Opinion
W.C. No. 4-285-609
August 29, 2002
FINAL ORDER
The claimant and the respondent seek review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for permanent total disability benefits. The claimant argues the ALJ erred as a matter of law in determining the respondent's offer of home employment was objectively reasonable. We affirm.
In 1996 the claimant sustained a compensable back injury while employed as a customer service supervisor for the respondent's newspaper. In October 1999, the claimant was placed at maximum medical improvement by a treating physician, Dr. Struck. In July 2001, Dr. Struck imposed permanent restrictions which limited the claimant to working 4 hours per day, limited her standing, walking, and sitting, and prohibited bending, squatting, and kneeling. The claimant must take frequent rest breaks when performing activity and must lie down almost hourly to relieve symptoms. The claimant was prohibited from returning to her preinjury employment.
On July 31, 2001, the respondent offered the claimant modified employment as an acquisition representative earning $6 per hour for 20 hours per week. The offer envisioned the claimant would telephone customers from her home using an adjustable desk, chair, fax machine, and cordless phone provided by the respondent. The job was approved by Dr. Struck. However, the claimant refused to accept delivery of the equipment unless the respondent agreed to build an addition to her 1400 square foot home. The respondents did not agree to this condition.
The case proceeded to hearing on the issue of permanent total disability benefits. Implicitly crediting the testimony of the claimant's vocational expert, the ALJ found the claimant's restrictions and limitations render her unable to earn any wages in her local labor market. However, the ALJ found the claimant refused to accept an offer of employment within the meaning of § 8-42-111(3), C.R.S. 2001, and is not entitled to permanent total disability benefits. The ALJ found the offer of home employment was "objectively reasonable" because the claimant had previously performed home employment, and because the claimant's home "has sufficient space to permit the equipment to be installed in any of several areas."
On review, the claimant contends the ALJ erred as a matter of law in concluding the offer of home employment was reasonable. The claimant asserts the claimant cannot be forced to "volunteer" her home and utilities as a condition for receiving permanent total disability benefits. We perceive no error.
Section 8-42-111(3) provides a disabled employee who refuses an offer of employment which would enable the employee to earn any wages is not entitled to permanent total disability benefits. The question of whether an employer has made a "bona fide" offer of employment which would enable the claimant to earn wages is generally one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997). We have held that the proffered employment must be reasonably available to the claimant under an objective standard. The rationale for this conclusion is that the General Assembly "could not have intended for respondents to avoid liability for permanent total disability benefits by offering a job which the claimant cannot physically perform, or which the claimant is, for some other reason, disqualified from accepting." Jones v. S B Stagelines, Inc., W.C. No. 4-209-265 (May 7, 1997). This determination of whether employment is "objectively reasonable" is also one of fact. Romero v. Castle Rock Construction, Co., W.C. No. 4-390-451 (September 27, 2000).
Because these issues are 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. 2001; Lobb v. Industrial Claim Appeals Office, supra. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant's argument notwithstanding, we disagree that an offer of home employment is objectively unreasonable as a matter of law. The term employment, as used in the Act, includes "any method of carrying on any trade, occupation, job, position, or process of manufacture." Section 8-40-201(8), C.R.S. 2001. Nothing in that definition prohibits or excludes home employment as a "method" of carrying on a job. Indeed, in Lobb v. Industrial Claim Appeals Office, supra, the court noted the employer's offer of employment gave the claimant the "option to work at home." Further, we agree with the ALJ that an offer of employment which requires the claimant to devote space in the claimant's home to employment-related equipment is not inherently more onerous than other conditions of accepting employment including transportation issues, location of the job itself, or the duties of the job.
Applying these principles here, we find the record contains substantial evidence to support the ALJ's conclusion that the respondent's offer of home employment was objectively reasonable without the condition that the respondent construct an addition to the claimant's house. As the ALJ found, the record indicates the claimant's house has a guest bedroom and other areas which might be used for the equipment if the claimant were willing to move pieces of furniture. Although this could involve some inconvenience to the claimant, we cannot say the proposal is so disruptive or intrusive that the ALJ was compelled to find that the respondent's offer was unreasonable as a matter of law.
The claimant also argues, without benefit of any legal citation, that interpreting the statute so as to permit the offer of home employment constitutes an invasion of the claimant's "constitutionally protected right to privacy within her dwelling." However, no such legal argument was made to the ALJ, and we need not consider the argument when it is made for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995).
In light of this resolution, the arguments raised by the respondent in its petition to review and brief are moot, and we need not consider them.
IT IS THEREFORE ORDERED that the ALJ's order dated March 18, 2002, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 29, 2002 to the following parties:
Teresa C. Clobes-Beene, 3405 Sinton Rd., #101, Colorado Springs, CO 80907
Freedom Communications, Inc. d/b/a The Gazette, P. O. Box 1779, Colorado Springs, CO 80901
Gazette Telegraph, 30 S. Prospect St., Colorado Springs, CO 80903-3638
Jason Houston, Sedgwick Claims Management Services, Inc., 1225 17th St., #2100, Denver, CO 80202-5534
Paula Otanez, Hobbs Group, 400 Oceangate, #400, Long Beach, CA 90802
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Scott D. Sweeney, Esq. and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondent)
By: A. Hurtado