Opinion
W.C. No. 4-216-439
August 6, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which determined the claimant is permanently and totally disabled, and awarded benefits. We affirm.
The claimant suffered compensable injuries to her right arm and shoulder on March 15, 1994, while employed as a mental health technician for the respondent-employer. The claimant reached maximum medical improvement on August 12, 1997, at which time Dr. Klingbeil imposed permanent lifting restrictions and limited the claimant to sedentary employment.
Section 8-40-201(16.5)(a), C.R.S. 1997, defines permanent total disability as the inability to earn "any wages in the same or other employment." It is undisputed that as a result of the injury the claimant is unable to return to her pre-injury employment. However, at the time of the hearing on permanent total disability, the claimant had a part-time child care service in her home and was paid $37 per week, per child.
Vocational rehabilitation expert, Mark Litvin (Litvin), concluded that the claimant's child care service does not reflect the ability to earn wages because the work is done in the claimant's home and the claimant requires assistance from her family members. Further, Litvin testified that the job description for child care workers in the open labor market exceeds the claimant's restrictions and exceeds what the claimant manages to do while operating her in-home day care service. (Tr. pp. 63, 68). Consequently, Litvin opined that the claimant's in home child care service skills are not transferrable to jobs in the open labor market, and do not reflect an ability to earn wages in "other employment." (Tr. p. 62). Vocational rehabilitation expert, Cynthia Bartmann (Bartmann) agreed that the job description of a child care worker exceeds the claimant's restrictions. (Tr. p. 108). However, Bartmann opined that the claimant's part-time, child care work reflects the ability to earn wages. Bartmann also concluded the claimant is capable of employment in other fields of employment such as security guard.
The ALJ determined that there is a difference between "earning wages and performing personal services." The ALJ found that the claimant was performing part-time "personal service work" in her home, and that this work requires the claimant to care for two infants and one-seven year old child. However, the ALJ found that it was unclear how long the day care work would be available, and that the claimant was unable to operate the day care service without the assistance of her family. Therefore, the ALJ determined that the claimant's ability to perform the child care services does not demonstrate an ability to earn wages.
Furthermore, the ALJ found that the claimant is severely restricted physically and experiences severe pain symptoms during most activities of daily living. Therefore, the ALJ determined the claimant is unlikely to get or keep a job in the fields of employment identified by Bartmann. Consequently, the ALJ found Bartmann's opinion of the claimant's ability to earn wages speculative.
On review, the respondents contend that, because the claimant's 1996 federal income tax return reported earnings of $611 from the child care business, the ALJ mischaracterized the business as a "personal service" rather than wage earning employment. The respondents also contend that the claimant is "gainfully employed" as a self-employed child care worker. Therefore, they argue the ALJ erred in finding the claimant is permanently and totally disabled. We disagree.
The question of whether the claimant has the ability to earn "any wages" within the meaning of § 8-40-201(16.5)(a), must be decided on a "case by case basis" and varies according to the particular abilities of the claimant. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Because the issue is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; Weld County School District RE-12 v. Bymer, supra; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Application of the substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Christie v. Coors Transportation Co., supra.
Admittedly, the term "any wages" refers to the claimant's ability to earn more than zero wages. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995). However, income from a personally operated business does not necessarily constitute wages from employment. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995); Tuenge v. Vipont Pharmaceutical, Inc., W.C. No. 4-118-293 (January 11, 1996) (claimant's participation in husband's business did not demonstrate ability to earn any wages because participation was minimal, sporadic and business did not earn profit). Further, employment which is purely charitable and not bona fide does not demonstrate the ability to earn wages. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997).
As we read the ALJ's order, she determined that the claimant's earnings from her home child care were not "wages" because the claimant was not physically capable of performing the duties required of the child care business without the unpaid assistance of her husband and son. The claimant also testified that she requires the assistance of her daughter every afternoon, for which she pays her daughter $20 per week. Under these circumstances, the record does not compel a conclusion that the claimant is "gainfully employed" in a self-employed day care business. Lobb v. Industrial Claim Appeals Office, supra. Rather, the ALJ could reasonably infer that the claimant could not operate the child care service without the effort of her family, and thus, the claimant's earnings reflect payment for personal services provided by the claimant's family, not compensation for services rendered by the claimant. See Baca v. City County of Denver, W.C. No. 4-228-201 (March 5, 1997), aff'd, City County of Denver, 97CA0513, (August 14, 1997) (not selected for publication) (finding of permanent total disability not erroneous where claimant remained on payroll but performed virtually no work after industrial injury). The respondents remaining arguments on this issue have been considered and are not persuasive.
Moreover, in assessing the claimant's ability to earn wages, the ALJ may consider "human factors" including the claimant's general physical condition, medical restrictions and abilities. Weld County School District RE-12 v. Bymer, supra; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). One human factor is the claimant's ability to obtain and maintain employment within her physical abilities. See Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993). This is because the ability to earn wages inherently includes consideration of whether the claimant is capable of getting hired and sustaining employment. See Christie v. Coors Transportation Co., supra; Cotton v. Econ. Lube N Tune, W.C. No. 4-220-395 (January 16, 1997), aff'd, Econ. Lube N Tune v. Cotton (Colo.App. No. 97CA0193, July 17, 1997) (not selected for publication). Furthermore, we have held that a claimant's occasional performance of physical activities which are useful in the labor market does not preclude a finding of permanent total disability if the evidence indicates that the claimant is unable to sustain the activities for a sufficient period of time to be hired and paid wages. See Marek v. Children's Hospital, W.C. No. 4-2211-079 (September 30, 1996).
The evidence that the job requirements of a child care worker in the open labor market exceed the claimant's restrictions supports the conclusion that the claimant's in home child care service does not evidence the claimant's ability to earn wages in the open labor market. See Weber v. Montrose County, W.C. No. 3-107-609 (March 12, 1998) (claimant's assistance in wife's unprofitable truck washing business did not evidence ability to earn wages). Further, the ALJ credited Litvin's testimony that it is unlikely the claimant could get hired or maintain a job in the other fields identified by Bartmann. Litvin's opinion is buttressed by the claimant's testimony that she conducted a job search and was unable to find work within her restrictions. (Tr. pp. 56-58). Consequently, the record supports the ALJ's finding that the claimant is unable to earn wages in other employment, and is permanently and totally disabled.
IT IS THEREFORE ORDERED that the ALJ's order dated January 21, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 6, 1998 to the following parties:
Antonette Moller, 8510 Lamar Drive, Arvada, CO 80003
North Metro Community Svcs. for Development, 1001 W. 124th Ave., Denver, CO 80234-1705
Colorado Compensation Insurance Authority, Laurie A. Schoder, Esq. — Interagency Mail
Douglas R. Phillips, Esq., 155 S. Madison St., Ste. 330, Denver, CO 80209 (For the Claimant)
BY: _______________________