Opinion
W.C. No. 4-374-799
August 16, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ). The claimant contends the ALJ erroneously denied permanent total disability benefits. The claimant also contends the ALJ erred in failing to calculate the awards of temporary total and permanent partial disability benefits based upon the maximum rate allowed by the Workers' Compensation Act. We disagree and, therefore, affirm.
The claimant suffered a compensable injury on February 2, 1998, while working as a First Responder on the Conejos County Ambulance Team. On conflicting vocational evidence, the ALJ found the claimant failed to prove the injury rendered her permanently and totally disabled. The ALJ awarded temporary total and permanent partial disability benefits based upon the claimant's average weekly wage of $16.64.
I.
On review, the claimant contends the ALJ failed to apply the proper legal standard in determining the claimant is not permanently and totally disabled, because the ALJ did not consider the claimant's access to employment. We disagree
Section 8-40-201(16.5)(a), C.R.S. 2000, defines permanent total disability as the claimant's inability "to earn any wages in the same or other employment." Under the statute, the claimant carries the burden of proof to establish permanent total disability. In determining whether the claimant has sustained her burden of proof, the ALJ may consider a number of "human factors." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997) . These factors include the claimant's physical condition, mental ability, age, employment history, education and the "availability of work" the claimant can perform . Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). As argued by the claimant, 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.
Contrary to the claimant's contention, the ALJ's order reflects her consideration of the proper legal standard. The ALJ's order was not based solely on the claimant's medical impairment. The ALJ expressly considered the claimant's prior work experience, training and transferrable skills. (Findings of Fact 14, 15, 16). The ALJ also considered evidence of the modified employment available in the sparsely populated agricultural community where the claimant resides. (Finding of Fact 17). Furthermore, the ALJ recognized the direct conflict between the vocational rehabilitation experts concerning whether the claimant is capable of performing the occupations of hotel clerk, telemarketer, fast-food order-taker, and teacher's aide.
However, relying on the testimony of the claimant's vocational rehabilitation consultant, Rodney Wilson, (Wilson) the claimant contends the record does not support the ALJ's finding that the jobs identified by vocational rehabilitation consultant Patricia Anctil are within the claimant's physical capabilities. The claimant also contends the ALJ should have "disregarded" evidence which might support a contrary determination.
The issue of whether the claimant is able to earn any wages is one of fact. Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Weld County School District RE-12 v. Bymer, supra. The credibility of expert witnesses, and the conclusions to be drawn from their testimony, are matters particularly within the ALJ's province. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
On June 10, 1999, Dr. Leppard permanently restricted the claimant from lifting greater than 10 pounds, and opined the claimant needs to be able to change sitting and standing positions every 15 minutes. The ALJ found the claimant's medical restrictions placed her in the sedentary work category.
Wilson opined that such jobs exceed the claimant's restrictions if she would be required to lift greater than 10 pounds and not allowed to frequently alternate between sitting and standing. Anctil, the respondents' vocational expert, testified that the jobs identified for the claimant are currently under-supplied and that employers are willing accommodate employees who are motivated to work. Within her sole prerogative, the ALJ gave the greatest weight to the opinions of Anctil. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of an expert's testimony); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one expert opinion to the exclusion of a contrary opinion); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Because there is substantial evidence in Anctil's testimony to support the ALJ's finding that there are jobs available to the claimant within her physical restrictions, it is immaterial that Wilson's testimony contains evidence which, if credited, might support a contrary result. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Consequently, the claimant has failed to establish grounds which affords us a basis on which to disturb the denial of permanent total disability benefits.
II.
The claimant contends the ALJ erred in failing to award temporary total and permanent partial disability benefits based upon the maximum rate allowed by law, pursuant to § 8-40-202(1)(a)(1)(a), C.R.S. 2000. We disagree.
The rate of compensation for disability benefits is ordinarily a percentage of the claimant's average weekly wage. Parker Fire Protection District v. Poage, 843 P.2d 108 (Colo.App. 1992). Section 8-40-202(1)(a)(II) creates an exception to the usual measure of calculating disability benefits. Parker Fire Protection District v. Poage, supra. That statute provides the rate of compensation for persons accidentally injured while serving a "volunteer ambulance team" shall be at the maximum rate provided" by the Workers' Compensation Act. The purpose of the statute is to ensure that compensation is paid to claimants who have no wages, and are injured in the course of voluntarily performing a public service. Parker Fire Protection District v. Poage, supra.
In Parker, the claimant volunteer was injured while working as an unpaid volunteer firefighter. As a result of the injury, the claimant was unable to perform the work required of two paid, part-time positions for 20 days, but otherwise lost no time from work. Because the claimant was an unpaid volunteer at the time of the injury, the court concluded that the claimant's rate of compensation was independent of her actual wage from the part- time positions and instead, was governed by § 8-40-202(1)(a)(II).
Unlike the facts in Parker, the ALJ found the claimant here was a paid employee and not a "volunteer" at the time of the injury. Therefore, the ALJ determined § 8-40-202(1)(a)(II) was not applicable. We agree.
Under § 8-40-202(1)(b), C.R.S. 2000, an employee is defined as a person in the service of any other person "under any contract of hire, express or implied." A contract is an agreement which creates an obligation and an expectation of remuneration for the services performed. Aspen Highlands Skiing Corp. v Apostolou, 866 P.2d 1384, 1387 (Colo. 1994) ; Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966). Conversely, if a party performs services without the expectation of remuneration, the person is a "volunteer." Aspen Highlands Skiing Corp. v Apostolou, 866 P.2d at 1389. Thus, in Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963), the court held that a claimant providing charitable services to a hospital was not an employee despite the fact that the hospital provided free meals to the claimant.
The question of whether an employment contract has been formed is generally one of fact for resolution by the ALJ. Rocky Mountain Dairy Products v. Pease, supra. Consequently, we must uphold the ALJ's pertinent findings of fact if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2000. The substantial evidence test mandates that we defer to the ALJ's resolution of the conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
On review, it is undisputed that the job of First Responder required the claimant to be "on-call," which means that the First Responder cannot leave the area for any reason and must be clean, sober, and available to respond to an emergency within 5 minutes. The First Responder is also required to respond to any and all calls made during their assigned shift. The First Responder is paid $12 for responding to a call where aid is rendered, and $5 per call if they respond to a call but do not render aid. The First Responder is also paid for non-emergency ambulance transports to hospitals. In some cases, a First Responder not "on call" is paid for responding to a call if it deemed his or her presence was helpful. Otherwise, the claimant was not paid for shifts that yielded no calls.
The claimant contends she was a "volunteer" because it is undisputed she was not paid and there was no expectation of remuneration when she was on call. We disagree.
Admittedly, the claimant was not paid merely for being "on call." However, the ALJ expressly considered this factor, and determined it did not change the employment relationship between the parties concerning the claimant's obligation to respond to calls during a shift, and her expectation of remuneration when she did respond to a call. Moreover, the ALJ determined the claimant cannot be classified as a volunteer because she and the employer had an agreement which included an expectation that the claimant would respond to all calls during a shift, and that the claimant would be paid for any runs she made. (Discussion and Conclusions of Law 2).
In effect, being on call was part of the services provided by the claimant to the employer in exchange for the expectation she would be paid if she actually responded to call during her shift. In fact, the injury occurred while the claimant was responding to a call. Under these circumstances, the ALJ's findings support her determination the claimant was an "employee," and not a "volunteer" for purposes of § 8-40-202(1)(a)(II).
IT IS THEREFORE ORDERED that the ALJ's order dated November 14, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 16, 2001 to the following parties:
Theresa Dufresne, 201 4th Ave., Romeo, CO 81148
Conejos County, P. O. Box 157, Conejos, CO 81129-0157
Norma Stimmler, CTSI, 1700 Broadway, #1512, Denver, CO 80290
Rick Paul Lopez, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80918 (For Claimant)
David J. Dworkin, Esq. and Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Pendroy