Opinion
W.C. No. 4-287-884
October 9, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant is permanently and totally disabled, and rejected the respondents' contention that the claimant is barred from receiving permanent total disability benefits under § 8-42-111(3), C.R.S. 1998. We affirm.
Under the applicable law, a claimant is permanently and totally disabled if he is unable to "earn any wages in the same or other employment." Section 8-40-201(16.5), C.R.S. 1998; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Further, § 8-42-111(3), provides that:
"A disabled employee capable of rehabilitation which would enable the employee to earn wages in the same or other employment, who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability."
Section 8-42-111(3) is an "affirmative defense" to a claim of permanent total disability benefits, and only applies after the claimant has established a prima facie case of permanent total disability. Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991). Therefore, it is the respondents' burden to prove the claimant has been given an offer of employment. See Monfort, Inc. v. Gonzalez, 855 P.2d 19 (Colo.App. 1993).
Here, the claimant suffered compensable injuries to his upper extremities, ribs and liver while working as a heavy equipment operator for the employer. The claimant received temporary total disability benefits from February 8, 1996 to November 12, 1996, when he reached maximum medical improvement. As a result of the injuries, the claimant's use of his right hand is severely limited and he is restricted from lifting over five pounds. It is undisputed that the industrial injuries preclude the claimant from returning to his pre-injury occupation.
The claimant's vocational rehabilitation expert opined the claimant is unable to earn a wage in any employment. The respondents' vocational expert opined that the claimant's "restrictions and limitations" are "so severe" that the claimant did "not retain the ability the [sic] access employment in any capacity."
During the hearing held on permanent total disability, the employer's human resources manager testified that the employer had "a position available that [it] could offer" the claimant as a security guard. The human resouces manager stated that the duties of the security guard would be to "monitor" but not "prevent" vandalism at a remote location, down a steep, windy, 18 mile dirt road.
The ALJ was not persuaded that the employer's testimony triggered the application of § 8-42-111(3). In support of her determination, the ALJ found that the claimant was laid off by the employer in November 1996, and that the employer did not recall the claimant for any employment prior to the hearing. The ALJ also noted that the employer's testimony that there was no risk of vandalism at the remote location. Further, the ALJ relied upon the testimony of the respondents' vocational expert that he could not render an opinion concerning the suitability of the job offer without an on-site job analysis and the treating physician's opinion of the claimant's ability to perform the job. Accordingly, the ALJ determined that the employer "has not made an offer of employment to the Claimant."
The ALJ also found that the claimant was 62 years old at the time of the hearing, and that he has an eighth grade education and 36 years of employment as a heavy equipment operator. Crediting the opinion of the claimant's vocational expert, the ALJ found the claimant sustained his burden to prove he is unable to earn any wages.
On review, the respondents contend that there is no evidence to support the ALJ's finding that the employer did not make an offer of employment within the meaning of § 8-42-111(3). We disagree.
The issue of whether or not the respondents have made an offer of employment is factual in nature, and therefore, we must uphold the ALJ's order if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1998; Lobb v. Industrial Claim Appeals Office, supra. Under the substantial evidence standard, we must defer to the ALJ's credibility determinations, unless the testimony the ALJ credited is so rebutted by hard, certain evidence, that as a matter of law the ALJ erred in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Moreover, the ALJ's findings may be based on plausible inferences drawn from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Thus, the issue on review is whether the whether the ALJ's inferences were permissible ones in light of the totality of the circumstances. Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981). Further, we must view the evidence in the light most favorable to the prevailing party. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).
Here, the employer's human resources manager testified that the job of security guard was available without EPA approval. However, she conceded that no job offer had ever been extended to the claimant between November 1996 and the day of the hearing. (Tr. pp. 25, 35, 40, 44). She also admitted that she didn't inform her attorney of the job offer until the day of the hearing. (Tr. p. 40). Based upon this evidence, the ALJ could reasonably infer that the employer was not extending a genuine offer of employment and was merely presenting testimony about a security guard job to avoid liability for permanent total disability benefits.
This conclusion is buttressed by the evidence that the respondents did not review the security guard job with the claimant's treating physician and did not afford their vocational rehabilitation expert an opportunity to determine if the job was within the claimant's restrictions. Consequently, the evidence viewed in a light most favorable to the claimant, substantially supports the ALJ's conclusion that the respondents failed to prove the claimant is barred from receiving permanent total disability benefits.
Moreover, this record does not involve the extreme circumstances contemplated by Halliburton. It follows that we cannot say the ALJ erred in refusing to credit the employer's testimony concerning the employment offer.
IT IS THEREFORE ORDERED that the ALJ's order date June 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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 October 09, 1998 to the following parties:
Chris Pacheco, 12671 Highway 160, Del Norte, CO 81132
Environmental Chemical Corp., 1240 Bayshore Hwy, Ste. 300, Burlingame, CA 94010-1805
Teresa Manshardt, Liberty Mutual Ins. Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
James M. Andersen, Esq., 559 E. Pikes Peak Ave., Ste. 212, Colorado Springs, CO 80903 (For the Claimant)
David G. Kroll, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: _______________________