Opinion
W.C. No. 4-710-336.
December 8, 2010.
ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated May 25, 2010, that determined the claimant was permanently and totally disabled (PTD), ordered the insurer to pay the claimant permanent partial disability (PPD) benefits pursuant to its admission and found that the claimant was entitled to benefits up to $150,000 based upon his combined whole person rating exceeding 25 percent. We affirm the order in part, set it aside in part, and remand for further proceedings.
The claimant suffered an industrial injury to his right shoulder, neck, back and right knee on December 18, 2008. Dr. McFarland placed the claimant at maximum medical improvement (MMI) on September 24, 2009. The respondents filed a Final Admission of Liability (FAL) based upon the impairment rating from Dr. McFarland. The respondent took the position in their FAL that because the claimant's impairment rating was less than 25 percent the claimant was limited to the $75,000 cap on combined temporary disability or permanent disability benefits found in § 8-42-107.5 C.R.S. Because the claimant had received over $100,000 in temporary total disability benefits the respondents denied any further monetary obligation to the claimant.
The ALJ determined that the claimant's impairment exceeded 25 percent and therefore the claimant was entitled to benefits up to $150,000 under 8-42-107.5. The ALJ ordered the insurer to pay the claimant permanent partial disability benefits pursuant to their FAL. The ALJ also found the claimant to be permanently and totally disabled (PTD). The ALJ ordered the insurer to pay the claimant PTD benefits. The respondents appealed on a number of grounds.
I.
The respondents contend that the ALJ erred in awarding PTD benefits. The respondents argue that the claimant failed to prove that he is incapable of earning any wages when all the credible evidence is considered and given proper weight. We are unpersuaded that the ALJ erred in this respect.
For an award of PTD, the claimant bears the burden of proving that he or she is unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. The issue of entitlement to PTD benefits is a question of fact for the ALJ, Joslins Dry Goods Co. v. Indus. Claim Appeals Office, 21 P.3d 866, 868-69 (Colo. App. 2001), and the familiar rules governing resolution of factual issues apply. Section 8-43-301(8), C.R.S. See Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002) (the ALJ resolves conflicts in the evidence, makes credibility determinations, determines the weight to be accorded to expert testimony, and draws plausible inferences from the evidence).
In making a PTD determination, the ALJ may consider the effects of the industrial injury in light of the claimant's human factors including the claimant's age, work history, general physical condition, and prior training and experience. Joslins Dry Goods Co., 21 P.3d at 868. The crux of the PTD determination is the existence of employment that is reasonably available to the claimant under his or her particular circumstances. Joslins Dry Goods Co., 21 P.3d at 868 (quoting Weld County School Dist. RE-12, 955 P.2d 558).
The claimant presented the expert testimony of a rehabilitation counselor. The claimant's expert opined that given the physical restrictions of Dr. McFarland the claimant would not be able to return to jobs for which he has training, education and work experience. The claimant's expert opined that the claimant should be considered permanently and totally disabled.
The ALJ credited the testimony of the claimant's expert. The ALJ noted that the claimant was 55 years old, held only a GED and lived in a very small town with a depressed labor market. The ALJ concluded that there were not enough jobs within the claimant's geographical area and within his residual functional capacity to render him employable.
The respondents argue that the only lay witness at the hearing was the claimant and he was not credible. The respondents argue that the claimant denied using a computer but later admitted that he played computer games and used the computer to check internet shopping sites. In our view this evidence does not compel the conclusion that the claimant was not credible. The ALJ could reasonably conclude that the salient issue was whether the claimant had vocational computer skills. The respondents further argue that, although the claimant testified that he was plagued by daily headaches, there were no reference to the headaches in the reports of the vocational consultants. However, the claimant's vocational expert testified that the claimant had told her of his problems with headaches. Tr. at 89.
In our view the respondents have not demonstrated that the claimant's credibility was so overwhelmingly rebutted by hard, certain evidence that the ALJ erred as a matter of law in crediting it. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558, 561 (Colo. App. 2000). Therefore this is not an extreme circumstance where we may interfere with the ALJ's credibility determinations.
