Matthews v. Industrial Commission

• Decision Date: 13 November 1980
• Docket Number: No. 79CA0975,79CA0975
• Citation: 627 P.2d 1123
• Parties: Jackie R. MATTHEWS, Petitioner, v. The INDUSTRIAL COMMISSION of the State of Colorado, Acme Delivery Service, Inc., and Western Casualty and Surety Company, Respondents. . III
• Court: Colorado Court of Appeals

Page 1123

627 P.2d 1123

Jackie R. MATTHEWS, Petitioner, v. The INDUSTRIAL COMMISSION of the State of Colorado, Acme Delivery Service, Inc., and Western Casualty and Surety Company, Respondents.

No. 79CA0975.

Colorado Court of Appeals, Div. III.

Nov. 13, 1980.

Rehearing Denied Dec. 11, 1980.

Fogel, Keating & Wagner, P. C., James M. Robinson, Denver, for petitioner.

Glasman, Jaynes & Carpenter, James L. Carpenter, Denver, for respondents Acme Delivery Service, Inc. and Western Casualty and Surety Co.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sp. Asst. Atty. Gen., William Levis, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado.

BERMAN, Judge.

Petitioner seeks review of the Industrial Commission's denial of his claim for permanent partial disability benefits under Colorado's Workmen's Compensation Act. We affirm.

Petitioner was injured in a fall from a loading dock on February 3, 1978. His employer and its insurer admitted liability and paid petitioner workmen's compensation benefits for temporary total disability through February 20, 1978. On that date, petitioner returned to work and has since lost no time caused by his injury.

After his return to work, a hearing was held to determine whether petitioner sustained any permanent disability attributable to his work-related injury. The hearing record included petitioner's testimony that as a result of his injury he had lost his senses of taste and smell, the report of petitioner's attending physician to the effect that petitioner had suffered no permanent physical disability resulting from his injury, and a letter from an examining neurologist which stated that petitioner appeared to be suffering from permanent traumatically induced anosmia (loss of sense of smell). That letter further stated, "I would recommend a three per cent partial permanent disability...."

The referee found petitioner to have sustained no impairment of his earning capacity as a proximate result of the subject injuries. In addition, the referee concluded that petitioner had sustained three per cent permanent partial physical impairment, and awarded benefits on that basis.

Upon review, the Industrial Commission sustained the referee's finding that petitioner had suffered no continuing impairment of his earning capacity. It found the evidence insufficient to show that petitioner's loss of sense of smell had any material effect on his current work performance or his future employability. As a result, the Commission reversed the referee's order and denied petitioner benefits for permanent partial disability.

I.

On this review, petitioner contends that the Industrial Commission erred in reversing the referee's order of permanent partial disability benefits. We disagree.

We note that the referee himself found petitioner to have suffered no permanent impairment of his earning capacity. Nevertheless, the referee awarded permanent disability benefits.

As used in the Workmen's Compensation Act, "disability" means loss of earning capacity. Colorado Fuel & Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962); Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). Physical impairment alone does not necessarily imply such disability, for some anatomical impairments have no material effect on a person's status in the labor market. Puffer Mercantile Co. v. Arellano, 190 Colo. 138, 546 P.2d 481 (1975). Therefore, a loss of sense of taste or smell would not per se warrant an award for permanent partial disability. A further showing would be needed that such loss permanently impaired petitioner's earning capacity.

The burden of proof is upon the claimant to establish his right to benefits. Industrial Commission v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966). Where the Commission's determination that a claimant has failed to meet his burden is consistent with the evidence of record, that determination may not be disturbed on appeal. Crandall v. Watson-Wilson Transportation Systems, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Here, it is undisputed that petitioner's earnings are the same as before his injury. Nor was evidence offered to show that petitioner's job is jeopardized by his lack of the senses of taste and smell. Indeed, petitioner himself testified that he was earning as much as before the accident and that his employment was not threatened. The inquiry, though, may not end with such considerations. The referee was bound by statute to take into account "the general physical condition and mental training, ability, former employment, and education of" petitioner. Section 8-51-108(1)(b), C.R.S.1973 (1979 Cum.Supp.). The record is complete with respect to those factors and reveals that the referee considered them. Nothing in them raises any inference that petitioner's employability has been or will be affected by his lack of the senses of taste or smell. Hence, the Commission was justified in concluding that petitioner suffered no permanent partial disability.

We do not intimate by our holding today that loss of sense of taste or smell could not in a different case provide a predicate for award of permanent partial disability benefits. We merely find no error in the Commission's conclusion that, given petitioner's own background and reasonable prospects, no sufficient showing of permanent earning incapacity was made upon which properly to base such an award. ¹

II.

Petitioner also argues that the Workmen's Compensation Act is unconstitutional. Because it appeared that § 13-4-102(1)(b), C.R.S.1973, excludes such issues from our jurisdiction, this case was transferred to the Colorado Supreme Court upon conclusion of oral argument.

The Supreme Court, by order 80SA0309 dated August 5, 1980, transferred the matter back to this court. On August 18, 1980, the Supreme Court, in an unnumbered order (reproduced as Appendix A hereto) issued in case 80CA0673, stated that, under § 13-4-102(1), C.R.S.1973:

(T)here is no exception to the jurisdiction of the Court of Appeals to review Industrial Commission cases wherein the constitutionality of a statute is in question. The only such exception...