Summary
In Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276 (August 25, 1995), the respondents sent a letter offering reemployment to the claimant's last known address.
Summary of this case from In re Simington, W.C. NoOpinion
W.C. No. 4-178-276
August 25, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied his claim for temporary disability benefits subsequent to August 2, 1993, and denied a claim for a penalty based on the respondents' failure to pay temporary total disability benefits. We affirm the order in part, and reverse it in part.
The ALJ found that, on July 7, 1993, the claimant was employed as a temporary worker for respondent Ready Men Labor, Inc. (Ready Men). The claimant was performing heavy work involving the unloading of trucks, when he sustained a back injury. The ALJ found, and the record supports the finding, that the injury precluded the claimant from returning to heavy work, or to clerical work which he performed prior to working for Ready Men.
Nevertheless, on July 7, Ready Men's representative, Karla Hansen, verbally offered the claimant light duty work as a "porter" at Samaritan House. The ALJ found that, "for various reasons," the claimant did not begin this employment.
On July 30, 1993, after conversing with the insurance adjuster, Ms. Hansen sent a certified letter to the claimant's last known address. This letter again offered the claimant work within his restrictions. Coincidentally, the claimant's last known address was the Samaritan House.
The letter was received on August 2, 1993, and signed for by "J. Rasmussen." The ALJ found that the claimant did not know Rasmussen, and had "left the shelter by the beginning of August without changing his address with the employer."
Under these circumstances, the ALJ concluded that the claimant was temporarily disabled from July 7, 1993 until August 2, 1993. In support of this position, the ALJ stated the claimant was temporarily disabled because he was "unable to return to his usual and customary occupation in heavy labor as of the date of the injury."
The ALJ concluded that termination of temporary total disability benefits was appropriate on August 2, when the offer of employment was delivered to J. Rasmussen. In support of this determination, the ALJ stated that the "respondents are required to do no more than mail the letter to the last known address and it is claimant's burden to provide the employer with current addresses." The ALJ rejected the argument that the written offer of employment was legally insufficient under Rule of Procedure IX(C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34.
The ALJ also rejected the claimant's argument that the respondents' failure to admit liability for temporary total disability constituted a violation of the Act, or the Rules of Procedure, so as to justify imposition of a penalty under § 8-43-304(1), C.R.S. (1995 Cum. Supp.). In support of this determination, the ALJ stated that the respondents "asserted a defense which is objectively reasonable and predicated on rational argument based in law or evidence" that the claimant was not "disabled" as of July 7. Specifically, the ALJ held that the respondents reasonably argued that the availability of light duty work, which was refused by the claimant, nullified their liability,
I.
On review, the claimant first contends that the ALJ erred in terminating his temporary total disability benefits as of August 2, 1993. Specifically, the claimant argues that the ALJ erred in holding that the delivery of the written offer of employment to the claimant's last known address was sufficient to constitute compliance with § 8-42-105(3)(d), C.R.S. (1995 Cum. Supp.). The claimant's position is that the statute requires actual receipt of the offer, or proof that the claimant was evading receipt of the offer. We agree with the claimant.
Section 8-42-105(3)(d) provides that temporary total disability benefits shall continue until:
"The attending physician gives the employer a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment."
In construing this statute, the first objective is to serve the legislative intent. In ascertaining the legislative intent, words and phrases in the statute should be given their plain and ordinary meaning unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Further, when the General Assembly acts in a particular area, it is presumably cognizant of relevant judicial precedent. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994).
The plain meaning of § 8-42-105(3)(d) is that, in order to terminate temporary disability benefits, the claimant must be tendered a written "offer" of a contract for employment. Our Supreme Court has held that, in order for an "offer" to be effective, it must be "communicated." Kuta v. Joint District No. 50(J), 799 P.2d 379 (Colo. 1990). Communication of the offer is a necessary antecedent to formation of a contract because, otherwise, the element of "mutuality of agreement" is not present. See Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994). Thus, we are persuaded that the General Assembly's use of the word "offered" demonstrates an intent that the claimant receive actual notice of the proffered employment, and that "constructive notice" is insufficient. Cf. Billinger v. Apple One Temporary Employment Services, Inc., W.C. No. 4-115-764, June 16, 1993; Stringfellow v. The Park Co., W.C. No. 4-142-903, January 18, 1994.
Moreover, § 8-42-105(3)(d) does not contain any provision for constructive notice of an offer by delivery to the claimant's last known address. We believe that, had the General Assembly intended constructive notice to be sufficient, it would have so stated in the statute. Although a presumption of receipt of an offer may arise in certain cases, no such presumption applies here because the ALJ implicitly found that the claimant did not receive the letter. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). For the same reason, we reject the respondents' assertion that offers of employment, as contemplated by § 8-42-105(3)(d), are governed by the Rules of Civil Procedure.
We should not be understood as holding that, under appropriate circumstances, a claimant cannot waive, or be estopped from asserting, his right to actual notice of an offer under § 8-42-105(3)(d). Here, however, we do not believe that the claimant's failure to provide the employer with a new address, when he moved within days of the employer's written offer of employment, constitutes a voluntary knowing and intelligent surrender of his right to receive notice of the offer under § 8-42-105(3)(d). See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver is intentional relinquishment of a known right, and requires full knowledge of all relevant facts).
Consequently, the ALJ erred in terminating claimant's temporary total disability benefits based on the August 2 letter. The respondents advanced no other defenses to claimant's entitlement to temporary disability benefits between August 2 and August 20, 1993, except as noted below. Therefore, the claimant is entitled to temporary total disability benefits for this period.
