Summary
In Simington v. Assured Transportation Deliver, supra, the panel upheld an ALJ's determination that a claimant reasonably refused an offer of modified employment where the effects of medication taken for the industrial injury prevented the claimant from driving to work, where the claimant lived in a remote area where other forms of transportation were not available.
Summary of this case from In re Villa v. Harvest Select, W.C. NoOpinion
W.C. No. 4-318-208
March 19, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), which found that the respondents improperly terminated the claimant's temporary disability benefits on January 23, 1997. We affirm.
The ALJ found that the claimant sustained a compensable back injury while unloading a van on November 8, 1996. Although the respondents contested liability for the injury, they "voluntarily" began paying temporary total disability benefits pending resolution of the compensability issue.
On January 20, 1997, the respondents mailed a certified letter to the claimant offering him reemployment within restrictions imposed by the treating physician. The letter advised that, unless the claimant returned to work on January 23, 1997, his temporary disability benefits would be terminated. The claimant did not receive the letter until January 25, 1997, and consequently failed to begin work on January 23. The respondents then terminated temporary benefits effective January 23.
In determining that the respondents improperly terminated the claimant's benefits, the ALJ found that, after the injury, the claimant moved further from the employer's place of business due to a fire at the claimant's home. The ALJ also found that, due to the injury, the claimant was taking medication which precluded him from driving to work. However, the respondents did not provide the claimant with transportation to and from work.
Under these circumstances, the ALJ concluded that the respondents' termination of benefits was improper under § 8-42-105(3)(d)(I), C.R.S. 1997. Moreover, the ALJ found that the respondents were not entitled to terminate benefits because the claimant did not receive the letter offering employment until after he was required to commence work. Finally, the ALJ concluded the respondents improperly terminated benefits under Rule of Procedure IX, 7 Code Colo. Reg. 1101-3 at 34, because they did not file an admission of liability attaching a physician's letter approving the return to work, and a copy of the offer of modified employment.
I.
On review, the respondents contend that the ALJ erred in holding that the termination of benefits was improper under § 8-42-105(3)(d)(I). Relying principally on McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995), and our decision in Anglada v. Clara Corp., W.C. No. 4-143-083 (September 28, 1995), the respondents argue that, contrary to the ALJ's ruling, the claimant's inability to drive from his residence to the modified employment is irrelevant to termination of benefits under the statute. The respondents also assert that the provisions of Rule IX do not apply in this case because they never filed an initial admission of liability. We perceive no error in the ALJ's order.
Section 8-42-105(3)(d)(I) provides for the continuation of temporary total disability benefits until:
"The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment."
We have previously held that, in order to support termination, the modified employment offered to the claimant must be "reasonably available under an objective standard." Belanger v. Keystone Resorts, Inc., W.C. No. 4-250-114 (October 9, 1997); Ragan v. Tempforce, W.C. No. 4-216-579 (June 7, 1996). The rationale for this conclusion was set forth in the Ragan v. Tempforce case as follows:
"Section 8-42-105(3)(d) creates no explicit prescriptions or restrictions on the type of `modified employment' which may be offered, other than that the employment be approved by the attending physician. Cf. McKinley v. Bronco Billy's, supra. However, we agree with the ALJ that the General Assembly could not have intended § 8-42-105(3)(d) to authorize the termination of temporary disability benefits when respondents offer employment which the claimant cannot, as a practical matter, accept."
We decline to depart from our holdings in Belanger and Ragan. It follows that the question of whether the offer of modified employment was "reasonably available to the claimant under an objective standard" was one of fact for determination by the ALJ. Since the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Here, there is substantial evidence that the employment offered was not reasonably available to the claimant under an objective standard. The record reveals that the claimant was precluded from driving to work because of medication prescribed by the treating physician. Further, the fire in the claimant's home required him to move to a more remote location where alternative means of transportation were not available. Since the evidence supports the ALJ's order, it must be upheld.
