W.C. No. 4-250-114Industrial Claim Appeals Office.
October 9, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied her claim for temporary disability benefits subsequent to May 12, 1995. We affirm.
This case was tried on stipulated facts. The claimant sustained a compensable shoulder injury on March 28, 1994. The claimant moved from Colorado to Chicago, Illinois while still temporarily totally disabled.
In April 1995, the respondents extended the claimant an offer of modified employment within her restrictions. The parties stipulated that this was “a valid job offer” sufficient to terminate temporary total disability benefits under the statute currently codified at § 8-42-105(3)(d)(I), C.R.S. 1997. However, prior to the extension of the job offer, the claimant and the employer’s risk manager discussed the job offer. The claimant advised the risk manager that she would be happy to return to Colorado and accept the job, but “could not afford the moving expenses.” Conversely, the risk manager told the claimant that moving expenses “were her problem and/or responsibility.”
Under these circumstances, the ALJ concluded that the claimant’s temporary disability benefits should terminate on May 12, 1995, the day on which she failed to begin the offered employment. The ALJ determined that § 8-42-105(3)(d)(I) does not contain any requirement that the respondents pay moving expenses as a condition of terminating temporary disability benefits. See also, Rule of Procedure IX (C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34. Moreover, the ALJ found that the contents of the stipulation were insufficient to make a finding concerning whether the claimant could actually afford the moving expenses. Considering this state of the evidence, the ALJ determined that the respondents made a valid job offer sufficient to terminate temporary disability benefits under the statute.
Citing our decision in Ragan v. Temp Force, W.C. No. 4-216-579 (June 7, 1996), the claimant contends that the ALJ was compelled to continue temporary disability benefits because it was unreasonable to require the claimant to move back to Colorado to accept the proffered employment. The claimant asserts that requiring the move is unreasonable because, “but for the [employer’s] refusal to provide moving expenses,” she would have returned to Colorado and accepted the job. We are not persuaded by the claimant’s argument.
Section 8-42-105(3)(d)(I) provides that temporary total disability benefits 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.” In Ragan v. Temp Force, supra, we interpreted this statute as requiring that the “modified employment” be reasonably available to the claimant “under an objective standard.” The rationale for this conclusion was as follows:
“Section 8-42-105(3)(d) creates no explicit prescriptions or restrictions on the type of `modified employment’ which may be offered, other than the employment be approved by the attending physician. Cf. McKinley v. Bronco Billy’s, supra. However, we agree with the ALJ that the General Assembly could not have intended § 8-42-105(3)(d) to authorize termination of temporary disability benefits when respondents offer employment which the claimant cannot, as a practical matter, accept.”
Ragan went on to hold that the evidence supported the ALJ’s refusal to terminate benefits where the offered employment required a fifty-five mile round-trip, the claimant had no automobile, and the job was not accessible by public transportation.
Because the issue of whether the claimant’s refusal to accept the offered employment was reasonable under an objective standard is a question of fact, the ALJ’s order must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, we may not substitute our judgment for that of the ALJ concerning the plausible inferences to be drawn from the evidence. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s argument notwithstanding, the parties’ stipulation does not compel the conclusion that the claimant’s failure to accept the job offer was reasonable under an objective standard. The stipulation contains no evidence concerning the claimant’s actual financial status, other than her own representations to the risk manager. The ALJ was certainly not required to believe the claimant’s representation, especially since she found the financial capacity to move from Colorado to Illinois before the respondents offered the job. The ALJ was simply not persuaded that the totality of the known circumstances prove that the offer of employment was unreasonable, and we decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from this record.
The claimant also argues that the matter should be remanded to the ALJ for further hearing concerning the reasonableness of the claimant’s action under an objective standard. However, the claimant agreed to try the case on stipulated facts, and therefore, waived the right to an evidentiary hearing.
The claimant also analogizes this situation to permanent total disability cases where the court has held that the availability of employment in the claimant’s local labor market is a factor to be considered. Prestige Painting Decorating, Inc. v. Mitchusson, 825 P.2d 1049 (Colo.App. 1991) Gruntmeir v. Tempel Esgar, Inc., 730 P.2d 893
(Colo.App. 1986). Thus, she reasons that she should not be required to move in order to retain her right to temporary benefits.
Initially, we note that the question of whether the claimant’s local labor market remains a proper factor for consideration in cases where the claimant seeks permanent total disability is very much in dispute. Compare Brush Greenhouse Partners v. Godinez, ___ P.2d ___ (Colo.App. No. 96CA0266, December 27, 1996), cert. granted, August 25, 1997, an Spady Brothers v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0895, February 6, 1997), cert. granted August 25, 1997. In any event, we do not read the cases cited by the claimant as establishing a per se
rule that the claimant’s local labor market i determinative of entitlement to permanent total disability benefits. Rather, the availability of employment in the claimant’s local labor market is a factor which may be considered, together with other relevant factors, in determining whether the claimant is permanently and totally disabled Prestige Painting Decorating, Inc. v. Mitchusson, supra (application of this rule may take into consideration the community where a claimant resides).
Here, we agree that the location of the claimant’s residence is a relevant factor in determining whether the refusal to accept the employment is reasonable. However, that factor must be viewed against the totality of the circumstances, including the claimant’s decision to leave Colorado. Cf. Jones v. S B Stagelines, Inc., W.C. No. 4-209-265 (May 7, 1997) (there is no “hard and fast rule concerning whether relocation is or is not required” in determining whether refusal of proffered employment is objectively reasonable under § 8-42-111(3)).
The claimant also argues that this result places an unconstitutional burden on her right to travel. However, the question of whether the statute, as we interpret it, is unconstitutional is a matter for determination by the courts Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 9, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed October 9, 1997 to the following parties:
Jodi Tallman Belanger, Thomas Roberts, Esq., 1650 Emerson St., Denver, CO 80218
Audrey Adams, Keystone Resort, Inc., P.O. Box 38, Keystone, CO 80435
Constitution State Service Co., Cherry Rorex, Travelers Insurance, P.O. Box 173762, Denver, CO 80217
Thomas Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
Gregory B. Cairns, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
By: _________________________