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Brothers v. Industrial Claim Appeals Office2/6/1997
ating, Inc. v. Mitchusson, supra, 825 P.2d at 1050.
The only support for this latter statement is a citation to Gruntmeir v. Tempel & Esgar, Inc., 730 P.2d 893 (Colo. App. 1986). But, Gruntmeir was decided prior to the amendment of the statute defining permanent disability and concluded that the ALJ's finding of permanent partial disability was unsupported by the record, because "it is undisputed that [the claimant] is unable to find suitable employment in his local community." Gruntmeir v. Tempel & Esgar, Inc., supra, 730 P.2d at 894. The division in Gruntmeir ordered that the claimant be awarded permanent total disability. Gruntmeir cited no authority for its order, and we know of no Colorado case law to support the order.
Thus, we agree with the Dissent in Brush Greenhouse that the imprecise concept of a commutable labor market does not lend itself to a workable definition or application. In our view, it was not the intent of the General Assembly that a claimant with exactly the same restrictions, injuries, education, and training would become totally disabled if he resides in a rural area, but only partially disabled if he resides in a metropolitan area. We agree with McKinney that the 1991 amendments to the Workers' Compensation Act were intended to establish a stricter definition of permanent total disability. See McKinney v. Industrial Claim Appeals Office, supra.
Under the Workers' Compensation Act, disability is a function of impairment, not geography or job availability. Benefits are predicated upon a loss of earning capacity. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995). This factor distinguishes workers' compensation benefits from unemployment insurance benefits. See Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987) (workers' compensation was not intended to protect against diminishment of a worker's earning capacity caused by mass layoffs or other external fluctuations in economic conditions, and should not be transformed into unemployment insurance).
Accordingly, we decline to extend the concept of permanent total disability to include consideration of a claimant's access to employment in the community where he resides. This factor may not, under the guise of statutory interpretation or by application of case law which predates the amendment of the term permanent total disability, be read into ยง 8-40-201(16.5)(a). See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985).
The order of the Panel is set aside, and the cause is remanded for determination by the ALJ of the claimant's degree of disability without regard to the local labor market.
PIERCE Dissents.
JUDGE PIERCE Dissenting.
I Dissent. I feel compelled to follow the precedent established by Brush Greenhouse Partners v. Godinez, ___ P.2d ___ (Colo. App. No. 96CA0266, December 27, 1996), Prestige Painting & Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo. App. 1991), Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo. App. 1995), and Christie v. Coors Transportation Co., 919 P.2d 857 (Colo. App. 1994) (cert. granted July 1, 1996). I would affirm the order of the Panel.
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