Weld County School Dist. RE-12 v. Bymer, RE-12 and C

• Decision Date: 09 March 1998
• Docket Number: Nos. 97SC36,P,97SC37 and 97SC227,PASILLAS-CARMON,RE-12 and C,s. 97SC36
• Citation: 955 P.2d 550
• Parties: 98 CJ C.A.R. 1099, 98 CJ C.A.R. 1106, 98 CJ C.A.R. 1112 WELD COUNTY SCHOOL DISTRICTolorado Compensation Insurance Authority, Petitioners, v. Deborah Louise BYMER and Industrial Claim Appeals Office, Respondents. BRUSH GREENHOUSE PARTNERS and Colorado Compensation Insurance Authority, Petitioners, v. Ernesto GODINEZ and Industrial Claim Appeals Office, Respondents. Martin C.etitioner, v. SPADY BROTHERS and Colorado Compensation Insurance Authority, Respondents.
• Court: Colorado Supreme Court

Page 550

955 P.2d 550

98 CJ C.A.R. 1099, 98 CJ C.A.R. 1106,

98 CJ C.A.R. 1112

WELD COUNTY SCHOOL DISTRICT RE-12 and Colorado Compensation

Insurance Authority, Petitioners, v. Deborah Louise BYMER and Industrial Claim Appeals Office,

Respondents.

BRUSH GREENHOUSE PARTNERS and Colorado Compensation

Insurance Authority, Petitioners, v. Ernesto GODINEZ and Industrial Claim Appeals Office, Respondents.

Martin C. PASILLAS-CARMONA, Petitioner, v. SPADY BROTHERS and Colorado Compensation Insurance

Authority, Respondents.

Nos. 97SC36, 97SC37 and 97SC227.

Supreme Court of Colorado,

En Banc.

March 9, 1998.

Colorado Compensation Insurance Authority, Michael J. Steiner, Carolyn A. Boyd, Denver, for Petitioners.

The Morrell Law Office, LLC, Britton J. Morrell, Greeley, for Respondent Bymer.

John Berry, Denver, for Amicus Curiae Workers' Compensation Coalition.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Paul Farley, Deputy Attorney General, David M. Kaye, First Assistant Attorney General, John D. Baird, Assistant Attorney General, State Services Section, Denver, for Amici Curiae the Department of Labor and Employment and the Division of Workers' Compensation.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Mary E. Jeffers, Denver, for Respondent Ernesto Godinez.

Michael W. Seckar, Pueblo, Wilderman & Linnett, P.C., Martin J. Linnet, Denver, for Petitioner.

Colorado Compensation Insurance Authority, Michael J. Steiner, Carolyn A. Boyd, Laurie A. Schoder, Denver, for Respondents.

Justice MARTINEZ delivered the Opinion of the Court.

We consolidated these workers' compensation cases, for purposes of this appeal, to decide what factors may be considered in determining whether a claimant is permanently and totally disabled. Specifically, we granted certiorari to decide whether access to or availability of employment in a claimant's commutable labor market may be considered in determining if a claimant's injury renders the claimant "unable to earn any wages in the same or other employment," pursuant to section 8-40-201(16.5)(a) of the Workers' Compensation Act (the "Act"). See §§ 8-40-201 to 8-47-209, 3 C.R.S. (1997). We hold that these factors may be considered in determining a claimant's eligibility for permanent total disability benefits. Therefore, we affirm the judgments of the court of appeals in Weld County School District RE-12 v. Bymer, No. 96CA0041 (Colo.App. Oct. 31, 1996) (not selected for publication), and Brush Greenhouse Partners v. Godinez, 942 P.2d 1278 (Colo.App.1996), and we reverse the judgment of the court of appeals in Spady Bros. v. Industrial Claim Appeals Office, 942 P.2d 1340 (Colo.App.1997).

I.

A.

In 1992, Deborah Bymer worked as a custodian for Weld County School District RE-12 in Grover, Colorado. In October of that year, she sustained a compensable injury to her left wrist and hand. She reached maximum medical improvement ("MMI") in December of 1994. An administrative law judge ("ALJ") determined that, as a result of the injury, Bymer could not use her left upper extremity for grasping, and she experienced pain and loss of sensitivity in that area. The ALJ found that, given her medical impairment, Bymer was unable to find employment in Grover, a rural community in northeastern Colorado. The ALJ also found that the nearest community where Bymer could find employment was Greeley, Colorado, 60 to 65 miles from Grover. The ALJ determined, however, that Bymer was unable to commute to Greeley because her injury prevents her from driving such a long distance. Thus, the ALJ found that Greeley was not within Bymer's "commutable labor market."

The ALJ stated that, because of her injury, geographic residence and limited ability to drive, Bymer was unable to "obtain wages or employment." Consequently, the ALJ concluded that Bymer was entitled to permanent total disability ("PTD") benefits under the Workers' Compensation Act. See § 8-40-201(16.5)(a). The insurer, the Colorado Compensation Insurance Authority ("CCIA"), and the employer appealed the ALJ's order on the grounds that the proper test for determining PTD benefits is whether the claimant can earn wages in any labor market, not solely the claimant's commutable labor market.

The Industrial Claim Appeals Office ("ICAO") affirmed the ALJ's award, finding that the ability to earn any wages is a factual determination for the ALJ, and an ALJ may consider the claimant's commutable labor market in reaching this determination. In affirming the ICAO's order, the court of appeals held that an ALJ may consider various "human factors," such as mental training, ability, education, former employment and the community where the claimant resides. See Weld County Sch. Dist. RE-12 v. Bymer, No. 96CA0041, slip op. at 2 (Colo.App. Oct. 31, 1996) ("Bymer "); see also Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194, 1197 (Colo.App.1995). Both the ICAO and the court of appeals found that the ALJ's determination that Bymer was permanently and totally disabled was supported by substantial evidence in the record, and therefore the ALJ's finding was binding on appeal. See Bymer, No. 96CA0041, slip op. at 2-3.

B.

In February of 1994, Ernesto Godinez sustained a compensable back injury while working as a laborer for Brush Greenhouse Partners in Brush, Colorado. He reached MMI on August 18, 1994. The ALJ found that, as a result of his injury, Godinez suffered continued back pain and had problems with sitting, standing, bending and other routine activities. Thus, the ALJ found that Godinez was physically capable of performing only "light" duty category employment. The ALJ also found that Godinez had: (1) completed only the fourth grade in Mexico, (2) very limited language and mathematics skills, (3) worked primarily as a laborer for his entire life, and (4) no driver's license. The ALJ concluded that Godinez lacked the language and training skills to perform the light duty jobs (e.g., cashier and clerical work) available in the Fort Morgan/Brush area, his reasonable commutable distance from home.

Thus, the ALJ determined that Godinez's physical impairment, lack of education, and limited language and mathematics skills prevented Godinez from accessing "the labor market in the Fort Morgan/Brush area." Because Godinez was unable to secure any employment, the ALJ ruled that he was permanently and totally disabled. Brush Greenhouse Partners and the CCIA appealed, asserting that the proper legal standard to apply to a PTD determination is whether the claimant can earn wages in any employment "anywhere in the United States." Both the ICAO and the court of appeals affirmed the ALJ's order. See Brush Greenhouse Partners v. Godinez, 942 P.2d 1278, 1279 (Colo.App.1996) ("Brush Greenhouse "). The court of appeals held that the "community where a claimant resides" is among the interdependent factors that an ALJ may consider in a PTD determination, and the record supported the ALJ's award of PTD benefits to Godinez. Id.

C.

On July 15, 1992, Martin Pasillas-Carmona suffered a compensable back injury while working as a farm laborer in Las Animas, Colorado, a rural community two hours from Pueblo. He reached MMI on March 1, 1994. The ALJ found that, because his injury restricted him to sedentary and light level work, Pasillas could not return to his pre-injury employment. The ALJ further found that Pasillas: (1) completed only the fourth grade in Mexico, (2) could speak and understand little English, and (3) was illiterate in English. Because of Pasillas's injury, educational and language barriers, the ALJ found that Pasillas was not employable in his "local labor market" (Las Animas and other locations within a commuting distance of Las Animas). Thus, the ALJ determined that Pasillas was permanently and totally disabled.

The ICAO affirmed the award of PTD benefits to Pasillas, ruling that the ALJ did not err in considering evidence of Pasillas's education, linguistic ability, transferable skills, physical limitations and local labor market. The court of appeals reversed, stating that "disability is a function of impairment, not geography or job availability." Spady Bros. v. Industrial Claim Appeals Office, 942 P.2d 1340, 1342 (Colo.App.1997) ("Spady Bros."). The court of appeals held that a claimant's access to employment in the community where the claimant resides or within a reasonable commutable distance from that community may not be considered in determining eligibility for PTD benefits. See id.

II.

A.

Prior to 1991, the Act did not define PTD; instead, our case law supplied the prevailing PTD standard. In Byouk v. Industrial Commission, 106 Colo. 430, 434, 105 P.2d 1087, 1089 (1940), we held that an employee was entitled to PTD benefits if, as a result of a work-related injury, the employee did not "retain[ ] or would [not] regain efficiency in some substantial degree as a working unit in the fields of general employment." See also Christie v. Coors Transp. Co., 933 P.2d 1330, 1335 (Colo.1997) ("Christie II "). Applying the Byouk standard for PTD, reviewing courts considered various interdependent factors relevant to a claimant's ability to be employed. These various "human" factors included the claimant's physical condition, mental ability, age, employment history, education, and availability of work that the claimant could perform. See Christie II, 933 P.2d at 1335; Best-Way Concrete, 908 P.2d at 1196. These PTD factors were essentially identical to the statutory considerations relevant to the determination of permanent partial disability ("PPD"), which included "the general physical condition and mental training, ability, former employment, and education of the injured employee." § 8-51-108(1)(b), 3B C.R.S. (1986); see Christie II, 933 P.2d at 1335 n. 3; Casa Bonita Restaurant v. Industrial Comm'n, 624 P.2d 1340, 1342 (Colo.App.1981).

In 1991, the General Assembly added a...