W.C. No. 4-310-021Industrial Claim Appeals Office.
June 20, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ), which awarded the claimant temporary total disability benefits subsequent to October 17, 1996. We affirm.
The ALJ found that the claimant sustained an injury and was temporarily totally disabled from her employment at a carwash. However, on October 17, 1996, the employer sent a letter to the claimant stating that it had “identified a temporary modified part-time clerical position” within her restrictions. The letter also stated that “your hours and duties will be communicated by Raul Castro.” However, the ALJ found that neither Castro, nor any other representative of the employer, “further communicated any work hours or work schedule to the claimant.”
Under these circumstances, the ALJ concluded that the claimant’s failure to commence the light duty employment was insufficient to terminate temporary total disability benefits subsequent to October 17. Specifically, the ALJ stated that the letter contemplated a further communication by the employer to the claimant concerning the commencement of work, and “the claimant should not be penalized by the employer’s failure to follow through as the letter indicated would occur.”
On review, the respondents contend that the ALJ erroneously relied on Rule of Procedure IX(C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34, as justification for refusing to terminate the claimant’s temporary total disability benefits. The respondents reason that this Rule of Procedure, which requires a written statement of the proposed duties, wages and hours, applies only when respondents seek to terminate disability benefits without a hearing. In contrast, the respondents argue that terminations which result from a hearing are controlled by § 8-42-105(3)(d)(I), C.R.S. (1996 Cum. Supp.), and the statute does not require the employer to communicate “hours and duties” to the claimant. We perceive no error in the ALJ’s order.
Initially, we agree with the claimant that the ALJ did not rely on Rule of Procedure IX(C)(1)(d) in his written order. The ALJ’s oral remarks at the conclusion of the hearing indicate that he believed the letter was insufficient to terminate temporary disability benefits under Rule IX or § 8-42-105(3)(d). CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds, 783 P.2d 269 (Colo. 1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Moreover, we agree with the ALJ that the letter is insufficient to terminate benefits under the statute. Therefore, we need not address the significance or scope of Rule IX(C)(1)(d) See Stewart v. Dillon Companies, Inc., W.C. No. 4-257-450
(November 20, 1996) (Rule IX(C)(1)(d) requirement that offer be by certified mail applies only to termination of temporary total disability by admission, and does not apply to termination of benefits under § 8-42-105(3)(d) after a hearing).
Section 8-42-105(3)(d)(I) provides for the continuation of temporary disability benefits 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.”
The purpose of this statute is to reduce the frequency and scope of litigation concerning a claimant’s entitlement to temporary disability benefits. See Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995). It is for this reason that we have previously held that an oral offer of reemployment is insufficient to terminate benefits under the § 8-42-105(3)(d). See Blair v. Rawhide Rose, Inc., W.C. No. 4-147-705 (November 23, 1993).
Moreover, in Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. 95CA1590, April 25, 1996) (not selected for publication), the court of appeals stated that 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.” Thus, the Ready Men court held that claimants are entitled to “actual knowledge of an offer of reemployment under §8-42-105(3)(d).”
Applying these principles here, we agree with the ALJ that the October 17 letter was insufficient to justify termination of temporary disability benefits under § 8-42-105(3)(d). As the ALJ found, the letter explicitly stated that Raul Castro would communicate with the claimant concerning the “hours” of the modified employment. Thus, the claimant was left without “the power to conclude a contract” by beginning the employment at any specified time and date. Since the claimant was not told when to report for work, benefits cannot be terminated based on the claimant’s failure “to begin such employment.”
IT IS THEREFORE ORDERED that the ALJ’s order dated January 23, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed June 20, 1997 to the following parties:
Candi L. Bekoff, 723 Ute Ave., Grand Junction, CO 81501
Derryberry’s Inc., 2823 North Ave., Grand Junction, CO 81501-5105
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: _______________________________