W.C. No. 4-152-227Industrial Claim Appeals Office.
December 20, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which awarded the claimant permanent total disability benefits. We affirm.
The ALJ made the following findings of fact. The claimant sustained a compensable injury to her left hand in October 1992. The claimant underwent surgery and extensive medical treatment, and has been “unable to work” since the date of the injury. The claimant cannot use her left upper extremity for grasping, and experiences pain and loss of sensitivity.
Moreover, the ALJ found that the claimant resides in a remote community in northeast Colorado. Crediting the testimony of the claimant’s vocational expert, the ALJ found that the nearest city where the claimant could find employment is Greeley, Colorado, sixty to sixty-five miles away from the claimant’s home. However, the ALJ found that the claimant is not able to commute to Greeley because the residual effects of the industrial injury impair her ability to drive.
Under these circumstances, the ALJ concluded that the claimant is permanently and totally disabled. The ALJ explicitly stated that due to the injury, geographic residence, and limited ability to drive, the claimant is unable to “obtain any wages or employment.”
On review, the respondents contend that the ALJ erred in awarding permanent total disability benefits to the claimant “simply because she resides in a remote community.” The respondents argue that the proper test, established by § 8-40-201(16.5)(a), C.R.S. (1995 Cum. Supp.), is whether the claimant can earn “any wages in the same or other employment.” The respondents assert that the ALJ unlawfully modified the statutory definition to read that permanent total disability is based on to the claimant’s ability to earn any wages within the claimant’s “commutable labor market.” The respondents argue that this modification is contrary to the statute’s plain language, as well as the legislative intent which underlies it. We reject these arguments.
The Court of Appeals has held that the question of whether the claimant has the “ability” to earn “any wages” is one of fact for determination by the ALJ. Christie v. Coors Transportation Co.,
___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995). Consequently, the ALJ’s finding of permanent total disability must be upheld if supported by substantial evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
Moreover, the respondents’ assertion that the 1991 amendments to the Act, which resulted in the adoption of § 8-40-201(16.5)(a), extinguished all prior definitions of permanent total disability, including references to the claimant’s ability to earn wages in the open labor market, is only partially correct. It is true that § 8-40-201(16.5)(a) now “defines” permanent total disability. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). However, in Best-Way Concrete Co. v. Baumgartner, ___ P.2d ___ (Colo.App. 95CA0290, November 24, 1995), the Court of Appeals held that the enactment of § 8-40-201(16.5)(a) did not eliminate the ALJ’s right to consider the “human factors” which were relevant to determinations of permanent total disability prior to the 1991 amendments. The Baumgartner court stated that it must be assumed that the General Assembly was aware “in 1991 that permanent total disability had been consistently determined based on various interdependent factors, only one of which was medical impairment.” Therefore, the court concluded that had the General Assembly “intended to eliminate that analysis, it would have expressly done so in the legislation defining permanent total disability.”
Here, the respondents concede that the availability of employment in the claimant’s local labor market was a factor which the ALJ could consider prior to the 1991 amendments. 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 view of the court’s holding in Baumgartner, we conclude that it remains appropriate for ALJs to consider the claimant’s access to employment in the labor market where she resides.
Moreover, we do not believe this result is inherently inconsistent with the legislative intent underlying § 8-40-201(16.5)(a). First, there is no express language in the statute which directs ALJs to consider claimants’ “regional or national labor markets” in determining whether the claimants retain the hypothetical ability to earn wages if they move to another area. In fact, we note that § 8-42-111(3), C.R.S. (1995 Cum. Supp.), provides that a “disabled employee capable of rehabilitation . . . who refuses an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability.” This statute suggests that the General Assembly contemplated awards of permanent total disability for injured workers who possess the theoretical ability to be rehabilitated and earn wages, but are not provided the necessary rehabilitation. Thus, the General Assembly must have intended ALJs to look at claimants’ actual circumstances, not the circumstances which might exist if the claimants obtained more education, greater job skills, or lived in other locations.
The respondents have also placed great reliance on McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995), for the proposition that a claimant’s inability to drive to her place of employment is immaterial when determining disability. However, McKinley involves a termination of temporary total disability benefits under the express provisions of §8-42-105(3)(c), C.R.S. (1995 Cum. Supp.). That statute in no way suggests that the circumstances justifying termination of temporary disability benefits define a claimant’s entitlement to permanent total disability benefits under other sections of the statute. Moreover, the claimant i McKinley was released to perform the duties of her regular employment. Here, the claimant is permanently precluded from performing the duties of her regular employment.
The respondents’ argument notwithstanding, the record contains substantial evidence that, in view of the effects of the claimant’s injury and her personal circumstances, she is unable to earn wages in any employment. Therefore, the order must be upheld. Christie v. Coors Transportation Co., supra. Insofar as the respondents have made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order, dated May 2, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 20, 1995 to the following parties:
Deborah Louise Bymer, P.O. Box 55, Grover, CO 80729
Weld County School District RE-12, Attn: Margaret Burnett, P.O. Box 38, Grover, CO 80729
Colorado Compensation Insurance Authority, Attn: D. Thomas, Esq. (Interagency Mail)
Miguel Martinez, Esq., 1102 5th St., Ste. A, Greeley, CO 80631
(For the Claimant)
John V. FitzSimons, Esq., 3464 S. Willow St., Denver, CO 80231-4599
(For the Respondents)
By: _________________________