Opinion
W.C. No. 4-280-325.
November 18, 1999.
FINAL ORDER.
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his claim for permanent total disability benefits. The claimant argues the ALJ's pertinent findings of fact are not supported by the evidence, and the ALJ failed to consider the claimant's employability in his local labor market. We affirm.
The ALJ found that the claimant, who is sixty-three years of age, has not held a full-time job since the early 1970s. Instead, the claimant has held various temporary jobs to supplement disability income from other sources.
In November 1995 the claimant sustained a compensable injury to his right shoulder while employed by respondent Ready Man Labor, Inc., (Ready Man) a temporary services agency. The ALJ found that on October 20, 1997, the claimant's treating surgeon, Dr. McMillan, released the claimant to return to work with restrictions against lifting more than 10 pounds and abducting or flexing the shoulder more than 30 degrees. However, on March 4, 1999, Dr. McMillan amended his opinion and reported the claimant could lift up to 20 pounds with each upper extremity.
The respondents presented the testimony of vocational expert Roger Ryan. Based on this expert's testimony the ALJ found the claimant is employable "in his labor market which is both Alamosa and Denver." The ALJ further found that various "positions identified by Mr. Ryan and approved by Dr. McMillan exist in Alamosa and Denver." Finally, the ALJ found that Ready Man reemployed the claimant within his restrictions following Dr. McMillan's release. However, the ALJ found claimant left this employment voluntarily.
Under these circumstances the ALJ concluded that the claimant failed to carry his burden of proof to establish entitlement to permanent total disability benefits. To contrary, the ALJ found the claimant is capable of earning wages.
On review, the claimant attacks the sufficiency of the evidence to support the ALJ's finding that he failed to prove entitlement to permanent total disability benefits. We find no error.
As a general matter, the claimant has the burden of proof to establish entitlement to permanent total disability benefits. Section 8-40-201(16.5)(a), C.R.S. 1999. In order to meet this burden the claimant must establish that he is unable to earn wages in any amount. Weld County School District RE-12 v. Bymer, 955 P.2d 550, 556 (Colo. 1998); McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995).
The question of whether the claimant established an inability to earn wages is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 940 P.2d 115 (Colo.App. 1997). When determining the issue the ALJ is entitled to consider the effects of the industrial injury in light of the claimant's "human factors" including his age, physical condition, mental ability, employment history, and education. Further, the ALJ may consider the availability of work which the claimant is able to perform. This latter factor requires the ALJ to determine the claimant's "commutable labor market," which depends upon the "existence of employment that is reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, supra.
Because these issues are factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Lobb v. Industrial Claim Appeals Office, supra. The substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Weld County School District RE-12 v. Bymer, supra. We may not interfere with a credibility determination unless it is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Further, even erroneous findings of fact will not vitiate an order if they do not prejudice the substantial rights of the parties. See § 8-43-310, C.R.S. 1999; Puffer Mercantile Co. v. Arellano, 34 Colo. App. 434, 528 P.2d 966 (1974).
The claimant contends the ALJ erred in crediting Dr. McMillan's opinion that he is able to lift 20 pounds with both upper extremities. The claimant argues that Dr. McMillan's March 1999 opinion was rendered more than a year after Dr. McMillian's last examination of him, and therefore, was incredible as a matter of law.
The completeness or incompleteness of the medical history obtained by a physician affects the weight, not the admissibility of the opinion. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968). Here, the fact that Dr. McMillan did not examine the claimant between October 1997 and March 1999 went to the weight to be accorded his opinion, but we cannot say the ALJ erred as a matter of law insofar as the order may be construed as finding the claimant is able to lift 20 pounds.
In any event, we do not consider the difference between a 10 pound lifting restriction and the 20 pound lifting restriction to be material to the outcome of the case. The respondents' vocational expert, whom the ALJ credited, based his labor market research on the 10 pound lifting restriction, not the 20 pound restriction mentioned in Dr. McMillan's March 1999 report. (Tr. pp. 67-69; Ryan report, March 4, 1999, p. 5). Therefore, any error in crediting the 20 pound restriction would not alter the ALJ's conclusion that the claimant is employable.
