Vail Associates, Inc. v. West

• Decision Date: 04 November 1982
• Docket Number: No. 82CA0077,82CA0077
• Citation: 661 P.2d 1187
• Parties: VAIL ASSOCIATES, INC., and Valley Forge Insurance Company, Petitioners, v. Robert Dean WEST and Industrial Commission of the State of Colorado, Respondents. . II
• Court: Colorado Court of Appeals

Page 1187

661 P.2d 1187

VAIL ASSOCIATES, INC., and Valley Forge Insurance Company, Petitioners, v. Robert Dean WEST and Industrial Commission of the State of

Colorado, Respondents.

No. 82CA0077.

Colorado Court of Appeals,

Div. II.

Nov. 4, 1982.

As Modified on Denial of Rehearing

Dec. 23, 1982.

Certiorari Granted April 18, 1983.

Knapp & Lee, P.C., Robert A. Weinberger, Denver, for petitioners.

Greengard, Blackman & Senter, Lawrence D. Blackman, Robert J. Thomas, Denver, for respondent Robert Dean West.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Lynn Palma, Asst. Atty. Gen., Denver, for respondent Indus. Com'n.

STERNBERG, Judge.

The determinative issue in this review is whether worker's compensation benefits are available to an employee where injury results in permanent partial disability which prevents him from performing his job, but where the employee obtains other employment at a higher salary. The Industrial Commission awarded benefits and we affirm.

The claimant was employed by Vail Associates as a ski instructor during the winter. He also painted houses during the summer. In February 1975, he suffered an injury to his low back while skiing in the course of his employment. The employer admitted liability for permanent disability calculated to be 4- 1/4% as a working unit, and claimant received an award based on this figure. Following surgery to remove a disc, claimant returned to work.

In March 1978, claimant petitioned to reopen his claim, alleging a worsening of his condition. Supported by a medical report, claimant testified he could no longer perform the work of ski instructor or painter. He testified to limited ability to stand and sit for extended periods, or to lift dead weight. Claimant is still able to engage in recreational skiing and other physical activity, but cannot perform the more strenuous work of skiing instructor or house painter. Prior to the hearing, claimant underwent a second surgical procedure which further limited his movement. Thereafter, he obtained employment as a real estate salesman and earned approximately $90,000 during fiscal year April 1979 through April 1980. In contrast, as a ski instructor he could earn a maximum of $30,000 per year. Following the hearing in August 1980, but before entry of the order, the parties stipulated to permanent physical impairment of 10% as a working unit.

Relying upon Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App.1980), the employer argues that lost earning capacity is a condition precedent to an award for permanent disability, and that, absent impairment of earnings, physical impairment is insufficient as a basis for an award. Thus, the employer contends that the claimant was not disabled, as that term is used in the Act. We disagree.

In Matthews, the claimant lost his sense of taste and smell but was able to continue his former occupation at the same salary. The commission applied § 8-51-108(1)(b), C.R.S. 1973, and found no evidence that the claimant's future employability would be affected by his lack of the senses of taste or smell. Based on this finding, the commission concluded that physical impairment alone was not sufficient to prove disability as...