Opinion
W.C. No. 3-914-356
December 11, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ), dated March 30, 1997. The claimant argues that the ALJ's findings of fact are insufficient to permit appellate view of her contention that the ALJ applied the wrong legal standard in denying permanent total disability benefits. We disagree, and therefore, affirm.
The ALJ found that the claimant can perform several jobs within her medical restrictions, including delivery work, building attendant or security work, bank teller work, and work as a hotel/motel desk clerk. The ALJ also found that all of these jobs are available in the claimant's local labor market. (Finding of Fact 14). Accordingly, the ALJ determined that the claimant is "clearly still" employable "within a regularly recognized branch" of the local labor market. (Finding of Fact 15, Conclusions of Law 1). Consequently, the ALJ concluded that the claimant failed to sustain her burden to prove that she is permanently and totally disabled.
Because the claim involves a 1988 injury, the claim is governed by the legal standard for permanent total disability which existed in 1988. For injuries arising prior to July 1, 1991, permanent total disability exists when the claimant has lost and will not regain efficiency to some substantial degree in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). Under this standard, a finding of permanent total disability is not precluded if the claimant is limited to "make-work" or "sheltered" employment. See Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210,21 (Colo.App. 1990); Gruntmeier v. Tempel Esgar Inc., 730 P.2d 893 (Colo.App. 1986). Further, a claimant may be awarded permanent total disability benefits if his or her ability to secure employment is dependent on good luck, charity, business booms or superhuman efforts.
For claims arising on or after July 1, 1991, permanent total disability is governed by the statutory definition enacted in Senate Bill 91-218 (SB 218). See Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Section 8-40-201(16.5)(a), C.R.S. 1997, defines permanent total disability as the inability to "earn any wages." Under this standard, the claimant's relative "efficiency" in the labor market is not a consideration unless the claimant is so inefficient that there is no residual ability to earn. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995).
However, under either legal standard the ALJ may consider the claimant's education, work experience, age, medical restrictions, and vocational abilities in determining if the claimant is permanently and totally disabled. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Therefore, we reject the respondents' argument that the ALJ's consideration of these factors proves that he applied the pre-SB 218 legal standard.
Nevertheless, the ALJ is not held to a crystalline standard in articulating his findings of fact. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). To the contrary, the ALJ's order is sufficient if the basis for the order is apparent. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
The claimant's arguments notwithstanding, the ALJ's findings of fact are sufficient to ascertain the basis of his order. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Furthermore, it is implicit from the ALJ's findings that he applied the correct legal standard. Therefore, we decline to remand the matter for additional findings.
The ALJ denied permanent total disability benefits based upon his determination that the claimant retains the ability to earn wages in several fields of employment, and that jobs within her restrictions are currently available in the local labor market. The finding that the claimant is employable within a "regularly recognized branch" of the local labor market is inconsistent with the assertion that the claimant's employment opportunities are limited to "make-work" or sheltered employment, or dependent on charity, economic booms or superhuman efforts. In fact, the ALJ found that the claimant had not made any concerted efforts to obtain employment. (Finding of Fact 17).
Moreover, at the hearing, the ALJ expressly recognized that the claim was not governed by SB 218. See (Tr. pp. 31, 95); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Under these circumstances, we understand the ALJ as finding that the claimant retained the physical efficiency to perform a number of jobs which are readily available to her, and thus, that she can regain efficiency in the labor market. If follows, that the ALJ's findings of fact are sufficient to indicate the ALJ's application of the correct legal standard in denying the claim for permanent total disability benefits.
The claimant has made no other arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated January 30, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 11, 1997 to the following parties:
Linda C. Yates, 106 Trout Avenue, Colorado Springs, CO 80906
Sinton Dairy, Attn: Human Resources, 3801 N. Sinton Road, Colorado Springs, CO 80907
Mary Anne Slick, CNA Insurance Companies, P.O. Box 17369, T.A., Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
John Lebsack, Esq. and Stephen G. Sparr, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528 (For the Respondents)
BY: __________________________