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Christie v. Coors Transportation Co.12/7/1995
Richard A. Christie (claimant) seeks review of a final order of the Industrial Claim Appeals Panel denying his claim for permanent total disability (PTD) benefits and also challenges the constitutionality of those portions of the Workers' Compensation Act (Act) used to determine that he was not totally disabled. We affirm the order of the Panel and find no constitutional infirmity.
The operative facts are undisputed. While working for Coors Transportation Co. (employer) in August 1991, claimant sustained an industrial back injury. He returned to his job as a truck driver with restrictions and was subsequently terminated in 1992. Employer admitted liability for permanent partial disability of 31% based upon an independent medical examination, but claimant sought PTD benefits.
The Administrative Law Judge (ALJ) credited a functional capacities evaluation (FCE), which indicated that claimant was employable at a "light level" for an eight-hour day with restricted lifting, carrying, standing, sitting, and reaching or handling with the right upper extremity. The ALJ also credited the testimony of employer's vocational expert, who opined that claimant retains probable access to employment as a telephone salesperson, parking lot attendant, cashier, clerk, and other similar positions.
The ALJ concluded that claimant's disability is not total, because although he "may not be efficient in any field of employment, he does retain access to specific, identifiable and available employment opportunities and can earn wages in those fields." (emphasis in original) The Panel affirmed.
I.
Claimant contends that he is permanently and totally disabled and that an incorrect legal standard was applied in denying his claim. We disagree.
Prior to 1991, the Act provided little guidance for the determination of PTD. While certain disabilities were presumptively permanent and total, others required that the courts balance various factors and determine whether "the claimant 'retained or would regain efficiency in some substantial degree as a working unit in the fields of general employment'. Byouk v. Industrial Commission, 106 Colo. 430, 434, 105 P.2d 1087, 1089 (1940)." McKinney v. Industrial Claim Appeals Office, 894 P.2d 42, 43 (Colo. App. 1995).
In the 1991 amendments to the Act, PTD was defined, for the first time, as follows:
'Permanent total disability' means the employee is unable to earn any wages in the same or other employment. The burden of proof shall be on the employee to prove that he is unable to earn any wages in the same or other employment. Colo. Sess. Laws 1991, ch. 219, § 8-40-201(16.5) at 1293 (emphasis added) (now codified with changes at § 8-40-201(16.5)(a), C.R.S. (1995 Cum. Supp.)).
Construing the phrase "any wages" in this statute, a division of this court found it to mean that a claimant is disqualified from PTD benefits if he or she is capable of earning wages in any amount. McKinney v. Industrial Claim Appeals Office, supra.
We decline claimant's invitation to revisit the decision in McKinney. And, since the claimant's ability to earn wages is a factual question, the ALJ's determination must be upheld if supported by substantial evidence. See § 8-43-308, C.R.S. (1995 Cum. Supp.).
In applying the substantial evidence test, we must defer to the ALJ's resolution of conflicts in the evidence, his or her credibility determinations, and the plausible inferences which can be drawn from the evidence. Metro Moving & Storage Co. v. Gussert, P.2d (
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