Opinion
W.C. No. 4-186-570
January 16, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied her claim for permanent total disability benefits. We affirm.
The ALJ found that the claimant suffered a compensable head injury on September 23, 1995, while employed by Premier Care Services, Inc. (Premier). At the time of maximum medical improvement, Dr. Lane released the claimant to return to work with restrictions. Dr. Lane also recommended that the claimant work only four hours a day initially, and have the benefit of a "job coach" to address cognitive issues resulting from the head injury.
The parties stipulated that the claimant is not employable in the open, competitive labor market. However, the ALJ found that Premier fashioned an offer of reemployment in which the claimant would earn $10 per hour. The ALJ found that the job primarily required the claimant to place pre-printed labels on mailings but also required the claimant to open and date mail, photocopy, answer the telephone, file invoices, maintain and update materials, and record data. Further, the ALJ determined that the offered employment was designed to be flexible to accommodate the claimant's physical needs, and therefore, allowed the claimant to work as many hours as she was physically capable of working up to full-time employment.
Based upon the opinions Dr. Lane and vocational experts Barbara Boetje (Boetje), and Mitchell Veeder (Veeder), the ALJ determined that the offered employment was appropriate and within the claimant's medical restrictions. Therefore, the ALJ determined that the claimant is not permanently totally disabled within the meaning of § 8-40-201(16.5)(a), C.R.S. (1996 Cum. Supp.), because she is capable of "earning any wages in the same or other employment."
The claimant argued that the offer does not constitute "employment" in which the claimant can earn "wages," as those terms are defined in the Workers' Compensation Act. The ALJ rejected this argument. The ALJ also rejected the claimant's argument that the offer was for "odd lot" employment which did not preclude the claimant from receiving permanent total disability benefits. The ALJ concluded that the "odd-lot doctrine" did not apply to claims for permanent total disability benefits which are governed by the provisions of § 8-40-201(16.5)(a).
On review, the claimant renews the arguments she made before the ALJ, and asserts that the ALJ erred in failing to find that she is permanently totally disabled. We perceive no error.
The determination of whether the claimant is capable of earning wages in the same or other employment is a factual determination for the ALJ. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995), cert. granted July 1, 1996; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Evidence of a particular job offer is pertinent to that determination. See Weld County School District RE-12 v. Bymer, ___ P.2d ___ (Colo.App. No. 96CA0041, October 31, 1996) (availability of employment in claimant's local community is relevant factor in determining permanent total disability). Consequently, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. See § 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Here, the employer's witness David Sebbag (Sebbag) testified that the employer mails approximately 5,000 pieces of material a month, and that each item requires a mailing label. Sebbag stated that in the past, labeling the material was contracted out or performed by employees. (Tr. pp. 127-128). Sebbag stated that the labeling job was offered to the claimant because the defined duties have to be done, Premier considers the claimant a valued employee, and Premier prefers that the job duties be performed by the claimant. (Tr. pp. 128, 139, 144). Vocational experts Veeder and Boetje corroborated the employer's testimony, and stated that they believed the employer was "very sincere" in its attempt to find job duties the claimant could perform. (Tr. pp. 183, 190).
The ALJ could, and did, infer from this evidence that the reemployment offer constituted a "bona fide" offer of employment, in which the claimant could earn "any wages." Therefore, it is immaterial that the record contains evidence which, if credited, might support a contrary finding. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983) (findings supported by substantial, albeit conflicting evidence binding on appeal).
Further, § 8-40-201(8), C.R.S. (1996 Cum. Supp.), defines "employment" as "any trade, occupation, job, position, or process of manufacture or any method of carrying on any trade, occupation, job, position or process of manufacture in which any person may be engaged." The ALJ's finding that the respondents offered the claimant a position to work as a staff assistant, where she would engage in a variety of activities and be compensated at a rate of $10 per hour, supports a conclusion that the duties constituted "employment."
We also note that under § 8-40-201(8) the term "employment" is not limited to circumstances involving a specific work schedule, performance standards, or a description of the benefit to the employer. Thus, we are not persuaded that the absence of this criteria in an offer precludes a finding that there has been an offer of "employment."
In any case, Sebbag stated that the claimant would be subject to performance standards to ensure that she was contributing to the company. However, he indicated that the claimant would initially be treated as a "trainee" and that the standards would be imposed over time. (Tr. pp. 132, 139). Furthermore, the ALJ expressly determined that the offered duties conferred a benefit to the employer, and that the offer included a "flexible" work schedule.
Next, we perceive no error in the ALJ's finding that the offered employment established the claimant's ability to earn "wages." In McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995), the Court of Appeals rejected an argument that the term "any wages" in § 8-40-201(16.5)(a) refers to the "money rate" at which the claimant's services were recompensed at the time of the industrial injury. To the contrary, the McKinney court recognized that § 8-40-201(16.5) was enacted to "tighten" eligibility for permanent total disability benefits. The court reasoned that if the term "any wages" referred to the definition of "wages" currently codified in § 8-40-201(19), C.R.S. (1996 Cum. Supp.), then an injured worker who was unable to earn his or her pre-injury wage would be permanently and totally disabled, and such an interpretation would expand eligibility for permanent total disability benefits. Instead the McKinney court effectively concluded that the term "any wages" means more than zero wages. See also Best-Way Concrete Co. v. Baumgartner, supra; Christie v. Coors Transportation Co., supra.
The McKinney court also rejected an argument that a claimant is unable to earn "any wages" if she is permanently precluded from performing full-time employment. Therefore, we agree with the ALJ that wages earned from less than full-time employment falls within the meaning of wages earned from "other employment." Consequently, the fact that the offer of employment initially involved less than full-time employment, did not preclude the ALJ from finding that the claimant can earn "any wages."
We further agree with the ALJ that the "odd-lot doctrine" is not applicable to this claim. Prior to the enactment of S.B. 218, a claimant was permanently and totally disabled if she lost and could not regain efficiency in the fields of general employment. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). Under that standard, the ability to secure occasional work due to business booms, a sympathetic employer, or good luck did not necessarily reflect the ability to compete in a open labor market. See Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, (Colo.App. 1990).
Under the "odd-lot doctrine" the claimant's ability to earn occasional wages or perform certain kinds of gainful work does not preclude a finding of permanent total disability. 1C Larson, Workmen's Compensation Law, § 57.51(a) (1996); National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (1950). Thus, under the law as it existed prior to the enactment of § 8-40-201(16.5)(a), the "odd-lot doctrine" supported an award of permanent total disability benefits even if occasional employment was available to the claimant.
However, permanent total disability claims arising on or after July 1, 1991, are governed by the statutory definition of permanent total disability in § 8-40-201(16.5)(a). See 1991 Colo. Sess. Laws, ch. 219 at 1292; Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Under § 8-40-201(16.5)(a), the claimant's ability to regain "efficiency" in the fields of general employment is not dispositive of permanent total disability. Best-Way Concrete Co. v. Baumgartner, supra. Rather, § 8-40-201(16.5)(a) precludes a finding of permanent total disability unless the industrial injury has rendered the claimant so inefficient that he lacks the ability to earn any wages. Christie v. Coors Transportation Co., 919 P.2d at 860. Accordingly, we do not believe the "odd-lot doctrine" is applicable to permanent total disability claims under § 8-40-201(16.5).
Lastly, the claimant contends that § 8-40-201(16.5)(a) is unconstitutional insofar as it deprives a claimant who is unable to work in the open labor market of permanent total disability benefits based an offer of "odd-lot" employment. The claimant also contends that as applied to the facts of this claim, § 8-40-201(16.5)(a) violates equal protection guarantees of the Colorado and United States constitutions because the statute allows disparate treatment between injured employees who receive no offer of reemployment and are awarded permanent total disability benefits and those injured employees who receive an offer of "make-work activities" for "nominal compensation," and as a result are denied permanent total disability benefits.
We lack jurisdiction to resolve the claimant's facial challenge to the constitutionality of § 8-40-201(16.5). Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Furthermore, we recognize that the Supreme Court has indicated that administrative agencies have the authority to determine whether "an otherwise constitutional statute has been unconstitutionally applied." Horrell v. Department of Administration, 861 P.2d 1194, 1196 (Colo. 1993). However, the claimant's "as applied" argument is inherently intertwined with her facial challenge to the constitutionality of the statute. Under these circumstances we do not know how we can consider the "as applied" argument without addressing the claimant's argument that the statute is unconstitutional on its face. To do so would violate the principle of separation of powers, and cause us to engage in constitutional decision-making beyond the scope of our authority. See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1985) (administrative rulings concerning "facial" challenges to statutes will not be considered "authoritative" on judicial review). Consequently, we decline to consider the claimant's arguments in support of her contention that "as applied" to this claim, § 8-40-201(16.5)(a) denied constitutional guarantees of equal protection.
IT IS THEREFORE ORDERED that the ALJ's order dated October 30, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed January 16, 1997 to the following parties:
Susan G. Lobb, 2791 S. Whiting Way, Denver, CO 80231
David Sebbag, Premier Health Care Services, 245 S. Benton, Ste. 100, Lakewood, CO 80226
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Patricia Jean Clisham, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondent-employer)
Dale A. Garr, Esq., 730 17th St., Ste. 250, Denver, CO 80202 (For the Claimant)
By: ______________________________________________