FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ) which denied his claims for permanent total disability benefits, and medical benefits beyond maximum medical improvement. We affirm the order in part, set aside the order in part, and remand the matter for additional findings.
The claimant suffered an admitted right upper extremity injury on May 1, 1989. In a report dated November 11, 1993, Dr. Evans reported that the claimant reached maximum medical improvement (MMI) with a 24 percent permanent impairment of the upper extremity, which he converted to 14 percent impairment of the whole person. Dr. Evans also recommended various permanent medical restrictions.
Based upon Dr. Evan's opinion, the ALJ found that the claimant failed to establish the need for ongoing medical benefits. The ALJ also found that the claimant failed to sustain his burden to prove that he is permanently and totally disabled. In so doing, the ALJ rejected the opinions of vocational rehabilitation consultant Tonya Wheatley-Herman, and credited the contrary opinions of vocational rehabilitation consultant Judy Kaye. The ALJ found that the claimant is employable as a cashier, sales clerk, delivery driver, or hotel/motel desk clerk. The ALJ further determined that the claimant's physical ability to perform these occupations is supported by the claimant's fishing, hunting, lawn mowing, and vacuuming activities.
I.
On review, the claimant first contends that the ALJ erred in denying the claim for permanent total disability benefits. In support, the claimant cites his testimony that he was unable to secure employment. The claimant also relies upon Ms. Wheatley-Herman's testimony that the claimant is unemployable without vocational rehabilitation. The claimant's arguments do not establish any reversible error in the ALJ's decision.
Under the law applicable to this claim, "permanent total disability" exists when the claimant has lost and will not regain efficiency in some substantial degree in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940) . The resolution of this question is one of fact for the ALJ. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). Consequently, we must uphold the ALJ's determination that the claimant is not permanently and totally disabled if it is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Furthermore, the substantial evidence test requires that we defer to the ALJ's credibility determinations and the plausible inferences which she drew from the evidence she deemed persuasive. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The evidence in the record could have supported different inferences. However, the ALJ resolved the conflicts in the evidence by crediting the opinions of Ms. Kaye, and we may not interfere with that determination. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Moreover, because Ms. Kaye's testimony supports the ALJ's conclusion that the claimant is not permanently and totally disabled, we must uphold the ALJ's award of permanent partial disability benefits, as opposed to permanent total disability benefits. Consequently, we do not address the claimant's arguments concerning evidence in the record which, if credited, might support a contrary result. See Cary v. Chevron U.S.A., Inc. 867 P.2d 117 (Colo.App. 1993); F. R. Orr Construction v. Rinta, supra.
We also reject the claimant's assertion that the ALJ erroneously relied upon evidence of the claimant's personal activities in finding that the claimant is capable of sustaining employment in the competitive labor market. It is not implausible to infer that the claimant's ability to deer hunt, fish, mow, and vacuum reflects a physical ability to perform the "light" or "sedentary" employment described by Ms. Kaye. See Tr. October 27, 1994, pp. 13, 21, 22; Tr. February 17, 1995, pp. 23, 42. Therefore, we may not disturb the ALJ's inference. See Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ's inferences were permissible ones in light of the totality of the circumstances).
II.
The claimant also contends that the ALJ erroneously denied his claim for further medical benefits. The claimant argues that he "may" require neuromuscular massage for spasms and headaches in the neck and head region. He also asserts that he suffers from depression and alcohol abuse as a direct result of the industrial injury, and needs continuing medication prescribed by Dr. Martin to treat these conditions. We conclude that the ALJ's findings of fact are insufficient to permit appellate review of this issue, and therefore, set aside the ALJ's order concerning medical benefits and remand the matter for additional findings.
The claimant is entitled to medical benefits beyond MMI where there is substantial evidence that "but for a particular course of medical treatment, [his] condition can reasonably be expected to deteriorate, so that he will suffer greater disability than he has sustained thus far." Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). The Milco court also held that where the record supports an award of continuing medical benefits, the ALJ should enter a "general order" similar to the order entered in Grover, which required the respondent to "pay for the necessary and reasonable medical surgical and hospital expenses to cure and relieve the effects of the Claimant's injury and/or prevent his present condition from deteriorating." Milco Construction v. Cowan, 860 P.2d at 542.
In denying the claim for further medical benefits the ALJ made the following finding of fact:
"[W]ith regard to future medical benefits, Dr. Evans has indicated that the Claimant is not in need of physical therapy or surgery, but instead should perform a home exercise program. Therefore, the preponderance of the evidence does not establish that the Claimant is in need of ongoing medical treatment to maintain his condition. In the event the Claimant has a flare up in symptoms, that will need to be addressed at that time."
Dr. Evan's November 11 report states:
"With regard to future treatment, I do not anticipate any surgery or physical therapy at the present time. I would maintain him on a home exercise program and perform periodic stretching to the upper extremity to prevent further loss of range of motion. If he has any signs of future instability, he may require surgery; however, on today's examination, I could not appreciate any instability. He may additionally require some neuromuscular massage for spasms and headaches in the neck and head region." (Emphasis added).
We agree with the ALJ that Dr. Evan's November 11 report supports a conclusion that at the time of the hearing, the claimant failed to establish a need for further therapy. However, neither Dr. Evan's November 11 report, nor his earlier report of September 16, 1993, address the claimant's treatment for depression or alcohol abuse. Therefore, we cannot say that the ALJ's reliance on Dr. Evan's opinion reflects the ALJ's implicit determination that the claimant failed to prove a need for further medication to treat depression and alcohol abuse.
Furthermore, the claimant expressly requested further medication and presented some evidence in support of his request. Tr. October 27, 1994, pp. 6, 7, 12. The evidence is subject to conflicting inferences, and the ALJ did not make any specific findings concerning this evidence. Therefore, the ALJ's findings of fact are insufficient to ascertain whether the ALJ correctly denied the claim for all further medical benefits.
On remand the ALJ must resolve the conflicts in the evidence concerning the claim for ongoing medication. If the ALJ determines that the claimant has established a need for ongoing medical benefits in the form of antibuse, Trazon or Zoloft medication, the ALJ shall issue specific findings of fact in support of that determination and enter a general order for ongoing medical benefits. Conversely, if the ALJ determines that the claimant failed to sustain his burden for ongoing medical benefits in this regard, she may enter an order denying Grover medical benefits.
IT IS THEREFORE ORDERED that the ALJ's ordered dated March 7, 1995, is affirmed insofar as the ALJ denied the claim for permanent total disability benefits.
IT IS FURTHER ORDERED that the ALJ's order denying the claim for further medical benefits is set aside, and the matter is remanded for additional findings and the entry of a new order on this issue, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed September 1, 1995 to the following parties:
Mark Ulrich, 1277 County Road 230, Walsenberg, CO 81089
Carl Hergenreder, 31539 WCR 50, Kersey, CO 80644
Transamerica Insurance Co., Attn: Pat McCabe, P.O. Box 17005, Denver, CO 80217-0005
Karl A. Schulz, Esq., 102 S. Tejon St., Ste. 1100, Colorado Springs, CO 80903-2264
James A. May, Esq., 1401 Court St., Pueblo CO 81003 (For the Claimant)
BY: _______________________
Comments