Opinion
W.C. No. 4-694-064.
October 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated May 5, 2008 that denied and dismissed the claim for temporary total disability (TTD) benefits. We affirm.
The claimant suffered a compensable injury to his left shoulder on August 3, 2006. The ALJ found that the claimant's attending physician provided a written release to return to modified employment, that employment was offered to the claimant in writing, and that the claimant failed to begin such employment or to take any action to clarify the specific nature of the offer. The ALJ concluded that the respondents had established by a preponderance of the evidence that the claimant's TTD benefits terminated by operation of § 8-42-105(3)(d)(I), C.R.S. 2008.
I.
On appeal, the claimant first contends that the ALJ erred in failing to find that the respondents did not properly terminate TTD benefits by a valid job offer of modified employment pursuant to § 8-42-105(3)(d). We disagree.
Once the respondents admit liability for temporary disability benefits, payments must continue until terminated in accordance with § 8-42-105(3). Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). Section 8-42-105(3)(d)(I) provides that temporary disability benefits terminate when "the attending physician gives the claimant 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."
The ALJ made the following pertinent findings of fact, all of which have support in the factual record. The claimant's authorized treating physician was Dr. McMillan. McMillan Depo. at 7. The employer sent a letter to the claimant on September 10, 2007 offering employment consistent with his work restrictions. Exhibit 3. Attached to the letter was a description of the employee's modified job duties signed by Dr. McMillan. Exhibit 3; Tr. at 11. The letter stated the claimant was expected to return to work on September 17, 2007. Exhibit 3. Attached to the admission was documentation of a bona fide job offer. Exhibit 3. However, the September 10, 2007 letter sent by certified mail was not received by the claimant until September 18, 2007, the day after the date the letter had set for the expected return to work by the claimant. Tr. at. 11. The claimant failed to report to work after receiving the letter, nor did he contact the employer representative listed in the letter as the person to contact if he had any questions. Tr. at 11 13-14. The insurer filed an admission terminating TTD benefits three days after the claimant could have reported for work on September 22, 2007. Exhibit 3. The ALJ found that the clamant stated that he failed to accept the proffered employment because he felt he would be unable to perform the work offered by the employer. Tr. at 14.
The claimant cites a series of decisions, commencing with Ragan v. Temp Force, W.C. No. 4-216-579 (June 7, 1996), in which the panel has 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); Belanger v. Keystone Resorts, Inc., W.C. No. 4-250-114 (October 9, 1997). In our view, the claimant's reliance upon this line of cases is misplaced. These decisions generally hold that the legal test is whether the offered employment is reasonably available to the claimant under an objective standard and determination of this issue is one of fact for the ALJ.
In Ragan v. Temp Force, supra., the claimant's refusal to begin modified employment was found not to justify termination of benefits where the claimant did not have transportation to a remote job site. In Belanger v. Keystone Resorts, Inc. , supra., the claimant moved from Colorado to Illinois after an industrial injury and the respondents extended the claimant an offer of modified employment within her restrictions but requiring the claimant to return to Colorado. In upholding the denial of TTD benefits, the panel found that these facts did not compel the conclusion that the claimant's failure to accept the job offer was reasonable under an objective standard.
In Simington v. Assured Transportation Deliver, supra, the panel upheld an ALJ's determination that a 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, where the claimant lived in a remote area where other forms of transportation were not available. In Kabis v. Marriott School Services, supra, the claimant did not drive much prior to the industrial injury and her job before the injury was only five miles from the claimant's home. The offered employment was within the physical restrictions imposed by the treating physician but the claimant turned down the offer because the new job was a thirty-minute drive from her home. The panel remanded the case because the ALJ appeared to have concluded that travel restrictions were never to be considered in determining whether an offer of modified employment is one which the claimant might as a practical matter accept.
In contrast, here the objection offered by the claimant to the offered modified employment was that the claimant felt that it was not within his physical ability to perform the job. The ALJ found, as noted above with record support, that the claimant failed to accept the proffered employment because he felt he would be unable to perform the work offered by the employer. The ALJ further found that there was insufficient medical evidence in the record to indicate that there was a difference of opinion concerning the claimant's work restriction and the ALJ specifically found Dr. McMillan's restriction were appropriate. McMillan Depo. at 13.
