Summary
In Jones v. S B Stagelines, W.C. No. 4-209-265 (May 7, 1997), we considered the circumstances under which § 8-42-111(3) may be invoked to preclude an award of permanent total disability benefits where the claimant refuses an offer of out-of-state employment.
Summary of this case from In re Romero, W.C. NoOpinion
W.C. No. 4-209-265
May 7, 1997
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which awarded the claimant permanent total disability benefits. We affirm the order in part, set it aside in part, and remand for entry of a new order.
The ALJ found that the claimant sustained a compensable back injury in the course of his employment as a truck driver. The claimant underwent back surgery, and is now restricted from performing any of the heavy jobs he held before the injury. The ALJ found that, considering the restrictions and the fact that the claimant lives in a remote county of Colorado, the claimant is incapable of earning any wages. Consequently, the ALJ awarded permanent total disability benefits.
In reaching this result, the ALJ stated that the respondent-employer made an offer to reemploy the claimant in Dallas, Texas. However, the ALJ concluded that the claimant "is not required to relocate from the area in which he resides to take an offer of re-employment."
I.
On review, the respondents argue that the ALJ erred in considering the claimant's access to employment in his local labor market. The respondents argue that § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), does not contemplate such a narrow focus, and that the claimant's employability must be judged based on the national labor market. We disagree.
As the parties recognize, the Court of Appeals has issued two diametrically opposed opinions concerning whether or not it is proper to consider the claimant's local or "commutable" labor market under § 8-40-201(16.5)(a). In Brush Greenhouse Partners v. Godinez, ___ P.2d ___ (Colo.App. No. 96CA0266, December 27, 1996), Erickson, J., dissenting, one division of the court held that a claimant's ability to find employment in his "local community" is one of the "human factors" properly considered in determining permanent total disability. Godinez cited Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995), for the proposition that § 8-40-201(16.5)(a) did not repeal the authority of ALJs to consider the human factors which were relevant prior to the enactment of the statute. Moreover, the Godinez court pointed out that, prior to SB-218, a claimant's employability in the local labor market was a proper factor for consideration. See Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991); Gruntmeir v. Tempel Esgar, Inc., 730 P.2d 893 (Colo.App. 1986).
In Spady Brothers v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 96CA0895, February 6, 1997), Pierce, J., dissenting, another division of the court held that consideration of a claimant's employability in the "commutable labor market" is not a proper factor for consideration under § 8-40-201(16.5)(a). The court reasoned that the statute was enacted to develop a "stricter definition of permanent total disability." Moreover, the court stated that the concept of a commutable labor market "does not lend itself to a workable definition or application," and that the General Assembly could not have intended "that a claimant with exactly the same restrictions, injuries, education, and training would become totally disabled if he resides in a rural area, but only partially disabled if he resides in a metropolitan area." Finally, the court stated that consideration of a claimant's employability in his local labor market was a concept unsupported by legal authority until the announcement of Gruntmeir v. Tempel Esgar, Inc., supra.
In our view, Brush Greenhouse Partners v. Godinez represents the better reasoned decision, and therefore, we choose to follow it here. First, we disagree with the Spady Brothers court that the concept of a "commutable labor market" constitutes an unworkable "definition or application" in permanent total disability cases. To the contrary, ALJs have for some time been applying this standard under Prestige Painting and Decorating, Inc. v. Mitchusson, and Gruntmeir v. Tempel Esgar, Inc. In our view, ALJs are fully capable of making reasoned judgments concerning a claimant's employability based on the physical restrictions, the claimant's capacity to travel, the availability of transportation, and the scope of the labor market in the claimant's community.
Moreover, we disagree with the Spady Brothers court's contention that it could not have been the intent of the General Assembly to permit consideration of a claimant's local labor market in determining whether the claimant is permanently and totally disabled. First, as the court itself concedes, Gruntmeir permitted consideration of a claimant's local labor market prior to the enactment of § 8-40-201(16.5)(a). Had the General Assembly wished to discontinue consideration of this factor, it could have said so in the statute. However, it did not. Consequently, we think it plausible to conclude that General Assembly did not intend to exclude consideration of this factor. See Best-Way Concrete Co. v. Baumgartner, supra (General Assembly was presumably aware, when it enacted § 8-40-201(16.5)(a), that permanent total disability was consistently determined based on interdependent factors, but failed to eliminate that analysis).
