Opinion
W.C. No. 4-419-761
March 22, 2001
FINAL ORDER
The respondents seek review of a Corrected Order issued by Administrative Law Judge Gartland (ALJ) which awarded permanent total disability benefits. We affirm.
The claimant, suffered a compensable injury in 1998 while working for the respondent-employer, Wal Mart Stores Inc. (Wal Mart). The claimant was injured when a package fell from a shelf and caused her to strike her back against a storage bin. Dr. Phillips, the claimant's primary treating physician, diagnosed a lumbar strain with radiculopathy radiating down the right leg. Dr. Phillips released the claimant to perform sedentary work activities, and the claimant returned to modified work at Wal Mart.
The claimant initially answered telephones in the modified employment. She was later assigned to work as a door greeter. The ALJ found the claimant was unable to perform the job of door greeter because she had difficulty moving shopping carts. Wal Mart then assigned the claimant to the fitting rooms where she answered the telephone and hung clothes. The ALJ found the claimant was unable to continue this assignment due to pain caused by holding her arms overhead to hang clothes. The claimant later returned to work in the fitting rooms without being required to hang clothes. After two days and seven hours of work, the claimant was unable to continue due to increased pain. The claimant stated that the requirement to remain close to the telephone prevented her from being able to move around.
The respondents' vocational rehabilitation expert, Bob Van Iderstine (Iderstine), opined the claimant is capable of performing modified work at Wal Mart in the fitting room, as a door greeter, or doing accounting. Therefore, Iderstine opined the claimant is not permanently and totally disabled. In so doing, Iderstine relied on the opinions of Dr. Key who performed an independent medical evaluation (IME) at the respondents' request; and Mary Jill DeBalina (DeBalina), a physical therapist, who performed a functional capacity evaluation (FCE). Dr. Key assigned a 13 percent medical impairment rating and released the claimant to part-time, modified sedentary work.
The claimant's treating physician, Dr. Phillips, opined that the claimant is unable to tolerate sedentary duties and that even part-time work aggravates the claimant's back pain. Therefore, Dr. Phillips opined the claimant is permanently and totally disabled.
The claimant was 68 years old at the time of the hearing on permanent total disability. The ALJ found that as a result of the injury, the claimant suffers continuous low back pain which precludes her from performing many of her former activities, and that the chronic pain is a source of depression. The ALJ also found the claimant takes pain medication which impairs her concentration and memory, and that the claimant spends time on a daily basis lying down with an ice bag or heating pad to reduce the pain. Further, the ALJ determined that Dr. Phillips' opinions of the claimant's work capacity were more reliable and persuasive than the contrary opinions of Iderstine. In support, the ALJ found that Iderstine's opinions were not "fully supported" by DeBalina and that Dr. Key's experience with the claimant was limited to a one-time IME. In contrast, Dr. Phillips served as the primary treating physician and followed the claimant throughout her return-to-work efforts. Consequently, the ALJ determined the claimant sustained her burden to prove she is permanently and totally disabled.
The ALJ also determined the evidence was insufficient to find the claimant's permanent disability is attributable to an efficient, intervening injury. Consequently, the ALJ awarded permanent total disability benefits.
I.
On review, the respondents contend the ALJ erred as a matter of law in crediting the opinions of Dr. Phillips over the contrary opinions of Iderstine, Dr. Key, and DeBalina. The respondents argue the opinions of the vocational expert are entitled to greater weight than the opinions of a physician engaged in family practice. The respondents also contend Dr. Phillips' opinions concerning the claimant's residual vocational capacity are outside his field of expertise. We disagree.
First, we reject the respondents' contention that the ALJ failed to resolve conflicts in the evidence concerning whether the claimant is capable of performing sedentary work. The ALJ explicitly credited Dr. Phillips' opinion that the claimant was unable to perform sedentary duties answering the telephones at Wal Mart because she was unable to move around sufficiently to avoid an increase of back pain.
Next, the respondents cite no rule, statute, or case law, nor are we aware of any such authority, which requires the ALJ to afford the vocational expert's opinions greater weight than the treating physician's opinions concerning the claimant's ability to perform modified employment. In fact, the Workers' Compensation Act (Act) expressly recognizes that the treating physician's expertise includes his assessment of the claimant's work capacity. As a result, § 8-42-105(3), C.R.S. 2000, renders the treating physician's opinion of the claimant's temporary ability to perform regular or modified work dispositive of the termination of temporary disability benefits. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Consequently, we are not persuaded the Act obligated the ALJ to afford the vocational rehabilitation expert's opinions more weight than the opinions of the treating physician.
