Opinion
W.C. No. 4-153-150.
November 22, 2004.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Jones (ALJ) insofar as the ALJ denied permanent total disability (PTD) benefits and denied penalties for the respondents' alleged violation of § 8-42-107(8) (b.5) (I) (B), C.R.S. 2004. We affirm.
The claimant suffered a compensable left ankle injury in 1992. Following surgery to repair a ruptured Achilles tendon, the claimant developed Reflex Sympathetic Dystrophy. The claimant testified that as a result of the industrial injury, she has severe pain in both legs that radiates up the spine, that her legs give out, that she has trouble standing and walking, and that she drops things. The claimant also described symptoms of depression and impaired concentration. (Tr. December 18, 2002, pp. 50-53). The claimant left the employment November 1992 and eventually moved from Colorado to Tennessee.
In 1998, the claimant reached maximum medical improvement (MMI). A Division-sponsored independent medical examination (DIME) physician opined the claimant suffered 52 percent whole person impairment. When the claimant's condition subsequently worsened, the respondents voluntarily reinstated temporary disability benefits.
On January 20, 2002, Dr. Cicala placed the claimant at MMI from the worsened condition. The respondents then filed a Final Admission of Liability (FAL) which terminated temporary disability benefits effective January 20, 2002 and admitted the claimant suffered 52 percent impairment. However, relying on the $120,000 benefit cap currently codified at § 8-42-107.5 C.R.S. 2004, the respondents did not admit liability for any medical impairment benefits because they had already paid $131,352.88 in temporary disability benefits.
The claimant objected to the April 2002 FAL and applied for a hearing on PTD and penalties. The claimant argued that because Dr. Cicala is not a Level II accredited physician, the respondents were required by § 8-42-107(8) (b.5) (I) (B) and (C), C.R.S. 2004, to return the claimant to Colorado for a medical impairment evaluation by a Level II accredited physician. It is undisputed that the respondent did not arrange for an impairment evaluation by Level II accredited physician. Therefore, the claimant sought an order imposing penalties under § 8-43-304(1), C.R.S. 2004. The claimant also argued that in the absence of the requested evaluation of permanent medical impairment, the ALJ lacked jurisdiction to adjudicate the issue of PTD benefits.
The ALJ rejected the claimant's jurisdictional challenge. Instead, the ALJ determined that the requirement to provide a Level II evaluation did not apply to these circumstances. Therefore, the ALJ also ruled that the challenged conduct did not warrant the imposition of penalties.
Further, the ALJ found that in 2000 and 2001, the claimant operated a sign-making business, which required the claimant to work long hours learning the equipment, and sitting at a computer. The ALJ also found that the claimant's occupational and recreational activities in 2000 and 2001, and the claimant's activities on a surveillance tape were inconsistent with her reported physical limitations and the allegations of depression, social isolation, and concentration problems. Therefore, the ALJ determined the claimant failed to prove entitlement to PTD benefits.
I.
On review, the claimant points out that her condition at the time of the hearing, rather than the time of MMI, is determinative of whether she is entitled to PTD benefits. The claimant argues that the ALJ's order is insufficient to permit appellate review because the ALJ failed to make sufficient findings concerning the claimant's vocational capacity at the hearings in December 2002 and May 2003. The claimant also contends that her testimony and the medical reports of Dr. Cicala and Dr. Brookoff compel a finding of PTD because she is limited to part-time work, has a major depressive disorder and would be unable to sustain employment. We reject these arguments.
PTD exists when the claimant is unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2004. In determining whether the claimant has sustained her burden to prove PTD, the ALJ is not required to determine with absolute certainty that the claimant would be successful in obtaining and maintaining employment. Instead, the ALJ is required to determine whether it is more probable than not that the claimant is capable of earning wages. Duran v. MG Concrete Inc., W.C. No. 4-222-069 (September 17, 1998); Bonds v. Skyline Fire Protection District, W.C. No. 4-111-529 (December 5, 1995). This standard necessarily requires the ALJ to predict the claimant's future employment prospects. See Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940).
If supported by substantial evidence, the ALJ's finding that the claimant failed to sustain her burden of proof is binding on review. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Under this standard, we must defer to the ALJ's resolution of conflicts in the evidence and plausible inferences drawn from the record. Christie v. Coors Transportation Co., supra. However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to enter findings concerning the evidence she considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ expressly acknowledged the claimant's contention that her activities in 2000 and 2001 are not indicative of her earning capacity in 2002 and 2003 because expert medical and vocational evaluations completed after MMI establish she became permanently and totally disabled. (Conclusions of Law 6). However, within her sole prerogative, the ALJ rejected the claimant's testimony concerning her physical and mental disorders. Instead, the ALJ determined the claimant's business activities just a year before the evaluations were inconsistent with the claimant's testimony about her activities during that period. The ALJ then inferred that expert medical and vocational evaluations after MMI were probably based on inaccurate information from the claimant concerning her condition. Consequently, after considering that evidence, the ALJ determined it was unreliable. Thus, the ALJ's findings sufficiently articulate her consideration of the expert testimony concerning the claimant's condition after January 20, 2002.
