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Brush Greenhouse Partners v. Godinez12/27/1996
review. Christie v. Coors Transportation Co., supra.
The order of the Panel is affirmed.
CHIEF JUDGE STERNBERG concurs.
JUSTICE ERICKSON Dissents.
Disposition
ORDER AFFIRMED
JUSTICE ERICKSON Dissenting:
I respectfully Dissent. In my view, in determining permanent total disability in a workers' compensation case following the statutory amendment in 1991, access to employment in the labor market where the claimant resides, is not a factor to be considered.
Prior to the amendment to the Workers' Compensation Act in 1991, access to employment in the labor market where the claimant resides was a factor which could be considered. The 1991 statutory amendment, ยง 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 Claims 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.
In this case, the 26-year-old claimant has few physical restrictions as a result of his injury , and his doctors agree that he can return to work. Indeed, all the doctors and vocational counselors agreed that claimant is able to perform light to medium duty work. He was determined to be permanently and totally disabled simply because he lives in a rural area. Specifically, the Administrative Law Judge found that even though claimant lived in Brush, he could not access the Fort Morgan Brush labor market, which was a reasonable commutable distance from his home because employment in the Fort Morgan Brush labor market is not available for a person with claimant's disability and skills.
This extension of permanent total disability by the majority creates numerous problems.
Several different phrases are used in the opinion to describe the labor-market concept:
1. Access to employment in the labor market where the claimant resides;
2. Reasonable commutable distance from his home;
3. Commutable labor market;
4. The community where a claimant resides; and
5. Jobs available in the locale of his residence.
These various references create problems as to exactly what labor market the court thinks should be considered. How far is the commutable area? Is it six miles, 60 miles, 100 miles? Does it depend on whether the claimant has reliable transportation? The claimant's ability to drive? Whether the claimant lives in a rural or an urban area? These imprecise definitions of a labor market lead to no workable definition of how it is to be applied.
It was not the intent of the General Assembly that a claimant with exactly the same restrictions, injuries, education, and training would become permanently and totally disabled if he lived in Brush, but only permanently partially disabled if he lived in Denver. Hence, I would set aside the order and remand for a determination of the extent of claimant's partial disability, if any.
Judges Footnotes
Page 1 2 Colorado Personal Injury Attorneys
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