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Joslins Dry Goods Co. v. Industrial Claim Appeals Office of the State of Colorado2/1/2001
ORDER AFFIRMED
Division IV
Ruland and Kapelke, JJ., concur
In this workers' compensation case, Joslins Dry Goods Company and its insurer, Liberty Mutual Insurance Company (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) awarding Cindy L. Carlson (claimant) permanent total disability (PTD) benefits. We affirm.
Claimant sustained a compensable injury when she fell in 1993. She injured her right shoulder and back, and subsequently developed migraine headaches. Claimant has also been diagnosed with depression.
Claimant testified that at the time of the hearing in 1999, she worked as a food service worker at her daughter's school, worked two to three hours per day, two to three days per week, and was paid $6.10 per hour. This job began as volunteer work, and claimant testified that she gave free cartons of milk to students who helped her with lifting and that her boss was a friend who "protected" her. Claimant also testified that she felt unable to continue this employment because of frequent, disabling headaches. An examining physician opined that claimant should not continue the food service job because it caused stress and muscle tension, which "set off" the headaches.
Claimant's vocational expert opined that claimant was not capable of maintaining employment. He further stated that claimant's job as a food service worker did not constitute employment because of the limited number of hours, and because she was permitted to work significantly fewer hours than mandated by her contract. Finally, the expert opined that the food service job was not the type of work generally available to the public.
Crediting the testimony of claimant, her physician, and the vocational expert, the Administrative Law Judge (ALJ) found that claimant was rendered permanently and totally disabled as a result of the industrial injury. The ALJ further determined that claimant's work at the school did not qualify as competitive employment and that no jobs were available which would allow claimant to earn any wages. The Panel affirmed.
I.
Employer contends that the ALJ's award of PTD benefits is erroneous as a matter of law because claimant held the food service job for more than two years after the industrial injury and continued to work at the time of the hearing, thereby demonstrating the ability to earn wages. We disagree.
Under ยง8-40-201(16.5)(a), C.R.S. 2000, a claimant is permanently and totally disabled if he or she is "unable to earn any wages in the same or other employment." Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
However, in making a PTD determination, the ALJ may consider the effects of the industrial injury in light of the claimant's human factors, including, inter alia, the claimant's age, work history, general physical condition, and prior training and experience. Weld County School District RE-12 v. Bymer, supra; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo. App. 1999). The crux of the test is the "existence of employment that is reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, supra, 955 P.2d at 558.
PTD benefits may be awarded even if a claimant holds some type of post-injury employment. To hold otherwise would be contrary to the public policy to encourage the return of injured workers to the work force. If the evidence shows that a claimant is not physically able to sustain the post-injury employment, or that such employment is unlikely to become available to a claimant
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