Fulton v. Soopers

823 P.2d 709, 16 Brief Times Rptr. 12, 1992 Colo. LEXIS 3, 1992 WL 4070
CourtSupreme Court of Colorado
DecidedJanuary 13, 1992
Docket91SC76
StatusPublished
Cited by12 cases

This text of 823 P.2d 709 (Fulton v. Soopers) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fulton v. Soopers, 823 P.2d 709, 16 Brief Times Rptr. 12, 1992 Colo. LEXIS 3, 1992 WL 4070 (Colo. 1992).

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

Petitioner Kenneth R. Fulton was injured while employed by respondent King Soop-ers, and he subsequently filed a claim for workers’ compensation. King Soopers admitted responsibility. Fulton requested a hearing before the Department of Labor and Employment, Division of Labor, to present evidence of his permanent disfigurement and partial disability. The Administrative Law Judge (AU) limited Fulton’s permanent partial disability award to his permanent medical impairment and disfigurement under the limitation set forth in section 8-42-110(3), 3B C.R.S. (1990 Supp.) (repealed 1991) (formerly § 8-51-108(4), 3B C.R.S. (1988 Supp.)), of the Workers’ Compensation Act of Colorado.1 Respondent [711]*711Industrial Claim Appeals Office (ICAO) affirmed the order of the AU. The court of appeals agreed with the ICAO’s interpretation of section 8-42-110(3) and affirmed the ICAO’s order. Fulton v. King Soopers, Inc., 811 P.2d 421 (Colo.App.1990).

We granted certiorari to address two issues:

1. Is a worker who is delayed in his advancement in labor union status because of an industrial injury extended the usual wage adjustments as contemplated in section 8-42-110(3), 3B C.R.S. (1990 Supp.)?
2. Is a worker who suffers a permanent injury which results in his not being able to perform a substantial number of his pre-injury duties at work permanently unable to perform the duties offered by his employer as contemplated in section 8-42-110(3), 3B C.R.S. (1990 Supp.)?

The court of appeals answered the first question in the affirmative and the second question in the negative. We affirm.

I

Kenneth R. Fulton was employed by King Soopers as an apprentice mechanic. Fulton’s duties as a mechanic under his union’s collective bargaining agreement included maintenance and repair of various supermarket equipment such as checkstand conveyor belts, automatic door openers, electric motors, batteries, and hydraulic fittings. Fulton began work for King Soop-ers in 1980 and, as a result of his accumulated work hours, expected that his union would grant him status as a journeyman mechanic in August of 1988.

On May 12, 1988, however, while Fulton, who is right-handed, was attempting to replace certain industrial equipment known as “extend cylinders,” the equipment flipped over and crushed three of the fingers on his left hand. Fulton suffered the loss of the end portions, the distal phalanges, of his index and long fingers and sustained damage to the nail plate and finger pad of his ring finger. Fulton required surgery to repair his hand and missed approximately eight weeks of work.

In July 1988, Fulton returned to work at his previous salary, and he resumed his regular work activities by August. Fulton’s left hand grip was weakened from the injury. He experienced difficulty accomplishing his tasks and needed assistance lifting checkstand conveyors, repairing overhead door opening mechanisms, loosening hydraulic pipe fittings, and working with small pieces of hardware such as nuts and machine screws. Cold weather also posed a problem for Fulton as a result of reduced circulation and increased sensitivity in his left hand. None of Fulton’s supervisors, however, complained about his job performance.

As an apprentice, Fulton received eighty-five percent of the hourly wage paid to a journeyman mechanic. In April 1989, after Fulton had worked the requisite number of hours, the union upgraded his job classification to journeyman mechanic. As a result, Fulton’s salary was increased. Fulton testified that the wage increase took place later than it would have had he not been injured.

Following a hearing to determine the extent of Fulton’s disability and disfigurement, the AU found, based on a report submitted by Fulton’s treating physician, that twenty-two percent of Fulton’s left hand, or twelve percent of his whole person, was permanently impaired, and that, despite Fulton’s continuing disabilities, his job performance was satisfactory.2

[712]*712After finding that King Soopers had continued to employ Fulton at his preinjury rate of pay, including usual wage adjustments, and that he was performing his employment duties satisfactorily, the AU applied section 8-42-110(3) and limited Fulton’s award to his permanent medical impairment and serious bodily disfigurement. The ICAO affirmed the AU’s order and held that section 8-42-110(3) was applicable because the three-month delay before Fulton achieved journeyman status was a result of his not obtaining the required number of work hours rather than King Soop-ers’ failure to extend the usual wage adjustments. In addition, the ICAO concluded the AU’s finding that Fulton’s job performance was satisfactory was supported by substantial evidence and precluded a determination that Fulton was permanently unable to perform the duties offered him by King Soopers.

A divided panel of the court of appeals affirmed the order of the ICAO, holding that neither a delay in a wage increase due to a union agreement nor the inability of an employee to perform some work duties without difficulty or assistance defeats the application of section 8-42-110(3). Fulton v. King Soopers, Inc., 811 P.2d 421, 422 (Colo.App.1990). In dissent, Judge Dubof-sky expressed the concern that employers might use section 8-42-110(3) to avoid paying full permanent partial disability by “carrying” an employee who could not perform a job, and suggested that the award be set aside and that the claim be remanded to the ICAO for an independent determination of whether Fulton could substantially and competitively perform all the duties of a mechanic for King Soopers. Id. at 424 (Dubofsky, J., dissenting). The dissent stated that, under section 8-42-110(3), a partially disabled employee may petition for a redetermination of a permanent partial disability award if he is either dismissed or resigns within two years of reemployment. Id. at 423. However, the dissent pointed out that a disabled employee who is carried for two years may be unable to find a new job, and will thereby be deprived of potential benefits and job training. Id. at 424.

II

A worker who is delayed in his advancement in labor union status because of an industrial injury is not denied usual wage adjustments. Section 8-42-110(3) provides employers with a method for limiting permanent partial disability awards3 by reemploying or retaining disabled employees at their preinjury rate, including the usual wage adjustments. An exception is made for an employee who is permanently unable to perform “offered” duties.

The resolution of this case depends upon the meaning of “usual wage adjustments” and Fulton’s ability “to perform the duties of the employer.” First, Fulton contends his elevation to journeyman status was a usual wage adjustment that was delayed three months, defeating application of section 8-42-110(3). King Soopers responded that Fulton’s classification as an apprentice or journeyman mechanic is determined by his union and is thus outside of management control. Second, Fulton asserts see-^ tion 8-42-110(3) should not apply because his continuing disabilities prevent him from performing all the duties he had prior to the accident.

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Fulton v. Soopers
823 P.2d 709 (Supreme Court of Colorado, 1992)

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Bluebook (online)
823 P.2d 709, 16 Brief Times Rptr. 12, 1992 Colo. LEXIS 3, 1992 WL 4070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulton-v-soopers-colo-1992.