W.C. No. 4-376-567Industrial Claim Appeals Office.
December 9, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) which denied permanent total disability benefits. We affirm.
In 1996 the claimant suffered an admitted back injury. On March 27, 1998, Dr. Olsen placed the claimant at maximum medical improvement (MMI), with 23 a percent whole person impairment rating. Dr. Olsen also imposed extensive permanent work restrictions consistent with the results of a functional capacity evaluation. Dr. Pock opined that the claimant also suffered a “mild” mental impairment as a result of the injury equal to 8 percent of the whole person. The claimant has not returned to any employment since the injury and has not looked for employment.
Dr. Martinez opined that the claimant cannot return to any employment due to his psychological disability. Based on the opinions of Dr. Martinez, vocational rehabilitation expert, Daniel Best (Best), testified the claimant is unemployable.
The ALJ found that Colorado Brake Supply Inc., (Colorado Brake) has offered to reemploy the claimant at modified employment. Crediting the opinions of Dr. Aguilar, Dr. Olsen and vocational rehabilitation expert, Gail Pickett (Pickett), the ALJ found that the modified employment is a bona fide job offer within the claimant’s medical restrictions. Consequently, the ALJ determined the claimant failed to prove he is permanently and totally disabled. In view of this finding the ALJ further determined the respondents were not required to prove that the claimant is “capable of rehabilitation.”
Relying on the opinions of Dr. Martinez and Best, the claimant contends he proved he is permanently and totally disabled, and therefore, he argues the ALJ erred in finding the respondents were not required to refute the claim by establishing the requirements of § 8-42-111(3), C.R.S. 1999.
We agree with the claimant that the ALJ misapplied the burden of proof required by § 8-40-102(16.5)(a), C.R.S. 1999. However, we perceive no reversible error.
The principles of statutory construction require that statutes be construed to give effect to the legislative intent Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). To ascertain the legislative intent, we must first look to the statutory language and afford words their plain and ordinary meaning. Christie v. Coors Transportation Co., 933 P.2d 1330
(Colo. 1997). Furthermore, where the statute is part of a statutory scheme on a particular subject matter we must attempt to harmonize the statutes to give effect to the legislative intent of both statutes. Bowland v. Industrial Claim Appeals Office, 984 P.2d 660 (Colo.App. 1998).
Section 8-40-201(16.5)(a), provides that a claimant is permanently and totally disabled if the claimant is “unable to earn any wages in the same or other employment.” Christie v. Coors Transportation Co., supra. Section 8-40-201(16.5)(a) also expressly provides that the claimant bears the burden to prove permanent total disability.
Section 8-42-111(3), C.R.S. 1999, provides in pertinent part that permanent total disability benefits shall not be awarded to:
“A disabled employee capable of rehabilitation which would enable the employee to earn any wages in the same or other employment, who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation. . . .”
The determination of whether the claimant permanently and totally disabled is a factual determination to be made by the ALJ based upon consideration of a number of “human factors.” Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). The crucial issue is whether employment is “reasonably available to the claimant under his particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). However, this is separate and distinct question from whether the claimant has refused a specific offer of employment within the meaning of § 8-42-111(3). This is true because § 8-42-111(3) constitutes an “affirmative defense” to the respondents’ liability for permanent total disability benefits, which is only applicable if the claimant establishes a prima facie case of permanent total disability. Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991). Once established, the burden of proof shifts to the respondents to avoid liability by proving the claimant has failed to accept a specific offer of employment or vocational rehabilitation. Cf. Monfort, Inc. v. Gonzales, 855 P.2d 19 (Colo.App. 1993).
Section 8-40-201(16.5)(a) and the current version of §8-42-111(3) were enacted in Senate Bill 91-218. (See 1991 Colo. Sess. Laws, ch. 219 at 1291). If the General Assembly had intended that evidence of the claimant’s failure to accept a particular offer of modified employment automatically precludes the claimant from establishing a prima facie case of permanent total disability, it could have enacted such language in §8-40-201(16.5)(a), and there would have been no need to create the affirmative defense provided by § 8-42-111(3). It did not do so and we may not read absent provisions into § 8-40-201(16.5)(a) See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985).
It follows that the ALJ misapplied the law in concluding that the existence of a single modified job offer precluded the claimant from establishing a prima facie case of permanent total disability. Nevertheless, we conclude the ALJ did not err in denying permanent total disability benefits.
Assuming, arguendo, the claimant established a prima facie case of permanent total disability, the burden of proof shifted to the respondents to prove the claimant refused an offer of employment. Here, the ALJ found the claimant refused a bona fide offer of employment which the claimant is physically capable of performing. The ALJ’s finding is supported by substantial, albeit conflicting, evidence in the record and, therefore, must be upheld. Best-Way Concrete Co. v. Baumgartner, supra.
Deborah Ardelt (Ardelt) the employer’s witness, testified that the employer is willing to reemploy the claimant in the job of stripping machine operator, and will “do what it takes to get [the claimant] back to work, be it gradual, part-time, or full-time.” (Tr. pp. 83, 87). The claimant admitted he knew Colorado Brake was offering to take him back in a modified job. (Tr. p. 22). Furthermore, after reviewing the job analysis of the offered employment, Dr. Olsen and Pickett opined that the job duties are within the claimant’s physical limitations. Under these circumstances, the ALJ reasonably inferred that Colorado Brake has offered the claimant a specific job within his physical abilities.
Moreover, the record supports the ALJ’s implicit determination that the claimant has refused the offer of modified employment. Consequently, ALJ’s findings compel the conclusion the respondents sustained their burden to prove application of §8-42-111(3).
Accordingly, the ALJ did not err in denying permanent total disability benefits and the ALJ’s erroneous application of §8-40-201(16.5)(a) is harmless. See § 8-43-310 C.R.S. 1999; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
The claimant’s remaining arguments have been considered and do not alter our conclusions. There is no requirement that employment be offered in writing to permanently totally disabled workers. See Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997); compare § 8-42-105(3)(d)(I), C.R.S. 1999. Therefore, evidence that Colorado Brake did not make a written offer of employment did not preclude the ALJ from finding that bona fide employment was offered.
As to the claimant’s psychological disability, Dr. Aguilar and Dr. Martinez expressed conflicting opinions. Within his sole prerogative, the ALJ resolved the conflict in favor of Dr. Aguilar who did not restrict the claimant from all work and recommended a gradual return to employment. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). We may not reweigh the evidence on appeal, or substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the medical evidence, and decline the claimant’s invitation to do so. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Further, there was a direct conflict in the vocational evidence. Best admitted there are a “handful of selected jobs” the claimant is capable of performing and that there is an “opportunity for [the claimant] to return to work” based on his medical restrictions alone. (Tr. pp. 72, 79). However, he disqualified the claimant from all employment based on Dr. Martinez’ opinions concerning the claimant’s fragile mental status. (Tr. p. 75). Dr. Martinez did not review the job analysis of the modified employment offer, and therefore, the ALJ rejected the opinions of Dr. Martinez and Best. Instead, the ALJ credited Pickett’s testimony that the claimant is capable of earning wages in the modified job offered by Colorado Brake.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 23, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 9, 1999 to the following parties:
Manuel Martinez, 4425 Logan, Denver, CO 80205
Colorado Brake Supply, Inc., 5001 E. 52nd Ave., Commerce City, CO 80022
Beatrice Calvert, Business Insurance Companies, P.O. Box 101630, Denver, CO 80250
Robert P. Koehler, Esq., 681 Grant St., Denver, CO 80203 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy