W.C. No. 4-519-781Industrial Claim Appeals Office.
July 11, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded temporary disability benefits after October 26, 2001. The respondents contend the award is barred by §8-42-105(3)(d)(I), C.R.S. 2001. We disagree and, therefore, affirm.
On September 18, 2001, the claimant, who is a Colorado resident, suffered admitted injuries. On October 25, 2001, Dr. Bergland, an authorized treating physician, released the claimant to modified work which precluded the claimant from lifting, pushing or pulling over 15 pounds bending, twisting, turning and sitting more than 30 minutes at a time. Dr. Bergland later recommended the claimant avoid “long-distance travel.”
On October 26, 2001, the respondents made a written offer of modified employment to be performed in Sioux City, Nebraska. The written offer instructed the claimant to contact the employer about the offer by 1 p.m. on October 29. The claimant received the written offer on October 29, 2001, but did not begin the job.
Section 8-42-105(3)(d)(I) provides that temporary disability benefits terminate when 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.”
The ALJ found the claimant established his entitlement to temporary disability benefits commencing October 22, 2001. Further, the ALJ found the claimant did not receive a written offer of modified employment within the meaning of 8-42-105(3)(d)(I), because Dr. Bergland precluded the claimant from travel to Nebraska. The ALJ also found the claimant did not receive the written offer in sufficient time to accept the employment. Consequently, the ALJ determined the respondents failed to prove grounds for the termination of temporary disability benefits effective October 26, 2001.
On review the respondents point out that the modified employment which was offered to the claimant did not require driving and that the respondents offered to provide transportation to Sioux City, Nebraska. Therefore, relying on McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995), the respondents argue the modified employment did not exceed the claimant’s medical restrictions and the ALJ erred in finding the claimant’s failure to begin the modified employment did not trigger the termination of temporary disability benefits.
We have previously held that § 8-42-105(3)(d) does not contemplate the termination of temporary disability benefits when the respondents offer employment which the claimant cannot, as a practical matter, accept. Kabis v. Marriott School Services, W.C. No. 4-270-599 (August 24, 1998); Simington v. Assured Transportation Delivery,
W.C. No. 4-318-208 (March 19, 1998); Belanger v. Keystone Resorts, Inc. W.C. No. 4-250-114
(October 9, 1997); Ragan v. Temp Force, W.C. No. 4-216-579
(June 7, 1996). Rather, we concluded the modified employment must be reasonably available to the claimant under an “objective standard.” We adhere to our previous conclusions.
Here, the authorized treating physician selected by the respondents restricted the claimant from long distance travel. Therefore, regardless of whether the respondents would have made travel arrangements, the claimant could not reasonably be expected to accept modified employment which required long distance travel to reach the job site. Consequently, the ALJ did not err in finding the claimant’s refusal to begin the employment failed to trigger the termination of temporary disability benefits.
Furthermore, the respondents reliance on McKinley v. Bronco Billy’s supra, is misplaced. The claimant in McKinley suffered an eye injury. The court held temporary total disability benefits automatically terminated when the authorized treating physician released the claimant to regular work and, therefore, the claimant’s complaints that vision problems resulting from the injury made it difficult for her to drive to her evening work-shift were immaterial.
McKinley applied § 8-42-105(3)(c), which governs the termination of temporary disability benefits when the claimant is released to “regular employment.” That provision, unlike § 8-42-105(3)(d), places no discretion in the hands of employer concerning the circumstances surrounding an offer of employment. Thus, we believe subsection (3)(d) is distinguishable from (3)(c) and necessarily imports a standard of reasonableness which precludes an employer from terminating benefits based on the claimant’s failure to commence employment which is impractical.
Here, unlike McKinley, the claimant was not released to regular employment. To the contrary, Dr. Bergland imposed several restrictions. Thus, the issue was whether the modified employment offer fell within the claimant’s medical restrictions. Regardless of whether the modified employment required the claimant to drive, it inherently required the claimant to “travel” from Colorado to Nebraska. Because Dr. Bergland recommended the claimant not “travel long-distance,” which included travel from Colorado to Nebraska, the ALJ could reasonably infer the offer was not objectively reasonable. (See Dr. Bergland November 5, 2001). The inference is buttressed by the ALJ’s undisputed finding that the offer was not received in sufficient time for the claimant to respond. See Simington v. Assured Transportation Delivery, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 6, 2002, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 11, 2002 to the following parties:
Michael Schwanz, 6575 Mulberry Rd., Calhan, CO 80808
Mike Ratkiewicz, Artex, Inc., 4700 Dakota Avenue South, Sioux City, N.E. 68776
Heather Bartlett-Mogg, Liberty Mutual Insurance Company, 10770 E. Briarwood Ave., #200, Englewood, CO 80112
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80903 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado