Opinion
W.C. No. 4-769-486.
March 5, 2010.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated October 14, 2009, that denied their request to terminate temporary total disability (TTD) benefits. We set aside the order insofar as it denied the respondents' request to terminate TTD benefits and we remand for further proceedings on that issue.
The ALJ made the following pertinent findings of fact. The claimant suffered an admitted industrial injury to his low back on August 24, 2008. The claimant received medical treatment. On October 22, 2008, he was released to work with the following restrictions: lifting, carrying, pushing, and pulling to five pounds, no squatting, kneeling, or prolonged standing or walking. The claimant was specifically released to perform several jobs including being a greeter. The employer prepared a written offer of modified employment for the claimant as a greeter. The offer was open from October 29 until November 8, 2008. On October 23, 2008, the claimant met with representatives of the employer who attempted to hand the written offer of modified employment to the claimant, but the claimant refused to receive a copy directly from the employer. The claimant told the employer to mail the offer by certified mail. On October 23, 2008, the employer sent the offer to the claimant by certified mail, which was returned unclaimed to the employer. Parol evidence established that the claimant received three post office notifications that he had certified mail awaiting him. The claimant never picked up the certified mail at the post office. On November 3, 2008, the claimant was contacted by telephone by an employer representative and agreed to go to the employer's office on November 4, 2008 to sign the written offer of modified employment. The claimant did not go to the office to sign the offer. The claimant and the employer representative agreed that the claimant would go to the office on November 6, to sign the offer. The claimant again did not go to the office.
The ALJ determined that the respondents had failed to prove by a preponderance of the evidence that the modified duty was offered to the claimant on October 23, 2008. The ALJ found that the claimant refused to receive a copy directly from the employer on that date and although the employer sent the offer by certified mail, no certified mail return receipt was delivered. Therefore the ALJ reasoned that the claimant never had actual knowledge of the written offer of modified employment. The ALJ denied the respondents' request to terminate TTD benefits effective October 23, 2008. The respondents bring this appeal.
The respondents contend that the findings of fact do not support the ALJ's order denying the respondents' request to terminate TTD benefits from October 23, 2008 and ongoing. The respondents further contend that the applicable law and substantial evidence in the record do not support the ALJ's conclusion that the claimant did not have actual notice of the offer of modified employment. We are unable to ascertain from the order that the ALJ considered whether the claimant waived actual notice of the job offer. Accordingly, we remand for further findings concerning the question of waiver and his entitlement to TTD.
Section 8-42-105(3) C.R.S. 2009 provides that upon the occurrence of one of four enumerated conditions TTD benefits shall cease. The termination of TTD benefits under any one of the four enumerated conditions is mandatory. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995). In relevant part § 8-42-105 (3)(d)(I) provides that temporary total disability benefits shall continue until 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.
Where the claimant is restricted to modified employment and the employer seeks to limit its liability for temporary disability benefits through an offer of modified employment, the tender of work must be in writing, and must be received by the claimant. See Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo. App. 1998). In Laurel Manor Care Center, 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 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 relevant part, the ALJ made the following conclusions of law. The respondents failed to prove that the modified duty was offered to the claimant on October 23, 2008. A written offer of modified employment is not valid unless the claimant has actual knowledge of the offer. See Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276 (August 25, 1995), aff'd, Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo. App. No. 95CA1590, April 25, 1996) (not selected for publication). Where the offer is sent by certified mail, a presumption of receipt by the addressee arises if there is evidence of a certification and a signed return receipt. Johnson v. Roark v. Associates, 608 P.2d 818 (Colo. App. 1979). No such return receipt was delivered in this case. The ALJ concluded that the claimant never had actual knowledge of the written offer of modified employment and therefore denied their request that they be allowed to terminate TTD benefits effective October 23, 2008.
When interpreting statutes the objective is to implement the legislative intent. In order to do so, we must first examine the statutory language and afford the words their plain and ordinary meanings. Weld County School District v. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). If the meaning of the statute is unambiguous, there is no need to resort to interpretive rules of statutory construction. City of Thornton v. Replogle, 888 P. 2d 782 (Colo. 1995). Where possible, we should avoid forced, subtle, or strained construction of statutory language. Miller v. Industrial Claim Appeals Office, 985 P.2d 94 (Colo. App. 1999).
In our view, the plain and ordinary meaning of the term "offer" as used in § 8-42-105(3)(d) should be construed to require that a claimant must have actual notice of the offer of employment. The Panel in a number of decisions has determined that termination of temporary disability benefits pursuant to § 8-42-105(3)(d)(I) presupposes that the claimant received "actual notice" of the offer of modified employment prior to the time the job is to commence. Ortega v. Aspen Skiing Company W. C. No. 4-390-893 (July 25, 2001); Simington v. Assured Transportation Delivery, W. C. No. 4-318-208 (March 19, 1998); Robinson v. Youth Track, W. C. No. 4-649-298 (June 07, 2006).
