W.C. No. 4-142-309Industrial Claim Appeals Office.
June 3, 1996
FINAL ORDER
The respondents seek review of a Corrected Supplemental Order of Administrative Law Judge Stuber (ALJ) which awarded the claimant permanent total disability benefits. We affirm.
The claimant sustained a serious closed head injury in August 1992. Citing the opinions of the treating physician, the claimant’s treating psychologist, and the claimant’s speech pathologist the ALJ found that the residual effects of the brain injury have left the claimant permanently and totally disabled because he is incapable of earning any wages.
In so doing, the ALJ rejected the respondents’ assertion that permanent total disability benefits should be denied under § 8-42-111(3), C.R.S. (1995 Cum. Supp.) because the claimant refused an offer of vocational rehabilitation. Relying on the opinions of the claimant’s medical and vocational experts, the ALJ found that the claimant is not capable of rehabilitation, and in fact could suffer greater injury if further rehabilitation is attempted.
I.
On review, the respondents contend that the “weight of the evidence” does not support the ALJ’s finding that the claimant is permanently and totally disabled. In support of this proposition, the respondents point out that the claimant has not undergone any actual “work trials” since May 1994. Further, they point out that there is evidence that the claimant is authorized to manage his own finances and pay his own taxes. Finally, the respondents suggest that the claimant’s treating physician, Dr. Weintraub, interfered with an attempt at vocational rehabilitation by opining that the claimant is permanently and totally disabled. We reject these arguments.
Under § 8-40-201(16.5)(a), C.R.S. (1995 Cum. Supp.), a claimant is permanently and totally disabled if he is “unable to earn any wages in the same or other employment.” In determining whether a claimant is permanently totally disabled, the ALJ may consider a wide range of factors bearing on the claimant’s ability to earn wages. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Further, because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Christie v. Coors Transportation Co., ___ P.2d ___ (Colo.App. No. 95CA0581, December 7, 1995). In applying this standard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Christie v. Coors Transportation Co., supra.
The respondents’ arguments notwithstanding, the record contains substantial evidence that the claimant is permanently and totally disabled. This finding is supported by the testimony of the claimant’s treating psychologist, his speech therapist, the reports of Dr. Wientraub, Dr. Davis, and vocational expert Daniel Best. Although some evidence in the record, including that cited by the respondents, might have supported a contrary finding and conclusion, we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the weight to be assigned the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The respondents’ next contention is that the ALJ erred in awarding permanent total disability benefits because the claimant declined their pre-hearing offer of vocational rehabilitation. We disagree.
Section 8-42-111(3) provides as follows:
“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 vocational rehabilitation paid for by the employer shall not be awarded permanent total disability.”
We previously held that § 8-42-111(3) constitutes an “affirmative defense” which requires the respondents to establish that the claimant is “capable of rehabilitation” and has “refused” an offer of rehabilitation which would enable him to earn wages. See Mason v. Sinclair Bowl,
W.C. No. 3-962-083, February 4, 1994; Remek v. Adams County School District 50, W.C. No. 3-938-393, September 3, 1993. The statute is an affirmative defense because it is only applicable once the claimant establishes a prima facie
case of permanent total disability. See Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991). Once a prima facie case is established, the respondents carry the burden of proof to avoid liability by proving all elements of the defense. See Monfort, Inc. v. Gonzalez, 855 P.2d 19
(Colo.App. 1992).
Here, the ALJ made a factual determination that the respondents failed to prove the affirmative defense. This determination is amply supported by evidence that the claimant’s attempt to return to work for the respondent-employer was a failure. Further, the ALJ’s finding is supported by medical evidence that any attempt to return the claimant to employment could result in greater psychological deterioration which could be harmful to the claimant.
Thus, the record supports the determination that the claimant is not “capable of rehabilitation” to employment which would allow him to earn a wage. Therefore, the claimant’s refusal to accept the respondents’ offer of rehabilitation is of no consequence under § 8-42-111(3). Moreover, the respondents’ “policy” argument that claimants should be required to pursue rehabilitation prior to an award of permanent total disability benefits is a matter for the General Assembly, not the courts.
III.
The respondents’ final contention is that the ALJ erred in ordering that the claimant’s average weekly wage be increased in accordance with the “escalator clause” found at § 8-42-111(4), C.R.S. (1995 Cum. Supp.). The respondents reason that § 8-42-111(4) is inextricably linked with §8-42-111(5), C.R.S. (1995 Cum. Supp.), which was declared unconstitutional in Industrial Claim Appeals Office v. Romero, 912 P.2d 62(Colo. 1996).
However, in Montezuma Well Service, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0793, May 2, 1996) the court of appeals rejected an identical argument. We are bound by published opinions of the court of appeals. See C.A.R. 35 (f). Therefore, the ALJ did not err in providing for escalation of the claimant’s benefits.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Supplemental Order dated March 12, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed June 3, 1996 to the following parties:
Michael Panning, 1521 S. Biscay Ct., Aurora, CO 80017
L.D. Brinkman Co., 14303-A E. Moncrief Pl., Aurora, CO 80011
National Union Fire Ins., Attn: Ken Nelson, % American International Adj. Co., P.O. Box 32130
Phoenix, AZ 85018
Joel S. Babcock, Esq. James B. Fairbanks, Esq., 400 S. Colorado Blvd., #700, P.O. Box 22833, Denver, CO 80222 (For the Respondents)
Michael L. Galvez, Esq. Salvador J. Peralta, Esq., 1625 Broadway, Ste. 1520, Denver, CO 80202
(For the Claimant)
By: ____________________