Opinion
W.C. No. 4-510-350
December 19, 2003
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent total disability (PTD) benefits. We set aside the order and remand the matter for the entry of a new order.
In 1996 the claimant suffered compensable injuries. It is undisputed the claimant reached maximum medical improvement (MMI) on November 9, 2001. The respondents admitted liability for temporary total disability (TTD) and permanent partial disability (PPD) benefits based on 44 percent whole person impairment, subject to the $120,000 benefit cap for temporary and permanent partial disability benefits created by § 8-42-107.5 C.R.S. 2003. The claimant applied for and received a lump sum for the admitted PPD benefits. This placed the total amount of benefits paid at the cap. The claimant then applied for an award of PTD benefits.
In response, the respondents offered vocational rehabilitation services in the form of English Language classes, which the claimant accepted. Consequently, the respondents argued the claimant is precluded from receiving PTD benefits by operation of § 8-42-111(3), C.R.S. 2003, which states:
"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." (Emphasis added).
On conflicting vocational evidence, the ALJ found that from the date of MMI through the date of the hearing on June 24, 2003, the claimant proved he is permanently and totally disabled. The ALJ also determined the claimant did not "refuse" any offer of vocational rehabilitation services. Therefore, the ALJ determined the defense created by § 8-42-111(3) is not applicable and does not preclude an award of PTD benefits. Consequently, the ALJ ordered the respondents to pay PTD benefits commencing November 9, 2001, and continuing until terminated pursuant to law.
On review, the respondents contend the ALJ misconstrued § 8-42-111(3) to allow an award of PTD benefits pending the completion of vocational rehabilitation services. In essence, the respondents contend that determination of PTD is not ripe while vocational rehabilitation is pending, and the ALJ, improperly derived them of the statutory defense. We conclude the ALJ's findings of fact are insufficient to permit appellate review and, therefore, we remand the matter for additional findings of fact.
Section 8-40-201(16.5)(a), C.R.S. 2003, defines permanent total disability as the inability "to earn any wages in the same or other employment," and the claimant carries the burden of proof to establish PTD. Section 8-42-111(3) is an affirmative defense to a claim for PTD benefits which is not applicable unless the claimant establishes a prima facie case of PTD. Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991). Only then may the respondents avoid liability for PTD benefits by proving that the claimant is capable of rehabilitation, that vocational rehabilitation which would render the claimant employable was offered, and the claimant has refused the offer. See Drywall Products v. Constuble, supra.
Here, the ALJ found the claimant did not refuse the vocational rehabilitation services offered by the respondents. The ALJ's finding is a plausible inference from the record and therefore, is binding on review. Section 8-43-301(8), C.R.S. 2003; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Further, the ALJ's finding supports his determination that the affirmative defense created by § 8-42-111(3) is not applicable to the existing facts of this claim.
Accordingly, we necessarily reject the respondents' contention that the claimant's application for hearing on the issue of PTD was notice the claimant had "refused" vocational rehabilitation. Further, the respondents' reliance on our conclusions in Klee v. United Parcel Service, W.C. No. 4-337-240 (June 8, 2001), is misplaced.
Contrary to the respondents' contentions, in Klee we assumed "without deciding" that the claimant's application for a hearing on the issue of PTD could be construed as a "refusal" to accept vocational rehabilitation. Consequently, we held that the question of whether the claimant refused vocational rehabilitation was one of fact to be resolved by the ALJ based on the particular circumstances of the claim. See Wiedner v. Tom Pinello Construction Co., W.C. No. 3-853-489 (June 8, 1998), aff'd., Wiedner v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1223, January 14, 1999) (not selected for publication). In Klee the ALJ was not persuaded the claimant's application for hearing was evidence the claimant "refused" vocational rehabilitation, and we did not interfere with that determination because it was supported by the record. Thus, Klee did not compel the ALJ to find that the claimant refused the offer of vocational rehabilitation. However, the ALJ's remaining findings do not support the award.
