Lucero v. Climax Molybdenum Co.

• Decision Date: 09 February 1987
• Docket Number: 86SC53,85SC414,Nos. 85SC411,s. 85SC411
• Citation: 732 P.2d 642
• Parties: Antonio LUCERO, Petitioner, v. CLIMAX MOLYBDENUM COMPANY; Industrial Commission of Colorado; State Compensation Insurance Fund of Colorado; and Director, Division of Labor, State of Colorado, Respondents. Curly G. BRASHER, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, DEPARTMENT OF LABOR AND EMPLOYMENT, Safeway Stores, Inc., and Home Insurance Company, Respondents. Fred ESPINOZA, Petitioner, v. AMAX, INC.; State Compensation Insurance Fund; Mike L. Baca, Gary Rose, and John McDonald, individually and as members of the Industrial Commission of Colorado; the Industrial Commission of the State of Colorado; and Charles J. McGrath, Director, Division of Labor, Respondents.
• Court: Colorado Supreme Court

Page 642

732 P.2d 642

Antonio LUCERO, Petitioner, v. CLIMAX MOLYBDENUM COMPANY; Industrial Commission of

Colorado; State Compensation Insurance Fund of

Colorado; and Director, Division of

Labor, State of Colorado, Respondents.

Curly G. BRASHER, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, DEPARTMENT OF LABOR AND EMPLOYMENT, Safeway Stores, Inc., and Home

Insurance Company, Respondents.

Fred ESPINOZA, Petitioner, v. AMAX, INC.; State Compensation Insurance Fund; Mike L.

Baca, Gary Rose, and John McDonald, individually and as

members of the Industrial Commission of Colorado; the

Industrial Commission of the State of Colorado; and Charles

J. McGrath, Director, Division of Labor, Respondents.

Nos. 85SC411, 86SC53, 85SC414.

Supreme Court of Colorado,

En Banc.

Feb. 9, 1987.

Richard T. Goold, Denver, for petitioner Lucero.

Douglas R. Phillips, Denver, for petitioner Espinoza.

Paul Tochtrop, Denver, for respondents State Compensation Ins. Fund, Climax Molybdenum Co., and Amax, Inc.

Dawes and Crane, P.C., Robert C. Dawes, Durango, for petitioner Brasher.

Watson, Nathan & Bremer, P.C., Anne Smith Myers, Denver, for respondent Safeway Stores.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Kathryn J. Aragon, Asst. Atty. Gen., Denver, for respondents Industrial Com'n and Dept. of Labor.

ROVIRA, Justice.

These three consolidated workers' compensation cases present an issue of first impression: whether Colorado law permits the reopening of a worker's compensation disability award based on a change of economic conditions without a showing of a change in the claimant's physical condition. In each of these cases, a hearing officer reopened past disability awards and granted additional benefits without finding a change in the claimant's physical condition. The Industrial Commission of the State of Colorado (Industrial Commission) reversed each case, holding that a showing of a change of physical or mental condition was required. ¹ The court of appeals affirmed. We now affirm.

I.

The facts in these cases need no detailed recitation for our purposes. Antonio Lucero, a miner employed by Climax Molybdenum Co., was injured on the job on September 24, 1979. Thirteen months later, Lucero returned to work but because of his injury was assigned to light duty and janitorial work. In December 1981, Climax and its insurer, the State Compensation Insurance Fund (SCIF), filed an admission of liability for permanent partial disability consisting of 12 percent loss of use of the right leg at the knee. Lucero did not contest this admission. In September 1982, Lucero was laid off by Climax because of company cutbacks in production and personnel. In February 1983, Lucero filed a petition to reopen the award on the grounds that his employment condition and earning capacity had worsened. Several months later, the hearing officer reopened the case and awarded Lucero additional disability and vocational rehabilitation benefits, concluding that there had been a change "in the economic circumstances of the respondent employer's business."

Fred Espinoza, a mine worker employed by Amax, Inc., sustained an injury in an on-the-job accident on July 16, 1976. Amax and SCIF filed an admission of liability in August 1976, and Espinoza was paid temporary total disability benefits for various periods of time. Eventually, Espinoza returned to work in a light-duty position as a janitor. In 1981, a hearing officer found that Espinoza had sustained a permanent partial disability of 27.5 percent as a working unit. Espinoza did not appeal. In April 1982, Espinoza was laid off. ² In February 1983, he filed a petition to reopen his award, alleging that his "employment condition and industrial disability" had worsened. This petition was granted in August 1983 by the hearing officer who awarded Espinoza temporary disability and vocational rehabilitation benefits. The hearing officer found that Espinoza's condition had changed "because he is no longer employed in the sheltered employment provided by Amax, Incorporated."