The respondents rely on the testimony of their expert rehabilitation counselor. The respondents' expert opined that the claimant had many transferable skills and could be expected to be able to return to work in a sedentary position and identified jobs that the claimant could perform. However, the claimant testified that he applied for work at the places recommended by the respondents' expert in her vocational evaluation and was unable to secure employment. In concluding that the claimant had established by a preponderance of the evidence that he was permanently and totally disabled the ALJ gave greater weight to the opinions of the claimant's expert than to the opinions offered by the respondents' expert. The respondents point to examples from the evidence which they argue demonstrate their expert's methodology and experience was superior to the alleged cursory review of the evidence made by the claimant's expert. However, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). We are not persuaded to interfere with the ALJ's credibility discretion.
II.
The respondents, citing Kehm v. Continental Grain, 756 P.2d 381 (Colo.App. 1987), argue that the ALJ's order grants the claimant concurrent payment of permanent partial and PTD benefits. The rationale of Kehm is that one may not be permanently partially disabled at the same time one is permanently totally disabled and there cannot be a duplication of benefits.
The respondents contend that the ALJ has ordered the payment of PTD benefits as of the date of MMI while ordering the insurer to pay PPD benefits through the date of the award of PTD benefits. The respondents request that to the extent this is what was ordered the ALJ erred as a matter of law and request that the order be modified to reflect adherence to the Kehm holding.
The claimant argues that the ALJ did not err in his award of permanent partial disability benefits and permanent total disability benefits. However, the claimant concedes that he is not entitled to payment of PPD at the same time he received PTD benefits. We note that the ALJ was aware of the holding in Kehm and specifically made note of it in his order. Nevertheless, the ALJ ordered the respondents to pay partial disability benefits pursuant to their FAL until terminated by law after concluding that the claimant was entitled to benefits up to $150,000 under the cap under § 8-42-107.5.
The claimant is entitled to permanent partial disability benefits only through date of the permanent total disability award. The ALJ found that Dr. McFarland placed the claimant at MMI on September 24, 2009 and that the claimant has not worked since the date of the accident December 16, 2006. However, the ALJ made no specific finding on when PTD payments should begin. It may be that when the claimant's condition stabilized and he reached MMI, that he became eligible for an award of PTD benefits. However, we do not read the ALJ's order as determining a commencement date for the award of PTD benefits. Because it is necessary for the ALJ to determine the commencement date of PTD benefits it is not possible to tell if there is any violation of the prohibition found in Kehm against the claimant's receiving PPD benefits at the same time he received PTD benefits. Therefore we must remand the matter to the ALJ for a determination of the commencement date for the award of PTD benefits.
Because of this remand it is unnecessary for us, at least at this time, to address the issue of whether the ALJ erred by converting and combining scheduled impairments for the purpose of determining the applicable statutory cap under § 8-42-107.5. The caps under § 8-42-107.5 may have no application whatsoever because the claimant here has been found permanently and totally disabled. See Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo. App. 1995). However, we note that the claimant may be entitled to additional PPD benefits depending upon the date the ALJ determines for the commencement of entitlement to PTD benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 25, 2010 is set aside insofar as it awarded benefits for permanent partial disability. The matter is remanded for entry of a new order on the issue of the commencement date of the claimant's entitlement to PTD benefits in accordance with the views expressed herein.
IT IS THEREFORE FURTHER ORDERED that the ALJ's determination that the claimant is permanently and totally disabled is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Krikscium
______________________________ Thomas Schrant
LIBERTY MUTUAL INSURANCE COMPANY, Attn: SHARON JACKSON, P O BOX 95577, LAS VEGAS, NV, 89193 (Insurer).
GIELAROWSKI LAW FIRM, PC, Attn: K. MACHELLE GIELAROWSKI, ESQ., 712 N TEJON STREET, SUITE 1, COLORADO SPRINGS, CO, 80903 (For Claimant).
MOSELEY, BUSSER APPLETON, PC, Attn: SCOTT M. BUSSER, ESQ., 300 SOUTH JACKSON STREET, SUITE 240, DENVER, CO, 80209 (For Respondents).