Opinion
W.C. No. 4-170-521
October 15, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed his request for temporary total disability benefits after April 6, 1995, and the imposition of penalties in connection with the respondents' refusal to pay additional temporary disability benefits. We affirm.
The record reveals that the claimant sustained compensable head and neck injuries on April 6, 1993, and received temporary total disability benefits. In a Final Admission of Liability dated November 20, 1995, the respondents terminated temporary total disability benefits effective April 6, 1995, the date the claimant reached maximum medical improvement (MMI).
Following, an unsuccessful effort to settle the claim, the respondents sent the claimant's lawyer a letter dated November 14, 1996, in which they offered the claimant "job placement" services to assist the claimant in "obtaining permanent employment." The letter also expressly stated that these services did not constitute "an offer of vocational rehabilitation."
The claimant responded in a letter dated November 21, 1996, in which he indicated that he was accepting the "offer of vocational rehabilitation." The claimant also requested the reinstatement of temporary total disability benefits retroactive to April 5, 1995, pursuant to § 8-42-105(1), C.R.S. 1997. Under that statute temporary disability benefits terminate at MMI, "[E]xcept where vocational rehabilitation is offered and accepted as provided in section 8-42-111(3)."
The respondents denied that they were offering "vocational rehabilitation pursuant to the Colorado workers' compensation statute," and therefore, refused to reinstate temporary total disability benefits. The claimant subsequently applied for a hearing on the issues of temporary total disability benefits and penalties.
At hearing the claimant asserted that the services offered by the respondents were a form of "vocational rehabilitation," and therefore, argued that the respondents are required to reinstate his temporary disability benefits. The claimant also argued that the respondents' failure to do so constituted a violation of § 8-42-105(1), and subjected them to penalties at the rate of $500 per day.
The ALJ found that none of the insurer's letters expressly offered "vocational rehabilitation." The ALJ further found that respondents had neither offered to reinstate temporary total disability benefits, nor advised the claimant that they would use his refusal to accept the offer as a basis to contest the claim for permanent total disability. Under these circumstances, the ALJ determined that there was no offer and acceptance of vocational rehabilitation within the meaning of § 8-42-111(3), C.R.S. 1997. Consequently, the ALJ concluded that the claimant is not entitled to a retroactive reinstatement of temporary total disability benefits under § 8-42-105(1), and that the respondents' failure to reinstate the benefits does not warrant the imposition of penalties.
On review, the claimant contends, inter alia, that the "job placement" services and "vocational assistance" offered by the respondents constitute an "offer of vocational rehabilitation." Therefore, the claimant argues that the ALJ erred in denying his claims for temporary total disability benefits and penalties. We disagree.
Initially, we reject the claimant's contention that the ALJ's findings of fact are insufficient to permit appellate review. The ALJ's findings are sufficient if the basis for his order is apparent. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Here, the ALJ's written findings, reviewed in the context of his oral remarks at the conclusion of the hearing, clearly establish the basis for his order. See (Tr. pp. 41-46) ; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the written findings). Specifically, the ALJ determined that, under the totality of circumstances, the respondents' offer of services was not "an offer of vocational rehabilitation," and thus, the claimant's willingness to accept the offer did not trigger an entitlement to additional temporary disability benefits. Therefore, is not necessary to remand for additional findings.
Furthermore, we agree with the ALJ's determination that the respondents did not offer "vocational rehabilitation" as defined by § 8-42-111(3). Therefore, we do not consider whether "job placement" services and "vocational assistance" may, under some circumstances constitute "vocational rehabilitation."
Section 8-42-111(3) provides that:
"A disabled employee capable of rehabilitation which would enable the employee to earn any 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."
As stated in Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991), § 8-42-111(3), creates an "affirmative defense" to a claim of permanent total disability. The defense is available in circumstances where the employer makes an offer of vocational services designed to enable the injured worker to "earn any wages," and the injured worker refuses the offer.
Because § 8-42-105(1) expressly conditions the payment of temporary total disability benefits on an offer "vocational rehabilitation as provided in § 8-42-111(3)," the principles of statutory construction require that these statutes be construed together to give consistent and harmonious effect to both sections. See Zurich American Insurance Company v. Rael, ___ P. ___ (Sup.Ct. 96SC504, September 22, 1997). Accordingly, we read § 8-42-111(3) to require that, in exchange for the benefit of the affirmative defense created by § 8-42-111(3), an employer who makes an offer of vocational rehabilitation, must pay additional temporary total disability benefits if the offer is accepted. Put another way, § 8-42-105(1) and § 8-42-111(3) are reflexive.
It follows that an employer has not made an offer of "vocational rehabilitation," as provided in § 8-42-111(3), where the employer is unwilling to pay temporary total disability benefits beyond MMI, as provided in § 8-42-105(1). In other words, if the employer is not willing to pay temporary total disability benefits while the claimant participates in a program designed to enable the claimant to return to employment, the respondents are not offering "vocational rehabilitation" within the meaning of § 8-42-111(3). Conversely, the claimant's refusal to participate in such a program may not be utilized to deprive the claimant of permanent total disability benefits under § 8-42-111(3).
This principle is consistent with the fact that a claimant's participation in an employer paid vocational rehabilitation program may interrupt his independent job hunting or rehabilitation efforts. Further, it makes little sense for an employer to offer "vocational rehabilitation" unless the claimant is probably permanently and totally disabled without successful completion of vocational rehabilitation. See Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997)
Moreover, the provision of vocational rehabilitation under § 8-42-111(3) is voluntary. Thus, it is the employer's right to decide whether to offer "vocational rehabilitation," or take the risk that the claimant will be found to be permanently and totally disabled without the vocational rehabilitation. As a result, the claimant's unilateral decision to characterize the respondents' offer of services as one of statutory "vocational rehabilitation" is insufficient to require temporary disability compensation under § 8-42-105(1).
Here, the respondents explicitly refused to pay temporary total disability benefits after April 6, 1995. Therefore, the record supports the ALJ's determination that the respondents did not make an offer which meets the definition of vocational rehabilitation in § 8-42-111(3). Consequently, the ALJ did not err in denying the request for the reinstatement of temporary disability benefits.
In reaching this conclusion we note that this is not a case where the employer offered "job placement" and "vocational assistance," but remained silent on whether the services were intended to be an offer of "vocational rehabilitation" for purposes of § 8-42-111(3). In those circumstances, the employer's silence might constitute an implicit reservation of the affirmative defense provided by § 8-42-111(3). Further, an ambiguous offer of job services would force a claimant to accept the offer, and interrupt his independent rehabilitation efforts or face the prospect that his non-cooperation could be construed as a bar under § 8-42-111(3). Consequently, the employer's silence could conceivably render it liable for temporary disability benefits in accordance with § 8-42-105(1).
Here, however, the respondents expressly stated that they were not offering "vocational rehabilitation." By explicitly stating that the offer did not represent an offer of statutory "vocational rehabilitation," the respondents put the claimant on notice that his refusal to accept the offer could not be used as evidence to refute a claim for permanent total disability. Therefore, the claimant was free to accept or reject the offer without prejudice to a subsequent claim for permanent total disability benefits.
The claimant's remaining arguments have been considered and do not alter our conclusions.
Furthermore, in view of the ALJ's determination that there was no offer and acceptance of vocational rehabilitation, the respondents' failure to reinstate temporary disability benefits was not a violation of § 8-42-105(1). Consequently, the ALJ did not err in refusing to impose penalties under § 8-43-304(1). See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated May 14, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE 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. 1997.
Copies of this decision were mailed October 15, 1997 to the following parties:
Robert F. Ward, 11807 N. Washington, Sp. C110, Northglenn, CO 80233
Tierdale Construction Co., 1775 E. 69th Ave., Denver, CO 80229-7326
Farmington Casualty Co., Sandra H. Crenshaw, Travelers/Aetna Ins. Co., P.O. Box 173762, Denver, CO 80217-3762
William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For the Claimant)
John R. Parsons, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
BY: _______________________