Iderstine's contact with the claimant was limited to his completion of a vocational rehabilitation evaluation at the respondents' request. In contrast, Dr. Phillips served as the claimant's treating physician and had occasion to observe the effects of the claimant's attempts to return to modified work at Wal Mart. Further, Iderstine admitted he could not reconcile his opinions with the claimant's testimony that she experienced too much pain to continue any of the modified employment positions at Wal Mart. He stated that is the claimant's testimony and he had no basis to refute it. (Tr. P. 64). Dr. Phillips relied upon the claimant's subjective pain reports to find that the claimant is physically unable to sustain the available modified employment at Wal Mart. The ALJ found the claimant's reported pain symptoms to be credible, and we may not disturb that assessment. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997 (ALJ's credibility determinations are binding unless the testimony is directly contradicted by such hard, certain evidence that the ALJ erred as a matter of law in crediting the testimony). Under these circumstances, the ALJ could, and did, find Dr. Phillips' opinion that the claimant is incapable of earning wages to be more persuasive than the contrary opinions of Iderstine.
In reaching these conclusions, we reject the respondents' contention that Dr. Phillips erroneously presumed the FCE indicated the claimant was unable to perform sedentary work. Based on this assertion, the respondents argue Dr. Phillips' opinions have no probative value. See High v. Industrial Commission, 638 P.2d 818 (Colo.App. 1981) (expert opinion "buttressed by assumed facts at variance with the actual facts has no evidential efficacy."). DeBalina's April 13, 1999, FCE stated the claimant reported increased pain while working as a layaway associate and telephone operator at Wal Mart. The claimant also reported that "most activities and positions increase her pain," and "prolonged positions especially increase her symptoms." DeBalina's FCE indicated the claimant gave an "overall fair effort" resulting in "fair validity" for the FCE, but due to acute pain was unable to complete some of the normal testing. The FCE also noted the claimant's intolerance for material handling, constant or frequent activities with negligible weight, and prolonged upright positions. Consequently, the FCE stated that the claimant's "demonstrated tolerances place her in a category below the Sedentary work level." DeBalina added that sedentary work requires sitting most of the time and the "claimant was unable to tolerate prolonged sitting." Accordingly, Dr. Phillips did not misconstrue the FCE in finding it concluded the claimant is not physically capable of sedentary employment.
II.
The respondents also contend the record does not support the ALJ's finding that the claimant established a direct causal connection between the 1998 injury and her permanent total disability. Specifically, the respondents contend the ALJ erroneously found there is "insufficient evidence" the claimant's permanent total disability is due to an intervening non-industrial event on February 13, 1999, when dogs jumped on the claimant and knocked her into the snow. In support, the respondents rely on evidence the claimant's condition was improving until February 13, 1999, and she was capable of modified employment. We are not persuaded.
As argued by the respondents, an award of permanent total disability benefits requires the claimant to prove the industrial disability is a "significant" factor in her permanent total disability. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). In this context, the term "significant" requires the claimant to prove "a direct causal relationship" between the industrial injury and the resulting disability. Seifried v. Industrial Commission, 736 P.2d at 1263; Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev'd on other grounds; Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996).
Assessment of the sufficiency and probative weight of the evidence are matters solely within the province of the ALJ as the fact-finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We may not substitute our judgment for that of the ALJ in this regard, and must decline the respondents' invitation to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
The ALJ could have inferred the claimant intentionally failed to disclose the February 13 incident to avoid the argument now advanced by the respondents. However, such an inference is inconsistent with evidence the claimant allegedly reported the incident to the physical therapist. It is equally plausible that the claimant did not report the incident because she did not consider it to be a significant event. The claimant stated that had no recollection of being knocked down by dogs on February 13, 1999. (Tr. p. 40). She stated that in February 1999 she owned two dogs, one large and one small. (Tr. pp. 40, 43). She testified that if there was such an incident it occurred while her dogs were playing or thought she was playing with them. (Tr. p. 40). She added that if it had been a significant event, she would have reported it to Dr. Phillips. (Tr. p. 41).
Dr. Phillips' records do not reference any injury on February 13. Furthermore, Dr. Phillips stated that he considered the claimant an honest and accurate historian, who was motivated to work. (Phillips depo. p. 11). Dr. Phillips also stated he was not sure what effect the February 13 injury had on the claimant's condition, but testified that given the claimant's underlying condition, it was not reasonable to attribute all of the exacerbations since mid-February 1999 to the February 13 incident. (Phillips depo. p 27).
The record also contains evidence the claimant was reassigned from working on the telephones to being a door greeter in February 1999. On substantial evidence the ALJ found the job of door greeter aggravated the claimant's pain. Thus, on this record we cannot say the ALJ was compelled to find the respondents sustained their burden to prove there was an sufficient, intervening event in February 1999 which severed the causal connection between the original injury and the claimant's disability.
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated November 6, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 22, 2001 to the following parties:
Rosemary Walker, 457 Meadows Rd., #227, Durango, CO 81301
Wal-Mart Stores, Inc., 1155 Camino Del Rio, Durango, CO 81301-5105
Insurance Company of the State of Pennsylvania, Karen Goad, Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy