Evans v. Aurora Elevator Co., 81CA0140
| Decision Date | 09 July 1981 |
| Docket Number | No. 81CA0140,81CA0140 |
| Citation | 631 P.2d 1201 |
| Parties | Gilbert EVANS, Petitioner, v. AURORA ELEVATOR COMPANY, Employer-Respondent, and State Compensation Insurance Fund, Insurer-Respondent and Charles J. McGrath, Director of the Division of Labor and the Industrial Commission of Colorado, Respondents. . I |
| Court | Colorado Court of Appeals |
Gorsuch, Kirgis, Campbell, Walker & Grover, C. William Browne, Denver, for petitioner.
Samuel H. Collins, William J. Baum, Denver, for respondents Aurora Elevator Company and State Compensation Insurance Fund.
J. D. MacFarlane, Atty. Gen., Lynn L. Palma, Asst. Atty. Gen., Denver, for respondents Industrial Commission and Charles J. McGrath, Director of the Division of Labor.
Claimant, Gilbert Evans, seeks review of a final order of the Industrial Commission awarding him workmen's compensation benefits for permanent partial disability of eight per cent as a working unit. We affirm.
The pertinent facts are essentially undisputed. While working as an elevator mechanic for Aurora Elevator Company in September 1978, claimant sustained compensable injuries to his back and left wrist. He reached maximum medical improvement in February 1980.
Because of his injuries, claimant was unable to return to work as an elevator mechanic. During his period of temporary disability, the insurer provided vocational rehabilitation training to prepare claimant for management in the carpet cleaning business, and at the time of the hearing on permanent disability, he testified that he wanted to establish his own business. However, shortly after the hearing, he submitted an affidavit stating that he had taken a job as an elevator inspector.
Claimant was 38 years old at the time of the hearing. He had a high school education and the majority of his work experience had been as an elevator mechanic. He had worked for the instant employer for approximately a year and a half and was earning $8.50 an hour when he was injured. He testified that at the time of his injury he was not a member of the elevator union, but that Aurora Elevator subsequently became unionized, and, on his return to work, he had intended to join the union. In response to a question as to whether he would still be working for Aurora Elevator if he had not been injured, he stated that
Claimant sought to establish his loss of earning capacity with testimony from the business manager of the union. The hearing officer permitted this testimony specifically for the purpose of establishing that as a union elevator mechanic at Aurora Elevator claimant would be earning $12.52 per hour at the time of the hearing. Claimant's rehabilitation counselor testified that the rehabilitation plan established for claimant anticipated earnings of between $8.50 and.$9.00 for him as owner and manager of a carpet cleaning business. Claimant earned $8.20 per hour in his post-injury job as elevator inspector.
The medical evidence consisted of reports from claimant's treating physician and three examining physicians. They agreed that claimant had sustained permanent disability as a result of his wrist injury, but disagreed as to whether it constituted a working unit or a scheduled disability. Two examining orthopedists concluded that he had also sustained permanent disability as a result of his back injury, with one opining that he had a six per cent working unit disability from both injuries and the other estimated claimant's total disability as eight per cent as a working unit. Claimant's treating orthopedist felt that he had no "significant impairment" related to his back injury and evaluated the wrist injury as a 25 per cent loss of the hand at the wrist. The fourth doctor, a hand specialist, estimated a 34 per cent loss of the forearm at the elbow.
The hearing officer found that claimant could no longer work as an elevator mechanic and noted his employment as an inspector at a "wage ... slightly less than he was making two years ago as a journeyman elevator repairman." He also noted the conflicting medical testimony, and "(o)n the basis of all of the evidence," awarded claimant a working unit disability of eight per cent. The Commission affirmed and adopted the hearing officer's order.
Claimant contends that the Commission erred as a matter of law in its award of permanent disability. He maintains that it should have calculated permanent disability as the difference between what claimant would have been earning at Aurora Elevator at the time of the hearing but for the injury and his post-injury earnings. We perceive no error.
Section 8-51-108(1)(b), C.R.S.1973 (1980 Cum.Supp.) provides in pertinent part:
"In determining permanent...
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...And, consideration of post-injury earnings may well be relevant in determining impaired earning capacity. See Evans v. Aurora Elevator Co., 631 P.2d 1201 (Colo.App.1981). However, "actual post-injury earnings do not always accurately reflect a worker's true earning capacity subsequent to hi......
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