W.C. Nos. 4-015-738 4-140-355Industrial Claim Appeals Office.
May 29, 1996
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ determined that the claimant is permanently and totally disabled. We affirm.
The SIF contends that the ALJ failed to apply the correct legal standard, and that the record does not support a finding of permanent total disability under the applicable legal standard. We reject these arguments.
The SIF argues, and the claimant concedes, that the claim is governed by the provisions of Senate Bill 91-218 (SB 218), and the statutory definition of permanent total disability currently codified as §8-40-201(16.5), C.R.S. (1995 Cum. Supp.). Under § 8-40-201(16.5) permanent and total disability exists when the claimant is “unable to earn any wages in the same or other employment.” McKinney v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 93CE0021, February 9, 1995).
Here, the ALJ made the following findings of fact. The claimant suffered multiple injuries arising out of his employment for the City of Colorado Springs (City). As a result of low back injuries in 1989 and 1991 the claimant was restricted to light duty work. Despite the restrictions the claimant’s back condition continued to deteriorate. On April 20, 1992, the claimant developed epicondylitis in his left arm. Due to the combined effects of the injuries there was no work, within the claimant’s medical restrictions, available in his regular department at the City. However, the claimant worked in another department doing clerical work until February 1993, when he was awarded disability retirement benefits.
Crediting the opinion of vocational rehabilitation counselor, Dennis Duffin, the ALJ further determined that the claimant is unable to engage in any employment. Consequently, the ALJ determined that the claimant is permanently and totally disabled.
Contrary to the respondents’ argument, the ALJ’s determination that the claimant is “unable to engage in any employment” inherently reflects a determination that the claimant is “unable to earn any wages.” Therefore, we are not persuaded that the ALJ failed to consider the applicable legal standard for determining permanent total disability.
Furthermore, we are not persuaded that the ALJ’s reliance upon the opinion of Mr. Duffin compels a contrary conclusion. Mr. Duffin’s June 1, 1993 report states that:
“Prior to his industrial injuries, [the claimant’s] demonstrated and tested vocational aptitudes, work history, and limited transferrable skills resulted in employment opportunities in a relatively narrow band of the labor market spectrum; that is, unskilled to semi-skilled occupational requiring low intellectual aptitudes, but generally requiring heavy physical capacities. As a cumulative result of his industrial injuries, [the claimant’s] access to the labor market is now restricted to those very few unskilled to semi-skilled occupations requiring minimal physical capacities.”
After conducting a labor market survey, Duffin further concluded that there is “very little opportunity for reemployment for [the claimant] without extensive vocational rehabilitation intervention.”
The ALJ could, and did, infer from Mr. Duffin’s report that the narrow area of the labor market that was available to the claimant prior to the industrial injuries is now unavailable to the claimant. (Finding of Fact 9). Furthermore, this inference supports the ALJ’s determination that the claimant is not able to engage in any employment. Therefore, we must uphold the ALJ’s conclusion that the claimant is permanently and totally disabled, and the existence of evidence in the record which, if credited, might support a contrary result is immaterial. Christie v. Coors Transportation, ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995).
Moreover, even though Mr. Duffin arguably applied a pre-SB 218 legal standard in concluding that the claimant is permanently and totally disabled, that does not compel a conclusion that the ALJ also applied that legal standard in crediting Mr. Duffin’s opinion. In fact, the ALJ expressly rejected the analysis relied upon by Mr. Duffin in apportioning liability for the claimant’s disability. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ free to credit all, part or none of witness’ testimony).
We also recognize that the ALJ incorrectly referenced section “8-42-111” in support of her determination that the claimant is permanently and totally disabled. However, because the ALJ’s findings reflect his application of the correct legal standard, the error is harmless. Section 8-43-310 C.R.S. (1995 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 26, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 20, 1996 to the following parties:
Frank Gonzales, 115 S. Brentwood Dr., Colorado Springs, CO 80910
City of Colorado Springs, Ins. Claims, 14 S. Chestnut St., Colorado Springs, CO 80905
Subsequent Injury Fund — Interagency Mail
Roxane Baca, Esq., Attorney General’s Office, 1525 Sherman St., 5th Flr, Denver, CO 80203 (For SIF)
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
Greg Chambers, Esq., 950 S. Cherry St., Ste. 1502, Denver, CO 80222 (For the Respondent)
BY: _______________________