Curly Brasher, a truck driver who worked for Safeway Stores, Inc., was injured on the job on April 5, 1978. An admission of liability for temporary benefits was filed in May 1978. After a hearing in May 1981, a hearing officer concluded that Brasher had suffered a permanent partial disability of 15 percent measured as a working unit. In April 1982, the Industrial Commission reduced this award to 7.5 percent disability as a working unit. Two years later, Brasher filed a petition to reopen his award on the ground that he had been unable to locate a truck driving position within his physical capabilities. This petition was granted and Brasher was awarded benefits based on a finding of permanent partial disability of 60 percent as a working unit. Although Brasher had stipulated that his physical condition had not changed, the hearing officer concluded that Brasher had suffered a "worsening of his industrial disability."

The Industrial Commission reversed all three orders, construing the relevant statute to permit reopening of a disability award on the ground of "change in condition" only on a showing of "a change in the physical (or mental) disability condition of a claimant, as a proximate result or effect of the compensable injury." The commission also concluded that the reopening of these cases was contrary to its own rule that required a petitioner seeking to reopen an award on the grounds of change in condition to submit a physician's report showing the petitioner's physical condition and estimated impairment of that condition. ³ The court of appeals affirmed, holding that a "change in condition" as used in the relevant statute "means a change in the claimant's physical or mental condition resulting from the compensable injury and not a change in economic conditions, even though that change may affect the claimant's income." Lucero v. Climax Molybdenum Co., 710 P.2d 1191 (Colo.App.1985); Espinoza v. Amax, Inc., No. 84CA1134 (Colo.App. August 29, 1985) (not selected for publication); Brasher v. Industrial Commission, 717 P.2d 990 (Colo.App.1985).

II.

Petitioners argue that the court of appeals erred in construing "change in condition" to mean only a change in the claimant's physical or mental condition. See § 8-53-119, 3 C.R.S. (1982 Supp.) (hereinafter section 119). ⁴ They contend that the court of appeals has legislated by judicial fiat and ignored the purpose and language of the workers' compensation laws. We disagree with petitioners' contentions.

Looking solely at section 119, petitioners' contentions are plausible. That statute gives the director of the division of labor the discretionary power to reopen awards for "error, mistake or a change in condition"--without apparent limitation as to type of condition.

However, section 119 does not stand in isolation. When determining the meaning of a particular statute, it is necessary to consider the relationship of that statute to other legislative provisions concerning the same subject matter, especially when the statute in question is part of a comprehensive legislative program. Colorado Gen. Assembly v. Lamm, 700 P.2d 508, 518 (Colo.1985). Section 8-51-108(2), 3 C.R.S. (1973) (hereinafter section 108), also deals with the reopening of permanent disability awards due to a change in condition. Under section 108, interested parties may obtain a physician's examination of the employee, and that examination, if it shows "a change in degree" in the employee's "disability," will warrant reopening of an award for a change in condition. ⁵ While sections 108 and 119 do not appear to conflict, we believe section 108 sheds light on the legislature's intent in using the terms "change in condition" in section 119. Clearly, in section 108, the legislature was contemplating a change in physical condition.

To resolve this ambiguity, we look to other relevant sources for proper construction of the statute. One highly persuasive source in this case is the interpretation of the Industrial Commission--by rule and order--that section 119 refers solely to a change in physical condition. When courts are faced with a problem of statutory construction, deference should be given to the interpretation given the statute by the officer or agency charged with its administration. Colorado Gen. Assembly v. Lamm, 700 P.2d 508, 523 (Colo.1985). In the past, we have afforded the "widest possible discretion" to the Industrial Commission in determining the significance of factors relevant to a determination of disability. American Metals Climax, Inc., v. Cisneros, 195 Colo. 163, 166, 576 P.2d 553, 556 (1978).

Here, the Industrial Commission's interpretation is especially persuasive since the legislature amended section 119 after the commission had published its rule and after it had ruled on the Lucero, Espinoza, and Brasher cases. See Ch. 77, sec. 3, § 8-53-113, 1985 Colo.Sess.Laws 355, 355-56. Had the legislature disapproved of the Industrial Commission's interpretation, it could easily have also amended section 119 to allow for reopening of awards on the basis of an "economic" change in condition. See, e.g., Music City, Inc., v. Estate of Duncan, 185 Colo. 245, 248-49, 523 P.2d 983, 985 (1974); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 293-94, 78 S.Ct. 1174, 1184, 2 L.Ed.2d 1313 (1958).

The Industrial Commission's interpretation is also persuasive because it reflects a long-standing construction in this state that "change in condition" refers to a change in physical condition. Over the years, cases based upon "change in condition" have all involved purported changes in physical condition--even in cases where it seems likely that a plausible argument could have been made that an economic change had occurred. See Zurek v. Gates Rubber Co., 163 Colo. 321, 430 P.2d 465 (1967); Clodfelter v. Indus. Comm'n, 160 Colo. 39, 413 P.2d 700 (1966); Watkins...