FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) dated September 23, 2008 that awarded the claimant permanent total disability (PTD) benefits. We affirm.
The claimant worked for the employer as a truck driver and sustained an admitted work-related injury to his low back on May 12, 2004. The authorized treating physician placed the claimant at maximum medical improvement in 2007 with an admitted impairment rating of 14 percent of the whole person. The ALJ found that the claimant proved by the preponderance of the evidence that he was unable to earn any wages in his previous employment or other employment. The ALJ concluded that the claimant was permanently and totally disabled and ordered the payment of PTD benefits. The respondent brings this appeal contending that the order is not supported by substantial evidence and should be reversed.
We first note that the claimant is permanently and totally disabled if he is "unable to earn any wages in the same or other employment." The claimant bears the burden of proof to establish permanent total disability. Section 8-40-201(16.5)(a), C.R.S. 2008. These issues are factual in nature. Consequently, we are bound by the ALJ's findings of fact that are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Furthermore, in applying the substantial evidence test, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and the plausible inferences the ALJ drew from the record. Monfort, Inc, v. Rangel, 867 P.2d 122 (Colo.App. 1993).
I.
The respondent generally argues that the ALJ erred in relying upon the opinion of the claimant's vocational expert in awarding PTD benefits. The respondent sets forth three reasons for its contention that reliance on the opinions of the vocational expert constitutes error. The respondent's arguments involving the ALJ's reliance on the vocational expert's opinions involve the following findings of fact made by the ALJ:
Vocational expert, Doris Shriver, OTR, testified for claimant. Ms. Shriver opined as follows. Due to chronic pain, lower body weakness and impaired tolerance of work activities, claimant is no longer able to work as a truck driver. Claimant has lifting tolerance at the sedentary physical demand level, but he cannot perform sedentary work because of his pain and his limitations on sitting. Claimant is functioning below the sedentary physical demand level. Claimant has an impaired tolerance for sit, stand and work postures. Claimant has to change positions frequently. Claimant cannot do a full range of sedentary work. Claimant does not have transferable skills. Claimant cannot sustain work at any physical demand level due to severe chronic pain that affects him physically, mentally and emotionally. Claimant is not employable and is not able to earn any wages in claimant's commutable labor market. The ALJ credits these opinions of Ms. Shriver. These opinions of Ms. Shriver are well explained, persuasive, reasonable, supported by the medical record and supported by the credible testimony of claimant.
Findings of Fact, Conclusions of Law, and Order at 3, ¶ 7.
The respondent first argues that the ALJ erred in determining that the medical record supported the vocational expert's opinion that the claimant had chronic pain and mental and emotional limitations. The respondent maintains that in fact the vocational expert's opinion was based on unsupported assumptions contrary to the actual opinions from the physicians involved in the case because no medical provider has opined that the claimant has a mental impairment. The claimant concedes that no physician had indicated that the claimant suffered from a ratable psychological impairment.
However, in our opinion there is record support for the ALJ crediting the vocational expert's opinion that the claimant could not sustain work due to severe chronic pain that affected the claimant. The medical record reveals that the claimant was seen by Dr. Nelson for chronic lower back pain following his laminectomy. Exhibit H at 81. Dr. Nelson's impression was that the claimant suffered severe debilitating centralized low back pain with secondary sleep disruption. Exhibit H at 75. Dr. Nelson found persistent chronic low back and leg pain with abundant pain behaviors. Exhibit H. at 61. Dr. Nelson referred the claimant to Dr. Cohen, a consulting psychologist, for pain management in relation to a long-term work injury and related persistent low back pain. Exhibit I at 100-01. Dr. Cohen did express the opinion that there were no indications for a ratable psychological impairment. Exhibit I at 95. However, we do not read Dr. Cohen's reports as compelling the conclusion that this meant the claimant did not suffer from pain or that the pain did not affect the claimant. The respondent points to other portions of the medical record and even portions of Dr. Nelson's and Dr. Cohen's reports, casting doubt on the extent or legitimacy of the complaints of pain. However, to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The ALJ found that the opinions of the vocational expert were not only supported by the medical record, but by the credible testimony of the claimant. The ALJ made with record support the following findings of fact regarding the claimant's testimony. The claimant has physical limitations and daily severe pain and due to the pain, the claimant has difficulty sleeping and has to take a nap during the day to make up for the loss of sleep at night. Tr. at 15-21. The claimant has to lie down at least one to two hours per day. Tr. at 17. The pain has impacted his ability to live a functional and productive life. Tr. at 18-22. The claimant now has increased difficulty participating in daily hygiene tasks, household tasks and leisure activities. Tr. at 18-20. The claimant is dependent on his wife for assistance with financial and household management. Tr. at 18, 22.
Here, the ALJ found credible the opinion that the claimant could not sustain work due to severe chronic pain that affects the claimant physically, mentally and emotionally. The record contains substantial evidence supporting this finding. The vocational expert for the claimant expressed the opinion that the claimant's low back injury left him with chronic pain, poor spinal range of motion and strength limitations that subsequently impair his ability to sit, stand and walk. Exhibit 11 at 32-33. The vocational expert concluded that the claimant's impaired tolerance of work posture makes him unemployable and he cannot sustain work at any physical demand level due to severe chronic pain that affected him physically, mentally and emotionally. Exhibit 11 at 32-33. The material reviewed by the vocational expert, including medical reports and the information supplied by the claimant regarding his own view of his limitations, supports the expert's conclusion. Other conclusions certainly could be reached. We note that the respondent's vocational expert opined that the claimant was employable. However, the ALJ found this opinion unpersuasive. 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).