The ALJ's findings are plausible inferences from the record. Further, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence, and decline the claimant's invitation to do so. Christie v. Coors Transportation Co., supra; Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
We also reject the claimant's contention that the ALJ's order is internally inconsistent because the ALJ credited the treating physician's opinions concerning the claimant's need for medical treatment after MMI due a "worsening" of her psychological condition, but rejected the treating physician's opinion that the claimant has no residual earning capacity. The ALJ is free to credit all, part or none of an expert's testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Furthermore, because PTD is based upon "disability" and not medical impairment, the ALJ could rely on the treating physician's opinion concerning the claimant's need for medical treatment without deferring to the treating physician's opinion concerning the claimant's residual access to the labor market.
Nevertheless, the ALJ did not determine whether the claimant suffered a worsened depression. The ALJ merely determined the claimant presented substantial evidence that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant's condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). The ALJ then issued a general award of future medical benefits, without determining what specific additional treatment the claimant required to relieve the effects of the industrial injury.
Finally, the term "any wages" means zero wages. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). Consequently, even if the ALJ credited evidence the claimant is limited to part-time employment, the record supports the ALJ's determination the claimant failed to prove she is incapable of earning "any" wages.
II.
Alternatively, the claimant contends the issue of PTD was not ripe for adjudication in the absence of the medical impairment evaluation contemplated in § 8-42-107(8) (b.5) (1) (B), by the Level II accredited physician. The claimant reasons that because medical impairment is a relevant "human factor" to be considered by the ALJ in determining PTD, she is entitled to the Level II evaluation prior to the hearing on PTD. We disagree.
Admittedly, the determination of whether the claimant is capable of earning wages may include the ALJ's consideration of a myriad of "human factors," including the claimant's education, work history, and general health. Christie v. Coors Transportation Co., supra. Permanent medical impairment is a relevant consideration to the claimant's general health.
Section 8-42-107(8) (b.5) (I) (B), C.R.S. 2004, provides that where the authorized treating physician who determines MMI with permanent impairment is not a Level II accredited physician, and the claimant is not a Colorado resident at the time of MMI, the claimant may choose to have the respondent "arrange and pay for the employee to return to Colorado for examination, testing, and rating, at the expense of the self-insured employer or insurer." However, the provisions of § 8-42-107(8) only govern the resolution of disputes regarding MMI and medical impairment benefits. Lobato v. Industrial Claim Appeals Office, 94 P.3d 1173 (Colo.App. 2003), cert. granted 03SC556, August 2, 2004; Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001).
Here, the claimant objected to the respondents' April 2002 FAL. However, the claimant did not apply for a hearing on MMI and thus waived any argument that her claim for PTD was not ripe for adjudication. Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004); Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002) (issue ready for adjudication without any legal impediment). Neither did the claimant endorse the issue of medical impairment benefits. To the contrary, the claimant concedes the respondents' contention that the claim is subject to the $120,000 benefit cap in § 8-42-107.5 for combined temporary disability and medical impairment, and that the respondents have no liability for medical impairment benefits regardless of the rating. Consequently, the claimant did not raise any dispute which would trigger the provisions of § 8-42-107(8)(B) or (C).
Furthermore, the claimant cites no authority and we know of no authority that claimants are entitled to a medical impairment evaluation by a Level II accredited physician at the respondents' expense to assist the claimant in proving PTD. Under these circumstances, we agree with the ALJ that § 8-42-107(8) (b.5) does not apply to these facts. Consequently, the respondents' failure to incur the expense of returning the claimant to Colorado for a medical impairment evaluation by a Level II physician did not warrant the imposition of penalties under § 8-43-304(1), and did not preclude the ALJ from hearing the claim for PTD benefits. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) (penalties may not be imposed under § 8-43-304(1) without a violation of the statute).
IT IS THEREFORE ORDERED that the ALJ's order dated, August 5, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Dona Halsey
Iris Williamson, Memphis, TN, Ball Corporation, Golden, CO, Specialty Risks Services, Denver, CO, Robert W. Turner, Esq., Denver, CO, (For Claimant).
Steven J. Picardi, Esq., Arvada, CO, (For Respondents).