Neither do we agree with the Spady Brothers court that there is an inherent contradiction or unfairness which results from evaluating employability based on whether the claimant lives in a rural or urban area. Philosophically, this is no different than treating claimants differently based on their educational attainments. Education, like location, is a factor over which a claimant has some degree of control. Nevertheless, the Spady Brothers court does not purport to overrule Best-Way Concrete Co. v. Baumgartner insofar as that case allows consideration of a claimant's individual educational level.
Moreover, there is a practical reason for differentiating between claimants who reside in rural and urban areas. As a general matter, claimants in urban areas have access to a larger labor market, and therefore, are more likely to find jobs within their restrictions. Conversely, claimants in rural areas typically confront smaller scale economics with fewer jobs. Thus, they face unusual barriers to reemployment following a disabling injury.
The effect of the Spady Brothers decision is to require injured workers in rural areas to expend permanent partial disability awards to move to urban areas in hopes of finding employment. Conversely, urban claimants need not expend their permanent partial disability awards in this fashion because they already reside in a favorable labor market. Needless to say, this result creates its own contradiction and unfairness, which would be amplified in cases where a claimant is required to sell real property and uproot a working spouse in order to move to an urban area. We do not consider this to be a just and reasonable result, and disagree with the Spady Brothers court's conclusion that the General Assembly intended such a result. See McCallum v. Dana's Housekeeping, ___ P.2d ___ (Colo.App. No. 96CA0459, October 24, 1996) (General Assembly intends statute to have a just and reasonable result); § 2-4-201(1)(c), C.R.S. (1980 Repl. Vol. 1B); § 2-4-203(1)(e), C.R.S. (1980 Repl. Vol. 1B) (it is proper to consider the consequences of a proposed construction).
Finally, although we agree with the Spady Brothers court that § 8-40-201(16.5)(a) was enacted to establish a stricter standard for permanent total disability, we disagree that the statute mandates the result reached in Spady Brothers. As evidenced by McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995), § 8-40-201(16.5)(a) can be applied so as to reduce the likelihood of a permanent total disability award without excluding consideration of a claimant's local labor market. In McKinney, a denial of permanent total disability benefits was upheld where the evidence demonstrated that the claimant was able to work only part-time, at or near the minimum wage. It is doubtful that permanent total disability benefits would have been denied under the standard of permanent total disability which existed prior to § 8-40-201(16.5)(a). Compare, Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995), aff'd., Christie v. Coors Transportation Co., ___ P.2d ___, (Sup.Ct. No. 96SC66, March 31, 1997).
Since we conclude that Brush Greenhouse Partners v. Godinez is a better reasoned decision than Spady Brothers v. Industrial Claim Appeals Office, we choose to follow Brush Greenhouse Partners unless and until there is further direction from the Court of Appeals or the Supreme Court. It follows that the ALJ did not err in considering the claimant's local labor market in finding that he is permanently and totally disabled within the meaning of § 8-40-201(16.5)(a). Thus, we affirm that portion of the ALJ's order.
II.
Respondents next contend that the ALJ erred in awarding permanent total disability because the claimant refused the offer of employment in Dallas, Texas. The respondents assert that the ALJ was not entitled to consider the "reasonableness" of the claimant's refusal of the offer. Moreover, the respondents argue that even if the ALJ could consider the reasonableness of the refusal, she should have done so from an "objective" basis rather than the claimant's "subjective" point of view. We conclude that the ALJ's findings of fact are insufficient on this issue, and therefore, remand for further findings and entry of a new order.
