IN THE MATTER OF THE CLAIM OF TIMOTEO ACUNA, Claimant, v. WINTER LIVESTOCK, INC., Employer, and CLARENDON NATIONAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-287-292Industrial Claim Appeals Office.
February 19, 1999.

FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his claim for permanent total disability benefits. We affirm.

On January 11, 1996, the claimant suffered a compensable low back injury arising out of his work as a laborer for Winter Livestock Inc. On November 19, 1996, Dr. Kinnett placed the claimant at maximum medical improvement with 15 percent whole person impairment. Based upon the results of a functional capacity evaluation (FCE), Dr. Kinnett restricted the claimant to sedentary work. Dr. Baron rated the claimant’s impairment as 21 percent of the whole person, and based upon a second FCE, opined that the claimant is capable of “light-medium” work.

As a result of the injury, the claimant is physically unable to perform the heavy labor required in his pre-injury employment. However, subsequent to the injury, the claimant performed painting and cleaning services in exchange for living accommodations and reduced rent in Rocky Ford, Colorado, where he temporarily resides.

Section 8-40-201(16.5)(a), C.R.S. 1998, 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). The term “any wages” refers to the claimant’s ability to earn more than zero wages. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995).

At the hearing on permanent total disability, the claimant’s vocational rehabilitation expert, Rodney Wilson (Wilson), testified that the claimant’s cleaning and painting “tasks” do not evidence an ability to earn wages in a competitive labor market. Therefore, Wilson opined the claimant is permanently and totally disabled. The respondents’ vocational expert, Kevin Shea (Shea), opined that the claimant is capable of earning wages in Rocky Ford and metropolitan areas where he previously resided.

Crediting the opinions of Dr. Baron and Shea, the ALJ determined that the claimant failed to prove that he unable to earn any wages. In support, the ALJ found that the term “any wages” includes earnings from part-time employment. The ALJ determined that the claimant’s janitorial and light maintenance work in exchange for living accommodations fell within “employment” and evidenced the claimant’s ability to earn “any wages.” Consequently, the ALJ denied and dismissed the claim for permanent total disability benefits.

On review, the claimant contends that the ALJ’s order is contrary to the weight of the evidence. The claimant contends the service he performed for the church was “voluntary.” Therefore, he argues that the evidence does not demonstrate an ability to earn “wages.” The claimant also contends the ALJ applied the wrong legal standard in determining his ability to earn wages. The claimant points out that the term “wages” refers to the money rate services are recompensed under the contract of hire, and that “wages” includes the reasonable value of “board, rent, housing and lodging” received from the employer. The claimant contends that the ALJ erred in failing to determine the reasonable value of the housing he received as required by § 8-40-201(19), C.R.S. 1998. We disagree.

Admittedly, employment which is purely charitable and not bona fide does not demonstrate the ability to earn wages. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997) Moller v. North Metro Community Services, W.C. No. 4-216-439
(August 6, 1998) (where claimant required family assistance to perform part-time child care, claimant’s income reflected earnings from personal services by the claimant’s family and not compensation for services rendered by the claimant). However, the question of whether the claimant has the ability to earn “any wages” within the meaning of § 8-4-201(16.5)(a) must be decided on a case by case basis and varies according to the particular abilities of the claimant. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Because the issue is factual in nature, we must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. 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).

Application of the substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Christie v. Coors Transportation Co. supra. Furthermore, on review we must view the evidence in the light most favorable to the prevailing party. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

The record is subject to conflicting inferences concerning whether the claimant’s painting and cleaning activities demonstrate the claimant’s ability to be hired and sustain employment where he can earn wages. Within her sole prerogative, the ALJ resolved the conflict in favor of Shea’s opinion that the claimant’s activities indicate that the claimant can earn “any wages.” See Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990) (ALJ is the sole arbiter of conflicting expert testimony).

The claimant contends that Shea’s opinion has no probative weight because he failed to conduct any market surveys in the metropolitan areas where he concluded the claimant is employable, and Shea was not aware the claimant is medically restricted from bending. Again we disagree.

The fact that Shea did not conduct labor market surveys in the metropolitan areas where the claimant previously resided goes to the weight of Shea’s opinion, but did not preclude the ALJ from crediting his testimony that the claimant is capable of earning wages. Furthermore, even if the claimant is restricted to sedentary employment, Shea opined that the claimant is capable of earning wages. (Tr. p. 86). Shea testified that sedentary employment is available to the claimant in Rocky Ford as a van driver and sewing machine operator at a jean factory. (Tr. pp. 75, 76). Consequently, the fact that Shea was not aware the claimant was medically restricted from bending did not render his testimony incredible as a matter of law.

We also reject the claimant’s contention that under the ALJ’s analysis, a claimant who performs any chore for his family will be deemed capable of earning wages. Rather, the ALJ merely determined that based upon the particular facts of this case the claimant did not establish his inability to earn wages.

The claimant’s remaining arguments have been considered and do not alter our conclusions. The ALJ resolved the conflict between Dr. Kinnett and Dr. Baron in favor of Dr. Baron’s opinion that the claimant is capable of light-medium work, and the ALJ was not required to explicitly cite Dr. Kinnett’s opinion before rejecting it as unpersuasive. See Metro Moving Storage Co. v. Gussert, supra; Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988) Consequently, the ALJ’s failure to make specific findings concerning Dr. Kinnett’s opinions does not establish grounds for disturbing her decision.

Further, the ALJ was not persuaded that the claimant’s limited English speaking skills preclude him from earning wages. This finding is supported by substantial, albeit conflicting evidence, and therefore must be upheld. (Tr. pp. 20, 23, 54, 77).

Finally, the claimant testified that his rent was discounted $70 in exchange for cleaning his brother’s house. (Tr. p. 18). He also admitted that he cleaned the church in exchange for a place to live. Consequently, there is substantial evidence in the record to support the ALJ’s finding that the painting and cleaning were performed in exchange for something of value and were not “voluntary.”

Moreover, because the term “wages” includes housing, the ALJ could, and did, reasonably infer that the claimant’s activities reflected the ability to earn “wages.” Since the term “any wages” refers to any amount over zero, the ALJ was not required to determine the reasonable value of the living accommodations the claimant received. That determination is only required in calculating the average weekly wage. See section 8-42-102 C.R.S. 1998; Meeker v. Provenant Health Partners, 929 P.2d 26 (Colo.App. 1996).

IT IS THEREFORE ORDERED that the ALJ’s order dated May 19, 1998, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

________________________________ Kathy E. Dean
________________________________ Bill Whitacre

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 February 19, 1999
to the following parties:

Timoteo Acuna, PO Box 735, Rocky Ford, CO 81067

Winter Livestock Inc., PO Box 308, La Junta, CO 81050-0308

Clarendon National Ins. Co., c/o Frontier Risk Management, PO Box 1375, Denver, CO 80201

Kathy Genoff, McMillan Claim Service, 2785 North Speer Boulevard, Denver, CO 80211

Renee C. Ozer, Esq., 25 N. Cascade, Suite 215, Colorado Springs, CO 80903 (For Claimant)

Daniel L. Rosenberg, Esq., 102 S. Tejon, Suite 600, Colorado Springs, CO 80903 (For Respondents)

BY: ________________