W.C. No. 4-139-647Industrial Claim Appeals Office.
May 9, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which awarded permanent total disability benefits. We affirm.
The ALJ found that the claimant suffered a compensable back injury in 1992, which precludes the claimant from returning to his pre-injury occupation as a farm laborer. The ALJ also found that the claimant has a sixth grade education, is illiterate in English, and is restricted to sedentary or light duty work. Further the ALJ determined that the claimant resides in Las Animas, Colorado, which is a two hour drive from Pueblo, and has a population of 2,000.
Based upon these findings the ALJ determined that the claimant is not capable of earning wages in his local labor market including the city of his residence, or any other locations within commuting distance from his residence. Consequently, the ALJ concluded that the claimant is “unable to earn any wages in the same or other employment” under the statutory definition of permanent total disability enacted by Senate Bill 91-218 (SB 218), and currently codified at § 8-40-201(16.5), C.R.S. (1995 Cum. Supp.).
On appeal, the respondents contend that the ALJ misapplied §8-40-201(16.5) in concluding that the claimant is unable to earn any wages. Specifically, the respondents argue that the SB 218 definition of permanent total disability does not include consideration of the same factors which were relevant for a determination of permanent total disability prior to the effective date of SB 218. See 1991 Colo. Sess. Laws ch. 219 at 1292. Therefore, the respondents argue that the ALJ erred insofar as he based his determination of permanent total disability upon pre-SB 218 factors. We perceive no error.
Under the law as it existed prior to SB 218, the determination of permanent total disability included consideration of the claimant’s age, general physical condition and mental training, ability, former employment and education. See former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.) Colorado Fuel and Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). In Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194
(Colo.App. 1995), the Court of Appeals held that the enactment of §8-40-201(16.5) did not eliminate the ALJ’s consideration of these pre-SB 218 “human factors.” Consequently, the Best-Way court concluded that the ALJ did not err in considering the claimant’s physical condition, employment history and educational background to find that the claimant was “unable to earn any wages” under § 8-40-201(16.5).
It follows that, in this case, the ALJ did not err in considering the evidence concerning the claimant’s education, language barrier, transferrable skills, and physical limitations. Consequently, the ALJ did not err in relying upon expert vocational testimony which also considered these “human factors.”
Next, the respondents argue that the ALJ misconstrued § 8-40-201(16.5) in concluding that the phrase “unable to earn any wages in the same or other employment” is limited to a determination of whether the claimant is capable of earning wages in his local community or within a commutable labor market. We disagree.
The availability of employment in the claimant’s local labor market was a factor which was properly considered in the determination of permanent total disability prior to SB 218. Colorado Fuel and Iron Corp. v. Industrial Commission, supra; 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). Therefore, in view of the court’s holding in Baumgartner, we conclude that the ALJ was not precluded from considering the claimant’s access to employment in the labor market where he resides in determining whether the claimant is capable of earning any wages under § 8-40-201(16.5). See Bymer v. Weld County School District RE-12, W.C. No. 4-152-227, December 20, 1995.
Moreover, under prior law there was no statutory or case law making an award of permanent total disability benefits dependent on a claimant’s willingness to relocate to a more favorable labor market. Gruntmeir v. Tempel Esgar Inc., supra; Southwest Contracting v. Brinkerhoff, (Colo.App. No. 93CA0080, December 23, 1993) (not selected for publication). We must assume that the General Assembly was aware at the time it enacted SB 218 that permanent total disability had consistently been determined without requiring the claimant to relocate. See Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987). Accordingly, had the General Assembly intended to require that permanent total disability benefits be denied where the claimant was unwilling to relocate to another geographical area, it would have expressly adopted language to that effect. See Best-Way Concrete Co. v. Baumgartner, supra. Because there is no express language in § 8-40-201(16.5) which directs the ALJ to consider the claimant’s permanent total disability in light of the claimant’s willingness to relocate, we may not read such a requirement into the statute. Best-Way Concrete Co. v. Baumgartner, supra.
We also reject the respondents’ argument that the record does not support the ALJ’s factual determinations concerning the elements which preclude the claimant from earning wages. Contrary to the respondents’ assertions, there is substantial, albeit conflicting, evidence to support the ALJ’s factual determinations concerning the “human factors” which render the claimant permanently and totally disabled. See Tr. pp. 8, 12, 13, 24, 57, 58, 76, 77.
Furthermore, even if the ALJ had given greater weight to the testimony of the respondents’ vocational expert, Ms. Dunne, than the opinion of the claimant’s expert, Mr. Magnuson, the result would be unchanged. Ms. Dunne admitted that the claimant was unemployable in Las Animas and that it was “unrealistic” for the claimant to commute to either Pueblo or Colorado Springs. (Tr. pp 39, 47). Rather, Ms. Dunne opined that the claimant would be unable to obtain employment unless he relocated his residence to a more favorable labor market. (Tr. 49). Therefore, the testimony of the respondents’ expert also supports the ALJ’s finding of permanent total disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 20, 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 9, 1996 to the following parties:
Martin Pasillas, 1018 4th St., Las Animas, CO 81054
Spady Brothers, 14265 E. Hwy 50, Las Animas, CO 81054
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
Thomas E. J. Hazard, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
BY: _______________________