Section 8-42-111(3), C.R.S. (1996 Cum. Supp.) provides that a disabled employee "who refuses an offer of employment by the same or other employer . . . shall not be awarded permanent total disability." In interpreting this statute, we apply the established rule that the primary objective is to effect the legislative intent. First, the words in the statute should be given their plain and ordinary meanings, provided no absurdity results. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). To the extent the statute is ambiguous, we may consider the problem which the General Assembly sought to solve by enacting the statute. Further, we should read the statute in its entirety so as to give consistent, harmonious and sensible effect to all its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Also, we must assume that the General Assembly intended a just and reasonable result. Section 2-4-201(1)(c).
The respondents' argument notwithstanding, a literal reading of § 8-42-111(3) would lead to an absurd result. Presumably, 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. Thus, not just any offer of employment is sufficient.
Although we have not previously interpreted the disputed provision of § 8-42-111(3), we have had occasion to interpret § 8-42-105(3)(d)(I), C.R.S. (1996 Cum. Supp.), which provides that a claimant loses entitlement to temporary total disability benefits if he fails to begin medically-approved modified employment which is offered in writing. In Ragan v. Temp Force, W.C. No. 4-216-579 (June 7, 1996), we stated the following:
"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. [Citation omitted.] 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."
Thus, in the Ragan case, we upheld an ALJ's order requiring the continuation of temporary disability benefits despite the fact that the claimant was offered a job within her restrictions. The facts revealed that, prior to the injury, the claimant worked at a restaurant approximately two blocks from her home. However, the modified employment offered to the claimant would have required her to travel fifty-five miles per day. The claimant did not have access to an automobile, was afraid to drive, and had no public transportation which would have allowed her to reach the modified employment. Thus, the evidence supported the conclusion that the offered employment was not "reasonably available under an objective standard."
Applying the Ragan analysis here, we conclude that, in order to deny a claimant permanent total disability benefits by offering employment under § 8-42-111(3), it must be shown that the claimant was physically capable of performing the proffered employment. Moreover, if the evidence demonstrates that, as a practical matter, the claimant is prohibited from accepting the employment, the statute will not stand as a bar to an award of permanent total disability benefits. However, in determining this issue, the ALJ must apply an "objective standard" and is not bound by the claimant's subjective judgment concerning the reasonableness of accepting the offered employment.
Here, we agree with the respondents that the ALJ made inadequate findings of fact to resolve the pertinent issues. First, we note that the evidence is conflicting concerning whether or not the claimant was physically able to perform the duties of the job. Although the respondents presented documentary evidence that the claimant would have been able to perform the job, the claimant testified to facts which would justify the inference that the respondents misrepresented the duties of the employment. (Tr. p. 74). On remand, the ALJ should resolve the conflict in the evidence concerning whether or not the claimant was capable of performing the job in Dallas, Texas.
We also agree with the respondents that the ALJ's findings are inadequate to determine whether or not the claimant's refusal to accept the job was objectively reasonable. Although there was conflicting evidence on this point, the ALJ ultimately concluded only that the claimant was not required to accept the offer if it required him to relocate from his residence. As we have held, there is no hard and fast rule concerning whether relocation is or is not required. Rather, the ALJ must evaluate the evidence under the objective standard.
On remand, the ALJ should resolve conflicts in the evidence concerning whether or not the claimant's refusal to accept the Dallas, Texas job was objectively reasonable. Since we have stated a new standard for adjudication under this statute, the ALJ may, in the exercise of her discretion, hold an additional hearing to permit the receipt of additional evidence on this point.
IT IS THEREFORE ORDERED that the ALJ's order dated August 5, 1996, is affirmed insofar as it determined that the claimant carried his initial burden of proof to establish permanent total disability under § 8-40-201(16.5)(a).
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it actually awards permanent total disability benefits, and the matter is remanded to determine whether an award of permanent total disability benefits is barred under § 8-42-111(3).
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed May 7, 1997 to the following parties:
Donald L. Jones, 1033 Main St., Springfield, CO 81073
S B Stagelines, Inc., P.O. Box 2145, Houston, TX 77252-2145
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Anthony L. Sokolow, Esq., 620 S. Cascade, Ste. 103, Colorado Springs, CO 80903 (For the Claimant)
Jill Gallet, Assistant Attorney General, Human Resources Section, 1525 Sherman St., 5th Flr., Denver, CO 80203
By: ____________________________