Opinion
W.C. No. 4-464-372
October 21, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied temporary total disability benefits after November 17, 2002. We affirm the order in part, set aside part of the order, and remand for the entry of a new order.
On June 7, 2000, the claimant sustained compensable injuries while performing construction work for Gower Construction d/b/a Highline Construction Company (Highline). The respondents admitted liability for temporary total disability benefits. On August 31, 2000, the treating physician released the claimant to modified employment, but Highline was unable to accommodate the claimant's restrictions.
In October and early November, the claimant notified the respondents he planned to relocate temporarily in Nebraska and then move to Arizona. In accordance with his plans, he contracted to have a home built in Arizona.
On November 10, 2000, Highline mailed the claimant a written offer of "temporary" modified employment for 30 hours a week, beginning November 16, 2000. The claimant did not begin the modified employment offer.
On November 17, a treating physician placed the claimant at maximum medical improvement (MMI) and therefore, the respondents terminated temporary total disability benefits. A Division-sponsored independent medical examination (DIME) physician subsequently disagreed with the determination of MMI, and an ALJ found the respondents failed to overcome the DIME physician's opinion. However, relying § 8-424-105(3)(d)(I), C.R.S. 2002, the respondents did not reinstate temporary disability benefits. Consequently, the claimant applied for a hearing on the issue of temporary total disability benefits.
Based upon the evidence presented at a hearing on January 17, 2002, the ALJ determined the offer of modified employment fell within the claimant's medical restrictions. Therefore, the ALJ determined the claimant's failure to begin the employment terminated temporary total disability benefits by application of § 8-42-105(3)(d)(I). That subsection provides that temporary disability benefits terminate when the "attending physician gives the employee 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." However, the ALJ ordered the respondents to pay temporary partial disability benefits due on account of the part-time modified employment offer.
On review, the claimant contends the modified employment was not a "bona fide" offer because the employer believed the claimant reached MMI on November 17, 2000, Highland later decided to dissolve its business, and the modified employment duties were scheduled to end in February 2001. Relying on Ragan v. Temp Force, W.C. No. 4-216-579 (June 7, 1996), the claimant argues that these circumstances do not support the termination of benefits under § 8-42-105(3)(d)(I). We disagree.
As argued by the claimant, we have issued a series of decisions, beginning with Ragan, where we held that § 8-42-105(3)(d)(I) does not authorize the termination of temporary disability benefits when an employer offers work which the claimant cannot, as a practical matter, accept. See Kabis v. Marriott School Services, W.C. No. 4-270-599 (August 24, 1998); Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998). In Simington, we held the claimant reasonably refused an offer of modified employment where the effects of medication taken for the industrial injury prevented the claimant from driving to work, and the claimant lived in a remote area where other forms of transportation were not available. Noting that the reasonableness of a modified employment offer is judged by an objective standard, we concluded that temporary disability benefits do not terminate where the claimant fails to begin modified employment which he is unable to access.
However, we have not held that the reasonableness of an offer is determined by the employer's motivation for making the offer. Neither have we construed the application of § 8-42-105(3)(d)(I) to include consideration of the "temporary" nature of the offer. Indeed, modified employment offers are necessarily "temporary" because the offer is made to accommodate the claimant's physical restrictions during a period of medical recovery from the injury.
Here, the transcript reveals that the "reasonableness" argument was raised before the ALJ (Tr. pp. 4, 7, 95-102). However, the ALJ was persuaded the modified employment offer complied with the requirements of § 8-42-105(3)(d)(I) and thus, the ALJ implicitly rejected the claimant's argument that the offer was objectively unreasonable. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories she rejected as unpersuasive); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ not held to crystalline standard in articulating her findings of fact and findings which are necessarily implied by the ALJ's order may be considered). The claimant's arguments do not establish any reversible error in the ALJ's determination.
The question of whether the offer of employment is "reasonably available to the claimant under an objective standard" is one of fact for the ALJ. Ragan v. Temp Force, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002.
