Opinion
W.C. No. 4-338-577
March 31, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied her claim for additional temporary disability benefits. We reverse the order denying temporary partial disability benefits, set aside the order denying temporary total disability benefits and remand.
The claimant suffered a compensable injury on May 8, 1997, which temporarily precluded her from performing her regular employment. On June 2, 1997, White Wave, Inc., (White) offered the claimant part-time, modified employment within the medical restrictions imposed by the treating physician. The claimant accepted the offer and returned to work. The respondents then admitted liability for temporary partial disability benefits.
On June 10, 1997, the claimant voluntarily quit the modified employment. The claimant remained unemployed until April 2, 1998, when she secured other, part-time employment within her medical restrictions.
On September 10, 1997, Dr. Orent placed the claimant at maximum medical improvement (MMI), and released the claimant to her "former employment" without evidence of permanent impairment. However, Dr. Orent also restricted the claimant from lifting more than 20 pounds, and pushing or pulling more than 30 pounds. There is no dispute that the claimant remains medically restricted from performing her regular employment.
The claimant subsequently underwent a Division-sponsored independent medical examination (IME) to dispute Dr. Orent's finding of MMI. The IME physician determined the claimant was not at MMI, and the ALJ found that the respondents failed to overcome the IME physician's opinion by clear and convincing evidence. Therefore, the ALJ determined the claimant has not reached MMI.
Because she was found not to have reached MMI, the claimant requested the reinstatement of temporary disability benefits effective September 10, 1997. Specifically, the claimant requested an award of temporary total disability benefits from September 10 to April 2, 1998, and temporary partial disability benefits thereafter. Relying on Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998), the respondents argued that the claimant's entitlement to all further temporary disability benefits terminated June 18, 1997, when she refused to begin a written offer of full-time employment within her medical restrictions.
The ALJ found that in a letter dated June 12, 1997, White tendered to the claimant an offer of full-time, modified employment which was approved by the treating physician. Because the claimant failed to begin the offer on June 18, the ALJ determined that the respondents properly terminated temporary partial disability benefits effective June 18, 1997. The ALJ also determined that the claimant failed to establish grounds for the reinstatement of temporary total disability benefits. Consequently, the ALJ denied the claim for additional temporary total disability benefits.
On review, the claimant contends that PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), compels an award of additional temporary disability benefits. We conclude the ALJ erred in denying further temporary partial disability benefits commencing September 10, and that the ALJ's findings of fact are insufficient to determine whether he erred in denying temporary total disability benefits commencing September 10.
Temporary disability benefits are payable when the industrial injury causes a disability, and the disability results in an actual loss of wages. Section 8-42-103(1), C.R.S. 1998. Where the disability precludes the claimant from earning all wages, the claimant is entitled to temporary total disability benefits. Section 8-42-105, C.R.S. 1998. Where the wage loss is less than total, the claimant is entitled to temporary partial disability benefits. Section 8-42-106 C.R.S. 1998.
Section 8-42-105(3)(b), C.R.S. 1998, terminates temporary total disability benefits when the claimant "returns to modified employment." However, where the modified employment pays less than the claimant's pre-injury wage, the claimant is entitled to temporary partial disability benefits in accordance with § 8-42-106.
PDM Molding, Inc. v. Stanberg, supra, stands for the proposition that where modified employment is terminated, and the claimant is at "fault" for the termination, the termination constitutes an intervening event which severs the causal connection between the disability and the subsequent wage loss. Under these circumstances, the claimant is precluded from receiving further temporary disability benefits unless the claimant proves that the subsequent wage loss is "to some degree" the result of the industrial disability. PDM also holds that if the claimant reestablishes a causal connection between the injury and the post termination wage loss, temporary disability benefits are due and payable until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 1998.
Here, it is undisputed that the claimant's initial entitlement to temporary total disability benefits terminated on June 2, 1997, when she returned to part-time, modified employment within her medical restrictions. Further, the claimant concedes that she is "at fault" for the loss of the part-time modified employment. Under these circumstances, the claimant is not entitled to further temporary total disability benefits unless she reestablished a causal connection between the injury and her subsequent total wage loss, and provided that none of the grounds for termination listed in § 8-42-105(3)(a)-(d) subsequently occurred. See PDM Molding, Inc. v. Stanberg, supra.
The ALJ found that the claimant "has not shown any grounds to re-commence temporary disability benefits" after June 18, 1997. (Conclusions of Law 3). However, the ALJ did not make any specific findings of fact concerning the legal standard set forth in PDM. Furthermore, we conclude the evidence is legally insufficient to support the ALJ's finding that the claimant's entitlement to temporary total disability benefits terminated on June 18, 1997, when the claimant failed to begin White's offer of full-time, modified employment.
