IN RE BACA, W.C. No. 4-228-201 (3/5/97)


IN THE MATTER OF THE CLAIM OF FERNANDO BACA, Claimant, v. CITY AND COUNTY OF DENVER, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 4-228-201Industrial Claim Appeals Office.
March 5, 1997

FINAL ORDER

The respondent seeks review of an order of Administrative Law Judge Snider (ALJ), which determined that the claimant is unable to earn any wages in the same or other employment, and thus, is permanently and totally disabled as defined by §8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.). We affirm.

The claimant was employed as a custodian for the City and County of Denver (City) on September 7, 1994, when he suffered a compensable left knee injury. At the time of the injury the claimant was concurrently employed as a part-time custodian for Quality Distributing.

Following the injury, the claimant returned to his employment. However, the ALJ found that the claimant’s condition gradually deteriorated, and by July 1996 he was physically unable to perform the duties required of his employment at the City and Quality Distributing.

At the time of the hearing the ALJ found that the claimant’s physical problems included pain and soreness in his knees, loss of balance, blurred vision in the right eye, impaired hearing on the right side, and numbness and tremors in both hands. The ALJ also determined that the claimant has restricted movement of his left hand, arthritis and a right rotator cuff impingement syndrome. Crediting the opinions of Dr. Flood, the ALJ determined that the claimant is restricted from walking more than twenty minutes, standing more than ten minutes, sitting over one hour, walking on uneven or icy grounds bending, kneeling, and stooping. Dr. Flood also indicated that the claimant should alternate positions every thirty minutes and is limited to less than an eight hour workday.

Based upon these findings, and crediting the opinion of vocational rehabilitation expert, Dr. Mark Litvin (Litvin), the ALJ determined that the claimant is unable to earn wages in his pre-injury employment or any other employment. In reaching this determination, the ALJ expressly rejected the respondent’s argument that the claimant’s work at Quality Distributing evidenced an ability to earn wages. Instead, the ALJ relied upo Rio Grande Motor Way, Inc. v. DeMerschman, 68 P.2d 446
(Colo. 1937), to find that the job at Quality Distributing was “gratuitous employment created solely on the basis of family ties and dependent on the family relationship for its continuance,” which bore “no relationship to the labor market.”

On review, the respondent contends that the ALJ’s finding that the claimant is unable to “earn any wages” is not supported by substantial evidence in the record, and the applicable law. In support, the respondent cites evidence that the claimant is physically capable of sedentary work. The respondent also contends that the ALJ erroneously credited the opinions of Dr. Flood over the opinions of Dr. Dietz and Dr. Senicki because Dr. Flood did not explain the medical basis for the claimant’s medical restrictions, and did not treat the claimant’s “overall condition.” Furthermore, the respondent renews its argument that the claimant’s work for Quality Distributing establishes the claimant’s ability to earn wages. We reject these arguments.

The determination of whether the claimant is capable of earning wages is a factual determination for the ALJ, which must be upheld if supported by substantial evidence in the record Christie v. Coors Transportation Co., 919 P.2d 857
(Colo.App. 1995), cert. granted, July 1, 1996 McKinney v. Industrial Claim Appeals Office, 894 P.2d 42
(Colo.App. 1995). In applying the substantial evidence test, we must defer to the ALJ’s credibility determinations, and his assessment of the sufficiency and probative weight of the evidence, including expert medical and vocational evidence Christie v. Coors Transportation Co., supra; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, where the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to determine what inference is to be drawn. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

As argued by the respondent, the record contains evidence which, if credited, might support a finding that the claimant is physically capable of performing sedentary employment. However, the ALJ was persuaded by the contrary opinions of Dr. Litvin. In his report of June 24, 1996, Dr. Litvin opined that the medical restrictions imposed by Dr. Flood “would limit [the claimant] to much less than a full range of sedentary demand work, and in fact, Dr. Flood indicates that [the claimant] is no longer capable of any work on an ongoing basis.” Dr. Litvin also testified that his conclusions are supported by the claimant’s Functional Capacity Evaluation. (Tr. August 21, 1996; pp. 18, 21).

Admittedly, in assessing the probative value of the medical evidence the ALJ was free to consider whether Dr. Flood adequately explained the basis for the restrictions she imposed. However, the medical restrictions imposed by Dr. Flood are consistent with the claimant’s physical complaints, and are supported by the July 18, 1996 Functional Capacity Evaluation See (Tr. August 8, 1996, pp. 40-41). Consequently, we cannot say that the ALJ erred in crediting Dr. Flood’s opinions See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).

Moreover, the ALJ did not find that Dr. Flood treated the claimant’s “overall condition.” Rather, we understand the ALJ to have found that Dr. Flood’s restrictions were more persuasive than the restrictions imposed by Dr. Dietz. and Dr. Senicki, because Dr. Flood’s medical restrictions relate to the claimant’s overall condition. (Finding of Fact 9). This a plausible interpretation of the record, and therefore, is binding on review. See (Tr. August 21, 1996, pp. 27-28, 33).

Lastly, we reject the respondent’s argument that the ALJ erred in failing to find that the claimant’s work at Quality Distributing evidenced the claimant’s ability to “earn wages.” Nor do we perceive any reversible error in the ALJ’s reliance o Rio Grande Motor Way, Inc. v. DeMerschman, supra.
Rio Grande involves a claimant who suffered severe burns in an industrial explosion. The injuries severely limited the claimant’s physical abilities. Due to the employer’s sense of “moral responsibility,” and because, the claimant’s brother was the employer’s president and general manager, continuing employment was made available to the claimant by the employer. However, the Supreme Court concluded that this employment had no relation to “earning power,” and was a “mere gratuity” which “in all probability would vanish” in the absence of the brother. 69 P.2d at 447. Consequently, the Supreme Court concluded that the claimant’s post-injury employment with the employer was not inconsistent with a finding that the claimant was permanently and totally disabled. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995) [prior to the 1991 enactment of § 8-40-201(16.5) a claimant was permanently totally disabled if he lost and would not regain efficiency in some substantial degree as a working unit in the fields of general employment].

Here, the claimant testified that he was hired to work at Quality Distributing by his son, who is a manager at Quality Distributing. (Tr. p. 28). Implicitly crediting the testimony of the claimant and his son, the ALJ found that the claimant was only required to work three or four hours a week for Quality Distributing, but was paid for twenty hours a week and received certain fringe benefits. See (Tr. August 8, 1996, pp. 29, 42, 48, 52). The claimant’s son testified that this was a “very unique” job which would not have been offered to just anyone, but was a “family type affair,” because Quality Distributing a very “family-oriented type of company.” (Tr. August 21, 1996, p. 49).

The claimant’s witnesses further testified that between March and July 1996, the custodial work at Quality Distributing was performed by the claimant’s daughter and grandson, even though the wages were paid to the claimant. (Tr. August 8, 1996, pp. 28, 30-31, 55, 64, 66, 67; August 21, 1996, 93). Based upon this evidence, the ALJ could, and did find that the facts of this claim are similar to the facts in Rio Grande, insofar as the claimant’s job at Quality Distributing would not be available absent the special family arrangement between the claimant and his son. (Discussion and Conclusions of Laws 3). As held in Best-Way Concrete Co. v. Baumgartner, supra,
the focus of § 8-40-201(16.5)(a) is on the ability to earn wages, and income from alternative sources such as investments or charity does not necessarily constitute wages. See also Montoya v. Pueblo School District No. 60, W.C. No. 4-143-577, January 20, 1995 (fact that claimant received some income from babysitting did not preclude award of permanent total disability benefits where services were frequently performed by claimant’s family).

However, Rio Grande is factually distinguishable insofar as the ALJ found that the part-time custodial job at Quality Distributing did not exist after July 1996. See
(Tr. August 8, 1996, p. 32; August 21, 1996, pp. 48, 50). Moreover, the ALJ found that at the time of the hearing the claimant was physically unable to perform the duties of the custodial work at Quality Distributing. Thus, the ALJ’s findings of fact support the conclusion that the claimant is not able to earn wages at Quality Distributing.

Under these circumstances, it is immaterial whether the claimant’s prior work at Quality Distributing was “gratuitous employment,” because the ALJ determined as a matter of fact that such employment exceeds the claimant’s physical abilities at the time of the hearing. Therefore, assumin arguendo that the ALJ erroneously relied on Rio Grande, the error was harmless and will be disregarded. Section 8-43-310 C.R.S. (1996 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).

The respondent’s remaining arguments have been considered and are not persuasive. Therefore, the respondent’s have failed to establish grounds which afford us a basis to interfere with the ALJ’s award of permanent total disability benefits.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 20, 1996, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain
______________________________ Kathy E. Dean

NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).

Copies of this decision were mailed March 5, 1997 to the following parties:

Fernando Baca, 3971 West Kentucky Ave., Denver, CO 80219

City and County of Denver, 110 16th St., Denver, CO 80202-5202

City County of Denver, Attn: Richard Uhrlaub, 1445 Cleveland Pl., Room 200, Denver, CO 80202-5306

Daniel E. Muse, Esq. Evelyn B. Makovsky, Esq., City County of Denver, 1445 Cleveland Place, Rm. 200, Denver, CO 80202-5306

Michael S. Krieger, Esq., 3333 S. Bannock St., Ste. 888, Englewood, CO 80110 (For the Claimant)

BY: _______________________________