W.C. No. 4-022-233Industrial Claim Appeals Office.
December 29, 1995
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded permanent partial disability benefits under former § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.). The respondents contend that the ALJ erred in failing to limit the award to medical impairment under former § 8-42-110(3), C.R.S. (1990 Cum. Supp.) (the reemployment statute). We set aside the order and remand for entry of a new order.
Former § 8-42-110(3) provides that the claimant’s permanent partial disability benefits shall be limited to permanent medical impairment or a payment under the schedule of disabilities, whichever is less, where the employer:
“reemploys or continues the disabled employee at work in the employment of the employer at the employee’s preinjury rate of pay and extends to the employee the usual wage adjustments.”
The ALJ found that the claimant suffered a compensable low back injury on March 18, 1991, in the course of his employment as an assistant banquet manager for Broadmoor Hotel Inc. (Broadmoor). The ALJ found that the claimant reached maximum medical improvement (MMI) on August 9, 1991, and that the claimant continued to be employed at the Broadmoor through 1994. Therefore, we necessarily reject the respondents’ contention that the ALJ failed to determine whether the Broadmoor continued to employ the claimant at the time of MMI.
However, the ALJ found that the reemployment statute was not applicable because the respondents failed to prove that the claimant was reemployed at his “preinjury rate of pay.” In support of her determination, the ALJ found that the claimant’s combined annual income from “base wages” and a “gratuity pool” was $50,978.26 in 1991, $42,027.82 in 1992, $41,209.99 in 1993 and $31,317.18 as of October 1994.
Crediting the testimony of vocational rehabilitation consultant, Ms. Wheatley-Herman, the ALJ further determined that the claimant sustained a 20 percent vocational loss as a result of the industrial injury. Therefore, the ALJ ordered the respondents to pay permanent partial disability based upon a disability of 20 percent as a working unit.
The respondents argue that the ALJ misapplied the reemployment statute by considering the claimant’s earnings subsequent to August 9, 1991. In so doing, the respondents rely upon Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915 (Colo.App. 1993) and Monfort, Inc. v. Gonzales, 855 P.2d 19 (Colo.App. 1993), to assert that the claimant’s wage on the date of MMI is the only evidence relevant in determining whether the claimant was reemployed at his “pre-injury rate of pay.” The respondents’ appellate argument is contrary to the position they asserted before the ALJ. (Tr. p. 6). In any case, we disagree.
The purpose of the reemployment statute is to provide an incentive for employers to reemploy permanently disabled workers by limiting the employers’ liability for permanent partial disability awards. Snyder Oil Co. v. Embree, 862 P.2d 259, 862 P.2d 259 (Colo. 1993). In Monfort, Inc. v. Gonzales, supra, as applied in Lerner v. Wal-Mart Stores, Inc., supra,
the court concluded that the reemployment statute can not operate as an incentive until the employer knows whether the employee is permanently disabled, and whether the employee is permanently unable to perform the duties offered. Because the extent of the employee’s permanent partial disability is not ascertainable until MMI, the Gonzales court concluded that the employer is not entitled to the benefit of the reemployment statute unless the employer retains the injured employer “after” MMI. Th Gonzales court also concluded that in the context of § 8-42-110(3) the terms “reemploys or continues” reflects a requirement that the reemployment is “ongoing” when permanent partial disability is determined.
Therefore, we conclude that neither Gonzales nor Lerner support the respondents’ assertion that the claimant’s wage on the date of MMI is the only evidence pertinent to the ALJ’s determination of whether the claimant was reemployed as his “pre-injury rate of pay.” In additional the respondents mistakenly assert that they would be entitled to the benefits of the reemployment statute even if they had terminated the claimant’s employment on August 10, 1991.
However, “pre-injury rate of pay” means the “amount paid by the reemploying employer to the injured employee prior to the injury.” Snyder Oil Co. v. Embree, supra. The ALJ made no finding concerning the amount paid by Broadmoor to the claimant prior to March 18, 1991. Furthermore, the claimant also stated that he earned more from the “gratuity pool” in 1991 because about a week after the industrial accident he resumed his employment and worked extra hours while his supervisor was ill. (Tr. p. 10). Accordingly, the ALJ’s finding that the claimant earned a total of $50,978.26 in 1991, does not resolve the pertinent issue and is insufficient to permit appellate review of the respondents’ contention that the ALJ erred in determining that the claimant was not reemployed at his “pre-injury rate of pay.”
The record contains conflicting evidence concerning the amount paid by the Broadmoor prior to the claimant’s industrial injury. The claimant testified that his base wage increased from $6.50 per hour in 1991 to $7.50 per hour and that his annual base wage increased from $15,000 in 1991 to $24,000 in 1993. (Tr. p. 8). The respondents’ vocational rehabilitation expert testified that the claimant was paid a base wage of $7.00 or $7.50 per hour at the time of the injury. (Tr. pp. 23, 24). Under these circumstances, we must remand the matter to the ALJ to resolve the conflicts and determine the claimant’s “pre-injury rate of pay.”
For purposes of our remand, we shall also consider the respondents’ argument concerning the ALJ’s finding that the claimant has lifting limitations. We agree that the contested findings do not accurately reflect the evidence which the ALJ found persuasive.
The ALJ found that:
“Claimant’s testimony is to the effect that he does not lift one hundred pounds at work, and has not since he was injured because he knows his own limitations. That limitation was apparently borne out by Functional Capacity Evaluation that Claimant underwent in 1993.”
The ALJ also found that two of the six first-class hotel/resort restaurants contacted by Ms. Wheatley-Herman would not hire an applicant who was “unable to lift one hundred pounds regularly and without limitation.”
Although the record supports the ALJ’s finding concerning the claimant’s testimony, the record does not support her finding that the claimant’s testimony is “borne out” by the functional capacity evaluation. (Tr. pp. 11, 94). The Physical Therapy Institute report dated December 7, 1993, indicates that the claimant did, and can lift 107.8 pounds occasionally. The report also lists the claimant’s “Work Capacity” as “Heavy” which includes lifting 100 pounds infrequently.
Furthermore, Ms. Wheatley-Herman did not testify that two of the six hotel/resorts she contacted would not hire an applicant who was restricted from lifting 100 pounds. Rather, Ms. Wheatley-Herman testified that the Sonnelnapp and Little Nell hotels indicated that an applicant who could not lift over 100 pounds would not be qualified. (Tr. pp. 81, 82, 83).
Therefore, insofar as the ALJ determined that the functional capacity evaluation supports the claimant’s testimony that he is limited from lifting 100 pounds, the finding must be set aside. Similarly, the record does not support the ALJ’s finding concerning the lifting requirements of the resorts contacted by Ms. Wheatley-Herman. On remand, the ALJ shall issue new findings of fact which are consistent with evidence she found credible and persuasive.
In view of our remand, it is premature to consider the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 23, 1995, is set aside and the matter is remanded to the ALJ to issue a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed December 29, 1995 to the following parties:
Frank A. Bardowski, 137 Sumac Dr., Security, CO 80911
Broadmoor Hotel, Inc., Attn: Jean Roblewski, P. O. Box 1439, Colorado Springs, CO 80901-1439
Continental Insurance Company, % Continental Risk Management Services, 200 S. Wacker Dr., 23rd floor, Chicago, IL 60606
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940
(For Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227
(For Respondents)
BY: _______________________