In our view, there is substantial evidence in the record to support the conclusion that the claimant suffers from chronic pain and that pain has an effect on the claimant. We reject the contention that in order for the ALJ to reach this conclusion there must be a medical opinion in the record sufficient to establish a compensable mental impairment pursuant to the requirements of § 8-41-301(2)(a) C.R.S. 2008. We therefore do not accept the proposition that the ALJ had to make a threshold determination that the claimant had a compensable mental impairment claim in order to determine that his injury and subsequent residual pain had an effect on the claimant and his ability to earn any wages in the same or other employment. In our view, it is within the discretion of the ALJ to make a determination that chronic pain has a physical mental and emotional impact on the claimant's ability to perform work activities.
Further, in making a PTD determination, the ALJ may consider the effects of the industrial injury in light of the claimant's human factors, including, inter alia, 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); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). The crux of the test is the "existence of employment that is reasonably available to the claimant under his or her particular circumstances." Weld County School District RE 12, 955 P.2d at 558; Joslins Dry Goods Co. v. Industrial Claim Appeals Office 21 P.3d 866 (Colo.App. 2001). Here the ALJ considered these factors, including the effect of the claimant's work-related pain on his ability to work in reaching his conclusion that the claimant was entitled to PTD benefits. We perceive no reason to interfere in that decision.
The respondent next argues that the ALJ reliance on the opinions of the vocational expert was in error because the vocational expert lacked expertise to conclude that the claimant lacked the ability to think clearly and that he was affected mentally by his injury. The respondent again argues that there was a failure to establish a compensable mental impairment claim pursuant to § 8-41-301(2)(a). The respondent points out that the authorized treating physician placed the claimant at MMI without any mental impairment rating and without objection from the claimant. As noted above, we reject the contention that the claimant must be found to have a compensable mental impairment under § 8-41-301(2)(a) before his injury and residual pain may be found to affect his ability to earn any wages in the same or other employment.
Here, the claimant's vocational expert arranged for a functional capacity evaluation of the claimant and also tested his academic and vision concentration and memory. Tr. at 58, 71. The expert testified without objection regarding the results of this evaluation. Tr. 71-85. The expert noted the effects of severe chronic pain on his ability to mentally and emotionally perform as a worker. Tr. at 85. This is in addition to the substantial evidence as noted above supporting the ALJ's conclusions.
The claimant is only required to prove permanent total disability by a preponderance of the evidence. See Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 27, 1994). Permanent total disability need not be proven by medical evidence. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997); Calvert v. Roadway Express, Inc., W. C. No. 4-355-715 (November 27, 2002). Here, the ALJ relied upon medical evidence, the opinions of the claimant's vocational expert and the testimony of the claimant. The opinions of the claimant's vocational expert also relied in part on the medical evidence and representations made by the claimant. We perceive no reversible error in the ALJ's crediting the vocational expert's opinion that the claimant could not sustain work due to severe chronic pain that affected the claimant.
The respondent finally argues that the ALJ's reliance on the opinions of the vocational expert constituted error because the ALJ thereby based the award of PTD benefits upon a significant causative factor, which was not a compensable component of the injury. Citing Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986), the respondent argues that the claimant must prove that the industrial injury is a significant causative factor in the disability. The respondent argues that because the ALJ specifically cited the opinions of the claimant's vocational expert involving claimant's mental and emotional conditions and his perception of his chronic pain, that these conditions were the significant causative factors in the ALJ's determination of the claimant's permanent total disability. As noted above we cannot say that the ALJ erred in determining that the claimant's injury and subsequent residual pain had an effect on the claimant and his ability to earn any wages in the same or other employment."
Further, the claimant is not required to prove that the industrial injury is the sole cause of his permanent total disability. See, e.g., Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962) (if personal factors, such as pre-existing mental or physical condition, combine with work-related injury or disease to render worker permanently and totally disabled, claimant entitled to PTD benefits). Here, the ALJ included the claimant's human factors in reaching his decision. The ALJ considered the claimant's age, work history, general physical condition, mental ability and education and awarded the claimant PTD benefits. As noted above there is substantial evidence supporting the ALJ's finding that as a result of his work-related injury the claimant had physical limitations and daily severe pain. We do not accept the respondent's position that the record compels the conclusion that the ALJ falsely assumed the existence of a mental condition and a perception of pain as a result of that mental condition.
II.
The respondent next contends that the ALJ's conclusion that the claimant is motivated to find employment is not supported by evidence in the record. The ALJ found that claimant would like to return to work, but his ability to work is impaired by pain, fatigue and an impaired ability to concentrate. The respondent cites evidence questioning the claimant's motivation. However, we do not agree that the ALJ's determination is wholly unsupported by any evidence.
The report from the claimant's vocational expert was received into evidence and it was noted in that report that the claimant enjoyed his job and was hopeful that he could return to it. Exhibit 11 at 29. The claimant did testify that he liked working for the employer. Tr. at 15. The vocational expert for the respondent testified that the claimant attempted to return to work after his surgery and that would indicate motivation on his part. Beil Depo. at 38. The vocational expert for the claimant testified that a failed attempt at returning to work indicates positive motivation. Tr. at 81. We must uphold the ALJ's resolution if supported by substantial evidence in the record. § 8-43-301(8). In our opinion, there is such substantial evidence in the record. We have considered the respondent's other contentions, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
IT IS THEREFORE ORDERED that the ALJ's order issued September 23, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
PHILIP FREDERICK, GRAND JUNCTION, CO, (Claimant).
KILLIAN, JENSEN DAVIS, PC, Attn: JOANNA C JENSEN, ESQ., JUNCTION, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: CHRISTIN B WILLIAMS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: MR. JEAN FRANCOIS, LEXINGTON, KY, (Other Party).