W.C. No. 4-216-579Industrial Claim Appeals Office.
June 7, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Henk (ALJ) insofar as it ordered them to pay temporary total disability benefits from February 27, 1995 and continuing. We affirm.
The ALJ’s findings of fact may be summarized as follows. The claimant sustained an injury in June 1994 which precluded her from performing her regular employment. At the time of the injury, the claimant worked in a restaurant approximately two blocks from her home in Colorado City, Colorado.
In February 1995, the respondents offered the claimant a “light duty job which was within her restrictions.” However, this job was in Pueblo, Colorado, and would require the claimant to travel approximately fifty-five miles round-trip per day.
The respondents argued that the claimant’s refusal to accept the Pueblo job entitled them to terminate her temporary disability benefits under § 8-42-105(3)(d), C.R.S. (1995 Cum. Supp). However, the ALJ rejected the argument concluding that the offer of light duty was not “reasonable” under the totality of the circumstances. In support of this determination, the ALJ stated the following:
“In the instant case, at the time of the light duty job offer, the Claimant was afraid to drive an automobile, did not have access to an automobile, was not required according to the Claimant’s testimony to own or have regular use of a vehicle, did not have public transportation available to her which would have transported her to the light duty job and the light duty job was 55 miles round-trip from her home.”
On review, the respondents contend that the ALJ erred in failing to disqualify the claimant from receipt of temporary disability benefits under § 8-42-105(3)(d). Relying on McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995), the respondents argue that the restrictions on the claimant’s ability to travel cannot act as a barrier to application of the statute. We reject the respondents’ position.
Section 8-42-105(3)(d) provides that temporary total disability benefits shall continue until:
“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.”
In interpreting this statute we adhere to the well established rule that statutes should be interpreted in a manner so as to effect their legislative intent. If the legislative intent is unclear from the precise wording of the statute, we may resort to rules of statutory construction, including the principle that we must construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts. Henderson v. RSI Inc., 824 P.2d 91 (Colo.App. 1991). Further, it is presumed that the General Assembly intends a just and reasonable result which is feasible of execution. Section 2-4-201(1)(c) (d), C.R.S. (1980 Repl. Vol. 1B).
Section 8-42-105(3)(d) creates no explicit prescriptions or restrictions on the type of “modified employment” which may be offered, other than that the employment be approved by the attending physician. Cf. McKinley v. Bronco Billy’s, supra. However, we agree with the ALJ that the General Assembly could not have intended § 8-42-105(3)(d) to authorize the termination of temporary disability benefits when respondents offer employment which the claimant cannot, as a practical matter, accept.
The purpose of temporary disability benefits is to compensate for actual loss of wages during the time the claimant is temporarily unable to work because of the injury. PDM Molding, Inc. v. Standberg, 898 P.2d 542
(Colo. 1995). Although the apparent legislative objective of §8-42-105(3)(d) is to terminate temporary disability benefits when claimants choose not to accept employment within restrictions established by their treating physician, it would be absurd to suggest that the statute was designed to penalize claimant’s who, for reasons beyond their control, are unable to accept the proffered employment.
Under these circumstances, we agree with the ALJ that § 8-42-105(3)(d) implies that “modified employment” offered to the claimant must be reasonably available under an objective standard. Conversely, the standard is not one of “reasonableness” as evaluated from the claimant’s subjective point of view.
We do not view McKinley v. Bronco Billy’s, supra, or our holding i Anglada v. Clara Corp., W.C. No. 4-143-083, February 13, 1995, as authority to the contrary. Both of these cases concern the question of whether medical restrictions which impair the claimant’s ability to travel to the regular job site, but not the claimant’s ability to perform the regular or modified duties, preclude an award of temporary disability benefits under § 8-42-105(3)(d). Neither case dealt directly with the question of whether an offer of modified employment within the claimant’s restrictions can be so remote or impractical as to not constitute a legitimate offer within the meaning of § 8-42-105(3)(d). Moreover McKinley was concerned with a release to regular employment, not modified employment.
The respondents also cite cases where we have stated that, in applying § 8-42-105(3)(d), we will not inquire into the “reasonableness” of the claimant’s refusal to accept an offer of employment. E.g., Paige v. Navajo Shippers, Inc., W.C. No. 4-202-467, June 19, 1995, aff’d. Paige v. Navajo Shippers, Inc., W.C. No. 95CA1168, April 4, 1996 (not selected for publication); Lappin v. Front Range Roofing Systems, Inc.,
W.C. No. 4-203-589, March 27, 1995. However, we interpret these cases as holding that it is not proper for an ALJ to consider the “reasonableness” of a refusal to accept employment from the claimant’s subjective point of view. These cases should not be read as prohibiting an ALJ from determining, as a matter fact, that a particular offer of employment cannot reasonably be accepted from an objective point of view. In fact, the Court of Appeals appears to have reserved determination of this issue in the unpublished decision of Paige v. Navajo Shippers, Inc., supra.
Applying these principles here, we conclude that the evidence supports the ALJ’s determination that the offer of modified employment was not sufficient to trigger termination of benefits under § 8-42-105(3)(d). The factors cited by the ALJ establish that the claimant could not reasonably be expected to perform the modified employment considering its distance from her home, and the unavailability of either public or private transportation. Although the evidence might have supported a contrary determination, we are not free to substitute our judgment for that of the ALJ on this factual issue. Section 8-43-301(8), C.R.S. (1995 Cum. Supp) May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order, dated August 7, 1995, 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 7, 1996 to the following parties:
Marilyn Ragan, P.O. Box 19434, Colorado City, CO 81019
Temp Force of Pueblo, Inc., 304 W. 4th St., Pueblo, CO 81003-3211
Colorado Compensation Insurance Authority, Attn: Carolyn Boyd, Esq. (Interagency Mail)
William C. Jolliffe, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
By: _______________________