The claimant next contends there is no evidence to support the ALJ's finding that the claimant is qualified for jobs which "exist" in Alamosa. (Finding of Fact 8). However, the respondents' vocational expert testified claimant is qualified to perform the job of potato sorter which exists in Alamosa. (Tr. p. 70). Admittedly, neither of the two Alamosa employers had an immediate opening for a sorter, but one of them had hired after October 1, 1998. (Ryan report, March 4, 1999, p. 5-6). The ALJ could infer from this evidence that there is a reasonable possibility the claimant can obtain work in Alamosa.
Moreover, any error attributed to this finding of fact is harmless. The ALJ determined, on substantial evidence, that the claimant's available labor market includes both Alamosa and Denver. Since the ALJ credited the respondents' vocational expert's testimony that the claimant has reasonable employment opportunities in Denver, it does not matter whether the ALJ erred in determining the claimant is also employable in Alamosa. The test is the claimant's ability to earn any wages within the available labor market, not the claimant's ability to earn wages at a specific location.
However, the claimant contends there is no substantial evidence to support the ALJ's finding that he is employable in Denver. The claimant asserts that the respondents' expert's testimony is insufficient because none of the temporary agencies surveyed by the expert could state when or where specific jobs would become available. However, the respondents' vocational expert stated that seven of nine temporary agencies said "they have jobs, presently, or that would come through, periodically, that were ten pounds of lifting." (Tr. p. 71). The ALJ could interpret this testimony as evidence that jobs are currently available, and are likely to remain available even though the exact time and place of the jobs cannot be predicted.
The claimant also argues the ALJ erred in crediting the testimony of witness Hannifan, who stated that the claimant would have remained employed by Ready Man had he not stopped reporting to work. (Tr. p. 56). The claimant asserts this testimony is incredible as a matter of law because Hannifan testified Ready Man would not be inclined to rehire the claimant.
Ready Man's unwillingness to rehire the claimant goes to the credibility of Hannifan's testimony. However, we cannot say as a matter of law that the ALJ was required to find that Hannifan's testimony was incredible. The possible inferences to be drawn from Ready Man's unwillingness to rehire the claimant do not constitute such hard, certain evidence that we are in a position to substitute our judgment for that of the ALJ.
Insofar as the claimant argues the ALJ misapplied the law, we disagree. The ALJ's findings of fact and conclusions of law reflect a recognition of the legal principles underlying permanent total disability, and a correct application of those principles to the facts of the case. The ALJ determined on substantial evidence that the claimant failed to prove he is unable to earn any wages in the labor markets to which he has access. Because substantial, albeit conflicting, evidence supports the ALJ's order, it must be upheld on review. Weld County School District RE-12 v. Bymer, supra.
II.
Finally, the claimant contends the ALJ erred by failing to include in the order a clause "reserving" issues not expressly determined. The claimant argues that the ALJ's failure to include this clause constitutes error because the claimant may be precluded from obtaining ongoing medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
However, as the respondents point out, the claimant never requested the ALJ to enter an order "reserving" undetermined issues. Since this request was not made to the ALJ, we will not consider it for the first time on appeal. See Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995). Moreover, insofar as the claimant wished to obtain Grover medical benefits, those benefits should have been sought contemporaneously with the ruling on permanent total disability. Grover v. Industrial Commission, 759 P.2d at 711 (If at hearing on the final award of permanent disability there is substantial evidence of need for future treatment the ALJ may enter an appropriate order).
IT IS THEREFORE ORDERED that the ALJ's order dated April 14, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ David Cain
_____________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed November 18, 1999 to the following parties:
Fred Gutierrez, 19775 Highway 160 East, Alamosa, CO 81101.
Ready Man Labor d/b/a Ready Temporary Service, 1915 E. Colfax, Denver, CO 80206.
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail, (For Respondents).
Joseph W. Ruppert, Esq., 226 W. "B" St., P.O. Box 8087, Pueblo, CO 81008 (For Claimant).
Lisa Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202.
BY: A. Pendroy