Ski Depot Rentals, Inc. v. Lynch, 84CA1414

• Decision Date: 21 November 1985
• Docket Number: No. 84CA1414,84CA1414
• Citation: 714 P.2d 516
• Parties: SKI DEPOT RENTALS, INC., Petitioner, v. Anne S. LYNCH, the Industrial Commission of the State of Colorado, Charles McGrath, Director of the Colorado Division of Labor, Respondents. . I
• Court: Colorado Court of Appeals

Page 516

714 P.2d 516

SKI DEPOT RENTALS, INC., Petitioner, v. Anne S. LYNCH, the Industrial Commission of the State of Colorado, Charles McGrath, Director of the Colorado Division of Labor, Respondents.

No. 84CA1414.

Colorado Court of Appeals Div. I.

Nov. 21, 1985.

Rehearing Denied Dec. 19, 1985.

Certiorari Denied (Ski Depot) Feb. 24, 1986.

Lynn W. Toedte, P.C., Lynn W. Toedte, Denver, for petitioner.

Glasman, Jaynes & Carpenter, Ronald C. Jaynes, Susan D. Steninger Knisley, Denver, for respondent Anne S. Lynch.

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 Indus. Com'n and Charles McGrath.

KELLY, Judge.

Ski Depot Rentals, Inc. (employer) seeks review of a final order of the Industrial Commission awarding claimant, Ann S. Lynch, temporary partial disability and permanent partial disability of nine percent as a working unit. The employer argues that the findings were not supported by substantial evidence, and that it was denied due process. We affirm.

Claimant was employed as a "soft ware" manager and buyer at the employer's retail ski shop. She injured her left knee on July 8, 1981, and the employer admitted liability. The knee injury necessitated two surgeries, which included an arthroscopy and "reconstruction of [the] medial retinaculum and lateral release" on July 18, 1981. Subsequently, on December 12, 1981, an "arthroscopic debridement" was performed in order to remedy persistent "clicking" in the knee.

On July 8, claimant was earning $1,400 per month as a manager-buyer. She also received bonuses, medical insurance, and a season ski pass. Additionally, claimant had just commenced operation of a condominium cleaning business known as "Bunzup." However, claimant did not begin receiving income from Bunzup until later.

Claimant remained with the employer until September 25, 1981, when she was terminated for allegedly inadequate performance. Thereafter, she was self-employed in the Bunzup enterprise until July 1982. During this period claimant was under medical restrictions against climbing stairs, prolonged standing, and lifting. Consequently, claimant's activities in Bunzup were usually limited to bidding jobs, inspecting, purchasing, and doing laundry. However, claimant occasionally performed physical labor. Claimant's income from Bunzup during this time was considerably less than $1,400 per month, and she worked very long hours.

In July 1982, claimant was released from care by her orthopedic surgeon. The surgeon stated that claimant still suffered from "some crepitation" of the patella and some lost motion, and that she might suffer occasional problems restricting her job choices. The surgeon opined that claimant has suffered "permanent partial impairment" of 5 percent as a "body unit based on 15 percent impairment of her knee." The employer's examining physician rated claimant's disability as 15 percent at the knee.

Following her release, claimant was hired as a real estate agent at the Silver Creek resort, and subsequently became a sales representative for the Silver Creek Ramada Inn. By January 1982 her Silver Creek salary was $1,015 per month. Together with her Bunzup activities, claimant reported earnings ranging from $1,187 to $2,274 for the period from November 1982 through March 1983.

It is of further significance that claimant was twenty-two years old on the date of injury. She had a high school education plus three and one half years of college towards a degree in exercise physiology. Claimant testified that, as a result of her injury, she had abandoned any hope of pursuing a career in exercise physiology because she would be unable to lift patients and manipulate their extremities.

Based on the foregoing, a referee entered an order on January 17, 1984, finding that claimant was entitled to temporary partial disability payments between December 1981 and July 1982. Further, the referee held that claimant was entitled to permanent partial disability based on nine percent as a working unit.

The referee issued a supplemental order on October 5, 1984, which corrected certain typographical errors in the January order. The October order also recognized that the referee had not conducted the initial hearing, though she had conducted the second one. The referee stated that she did not read the transcript of the initial hearing prior to issuing the January order, and that she had now done so. She reaffirmed the findings and conclusions of the January order, stating that reading the transcript of the initial hearing did not "materially" change any portion of the January order. The Commission affirmed the findings and conclusions of the referee.

I.

The employer first contends that there is insufficient evidence to support the finding that claimant suffers a disability of nine percent as a working unit. The employer argues that claimant did not suffer any loss of earning capacity because she could have resumed work as buyer, because she was earning more in 1983 than she did as a buyer, and because claimant did not have the requisite education or desire to pursue a career in exercise physiology. We disagree.

In assessing this argument we apply the rule that the Commission has wide discretion in determining the degree of disability. American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978); In re Claim of Gilliatt v. Industrial Commission, 680 P.2d 1310 (Colo.App.1983). Further, we presume that the Commission considered the relevant factors, and we will not set aside its conclusion if it is supported by substantial evidence in the record. Section 8-53-120, C.R.S. (1984 Cum.Supp.); Dravo Corp. v. Industrial Commission, 40 Colo.App. 57, 569 P.2d 345 (1977).

Here, the evidence revealed a demonstrable physical impairment which claimant's physician opined could cause her difficulty in the future. Further, the evidence indicates that the impairment hampered claimant's ability to perform the physical tasks necessary in her second job, the cleaning business. Such evidence in itself would support the Commission's findings.

Furthermore, the evidence supports the conclusion that the injury destroyed claimant's capacity for a career in exercise physiology. Admittedly, claimant had not completed her studies, nor pursued them recently. However, she had devoted considerable time to her studies and had practical experience as an athletic trainer. Considering the claimant's age, the...