The respondents' argument notwithstanding, we do not perceive this result to be inconsistent with the McKinley v. Bronco Billy's, supra, or Anglada v. Clara Corp., supra. McKinley applied § 8-42-105(3)(c), C.R.S. 1997, which governs termination of temporary disability benefits when the claimant is released to "regular employment." That provision, unlike § 8-42-105(3)(d), places no discretion in the hands of employers concerning the circumstances surrounding an offer of employment. Thus, we believe subsection (3)(d) is distinguishable from (3)(c), and necessarily imports a reasonableness standard which precludes employers from terminating benefits based on the claimant's failure to commence employment with is impractical. Anglada held that a restriction on travel to work is not a restriction on the ability to perform modified employment, but did not reach the issue of whether some offers of employment may be too impractical to be considered legitimate.
Further, we agree with the claimant that his failure to receive the offer of employment until after January 23 precludes the termination of benefits. This is true because an effective "offer" of reemployment cannot be made under subsection (3)(d) until the claimant actually receives the offer.
In Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276 (August 25, 1995), the respondents sent a letter offering reemployment to the claimant's last known address. However, the claimant had moved and never received the offer. We held that the "offer" was inadequate to terminate benefits under subsection (3)(d) because the "General Assembly's use of the word `offered' demonstrates an intent that the claimant receive actual notice of the proffered employment, and that `constructive notice' is insufficient." The Court of Appeals affirmed our decision in Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. 95CA1590, April 25, 1996) (not selected for publication) using the following rationale:
"In the context of employment, an offer is a manifestation of the employer's willingness to enter into an employment relationship with the offeree upon the offeree's assent to the offer. [Citation omitted.]
Thus, the essence of an offer is the employee's knowledge that he or she has the power to conclude a contract without further action by the employer. See Restatement (Second) of Contracts, § 24 comment a (1979) ("An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it.") Hence, an employee must know of the offer in order for the offer to be effective.
Therefore, because the term `offer' as used in § 8-42-105(3)(d) must be construed in accordance with its particular meaning which contemplates an offeree's actual knowledge of the offer, we conclude, as did the Panel, that, consistent with legislative intent, a claimant must have actual notice of the offer of employment."
This result is consistent with the Court of Appeals' interpretation of § 8-42-105(3)(c) in Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). In that case, the court construed subsection (3)(c) as requiring that the claimant receive actual delivery of the attending physician's release to return to regular employment. The court observed that this result is "consistent with the purpose of the statute to place the claimant on notice that he must return to employment, contest the release, or suffer a loss of benefits." 944 P.2d at 682.
Here, the ALJ found that the claimant did not receive the offer of reemployment until after the offer had expired. Under such circumstances, the claimant did not receive the requisite statutory notice of the offer of reemployment. Therefore, subsection (3)(d) affords no basis for terminating temporary disability benefits based on the claimant's failure to commence employment on January 23.
In view of these conclusions, we need not reach the respondents' argument that their failure to comply with Rule IX is irrelevant. Even if the respondents were not required to comply with Rule IX, they failed to justify termination of benefits under the statute.
We note that, after the matter was transmitted to us, the respondents requested permission to cite additional authority in the form Anglada v. Clara Corp., supra. We grant the respondents' request, and have considered that authority in reaching our decision.
IT IS THEREFORE ORDERED that the ALJ's order dated May 15, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 19, 1998 to the following parties:
James E. Simington, III, 1200 Martin Rd., Longmont, CO 80501
Assured Transportation Delivery, Inc. 2415 Campus Dr., #101, Irvine, CA 92612
Reliance National Indemnity, Lindsey Morden Claim Services, Inc., Michelle R. Burgan 7430 E. Caley Ave., #110, Englewood, CO 80111-6716
Bradley A. Hall, Esq., 5155 Kimbark St., P.O. Box 978, Longmont, CO 80502-0978 (For the Claimant)
Lawrence D. Blackman, Esq. John R. Parsons, Esq., 1515 Arapahoe St., #600, Denver, CO 80202 (For the Respondents)
By: ________________________________