Opinion
W.C. No. 4-172-301
January 10, 1997
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) dated July 9, 1996, which awarded permanent total disability benefits. We set aside the order, and remand the matter to the ALJ for entry of a new order.
The issue of permanent total disability came before the ALJ at a hearing on November 2, 1995. At the conclusion of the hearing, the ALJ allowed the parties to submit additional evidence by deposition. Thereafter, the respondents moved for an order allowing them to submit further evidence. Although the order is not part of the record transmitted to us on review, it is undisputed that the ALJ subsequently granted the respondents' motion. In March 1996, the respondents filed a set of supplemental hearing exhibits which included a letter dated December 27, 1995 from the employer to the claimant, pertaining to an offer of part-time employment. The letter also indicates that the employer "will accommodate" the claimant's medical restrictions and reflects the employer's understanding that the respondent-insurer will provide hand controls for the claimant's vehicle.
On July 9, 1996, the ALJ entered specific findings of fact which determined that the claimant is permanently and totally disabled. Insofar as pertinent, the ALJ found that "no job was ever offered to Claimant." (Finding of Fact 22). The ALJ also found that "the Respondent-Employer did not offer Claimant a position" and that "there are no bona fide job opportunities available to Claimant with Respondent Employer." (Finding of Fact 24). Further, the ALJ determined that hand controls for the claimant's vehicle had not been provided. (Findings of Fact 27).
On appeal, the respondents contend, inter alia, that in view of the respondents' supplemental hearing exhibits, findings of fact 22, 24 and 27 are not supported by the evidence. Therefore, the respondents' argue that the ALJ's findings do not support the award of permanent total disability benefits. We conclude that additional findings are necessary.
We agree with the respondents that the December 27, 1995 letter contains an offer of employment. Thus, insofar as the ALJ found that "no job was ever offered to Claimant," the finding is not supported by the record. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of "no" evidence cannot be equated with a finding of no "persuasive" evidence).
Moreover, § 8-42-111(3), C.R.S. (1996 Cum. Supp.), provides that a disabled worker capable of earning wages in the same or other employment, who refuses an offer of employment is precluded from receiving permanent total disability benefits. Consequently, we cannot say that the ALJ's factual error was harmless. Cf. A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
Furthermore, the ALJ made no specific findings of fact concerning the December 27 letter. Therefore, insofar as the ALJ determined that the December 27 offer of employment was not a "bona fide" job opportunity for the claimant, the ALJ's findings of fact are insufficient for us to ascertain the basis for that determination. Similarly, the ALJ's order does not reflect the evidence she relied upon in finding that hand controls for the claimant's vehicle have not been provided.
Under these circumstances, the ALJ's order is insufficient to permit appellate review. Consequently, we must remand the matter for additional findings of fact. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) ; Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990). However in remanding the matter we should not be understood as expressing any opinion concerning the credibility or probative value of the evidence concerning the available employment. These are issues for resolution by the ALJ. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated July 9, 1996, is set aside and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
Copies of this decision were mailed January 10, 1997 to the following parties:
Carol Ann Wolstenholm, 102 Cove Point Drive, Suffolk, VA 23434
Freedom Newspapers, Inc., 30 S. Prospect St., Colorado Springs, CO 80903-3638
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Renee C. Ozer, Esq., 25 N. Cascade, Ste. 215, Colorado Springs, CO 80903 (For the Claimant)
Alan Epstein, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondents)
Tim Nemechek, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________