Opinion
W.C. No. 4-482-629.
September 16, 2003.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Klein (ALJ) which awarded claimant permanent total disability (PTD) benefits. The respondents contend the ALJ denied them due process of law by considering the issue of PTD without benefit of a hearing, and erred in amending an oral ruling made at the conclusion of the hearing. We set the order aside and remand for a hearing on the issue of PTD benefits, and dismiss without prejudice the argument concerning the oral ruling.
In this admitted case the claimant filed an application for hearing alleging entitlement to PTD benefits. Shortly before the scheduled hearing the respondents made an offer of modified employment.
At the hearing the attorneys for the parties and the ALJ engaged in a discussion concerning the issues to be adjudicated. Claimant's counsel indicated the issues included PTD and the question of whether the offer of modified employment was within the claimant's restrictions and capabilities such that refusal of the offer would constitute a defense to the claim for PTD benefits under § 8-42-111(3), C.R.S. 2002. Claimant's counsel further stated that if the ALJ found that the job offer was "feasible" the claimant would "attempt the job," but if the ALJ found the job was not within the claimant's capabilities the issue of PTD could be adjudicated that day. (Tr. Pp. 5). The ALJ then stated the following:
Well, I guess in light of the fact that there has been a job offer made, what I would like to do, if this is possible, and you tell me if it's not, is hear evidence on the issue of the job offer itself. I can make a bench ruling as to whether I believe the job offer is valid or not. If it's a valid job offer, then I don't think there's really any reason to go forward with the issue of permanent total disability today and hear all that evidence. If it's not a valid job offer, then we can continue with the hearing and go forward with the evidence. Would that be all right?
Counsel for both parties then stated their willingness to proceed in accordance with the ALJ's suggested method of resolving the issues. (Tr. Pp. 6). Each party then presented lay and expert vocational evidence focusing on the claimant's physical capacity to perform the offered employment and whether or not the job exists on the open labor market.
Following presentation of this evidence the ALJ remarked on the record that he had "some concerns about the job offer," but the evidence supported a finding the job offered by the employer was within the claimant's physical restrictions. The ALJ then stated that "until the claimant takes a stab at this job, then permanent total disability benefits are not appropriate in this matter." (Tr. Pp. 47-48). No further evidentiary proceedings occurred.
On April 1, 2003, the ALJ entered a written order, and the order was mailed to the parties on April 2, 2003. In the written order the ALJ found as a matter of fact that the job offered by the employer exceeded the claimant's work restrictions and did not constitute "a valid job offer within the meaning of § 8-42-111(3)." Moreover, citing testimony by the claimant's vocational expert, the ALJ found the claimant is permanently and totally disabled. Consequently, the ALJ awarded PTD benefits.
On review, the respondents contend the ALJ's award of PTD benefits denied their right to due process of law. The respondents argue that at the hearing the ALJ limited the issue to whether the job offer constituted a valid affirmative defense, and ruled the issue of PTD would be addressed only if the ALJ concluded the job offer did not constitute a valid defense. Because the ALJ orally ruled the offered employment constituted a valid defense, the respondents reason the ALJ's subsequent written order denied them the right to an evidentiary hearing on the issue of PTD. We agree with this argument.
It is well established that when an administrative adjudication turns on questions of fact due process requires that parties be apprised of the evidence to be submitted and considered, that they be afforded a reasonable opportunity to confront adverse evidence and to present evidence in support of their respective positions, and that they be given an opportunity to make argument on the relevant issues. Major Medical Insurance Fund v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1846, July 31, 2003). In Hendricks v. Industrial Cclaim Appeals Office, 809 P.2d 1076 (Colo.App. 1990), the court held a claimant was denied due process of law where the ALJ terminated temporary disability benefits based on a finding of maximum medical improvement (MMI) when the parties stipulated at the hearing that the issue of MMI was premature.
The claimant has the burden to prove PTD by establishing the inability to earn wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2002. The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). We have previously held that § 8-42-111(3) constitutes an "affirmative defense" to a claim for PTD benefits, and applies where an otherwise permanently and totally disabled claimant refuses an offer of employment. Robles v. Colorado Museum of Natural History, W.C. No. 4-205-358 (August 3, 2000).
At the commencement of the hearing the parties, with the ALJ's approval, agreed to address the respondents' "affirmative defense" based on the offer of modified employment before taking evidence on the issue of whether the claimant could prove PTD. Further, it was understood that the issue of PTD would be deferred and addressed only if the ALJ concluded the offer of modified employment was not "valid" for purposes of § 8-42-111(3). Because the ALJ orally ruled that the offer was "valid," the respondents were not offered the opportunity to present evidence concerning the claimant's ability to earn wages in any employment, nor to confront the claimant's evidence bearing on this question. Neither were the respondents offered an opportunity to make argument that the claimant failed to prove entitlement to PTD benefits. Consequently, we hold that the respondents were denied due process of law concerning whether or not the claimant is entitled to PTD benefits, and the matter must be remanded for a hearing on this issue.
The respondents also contend the ALJ's written order is erroneous insofar as it failed to adhere to his oral ruling that the respondents made a "valid" offer of employment for purposes of § 8-42-111(3). The respondents' arguments notwithstanding, it is the ALJ's written order, not his oral remarks, which are subject to our review. Section 8-43-215(1), C.R.S. 2002 (ALJ shall issue a written order and the written order is the final "award" subject to review); § 8-43-301(2), C.R.S. 2002 (petition to review must be filed within 20 days from the date of the certificate of mailing of the order); Wait v. Jan's Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987) (order does not enter until set forth in writing and copy mailed to parties).
Having set aside that portion of the written order awarding PTD benefits, the remaining portion of the written order merely determines that the respondents failed to prove the affirmative defense created by § 8-42-111(3). That portion of the order is not currently final and reviewable because, standing alone, it neither awards nor denies any benefits or penalties. Section 8-43-301(2); Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Consequently, we must dismiss without prejudice the respondents' petition to review insofar as it argues that the ALJ was required to adhere to his oral remarks when entering the written order.
We need not determine whether the ALJ timely entered the written order under § 8-43-215(1). Even if he did not, the failure to do so was not jurisdictional. See Langton v. Rocky Mountain Health Care, 937 P.2d 883 (Colo.App. 1996) (time limit for entry of an order by the ALJ is directory, not mandatory).
IT IS THEREFORE ORDERED that the ALJ's order dated April 1, 2003, is set aside insofar as it awarded PTD benefits. The matter is remanded for a hearing and entry of a new order on this issue.
IT IS FURTHER ORDERED that the respondents' petition to review is dismissed without prejudice insofar as it contests the ALJ's finding that the respondents failed to make a "valid" job offer for purposes of § 8-42-111(3).
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
An action to modify or vacate the Order may be 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, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202, 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. 2002.
Copies of this order were mailed to the parties at the addresses shown below on September 16, 2003 by A. Hurtado.
Jose R. Lechuga, 272 Inca St., Denver, CO 80223
Adam's Mark Hotel, Inc., 1550 Court Pl., Denver, CO 80202
American Home Assurance Company, Regulatory Information Services, 175 Water St., 18th floor, New York, N.Y. 10038
American Home Assurance Company, c/o Paul Tillman, Corporate Claims Management, Inc., 782 Spirit 40 Park, Chesterfield, MO 63005
John M. Connell, Esq., 6750 Stapleton Drive South, #200, Denver, CO 80216 (For Claimant)
Royce W. Mueller, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)