Because the issue whether the claimant's refusal to accept the offered employment was reasonable is a factual one we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). In our opinion, the ALJ's findings as outlined above are amply supported by the record.
The claimant further argues that the job offer was invalid on its face because the offer was received by the claimant on September 18, 2007 and "required the claimant to start the job on September 17, 2007." The ALJ noted in his order that the September 10, 2007 letter containing the job offer stated that "You are expected to return to work on Monday, 9/17/07." The ALJ further noted that the claimant did not receive the letter by certified mail until September 18, 2007.
As we read the ALJ's order, he was not persuaded that the job offer terminated on September 17, 2008. The ALJ noted that the admission terminated TTD benefits three days after the date the claimant could have reported for work, on September 22, 2007. This is consistent with W.C. Rule 6-1(A)(4), 7 Code Colo. Reg. 1101-3 at 21 that allows the claimant a period of three business days to return to work in response to an offer of modified duty.
As previously noted, here the reason offered by the claimant in his testimony for not returning to work was that he felt like he could not return to work. Tr. 14 36. The claimant was asked directly if he interpreted the letter as meaning that because he was expected to return to work on the 17th and he received it on the 18th that he therefore could not return to work. The claimant answered that he did not question anything about the letter, he did not ask and did not call anybody about returning to work. Tr. 14.
The ALJ specifically found that the claimant failed to accept the proffered employment because he felt he would be unable to perform the work offered by the employer. In our view the ALJ was convinced that the claimant's subjective opinion of his ability to perform the job was the reason the claimant did not return to work and that the receipt of the letter one day after the letter stated the employer expected the claimant to return to work was not determinative. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Under these circumstances, we are not persuaded that as matter of law the timing of the receipt of the letter invalidated the offer of employment.
II.
The claimant next contends that the ALJ erred by failing to place the burden of proof on the respondents to demonstrate that the job offer complied with the requirements of Rule 6-1(A)(4). We disagree.
Rule 6-1(A)(4) provides that an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability form with:
a letter to the claimant or copy of a written offer delivered to the claimant with a signed certificate indicating service, containing both an offer of modified employment, setting forth duties, wages and hours and a statement from an authorized treating physician that the employment offered is within the claimant's physical restrictions. A copy of the written inquiry to the treating physician shall be provided to the claimant by the insurer or the insured at the time the authorized treating physician is asked to provide a statement on the claimant's capacity to perform the offered modified duty. The claimant is allowed a period of 3 business days to return to work in response to an offer of modified duty. The 3 business days runs from the date of receipt of the job offer.
The parties agreed at the inception of the hearing that the burden of proof was on the respondent to terminate TTD benefits. Tr. 5. The ALJ in his order found that the insurer had established by a preponderance of the evidence that the claimant's TTD benefits terminated by operation of § 8-42-105(3)(d). On its face the admission filed by the respondents, the attached job offer and the supporting documents meet the requirements of Rule 6-1(A)(4). Further, the testimony of Dr. McMillan supports the finding that the job offer was within the claimant's work restrictions. McMillan Depo. at 13.
However, the claimant cites Lennon v. South Valley Drywall, W. C. No. 4-357-330 (November 26, 1999), for the proposition that if the actual job required the claimant to exceed his restrictions then the offer of modified employment was not valid to constitute the basis for termination of TTD benefits. The claimant argues that the job offered here exceeded his work restrictions. In our opinion, Lennon is distinguishable.
In Lennon, the ALJ found that, although the job description was approved by the attending physicians, the actual job duties exceeded the physician's restrictions. Therefore, the ALJ determined in Lennon that the offer exceeded the claimant's medical restrictions. Here there was no determination that the offer exceeded the claimant's medical restrictions. To the contrary, the treating physician here opined that the claimant would have been able to perform the position that was described in the attachment to the employer's written job offer. Here the ALJ found that the claimant's refusal of the job was based on his subjective evaluation of his inability to perform the offered work rather than as in Lennon where it was found that the actual job duties exceeded the physician's restrictions. In our opinion, there is substantial evidence to support the ALJ's determination.
