W.C. No. 4-172-301Industrial Claim Appeals Office.
June 13, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant is permanently and totally disabled as defined in §8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), and awarded benefits. We affirm.
The claimant sustained compensable injuries to her back and knee during an automobile accident on May 6, 1993. Crediting the opinion of vocational expert Rodney Wilson, the ALJ found that the claimant is unemployable because there are no employment opportunities which will accommodate her medical restrictions, including her need to keep her foot elevated. In so doing, the ALJ found that there is no suitable employment available to the claimant in Peyton, Colorado, where she resides.
On appeal, the respondents’ sole contention is the ALJ erroneously considered the claimant’s access to employment in her local community. The respondents argue that the claimant’s access to employment in the labor market where she resides is not a pertinent factor to be considered in determining whether a claimant is permanently and totally disabled under §8-40-201(16.5)(a). In support, the respondents cite Spady Brothers v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0895, February 6, 1997).
We rejected a similar argument by the Colorado Compensation Insurance Authority in Jones v S B Stagelines, Inc., W.C. No. 4-209-265, May 7, 1997. The respondents’ arguments do not persuade us to depart from our conclusions in Jones.
Consequently, we adhere to the position stated in Jones, and expressly incorporate that reasoning here.
The Court of Appeals has issued two diametrically opposed opinions concerning whether or not it is proper to consider the claimant’s local or “commutable” labor market under §8-40-201(16.5)(a). In Brush Greenhouse Partners v. Godinez,
___ P.2d ___ (Colo.App. No. 96CA0266, December 27, 1996), Erickson, J., dissenting, one division of the court held that a claimant’s ability to find employment in his “local community” is one of the “human factors” properly considered in determining permanent total disability. Godinez cited Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995), for the proposition that §8-40-201(16.5)(a) did not repeal the authority of ALJs to consider the human factors which were relevant prior to the enactment of the statute. Moreover, the Godinez court pointed out that, prior to SB-218, a claimant’s employability in the local labor market was a proper factor for consideration. See Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991) Gruntmeir v. Tempel Esgar, Inc., 730 P.2d 893 (Colo.App. 1986).
In Spady Brothers v. Industrial Claim Appeals Office, supra, Pierce, J., dissenting, another division of the court held that consideration of a claimant’s employability in the “commutable labor market” is not a proper factor for consideration under §8-40-201(16.5)(a). The court reasoned that the statute was enacted to develop a “stricter definition of permanent total disability.” Moreover, the court stated that the concept of a commutable labor market “does not lend itself to a workable definition or application,” and that the General Assembly could not have intended “that a claimant with exactly the same restrictions, injuries, education, and training would become totally disabled if he resides in a rural area, but only partially disabled if he resides in a metropolitan area.” Finally, the court stated that consideration of a claimant’s employability in his local labor market was a concept unsupported by legal authority until the announcement of Gruntmeir v. Tempel Esgar, Inc., supra.
In our view, Brush Greenhouse Partners v. Godinez represents the better reasoned decision, and therefore, we choose to follow it here. First, we disagree with the Spady Brothers court that the concept of a “commutable labor market” constitutes an unworkable “definition or application” in permanent total disability cases. To the contrary, ALJs have for some time been applying this standard under Prestige Painting and Decorating, Inc. v. Mitchusson, and Gruntmeir v. Tempel Esgar, Inc. In our view, ALJs are fully capable of making reasoned judgments concerning a claimant’s employability based on the physical restrictions, the claimant’s capacity to travel, the availability of transportation, and the scope of the labor market in the claimant’s community.
