American Metals Climax, Inc. v. Cisneros

• Decision Date: 27 March 1978
• Docket Number: No. C-1353,C-1353
• Parties: AMERICAN METALS CLIMAX, INC., and State Compensation Insurance Fund, Petitioners, v. Tony E. CISNEROS and Industrial Commission of Colorado, Respondents.
• Court: Colorado Supreme Court

Page 553

576 P.2d 553

195 Colo. 163

AMERICAN METALS CLIMAX, INC., and State Compensation

Insurance Fund, Petitioners, v. Tony E. CISNEROS and Industrial Commission of Colorado, Respondents.

No. C-1353.

Supreme Court of Colorado, En Banc.

March 27, 1978.

Robert S. Ferguson, James A. May, William J. Baum, Denver, for petitioners.

Edward J. Scheunemann, Denver, for Tony E. Cisneros.

J. D. MacFarlane, Atty. Gen., Timothy Arnold, Asst. Sol. Gen., Denver, for Industrial Commission of Colorado.

ERICKSON, Justice.

We granted certiorari to review American Metals Climax, Inc. v. Cisneros, Colo.App., 571 P.2d 315 (1977). We affirm the result reached by the court of appeals.

In June 1972, the respondent Tony E. Cisneros suffered a work-related injury to his arm. The respondent was employed as an underground miner by American Metals Climax, Inc., hereinafter referred to as the petitioner. Chest x-rays taken at the time of his injury revealed early signs of silicosis ¹ and caused the examining doctor to recommend that the respondent not be returned to underground mine work. Consequently, upon his return to work in August 1972, the petitioner assigned the respondent to janitorial duties.

Prior to the injury to his arm, the respondent had earned $4.49 per hour as an underground miner. During his convalescence, however, the miner's union and the petitioner negotiated a new contract which raised the miner's wage to $5.53 per hour. The janitor's position to which the respondent had been assigned paid only $4.42 per hour. Therefore, if the respondent had been permitted to return to his former position, he would have received a wage 17% Greater than the janitor's wage.

The issues before us relate to the disability claim which the respondent filed under the Colorado Occupational Disease Disability Act, ² section 8-60-101, et seq., C.R.S.1973, alleging that he had contracted silicosis. At the time his claim was filed, the respondent was forty-five years old and had worked as a miner most of his adult life. He had been employed by the petitioner as an underground miner from 1963 until June of 1972.

The Industrial Commission ultimately entered an award in the respondent's favor on November 18, 1976, and found:

"That because of the claimant's age, education, background, and past work experience, his affliction with silicosis arising out of and in the course of his employment and his resulting transfer to a lower paying job, the claimant has suffered a loss of earning capacity."

The commission concluded that the respondent had suffered a 17% Permanent partial disability. The court of appeals affirmed on appeal.

The petitioner attacks the award and the court of appeals' decision on the grounds that (1) the evidence was insufficient to support the finding that the respondent had suffered a compensable disability as a result of an occupational disease; and (2) the court of appeals erred in holding that the respondent was not required to present evidence as to the factors enumerated in section 8-60-114(7), C.R.S.1973, or to prove that no other work was available to the respondent in which he could earn a wage comparable to that he would have received as an underground miner.

I.

We have repeatedly declared that findings of fact made by the Industrial Commission, if supported by evidence or reasonable inference drawn therefrom, are binding upon review. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969); Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648 (1968); Capital Chevrolet Co. v. Industrial Commission, 159 Colo. 156, 410 P.2d 518 (1966); Colorado Fuel and Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1963). In Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940), we declared:

"In determining the extent or degree of disability of an injured workman upon the facts of each case, it is axiomatic that the Industrial Commission is vested with the widest possible discretion with the exercise of which the courts will not interfere. Rio Grande Motorway v. De Merschman, 100 Colo. 421, 68 P.2d 446; Globe Indemnity Co. v. Industrial Commission, 67 Colo. 526, 186 P. 522. Also the presumption exists that in making an award for disability . . . the commission considered and gave due weight to all the factors therein enumerated. . . . "

Appellate courts will not weigh the evidence nor substitute their judgment for that of the commission on findings of fact.

A review of the record in this case causes us to conclude that permanent partial disability was established by the opinions of medical experts, the respondent's employment history, and the petitioner's transfer of the respondent to a job as a janitor. The assignment of the respondent to the position of janitor was evidence of petitioner's evaluation of his qualifications to work within the company. Work as a janitor provided a better work environment for the respondent and was competent evidence of the limited qualifications, industrial disability, and the lost earning capacity of the respondent. There is sufficient evidence in the record to support the commission's finding that the respondent suffered a 17% Permanent partial disability as a result of silicosis. The commission's findings, therefore, will not be disturbed.

A compensable disability under the statute requires a finding that the claimant has suffered an industrial disability or a loss of earning capacity. New Jersey Zinc Co. v. Industrial Commission, 165 Colo. 482, 440 P.2d 284 (1968); Simpson and Company v. Wheeler, 153 Colo. 480, 386 P.2d 976 (1963); Byouk v. Industrial Commission, supra. The commission determined that the respondent had suffered a loss of earning capacity as a result of his affliction with occupational silicosis and his transfer to a lower paying job. Impaired earning capacity, as it relates to the kind of work in which the claimant was employed when he became disabled, while not the only relevant factor, is pertinent in the determination of the extent of a claimant's disability. Byouk v. Industrial Commission, supra; Rio Grande Motorway v. De Merschman, 100 Colo. 421, 68 P.2d 446 (1937). The commission did not abuse its discretion in this case when it determined that the percentage decrease in the respondent's wage was the proper measure of the extent of his disability. Byouk v. Industrial Commission, supra; Rio Grande Motorway v. De Merschman, supra.

II.

In its second argument, the petitioner contends that the award must be reversed because the respondent failed to present any evidence concerning the factors enumerated in section 8-60-114(7), C.R.S.1973. Reliance is placed upon our decision in Colorado Fuel and Iron Corp. v. Industrial Commission, supra, wherein we declared:

"It is the express mandate of the statute that the commission take 'into consideration not only the manifest weight of the evidence, but the general physical condition and mental training, ability, former employment and education of the injured employee.' The sense of our decisions is that the degree of disability cannot be measured by physical condition alone,...