We also note that § 8-42-105(3)(a)-(d), provides that TTD benefits continue until the "attending physician gives the claimant 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." (Emphasis supplied.) In Lennon, the employee initially returned to work and then discovered he was physically unable to perform the job and was forced to leave the job. Here the claimant failed to begin such employment and the ALJ with record support found that the claimant's subjective evaluation of his ability to perform the position was the reason that he failed to return to work.
We are guided by the court's reasoning in Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998). In Laurel, a temporarily disabled claimant returned to work, but left the same day because she believed the employer was requiring her to perform duties beyond her restrictions. The following day, the claimant returned to the job site and was presented with a written offer of employment listing duties within her medical restrictions. However, the claimant did not return to work after being presented with the offer. The Colorado Court of Appeals held that in the absence of proof that the modified offer was unreasonable, the claimant's failure to begin the modified employment triggered the termination of temporary total disability benefits under the predecessor statute to § 8-42-105(3)(d)(I). In Laurel Manor the court noted that the termination of TTD benefits under any one of the enumerated conditions set out in § 8-42-103(d)(1), is mandatory. The claimant points to evidence suggesting that the job description portrayed to Dr. McMillan was not accurate and if the claimant had returned to work the actual job would have exceeded his restrictions. However, as we read the ALJ's order here, he was not persuaded the offer of modified employment was unreasonable or that the actual job duties exceeded the physician's restrictions. Therefore, we see no error in the ALJ's decision to terminate the claimant's TTD benefits.
The claimant also argues that the ALJ misapplied the law by relying on Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995) for the proposition that where the attending physician had provided the claimant with a written release to work, the ALJ was bound to terminate TTD benefits regardless of the claimant's subjective evaluation of his ability to perform the position. We perceive no error in the ALJ's reliance on Burns. In Burns the court found that because the attending physician had provided claimant with a written release the ALJ was bound to terminate TTD benefits pursuant to § 8-42-105(3) and any evidence concerning claimant's self-evaluation of his ability to perform his job was irrelevant and properly disregarded by the ALJ.
The claimant also relies on Hailemichael v. OEA, Inc., W. C. No. 4-382-985 (November 17, 2004). However, we note that in Hailemichael the panel citing Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d. 680 (Colo.App. 1999); and Burns stated that it is well established that the attending physician's determination of the claimant's ability to perform regular or modified employment is dispositive, and the claimant's subjective assessment of his physical limitation is legally immaterial. Therefore, the panel in Hailemichael determined that it would be error to rely on the claimant's testimony about his physical limitations to conclude that the offered employment was unreasonable. In our opinion, the ALJ's determination is consistent with both Burns and Hailemichael.
Further, in Garcia v. Metro Wastewater Reclamation W. C. No. 4-429-269 (November 8, 2000) the panel citing Bestway Concrete v. Industrial Claim Appeals Office, supra., determined that for purposes of terminating temporary disability benefits, the attending physician's opinion of the claimant's ability to perform modified employment is dispositive. See also Vaughan v. DLM Structures W. C. No. 4-415-688(August 16, 2000). Because in our view the ALJ properly applied the law, we are not persuaded by the claimant's argument that the ALJ ignored pertinent evidence pertaining to the claimant's inability to perform the job.
IT IS THEREFORE ORDERED that the ALJ's order issued May 5, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
BLAS VILLA, MONTE VISTA, CO, (Claimant).
HARVEST SELECT, Attn: TONY CEGLIA, C/O: DEL-MONTE FRESH PRODUCE COMPANY, CORAL GABLES, FL, (Employer).
LIBERTY MUTUAL GROUP, Attn: MICHAEL KETTER, IRVING, TX, (Insurer).
SCHIFF SCHIFF, PC, Attn: H SCOTT SCHIFF, ESQ., PUEBLO, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: APRIL MOORE, ESQ., DENVER, CO, (For Respondents).
LAURA MEDINA, DALLAS, TX, (Other Party).