Employers Mut. of Wausau v. Eidson

• Decision Date: 13 May 1982
• Docket Number: No. 81CA1180,81CA1180
• Citation: 646 P.2d 959
• Parties: EMPLOYERS MUTUAL OF WAUSAU, and Associated Grocers, Petitioners, v. Edgar L. EIDSON, Industrial Commission of Colorado, Director of the Division of Labor, and Employers Fire Insurance Company, Respondents. . III
• Court: Colorado Court of Appeals

Page 959

646 P.2d 959

EMPLOYERS MUTUAL OF WAUSAU, and Associated Grocers, Petitioners, v. Edgar L. EIDSON, Industrial Commission of Colorado, Director

of the Division of Labor, and Employers Fire

Insurance Company, Respondents.

No. 81CA1180.

Colorado Court of Appeals, Div. III.

May 13, 1982.

Zarlengo, Mott & Zarlengo, Tama L. Levine, Denver, for petitioners.

J. D. MacFarlane, Atty. Gen., Lynn Palma, Asst. Atty. Gen., Denver, for respondents Indus. Com'n of Colorado and Director of Div. of Labor.

Douglas R. Phillips, P. C., Douglas R. Phillips, Richard T. Goold, Denver, for respondent Edgar L. Eidson.

Glasman, Jaynes & Carpenter, James L. Carpenter, Denver, for respondent Employers Fire Ins. Co.

KELLY, Judge.

In this worker's compensation case, Employers Mutual of Wausau and Associated Grocers (petitioners) seek review of a final order of the Industrial Commission which awarded permanent partial disability benefits of six percent as a working unit to claimant, Edgar L. Eidson. We affirm.

The pertinent facts, as found by the referee, are as follows. Claimant was hired by Associated Grocers in 1970 as a diesel mechanic, and his work involved maintenance and repair of the brakes, transmissions, and chassis of large diesel trucks. In the course of his work, claimant had to kneel, squat, or bend a minimum of 35 times per day. Claimant began to notice problems in his right knee in July 1978. When these problems worsened, claimant consulted with and was examined by an orthopedic specialist in November 1978. As a result of the examination, the specialist determined that claimant's right medial meniscus was fissured and shredded and that this was caused by repeated squatting, bending, or kneeling (rather than by a specific accidental injury). The specialist recommended surgery to remove the meniscus. After a postponement at the employer's request, the surgery was performed in March 1979.

At the hearing before the referee, the specialist testified that claimant's loss of the use of his right leg as measured at the knee was no more than five percent. Considering that testimony and other factors, the referee concluded that claimant had sustained permanent partial disability for an occupational disease in the amount of six percent as a working unit. On review, the Industrial Commission affirmed the referee's award to claimant. The Commission stated:

"In awarding permanent partial disability benefits, the Commission takes into consideration the manifest weight of the evidence presented at hearing, including the general physical condition of the claimant, mental training and education, ability, age, and prior experience. The claimant had a ninth grade education and had worked as an automobile mechanic for a period of 20 years. His experience as a mechanic provided him with no other useful skills. He suffered a 5% physical disability at the right knee. Taking into consideration all the factors, the referee's award of 6% as a working unit was proper.

At the time of last injurious exposure, the claimant was 54 years of age."

Petitioners now contend that the Commission erred in awarding permanent partial disability under § 8-51-108, C.R.S. 1973, and that claimant should have been awarded a scheduled disability under § 8-51-104, C.R.S. 1973. They note that a disability award under § 8-51-108 is not for physical impairment alone, but for a loss of earning capacity resulting from that impairment. See Matthews v. Industrial Commission, Colo.App., 627 P.2d 1123 (1980). Conversely, a scheduled disability award under § 8-51-104 is awarded for medical impairment only. See World of Sleep, Inc. v. Davis, 188 Colo. 443, 536 P.2d 34 (1975).

Petitioners first assert that the Commission should have granted a scheduled disability award because the orthopedic specialist gave claimant an impairment rating of five percent of the right leg as...