Opinion
W.C. No. 4-390-451
September 27, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ Coughlin) which denied his claim for permanent total disability benefits. The claimant contends the evidence does not support the ALJ's conclusions that he failed to prove permanent total disability, and that he is disqualified from receiving permanent total disability benefits because he refused an offer of employment as provided in § 8-42-111(3), C.R.S. 2000. We affirm.
This matter was before us previously. Our Order of Remand dated March 14, 2000, contains a statement of the facts, and that statement is incorporated herein. We directed the ALJ to determine whether the employer's offer of employment was "objectively reasonable," or whether the offer of employment was unreasonable because it was outside of the claimant's commutable labor market "in light of the residual effects of the industrial injury." In the event the ALJ found the offer was not objectively reasonable, we also directed the ALJ to determine whether the claimant "proved a prima facie case of permanent total disability."
In the order dated May 9, 2000, the ALJ Coughlin adopted ALJ Gandy's previous findings of fact and conclusions of law, and made additional findings and conclusions. ALJ Coughlin found that none of the medical providers restricted the claimant from driving, and the claimant is physically able to drive provided he takes periodic rest stops. Further, ALJ Coughlin found that the employer was willing to modify the claimant's duties if the job as a "wash rack operator" did not "work out."
Under these circumstances, ALJ Coughlin concluded the employer's offer of employment was "objectively reasonable" and, therefore, the employer made an "offer of employment sufficient to invoke the provisions" of § 8-42-111(3). (Conclusion of Law 1, August 9, 1999, incorporated by reference in order of May 9, 2000). ALJ Coughlin went on to find the claimant "failed to establish by a preponderance of credible and persuasive evidence that he is permanently and totally disabled."
On review, the claimant argues there is "no evidence" to support the ALJ's determination the claimant is capable of making a six hour commute to the job site at Lamar, Colorado. The claimant argues ALJ Coughlin credited his testimony that he is unable to drive for more than 20 minutes without taking a break, and that no medical evidence refutes this testimony. Therefore, the claimant reasons the offer of employment was objectively unreasonable. We are not persuaded by the claimant's argument.
As stated in our prior order, § 8-42-111(3) creates an affirmative defense to a claim of permanent total disability. The defense is established if the claimant, who is otherwise permanently and totally disabled, refuses an offer of employment by the "same or other employer," and the offered employment is "objectively reasonable." Pacheco v. Environmental Chemical Corp., W.C. No, 4-287-884 (October 9, 1998); Jones v. S B Stagelines, Inc., W.C. No. 4-209-265 (May 7, 1997). The question of whether the employer has made an offer of "bona fide employment" sufficient to trigger the affirmative defense created by § 8-42-111(3) is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo. 1997). Consequently, we must uphold the ALJ's resolution of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, as the ALJ found, none of the physicians who examined the claimant absolutely restricted him from driving. Although the evidence was subject to conflicting inferences, the ALJ plausibly inferred the claimant is capable of driving a vehicle despite limitations imposed by pain and movement. (Tr. pp. 9, 16). Thus, the ALJ reasonably found the claimant is capable of driving to at least some of the job sites occupied by the employer. Indeed, the written offer of employment indicated the employer's next site would be located in Longmont, Colorado, much closer to Denver than Lamar. Further, based on the testimony of the employer's witness, the ALJ found the employer's offer of employment recognized the claimant might not be able to travel to some remote job sites. Therefore, the employer was willing to modify the claimant's duties and provide light-duty employment at the employer's shop.
Under these circumstances there is substantial evidence to support the ALJ's factual determination that the employer offered work which was objectively reasonable. Because the employer was willing to accommodate the claimant in the event he was unable to perform some duties, the ALJ was not required to conclude the offer of employment was outside of the claimant's commutable labor market. Consequently, there is no basis for interfering with the ALJ's factual determination that the employer made a complying offer of employment under § 8-42-111(3). See Lobb v. Industrial Claim Appeals Office, supra (claimant not entitled to permanent total disability benefits where employer offered "flexible" duties designed to accommodate the claimant's physical needs, standards of performance would be established over time, and the claimant was to perform services having some value to the employer).
In light of this determination, we need not consider ALJ Coughlin's alternative determination that the claimant failed to prove a prima facie case of permanent total disability. ALJ Coughlin's finding that the employer established the affirmative defense negates the need to determine whether the claimant proved in the first instance that he is unable to earn any wages.
IT IS THEREFORE ORDERED that ALJ Coughlin's order dated May 9, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 27, 2000 to the following parties:
Joe Romero, 4547 Newton St., Denver, CO 80211
Castle Rock Construction Co., P. O. Box 1148, Castle Rock, CO 80104-1148
Liberty Mutual Insurance Company, Attn: Angela Faison, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Michael P. Zimmerman, Esq., 6850 W. 52nd Ave., #100, Arvada, CO 80002 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado