Arellano v. Director, Division of Labor
| Decision Date | 01 February 1979 |
| Docket Number | No. 77-1067,77-1067 |
| Citation | 42 Colo.App. 149,590 P.2d 987 |
| Parties | Emanuel ARELLANO, Petitioner, v. DIRECTOR, DIVISION OF LABOR, Industrial Commission of the State of Colorado, Mountain States Telephone and Telegraph Company, Respondents. . II |
| Court | Colorado Court of Appeals |
Vernon P. Playton, Denver, for petitioner.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Louis L. Kelley, John Kezer, Asst. Attys. Gen., Denver, for respondent Director, Div. of Labor.
Laura F. Davidson, Denver, Lowell Fortune, P. C., Denver, for respondent Mountain States Tel. & Tel. Co.
Petitioner seeks review of an order entered by respondent, Industrial Commission, denying his petition to reopen and reinstate his original workmen's compensation benefits. We affirm in part and set aside in part.
At issue is the interpretation of § 8-51-108(3)(a), C.R.S.1973, which until repealed, 1975 Colo.Sess.Laws § 62, p. 311, allowed an employer to elect to continue to employ an injured employee at his normal rate of pay if the permanent partial disability was less than 5%. The statute permitted an employer to obtain a credit for permanent partial disability payments paid the employee in amounts equivalent to the employee's weekly benefit rate of compensation while the employee continued to work for the employer or the employer offered to continue a physically able employee in employment. Further, the statute provided that:
"If, during the six years following the date of his accident, the injured employee is dismissed from employment, resigns from employment, or is denied employment as a result of his disability, he may petition the director for a redetermination of his original permanent partial disability award, and upon a proper showing of his limitations in the labor market, the director shall order the reinstatement of his original award."
Petitioner suffered injury in an accident on March 7, 1972, while employed by respondent Mountain States Telephone and Telegraph Company. Petitioner missed some work after the accident but continued to be employed. A year later, on March 22, 1973, the referee, acting for the Division of Labor, issued an order directing the employer to pay petitioner compensation for intermittent total disability between March 8, 1972, and September 26, 1972. The referee further ordered the employer to make compensation payments for permanent partial disability in the amount of 3% as a working unit beginning September 27, 1972, until the total sum of $2,809.09 was paid to petitioner. After entry of the order, the employer petitioned for review of the 3% amount, construing it as an order for lump sum payment, and argued that "(p)ursuant to the provisions of C.R.S.1963, 81-12-11(3) (sic) 1 (1971 Perm.Supp.)" the employer could continue to employ the injured employee at his normal rate of pay.
On June 27, 1973, while the employer's petition was pending, petitioner was discharged from his job for failing to notify his employer of absences. Thereafter, on October 3, 1973, the employer withdrew its petition for review, made a special admission of liability for 3% permanent partial disability, and elected to invoke the 5% rule, "C.R.S.1963 as amended, 81-12-9(3)(a)."
Petitioner filed a petition to reopen the award, arguing that he had been discharged because of his disability and that the employer's election of the 5% rule was untimely. The referee decided against petitioner, finding that the discharge was caused by petitioner's failure to notify his employer of the disability-related absences, not by an inability to perform. The referee also held that the employer's election of the 5% rule was timely. The Commission affirmed this award, and petitioner filed an appeal with this court on April 16, 1976. Petitioner did not allege at that time that he was incapable of performing the duties offered by his employer, nor did he petition to review the original award entered March 22, 1973.
On June 18, 1976, petitioner filed a second petition to reopen his original award on the basis that his condition had worsened. We granted petitioner's request to abate his first appeal while awaiting a decision on the second petition, and thereafter dismissed the first appeal without prejudice. Granting petitioner's second petition to reopen on January 17, 1977, the referee found that (1) petitioner had suffered a 7% permanent partial disability as a working unit, with maximum medical improvement as of April 23, 1976, (2) the initial 3% award would not be reinstated because claimant had been dismissed for misconduct, and (3) Social Security disability benefits received by petitioner would be set off against the additional award for disability. The Commissioner's award based on the referee's second supplemental order is the subject of this appeal by petitioner.
Petitioner first argues that he is entitled to a reinstatement of the original 3% award because the employer did not timely elect the 5% rule of § 8-51-108(3) (a), C.R.S.1973, and is therefore not entitled to any credit under the terms of the statute. We disagree.
Although the employer erroneously cited the statute in its petition for rehearing of the referee's March 22, 1973, order, the petition, together with the continued employment of petitioner, reveals the employer's intent to invoke the 5% rule if unsuccessful on appeal. There is nothing in the statute which prescribes a procedure for invoking the 5% rule where, as here, the employer contests liability. We therefore hold that where an employer continues to employ the injured employee and indicates its intent to elect the 5% rule if unsuccessful in contesting an award, the employer has timely invoked the provisions of § 8-51-108(3)(a), C.R.S.1973.
Petitioner next argues that he is entitled to reinstatement of the original award because the referee found in his January 17, 1977, supplemental order that petitioner was unable to perform the work required. Petitioner is in effect arguing that the employer is not entitled to any credit against the 3% disability for the wages paid to the employee after the injury. We disagree.
Section 8-51-108(3)(a), C.R.S.1973, states that the employer will receive a credit for awards of compensation so long as the employer "continues or offers to continue the employee in employment, unless the director finds upon competent evidence that the employee is physically unable to perform the duties Offered by the employer." (emphasis added) Contrary to petitioner's argument, this language does not authorize a reinstatement of the original award in this case. The statute allows reinstatement if, while the employee is unemployed, the employer offers duties which the director finds the employee is unable to perform. Here the employer did...
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