Opinion
W.C. No. 4-315-831
September 22, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ). The respondents contend that the ALJ applied the wrong legal standard in finding that the claimant is permanently and totally disabled and that the evidence does not support a finding of permanent total disability under the applicable legal standard. We disagree, and therefore, affirm.
This claim is governed by § 8-40-201(16.5)(a), C.R.S. 1998, which defines permanent total disability as the inability to "earn any wages in the same or other employment." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is incapable of earning wages in the same or other employment is to be based upon the ALJ's consideration of a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The test for determining the "availability of work" is whether employment exists "that is reasonably available to the claimant under his or her particular circumstances." Id. at 558.
This claimant suffered a compensable low back injury on October 31, 1996, while working as a construction and maintenance laborer. As a result of the injury, the claimant was medically restricted from returning to his pre-injury employment. Dr. Wunder placed the claimant at maximum medical improvement on June 17, 1997, and imposed medical restrictions against lifting over 15 pounds, pushing over 20 pounds, and squatting, crawling and climbing stairs more than occasionally. Dr. Wunder also recommended that the claimant avoid bending and stooping and alternate between sitting and standing positions every 45 minutes.
Vocational rehabilitation expert Patrick Renfrow testified that the claimant remains capable of earning wages as a security guard, bank teller, tax return preparer, and assisted living worker. Vocational rehabilitation expert Bonnie Ruth opined that even if the claimant can work within the restrictions imposed by Dr. Wunder, "there is no work within those restrictions for which [the claimant] would qualify." Consequently, Ms. Ruth opined that the claimant is unable to earn any wages.
Crediting the opinions of Ms. Ruth, the ALJ found that the claimant is permanently and totally disabled. The ALJ also credited the claimant's testimony. The claimant stated that his medical restrictions preclude him from performing the jobs identified by Mr. Renfrow and he knows of no jobs in the local labor market he could perform. (Tr. pp. 14, 15, 20, 24, 36). The ALJ also relied on the opinions of Dr. Sanderford.
On October 17, 1997, Dr. Sanderford opined that the claimant cannot perform his pre-injury employment or obtain any job sufficient to "support him and his family." Dr. Sanderford also opined that the claimant is "100% disabled from any type of work that he is either educated or trained to perform."
The respondents contend that evidence the claimant is unable to perform work within his prior training and education, and unable to earn wages sufficient to support his family, does not support a finding of permanent total disability under § 8-40-201(16.5)(a). Furthermore, the respondents contend that Ms. Ruth erroneously relied on Dr. Sanderford's statements. Therefore, the respondents contend that the ALJ applied the wrong legal standard insofar as he awarded benefits based on the opinions of Dr. Sanderford and Ms. Ruth. We disagree.
It is true that evidence of the claimant's inability to earn wages "sufficient to support his family" would not be sufficient, standing alone, to support an award of permanent total disability benefits. However, the claimant's inability to earn wages sufficient to support his family, constitutes some evidence of the claimant's impaired access to the labor market, and thus, is relevant to the issue of permanent total disability. Similarly, evidence the claimant is unable to perform work within his prior training or experience is relevant to whether there is employment reasonably available to the claimant. See Christie v. Coors Transportation Co., supra. Accordingly, even if Dr. Sanderford's October 17 report does not directly address whether the claimant is able to earn "any wages," the ALJ was not precluded from crediting Dr. Sanderford's opinions as some evidence in support of his finding that the claimant is permanently and totally disabled.
Similarly, insofar as Ms. Ruth relied on Dr. Sanderford's opinions, we are not compelled to conclude that either Ms. Ruth or the ALJ applied the wrong legal standard. To the contrary, the ALJ explicitly acknowledged the applicable legal standard by crediting Ms. Ruth's opinion that the claimant is unable to earn "any wages." Further, Dr. Sanderford's report dated September 18, 1997, contains Dr. Sanderford's opinion that the claimant is unable to perform any work. The ALJ could reasonably construe Dr. Sanderford's reports as reflecting his opinion that the claimant is "100 % disabled from any type of work." (Finding of Fact 6). Consequently, we are not persuaded the ALJ awarded permanent total disability benefits based upon a lower standard of proof than is required by § 8-40-201(16.5)(a).
Moreover, Ms. Ruth's opinions constitute substantial evidence to support the ALJ's finding of permanent total disability. We may not substitute our judgment for that of the ALJ concerning the credibility and probative value of the expert vocational evidence. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Therefore, we must uphold the ALJ's order. Section 8-43-301(8), C.R.S. 1998; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997).
IT IS THEREFORE ORDERED that the ALJ's order dated January 15, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, 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. 1998.
Copies of this decision were mailed September 22, 1998 to the following parties:
Joseph L. Stotts, 1806 — 13th St., Greeley, CO 80631
Einer, Inc. Ancon Construction, Inc., P.O. Box 392, Greeley, CO 80632
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Brad R. Irwin, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For the Claimant)
Thomas M. Stern, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701 (For the Respondents)
BY: _______________________