W.C. No. 4-649-298.Industrial Claim Appeals Office.
June 7, 2006.
FINAL ORDER
The respondents seek review of an order dated January 11, 2006 of Administrative Law Judge Henk (ALJ) that determined the evidence did not support a finding that the claimant received an offer of modified work. We affirm.
The claimant sustained a compensable injury to his knee on April 24, 2005. He was rendered temporarily and totally disabled on April 26, 2005. On June 2, 2005 the employer sent the claimant a certified letter offering him modified work within his restrictions. This offer was approved by an authorized treating physician. The offer was sent to the address as noted on the claimant’s employment application (old address). Respondents Submissions, unnumbered. The worker’s claim for compensation filed May 5, 2005 had a different address (new address). Exhibit 1.
The ALJ determined that the job offer was sent to the claimant’s old address in spite of the fact that the employer was notified on May 5, 2005, by the claim for compensation, of the claimant’s new address. The ALJ concluded that the evidence did not support a finding that the claimant received the job offer, therefore the respondents did not offer the claimant a job with his work restrictions and the claimant was entitled to temporary total disability from April 26, 2005 continuing until terminated pursuant to statute.
On review, the respondents contend the record lacks substantial evidence to support the ALJ’s finding that the respondent’s were notified of the claimant’s new address by the May 5, 2005 claim for compensation. In support of this contention, the respondents assert there is no evidence that the claim for compensation was mailed or provided to the employer. We are not persuaded to disturb the ALJ’s decision.
We see no reason to depart from our previous determinations that termination of temporary disability benefits pursuant to §8-42-105(3)(d)(I) presupposes that the claimant received “actual notice” of the offer of modified employment prior to the time the job is to commence. Ortega v. Aspen Skiing Company
W.C. No. 4-390-893 (July 25, 2001); Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998). Our rationale for this conclusion is that the statutory term “offer” connotes a “manifestation of willingness to enter into a bargain” for employment. Because the claimant cannot conclude the contract for employment by appearing for work until he receives actual knowledge of the employer’s willingness to enter into the contract, the statute requires more than mere “constructive notice” of the employer’s offer. 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).
Here, although it is undisputed the offer of employment was sent, the claimant denies actual receipt. The issue of whether the claimant actually received the job offer is factual in nature. We must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
The job offer is dated June 2, 2005. The claimant testified that he contacted his supervisor around the first of June to see if there was anything he could do so he could come back to work. He was told that there was nothing. Tr. at 35. In addition the claimant testified that he had not spoken to anyone at the employer since June 1. Tr. at 36. In our opinion the ALJ made a plausible inference from the record that the claimant did not receive the offer of employment. We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 11, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Orlando Robinson, Denver, CO, Youth Track, Denver, CO, Laurie Iverson, Park City, UT, Janice M. Greening, Englewood, CO, (For Claimant).
M. Frances McCracken, Esq., Denver, CO, (For Respondents).