Brush Greenhouse Partners v. Godinez

942 P.2d 1278, 1996 WL 737208

Opinions

Opinion by

Judge PIERCE.

*

The issue in this workers’ compensation ease is whether, in determining permanent total disability under § 8-40-201(16.5)(a), C.R.S. (1996 Cum.Supp.), access to employment in the labor market where the claimant resides is a factor to be considered. We conclude that it may be considered and, therefore, affirm the award of permanent total disability benefits to Ernesto Godinez (claimant).

Claimant sustained a compensable back injury while working as a laborer at Brush Greenhouse Partners (employer). His only prior work experience was picking tomatoes. He can neither read nor write English and has only limited ability to speak or understand English. He does not have sufficient arithmetic skills to make change. He does not have a driver’s license. Based on this evidence, claimant’s vocational expert opined that claimant’s physical impairment, coupled with his lack of education and limited language skills, precludes him from performing any jobs within a reasonable eommutable distance from his home.

Crediting the testimony of claimant and his vocational expert, the Administrative Law Judge (ALJ) found that claimant would “not be able to access the labor market in the Fort Morgan/Brush area,” a reasonable corn-mutable distance from his home and thus, claimant was not capable of securing and maintaining employment, was unable to earn any wages, and therefore was permanently and totally disabled. The Panel affirmed.

Employer and its insurer, the Colorado Compensation Insurance Authority, (collectively CCIA) contend that the ALJ applied an incorrect legal standard to determine that claimant is permanently and totally disabled. They argue that the proper test is whether claimant can earn any wages in any labor market, rather than his eommutable labor market. We disagree.

Permanent total disability means the employee is unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a); McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App.1995). However, whether the claimant has the ability to earn any wages is a question of fact for the ALJ. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App.1995) (cert. granted July 1, 1996).

In making that factual determination, the ALJ may consider the “human factors,” such as mental training, ability, education, and former employment, which were relevant to the determination of permanent total disability prior to the adoption of § 8-40-201(16.5)(a). Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App.1995); see also Christie v. Coors Transportation Co., supra (terms appearing in the case law defining permanent total disability prior to the adoption of 8-40-201(16.5)(a) are factors that may be considered indirectly to the extent that they affect a claimant’s ability to earn any wages).

Included in these factors to be considered is the community where a claimant resides. Prestige Painting & Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App.1991) (since it was undisputed that claimant was unable to find employment in his “local community,” the ALJ erred in awarding claimant partial, rather than total, disability benefits).

Here, the ALJ properly applied the “any wages” test to determine whether claimant was permanently and totally disabled. And, the record shows proper consideration of the factors necessary to determine whether claimant could earn any wages, including whether there were jobs available in the locale of his residence. Since the record supports this finding, it is binding on review. Christie v. Coors Transportation Co., supra.

The order of the Panel is affirmed.

STERNBERG, C.J., concurs. ERICKSON, J., dissents.

Sitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1996 Cum.Supp.).