Professional Fire Protection, Inc. v. Long

• Decision Date: 02 December 1993
• Docket Number: No. 92CA1351,92CA1351
• Citation: 867 P.2d 175
• Parties: PROFESSIONAL FIRE PROTECTION, INC. and Colorado Compensation Insurance Authority, Respondents-Appellants, v. Thomas E. LONG, Claimant-Appellee, and The Industrial Claim Appeals Office of the State of Colorado, Appellee. . II
• Court: Colorado Court of Appeals

Page 175

867 P.2d 175

PROFESSIONAL FIRE PROTECTION, INC. and Colorado Compensation Insurance Authority, Respondents-Appellants, v. Thomas E. LONG, Claimant-Appellee and The Industrial Claim Appeals Office of the State of Colorado, Appellee.

No. 92CA1351.

Colorado Court of Appeals Div. II.

Dec. 2, 1993.

Michael J. Steiner, Colorado Compensation Ins. Authority, Denver, for respondents-appellants.

Norton Frickey & Associates, Michael S. Kocel, Colorado Springs, for claimant-appellee Thomas E. Long.

No appearance for Indus. Claim Appeals Office.

Opinion by Judge TURSI.

Respondent Colorado Compensation Insurance Authority (CCIA) seeks review of a final order of the Industrial Claim Appeals Panel which determined that Thomas E. Long (claimant) was permanently and totally disabled. We affirm.

Claimant was employed as a field supervisor for Professional Fire Protection when he sustained an admitted industrial injury on April 6, 1987. Subsequent to the injury, he was found eligible for vocational rehabilitation. The only feasible vocational rehabilitation plan required 15 months of training. Claimant received no vocational rehabilitation after CCIA refused to authorize any vocational rehabilitation maintenance benefits beyond the statutorily-mandated 52 weeks of benefits. Claimant thereafter sought a permanent disability award.

After a hearing, the Administrative Law Judge (ALJ) determined that claimant was permanently and totally disabled. Employer and CCIA appealed, arguing that the ALJ applied an incorrect legal standard, "suitable gainful employment," in determining whether claimant was permanently disabled. The Panel distinguished between the vocational rehabilitation standard of "suitable gainful employment" and the standard for determining permanent disability. Concluding that the ALJ may have used an incorrect legal standard, the Panel remanded for a new order.

Based on the findings on remand, the ALJ concluded that claimant would not regain efficiency to a substantial degree in the field of general employment without substantial vocational rehabilitation services and formal training, that there was no evidence that substantial vocational rehabilitation was available to claimant, and that CCIA's refusal to offer more than 52 weeks of vocational rehabilitation training was the major cause of claimant's inability to regain some substantial degree of efficiency in the fields of general employment.

The ALJ further concluded, based upon CCIA's refusal to provide more than 52 weeks of vocational rehabilitation maintenance benefits, the credibility of the witnesses, and claimant's age, education and training, work experience, pre-injury wage, physical limitations, and general physical condition, that claimant had proved by a preponderance of the evidence that he had not retained and would not regain efficiency in some substantial degree in the field of general employment.

On the basis of these conclusions, the ALJ ruled that claimant was permanently and totally disabled. The Panel affirmed, and CCIA sought this review.

CCIA contends that the ALJ improperly applied the legal standard of "suitable gainful employment" and focused on factors related to vocational rehabilitation in determining whether claimant was permanently disabled. We disagree.

Under the statutory provisions in effect at the time of claimant's injury, if an injured worker was found to be eligible for vocational rehabilitation, an employer could be required to provide up to 52 weeks of vocational rehabilitation. See Colo.Sess.Laws 1981, ch. 82, § 8-49-101 at 467. The purpose of mandatory vocational rehabilitation was to return the permanently disabled worker to "suitable gainful employment." See Roe v. Industrial Commission, 734 P.2d 138 (Colo.App.1986).

The regulation defining "suitable gainful employment" required consideration of numerous factors such as claimant's age, education, previous work history, interests, skills, and economic level at the time of the injury. See Rules of Procedure, Part (V)(B)(6), 7 Code Colo.Reg. 1101-3 (repealed effective February 1992); Electron Corp. v. Wuerz, 820 P.2d 356 (Colo.App.1991).

However, under the law applicable to this claim, "permanent total disability" existed when the claimant had not retained and would not regain efficiency in some substantial degree in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940); Prestige Painting & Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App.1991).

Permanent disability is not measured by any single criterion, such as the worker's physical condition, Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App.1981), or loss of income. Gruntmeir v. Tempel & Esgar, Inc., 730 P.2d 893 (Colo.App.1986).

Further, it is not determined exclusively from general impairment or impairment of capacity to perform specific work. Rio Grande Motor Way, Inc. v. De Merschman, 100 Colo. 421, 68 P.2d 446 (1937); Prestige Painting & Decorating, Inc. v. Mitchusson, supra. Rather, the extent and degree of permanent disability is assessed on the basis of various interdependent factors which affect the worker's capacity to be gainfully employed.

These factors include the worker's age, education, prior work experience and vocational training, the worker's overall physical condition and mental capabilities, and the availability of the type of work which the worker can perform. Colorado Fuel & Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962); see also Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210 (Colo.App.1990).

Furthermore, although a claimant's ability to return to or be retrained for suitable gainful employment is not determinative of his permanent total disability, Prestige Painting & Decorating, Inc. v. Mitchusson, supra, the absence of vocational rehabilitation is an...