W.C. No. 4-222-069Industrial Claim Appeals Office.
September 17, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which denied permanent total disability benefits. We affirm.
The claimant is a resident of Pueblo, Colorado. It is undisputed that on July 21, 1994, the claimant suffered a compensable right shoulder injury while working for MG Concrete Inc. in Denver, Colorado. The claimant reached maximum medical improvement on October 16, 1995, with permanent restrictions against lifting over 10 pounds, using a ladder, pushing or pulling over 25 pounds, and reaching or doing overhead work with his right arm. As a result of these restrictions, the claimant is precluded from returning to his pre-injury employment.
From conflicting vocational evidence the ALJ found that the claimant is capable of earning wages as a delivery driver, janitor, and shuttle driver. In so finding, the ALJ credited the testimony of vocational rehabilitation expert Katie Grimler-Montoya (Montoya), that there are jobs in Pueblo, Denver, and Colorado Springs which are within the claimant’s medical restrictions, education, and limited English skills. Therefore, the ALJ determined the claimant is not permanently totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. 1998.
Relying upon Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998), the claimant contends that permanent total disability is measured by the injured workers’ ability to earn wages in the local community where he resides. Therefore, the claimant contends that Montoya erroneously considered the labor market in Colorado Springs and Denver, and argues that Montoya’s opinions concerning his employability have no evidentiary value. We disagree.
Under the applicable law, a claimant is permanently and totally disabled if he is “unable to earn any wages in the same or other employment.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). The determination of whether the claimant is capable of earning wages in the same or other employment is a factual determination to be made by the ALJ based upon consideration of a number of “human factors.” Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). These factors include the claimant’s physical condition, mental ability, age, employment history, education and the “availability of work” the claimant can perform. Weld County School District RE-12 v. Bymer, supra.
Contrary to the claimant’s contention, Bymer provides that the test for determining the “availability of work” is “whether employment exists that is reasonably available to the claimant given his or her circumstances.” Further, the court concluded that “reasonably available” employment is not limited solely to employment in the claimant’s local community. Rather, Bymer holds that the availability of employment must be determined on a “case-by-case basis” and “will necessarily vary according to the particular abilities and surroundings of the claimant (e.g., whether and how far the claimant is able to commute).” Consequently, the court held that in determining whether employment is reasonably available to the claimant, the ALJ may consider the availability of work within a commutable distance from the claimant’s residence as well as employment in the claimant’s local community.
As argued by the claimant, Montoya admitted it is unreasonable to expect the claimant to commute from Pueblo to Denver for minimum wage employment. (Tr. July 18, 1997, p. 51). However, the claimant admitted that “almost all” of his job assignments for MG Concrete Inc. were located outside Pueblo, including Denver and New Mexico. (Tr. May 19, 1997, p. 29). Under these circumstances, the ALJ could reasonably infer that the claimant is capable of traveling to work outside Pueblo. Therefore, we cannot say that Montoya’s testimony concerning the availability of employment outside Pueblo was irrelevant.
In any event, the ALJ was also persuaded that employment is reasonably available to the claimant in Pueblo. This determination is sufficient to support the conclusion that the claimant is not permanently totally disabled. Therefore, the ALJ’s error, if any, in considering the availability of employment in Denver was harmless and shall be disregarded. Section 8-43-310
C.R.S. 1998; A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988) (error which is not prejudicial will be disregarded)
However, the claimant argues that the record does not support the ALJ’s finding that employment is reasonably available to him in Pueblo. The claimant contends that during cross-examination Montoya admitted that the jobs she identified for the claimant in Pueblo exceed his physical restrictions, education, and limited English and math skills. Again, we disagree.
Initially, we note that section 8-40-201(16.5)(a) does not require proof of a specific job offer to defeat a claim of permanent total disability. See Beavers v. Liberty Mutual Fire Insurance Company, W.C. No. 4-163-718 (January 31, 1996), aff’d, Beavers v. Liberty Mutual Fire Insurance Company (Colo.App. No. 96CA0275, September 5, 1996) (not selected for publication); Bonds v. Skyline Fire Protection District, W.C. No. 4-111-529 (December 5, 1995). Rather the ALJ is required to determine whether it is more probable than not that the claimant is capable of earning wages. Thus, the absence of a specific offer of employment is not dispositive of the claimant’s ability to earn wages.
Nevertheless, the ALJ was persuaded that Montoya located three full-time or part-time delivery jobs, three shuttle/courier positions, and a selective janitorial placement for the claimant in Pueblo. (Finding of Fact 14). On cross-examination Montoya admitted that some of the delivery driver positions she found required lifting over 10 pounds. However, she indicated that the employer was willing to provide help with the required lifting. (Tr. July 18, 1997, p. 44). Montoya also acknowledged that the claimant is restricted from performing overhead work and that the delivery jobs required overhead work. (Tr. July 18, 1997, p. 46). However, she pointed out that the claimant is only restricted from performing overhead work with the right upper extremity. (Tr. July 18, 1997, p. 66). Similarly, Montoya admitted that the janitorial job she located for the claimant required lifting up to forty pounds. (Tr. July 18, 1997, p. 58). However, Montoya stated that the employer is willing to accommodate the claimant’s lifting restrictions. (Tr. July 18, 1997, pp. 26, 58, 59). Under these circumstances, we cannot say the evidence compels the conclusion that the available jobs exceed the claimant’s physical capabilities.
Moreover, because the record supports the ALJ’s finding that the claimant is capable of earning wages as a janitor or delivery driver in Pueblo, we need not consider whether the ALJ erroneously found that Montoya located three shuttle driver jobs for the claimant in Pueblo. To the extent the claimant has made other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 29, 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. 1998.
Copies of this decision were mailed September 17, 1998 to the following parties:
Salvador Duran, 3103 Skyview Ave., Pueblo, CO 81002
MG Concrete, Inc., c/o California Indemnity, P.O. Box 6597, 5575 DTC Pkwy, Ste. 535, Englewood, CO 80155-6597
California Indemnity, Attn: Kay Carnahan, P.O. Box 6597, Englewood, CO 80155-6597
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents)
BY: _______________________