Colorado § 8-42-111 - Award for permanent total disability.

§ 8-42-111. Award for permanent total disability.

(1) In cases of permanent total disability, the award shall be sixty-six and two-thirds percent of the average weekly wages of the injured employee and shall continue until death of such person so totally disabled but not in excess of the weekly maximum benefits specified in this article for injuries causing temporary total disability.

(2) (Deleted by amendment, L. 91, p. 1313, § 19, effective July 1, 1991.)

(3) A disabled employee capable of rehabilitation which would enable the employee to earn any wages in the same or other employment, who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability.

(4) For injuries occurring on and after July 1, 1991, and before July 1, 1994, the average weekly wage of injured employees used for computing compensation paid for awards pursuant to subsection (1) of this section shall be increased by two percent per year effective July 1 of each year, and such increased compensation shall be payable for the subsequent twelve months.

(5) Repealed.

Source: L. 90: Entire article R&RE, p. 494, § 1, effective July 1. L. 91: (2) and (3) amended and (4) and (5) added, p. 1313, § 19, effective July 1. L. 94: (4) and (5) amended, p. 2002, § 5, effective July 1. L. 2009: (5) repealed, (SB 09-070), ch. 49, p. 175, § 2, effective August 5.

Editor's note: This section is similar to former § 8-51-107 as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "Time, Equity and the Average Weekly Wage", see 23 Colo. Law. 1831 (1994). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Cases," see 25 Colo. Law. 67 (July 1996). For article, "Update on Colorado Appellate Decisions in Workers' Compensation Law", see 33 Colo. Law. 117 (Nov. 2004).

Annotator's note. (1) Since § 8-42-111 is similar to § 8-51-107 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which vested the director of the division of labor with powers formerly exercised by the industrial commission or were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission.

Subsection (5) is constitutionally arbitrary. Romero v. Indus. Claim Appeals Office, 902 P.2d 896 (Colo. App. 1995), aff'd, 912 P.2d 62 (Colo. 1996).

Rational relationship standard is proper standard to apply in determining whether classifications created by statute based on age and degree of disability are valid under the state constitution. Romero v. Indus. Claim Appeals Office, 902 P.2d 896 (Colo. App. 1995), aff'd, 912 P.2d 62 (Colo. 1996).

COLA provision in subsection (4) may be given effect even though the age cap in subsection (4) was declared invalid. Montezuma Well Serv., Inc. v. Indus. Claim Appeals Office, 928 P.2d 796 (Colo. App. 1996).

Average weekly wage, as computed under subsection (1), shall become the claimant's average weekly wage for purposes of calculating compensation, as well as calculating the two percent COLA increase under subsection (4), in cases where the earned average weekly wage entitles a claimant to the maximum weekly compensation rate computed at the time of the injury. Guido v. Indus. Claim Appeals Office, 100 P.3d 575 (Colo. App. 2004).

COLA adjustment is not subject to the maximum benefit cap; the two provisions being in irreconcilable conflict, the latter-enacted provision must be given full effect. Salazar v. Indus. Claim Appeals Office, 10 P.3d 666 (Colo. App. 2000).

Industrial commission was vested with wide discretion. In determining the extent or degree of disability of an injured workman upon the facts of each case, it is axiomatic that the commission was vested with the widest possible discretion with the exercise of which the courts will not interfere. Nat'l Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (1950).

The administrative law judge has broad discretion in determining permanent total disability and may consider the same statutory factors used in determining permanent partial disability, including the manifest weight of the evidence and the claimant's general physical condition. Drywall Prod. v. Constuble, 832 P.2d 957 (Colo. App. 1991).

Legislative intent. Since this section provides that "the loss of both hands or both arms or both feet or both legs or both eyes or of any two thereof, shall prima facie constitute total and permanent disability", it is evident that the general assembly, in using the expression, did not have in mind a condition of helpless paralysis reducing bodily functions to the minimum essential for the maintenance of a mere spark of life. New York Indem. Co. v. Indus. Comm'n, 86 Colo. 364, 281 P. 740 (1929).

Losses constituting total permanent disability. Amputation of the right arm near the elbow and a 90 percent loss of the use of the left constitutes total permanent disability as that term is used in this section. New York Indem. Co. v. Indus. Comm'n, 86 Colo. 364, 281 P. 740 (1929).

Where a claimant suffers permanent or temporary total disability, compensation is based upon a fixed percentage of his average weekly wage. State Comp. Ins. Fund v. Lyttle, 151 Colo. 590, 380 P.2d 62 (1963).

In situations covered by this statute, the subsequent employer is not liable for the degree of permanent partial disability sustained by the subsequent injury; rather, the employer is liable for the portion of the permanent total disability that is attributable to the subsequent injury. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987).

