Opinion
W.C. Nos. 4-142-643, 4-263-427
February 19, 1997
FINAL ORDER
Henkels McCoy (Henkels) and its insurer, Liberty Mutual Insurance Company (collectively the Liberty Mutual respondents), seek review of an order of Administrative Law Judge Gandy (ALJ). The Liberty Mutual respondents contend that the ALJ erred in ordering them to pay temporary total disability benefits, permanent total disability benefits, and future medical benefits. We disagree, and therefore, affirm.
The claimant suffered a compensable injury on June 15, 1992, while working as a heavy equipment operator for Sturgeon Electric Co/DIA (Sturgeon). The injury affected the claimant's right upper extremity, neck and head, and is the subject of W.C. No. 4-142-643. Sturgeon's insurance carrier, Farmington Casualty Company (Farmington), filed a Final Admission of Liability which listed February 9, 1996, as the date of maximum medical improvement (MMI) and admitted liability for permanent partial disability benefits.
On April 17, 1995, the claimant suffered an injury to his left upper extremity while working as a heavy equipment operator for Henkels. This injury is the subject of W.C. No. 4-263-427. The Liberty Mutual respondents filed a Final Admission of Liability which listed February 16, 1996, as the date of MMI and admitted liability for permanent partial disability benefits.
The claimant also sustained several military injuries in 1967 while stationed in Vietnam. One of the injuries caused paralysis to the thumb and two fingers of the claimant's right hand.
I.
The Liberty Mutual respondents first contest the ALJ's award of future medical benefits for the 1995 injury. They contend that the ALJ failed to make sufficient findings to support the award, and that the record does not support such an award. We disagree.
The claimant is entitled to medical benefits after MMI if he establishes that future medical treatment will be reasonable and necessary to cure and relieve the effects of an industrial injury or prevent further deterioration of his condition. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) . The claimant satisfies this burden of proof by the presentation of substantial evidence of a "prescription or recommendation forany course of medical treatment" that is reasonable and necessary to treat the industrial injury. (Emphasis in original). Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609, 611 (Colo.App. 1995) ; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992).
We have no difficulty ascertaining the basis for the ALJ's award of Grover medical benefits. Therefore, it is unnecessary to remand the matter for further findings. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
The ALJ found that the claimant needs medication to control his pain from the 1992 and 1995 injuries. See Conclusion of Law D. Therefore, the ALJ ordered Farmington to provided Grover medical benefits for the claimant's right upper extremity and headaches, and directed the Liberty Mutual respondents to provide Grover medical benefits for the claimant's left upper extremity.
As the Liberty Mutual respondents concede, the claimant testified that he currently takes medications including Vicodin, Ultram, Ibuprofen, and a muscle relaxer to control pain caused by the industrial injuries,. (Tr. p. 52). The claimant's testimony was buttressed by the testimony of Arthur Prince (Prince), the vocational expert for the Liberty Mutual respondents. (Tr. pp. 97, 98). Further, the claimant's testimony is consistent with the May 31, 1996 report of Dr. Ritsick.
A plausible inference from this evidence is that the claimant can expect ongoing pain symptoms and that medication is necessary to relieve the symptoms and ameliorate the disabling consequences of pain. Thus, there is substantial evidence to support the award of Grover medical benefits. Cf. Department of Higher Education v. DeCordoba, (Colo.App. No. 93CA1471, June 16, 1994) (not selected for publication) (claimant testimony "that her physician had prescribed drugs for three weeks at a time to treat [her] ongoing pain" supported award of Grover medical benefits); Finkle v. K-Mart Corp., W.C. No. 3-957-048, June 27, 1995 (claimant's testimony that she received a prescription from authorized treating physician subsequent to MMI sufficient to support award of Grover benefits).
II.
On the issue of temporary disability, the claimant testified that after the 1995 injury he performed light duty work until July 26, 1995, when he underwent surgery on his left upper extremity. (Tr. pp. 32-33). The Liberty Mutual respondents admitted liability for temporary total disability benefits commencing July 26, 1995, and terminating October 29, 1995, the date the claimant underwent surgery for treatment of the 1992 injury.
The ALJ found that the Liberty Mutual respondents had no grounds to terminate the claimant's temporary disability benefits on October 29, 1995, because the claimant was not at MMI and had not been released to regular employment. Therefore, the ALJ determined that the Liberty Mutual respondents were liable for continuing temporary total disability benefits up to February 16, 1996.
A.
