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In re Hoffman, W.C. No

Industrial Claim Appeals Office
Sep 23, 2002
W.C. No. 4-991-822 (Colo. Ind. App. Sep. 23, 2002)


W.C. No. 4-991-822

September 23, 2002


The claimant seeks review of an order of Administrative Law Judge Schulman (ALJ) insofar as it denied a claim for permanent total disability benefits. The claimant argues the evidence compelled a finding of permanent total disability. The claimant also contends the ALJ erred by failing to limit the testimony of the respondent's vocational expert because of an alleged discovery violation. We affirm.

The claimant was employed as a full-time airline reservation clerk when she sustained compensable injuries to her head and neck on August 9, 1990. The claimant did not reach maximum medical improvement until February 1997. The claimant suffers from headaches, visual difficulties, tingling in her extremities, and chronic pain. The claimant is limited to working 20 hours per week in the light category.

After the injury the claimant returned to work as a reservation clerk for 20 hours per week. The claimant preferred to work 2 consecutive 10 hour days because it afforded her an opportunity to recover from her symptoms. A treating physician recommended this schedule and the employer accommodated it until the claimant left work in February 1997 and formally retired in April 1997.

The ALJ, relying on the substantial loss of earning capacity evidenced by the claimant's reduction to part-time employment and limitation of her ability to find "other work," determined the claimant sustained a 50 percent permanent partial disability as a working unit. However, crediting the testimony of the respondent's vocational expert that the claimant is capable of returning to work within her community, and the fact the claimant performed part-time work for six years after the injury, the ALJ found the claimant failed to prove permanent total disability.


On review, the claimant contends the ALJ erred as a matter of law in denying permanent total disability benefits because part-time employment may not be equated to regular employment. Further, the claimant contends the evidence compelled the ALJ to find the claimant is not regularly employable in the labor market. We disagree with these arguments.

Under the law applicable to this claim, the claimant is permanently and totally disabled if she has lost, and will not regain, efficiency in some substantial degree in fields of general employment. In assessing the degree of disability the ALJ may consider the effect of the industrial injury in light of various factors including the claimant's age, education, work experience, and the availability of work which the claimant is able to perform. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993).

The determination of the degree of disability is a question of fact, and the ALJ enjoys wide discretion in making this determination. Professional Fire Protection , Inc. v. Long supra. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 965 (Colo.App. 1995).

The claimant cites no authority directly on point for the proposition that part-time employment cannot be "regular employment" in which the claimant is efficient to "some substantial degree." The Court of Appeals has held that an injury resulting in a 50 percent wage loss did not necessarily warrant a finding the claimant was permanently and totally disabled. To the contrary, the court stated a finding of permanent total disability may not be premised "solely on whether possible employment is `gainful' based upon a comparison between the salary range that was available to the worker before the injury and the wages available to him post-injury in the open labor market." Prestige Painting Decorating, Inc. v. Mitchusson, 825 P.2d 1049, 1050 (Colo.App. 1991); see also, Professional Fire Protection, Inc. v. Long, supra (permanent disability not measured by a single criterion such as loss of income). If a determination of permanent total disability may not be based solely on a comparison of pre-injury and post-injury earnings, neither may it be based solely on a comparison between the number of hours the claimant could work before the injury and the number the claimant could work post-injury.

Neither do we perceive that the ALJ failed to consider the claimant's employability on the open labor market. To the contrary, the ALJ credited the testimony of the respondent's vocational expert that the claimant is capable of obtaining part-time employment in the fields of customer service and "clerical type" work. (Tr. August 27, 1999, P. 77). Moreover, as the ALJ found, the claimant actually performed part-time work for a number of years after the injury.

We reject the claimant's argument that the evidence compelled the ALJ to find the claimant is permanently and totally disabled. It is true the claimant presented lay, medical, and expert vocational evidence to support her theory of the case. However, the ALJ either explicitly or implicitly rejected that evidence in favor of the evidence presented by the respondent. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ need not address evidence which she does not find persuasive). Under these circumstances, we may not substitute our judgment for that of the ALJ concerning the credibility, weight, and inferences to be drawn from the record.


The claimant next contends the ALJ erred in permitting the respondent's vocational expert to testify concerning the results of a "labor market survey." The claimant contends the ALJ should have excluded the testimony because the respondent failed to update responses to discovery so as to disclose the results of the survey. We are not persuaded.

The claimant sent "Interrogatories and Request for Production of Documents" to the respondent. This document contained the following:

12. Please produce any and all labor market surveys that have been prepared by any vocational evaluators. Please provide the date of the survey, the employer contacted, whom the evaluator spoke to, and the name address and phone number of the employer.

The hearings were conducted on May 20, 1999, and August 27, 1999. At the August hearing the respondent called its vocational expert and questioned her concerning the availability of jobs the claimant could perform. Claimant's counsel objected to the testimony because the respondent did not disclose, as requested in the interrogatories, that the expert conducted any labor market survey. On questioning, the expert testified she had called some employers and reviewed newspaper ads in the week preceding the May hearing.

However, the ALJ overruled the objection to the expert's testimony. The ALJ found the information requested by the claimant was in the nature of a request for production of a report, and no report was ever produced by the expert. (Tr. August 27, 1999, pp. 72-75).

Section 8-43-207(1)(e), C.R.S. 2001, permits the ALJ to impose the sanctions provided "in the rules of civil procedure in the district courts for willful failure to make discovery." "Willful" conduct implies the deliberate and intentional violation of discovery obligations. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Generally, we may not interfere with the ALJ's rulings concerning discovery unless there has been an abuse of discretion. See Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991).

Here, we perceive no abuse of discretion in the ALJ's decision to permit the testimony. First, we agree with the claimant that the respondent had a continuing duty to update discovery responses. However, as the ALJ found, the claimant's specific request for discovery may reasonably be construed as a request for the production of documents rather than an interrogatory. Consequently, the ALJ was not persuaded that the respondent acted "willfully" in failing to disclose the vocational expert's labor market testimony where the expert's opinions had not been reduced to a report or other written summary. Put another way, the respondent did not act unreasonably, and therefore, it did not willfully violate any discovery obligation. Reed v. Industrial Claim Appeals Office, supra.

Oversole v. JDK Enterprises, W.C. No. 4-351-273 (July 13, 1999), is not authority to the contrary. In that case the claimant sent an interrogatory requesting the respondent to "provide a detailed summary" of the vocational expert's testimony and to "list all potential employers" contacted by the expert. Thus, the request in Oversole was in the form of an interrogatory, not a request for production. Moreover, in Oversole the ALJ found the respondent knew the vocational expert conducted labor market research and instructed the expert to exclude this information from a report issued after the interrogatories were first answered. No such deliberate concealment was found to have occurred in this case.

IT IS THEREFORE ORDERED that the ALJ's order dated December 13, 1999, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean


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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO. 80202.

Copies of this decision were mailed September 23, 2002 to the following parties:

Marybelle Hoffman, 3855 Field Dr., Wheat Ridge, CO. 80033

Terry Thornburg, United Airlines, Inc., 7935 E. Prentice Ave., #305, Englewood, CO. 80111

Alexis, Inc., c/o Jan Chapman, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO. 80155-4068

Janet Frickey, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80215 (For Claimant)

Floyd M. Youngblood, Esq., 4465 Kipling, #102, Wheat Ridge, CO. 80033 (For Respondent)

By: A. Hurtado

Summaries of

In re Hoffman, W.C. No

Industrial Claim Appeals Office
Sep 23, 2002
W.C. No. 4-991-822 (Colo. Ind. App. Sep. 23, 2002)
Case details for

In re Hoffman, W.C. No

Case Details


Court:Industrial Claim Appeals Office

Date published: Sep 23, 2002


W.C. No. 4-991-822 (Colo. Ind. App. Sep. 23, 2002)

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