Let Us Fight For Your Benefits
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 counsel 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 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).