W.C. No. 4-142-533Industrial Claim Appeals Office.
August 26, 1997
FINAL ORDER
The respondents seek review of an order of Chief Administrative Law Judge Felter (ALJ) which required them to pay continuing temporary total disability benefits commencing January 9, 1995. We affirm.
The claimant suffered a compensable injury to her upper extremities on July 16, 1992, and was paid temporary total disability benefits until April 25, 1993, the date she reached maximum medical improvement (MMI). The respondents also paid permanent partial disability benefits.
The claimant subsequently sought permanent total disability benefits. The respondents denied liability, but offered vocational rehabilitation and agreed to reinstate temporary disability benefits effective January 23, 1997. The claimant accepted the offer of vocational rehabilitation, and requested a retroactive award of temporary total disability benefits, pursuant to § 8-42-105(1), C.R.S. (1996 Cum. Supp.). The respondents objected on grounds that the claimant did not “accept” their offer of vocational rehabilitation until January 23, 1997. Alternatively, the respondents asserted that the claimant refused to cooperate with vocational efforts before January 23, 1997. Therefore, the respondents argued that the claimant waived the right to temporary disability benefits prior to that date.
Citing our decisions in Sinclair v. Larimer County, (W.C. No. 4-210-107, February 22, 1996) and Phaimany v. Carefree of Colorado, (W.C. No. 4-130-402, January 25, 1996), the ALJ determined that the claimant is entitled to temporary total disability benefits during the time that vocational rehabilitation services are “taking place.” Finding that the claimant was initially contacted by the vocational rehabilitation provider on January 9, 1995, the ALJ determined it was undisputed that vocational rehabilitation had been “pending” since that date. See also Tr. pp. 32-33; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds, at 783 P.2d 269 (1989) (ALJ’s oral findings may be considered in reviewing the written order). Therefore, the ALJ ordered the respondents to pay temporary total disability benefits retroactively commencing January 9, 1995.
On appeal, the respondents contend that the ALJ’s order is not supported by evidence in the record or the applicable law. We disagree.
Section 8-42-105(1) provides that:
“Except where vocational rehabilitation is offered and accepted as provided in section 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. If vocational rehabilitation is offered and accepted, any party may at any time terminate vocational rehabilitation upon fourteen days’ written notice to the other parties and the director. For purposes of this section, termination of vocational rehabilitation shall be the same as if vocational rehabilitation had never been offered and accepted and the employer or insurance carrier shall not be entitled to recover any temporary total disability benefits paid during the period that vocational rehabilitation was provided.”
Section 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.), provides for the termination of temporary total disability benefits upon the attainment of MMI.
In Phaimany v. Carefree of Colorado, supra, 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.”
In Sinclair v. Larimer County, supra, we expressly relied upon Phaimany to uphold an award of continuing temporary total disability benefits where the claimant accepted an offer of vocational rehabilitation after MMI. The Court of Appeals upheld our order in Larimer County v. Sinclair, 939 P.2d 515
(Colo.App. 1997), and we conclude that Sinclair is dispositive of the respondents’ arguments on this appeal.
In Sinclair, the claimant attained MMI in November 1994, but the employer continued paying temporary disability benefits until a “vocational assessment” was completed in March 1995. Vocational rehabilitation was not offered to the claimant, and she sought permanent total disability benefits. In September 1995, the employer offered vocational rehabilitation, which the claimant accepted. The employer agreed to reinstate temporary total disability benefits commencing the date the claimant accepted the offer of vocational rehabilitation. However, the court concluded that where there has been an offer and acceptance of vocational rehabilitation, “the attainment of MMI is irrelevant to a claimant’s right to TTD benefits,” and upheld an award of temporary disability benefits between March 1995 and September 1995.
