W.C. No. 3-999-143Industrial Claim Appeals Office.
May 3, 1996
FINAL ORDER
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) which denied her claim for permanent total disability benefits. We affirm.
Here, the ALJ found that the claimant failed to prove that she is permanently and totally disabled as a result of her 1990 industrial injury. In support of this determination, the ALJ found that the claimant has transferrable skills as a “corporate trainer.” The ALJ based this conclusion on the facts that the claimant performed this job for a substantial amount of time following her injury, that she is now obtaining a masters degree in the field of corporate training, and that the claimant has earned $75.00 per hour as a consultant. In any event, the ALJ credited expert vocational testimony that the claimant is capable of earning between $5.00 and $8.00 per hour in sales clerk positions.
On review, the claimant contends the ALJ applied an incorrect legal standard in determining that she is not permanently and totally disabled. The claimant also contends that the evidence does not support the ALJ’s pertinent findings of fact. We reject these arguments.
Under the law applicable to this case, a claimant is permanently totally disabled if she has lost and will not regain efficiency in some substantial degree in a field of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940); Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991). In evaluating permanent total disability, the ALJ may consider a myriad of factors including the claimant’s education, prior experience, physical and mental capabilities, and the availability of the type of work which the claimant can perform. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). However, permanent total disability benefits may not be awarded based solely upon a comparison between the salary range available before the injury and the wages available after the injury. Prestige Painting and Decorating, Inc. v. Mitchusson, supra.
Moreover, the ALJ has the widest possible discretion in determining the existence of permanent total disability. The question of whether the claimant has carried her burden of proof to establish permanent total disability is one of fact for the ALJ. Professional Fire Protection, Inc. v. Long, supra. Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996).
The claimant’s argument notwithstanding, we are unpersuaded that the ALJ applied an incorrect legal standard in assessing the claim for permanent total disability. In fact, during his oral remarks at the conclusion of the hearing, the ALJ explicitly referred to the correct test. (Tr. pp. 133-134). The ALJ has simply determined that the evidence does not support the assertion that the claimant has lost and will not regain efficiency in some substantial degree in fields of general employment.
We also reject the assertion that the ALJ’s finding concerning the claimant’s ability to find work as a corporate trainer is unsupported by the evidence. We have reviewed the record and conclude that there was conflicting evidence concerning whether or not such jobs were immediately available. Further, even if there was no evidence that such jobs were immediately available, the evidence supports the inference that the claimant would regain enough “efficiency” to obtain such work in the future. As the ALJ noted, there was evidence that the claimant had performed such work in the past and was increasing her skills by seeking an advanced degree.
The claimant has asserted that, because the respondents declined to pay for her college degree, the ALJ erred in relying on this factor when evaluating the case. In support of this proposition, the claimant relies on Wishbone Restaurant v. Moya, 162 Colo. 30, 424 P.2d 119 (1967).
However, Wishbone Restaurant concerns the respondents’ failure to pay for medical treatment which reduced the claimant’s overall medical impairment. Although the particular medical treatment was not authorized, the court held that respondents should not “be heard to disclaim responsibility for payment of medical expenses on the one hand, and on the other to claim all the benefits derived from the performance of those services.” Here, unlike the medical expenses involved in Wishbone, payment of educational expenses is not a mandatory benefit provided under the Workers’ Compensation Act. Thus, we do not believe the same equitable principles apply here as applied in Wishbone.
Finally, the ALJ’s finding concerning the claimant’s ability to work in jobs paying $5.00 to $8.00 per hour is supported by the testimony and report of Ms. Heitsmith. The fact that the sales jobs would cause a substantial decrease in the claimant’s pre-injury wage does not preclude a finding that such jobs represent “efficiency in some substantial degree” in a field of general employment. Prestige Painting and Decorating, Inc. v. Mitchusson, supra.
The claimant’s final argument is that the ALJ failed to consider various fringe benefits in assessing the degree of the claimant’s wage loss. However, a review of the transcript indicates that the ALJ did not consider the issue of fringe benefits to be of particular concern in assessing permanent total disability, but was of greater import in determining permanent partial disability. (Tr. pp. 135-136).
In our view, the ALJ’s assessment of this issue was correct. While the degree of wage loss may be of significance in establishing loss of earning capacity, the actual degree of wage loss is not the determining factor in permanent total disability cases. Prestige Painting and Decorating, Inc. v. Mitchusson, supra. Moreover, the ALJ recognized that the claimant would sustain a very large wage loss as a result of her industrial injury, but based the denial of permanent total disability benefits on the claimant’s capacity to regain substantial employment. There was no error.
IT IS THEREFORE ORDERED that the ALJ’s order, dated June 13, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. (1990 Cum.Supp.).
Copies of this decision were mailed May 3, 1996 to the following parties:
Carol J. Wilcox, 4035 W. 103rd Court, Westminster, CO 80030
Synergen, Inc., 1885 33rd St., Boulder, CO 80301
Hartford Accident Indemnity, P.O. Box 22815, Denver, CO 80222
Jennifer Bisset, Esq., 10375 E. Harvard, Ste. 403, Denver, CO 80231 (For the Respondents)
Pattie J. Ragland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Claimant)
By: _________________