Moreover, we disagree with the Spady Brothers court’s contention that it could not have been the intent of the General Assembly to permit consideration of a claimant’s local labor market in determining whether the claimant is permanently and totally disabled. First, as the court itself concedes, Gruntmeir
permitted consideration of a claimant’s local labor market prior to the enactment of § 8-40-201(16.5)(a). Had the General Assembly wished to discontinue consideration of this factor, it could have said so in the statute. However, it did not. Consequently, we think it plausible to conclude that General Assembly did not intend to exclude consideration of this factor. See Best-Way Concrete Co. v. Baumgartner, supra (General Assembly was presumably aware, when it enacted § 8-40-201(16.5)(a), that permanent total disability was consistently determined based on interdependent factors, but failed to eliminate that analysis).
Neither do we agree with the Spady Brothers court that there is an inherent contradiction or unfairness which results from evaluating employability based on whether the claimant lives in a rural or urban area. Philosophically, this is no different than treating claimants differently based on their educational attainments. Education, like location, is a factor over which a claimant has some degree of control. Nevertheless, the Spady Brothers court does not purport to overrule Best-Way Concrete Co. v. Baumgartner insofar as that case allows consideration of a claimant’s individual educational level.
Further, there is a practical reason for differentiating between claimants who reside in rural and urban areas. As a general matter, claimants in urban areas have access to a larger labor market, and therefore, are more likely to find jobs within their restrictions. Conversely, claimants in rural areas typically confront smaller scale economics with fewer jobs. Thus, they face unusual barriers to reemployment following a disabling injury.
The effect of the Spady Brothers decision is to require injured workers in rural areas to expend permanent partial disability awards to move to urban areas in hopes of finding employment. Conversely, urban claimants need not expend their permanent partial disability awards in this fashion because they already reside in a favorable labor market. Needless to say, this result creates its own contradiction and unfairness, which would be amplified in cases where a claimant is required to sell real property and uproot a working spouse in order to move to an urban area. We do not consider this to be a just and reasonable result, and disagree with the Spady Brothers court’s conclusion that the General Assembly intended such a result. See McCallum v. Dana’s Housekeeping, ___ P.2d ___ (Colo.App. No. 96CA0459, October 24, 1996) (General Assembly intends statute to have a just and reasonable result); § 2-4-201(1)(c), C.R.S. (1980 Repl. Vol. 1B); § 2-4-203(1)(e), C.R.S. (1980 Repl. Vol. 1B) (it is proper to consider the consequences of a proposed construction).
Finally, although we agree with the Spady Brothers court that § 8-40-201(16.5)(a) was enacted to establish a stricter standard for permanent total disability, we disagree that the statute mandates the result reached in Spady Brothers. As evidenced b McKinney v. Industrial Claim Appeals Office, 894 P.2d 42
(Colo.App. 1995), § 8-40-201(16.5)(a) can be applied so as to reduce the likelihood of a permanent total disability award without excluding consideration of a claimant’s local labor market. In McKinney, a denial of permanent total disability benefits was upheld where the evidence demonstrated that the claimant was able to work only part-time, at or near the minimum wage. It is doubtful that permanent total disability benefits would have been denied under the standard of permanent total disability which existed prior to § 8-40-201(16.5)(a). Compare, Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995), aff’d., Christie v. Coors Transportation Co., ___ P.2d ___, (Sup.Ct. No. 96SC66, March 31, 1997).
Since we conclude that Brush Greenhouse Partners v. Godinez
is a better reasoned decision than Spady Brothers v. Industrial Claim Appeals Office, we choose to follow Brush Greenhouse Partners unless and until there is further direction from the Court of Appeals or the Supreme Court. It follows that the ALJ did not err in considering the claimant’s local labor market in finding that she is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 13, 1997 to the following parties:
Carol Ann Wolstenholm, 102 Cove Point Drive, Suffolk, VA 23434
Freedom Newspapers, Inc., 30 S. Prospect St., Colorado Springs, CO 80903-3638
Colorado Springs Gazette Telegraph, P.O. Box 26029, Lakewood, CO 80226
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Renee C. Ozer, Esq., 25 N. Cascade, Ste. 215, Colorado Springs, CO 80903 (For the Claimant)
Alan Epstein, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondents)
Tim Nemechek, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
By: ________________________________