Contrary to respondents’ argument, Sinclair reflects the court’s conclusion that an offer and acceptance of vocational rehabilitation does not “reinstate” temporary disability benefits. Similarly, the Sinclair court rejected the proposition that the offer and acceptance of vocational rehabilitation must “precede” MMI to entitle a claimant to continuing temporary disability benefits from the date of MMI. Rather, Sinclair reflects the court’s conclusion that §8-42-105(1) serves to preclude the termination of temporary disability benefits based on MMI where there has been an offer and acceptance of vocational rehabilitation, even if the offer is made long after MMI.
In this regard, we perceive no appreciable difference between the facts presented in Sinclair and the pertinent facts of this claim. The respondents made an offer of vocational rehabilitation which the claimant has accepted. Therefore, the facts establish that the attainment of MMI did not terminate the claimant’s entitlement to continuing temporary disability benefits.
We note that the ALJ’s order only awards benefits retroactive to January 9, 1995, when the claimant was first contacted regarding vocational rehabilitation. However, the claimant has not appealed the ALJ’s failure to award benefits retroactive to the date of MMI.
The respondents’ remaining arguments are unpersuasive. We recognize that the employer in Sinclair voluntarily paid temporary disability benefits until March 1995, when the claimant completed the vocational assessment. However, there is no indication that there were any vocational rehabilitation services provided between the March 1995 assessment and the September 1995 offer of rehabilitation. Nevertheless, the court upheld the award of continuing temporary total disability benefits during that period. Consequently, we disagree with the respondents’ argument that a claimant is entitled to temporary disability benefits only for the period in which vocational rehabilitation services are actively being provided. In other words, a claimant’s entitlement to continuing temporary disability benefits after MMI is not determined by when the claimant begins a vocational rehabilitation program.
It follows that it is immaterial whether vocational rehabilitation services were “pending” since January 9, 1995. Therefore, insofar as the respondents argue that the ALJ erroneously characterized the pendency of vocational rehabilitation as “undisputed,” any such error was harmless, and will be disregarded. Section 8-43-310 C.R.S. (1996 Cum. Supp.) A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988) (error which is not prejudicial will be disregarded).
The respondents also argue that Sinclair is factually distinguishable because in this case the claimant refused a prior offer of vocational rehabilitation or refused to cooperate with a prior offer of vocational rehabilitation. We disagree.
Under § 8-43-404(3), C.R.S. (1996 Cum. Supp.), temporary disability benefits may be suspended for any period where the claimant “obstructs” vocational rehabilitation. However, the ALJ found that the claimant had been in contact with the vocational rehabilitation provider “more or less continuously” since January 9, 1995, and implicitly was not persuaded that the claimant failed to cooperate with vocational rehabilitation efforts after that date. Because the ALJ’s determination is a plausible inference from the record, it must be upheld.
Furthermore, the respondents concede that they did not attempt to terminate any prior vocational rehabilitation program in accordance with § 8-42-105(1). Therefore, the respondents’ arguments do not entitle them to avoid liability for continuing temporary total disability benefits between January 9, 1995 and January 23, 1997.
The respondents also argue that the claimant is precluded from receiving a retroactive award of temporary total disability benefits under the equitable doctrines of laches and estoppel. However, these arguments were not expressly pled. Furthermore, we have reviewed the record, including the transcript of the January 23, 1997 hearing, and we reject the respondents’ contention that these issues were preserved for appellate review. We shall not consider them for the first time on appeal. Cf. Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed August 26, 1997 to the following parties:
Beth M. Sorrese, P.O. Box 5015, Pinehurst NC 28374
Sak Company/Saks Fifth Avenue, 450 W. 15th St., New York, NY 10011
Home Insurance Company, P.O. Box 6500, Englewood, CO 80155
GAB Business Services, 789 Sherman St., Ste. 100, Denver, CO 80203
Mary E. Toornman, Esq., 1660 Lincoln St., Ste. 1700, Denver, CO 80264 (For the Respondents)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower III, Ste. 600, Denver, CO 80202 (For Respondents)
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
By: _______________________________