W.C. No. 4-416-146Industrial Claim Appeals Office.
February 2, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which required them to reinstate temporary total disability benefits retroactive to March 14, 1999. We set aside the order and remand for the entry of a new order.
On October 19, 1998, the claimant suffered a work-related injury. The respondents admitted liability for temporary total disability benefits commencing January 27, 1999. On March 12, 1999, the respondents filed an admission of liability which terminated temporary disability benefits effective March 14, 1999, due to the claimant’s failure to begin an offer of modified employment. The claimant objected and requested a hearing.
The ALJ found the respondents failed to prove they complied with the Rules of Procedure, Part IX(C)(1)(d), Code Colo. Reg. 1101-3 at 34, concerning the unilateral termination of temporary disability benefits. That rule allows an insurer to terminate temporary total disability benefits without a hearing by filing an admission of liability with:
“a certified letter to the claimant or copy of a written offer delivered to the claimant with a signed certificate of service, containing both an offer of modified employment, setting forth duties, wages, and hours and a statement from an authorized treating physician that the employment offered is within the claimant’s physical restrictions.”
The ALJ found the respondents failed to prove the offer was delivered by certified mail or delivered to the claimant with a signed certificate of service. Crediting the claimant’s testimony, the ALJ also found the claimant did not receive a statement from the treating physician, Dr. Holmboe, that he approved the offered employment. Consequently, the ALJ determined the respondents failed to comply with the requirements of Rule IX(C)(1)(d).
Furthermore, relying on Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997), the ALJ found there was “no evidence presented” that the attending physician gave the claimant a written release to return to modified employment as required by § 8-42-105(3)(d)(1) C.R.S. 1999. Under these circumstances, the ALJ concluded temporary disability benefits did not terminate by operation of § 8-42-105(3)(d)(1), and therefore, the ALJ ordered the respondents to reinstate temporary total disability benefits retroactive to March 14, 1999.
On appeal, the respondents contend the ALJ erroneously found they failed to comply with the requirements of Rule IX(C)(1)(d). In support, the respondents rely on the claimant’s testimony that he received the offer of employment but did not return to work because he did not feel physically capable of performing the offered employment and because did not receive a separate letter from Dr. Holmboe directing him to return to work.
The determination of whether the respondents complied with Rule IX(C)(1)(d) is essentially factual. Therefore, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Under this standard we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence and her assessment of the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
We agree with the respondents’ contention that Rule IX(C)(1)(d) does not require the claimant to receive a separate
letter from the treating physician which approves the offered employment. Rather, the rule requires that the respondents provide the claimant with a statement from the treating physician stating the employment is within the claimant’s restrictions. Therefore, it is immaterial to the termination of benefits under Rule IX(C)(1)(d) whether Dr. Holmboe sent the claimant a separate letter concerning the offer of modified employment.
The respondents argue that they sent the claimant a four page written offer of modified employment. Page one outlined the job offer including the rate of pay and work schedule. Page one contains a certificate of mailing dated March 11, 1999. Page two contained a description of the assigned duties and Dr. Holmboe’s signature approving the job offer. Page two states that it was sent to the claimant by certified mail on an unspecified date. Page three is similar to page one, except it also contains a hand written note stating the claimant refused a verbal offer of modified employment. Page four is identical to page two except that it does not contain Dr. Holmboe’s signature or a certificate of mailing.
The claimant denied receiving any document containing Dr. Holmboe’s statement that the offered job was within his medical restrictions (see Tr. p. 15; Claimant’s exhibit A), and the respondents did not present evidence that the doctor’s statement was ever delivered by certified mail or delivered to the claimant with a signed certificate of service. See Johnson v. Roark v. Associates, 608 P.2d 818 (Colo.App. 1979) (where document is sent by certified mail, a presumption of receipt by the addressee arises if there is evidence of a certification and a signed return receipt). Accordingly, there is substantial evidence in the record to support the ALJ’s determination that the respondents failed fully to comply with the requirements of Rule IX(C)(1)(d) for the unilateral termination of temporary disability benefits.
Moreover, because the respondents failed to prove that the offer was extended to the claimant in accordance with the requirements of Rule IX(C)(1)(d), evidence the claimant was aware of the offer does not otherwise support the respondents’ unilateral termination of benefits.
Alternatively, the respondents contend the ALJ erred in refusing to terminate temporary disability benefits under §8-42-105(3(d)(I). We conclude the ALJ erred in finding there was “no evidence” that the claimant was given a written release to modified employment and, therefore, we remand the matter for additional findings. Section 8-43-301(8), C.R.S. 1999.
Under § 8-42-105(3)(d)(I) temporary disability benefits terminate when 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. Popke v. Industrial Claim Appeals Office, supra. Popke also held that when interpreting §8-42-105(3)(c), C.R.S. 1999, the attending physician’s release to regular employment must be physically delivered to the claimant to be effective.
In contrast to Rule IX(C)(1)(d), the provisions of §8-42-105(3)(d)(I) require the offer of modified employment be made “in writing,” but do not require that the offer be delivered by certified mail. The statute requires only that the claimant “receive actual notice” of the offer of modified employment Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, (August 25, 1995), aff’d., Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1590, April 25, 1996) (not selected for publication). Further, the statute does not require that the offer be accompanied by a separate statement from the attending physician that the job is within the claimant’s medical restrictions. Section 8-42-105(3)(d) merely requires proof that the attending physician has delivered to the claimant a release to return to modified employment and that the offered employment does not exceed the restrictions imposed by the physician.
Furthermore, where the claimant has already been released to modified employment, there is no requirement that the attending physician give the claimant a new release commensurate with a written offer of employment. Rather, the issue becomes whether as a matter of fact, the offered employment is within the medical restrictions imposed by the attending physician’s release.
Here, the claimant admitted he was released to modified employment on October 21, 1998, and that he received a written statement from the doctor releasing him to modified employment. (Tr. pp. 13, 16). Therefore, the ALJ’s finding that there is “no evidence” the attending physician gave the claimant a release to modified employment is not supported by the record.
There is a distinction between the terms “no evidence” and “no credible evidence.” Accordingly, where the ALJ finds that there is “no evidence” to support a particular proposition, we are not free to presume that the ALJ found “no credible evidence” to support the proposition. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
We are unable to ascertain how the ALJ would have assessed the sufficiency and probative value of the evidence concerning whether the respondents satisfied the requirements of §8-42-105(3)(d)(I) had the ALJ considered the evidence that Dr. Holmboe gave the claimant a release to return to modified employment. Consequently, we must remand the case for the ALJ to reconsider the evidence and enter a new order on the issue of temporary disability benefits after March 15, 1999.
In view of our disposition, we do not consider the respondents further arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed February 2, 2000
to the following parties:
Alvaro Luna, 4395 W. Exposition, #3, Denver, CO 80219
Aerotek, Inc. dba On Site Commercial Staffing, Attn: Heather Bonney, 921 Elkridge Landing Rd., #100, Linthicum, MD 21090
Reliance National Indemnity, 7600 E. Orchard Rd., #3105, Harlequin Plaza South, Englewood, CO 80111
R. Nelson, Presidium, Inc./Cambridge, 12005 Ford Rd., Lock Box 44, #700, Dallas, TX 75234
Robert P. Koehler, Esq., 681 Grant St., Denver, CO 80203 (For Claimant)
James B. Fairbanks, Esq. and Kathleen Mowry North, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy