Opinion
W.C. No. 4-328-106
December 31, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied her claim for permanent total disability benefits. The claimant contends the ALJ applied an incorrect standard of proof by giving undue weight to the impairment rating issued by the treating physician, and made a finding of fact not supported by substantial evidence. We affirm.
The ALJ found that the claimant sustained a compensable back injury in January 1997. The claimant underwent surgery, and subsequently developed depression.
In September 1997 the claimant's treating physician, Dr. Wunder, released the claimant to modified duty with lifting and movement restrictions. The ALJ found that the respondent-employer (Tenneco) provided work within the claimant's restrictions, and that the claimant "testified she was able to work approximately two and one-half months at" the modified employment. (Finding of Fact 22). However, the ALJ also found that the claimant was terminated on December 1, 1997, for "attendance problems." The ALJ credited the testimony of the respondents' witnesses that, despite requests from Tenneco, the claimant failed to provide any medical excuses permitting her to miss work during this period of time.
On December 16, 1997, Dr. Wunder issued a report stating that the claimant had a seventeen percent whole person impairment attributable to her back injury, but no whole person impairment associated with "psychological distress." Dr. Wunder stated that his examination of December 16 revealed no psychological problems.
The respondents presented the testimony of a vocational expert who opined that, in view of Dr. Wunder's restrictions, the claimant is capable of earning wages. This witness conceded that he did not consider the effects of depression on the claimant's ability to earn wages. (Tr. pp. 107, 128).
The claimant presented reports from two medical experts opining that she has whole person medical impairment caused by depression. Further, the claimant presented the testimony of a vocational expert who opined that, in view of the claimant's physical and psychological restrictions, she is unable to earn any wages.
The ALJ expressly credited the medical reports of Dr. Wunder, and stated that he was not persuaded by the reports of the claimant's medical experts. (Findings of Fact 20, 21). Further, the ALJ credited the opinions expressed by the respondents' vocational expert. (Finding of Fact 35). Under these circumstances, the ALJ concluded that the claimant failed to carry her burden of proof to establish permanent total disability. Specifically, the ALJ stated the claimant "failed to produce credible evidence she is unable to earn any wages." However, the ALJ went on to state that because no Division-sponsored independent medical examination (IME) had "yet been completed," the impairment rating issued by Dr. Wunder "is binding" under § 8-42-107(8)(c), C.R.S. 1998.
I.
On review, the claimant contends the ALJ incorrectly held that Dr. Wunder's impairment rating is "binding" under § 8-42-107(8)(c). The claimant reasons that because this case involves permanent total disability rather than permanent partial disability, the ALJ was not obliged to give any special weight to Dr. Wunder's impairment rating. Consequently, the claimant argues that the matter should be remanded to the ALJ to resolve conflicts in the evidence concerning whether the claimant has psychological impairment, and if so, what effect the impairment has on her ability to earn any wages. We conclude that any error was harmless.
Pursuant to § 8-40-201(16.5)(a), C.R.S. 1998, a claimant is not entitled to permanent total disability benefits unless she proves that she is "unable to earn any wages in the same or other employment." When determining whether a claimant is permanently and totally disabled the ALJ may consider various "human factors" including the claimant's general physical condition, mental ability, age, employment history, education, and the availability of work which the claimant can perform under the circumstances. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Ultimately, the question of whether the claimant has proven the inability to earn any wages is one of fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, supra; Bestway Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
As the claimant correctly points out, we have previously held that because the claimant's right to permanent total disability benefits depends on the ability to earn wages in the labor market the IME provisions of § 8-42-107(8)(c), and the presumptions accorded the impairment ratings issued by the treating and IME physicians, do not apply in permanent total disability cases. Rather, we have concluded that the provisions of this statute apply solely to determinations of permanent partial disability because "neither § 8-40-201(16.5), nor § 8-42-111 expressly affords any special weight to the medical impairment rating of the IME physician in determining the claimant's impaired access to the labor market." Cooper v. Sunny Acres Villa Inc., W.C. No. 4-136-519 (February 5, 1998).
However, in this case, the ALJ's statement concerning the binding quality of Dr. Wunder's impairment rating is, at worst, harmless error. The ALJ expressly resolved conflicts in the evidence and found that Dr. Wunder's impairment rating was credible, and that the opinions of the claimant's medical experts were not credible. Further, the ALJ credited the opinions of the respondents' vocational expert over those of the claimant's expert.
Thus, the ALJ's order resolves the conflicts in the evidence concerning whether or not the claimant has impairment caused by depression, and whether the alleged depression impairs the claimant's ability to earn wages. The order, read in its entirety, does not convince us that the ALJ's credibility determinations were influenced by § 8-42-107(8)(c). Consequently, nothing would be gained by remanding the matter to the ALJ to reconsider conflicts in the evidence, and any error in referring to the statute was harmless. See Featherstone v. Loomix, Inc., 726 P.2d 246 (Colo.App. 1986); § 8-43-309, C.R.S. 1998.
Moreover, the ALJ's reference to § 8-42-107(8)(c) follows his conclusion that the claimant failed to prove entitlement to permanent total disability benefits by a preponderance of the evidence. (Conclusions of Law 1-3). Thus, in the strictest sense, the ALJ was correct in stating that, for purposes of permanent partial disability, Dr. Wunder's rating remained binding because a "Division-IME has not yet been completed." The ALJ's reference to an IME can best be read as pertaining to any future determination of permanent partial disability, not a conclusion that he was required to credit Dr. Wunder's impairment rating for purposes of determining entitlement to permanent total disability benefits.
II.
The claimant next contests Finding of Fact 22, where the ALJ found that the claimant testified she was able to work approximately two and one-half months at the modified job provided by Tenneco. The claimant argues that this finding is not supported by the evidence because it fails to account for evidence that she was absent from work for substantial amounts of time because of pain caused by her injury. We disagree.
The ALJ's findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. When applying this standard, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, the ALJ is not held to a standard of absolute clarity when expressing his findings of fact. Rather, it is sufficient for the ALJ to make findings concerning the evidence he found determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ's finding that the claimant was able to work for approximately two and one-half months is an accurate finding regarding the claimant's testimony. (Tr. p. 19). Moreover, the ALJ implicitly recognized that the claimant missed time from work between September and December 1997. This is true because the ALJ made a finding that the claimant was terminated for absences. Further, the ALJ credited the testimony of the respondents' witnesses that the claimant failed to produce any evidence that her absences were attributable to medical problems caused by the injury.
The claimant's remaining arguments concern the credibility of the witnesses. We are prohibited from substituting our judgment for that of the ALJ on these issues.
IT IS THEREFORE ORDERED that the ALJ's order dated June 11, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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. 1998.
Copies of this decision were mailed December 31, 1998 to the following parties:
Isabel Mora, P.O. Box 334, Johnstown, CO 80534
Tenneco Packaging, 1201 Cornerstone Dr., Windsor, CO 80550
Gayle Trottnow, CIGNA Insurance Companies, P.O. Box 2941, Greenwood Village, CO 80150-0141
J. Anthony Ogden, Esq., 4582 S. Ulster St., #906, Denver, CO 80237 (For Respondents)
Miguel Martinez, Esq., 1102 Fifth St., Suite A, Greeley, CO 80631 (For Claimant)
By: ___________