Opinion
W.C. No. 4-353-854
February 18, 2000
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gallegos (ALJ) which awarded permanent total disability benefits. The respondents contend the claimant's post-injury employment precluded an award of permanent total disability benefits as a matter of law. The respondents also contend the evidence does not support the award, and that the ALJ erroneously admitted vocational testimony. We affirm.
On September 4, 1997, the claimant sustained a low back injury in the course of her employment at the employer's manufacturing facility. The claimant was placed on restrictions against lifting, pushing, or pulling more than ten pounds. The employer provided the claimant with modified duties which she held until March 20, 1998, when she was separated from the employment. The ALJ credited the claimant's testimony that she was frequently required to leave work early because of pain caused by the injury.
On May 21, 1998, Dr. Kawasaki, one of the claimant's treating physicians, opined the claimant was at maximum medical improvement (MMI). Dr. Kawasaki imposed restrictions against lifting, pushing, and pulling 20 pounds or more on an occasional basis. He also restricted the claimant against frequently lifting, pushing, and pulling ten pounds or more. Further, Dr. Kawasaki recommended the claimant should "avoid job duties which require repetitive flexion and extension through the lumbar spine."
The claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Stromatt. Dr. Stromatt opined the claimant sustained an eight percent whole person medical impairment and imposed the same restrictions established by Dr. Kawasaki.
At hearing, the respondents presented the testimony of vocational expert White. White opined that the claimant is permanently and totally disabled in light of her limited education, inability to speak or write English, limited math skills, and the physical restrictions stemming from the injury. White also stated that he did not believe the claimant could obtain any of the jobs which the respondents' vocational expert stated the claimant was capable of performing. Finally, White testified, over the respondents' objection, that his "interpretation" of the restriction against repetitive flexion and extension of the lumbar spine meant the claimant was not able to perform these actions more than 4 to 10 times per hour, and certainly not the 100 times per hour testified to by Dr. Kawasaki. (Tr. pp. 97-99).
Crediting the testimony of the claimant and White, the ALJ found the claimant does not have the ability "to maintain employment within her physical abilities," and "cannot be hired, and she cannot sustain employment." Consequently, the ALJ determined the claimant is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. 1999.
I.
On review, the respondents first contend the ALJ's award of permanent total disability benefits is erroneous as a matter of law. The respondents argue that in this case the claimant held modified employment for many months after the industrial injury, and therefore, demonstrated the ability to earn wages. The respondents further assert that no case law supports the proposition that a claimant may be awarded permanent total disability if she holds a job subsequent to the industrial injury. We reject these arguments.
Under § 8-40-201(16.5)(a), the claimant must prove that she is "unable to earn any wages in this same or other employment." In determining whether the claimant is permanently and totally disabled the ALJ may consider the effects of the industrial injury in light of the claimant's "human factors." These factors include, but are not limited to, the claimant's age, work history, general physical condition, and prior training and experience. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The essence of the test is the "existence of employment that is reasonably available to the claimant under his or her particular circumstances." Id. at 558.
The question of whether the claimant has proven permanent total disability is one of fact for determination by the ALJ. Weld County School District RE-12 vs. Bymer, supra; Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). Thus, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. When applying the substantial evidence test 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. Weld County School District RE-12 vs. Bymer supra.
The respondents' assertion notwithstanding, an award of permanent total disability is not vitiated simply because the claimant held some type of post-injury employment. In fact, our review of the law discloses at least two published cases, Holly Nursing Care Center v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0657, December 9, 1999); and Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995), in which the claimant obtained post-injury employment but, nevertheless, the courts upheld an award of permanent total disability benefits. These cases indicate that if the evidence shows the claimant was not physically able to sustain the post-injury employment, or that such employment is unlikely to again become available to the claimant in view of her particular circumstances, the ALJ need not find the claimant is capable of earning wages. To the contrary the issue remains one of fact for the ALJ.
