W.C. No. 4-210-107Industrial Claim Appeals Office.
February 22, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ) which awarded the claimant temporary total disability benefits after maximum medical improvement (MMI) and prior to the respondent’s offer of vocational rehabilitation. We affirm.
The facts in this matter are not disputed. The claimant was injured on December 21, 1993, and reached MMI on November 23, 1994. The respondent voluntarily paid temporary total disability benefits through March 10, 1995, while it completed a vocational rehabilitation evaluation.
Subsequently, the claimant filed an application for hearing seeking permanent total disability benefits. On September 13, 1995, the respondent voluntarily offered vocational rehabilitation benefits which the claimant accepted. As a result, the respondent commenced the payment of temporary total disability benefits on September 13.
The issue in this case is whether the claimant is entitled to temporary total disability benefits for the period of March 11, 1995 through September 12, 1995. The ALJ concluded that the respondent’s offer of vocational rehabilitation was made pursuant to § 8-42-111(3), C.R.S. (1995 Cum. Supp.). Consequently, the ALJ determined that, under §8-42-105(1), C.R.S. (1995 Cum. Supp.), the respondent’s offer of vocational rehabilitation constituted an exception to the rule that temporary total disability benefits terminate on the attainment of MMI. Thus, the ALJ awarded temporary disability benefits from March 11 through September 12.
On review, the respondent contends that there is no “legal or factual basis” for the ALJ’s award of temporary disability benefits during the disputed period. The respondent asserts that the “plain language” of §8-42-105(3)(a) provides for the termination of temporary disability benefits on the attainment of MMI, and that the ALJ’s construction of §8-42-105(1) nullifies the effect of § 8-42-105(3)(a). Moreover, the respondent asserts that the ALJ’s construction of § 8-42-105(1) is contrary to the legislative intent and public policy underlying the Act. We reject these arguments.
Section 8-42-105(1) provides that:
“Except where vocational rehabilitation is offered and accepted as provided in § 8-42-111(3), temporary total disability benefits shall cease upon the occurrence of any of the events enumerated in subsection (3) of this section.
Section 8-42-105(3)(a), C.R.S. (1995 Cum. Supp.), provides for the termination of temporary total disability benefits upon the attainment of MMI.
In Phaimany v. Carefree of Colorado, W.C. No. 4-130-402, January 25, 1996, we held that the word “except,” as used in § 8-42-105(1), means “with the exclusion or exception of.” Therefore, we concluded that the plain meaning of § 8-42-105(1) is 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.”
Since the meaning of § 8-42-105(1) is unambiguous, it is unnecessary to resort to the rules of statutory construction to reach a different result. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). However, even if the statute were ambiguous, we would not interpret it in the manner argued for by the respondent. The respondent reasons that, when the General Assembly eliminated mandatory vocational rehabilitation, it necessarily intended to nullify decisions such as Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989), which held that temporary total disability benefits continue pending the completion of a vocational rehabilitation evaluation and a determination of whether the claimant is eligible for vocational rehabilitation.
However, the respondent’s argument ignores that the exception contained in § 8-42-105(1) is very limited, and applies only where respondents voluntarily offer vocational rehabilitation under §8-42-111(3). The General Assembly could easily have concluded that, in those limited circumstances the respondents necessarily fear that the claimant is permanently and totally disabled, and that there is a high probability of such a finding unless vocational rehabilitation is completed. Therefore, the General Assembly could have concluded that the continuation of temporary disability is appropriate in these circumstances. Obviously, the number of cases involving this scenario is far fewer than when vocational rehabilitation was mandatory.
Moreover, we were not persuaded by the respondent’s argument that the ALJ’s interpretation of § 8-42-105(1) fails to accord sufficient weight to the opinion of the treating physician concerning the attainment of MMI. Admittedly, in cases where permanent total disability is not a likelihood, and the respondents do not voluntarily offer vocational rehabilitation, the claimant’s permanent disability is measured by application of the rather mechanistic formula set forth in § 8-42-107(8), C.R.S. (1995 Cum. Supp.). The predominant factor in assessing the amount permanent disability benefits to be awarded is the claimant’s physical impairment as measured by the treating physician or an independent medical examiner.
Conversely, were permanent total disability is the issue, an ALJ is permitted to consider a wide range of factors involving the relationship between the claimant’s physical injury and his ability to earn any wages See Best-Way Concrete Co. v. Baumgartner, ___ P.2d ___ (Colo.App. 95CA0290, November 24, 1995). The opinion of the treating physician is only one factor to be considered and is in no way binding on the ALJ. Similarly, it is logical to infer that the purpose of § 8-42-105(1) is to diminish the significance of the opinion of the treating physician when the respondents themselves concede that permanent and total disability is a substantial possibility, and elect to offer rehabilitation.
The respondent also asserts that requiring it to pay “retroactive” temporary disability benefits operates as a disincentive to offer vocational rehabilitation. In some sense, this may be true. However, the respondent must weigh this “disincentive” against the possibility of paying permanent total disability benefits for a substantially longer period of time. Thus, this argument is not persuasive.
Insofar as the respondent has made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 17, 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 February 22, 1996 to the following parties:
Beverly Sinclair, 121 Dartmouth Trail, Apt. 201, Ft. Collins, CO 80525-1457
Darlene Houdashelt, Larimer County, P.O. Box 1190, Ft. Collins, CO 80522
Terry M. Lee, OHMS, Inc., 700 Broadway, Ste. 1132, Denver, CO 80273
Art M. Lee, Esq., 455 Sherman St., Ste. 210, Denver, CO 80203 (For the Respondents)
W. M. Busch, Jr., Esq., 903 N. Cleveland, Ste. A, Loveland, CO 80537 (For the Claimant)
By: _____________________