W.C. No. 4-251-623Industrial Claim Appeals Office.
November 21, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which denied her claim for permanent total disability benefits. We affirm.
On February 9, 1995, the claimant sustained a compensable back injury arising out of and in the course of her employment as a cook at the respondent’s nursing home. The claimant reached maximum medical improvement in February 1996, and the treating physician imposed restrictions limiting the claimant to sedentary work activities. The physician also restricted the claimant to lifting no more than ten pounds frequently, and precluded her from any “bending, stooping, or twisting.”
It is undisputed that the restrictions preclude the claimant from returning to work as a cook. However, in December 1996, the respondent offered the claimant employment for four hours per day, three days per week, at the rate of $5.73 per hour. The duties including reading to residents, feeding residents, performing manicures, preparing fruits and vegetables, setting and clearing dining room tables, rinsing dishes, and mending clothes. The treating physician opined that the claimant was capable of performing these duties so long as she remained within the established restrictions. However, the claimant declined to accept the offer, and the case proceeded to hearing on the claim for permanent total disability benefits.
At the hearing, the claimant presented the testimony of her vocational expert (Olson), who opined that the claimant would not be able to perform the duties offered by the respondent. Olson also stated that the claimant is unemployable. Conversely, the respondent presented the testimony of its expert (Davis), who testified that the claimant could perform most of the offered duties, and that the employer would modify any tasks which the claimant was unable to do.
The ALJ resolved the conflicting expert vocational testimony against the claimant. Specifically, the ALJ stated that because Olson did not have an opportunity to view the respondent’s premises, and because Davis visited the facility and discussed the job with the respondent, Davis was more “persuasive.” Consequently, the ALJ concluded that the claimant was disqualified from receiving permanent total disability benefits because she declined an offer of employment which would have enabled her to earn “any wages.” See § 8-42-111(3), C.R.S. 1997.
I.
On review, the claimant first contends that the job offered by the respondent constituted nothing more than “sheltered employment.” Consequently, the claimant asserts that the offer did not constitute “employment” which would enable her to “earn any wages” within the meaning of § 8-42-111(3). The claimant argues that because the job was heavily modified and not available on the open market, it was nothing more than a thinly veiled attempt to avoid an award of permanent total disability benefits. We are not persuaded.
The court of appeals recently considered whether a job offer was sufficient to constitute an offer of “employment” for purposes of § 8-42-111(3), or merely an offer of “charity” which would not trigger the statute. Relying on § 8-40-201(8), C.R.S. 1997, the court noted that “employment” is defined as “any trade, occupation, job, position, or process of manufacture” in which a person may be engaged. Further, the court observed that §8-42-111(3) requires that the claimant be able to earn “wages.” The court stated that the question of whether the claimant can “earn any wages” is one of fact for determination by the ALJ. Lobb v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 970212, October 30, 1997).
In Lobb, the parties stipulated that the claimant could not return to work in her capacity as an administrator, and that she was “not employable in the open, competitive labor market.” However, the employer offered the claimant a position in which her “primary duty would be to place pre-printed labels on mailings.” The claimant would have been permitted to perform other duties, and work only as many hours as she was able. Further, the employer offered to be “flexible to accommodate the claimant’s physical needs.”
Under these circumstances, the Lobb court concluded that there was substantial evidence to support the finding that the offer of employment was bone fide, and not a mere offer of charity. Further, the court determined that the evidence was sufficient to prove that the claimant was able to earn “any wages” in this employment.
Because the issue of whether or not the job offer constitutes “employment” which enables the claimant to earn “any wages” is factual in nature, we must uphold the ALJ’s order it supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; Lobb v. Industrial Claim Appeals Office, supra. In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). With regard to credibility issues, we are not at liberty to set aside an ALJ’s determination unless the testimony is overcome by such hard, certain evidence that it is incredible as a matter of law Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, the evidence, viewed in a light most favorable to the respondent, supports the conclusion that the job offer was bona fide for purposes of § 8-42-111(3). The respondent’s vocational expert, who visited the job site, opined that the claimant’s bending restrictions could be accommodated by the assistance of other employees and the use of carts. She also testified that the employer was willing to allow the claimant to converse with residents if she was unable to read to them. Moreover, the opinion of the claimant’s treating physician constitutes evidence that the claimant was able to perform the duties offered by the respondent.
It is true that some evidence, including that offered by Olson, would support a contrary finding and conclusion. However, we cannot say that testimony of respondent’s expert is incredible as a matter of law, or that the ALJ erred in relying on it. In fact, the evidence in this case is very similar to that which the court of appeals determined was sufficient to deny permanent total disability benefits in the Lobb case.
Further, we agree with the ALJ that the evidence establishes that the job would have paid the claimant “wages” within the meaning of § 8-42-111(3) and § 8-40-201(16.5)(a), C.R.S. 1997. I McKinney v. Industrial Claim Appeals Office, 894 P.2d 42
(Colo.App. 1995), the court held that the ability to earn wages in “any” amount is sufficient to disqualify a claimant from receiving permanent total disability benefits. In that case, the claimant was limited to working four to six hours per day, at $5.00 to $6.00 per hour. Nevertheless, the court concluded that the statutory objectives underlying the 1991 amendments to the Act supported a denial of permanent total disability benefits. See also Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997).
Here, the respondent’s evidence is sufficient to support the ALJ’s finding that the claimant would have earned a “wage” if she accepted the job offered by the respondent. The evidence indicates that the claimant would have performed duties which the respondent needed to carry out its nursing home business. Further, the claimant could have earned as much as forty-four percent of her admitted average weekly wage. See McKinney v. Industrial Claim Appeals Office, supra.
Since we have determined that there is substantial evidence to support the ALJ’s conclusions, we do not separately address the claimant’s third argument concerning the sufficiency of the evidence.
II.
Claimant also contends that the ALJ erred in crediting the testimony of vocational expert Davis. The claimant asserts that the respondent denied Olson access to the job site, but permitted Davis to visit the site. Consequently, the claimant argues that it was unfair for the ALJ to credit the testimony of Davis because, unlike Olson, she visited the job site. We disagree.
The claimant never made any motion to exclude or limit the testimony of Davis. Neither did the claimant seek to introduce evidence that the respondent denied Olson access to the job site. Since the claimant failed to raise this issue before the ALJ, it is not proper to consider it on appeal. Kuziel v. Pet Fair, Inc.,
___ P.2d ___ (Colo.App. No. 97CA0087, September 4, 1997).
Similarly, the claimant made no objection to the testimony of Davis concerning her visit to the employer’s premises. Since the claimant made no contemporaneous objection, she is not now in a position to argue that the ALJ erred in considering this evidence when evaluating the relative credibility of the two experts. C.R.E. 103(a)(1); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 27, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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. 1997.
Copies of this decision were mailed November 21, 1997 to the following parties:
Florence E. Buck, 420 Pueblo Ave., Simla, CO 80835
Evangelical Lutheran Good Samaritan, 708 22nd St., Greeley, CO 80631-7041
Karen Gillmore, Constitution State Service Co., — The Travelers Co., P.O. Box 173762, Denver, CO 80217-3762
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colo. Spgs., CO 80909 (For the Claimant)
Lawrence D. Blackman, Esq. John R. Parsons, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
By: __________________________