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Brothers v. Industrial Claim Appeals Office2/6/1997
The issue in this workers' compensation case is whether, in determining permanent total disability under § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), access to employment in the labor market where the claimant resides is a factor to be considered. We conclude that it may not be considered and, therefore, set aside the award of permanent total disability benefits to Martin C. Pasillas-Carmona (claimant) and remand with directions.
Claimant sustained a compensable back injury while working as a farm laborer for Spady Brothers (employer). The Administrative Law Judge (ALJ) found that claimant was born in Mexico and had a sixth grade education, is illiterate in English, and is restricted to sedentary or light duty work. Furthermore, the ALJ found that claimant resides in Las Animas, a small rural town in southern Colorado with a population of 2,000, and that it takes two hours to drive to Pueblo from Las Animas.
Based upon these findings, the ALJ determined that claimant is not capable of earning any wages in his local labor market, or any other location within commuting distance from his residence. Therefore, the ALJ concluded that claimant was permanently and totally disabled, and the Panel affirmed.
Employer and its insurer, the Colorado Compensation Insurance Authority (collectively CCIA), contend that the ALJ applied an incorrect legal standard to determine that claimant is permanently and totally disabled. They argue that the proper test is whether claimant can earn any wages in any labor market, rather than within his commutable labor market. We agree that limiting the consideration to the Las Animas labor market was error.
Prior to the amendment to the Workers' Compensation Act in 1991, there was no specific statutory definition of the term permanent total disability. The 1991 statutory amendment, § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.) provides that:
'Permanent total disability' means the employee is unable to earn any wages in the same or other employment. And, this provision further states that the burden of proof is on the employee to prove that the employee is unable to earn any wages in the same or other employment.
In McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo. App. 1995), a division of this court stated that the purpose of the statutory amendment was to establish a stricter definition of permanent total disability. Nevertheless, in Brush Greenhouse Partners v. Godinez, 1996 Colo. App. LEXIS 386, ___ P.2d ___ (Colo. App. No. 96CA0266, December 27, 1996), a division of this court held that a claimant's commutable labor market was a proper factor for the ALJ to consider in determining whether a claimant could earn any wages.
Relying on Prestige Painting & Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo. App. 1991), the Brush Greenhouse division concluded that the community where a claimant resides is one of the "human factors" which are relevant to the determination of permanent total disability. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo. App. 1995) (in determining whether a claimant can earn any wages, the ALJ may consider "human factors," such as mental training, ability, education, and former employment).
We find no support for the rule announced in Prestige Painting. Therefore, we decline to follow either Prestige Painting or Brush Greenhouse.
In Prestige Painting, a division of this court stated that a claimant may be totally disabled, even though he can obtain occasional employment, and that, in the application of this rule, "consideration can be taken of the community where a claimant resides." Prestige Painting & Decor
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