W.C. No. 3-107-609Industrial Claim Appeals Office.
March 12, 1998
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Martinez (ALJ), which awarded permanent total disability benefits. We affirm.
The claimant sustained a compensable back injury in December 1992. The injury precludes the claimant from returning to his pre-injury employment as a custodian. Moreover, the permanent restrictions imposed by the treating physician limit the claimant to lifting no more than ten pounds occasionally, and he may not engage in any frequent or continuous lifting. The claimant’s standing and sitting are limited to one-half hour at a time, and no more than two hours per day. Further, recurring pain precludes the claimant from working on some days.
The ALJ found that, despite the injury, the claimant “occasionally accompanies and/or assists” his wife in operating a truck washing business. The evidence indicates that the claimant operates a “pressure wand” used in spraying the vehicles. The claimant engages in this activity for “approximately two to four hours per month on average.”
The ALJ credited the opinion of the claimant’s vocational expert that the permanent restrictions render the claimant unable to qualify for any job and preclude him from earning a wage. The ALJ further stated that the claimant’s participation in his wife’s “unprofitable” business does not demonstrate the ability to earn any wages. In support of this conclusion, the ALJ stated that a “permanently and totally disabled person may engage in a variety of activities on an irregular, slow, interrupted basis from which it cannot fairly be inferred that a wage earning capacity exists.” Thus, the ALJ awarded permanent total disability benefits.
On review, the respondent first contends that the claimant failed to carry his burden of proof to establish that he is unable to earn “any wages” within the meaning of § 8-40-201(16.5)(a), C.R.S. 1997. The respondent reasons that the evidence proves the claimant has the physical ability to wash trucks, and that washing trucks is a “business.” Therefore, the respondent argues that the claimant is in no position to assert that he lacks the physical ability to earn a wage. As a corollary to this argument, the respondent contends that the ALJ erred in considering the “regularity” and the “security” of the claimant’s wage earning capacity. We are not persuaded.
The respondent’s assertions notwithstanding, the question of whether the claimant is able to earn any wages is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Consequently, we must uphold the ALJ’s determination that the claimant is unable to earn any wages if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard of review we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences he drew from the evidence. Best-Way Concrete Co. v. Baumgartner, supra.
In determining whether the claimant is able to earn any wages, the ALJ may consider numerous human factors, including whether employment is “reasonably available to the claimant under his particular circumstances.” Weld County School District RE-12 v. Bymer, ___ P.2d ___ (Sup.Ct. No. 97SC36, March 9, 1998). And, although the claimant’s “efficiency” in obtaining and maintaining employment is not a statutory factor for determining permanent total disability under § 8-40-201(16.5)(a), it may “indirectly be considered to the extent that it affects a claimant’s ability to earn any wages.” Christie v. Coors Transportation Co., 919 P.2d 857, 860 (Colo.App. 1995), aff’d. 933 P.2d 1330 (Colo. 1997). The following language from our decision in Cotton v. Econo Lube N Tune, W.C. No. 4-220-395 (January 16, 1997), aff’d. Econo Lube N Tune v. Cotton, (Colo.App. No. 97CA0193, July 17, 1997) (not selected for publication), is pertinent.
“Contrary to the respondents’ argument, the claimant’s residual `efficiency’ to compete for available employment is a pertinent consideration if the industrial injury has rendered the claimant so inefficient that he lacks the ability to earn any wages. [citation omitted] Furthermore, the claimant’s ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired for, and sustaining employment. [citation omitted] Therefore, we believe that the claimant’s ability to obtain and maintain employment is a relevant `human factor’ for the ALJ’s consideration in determining whether the claimant is permanently and totally disabled under § 8-40-201(16.5)(a).”
The record contains substantial evidence to support the ALJ’s award of permanent total disability benefits under these standards. The claimant’s vocational expert opined that the claimant is unable to obtain any employment considering the extent and nature of his physical restrictions. The mere fact that the claimant occasionally performs physical activities which would render him employable does not require a different result where, as here, the evidence indicates the claimant is unable to sustain those activities for a sufficient period of time to be hired and paid wages. Moreover, the evidence indicates that the truck washing business is now operated at a loss, and is maintained merely on the hope that it may be transferred to relatives when they become familiar with the business. Thus, the claimant’s participation in the business does not show any actual earning capacity. Tuenge v. Vipont Pharmaceutical, Inc., W.C. No. 4-118-243 (January 11, 1996).
Similarly, the fact that the claimant once supervised a “hay” operation does not require us to set aside the ALJ’s order. There is no indication that such employment was available to the claimant at the time of the hearing, or would be available at any foreseeable time in the future. In fact, such an inference was contradicted by the testimony of the claimant’s vocational expert.
It is true that some evidence in the record would have supported contrary findings and conclusions concerning whether the claimant has the ability to earn any wages. However, we may not substitute our judgment for that of the ALJ concerning the weight of such evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 9, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 12, 1998 to the following parties:
Jacob I. Weber, 59315 Ida Road, Olathe, CO 81425
Montrose County, P.O. Box 1289, Montrose, CO 81402-1289
Bev Olson, OHMS, 700 Broadway, #1132, Denver, CO 80273
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Respondent)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: ________________________________