Opinion
W.C. No. 4-164-380
April 10, 1998
FINAL ORDER
The respondent, Weld County seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined that the claimant is permanently totally disabled, and awarded benefits. We affirm.
The claimant sustained numerous industrial injuries while working for the respondent, the last of which occurred in 1992. In May 1996, the claimant underwent a functional capacity evaluation (FCE) which indicated that claimant could perform light/sedentary work. Based upon the FCE, Dr. Lookwood released the claimant to light or sedentary work which did not require lifting over 20 pounds, and allowed the claimant to alternate between sitting, standing, and walking. Dr. Lockwood also issued a permanent impairment rating of 19 percent whole person impairment.
However, the claimant testified that, as a result of the industrial injuries, he is unable to lift over 10 pounds, can only drive 45 minutes at a time, and is unable to sit over ~ hour, stand over 10 minutes, or walk over ~ hour at one time. He also testified that he has to lie down several times a day to relieve pain from the industrial injuries.
Vocational rehabilitation expert Ruthe Hannigan relied upon the FCE to conclude that the claimant remains employable in several jobs. However, when asked about whether the claimant's self assessment of his restrictions would affect his employability, Ms. Hannigan stated:
"There isn't an employer that would ever hire somebody that came in and represented themselves that way. . . . . If he told them he had to lay down and all the things he couldn't do, nobody would hire him." (Tr. pp. 68, 69).
Vocational rehabilitation expert Patrick Renfro rejected the FCE on grounds that it was "totally subjective and not supported by adequate objective medical or functional findings." Rather, Mr. Renfro considered the claimant's self-assessment of his restrictions to be more realistic. Furthermore, relying upon that assessment, Mr. Renfro concluded that the claimant has lost "all access" to the labor market.
Insofar as pertinent, the ALJ found that the FCE was not reliable evidence of the claimant's restrictions because it was fifteen months old and inconsistent with the claimant's testimony that his condition has worsened since he had back surgery. Instead, the ALJ credited the claimant's assessment of his abilities including the need to lie down to relieve pain from the industrial injuries.
Based upon the claimant's physical restrictions, the vocational evidence, the claimant's age, limited education, learning difficulties, history of manual physical employment, "ability to handle pain" and "perception of pain," the ALJ found that the claimant is permanently and totally unable to earn wages. Accordingly, the ALJ awarded permanent total disability benefits.
On appeal, the respondent contends that the ALJ erroneously relied upon the claimant's self-imposed restrictions. The respondent contends that the medical restrictions imposed by the treating physician, Dr. Lockwood, are binding on the ALJ. We disagree.
We rejected a similar argument in Moyers v. Burlington Coat Factory Warehouse, W.C. No. 4-162-499 (April 4, 1997), in which an ALJ credited the claimant's testimony that the effects of an industrial injury required him to lie down several times a day. We concluded that the claimant's testimony of debilitating pain is one of the "human factors" the ALJ may consider in determining whether or not the claimant has the ability to earn any wages. We adhere to our conclusions in Moyers.
It is undisputed that the claim is governed by the provisions of Senate Bill 91-218 (SB 218), and § 8-40-201(16.5)(a), C.R.S. 1997. Under § 8-40-201(16.5), 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). The question of whether the claimant is unable to earn wages is a factual determination for the ALJ, which must be upheld if supported by substantial evidence in the record. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995).
Section 8-40-201(16.5)(a) does not enumerate the evidence an ALJ may consider in determining whether the claimant is "unable to earn any wages." However, in Weld County School District RE-12 v. Bymer, ___ P.2d ___ (Sup.Ct. No. 97SC36, March 9, 1998), the Supreme Court held that the ALJ may consider the same "human factors" which governed the determination of permanent total disability prior to the enactment of § 8-40-201(16.5)(a). See also Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
One of the "human factors" is the claimant's "general physical condition." Weld County School District RE 12 v. Bymer, supra; Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). Under the law as it existed prior to SB 218, evidence of the claimant's general physical condition was not limited to the medical restrictions imposed by the authorized treating physician. Professional Fire Protection, Inc. v. Long, supra. Rather, the ALJ was free to consider a wide variety of evidence including the claimant's ability to "handle pain and the perception of pain." See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
The respondent cites no authority, and we know of none which suggests that SB 218 intended to limit the type of evidence an ALJ may consider in determining the claimant's "general physical condition." To the contrary, the legislature is presumed to be aware of the judicial precedent in an area when it enacts legislation in that area. Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987). Accordingly, had the General Assembly intended to restrict the ALJ's determination of the claimant's "physical condition" to the medical restrictions imposed by the authorized treating physician, it could have expressly adopted such a restriction. However, the legislature did do so and we cannot read non-existent provisions into the statute. Best-Way Concrete Co. v. Baumgartner, supra. Therefore, we perceive no error in the ALJ's consideration of the claimant's "self imposed" restrictions.
Next, we reject the respondent's contention that the ALJ misconstrued Ms. Hannigan's testimony. Admittedly, Ms. Hannigan did not believe the claimant was medically required to lie down several times a day. However, the ALJ found that the claimant's self-assessment was a realistic representation of his physical limitations. Accordingly, the ALJ could reasonably interpret Ms. Hannigan's testimony as reflecting her opinion that "if the claimant had to lie down several times during the work day, there were no jobs the claimant could do." (Finding of Fact 10).
It follows that we necessarily reject the respondent's argument that the vocational evidence compels the conclusion that the claimant is capable of earning wages. To the contrary, the ALJ's findings are supported by Mr. Renfro's opinion that the claimant:
"has suffered such significant losses of access to the labor market coupled with a constellation of significant physical and functional limitations, as to make it impossible for him to earn a wage."
The respondent also contends that the claimant's unemployment is attributable to his lack of motivation to find employment, and argue that claimant's lack of motivation to return to work does not support the ALJ's determination that the claimant is permanently and totally disabled.
The ALJ was not persuaded that the claimant was unmotivated to return to work. See Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988) (ALJ not required to cite disputed evidence before rejecting it as unpersuasive). Consequently, we disagree with the respondents' assertion that the ALJ considered the claimant's lack of motivation as evidence that the claimant is permanently and totally disabled.
IT IS THEREFORE ORDERED that the ALJ's order dated September 3, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona HalseyNOTICE 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 April 10, 1998 to the following parties:
Jack E. Darnall, 941 Nantucket St., Windsor, CO 80550
Pat Persichino, Weld County, P.O. Box 758, Greeley, CO 80632-0758
Shirin Chowdhury, OHMS, P.O. Box 173682, Denver, CO 80217
Subsequent Injury Fund — Interagency Mail
Ruth C. Malman, Esq., 3773 Cherry Creek Dr. North, Ste. 575, Denver, CO 80209 (For the Claimant)
Patricia J. Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202-5817 (For the Respondents)
Jill M. Gallet, A.A.G., Office of the Attorney General, Civil Litigation Section 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
BY: _______________________