Here, the ALJ found as a matter of fact that the claimant was not able to sustain the modified employment provided by the respondent-employer. Further, the ALJ found the claimant searched for employment after her separation, but was unable to find a job. Consequently, the ALJ did not err as a matter of law in awarding permanent total disability benefits.
II.
The respondents next contend the award of permanent total disability benefits is not supported by substantial evidence in the record. The respondents assert that the overwhelming weight of the evidence establishes the claimant is able to earn wages. In support of this proposition the respondents point out that none of the physicians precluded the claimant from all employment, and Dr. Kawasaki and Dr. Stromatt opined the claimant is capable of performing certain positions identified by the respondents' vocational expert. The respondents also argue the ALJ improperly credited the testimony of vocational expert White because White relied on his own improper determination of the claimant's medical restrictions. We perceive no error.
The concept of disability, including permanent total disability, involves both a medical incapacity element and a wage-earning incapacity element. See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). For this reason, both medical evidence and vocational evidence is admissible to determine the effects of the claimant's injury on her ability to earn wages. See Holly Nursing Care Center v. Industrial Claim Appeals Office, supra. Moreover, it is for the ALJ to assess the relative weight to be assigned such evidence. Finally, pain is one element of the claimant's "general physical condition," and the ALJ may consider and credit the claimant's testimony concerning the effect of pain on her ability to perform work. Darnall v. Weld County, W.C. No. 4-164-380 (April 10, 1998); Roop v. Estes/Hi-Flyer, W.C. No. 4-121-928 (February 17, 1994).
The respondents' assertion notwithstanding, the mere fact that the physicians opined the claimant is capable of performing some employment does not necessarily establish the claimant is capable of obtaining and maintaining employment on the open labor market. This is especially true in light of the claimant's relevant human factors, including her limited education, language abilities, and work history. In fact, the physicians' opinions were contradicted by the claimant's unsuccessful attempts to obtain employment following her separation from the modified employment.
Moreover, we perceive no error in the ALJ's reliance on White's testimony. White testified that in his professional vocational opinion the restriction against repetitive flexion and extension limits the claimant to bending no more than 4 to 10 times per hour. The ALJ could plausibly conclude that vocational rehabilitation experts are required to be familiar with the meaning of medical restrictions against "repetitive flexion and extension" because such restrictions are relevant to determining the claimant's employability on the open labor market. Therefore, this is not a case in which expert White attempted to assign or assess medical restrictions. Indeed, White merely commented on his professional understanding of what such a restriction ordinarily means from the vocational perspective. (Tr. p. 99).
We believe it proper for the vocational expert to state his understanding of the ordinary meaning ascribed to medical restrictions. Therefore, the ALJ could determine that such testimony is within the field of White's expertise, and thus, was admissible. See Chambers v. CF I Steel Corp., 757 P.2d 1171 (Colo.App. 1988). It is true that Dr. Kawasaki testified the claimant is capable of bending far more often than 4 to 10 times per hour. However, it was for the ALJ to assess the credibility of Dr. Kawasaki. Significantly, Dr. Stromatt also imposed restrictions against repetitive flexion and extension, but the ALJ was not required to conclude that Dr. Kawasaki and Dr. Stromatt held the same opinion concerning what constitutes repetitive bending.
Under the circumstances, we hold the claimant's testimony, the testimony of vocational expert White, and evidence the claimant was unable to obtain employment supports the award of permanent total disability benefits. The fact the evidence might have supported contrary findings and conclusions affords no basis for relief on appeal.
IT IS THEREFORE ORDERED that the ALJ's order dated August 10, 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 February 18, 2000 to the following parties:
Erminia Ruiz, 709 28th St., Denver, CO 80205
Pacific Frames, Pillow Kingdom, 3950 Kearney St., Denver, CO 80207-1326
Gregory A. Ruegsegger, Esq., Pillow Kingdom — Legal Dept., 300 Union Blvd., #350, Lakewood, CO 80228
General Insurance Company of America, Nhu Miller, Claims Adjustor, SAFECO, P.O. Box 5687, Denver, CO 80217-5687
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy