Weld County School District Re-12 v. Bymer

Justice KOURLIS

dissenting:

These cases deal with the determination of whether a worker can be classified as permanently and totally disabled not on the basis of injury or incapacity, but rather on the basis of whether the worker is unable to find work within his or her locality of residence. Because I believe that access to employment within the labor market where a claimant resides is not an appropriate factor to consider in awarding permanent total disability benefits, I respectfully dissent.

I.

Under workers’ compensation law, disability of a claimant is traditionally measured by two components: medical (or functional) incapacity and earning impairment. See Byouk v. Industrial Comm’n of Colo., 106 Colo. 430, 433-34, 105 P.2d 1087, 1089 (1940); 4 Arthur Larson, Larson’s Workers’ Compensation Law § 57.11 (1997). The first component refers to an employee’s physical ability to perform work, while the second refers to the ability to secure work. Thus, the term disability, and in particular, perma*559nent total disability (PTD), has not been limited to consideration of medical factors, but necessarily encompasses the various factors relevant to a particular employee’s ability to obtain work. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194, 1196 (Colo.App.1995).

Prior to the 1991 amendments to our Workers’ Compensation Act, the legislature defined certain “human” factors appropriate to a consideration of permanent partial disability. See § 8-51-108, 3B C.R.S. (1986). In Casa Bonita Restaurant v. Industrial Comm’n, 624 P.2d 1340 (Colo.App.1981), the court of appeals applied those statutory factors to a determination of PTD and concluded that the “human” factors used to gauge a particular employee’s ability to secure work included “the general physical condition and mental training, ability, former employment, and education of the injured employee.” See Casa Bonita, 624 P.2d at 1342 (citing § 8-51-108, 3B C.R.S. (1986)). Significantly, these factors identified by the legislature and adopted in the cases related to the personal attributes of the employee rather than to market conditions.

Under the old law, the court of appeals decided one case in which it specifically held that a claimant who was unable to find suitable employment in his local community was permanently totally disabled. See Gruntmeir v. Tempel & Esgar, Inc., 730 P.2d 893, 894 (Colo.App.1986); see also Prestige Painting & Decorating, Inc. v. Mitchusson, 825 P.2d 1049, 1050 (Colo.App.l991)(asserting in dicta that the community where a claimant resides is a proper consideration relating to permanent total disability). Gnmtmeir cites no authority and makes no analysis whatsoever as to why this consideration is appropriate. I believe that Gruntmeir, devoid as it is of legal analysis on the issue, was incorrectly decided even prior to the 1991 amendments. Since the amendments, however, the case against consideration of this factor has become even stronger.

In the 1991 amendments to the Worker’s Compensation Act, the General Assembly provided a statutory definition of permanent total disability:

“ Permanent total disability” means the employee is unable to earn any wages in the same or other employment.

§ 8^0-201(16.5)(a), 3 C.R.S. (1997).

The question before the court today is whether that new definition directs or permits consideration of a claimant’s commutable labor market in determining PTD. I agree with the Majority that the statutory language is ambiguous. I do not agree, however, that the legislative history provides support for the Majority’s position. To the contrary, I believe that the legislative history clearly reflects otherwise.

II.

To begin with, the 1991 amendments restrict PTD benefits to those unable to earn “any wage,” and persons employable outside their commutable labor markets are, in fact, capable of earning a wage.

The legislative history of the 1991 amendments “indicates that the definition of PTD in [the 1991 amendments] was intended to ‘tighten’ and restrict eligibility for PTD benefits.” McKinney v. Industrial Claim Appeals Office, 894 P.2d 42, 45 (Colo.App.1995). This intent to restrict eligibility would plainly appear to support the position that the 1991 amendments preclude consideration of a claimant’s labor market. However, the Majority concludes that this restrictive intent is narrowly focused on ensuring that PTD benefits would be limited to those who could not earn “any wages” rather than, as under the broader, previous definition, those who might be able to earn a small amount of wages. See Maj. op. at 555-556 (citing Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, 212 (Colo.App.1990)).

