W.C. No. 4-130-335Industrial Claim Appeals Office.
November 13, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which awarded permanent total disability benefits. We affirm.
The ALJ’s findings may be summarized as follows. The claimant is a fifty-one year old man who does not speak English. As a result of his injury in March 1992, the claimant suffered a herniated disc which causes ongoing pain and radicular symptoms.
The claimant is restricted from performing the full range of duties required in his job as a laborer on a turkey farm. Restrictions on lifting and carrying impair the claimant’s ability to carry heavy turkeys and crank open “curtains” used in the turkey houses.
Despite these limitations, the employer utilized the claimant in a light duty capacity for approximately two years after the claimant reached maximum medical improvement (MMI) on September 17, 1992. However, the ALJ found that the employer required the claimant to perform duties in excess of his restrictions, and ultimately fired him because he could not do so.
Under these circumstances, the ALJ concluded that the claimant has been permanently and totally disabled since reaching MMI. In so doing, the ALJ credited the claimant’s testimony, and that of the claimant’s vocational expert, that the claimant is unable to earn any wages.
On review, the respondents contend that the ALJ’s order is erroneous as a matter of law because the claimant demonstrated the ability to earn wages for two years following MMI. In support of this proposition, the respondents rely on § 8-40-201(16.5)(a), C.R.S. (1995 Cum. Supp.), which defines permanent total disability to mean that the claimant is “unable to earn any wages in the same or other employment.” We reject this argument.
We do not disagree with the respondents’ legal assertion that the definition of permanent total disability contained in § 8-40-201(16.5)(a) was designed to “tighten” the availability of permanent total disability benefits. The statute accomplishes this objective by prohibiting awards where the claimant is able to earn “any” wages. See McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995).
However, as we have previously held, the question of the claimant’s ability to earn any wages is a question of fact for resolution by the ALJ. Further, in resolving this issue the ALJ is free to consider all relevant “human factors” including the claimant’s physical condition, educational background, and vocational history. See Baumgartner v. Best-Way Concrete Co., W.C. No. 4-127-943, February 6, 1995; Bond v. Mesa County School District, W.C. No. 3-103-251, December 8, 1993.
Moreover, the mere fact that the claimant receives some wages subsequent to MMI does not preclude an award of permanent total disability benefits as a matter of law. Rather, if the facts indicate to the ALJ that the wages “paid” to the claimant were the result of charity or an attempt to avoid an award of permanent total disability benefits, the ALJ may conclude that the claimant does not have the actual ability to “earn wages.” Baumgartner v. Best-Way Concrete Co., supra; Montoya v. Pueblo School District No. 60, W.C. No. 4-143-577, January 20, 1995.
Because the question of permanent total disability is factual in nature, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, there is substantial evidence to support the award of permanent total disability benefits. Although the claimant worked for nearly two years after the injury, the ALJ credited the claimant’s testimony that the employer expected him to perform tasks in excess of his restrictions, and fired him because he could not. This finding amply supports the ALJ’s conclusion that the claimant lacks the ability to earn wages, even though he was paid by the employer. Moreover, the award is supported by the report of the claimant’s vocational expert who stated that the claimant is virtually unemployable considering his restrictions, age, and language limitations.
It is true that the ALJ might have drawn different conclusions from the evidence. However, we are not free to substitute our judgment for that of the ALJ concerning the factual issues involved in this case. Monfort, Inc. v. Rangel, supra.
The respondents argue that they are entitled to an “offset” for wages paid to the claimant subsequent to MMI and prior to his termination. In his brief, the claimant concedes this issue. Therefore, we do not consider it.
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 7, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
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 November 13, 1995 to the following parties:
Enrique Portillo, P.O. Box 30, Lafayette, CO 80026
Conagra Red Meats Risk Management, Attn: Douglas R. Jensen, P.O. Box “G”, Greeley, CO 80632-0350
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203
(For the Claimant)
Bradley A. Hall, Esq., P.O. Box 978, Longmont, CO 80502-0978
(For the Respondents)
By: _______________________