The claimant does not argue he was physically unable to accept the offer of modified employment. Rather, the claimant contends the respondents did not make an offer of modified employment which was sufficiently attractive for him to accept because the available assignment was short term. We agree with the ALJ that these factors do not compel the conclusion the claimant could not reasonably accept the employment offer. Therefore, the ALJ did not err in concluding the claimant's failure to begin the modified employment terminated the claimant's entitlement to temporary total disability benefits.
Nevertheless, the claimant contends the ALJ should have ordered the respondents to reinstate temporary disability benefits in February 2001, when the temporary employment was scheduled to expire. Again, we disagree.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2002. Once established, benefits continue until the respondents prove grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Under § 8-42-105(3)(d)(I), the causal connection between the injury and the wage loss is severed when the claimant fails to "begin" an offer of modified employment. However, when the period for the modified employment ends, the claimant's failure to begin the employment does not sever the causal connection between the claimant's wage loss and the industrial disability. This is true because the claimant would have suffered a wage loss when the modified employment expired even if he initially "began" the employment at the time it was offered. See J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Under such circumstances, § 8-42-105(3)(d)(I), does not create a permanent bar to temporary disability benefits. Cf Liberty Heights v. Industrial Claim Appeals Office, 30 P.3d 872 (Colo.App. 2001).
Here, the ALJ found the respondents established grounds for the termination of temporary total disability benefits under § 8-42-105(3)(d)(I), effective November 17, 2002. Consequently, the burden of proof shifted to the claimant to reestablish his entitlement to temporary disability benefits.
We note the respondents' contention that the claimant's entitlement to temporary disability benefits after November 17 was not endorsed for adjudication. However, the claimant's October 12, 2001 application for hearing endorsed the issue of temporary total disability benefits November 17, 2002 to "cont" and the record contains some evidence on the availability of modified employment after November 2000. Furthermore, the ALJ considered the issue before her because she expressly found it was "unclear" whether the employer had modified employment available after February 2001. (Finding of Fact 9). Consequently, we conclude the issue was properly before the ALJ for hearing.
At the January 17 hearing, Mrs. Gower, who is the widow of the owner of Highline, testified that the modified employment assignment offer was due to expire in February 2001. However, she stated that there could have been other modified employment positions available for the claimant after February 2001. (Tr. p. 54). In fact, she stated that after her husband's death in March 2001, Highline continued to have employees and Highline "did a lot of work in 2001." (Tr. pp. 56, 61). Given this testimony, we cannot say the record compelled the ALJ to find the claimant sustained his burden to prove there was no modified employment available after February 2001.
However, Mrs. Gower admitted she decided to dissolve the business in December 2001 and that the business had no employees at the time of the hearing. (Tr. p. 23). The ALJ did not make any specific findings concerning this evidence. Therefore, we are unable to ascertain the evidentiary basis for the ALJ's implicit determination that modified employment remained available for the claimant after January 17. It follows that the ALJ's findings are insufficient to permit appellate review of whether the ALJ erred in failing to reinstate temporary disability benefits commencing January 17, 2002. Consequently, the matter is remanded to the ALJ for additional findings concerning the claimant's entitlement to temporary total disability benefits commencing January 17, 2002.
IT IS THEREFORE ORDERED that the ALJ's order dated February 21, 2002, is affirmed insofar as it denied temporary total disability benefits for the period November 17, 2000 through January 16, 2002. The ALJ's order is set aside insofar as it denied temporary total disability benefits after January 16, 2002, and the matter is remanded for the entry of a new on this issue consistent with the views expressed herein.
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 October 21, 2002 to the following parties:
David C. Thompson, 604 W. Kingman Loop, Casa Grande, AZ 85222
Gower Construction d/b/a Highline Construction Company, 1277 S. Bannock St., Denver, CO 80223-3201
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)
Gillian Madigan, Esq., 600 17th St., #1600, Denver, CO 80202
BY: _______A. Hurtado________