In light of this determination, we need not consider the claimant's argument concerning the applicability of Rule IX(C)(1)(d).
II.
The claimant next contends that the ALJ erred in denying a claim for a penalty under § 8-43-304(1). The claimant asserts that the respondents had no reasonable basis for refusing to pay temporary total disability benefits commencing July 7, 1993. The claimant reasons that the ALJ correctly based the award of temporary benefits on the claimant's inability to perform his pre-injury employment, and that the respondents offered no rational argument to contradict this test. We disagree.
The ALJ held that § 8-42-105(2)(a), C.R.S. (1995 Cum. Supp.) imposes a duty on respondents to commence payment of temporary total disability benefits unless they have a rational basis for denying such benefits. Here, the ALJ determined that the respondents' argument concerning the availability of light duty employment constituted a rational argument that the claimant was not temporarily disabled.
We assume, arguendo, that § 8-42-105(2)(a) creates a statutory duty to commence payment of temporary total disability benefits. The question then becomes whether the respondents "violated" the statute, within the meaning of § 8-43-304(1), because they had no basis for refusing to pay temporary disability benefits.
We have previously held that § 8-43-304(1) does not impose a "strict liability" standard on respondents for alleged violations of the Act. Rather, the Act contemplates that respondents are entitled to assert "reasonably objective" defenses when confronted with a claim for benefits. Such defenses are those which are "rationally based on law or evidence." See O'Grady v. Denver Public School District, W.C. No. 4-151-533, November 18, 1994; Brown v. Gosney Sons, Inc., W.C. No. 3-104-140, August 30, 1994; see also, Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995) (penalty may be imposed on insurer for failing to take reasonable steps to comply with an order).
A legal argument does not lack a rational basis in law or fact merely because it is ultimately proven wrong. Rather, we must examine whether the respondents' position is a plausible interpretation of existing law, or constitutes a reasonable argument for the modification of the law. See Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496 (Colo.App. 1994); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Initially, we reject the respondents' argument that the ALJ misapprehended the law concerning temporary disability. An award of temporary disability benefits is appropriate where the restrictions resulting from the industrial injury are, to some degree, the cause of the claimant's post-injury wage loss. See PDM Molding Co., Inc. v. Standberg, 898 P.2d 542 (Sup.Ct. 1995). It is not the claimant's hypothetical ability to perform some employment, or even his willingness to search for such employment, which is the measure of disability. PDM Molding Co., Inc. v. Standberg, supra; Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) .
Here, the evidence supports the ALJ's finding that the claimant suffered from physical restrictions which precluded him from performing his pre-injury duties. This finding supports the determination that the claimant was temporarily disabled. See Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995) (treating physician's opinion concerning claimant's ability to perform "regular employment" is decisive). The cases cited by the respondents are unavailing. Those cases, including Ice v. Industrial Commission, 120 Colo. 144, 207 P.2d 963 (1949), concern cases where the claimant actually returned to work, and therefore, did not suffer a wage loss.
However, we cannot say that the respondents' argument that the claimant refused a verbal offer of employment, and therefore was not disabled, is so lacking in merit that it is not objectively reasonable. As the respondents argue, prior to the enactment of Senate Bill 91-218 in July 1991, a claimant's refusal of temporary employment within his restrictions was sufficient to sever the causal relationship between the injury and the subsequent wage loss. Therefore, the claimant was not entitled to temporary disability benefits under such circumstances. See Safeway Stores, Inc. v. Husson, 732 P.2d 1244 (Colo.App. 1986).
We have held that, following the enactment of § 8-42-105(3)(d) in 1991, the effect of Safeway Stores, Inc. v. Husson was modified so as to require that post-injury offers of reemployment be in writing. Our rationale was that enactment of the statute reflected the General Assembly's desire to "limit the scope and frequency" of disputes involving offers of employment. See Blair v. Rawhide Rose, Inc., W.C. No. 4-147-705, November 23, 1993.
However, in view of the Supreme Court's ruling in PDM Molding Co., Inc. v. Standberg, supra, we cannot say the respondents' argument is irrational. A possible interpretation of PDM Molding is that, if an employer verbally offers reemployment meeting the claimant's restrictions within three days of the injury, and the claimant unreasonably refuses the offer, the claimant has not crossed the "threshold" of temporary disability. This would be true because the claimant failed to establish a causal relationship between the industrial injury and his subsequent unemployment.
Although we do not believe PDM Molding Co., Inc. v. Standberg should be interpreted so broadly, we cannot say it is irrational or unfounded to do so. Therefore, we decline to hold that the respondents' argument to the ALJ was not rationally based on the law.
IT IS THEREFORE ORDERED that the ALJ's order, dated December 22, 1994, is reversed insofar as it denied temporary total disability benefits between August 2, 1993 and August 20, 1993.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is 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 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. (1995 Cum. Supp.).
Copies of this decision were mailed August 25, 1995 to the following parties:
Ephram Owens, 4575 Tulsa Ct., #6304, Denver, CO 80239
Ready Men Labor, Inc., Attn: Karla Hansen, 965 E. 22nd Ave., Denver, CO 80205
Joseph W. Ruppert, Esq., 25 N. Cascade, #215, Colorado Springs, CO 80903
(For the Claimant)
Douglas A. Thomas, Esq., Colorado Compensation Insurance Authority — Interagency Mail
By: __________________________