The Panel's rationale for this conclusion is that the statutory term "offer" connotes a "manifestation of willingness to enter into a bargain" for employment. Because the claimant cannot conclude the contract for employment by appearing for work until he receives actual knowledge of the employer's willingness to enter into the contract, the statute requires more than mere "constructive notice" of the employer's offer. See Owens v. Ready Men Labor, Inc., supra.
However, in our view, although constructive notice of the offer is insufficient, actual notice may be waived, and may have been here. Waiver is the intentional relinquishment of a known right. Waiver may be express, as when a party states its intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion. Burlington Northern R. Co. v. Stone Container Corp. 934 P.2d 902 (Colo. App. 1997). To constitute an implied waiver, the conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit. Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984); Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo. App. 1991). Further, although we are aware that the issue of waiver may itself be waived, here the respondents' arguments appear to us to sufficiently raise that dispute so that it should be addressed on remand. Of course, that is a factual question itself that we have no authority to finally resolve. We merely hold that whether the claimant waived actual notice of the offer of work was sufficiently raised so that it should have been addressed.
The existence of a waiver is a factual matter for the ALJ to determine, and we must uphold his order if supported by substantial evidence in the record. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); C.R.S. 2008. The substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here the ALJ found that the claimant met with representatives of the employer and refused to accept a copy of the written offer of modified employment, insisting that it be sent to him through the use of certified mail. The ALJ further found that the employer complied with the claimant's request and sent him the offer by that manner, but that the certified letters were not collected by the claimant. In our view these findings would permit the factual determination that the claimant waived actual receipt of the offer, but they do not compel it. Rather, as noted, that is a factual matter that the ALJ must resolve. Accordingly we must remand for entry of a further order containing factual findings sufficient to permit appellate review of the issue of the claimant's waiver of receipt of the offer.
On remand the ALJ should determine whether the claimant waived actual notice of the offer of modified work, and whether the other conditions required for termination of TTD were satisfied. The ALJ should then enter another order resolving the claimant's entitlement to TTD. Nothing in this order should be construed as dictating the outcome of the factual questions that we have no authority to decide. IT IS THEREFORE ORDERED that the ALJ's order dated October 14, 2009 is set aside and the matter is remanded for further proceedings and the entry of another order consistent with the foregoing.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
Examiner Schrant dissents:
I respectfully disagree with my colleagues. In my opinion, the ALJ erred in concluding that the respondents had failed to prove that the modified duty was offered to the claimant on October 23, 2008. I would therefore reverse rather than remand for further proceedings.
Here, the claimant denies actual receipt of the offer of employment and the ALJ found that the respondents had failed to prove that the modified duty was offered to the claimant on October 23, 2008. I recognize that the issue of whether the claimant actually received the job offer is factual in nature. However, here the claimant's own undisputed testimony involving the meeting on October 23, 2008, when he met with representatives of the employer, but refused to receive a copy of the written offer of modified employment, is as follows:
Q Okay. So someone tried to give you that offer of modified employment; correct ?
A Yes they did.
Q Okay and at that time you said that this has to be sent by certified mail; correct?
A That's what I was advised.
Q Okay. And who told you that an offer of modified employment had to be sent by certified mail?
A Mr. Falcone.
Tr. at 103.
In my view, given this undisputed testimony, the ALJ's order is not supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. I simply cannot reconcile the ALJ's finding that the employer attempted to hand the written offer of modified employment to the claimant who refused to receive it, with the ALJ's conclusion that the claimant did not have actual knowledge of the written offer of modified employment. Under the circumstances here, I am persuaded that the record only supports the conclusion that the employer offered modified employment to the claimant in writing.
In my view, the ALJ's reliance on Owens v. Ready Men Labor, Inc. to deny the respondents' request for termination of TTD benefits in this case is misplaced. In Owens v. Ready Men Labor, Inc., the respondents sent a letter offering reemployment to the claimant's last known address. However, the claimant had moved and never received the offer. The Panel held that the "offer" was inadequate to terminate benefits under subsection (3)(d) because the "General Assembly's use of the word `offered' demonstrates an intent that the claimant receive actual notice of the proffered employment, and that `constructive notice' is insufficient." The Court of Appeals affirmed the Panel's decision in Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo. App. 95CA1590, April 25, 1996) (not selected for publication). The Court of Appeals determined that in the context of employment, an offer is a manifestation of the employer's willingness to enter into an employment relationship with the offeree upon the offeree's assent to the offer. Thus, the essence of an offer is the employee's knowledge that he or she has the power to conclude a contract without further action by the employer. Hence, an employee must know of the offer in order for the offer to be effective.
