W.C. No. 4-565-546Industrial Claim Appeals Office.
February 13, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which held they were not entitled to terminate the claimant’s temporary total disability (TTD) benefits for failure to begin modified employment as provided in § 8-42-105(3)(d)(I), C.R.S. 2003. We affirm.
The relevant facts are largely undisputed. The claimant sustained a compensable injury to her wrist on December 13, 2002. The claimant was placed on medical restrictions which precluded her from performing her regular duties as a grocery clerk. Consequently, she was terminated from employment on or about December 20, 2002.
On January 21, 2003, the employer’s president authored a letter offering the claimant light duty work within the restrictions established by the treating physician. The letter states the “light duty will begin on 1/19/2003.” The letter was sent to the claimant by certified mail on January 24, 2003, and the claimant admittedly received it on January 25, 2003. The claimant never returned to work for the employer.
On January 27, 2003, the claimant was examined by the treating physician. The office note from that visit states the claimant told the doctor that “she was fired, obtained a lawyer, was rehired but has not returned to work yet as she is doing child care until her mother returns from Mexico.” A note from a nurse case manager dated February 3, 2003, contains a similar notation.
The ALJ found the claimant sustained a compensable injury and was entitled to TTD benefits commencing December 13, 2002. The respondents do not challenge these determinations.
The ALJ also rejected the respondents’ argument that the right to TTD benefits terminated no later than February 3, 2003, because the claimant failed to begin the modified employment as required by §8-42-105(3)(d)(I). The ALJ ruled that the written offer of modified employment did not comply with the statute because the commencement date for the job occurred prior to the date the offer was delivered to the claimant. The ALJ reasoned that it was impossible for the claimant to accept the offer and the claimant had no statutory duty to “clarify the offer of modified duty.”
On review, the respondents contend the ALJ erred in concluding that the written offer of modified employment did not comply with the statute because, as reflected in the doctor’s and case manager’s notes, the claimant stated that she planned to return to work. The respondents also point out that the employer’s president gave “uncontroverted testimony” that if the claimant had returned to work he would have employed her. We disagree with the respondents’ arguments.
Section 8-42-105(3)(d)(I) provides that TTD benefits shall continue until the attending physician gives 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.” When interpreting this statute we should seek to effectuate the legislative intent. To that end, we should give the words in the statute their plain and ordinary meanings unless the result is absurd. Further, we should read the statute so as to give consistent, sensible, and harmonious meaning to all its parts. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002).
In our opinion, the statutory term “offered” is used in the ordinary contractual sense and refers to the “manifestation of the employer’s willingness to enter into an employment relationship with the offeree upon the offeree’s assent to the offer.” Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998). Thus, in the Simington case we held that a written offer of employment which was not delivered to the claimant until after the date specified for the commencement of work expired did not constitute a valid “offer” under subsection (3)(d)(I) because the claimant did not timely receive notice of the right to accept the offer by beginning work. See also, Bekoff v. Derryberry’s, Inc., W.C. No. 4-310-021 (June 20, 1997) (where written offer of employment did not specify a time for commencement of work the offer was insufficient to terminate TTD benefits because the claimant was left without the power to conclude the contract by beginning employment on a specified date).
Here, the “offer” was to commence work on January 19, and that date had already passed by the time the employer’s January 21 letter was delivered to the claimant. Thus, the letter did not confer the power of acceptance on the claimant by affording her the ability to cement the contract of employment by beginning work at a time certain. We agree with the ALJ that the statute should not be construed in a manner so as to require the claimant to do the impossible in order to avoid termination of TTD benefits. See Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003).
Moreover, we are unpersuaded by the respondents’ argument that the statute permits the ALJ to go outside the four corners of the written offer and, based on the ALJ’s assessment of the evidence and the equities, to simply assign a date when the offer should be treated as expired and terminate TTD benefits because the claimant has “failed to begin” modified employment. Section 8-42-105(3)(d)(I) is part of an overall statutory scheme designed to reduce litigation concerning the duration of TTD benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995). If the ALJ is permitted to go outside the specific provisions of the written offer to determine how long an offer of employment remains open, litigation would be perpetuated, not reduced. Even if the claimant purports to accept modified employment after the acceptance date specified in the written offer, the respondents could argue the offer had already expired and the claimant’s acceptance was, under the circumstances, untimely. The respondents’ proposed interpretation is inconsistent with the legislative intent of the statute.
For the same reasons, it is irrelevant for purposes of subsection (3)(d)(I) whether the claimant and the employer’s president subjectively believed the claimant could return to employment after January 19. If the claimant had offered to return, and the employer had given her employment, TTD would have terminated by operation of § 8-43-103(3)(b), C.R.S. 2003. However, termination of TTD benefits under subsection (3)(b) is a different issue than
whether the written offer of employment was sufficient to terminate TTD benefits under subsection (3)(d)(I).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 23, 2003, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on February 13, 2004 by A. Pendroy.
Eva Sigala, 8719 S. Highway 285, Apt. C-13, Alamosa, CO 81101
Atencio’s Market, 802 State Ave., Alamosa, CO 81101
Gwen Brightwell, Royal SunAlliance, 9800 S. Meridian Blvd., Englewood, CO 80112
Stephen M. Johnston, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)