W.C. No. 4-525-749.Industrial Claim Appeals Office.
May 26, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied benefits for permanent and total disability (PTD). We affirm.
The claimant suffered an admitted knee injury in September 2001 while employed as a hotel housekeeper. After surgery the claimant was released to return to modified work which did not require squatting, kneeling or crawling. The claimant was also restricted to limited stair climbing. From January 22, 2002 to November 14, 2002, the claimant performed light duty, part-time work as a lobby attendant.
On July 18, 2002, the claimant was placed at maximum medical improvement and permanently restricted from kneeling and squatting. The claimant met with her supervisor, and the employer’s human resource director on November 13, 2002 to discuss her future employment. The ALJ found that the employer “had arranged” for the claimant to work full-time as a lobby attendant, however, the employer did not advise the claimant of a specific job position they intended to offer her during that meeting. Instead, the employer asked the claimant to resume full-time employment. The claimant declined to return to full-time work on grounds she was not capable of working full-time. Consequently, the meeting was ended and the employer placed another employee in the position of full-time lobby attendant. The ALJ also found that the lobby attendant position was the employer’s only full-time position within the claimant’s restrictions. Consequently, the employer had no work to offer the claimant on December 18, when the claimant advised the employer she was willing to work full-time. Under these circumstances, the ALJ found the claimant refused an offer of employment and was barred from receiving PTD benefits under § 8-42-111(3), C.R.S. 2003.
Relying on the opinions of the respondents’ vocational rehabilitation expert, William Hartwick (Hartwick), the ALJ also determined the claimant failed to prove she is unable to earn wages in other employment. (Finding of Fact 10). Therefore, the ALJ denied and dismissed the claim for PTD benefits.
On review the claimant contends there is no evidence to support the ALJ’s finding that she refused an offer of employment within the meaning of § 8-42-111(3), C.R.S. 2003. The claimant also contends her testimony does not contain evidence she is capable of earning wages as found by the ALJ in Finding of Fact 10. We reject these arguments.
Section 8-40-201(16.5)(a), C.R.S. 2003, defines PTD as the inability “to earn any wages in the same or other employment.” The determination of whether the claimant is PTD is a factual determination to be made by the ALJ based upon consideration of a number of “human factors.” Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). The crucial issue is whether employment is “reasonably available to the claimant under his particular circumstances.” Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
The question of whether the claimant proved PTD is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Thus, the ALJ’s determination that the claimant has not proven entitlement to PTD benefits must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Holly Nursing Care Center v. Industrial Claim Appeals Office, supra. Under the substantial evidence standard, we must defer to the ALJ’s credibility determinations, unless the testimony the ALJ credited is so rebutted by hard, certain evidence, that as a matter of law the ALJ erred in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Moreover, the ALJ’s findings may be based on plausible inferences drawn from circumstantial evidence. Weld County School District RE-12 v. Bymer, supra. Thus, the issue on review is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995); Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981).
Section 8-42-111(3), C.R.S. 2003, states:
“A disabled employee capable of rehabilitation which would enable the employee to earn any wages in the same or other employment, who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability.”
The determination of whether the claimant has refused a specific offer of employment within the meaning of § 8-42-111(3) is separate from whether the claimant has established a prima facie case of PTD. This is true because § 8-42-111(3) constitutes an “affirmative defense” to the respondents’ liability for PTD, which is only applicable if the claimant establishes a prima facie case of PTD. Drywall Products v. Constuble, 832 P.2d 957
(Colo.App. 1991).
Here, the ALJ determined the claimant failed to prove a prima facie case of PTD and that determination is supported by substantial evidence in the record. Further, this finding supports the ALJ’s order denying the claim for PTD benefits. Therefore, the burden of proof never shifted to the respondents to establish the proof required by § 8-42-111(3). Under these circumstances, the ALJ’s error, if any, in finding the respondents proved the claimant refused an offer of employment is harmless, and shall be disregarded. Section 8-43-210 C.R.S. 2003 A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988). (error which is not prejudicial will be disregarded).
We also reject the claimant’s contention the ALJ misrepresented her testimony in Finding of Fact 10. The ALJ explicitly found the claimant “can earn wages” based on the:
“February 25, 2003 vocational evaluation of William Hartwick, vocational consultant and claimant’s testimony about her work limitations, education and experience”
There is substantial evidence in Hartwick’s vocational evaluation report to support a finding the claimant remains capable of employment in several occupations. The ALJ could also reasonably infer from the claimant’s testimony about her work limitations and experience that the claimant is, at a minimum, capable of earning wages in part-time employment. (Tr. pp. 29, 30). Thus, it is immaterial the claimant also testified that she considered herself unable to perform either full-time or part-time employment at the time of the hearing on PTD benefits. (Tr. p. 26); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness’ testimony).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 7, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Guadalupe de Villanueva, Denver, CO, Marriott — Denver City Center, Denver, CO, American Home Assurance Company, c/o Irene Hernandez, Claims Adjustor, Plano, TX, Pepe J. Mendez, Esq., Denver, CO, (For Claimant).
Steven J. Picardi, Esq., Arvada, CO, (For Respondents).