Through his experience working as a Denver workers' compensation attorney, Mark A. Simon has worked with various types of permanent total disability, giving him the experience to address your situation. Mr. Simon resolves to provide you with straightforward council and personally guide you through the difficult process.
In the scope of benefits awarded to the injured worker, Permanent Total Disability Benefits are rarely awarded. To prove entitlement of such benefits, one must be able to prove the “inability to earn wages,” which can prove to be extremely difficult.
Unfortunately, claims of Permanent Total Disability are highly resisted by insurance companies, no matter the condition, background, etc.
In a recent case study, a client had lost her vision. Her ability to earn wages transcribing was not affected by the lack of sight. After developing severe carpal tunnel syndrome however, her ability to continue earning wages and performing the tasks required was completely impaired. This case exemplifies Permanent Total Disability Benefits awarded as as this worker was no longer able to earn wages.
Concepts regarding permanent total disability:
§8-40-201(16.5)(a), C.R.S. defines permanent total disability as the claimant’s inability “to earn any wages in the same or other employment.” This definition of permanent total disability as an inability to earn wages would appear to be an absolute bar to obtaining such benefits under all circumstances. Christopher Reeves continued to earn wages as a total quadriplegic. An Administrative Law Judge commented to Mr. Simon, “anyone could work as a model for a mattress ad.” However, other legal standards have evolved, making it at least possible for claimants to receive permanent total disability benefits. The Bymer case confirmed consideration of human factors such as education, age, and work experience, and permitted consideration of what jobs were available where the claimant resides. The claimant may also self impose reasonable work restrictions.
In re Claim of Jarvis
COWC 4-700-525-01 (May 16, 2013)
Claimant’s Attorney: Michael S. Krieger, Esq.
Respondent’s Attorney: David J. Dworkin, Esq.
Under the statute, the claimant carries the burden of proof to establish permanent total disability. Although the claimant is not required to establish that an industrial injury is the sole cause of his inability to earn wages, the claimant must nonetheless demonstrate that the industrial injury is a “significant causative factor” in his permanent total disability. Seifreid v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). This means the claimant must establish a “direct causal relationship” between the industrial injury and the permanent total disability. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), reversed on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Under this test, the ALJ must determine the residual permanent total disability without regard to the effects of other events. Joslin Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
In determining whether a claimant is permanently and totally disabled, the ALJ may consider a wide range of factors including the claimant’s age, work experience and training, the claimant’s overall physical condition and mental abilities, and the availability of work the claimant can perform. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Christie v. Coors Transportation o., 933 P.2d 1330 (Colo. 1997). The overall objective of this standard is to determine whether, in view of all of these factors, employment is “reasonably available to the claimant under his or her particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d at 558 (Colo. 1998)).
The industrial injury need not be the sole cause of the claimant’s permanent and total disability. This is true because under the “full responsibility rule” an employer takes an injured worker as it finds him, and permanent total disability can be a combination of personal factors, such as a pre-existing mental or physical condition and a work-related injury or disease. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). The only exception to the rule is where the industrial injury is not a significant causative factor in the claimant’s disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995). As stated in Seifried, the term “significant” means that there is a direct causal relationship between the industrial injury and the permanent total disability.
The ALJ is given the widest possible discretion in determining the issue of permanent total disability, and ultimately the issue is one of fact. Professional Fire Protection, Inc. v. Long 867 P.2d 175 (Colo.App. 1993). Because these issues are factual in nature, the Court of Appeals will uphold the ALJ’s resolution if supported by substantial evidence in the record. §8-43-301(8), C.R.S. This standard of review requires that the Court of Appeals consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The term “any wages” does not mean the pre-injury average weekly wage. The term “any wages” does not necessarily include passive income such as investments. Best Way Concrete v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). If evidence shows the claimant is not physically able to sustain employment, the ALJ need not find the claimant is capable of earning wages. Joslin Dry Goods Co. v. Industrial Claims Appeals Office, 21 P.3d 866 (Colo.App. 2001).
B. Full Responsibility Rule
United Airlines v. Industrial Claims Appeals Office, 993 P.2d 1152 (Colo. 2000). A scheme involving apportionment of Permanent Total Disability, in this case 91%/9%, was rejected by the Colorado Supreme Court. Applying the full responsibility rule, the Court held that when an employer hires an employee who, by reason of a pre-existing condition or by reason of a prior injury, is to some extent disabled, he takes the man with such handicap. Accordingly, the Court held that the claimant, a worker who had suffered an injury that rendered him 30% partially disabled, was entitled to recover from his employer a full award of benefits when a subsequent injury left him permanently and totally disabled. The Court noted that problems with the full responsibility rule are evident and well-recognized. See 5 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law §91.01, at 91-2 to -4 (1999). The rule results in hardship to employers and employees alike. Employers, forced to bear the full cost of disabilities, tend not to hire partially disabled workers, since those workers were more susceptible to disproportionately expensive total disabilities.