The Liberty Mutual respondents do not dispute the ALJ's factual determinations. Nor do they contend that the claimant was offered light duty employment within his restrictions after July 1995. Rather, they argue that they are not liable for further temporary disability benefits because the October 29 surgery was an "intervening event" which delayed the claimant's recovery from the 1995 injury. We are not persuaded.
The Court of Appeals rejected a similar argument in Horton v. Industrial Claim Appeals Office, __ P.2d __ (Colo.App. No. 96CA0284, November 29, 1996), where the insurer admitted liability for the claimant's industrial injury and continuing temporary total disability benefits. The treating physicians recommended surgical treatment for the industrial injury. However, the surgery was delayed because the claimant suffered a non-work related fall. Thereafter, the insurer petitioned to suspend the claimant's temporary disability benefits on grounds that the fall constituted an intervening event which delayed the claimant's recovery from the industrial injury.
Based upon PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Horton court stated that an industrial injury does not need to be the "sole cause" of a claimant's disability in order for the claimant to recover temporary total disability benefits. Rather, it is sufficient for the claimant to establish that the industrial disability "contributed to some degree" to the temporary wage loss.
In Horton the court noted that at the time of the alleged intervening event, the claimant was already totally disabled by the effects of the industrial injury. Furthermore, in Horton the insurer had admitted liability for temporary total disability benefits and had not contended that the claimant's industrial disability abated prior to the fall or subsequent to the recommendation for surgery. Under these circumstances, the Horton court concluded that at the time of the fall, the claimant's wage loss was "necessarily caused to some degree by the injury." Consequently, the Horton determined that the non-industrial fall did not severe the causal connection between the industrial injury and the claimant's temporary wage loss.
The undisputed facts in this case are not appreciably different from the circumstances presented in Horton. Therefore, we reject the argument that the October 29 surgery constituted an intervening event which severed the causal connection between the claimant's temporary disability and the 1995 industrial injury.
B.
Alternatively, the Liberty Mutual respondents contend that the disputed temporary total disability was due to both industrial injuries. Therefore, they argue that the ALJ should have apportioned liability for the claimant's temporary total disability benefits between Farmington and the Liberty Mutual respondents.
It is unclear whether this argument was raised before the ALJ. Nevertheless, a claimant cannot be more than temporarily totally disabled. In view of the fact that the claimant was already temporarily totally disabled as a result of the 1995 injury, we are not persuaded that the ALJ erred in failing to apportion the disputed temporary total disability benefits between the two injury claims.
III.
In finding that the claimant is permanently and totally disabled, the ALJ credited the opinions of vocational rehabilitation expert Mark E. Litvin (Litvin) and Avery Davis (Davis). The ALJ also found that the contrary opinions of vocational expert Prince were "speculative."
A.
On appeal, the Liberty Mutual respondents advance several arguments in support of their contention that the ALJ erred in finding the claimant to be permanently totally disabled. First, they contend that the ALJ applied the wrong legal standard. We disagree.
This claim is governed by the statutory language currently codified at § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), which provides that a claimant is permanently and totally disabled if he is "unable to earn any wages in the same or other employment." The ALJ's order reflects his consideration of the pertinent legal standard.
The ALJ determined that the claimant is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a) based upon the testimony of vocational experts Litvin and Davis who opined that the claimant is unemployable and unable to earn any wages. Furthermore, to the extent that the ALJ considered the claimant's employment and earning history in reaching his determination, we find no error. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995) [ALJ may consider "human factors" in determining permanent total disability under § 8-40-201(16.5)(a)].
B.
Next, the Liberty Mutual respondents rely on Prince's testimony that the claimant has access to employment in the Denver labor market as a security guard. The Liberty Mutual respondents contend this testimony establishes that the claimant is not totally disabled. Further, they argue that the ALJ's findings are insufficient to ascertain whether the ALJ abused his discretion in rejecting Prince's testimony.
It is clear that the Liberty Mutual respondents are dissatisfied with the ALJ's failure to credit the testimony of their vocational expert. However, it is solely the ALJ's prerogative to evaluate the sufficiency, credibility, and probative value of conflicting vocational evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, we have no authority to reweigh the evidence on review. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Moreover, the ALJ is not required to explicitly discuss an expert's testimony before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragon, 765 P.2d 636 (Colo.App. 1988). Rather, it is sufficient for the ALJ to find that the evidence was rejected on the basis of his credibility determinations. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988)
Here, the ALJ determined that the opinions of vocational experts Litvin and Davis were entitled to the greatest weight, because their opinions were consistent with the claimant's physical and mental limitations. Davis testified that she conducted a labor market survey which revealed "very few" positions as a security guard that the claimant could perform after the 1995 injury. (Tr. p. 69). Litvin opined that the duties required of a security guard were beyond the claimant's capacity. (Tr. p. 104). In particular, Litvin doubted that the claimant could pass a pre-employment physical which is required for most jobs as a security guard. Litvin also indicated that the claimant's medication may create problems which would preclude the claimant from being hired. The claimant testified that his medications cause him to experience dizziness, nausea, and incoherency. (Tr. p. 52).