Here the claimant was physically presented with the offer of employment. The claimant confessed that he knew the employer was trying to make an offer of employment. To allow the claimant by the act of refusing to grasp the offered letter to force continued payment of TTD benefits is inconsistent with the purpose of the statute to place the claimant on notice that he must return to employment or suffer the loss of benefits. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677,682 (Colo. App. 1997) (purpose of the statute is to place the claimant on notice that he must return to employment, contest the medical release, or suffer a loss of benefits).
In my view, the present case is similar to Stewart v. Dillion Companies Inc. D.B.A King Soopers, W. C. No. 4-257-450 (November 20, 1996). In Stewart, the Panel noted that the provisions of § 8-42-105(3)(d) required the offer of modified employment to be made "in writing," but do not require that the offer be delivered by certified mail. Section 8-42-105(3)(d) merely requires that the claimant "receive actual notice" of the offer of modified employment. In Stewart, the claimant admitted that she received the respondent's offer of modified employment by personal delivery. This admission supported the conclusion that the claimant received actual notice of the respondent's written offer of modified employment. Therefore, the Panel concluded that under § 8-42-105(3)(d), the claimant's failure to begin the modified employment terminated the claimant's entitlement to temporary total disability benefits. Here the claimant received actual notice of the offer of modified employment, but refused to accept the written offer.
Moreover, the Office of Administrative Courts' Rule of Procedure (OACRP) 2(B), 1 Code Colo. Reg. 104-3 at 1, provides that the Colorado Rules of Civil Procedure apply to workers' compensation hearings unless they are inconsistent with these rules and the provisions of the Workers' Compensation Act. See generally Powderhorn Coal Co. v. Weaver 835 P.2d 616 (Colo. App. 1992); see also Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991) (C.R.C.P. 26 used in workers' compensation cases).
In my view, the Colorado Rules of Civil Procedure dealing with service of process are instructive in the present case. This is because TTD benefits terminate if a claimant fails to begin modified employment that is offered to the claimant in writing. Therefore, because failure to respond to an offer of modified employment affects a claimant's interest in workers' compensation benefits, a claimant must have actual knowledge of an offer of modified employment in order for the offer to be consistent with due process requirements. See Hall v. Home Furniture Co, 724 P.2d 94 (Colo. App. 1986) (statutory enactments must be interpreted to comport with due process requirements.). Thus, the safeguards involved in service of process are instructive for considering due process protection of claimants in case of termination of TTD benefits. It is provided in C.R.C.P. 4(K) that:
If a person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the process knows or has reason to identify the person who refuses to be served, identifies the documents being served, offers to deliver a copy of the documents to the person who refuses to be served, and thereafter leaves a copy in a conspicuous place.
Here the ALJ found with record support that the claimant met with representatives of the employer who attempted to hand the written offer of modified employment to the claimant, but the claimant refused to receive a copy directly from the employer. The employer knew the identity of the claimant, the claimant knew the document attempted to be served on him was an offer of employment and he refused to accept the offer of employment. Therefore, in my opinion even the strict requirements of service of process under C.R.C.P. 4(K) were met in the present case.
Here all the elements for termination of TTD benefits under § 8-42-105(3)(d)(I) are present. The ALJ found that the attending physician gave the employee a written release to return to modified employment and it is undisputed that the employee failed to begin such employment. The only remaining element under § 8-42-105(3)(d)(I) is that such employment must be offered to the employee in writing. As noted above in my opinion the ALJ erred in concluding that the respondents had failed to prove that the modified duty was offered to the claimant on October 23, 2008. Consequently, I view the requirements under § 8-42-105(3)(d)(I) for the termination of TTD benefits as all having been met and therefore no remand is necessary.
In my view, under the circumstances here, it was error for the ALJ to determine that the written offer of modified employment was not valid because the claimant did not have actual knowledge of the offer. In my opinion, it follows that because the termination of TTD benefits under § 8-42-105(3) upon the occurrence of any one of the four enumerated conditions is mandatory, the award of TTD benefits should be reversed. See Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).
MICHAEL BARNETT, COLORADO SPRINGS, CO, (Claimant).
WAL-MART STORES, INC., Attn: ANNETTE ESTEP, COLORADO SPRINGS, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: SERENA LOUDERMILK, BENTONVILLE, AR, (Insurer).
RICHARD E FALCONE, Attn: RICHARD FALCONE, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).