W.C. No. 4-389-957Industrial Claim Appeals Office.
February 7, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined that she was not entitled to any temporary disability benefits subsequent to November 4, 1998. The claimant argues the ALJ erred in holding that her refusal to accept an offer of modified employment terminated her right to temporary disability benefits. We affirm.
On July 15, 1998, the claimant sustained a compensable injury to her left shoulder while employed as a “mixer-driver” by the respondent-employer (Rocky Mountain). The claimant was medically restricted from returning to this employment and the respondents filed an admission of liability for temporary total disability benefits based on an admitted average weekly wage of $637.77.
In October 1998 the claimant commenced part-time employment as a school bus driver for the Eagle County School District. This was seasonal employment which the claimant had held since 1994.
On November 4, 1998, Rocky Mountain made a written offer of full-time employment at the rate of $10.50 per hour. The job would have placed claimant in a clerical position and was approved by the claimant’s treating physician. The ALJ specifically found that the offer of modified employment complied with the provisions of § 8-42-106(2)(b)(I), C.R.S. 1999. (Finding of Fact 10). However, the claimant declined to accept the offer. At hearing, she testified that if she quit her job as a bus driver, she would have lost health insurance and retirement benefits which she obtained through the school district. (Tr. p. 17-18).
Under these circumstances, the ALJ found the respondents “lawfully terminated claimant’s temporary disability compensation after November 4, 1998, in compliance with § 8-42-105(3)(d), C.R.S.” Specifically, the ALJ ordered payment of temporary partial disability benefits for the period October 23 through November 4, 1998, and allowed the respondents a “credit for any temporary total disability compensation” they paid during this period. The ALJ denied the claim for any temporary disability benefits after November 4.
I.
On review, the claimant first contends the ALJ misapplied §8-42-105(3)(d), C.R.S. 1999, in determining she was not entitled to temporary disability benefits after November 4. The claimant reasons that under § 8-42-105(3) temporary total disability benefits continue until the “first occurrence” of any of the circumstances listed in subsection (3). The claimant points out that she returned to modified employment with the school district in October 1998. Thus, the claimant argues that her right to temporary total disability benefits was terminated under subsection (3) (b), and the ALJ improperly relied on subsection (3)(d) as grounds for denying temporary total disability benefits after November 4. We find no reversible error.
An ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law. Rather, an order is sufficient to withstand appellate review if the ALJ makes sufficient findings and conclusions to demonstrate the basis of the order. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, we may disregard erroneous findings which do not affect the substantial rights of the parties. See § 8-43-310, C.R.S. 1999; Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997).
Here, read in its entirety, we understand the ALJ to have determined the claimant’s right to temporary total disability benefits terminated when she returned to work in October 1998, and her residual right to temporary partial disability benefits ended on November 4, 1998, when she refused the written offer of modified employment from Rocky Mountain. The ALJ’s specific reference to § 8-42-106(2)(b)(I) in Finding of Fact 10 persuades us the ALJ recognized that temporary partial disability benefits may be terminated based on the claimant’s refusal to accept a written offer of modified employment within the claimant’s restrictions. Thus, although the ALJ referred to § 8-42-105(3)(d) in his Conclusions of Law, the reference was, at most, harmless error.
Further, we reject the claimant’s assertion that the mere fact she returned to modified employment precluded termination of temporary partial disability benefits when she was subsequently offered more beneficial modified employment by Rocky Mountain. In fact, where the claimant is receiving temporary partial disability benefits, the claimant must necessarily be employed and earning an average weekly wage, albeit at a lesser rate than the claimant earned at the time of the injury. Thus, § 8-42-106(2)(b)(I) contemplates offers of modified employment to temporarily disabled claimants who have already obtained modified employment and are earning some wages.
II.
The claimant also argues that termination of temporary partial disability benefits under the circumstances present here constitutes “bad social policy.” The claimant reasons that requiring the claimant to quit one job and accept another is “disruptive” to the claimant and may discourage claimants from returning to work on their own. We find this argument unpersuasive.
The central rule of statutory construction is to effect the legislative intent. The best indicator of the legislative intent is to be found in the words of the statute itself. Therefore, words and phrases in a statute should be given their plain and ordinary meanings. If the statutory language is clear and unambiguous, it is not necessary to resort to interpretive rules of statutory construction. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).
Here, the plain and ordinary meaning of § 8-42-106(2)(b)(I) requires termination of temporary partial disability benefits if the claimant refuses an offer of modified employment within her restrictions. This is true even if the claimant already has obtained modified employment at an average weekly wage lower than that established by the offer of modified employment. Otherwise, the statute would not make any sense.
Although we agree this result may be “disruptive” to the claimant, it is the result contemplated by the statute. Admittedly, requiring the claimant to quit her job with the school district might have resulted in the loss of certain advantages inherent in that job. However, the legislature could reasonably conclude that if the claimant wishes to receive temporary partial disability benefits based on an average weekly wage she enjoyed at the time of the injury, the claimant should be compelled to accept modified employment which maximizes earnings during temporary disability and, therefore, reduces the respondents’ liability. Here, the claimant makes no argument that the average weekly wage she earned with the school district exceeded that which she would have earned by accepting the modified employment offered by Rocky Mountain. Under the circumstances, we perceive no “social policy” which could serve to undermine the express statutory language.
Insofar as the claimant makes other arguments we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 4, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon 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. 1999.
Copies of this decision were mailed February 7, 2000
to the following parties:
Sue Grant, P.O. Box 637, Gypsum, CO 81637
Peggy Wilson, Rocky Mountain Redi-Mix, LLC, 141 B Highway 82, Carbondale, CO 81623
Valiant Insurance Company, Zurich Group Companies, P.O. Box 37308, Denver, CO 80237
Jeffrey S. Auxier, Esq., P.O. Box 1869, Edwards, CO 81632 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy