 1995 the claimant worked for the employer as a technical support person. In 1995 the claimant was laid off due to a reduction in the labor force. The claimant admitted that he was capable of performing the duties of a technical support person at the time he was laid off, and at the time of the hearing. (Tr. pp. 33, 39). Further, the claimant stated that he is eligible for rehire by the employer, with "preferred status," and has submitted an application for reemployment with the employer. (Tr. pp. 9, 33, 34). Based upon this testimony, the ALJ determined that the claimant is capable of earning wages in the "same" employment.
The ALJ also determined that the claimant is capable of earning wages in "other employment." In support, the ALJ cited the claimant's testimony that he applied for several positions with other employers for which he is qualified and are within his medical restrictions. (Tr. pp. 34-36). Thus, the ALJ's findings are supported by the record and the findings reflect his consideration of the pertinent factors, including whether the claimant has access to employment which exists in the local labor market. Consequently, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ's order. Section 8-43-301(8).
IT IS THEREFORE ORDERED that the ALJ's order dated, September 4, 1996, 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. (1996 Cum. Supp.).
Copies of this decision were mailed January 27, 1997 to the following parties:
William J. Chapman, 1223 Lincoln St., Longmont, CO 80501
EGG Rocky Flats, Inc., Attn: Roselee Oyer, Esq., P.O. Box 464, Golden, CO 80402-0464
Kaiser-Hill, Ltd., Attn: Al Jerman, P.O. Box 464, Golden, CO 80402-0464
Travelers Insurance Co., Attn: Karen Gilmore, P.O. Box 17360, Denver, CO 80217-0360
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For the Claimant)
Scott M. Busser, Esq., 300 Jackson St., #570, Denver, CO 80209 (For the Respondents)
By: ______________________________________________