Fulton v. King Soopers

811 P.2d 421, 14 Brief Times Rptr. 1577, 1990 Colo. App. LEXIS 358, 1990 WL 193789

• Court: Colorado Court of Appeals
• Decided: December 6, 1990
• Docket: No. 90CA0420
• Status: Published

Opinions

Opinion by

Judge SMITH.

Kenneth R. Fulton, claimant, contests a final order of the Industrial Claim Appeals Office (Panel) which held that, under Colo. Sess.Laws 1987, ch. 51, § 8-51-108(4) (repealed and reenacted as § 8-42-110(3), C.R.S. (1990 Cum.Supp.)), he is limited to an award of permanent medical impairment or scheduled disability award. We affirm.

Claimant works for King Soopers as a mechanic. In May 1988 he sustained an admitted industrial injury to his left hand. After recovering from the injury, he returned to work for King Soopers at his preinjury rate of pay. However, claimant’s attainment of journeyman status, with an increase in wages under the union agreement, was delayed approximately three months because he had not performed the requisite number of work hours for journeyman status.

The Administrative Law Judge (AU) found that the claimant received the usual wage adjustments after his return to work in spite of the fact that his advancement to journeyman status was delayed. The AU determined that the delay was caused by labor union requirements and not because the employer failed to extend the usual wage adjustments. The AU further found that the “evidence does not show that claimant is permanently unable to perform his job at the present time.” The AU then concluded that claimant was limited to an award of permanent medical impairment. Claimant appealed and the Panel affirmed the AU’s order.

Claimant contends that he was not extended the usual wage adjustments upon his return to employment because the injury caused a substantial delay in his attaining journeyman status. We disagree.

Under the statute at issue here, if an employee who is injured after July 1, 1987, is continued or employed at his prein-jury rate of pay and is extended the wage adjustments granted to other employees, a workers’ compensation award is limited to permanent medical impairment or a scheduled disability payment. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App.1990).

Here, claimant’s wage increase was delayed by his injury until he performed the necessary number of work hours for journeyman status pursuant to the union agreement and not because the employer failed to extend to claimant the usual wage adjustments. We therefore agree with the Panel that a delay in wage increase because of a union agreement does not operate to defeat the application of § 8-42-110(3).

Claimant further contends that § 8-42-110(3) is inapplicable here because he is permanently unable to perform the duties offered by the employer. We disagree.

Although claimant testified that he is unable to perform some of his duties without difficulty or assistance, he also testified that he is performing his preinjury job without complaints from his supervisor. We, thus, agree with the AU that the evidence does not demonstrate that, in the language of the statute at issue, claimant is “permanently unable to perform the duties offered by the employer....”

Order affirmed.

ROTHENBERG, J., concurs. DUBOFSKY, J., dissents.