Claimant not entitled to permanent total disability benefits where occupational injuries were not significant cause of disability and claimant remained disabled because of nonoccupational factors. Seifried v. Indus. Comm'n, 736 P.2d 1262 (Colo. App. 1986).

Subsection (3) does not become applicable until there is a determination that a totally disabled claimant refused an employer's offer of vocational rehabilitation and unless such an offer is made and the claimant refuses it, the claimant is entitled to full payment. Drywall Prod. v. Constuble, 832 P.2d 957 (Colo. App. 1991).

But a claimant has the burden of establishing his right to compensation benefits. Indus. Comm'n v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966).

Partial employment secured by employee himself is not within the proviso. New York Indem. Co. v. Indus. Comm'n, 86 Colo. 364, 281 P. 740 (1929).

For this promotes justice because if one be totally and permanently disabled he ought not be penalized for obtaining some trivial and unusual employment, or have the door of hope and ambition slammed in his face by being forbidden, on pain of having a portion of his meager sustenance withheld, to make any effort to add thereto. One may be totally disabled for all practical purposes of competing for remunerative employment in any general field of human endeavor and yet be able to obtain occasional employment under rare conditions and at small remuneration. The claimant's status remains unaffected thereby unless the employment be specifically covered by the exception under this section. New York Indem. Co. v. Indus. Comm'n, 86 Colo. 364, 281 P. 740 (1929); Rio Grande Motor Way v. De Merschman, 100 Colo. 421, 68 P.2d 446 (1937); Nat'l Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (1950); New Jersey Zinc Co. v. Indus. Comm'n, 165 Colo. 482, 440 P.2d 284 (1968).

But compensation benefits may be reduced where the employer offers his injured employee "suitable employment". Indus. Comm'n v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966).

However, the employer has the burden of showing the "suitability" of any employment which he offers or obtains for his permanently and totally disabled employee. Indus. Comm'n v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966).

And the fact that a "permanently and totally disabled" person may perform a given task does not necessarily mean that such employment is "suitable". Indus. Comm'n v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966).

But where director finds employment "suitable" court may not review. Where the director has found that the employment offered the claimant was suitable, and that it was work which he could perform, a district court may not review the findings made by the director and substitute its conclusions for those of the director. Indus. Comm'n v. Ewing, 174 Colo. 133, 482 P.2d 981 (1971).

Functional disability of injured workman, compared with that of a normal man, does not control in fixing compensable status, since the term "disability" means industrial disability of loss of earning capacity and not mere functional disability. Byouk v. Indus. Comm'n, 106 Colo. 430, 105 P.2d 1087 (1940).

Classifications created by subsection (5) based on age and degree of disability have no reasonable relationship to the purpose the statute is allegedly aimed at achieving, i.e., to prevent receipt of duplicative benefits and the section, therefore, violates equal protection requirements. Romero v. Indus. Claim Appeals Office, 902 P.2d 896 (Colo. App. 1995), aff'd, 912 P.2d 62 (Colo. 1996); Colo. AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995).

Unless an employer offers a claimant vocational rehabilitation and the claimant refuses it, the claimant is entitled to full payment of permanent total disability benefits. Drywall Prod. v. Constuble, 832 P.2d 957 (Colo. App. 1991).

Neurotic mental disability is as real as any other disability and, in the absence of evidence of malingering, is as much a personal injury. Casa Bonita Restaurant v. Indus. Comm'n, 624 P.2d 1340 (Colo. App. 1981).

Commission entitled to look to claimant's mental ability. The industrial commission had the right to look beyond claimant's physical impairments to her mental ability, including mental impairment, in determining the issue of permanent total disability. Casa Bonita Restaurant v. Indus. Comm'n, 624 P.2d 1340 (Colo. App. 1981).

The effect of § 8-51-106 (now §§ 8-46-101 and 8-46-102) is to provide a scheme for apportioning the permanent total disability to which a claimant may be entitled under subsection (1) of this section. McGrath v. Indus. Comm'n, 708 P.2d 1382 (Colo. App. 1985); Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987).

Percentage of disability from a previous injury need not be reduced from permanent total disability benefits. Where injured worker suffered previous injuries that cumulatively resulted in permanent total disability, the appellate court did not err in not offsetting the percentage of disability attributable to the previous injuries. United Airlines v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo. 2000).

Award for permanent disability held authorized. Wilson v. Sinclaire, 109 Colo. 592, 128 P.2d 996 (1942).

Record fully supported award of permanent total disability benefits where ALJ determined that claimant was unable to perform any work that he was capable of performing before his injury and the medical providers recommended vocational rehabilitation for claimant, which employer refused. Drywall Prod. v. Constuble, 832 P.2d 957 (Colo. App. 1991).

Applied in Colo. Fuel & Iron Co. v. Indus. Comm'n, 88 Colo. 573, 298 P. 955 (1931); Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982). McGrath v. Indus. Comm'n, 708 P.2d 1382 (Colo. App. 1985).