Fulton v. King Soopers
| Decision Date | 13 January 1992 |
| Docket Number | No. 91SC76,91SC76 |
| Citation | 823 P.2d 709 |
| Parties | Kenneth R. FULTON, Petitioner, v. KING SOOPERS, Industrial Claim Appeals Office and Director, Division of Labor, Respondents. |
| Court | Colorado Supreme Court |
Law Offices of Bruce P. Fierst, P.C., Bruce P. Fierst, Rodney G. Loomis, Denver, for petitioner.
Glasman, Jaynes & McBride, Patricia Jean Clisham, Lydia W. Daugherty, Denver, for respondent King Soopers.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jeanne Labuda, Asst. Atty. Gen., Denver, for respondents Industrial Claim Appeals Office and Director, Div. of Labor.
Petitioner Kenneth R. Fulton was injured while employed by respondent King Soopers, 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 (ALJ) 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 (repealed 1991) (formerly § 8-51-108(4), 3B C.R.S. (1988 Supp.)), of the Workers' Compensation Act of Colorado. 1 Respondent Industrial Claim Appeals Office (ICAO) affirmed the order of the ALJ. 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.
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 Soopers 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 ALJ 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
After 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 ALJ applied section 8-42-110(3) and limited Fulton's award to his permanent medical impairment and serious bodily disfigurement. The ICAO affirmed the ALJ'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 Soopers' failure to extend the usual wage adjustments. In addition, the ICAO concluded the ALJ'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 Dubofsky 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.
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 awards 3 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 section 8-42-110(3) should not apply because his continuing disabilities prevent him from performing all the duties he had prior to the accident. King Soopers, on the other hand, is satisfied with Fulton's job performance even though he has some physical limitations.
Review of the ALJ order by the ICAO is limited by section 8-43-301(8), 3B C.R.S. (1991 Supp.) (formerly § 8-53- 111(7), 3B C.R.S. (1986)). 4 Appellate review of the ICAO's order is similarly governed by section 8-43-308, 3B C.R.S. (1991 Supp.) (formerly § 8-53-120, 3B C.R.S. (1986)). 5 In turn, our review is limited to a determination of whether the ALJ's findings of fact are supported by substantial evidence. The ICAO's affirmance of the ALJ's order is supported by substantial evidence in the record. The ALJ found that Fulton returned to work at his preinjury rate and received the usual wage adjustments since King Soopers paid him at the union scale. In reviewing the order of the ALJ, the ICAO stated:
The claimant contends that he was not afforded the "usual wage adjustments" following his return to work because his attainment of journeyman status, and resulting increase in his rate of pay under the union agreement, was delayed approximately three months because of the injury. However, the claimant's wage increase was delayed because his temporary disability following the injury delayed his performance of the requisite number of work hours for journeyman status ..., and not because the employer failed to extend the usual wage adjustments following his return to work. Thus, we agree with the ALJ that this circumstance does not defeat the application of section [8-42-110(3) ]. The claimant did not otherwise contest the ALJ's finding that he was extended the usual wage adjustments.
Although the record does not include the collective bargaining agreement under which the requirements for Fulton's upgrade to journeyman mechanic may be reviewed, there was other competent evidence. Fulton testified his union local was responsible for determining when he would become a journeyman mechanic. He admitted that to become a journeyman he needed to satisfy an experience requirement by working a requisite number of hours as an apprentice mechanic.
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