A plausible inference from this testimony is that the claimant's ability to earn wages as a security guard is "speculative." Therefore, we cannot say that the ALJ erred in failing to credit Prince's testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (the ALJ's credibility determinations must be upheld unless the testimony her credited is rebutted by such hard, certain evidence, that it would be error as a matter of law to believe the testimony). As a result, the Liberty Mutual respondents have not presented grounds for disturbing the ALJ's finding of permanent total disability.
C.
Lastly, the Liberty Mutual respondents contend that the ALJ was required to apportion the claimant's permanent total disability between the 1992 and 1995 injuries, and cite Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d 419 (Colo.App. 1994), and State Compensation Insurance Authority v. Collins, 771 P.2d 9 (Colo.App. 1988), in support of their argument. They also contend that the ALJ failed to consider the apportionment issue.
As argued by the Liberty Mutual respondents, § 8-42-104(2), C.R.S. (1996 Cum. Supp.), provides for apportionment where the claimant has a "previous disability" and sustains further disability from a subsequent industrial injury. Furthermore, as the Liberty Mutual respondents recognize, § 8-42-104(2) is not applicable to the apportionment of permanent total disability unless the claimant's disability is the "combined effect" of successive industrial injuries. Citadel Mall v. Industrial Claim Appeals Office, 892 P.2d at 421; State Compensation Insurance Authority v. Collins, 771 P.2d at 10; see also Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) (military disability is not an industrial disability for purposes of apportionment).
Contrary to the argument of the Liberty Mutual respondents, the ALJ expressly considered the issue of apportionment. The ALJ determined that no apportionment was appropriate under the facts of this case. (Findings of Fact 4, 6, 7; Conclusions of Law B and F). Moreover, the ALJ's findings are sufficient to permit appellate review of the ALJ's determination.
The ALJ found that the claimant was able to work as a heavy equipment operator from the time he left the military service up to the time of the 1992 injury. Further, the ALJ determined that although the claimant was rated as having suffered permanent medical impairment from the 1992 injury, the 1992 industrial injury did not disable the claimant from continuing his regular employment as a heavy equipment operator. Instead, the ALJ determined that the claimant was not physically precluded from work as a heavy equipment operator or earning wages until he sustained the 1995 industrial injury. Consequently, the ALJ determined that the claimant's permanent total disability is the result of the 1995 injury.
The ALJ's determination of the cause of the claimant's permanent total disability is supported by substantial evidence in the testimony of vocational expert Litvin and plausible inferences drawn from the record. Therefore, the ALJ's determination is binding and it is immaterial that the record contains some evidence which, if credited, might support a contrary determination. Section 8-43-301(8), C.R.S. (1996 cum. Supp.); Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
Moreover, in view of the ALJ's determination that the claimant's permanent total disability is not the "combined effect" of the 1992 and 1995 industrial injuries, the ALJ was not required to apportion liability under § 8-42-104(2). Citadel Mall v. Industrial Claim Appeals Office, supra; State Compensation Insurance Authority v. Collins, supra. Therefore, the ALJ did not err in holding the Liberty Mutual respondents liable for all of the claimant's permanent total disability.
IT IS THEREFORE ORDERED that the ALJ's order dated September 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE
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 February 19, 1997 to the following parties:
Daniel M. Jerla, 645 E. 9th St., Tucson, AZ 85705
Sturgeon Electric Co., Inc., 12150 E. 112th Ave., Henderson, CO 8064-9116
Henkels McCoy, Inc., 11049 W. 44th Ave., Wheat Ridge, CO 80033-2563
Henkels McCoy, Inc., Attn: Judith W. Wilson, 985 Jolly Road, P.O. Box 950, Blue Bell, PA 19422-0900
Liberty Mutual Ins. Co., Attn: Teresa Manshardt, P.O. Box 3539, Englewood, CO 80155-3539
Barbara Trefren-McDaniels, Farmington Casualty Co., Travelers/Aetna Ins. Co., P.O. Box 173762, Denver, CO 80217-5980
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For Sturgeon Respondents)
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Henkels Respondents)
BY: _______________________