Matter of Alvarez v. Precast, W.C. No. 4-510-350 (Colo. 12/19/2003)

• Decision Date: 19 December 2003
• Docket Number: W.C. No. 4-510-350.
• Parties: In the Matter of the Claim of Santiago Alvarez, Claimant, v. Amcor Precast, Employer, and Liberty Mutual Insurance Company, Insurer, Respondents.
• Court: Colorado Supreme Court

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In the Matter of the Claim of Santiago Alvarez, Claimant, v. Amcor Precast, Employer, and Liberty Mutual Insurance Company, Insurer, Respondents.

W.C. No. 4-510-350.

Supreme Court of Colorado.

December 19, 2003.

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.

Mitchell Baker, Esq., Denver, CO, (For Claimant).

David G. Kroll, Esq., Denver, CO, (For Respondents).

David Cain, Kathy E. Dean, Industrial Claim Appeals Panel.

ORDER OF REMAND

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...