Section 8-42-105(3)(d), C.R.S. 1998, terminates temporary total disability benefits when the attending physician releases the claimant to modified employment, such employment is offered to the claimant in writing, and the claimant fails to begin such employment. In Laurel Manor Care Center v. Industrial Claim Appeals Office, supra, the court held that, where a claimant refused a written offer of employment, the PDM analysis does not apply and temporary total disability benefits automatically terminate under § 8-42-105(3)(d).
However, a written offer of modified employment is not valid unless the claimant has actual knowledge of the offer. See Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, August 25, 1995, aff'd., Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1590, April 25, 1996) (not selected for publication). Where an offer is tendered by mail, the law presumes the offer is received by the addressee if there is proper evidence of its mailing to the claimant's correct address, with adequate prepaid postage. See Olson v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960). The presumption of receipt is established if a witness produces a copy of a properly addressed letter and testifies that he or she personally placed the letter in the mail with the correct postage. Also, evidence of the existence of a business practice may establish a presumption that a particular letter was duly posted. National Motors, Inc. v. Newman, 29 Colo. App. 280, 484 P.2d 125 (1971). However, to support the presumption based upon a business mailing, "there must be testimony from a witness who has direct, personal knowledge that the mailing in question was handled in the usual course of business." United Bank of Denver v. Don, 527 P.2d 1184 (Colo.App. 1984) (not selected for publication).
Where the offer is sent by certified mail, a presumption of receipt by the addressee arises if there is evidence of a certification and a signed return receipt. Johnson v. Roark v. Associates, 608 P.2d 818 (Colo.App. 1979). If there is conflicting evidence concerning whether the letter was mailed there is no presumption and the party seeking to terminate benefits bears the burden to prove that the claimant received the offer. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Here, the claimant did not admit receipt of the June 12 offer. See (Tr. p. 61). Furthermore, we agree with the claimant that no presumption of receipt was established because that the evidence is legally insufficient to establish receipt. Ms. Rusnock, a Human Resources representative from White, testified that she wrote a letter offering the claimant full-time, modified employment. (Tr. p. 41). However, she stated that she "did not directly put it in the mail," and admitted that she did not have a signed return receipt showing that the letter was delivered to the claimant. In addition, the respondents did not present any evidence concerning White's normal business practice for outgoing mail. Under these circumstances, there is no presumption of receipt, and the evidence is legally insufficient to support a finding that the claimant received the June 12 offer. See Billinger v. Apple One Temporary Employment Services, Inc., W.C. No. 4-115-764 (June 16, 1993).
Accordingly, the ALJ erroneously found that the June 12 offer met the requirements for the termination of benefits under § 8-42-105(3)(d). Consequently, the ALJ also erred in finding that the claimant's failure to respond to the offer precluded the claimant from receiving any further temporary total disability benefits.
Moreover, in the absence of the ALJ's erroneous determination, the remaining findings of fact are insufficient to ascertain whether the industrial disability contributed "to some degree" to the claimant's temporary total disability between September 10, 1997 and April 2, 1998. Consequently, we set aside the denial of temporary total disability benefits and remand the matter for additional findings, and a new order concerning the claimant's entitlement to temporary total disability benefits.
Similarly, § 8-42-106(2), C.R.S. 1998, terminates temporary partial disability benefits upon the claimant's failure to begin a written offer of modified employment. Because the evidence is insufficient to find that the claimant received the June 12 offer, her failure to begin the full-time employment does not support the respondents termination of temporary partial disability benefits effective June 18, 1997.
The respondents do not assert any other ground for the termination of temporary partial disability benefits. Consequently, the ALJ erred in denying the claim for ongoing temporary partial disability benefits commencing September 10, 1997.
In view of our disposition, we need not consider the claimant's other arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated August 28, 1998, is reversed insofar as it denied temporary partial disability benefits. The respondents shall pay temporary partial disability benefits commencing September 10, 1997, and continuing until terminated by further order or operation of law.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it denies temporary total disability benefits after September 9, 1997, and is remanded to the ALJ for the entry of a new order on this issue which is consistent with the views expressed herein.
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed March 31, 1999 the following parties:
Tein Kim. Le, 1726 Filmore Ct, Louisville, CO 80027
White Wave Inc., 1990 N 57th Ct, Boulder, CO 80301-2810
Rillia Green, Great States Insurance Co, 6455 South Yosemite Ste. 960, Englewood, CO 80111
Michael Dominick, Esq., 250 Arapahoe Ave. Ste. 301, Boulder, CO 80302 (For Claimant)
Janice M Greening, Esq., White Steele, P.C., 1225 17th St. 28th FL, Denver, CO 80202 (For Respondent)
BY: ______________