C. A Tragic Case
A didactic tragedy involving claimant’s index finger should be considered (particularly when settling future medical benefits). Hertz Corp. v. Industrial Claims Appeals Office, 296 P.3d 338 (Colo.App. 2012). The claimant’s injured index finger required amputation. Reflex Sympathetic Dystrophy arose; treatment included a nerve block in which a toxic substance was accidentally injected. During the following emergency surgery, the claimant was over-sedated and experienced cardiac arrest and profound anoxic brain injury. Claimant then required 24 hour supervision and resided in an assisted living facility.
D. Recent Industrial Claim Appeals Office Cases Affirming Permanent Total Disability Awards by ALJs
1. Foot Injury
In re Claim of Chambless
COWC 4-865-310-01 (August 22, 2014)
Claimant’s Attorney: Renee Ozer, Esq.
Respondent’s Attorney: Lee & Kinder, LLC/Frank M. Cavanaugh, Esq.
This case involved an initial left foot and ankle injury which morphed into “acquired pes planun deformity secondary to posterior tendon dysfunction”. Claimant was 64 years old and had been a lineman. Restrictions included no kneeling, climbing ladders with occasional stair climb, crouching, standing, and walking. Respondent asserted the award of PTD was inappropriate due to Parkinson’s disease and a prior motorcycle accident. The respondents’ contention on appeal that the claimant was going to retire or that he was capable of modified duty did not change the result.
2. Pain and Depression
In re Claim of Ordonez
COWC 4-792-073-03 (October 11, 2013)
Claimant Attorney: Teresa A. Marra, Esq.
Respondent’s Attorney: Ruegsegger Simons Smith & Stern/ Frank Cavanaugh, Esq.
Claimant had worked construction, had a 9th grade education, and was an illegal alien. Respondent contended claimant was unemployable due to a “legal disability”. The ALJ here determined that in light of the probative medical and vocational evidence before him, the claimant’s immigration status was “irrelevant” because the medical and vocational evidence indicated that the claimant was physically unable to sustain any employment. The Industrial Claim Appeals Office agreed with the ALJ’s determination in that regard.
3. Carpal Tunnel
In re Claim of McCormick
COWC 4-594-683-07 (April 1, 2014)
Claimant’s Attorney: Chris Forsyth, Esq.
Respondent’s Attorney: Katherine Lee, Esq.
Procedural History: This case has a protracted history. This was the ninth time that this case had been before the Industrial Claims Appeals Panel, and the Colorado Court of Appeals has issued several decisions on appeal from the Panel. The Court set forth only the procedural history necessary to resolve the issues that were raised on review before then.
In his order upon remand, the ALJ made the following findings. The claimant, a registered nurse, had a 15 to 20 year history of bilateral carpal tunnel syndrome prior to her employment with the respondent employer. On August 20, 2003, the claimant suffered an admitted aggravating injury to her right upper extremity. Permanent Total Disability was found by the ALJ.
In re Claim of Blocker
COWC 4-622-069-04 (July 1, 2013)
Claimant’s Attorney: Herbert S. Schiff, Esq.
Respondent’s Attorney: James B. Fairbanks, Esq.
The ALJ determined that claimant was unable to earn any wages. He relied on the claimant’s testimony and on the testimony of the vocational counselor that the forklift job does not exist in any similar form in the local labor market. The ALJ reasoned the forklift job was sheltered employment. As such, it was not seen as evidence the claimant could sustain wage earning employment. In reaching his conclusion, the ALJ noted the claimant was able to come and go from the job as he needed, to work at his own pace, and because no other employees were present at night, this mitigated the safety issue presented by the claimant’s inability to hear. The job ended when the employer was no longer able to keep the job available. The ALJ found that neither of the vocational experts testifying could verify that any similar type of job was available in the local labor market.
E. Recent Industrial Claim Appeals Office Cases Affirming Denial of Permanent Total
Disability Awards by ALJs
In re Claim of Terrones
COWC 4-776-028-01 (October 30, 2013)
Claimant’s AttorneyL Janie C. Castaneda, Esq.
Respondent’s Attorney: Bruce McCrea, Esq.
2. Upper Extremity with Contested Body Parts
In re Claim of Bernal
COWO 4-808-660-03 (February 14, 2013)
Claimant’s Attorney: Kimberly Whiting, Esq.
Respondent’s Attorney: John Sandberg, Esq.
3. Shoulder/Back/Claimed Vertigo
In re Claim of Jarvis
COWC 4-700-525-01 (May 16, 2013)
Claimant’s Attorney: Michael Krieger, Esq.
Respondent’s Attorney: David Dworkin, Esq.
In re Claim of Trujillo
COWC 4-875-540-04 (March 4, 2014)
Claimant’s Attorney: N/A - Claimant appeared Pro Se
Respondent’s Attorney: Christopher Condit, Esq.
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