Under § 8-42-105(3)(a), C.R.S. 2003, entitlement to TTD benefits terminates at MMI because MMI establishes the line of demarcation between temporary disability and permanent disability. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) ; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) ; City of Colorado Springs v. Industrial Claim Appeals Office, supra. For purposes of determining permanent partial disability benefits under § 8-42-107(8), C.R.S. 2003, MMI is the point in time when the claimant's physical and mental condition is stable and permanent medical impairment is ascertainable. Section 8-40-201(11.5), C.R.S. 2003; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. However, medical impairment is not dispositive of PTD. Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997) ; Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Rather, PTD is based on the claimant's vocational status and a disabled worker may attain MMI without attaining maximum industrial efficiency. See Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989) (decided under predecessor statute; requiring employer to provide maintenance benefits between vocational evaluation and administrative decision that worker needs vocational rehabilitation). Indeed, vocational rehabilitation is voluntary under the applicable law and usually offered only in limited situations where there is a high probability the claimant will be found to be PTD unless vocational rehabilitation is completed. Larimer County v. Sinclair, 939 P.2d at 516. It follows that the claimant's permanent vocational loss cannot be ascertained until the termination or completion of vocational rehabilitation services accepted by the claimant.
Consistent with this analysis, § 8-42-105(1), C.R.S. 2003, creates an exception to the termination of TTD benefits at MMI if the claimant accepts an offer of vocational rehabilitation. Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997) ; Larimer County v. Sinclair, supra. In such circumstances temporary disability benefits continue because the claimant is considered a "temporarily" disabled employee while undergoing vocational training so as attain employability in the labor market. However, the temporary disability benefits are subject to the benefit cap in § 8-42-107.5. See Grogan v. Lutheran Medical Center, Inc., supra.
In Grogan, the court also rejected an argument that maintenance benefits paid during vocational rehabilitation are not "temporary disability" benefits. To the contrary, the court concluded that TTD benefits paid to a claimant for a physical impairment prior to MMI and benefits paid during vocational rehabilitation are indistinguishable because the purpose of both is to alleviate the claimant's loss of earning capacity. Ibid at 692.
Moreover, a claimant cannot be both temporarily totally disabled and permanently totally disabled from the same injury at the same time. Cf. Larson's Workers' Compensation Law, § 92.01(1) 2002 ; Kehm v, Continental Grain, 756 P.2d 381 (Colo.App. 1987). Therefore, we conclude that the statutory scheme, when construed as a whole, contemplates the claimant will receive TTD benefits, not PTD benefits during the claimant's voluntary participation in vocational rehabilitation services after MMI. However, the claimant may seek an award of PTD benefits if he believes he is unable to earn wages and the vocational plan will not enable him to return to work.
In summary we hold that a claimant who reaches MMI but accepts an offer of vocational rehabilitation remains a "temporarily" disabled worker and is entitled to award of TTD subject to the cap. However, the claimant may also apply for PTD and if the claimant is successful in proving he is unable to earn wages, the burden shifts to the respondents to prove the claimant has either refused an offer of vocational rehabilitation or that the claimant is temporarily disabled and a determination of PTD is premature pending the claimant's participation in vocational rehabilitation.
In this regard, § 8-42-111(3), precludes an award of PTD benefits only if the respondents prove the claimant is "capable of rehabilitation," and the respondents have offered vocational services which, if successful, will enable the claimant to earn wages. See Drywall Products v. Constuble, supra; Mason v. Sinclair Bowl, W.C. No. 3-962-083, (February 4, 1994); Remek v. Adams County School District 50, W.C. No. 3-938-393, (September 3, 1993). Here, the ALJ determined; 1) the claimant established a prima facie case of PTD and; 2) the claimant did not refuse an offer of vocational rehabilitation. However, the ALJ explicitly declined to determine whether the respondents proved that the offer of vocational rehabilitation met the other criteria established by § 8-42-111(3). (Conclusions of Law 9). Therefore, the ALJ's findings of fact are insufficient to determine whether the ALJ erroneously awarded PTD during the claimant's participation in vocational rehabilitation.
On remand the ALJ shall enter specific findings of fact which resolve the pertinent issues. Specifically, the ALJ shall determine whether the claimant is capable of rehabilitation and whether the vocational rehabilitation program will, if successful, enable the claimant to earn wages. Based on those determinations the ALJ shall enter a new order on the issue of PTD.
In view of our disposition we need not consider the respondents' further contention that § 8-43-303 C.R.S. 2003, does not allow an insurer to reopen an award of PTD benefits based on the claimant's rejection of an offer of vocational rehabilitation services.
IT IS THEREFORE ORDERED that the ALJ's order dated September 23, 2003, is set aside, and the matter is remanded for further findings and the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on December 19, 2003 by A. Hurtado.
Santiago Alvarez, 3645 Osage, Denver, CO 80211
Amcor Precast, 8392 Riverview, Littleton, CO 80125
Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8205
Mitchell Baker, Esq., 1543 Champa St., #400, Denver, CO 80202 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)