The Majority cites two eases which contrast the old PTD determination with the new one under the 1991 amendments. See Maj. op. at 556 (citing Christie v. Coors Transp. Co., 919 P.2d 857 (Colo.App.1996); McKinney, 894 P.2d at 45). These cases considered the effect of the new amendments as they pertained to individuals who retained some earning capacity. See Christie, 919 P.2d at 860; McKinney, 894 P.2d at 45. Both cases concluded that the effect of the *560new amendments was to prevent those capable of earning “any wages” from being declared PTD. See Christie, 919 P.2d at 860; McKinney, 894 P.2d at 45. In neither case was the court asked to consider whether a person capable of earning a wage outside her commutable labor market was nonetheless incapable of earning “any wage” under the new law; however these cases conclude that the legislative intent under the 1991 amendments was to prevent those capable of earning a wage from receiving PTD benefits. There is no indication that the legislature was concerned solely with this distinction to the exclusion of any other methods by which potential wage earners might receive PTD benefits. I submit that where claimants who are capable of earning a wage outside their commutable labor market are allowed to receive PTD benefits, then the legislative purpose to allow PTD only to those persons incapable of earning “any wage” has been thwarted.

Exclusion of labor market considerations certainly better serves the purpose of assuring that individuals who are physically capable of working are not declared PTD. Inclusion of labor market considerations can lead to the anomalous result of declaring a claimant permanently totally disabled when, if he or she moved to another area, he or she would be readily employable. Accordingly, I believe that the legislative history indicating an intent to restrict benefits to those incapable of earning “any wage” militates against allowing PTD for those capable of earning wages outside their labor markets.

III.

Finally, it simply does not make sense to describe market conditions as a “human” factor, nor does it make sense to incorporate market considerations into an analysis of an individual’s capabilities to earn any wage.

In considering whether a claimant may find suitable employment, we do not, for example, ask whether the potential employer or employers will remain financially sound in order to sustain the claimant’s employment. Cf. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo.l987)(affirming the court of appeals’ decision that claimants must show a change in physical or mental condition to reopen their claims, and could not base reopening on changed economic conditions). This type of outside force, or market condition, is not an appropriate part of the inquiry because it does not relate to that claimant’s ability to secure work, but instead to changing and unpredictable market forces.

In Lucero, this court discussed the underlying theory of workers’ compensation law:

[We have recognized] the fundamental principle that the workers’ compensation laws were designed to compensate for diminishment of a worker’s earning capacity due to specified physical or mental injuries. See, e.g., §§ 8-51-108(1), 8-52-102(1), 3B C.R.S. (1986). The laws are not intended to protect against diminishment of a worker’s earning capacity due to mass layoffs and other external fluctuations in economic conditions. Workers’ compensation should not become, by way of strained construction, unemployment insurance. See Industrial Comm’n v. Baldwin, 139 Colo. 268, 273, 338 P.2d 103, 105 (1959) (although Workmen’s Compensation Act is to be liberally construed, “its provisions must not be pushed beyond the limits of their purpose, nor its funds diverted to those not clearly entitled thereto.... ”).

Lucero, 732 P.2d at 647. Although Lucero was interpreting language in the statutes regarding the reopening of claims, the court based its holding in part on broader doctrinal principles which are equally applicable to the court’s analysis today.

It is not the function of workers’ compensation law to forever insulate workers from all consequences of a work-related injury. It may be inconvenient for certain workers to move to a new market in order to find work, but such an inconvenience is suffered by most workers at some time in their careers for any of a variety of reasons. The workers’ compensation law is not designed to alleviate all inconveniences. If a claimant who lives in a rural community is injured, that claimant may have to move to find work, just as *561someone who is laid off may need to move.1 We should be encouraging persons who can work to take measures to obtain a job, including, if necessary, moving to a larger market.

The 1991 amendments to the Act were intended to limit awards of permanent total disability to individuals unable to earn any wage. The focus should be upon the characteristics of the individual applying for benefits and his or her capacity to obtain employment in the future, not upon the market conditions in an industry or locality. Because the Majority’s conclusion disserves the legislative policy of encouraging reemployment, I would reverse the court of appeals’ decisions in Bymer and Brush Greenhouse and would affirm in Spady Brothers, thereby dissenting from the Majority.

I am authorized to state that VOLLACK, C.J., joins in this dissent.

. Additionally, the Majority’s analysis does disproportionately and unfairly impact rural employers, who must bear the costs of permanent disability benefits awarded to individuals who would be employable in a larger community.