Vail Associates, Inc. v. West

ROVIRA, Justice,

specially concurring:

Although I agree that the record supports a finding that West suffered a physical injury, I have serious doubts that it supports a conclusion that it resulted in an increased physical disability of a permanent duration along with a concomitant impairment of earning capacity. At 1115.

Be that as it may, I join the majority opinion in rejecting the petitioners’ argument that a post-injury increase in earnings should give rise to a rebuttable presump*1116tion of earning capacity commensurate with actual earnings. In light of our prior decisions that post-injury earnings are only one factor to be considered in ascertaining permanent partial disability, I believe it more appropriate for the petitioners to obtain the relief they seek from the General Assembly.

If we were writing on a clean slate, there is much to be said for the petitioners’ argument. See 2 A. Larson, Workmen’s Compensation Law § 57 (1983); Puffer Mercantile Co. v. Arellano, 34 Colo.App. 434, 528 P.2d 966 (1974) (Van Cise, J. dissenting), rev’d, 190 Colo. 138, 546 P.2d 481 (1975). Absent that condition, and because of my respect for prior decisions of this court, I join in the court’s opinion.