Opinion
W.C. No. 3-792-487
May 14, 1996
FINAL ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge Erickson (ALJ) which determined that the claimant is permanently and totally disabled as a result of two industrial back injuries, and awarded benefits. We affirm.
In reaching his determination the ALJ credited the opinion of vocational rehabilitation expert, Daniel Best. In a report dated April 18, 1995, Mr. Best concluded that as a result of the industrial injuries, the claimant is not "reliable enough to hold any gainful, competitive work." More specifically, Mr. Best stated that the claimant's unemployability "stems from his psychological and behavioral difficulties, rather than from certain sets of physical restrictions and limitations."
On review, the respondents contend that Mr. Best is not competent to render an expert opinion that the claimant is permanently and totally disabled as a result of psychological and behavioral problems. Therefore, the respondents argue that Mr. Best's opinion has no evidentiary value. Furthermore, the respondents contend that in absence of Best's opinion, there is insufficient evidence in the record to support a finding that the claimant is permanently and totally disabled. We reject these arguments.
In Chambers v. C.F. I Steel Corp., 757 P.2d 1171 (Colo.App. 1988), the Court of Appeals held that a vocational rehabilitation expert may give expert testimony on the vocational affects of a claimant's medical restrictions. The Chambers court specifically stated that the "vocational characteristics" of a claimant's medical restrictions are within the vocational rehabilitation counselor's expertise. 757 P.2d at 1172. Consequently, the Chambers court concluded that the fact finder erred in excluding the testimony of a vocational rehabilitation counselor concerning the extent to which the claimant's industrial and non-industrial physical restrictions contributed to the claimant's permanent and total disability.
In this case, Mr. Best relied upon several medical records concerning the claimant's restrictions including the reports of Dr. Yost. In his report dated March 10, 1994, Dr. Yost concurred with Dr. Greenwood's 1993 conclusion that as a result of the back injuries the claimant has experienced "dysthymia, mild depression" and a "somataform pain disorder." Dr. Yost identified the areas of social, recreational and daily activities affected by the claimant's psychological impairment in his "Guides for Psychiatric Impairment Report." Based upon the claimant's impaired ability in those areas of function, Dr. Yost rated the claimant's permanent impairment as ten percent of the whole person.
The ALJ was persuaded by Dr. Yost's opinion that the claimant suffers from a "somataform pain disorder." Consequently, there is substantial support in the medical evidence the ALJ found persuasive that the claimant has sustained psychological impairment as a result of the industrial injuries.
It follows that because Best was competent to testify concerning the vocational effects of the psychological impairment the ALJ was free to credit Best's opinion that the claimant's psychological and behavior problems have caused permanent and total disability. In fact, Mr. Best's opinions are consistent with the claimant's testimony concerning his level of pain, and the other medical evidence which the ALJ explicitly credited.
Moreover, Best's opinion that the claimant's psychological problems preclude him from performing gainful, and competitive employment supports a conclusion that the claimant is permanently and totally disabled. See Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). Therefore, we may not interfere with the ALJ's award of benefits for permanent, total disability.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated February 6, 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. (1995 Cum. Supp.).
Copies of this decision were mailed May 14, 1996 to the following parties:
Jeffrey A. Putt, 152 Del Mar Circle, Apt. 309, Aurora, CO 80011
Rusco Building Products, 14500 E. 33rd Pl., Aurora, CO 80011
Continental Divide Ins. Co., % Cornhusker Casualty Co., 9290 W. Dodge Rd., Omaha, NE 68114
Subsequent Injury Fund (Interagency Mail)
Kirk D. Tresemer, Esq., and Thomas D. Hacker, Esq., 1655 Lafayette St., #301, Denver, CO 80218 (For the Claimant)
Karen R. Wells, Esq., and Anne Smith Myers, Esq., 3900 E. Mexico, Ste. 1000, Denver, CO 80210 (For the Respondents)
Jill Gallett, Esq., Office of the Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
BY: _______________________