W.C. No. 4-130-402Industrial Claim Appeals Office.
January 25, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) insofar as it required them to pay temporary total disability benefits from April 17, 1993 to November 28, 1994. We affirm.
The essential facts are undisputed. The claimant suffered a compensable injury in 1992 while employed by Carefree of Colorado (Carefree). The respondents admitted liability for temporary disability benefits, and the claimant subsequently returned to modified work at Carefree. The claimant continued this employment until April 16, 1993, when Carefree no longer accommodated the claimant’s medical restrictions.
On December 1, 1992, the respondents filed a Final Admission of Liability based upon Dr. Ferguson’s report that the claimant reached maximum medical improvement (MMI) on September 15, 1992, and sustained permanent partial disability of three percent of the upper extremity.
In 1994, the respondents voluntarily reopened the claim. Thereafter, the claimant applied for a hearing on her request for permanent total disability benefits. On November 17, 1994, the respondents offered vocational rehabilitation in the form of “job placement assistance.” The offer was accepted by the claimant on November 28, 1994. The claimant then withdrew her application for a hearing on the issue of permanent total disability, and requested temporary disability benefits from April 16, 1993.
The ALJ determined that the claimant is entitled to temporary total disability benefits from April 16, 1993, and continuing through November 28, 1994. In support of his determination, the ALJ relied upon Gerber v. Can-USA Construction, Inc., 783 P.2d 269 (Colo. 1989), where an injured worker was awarded temporary disability benefits from the date of MMI to the date the injured worker commenced a vocational rehabilitation program as provided by former § 8-49-101 C.R.S. (1986 Repl. Vol. 3B) [repealed 1987 Colo. Sess. Laws ch. 51 at 387 effective July 1, 1987]. The ALJ’s determination was also based upon his interpretation of § 8-42-105(1), C.R.S. (1995 Cum. Supp.), which states that:
“[E]xcept where vocational rehabilitation is offered and accepted as provided in section 8-42-111(3), temporary total disability benefits payments shall cease upon the occurrence of any of the events enumerated in subsection (3) of this section.”
On review, the respondents concede liability for temporary total disability benefits commencing November 28, 1994. However, the respondents contend that the ALJ misconstrued § 8-42-105(1) in awarding temporary total disability benefits retroactive to April 16, 1993. The respondents argue that § 8-42-105(1) only entitles the claimant to additional temporary disability benefits after the date an offer of vocational rehabilitation is accepted. We disagree.
I.
The rules of statutory construction require that statutes are to be construed in such manner as to further the legislative intent for which they were enacted. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). To determine the legislative intent, we must first examine the language of the statute, and give the words their plain and ordinary meaning. Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo. 1991). Where the statutory language is clear and unambiguous, the plain meaning of the words is binding and it is unnecessary to resort to the rules of statutory interpretation. Husson v. Meeker, 812 P.2d 731 (Colo.App. 1991). Further, if the statutory language is reasonably subject to more than one interpretation, the entire statutory scheme must be construed in a manner which gives consistent, harmonious and sensible effect to all of its provisions. Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), cert. granted, October 30, 1995.
An injured worker is entitled to temporary total disability benefits if an industrial injury precludes the worker from performing her regular employment for more than three days, no modified employment is offered and the claimant suffers a wage loss. Section 8-42-103(1), C.R.S. (1995 Cum. Supp.); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Section 8-42-105(3), C.R.S. (1995 Cum. Supp.) provides that temporary total disability “shall continue” until the occurrence of any one of the events enumerated in subsections(a)-(d). Subsection 8-42-105(3)(a) provides that temporary total disability terminate when the claimant reaches MMI Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. Nos. 93CA1118, 93CA1392, June 15, 1995). It follows that under § 8-42-105(1), a determination that the claimant has reached MMI triggers the termination of temporary total disability benefits “except” where vocational rehabilitation is offered and accepted.
Webster’s Seventh New Collegiate Dictionary (1963) defines the term “except” to mean “with the exclusion or exception of.” Similarly, Black’s Law Dictionary (1968) defines “except” to mean “exclude from an enumeration.” As applied to § 8-42-105(1), temporary total disability benefits terminate upon MMI excluding those circumstances involving an offer and acceptance of vocational rehabilitation. Because the plain meaning of the language does not create an absurd result it is binding. Therefore, we understand § 8-42-105(1) to provide that, where there is an offer and acceptance of vocational rehabilitation, the claim is excluded from the operation of § 8-42-105(3)(a), and the attainment of MMI does not trigger the termination of the claimant’s entitlement to temporary total disability benefits.
Consequently, under the facts of this claim, Dr. Ferguson’s September 15, 1992 determination of MMI did not trigger the termination temporary total disability benefits because there was a subsequent offer and acceptance of vocational rehabilitation. Therefore, the respondents were required to continue paying temporary total disability benefits as long as the claimant suffered a wage loss as a result of her temporary disability from the industrial injury.
There is no assertion that the claimant sustained a wage loss during the time Carefree provided modified duties. However, the ALJ found that the claimant was fired by Carefree in April 1993 due to her inability to perform her regular duties. The ALJ also found that no other work within the claimant’s restrictions was offered. Further, the ALJ determined that the claimant has not returned to work since April 16, 1993, and is unable to do so without vocational assistance. Consequently, the ALJ’s findings support a conclusion that the claimant was temporarily totally disabled commencing April 17, 1993. PDM Molding, Inc. v. Stanberg, supra. Therefore, the ALJ did not err in ordering the respondents to reinstate temporary disability benefits commencing April 17, 1993.
In reaching our conclusion we reject the respondents’ contention that our construction of § 8-42-105(1) is inconsistent with § 8-42-107(8), C.R.S. (1995 Cum. Supp.), and the Rules of Procedure which require that permanent partial disability be determined and paid upon a determination of MMI. Because the “offer and acceptance” of vocational rehabilitation operates to exclude the claim from the consequences of § 8-42-105(3)(a), the determination of MMI did not invoke the claimant’s right, if any, to permanent partial disability benefits. To the contrary, the claimant remained temporarily disabled so long as vocational rehabilitation continued. Compare Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16
(Colo.App. 1995); Golden Animal Hospital v. Horton, 897 P.2d 833. Accordingly, the Rules of Procedure and the provisions of § 8-42-107(8) were not invoked upon Dr. Ferguson’s determination of MMI.
Nevertheless, we are mindful of the fact that the respondents did
admit liability and pay permanent partial disability benefits in this matter. However, the respondents do not contend that the claimant has sustained medical impairment of less than 3 percent of the upper extremity, and have not sought to withdraw their admission of liability for permanent partial disability benefits. Under these circumstances, the claimant is not precluded from receiving concurrent temporary total disability and permanent partial disability benefits. Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994), cert. denied January 18, 1995. However, an offset might well be appropriate should the claimant ultimately be found permanently and totally disabled.
Furthermore, we are not persuaded that our construction of §8-42-105(1) precludes a harmonious reading of that part of § 8-42-105(1) which provides that any party may terminate vocational rehabilitation, in which case it:
“shall be the same as if vocational rehabilitation had never been offered and accepted, and the employer or insurance carrier shall not be entitled to recover any temporary total disability benefits paid during the period that vocational rehabilitation was provided.”
The respondents contend that the legislature could not have intended to allow them to recover temporary total disability benefits paid up to the date vocational rehabilitation begins, but not during the period vocational rehabilitation was actually provided.
To the contrary, we believe this statutory language reflects a legislative intent to allow the insurer to recover any overpayment of temporary disability benefits as a result of the termination of a vocational rehabilitation program, except for benefits paid during the time the claimant was actually engaged in the program. This intent is consistent with the fact that during the time the claimant is actually engaged in the vocational rehabilitation program, the claimant is theoretically precluded from performing employment. Therefore, if the insurer were allowed to recover temporary disability benefits paid during an unsuccessful vocational rehabilitation the claimant would suffer a double loss. Specifically, the claimant would be subject to the recovery of overpaid temporary disability benefits during a time when the claimant was precluded from earning wages due to his involvement in the vocational program.
In contrast, if the vocational rehabilitation is terminated and treated as if it had never been offered, the claimant’s temporary disability benefits would terminate in accordance with § 8-42-105(3)(a)-(d) and thus, the claimant would be bound by the prior determination of MMI. Consequently, the respondents would overpaid temporary total disability benefits during a period when the claimant is limited to permanent disability benefits. See Golden Animal Hospital v. Horton, supra. In this event, it would be unfair not to allow the insurer to recover overpaid temporary disability benefits.
As a result of our conclusion that the ALJ did not err in ordering the respondents to pay temporary total disability benefits for the period April 17, 1993 to November 28, 1994, we need not determine whether the ALJ’s order is supported by Gerber v. Can-USA Construction, Inc., supra. See Skinner v. Industrial Commission, 152 Colo. 97, 381 P.2d 253 (1963) (it is proper to affirm where the result is correct even if based on incorrect reasoning). Therefore, we do not consider the respondents’ argument that the ALJ improperly relied upon Gerber.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 26, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed January 25, 1996 to the following parties:
Chanh Phaimany, 4220 W. 70th Place, No. D, Westminster, CO 80030
Carefree of Colorado, 2145 W. 6th Ave., Broomfield, CO 80020-1656
National Indemnity Co., Attn: Michael A. Fortune, 4016 Farnam St., Omaha, NE 68131
Gallagher Bassett Services, Inc., 5655 S. Yosemite, Suite 212, Englewood, CO 80111
James A. May, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209-3014 (For the Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico, Ste. 1000, Denver, CO 80210 (For the Respondents)
BY: _______________________