W.C. No. 4-135-287Industrial Claim Appeals Office.
May 9, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Henk (ALJ), which awarded the claimant temporary total disability benefits after maximum medical improvement (MMI), and prior to the respondents’ offer of vocational rehabilitation. We affirm.
The pertinent findings of fact are not disputed. The claimant sustained a compensable back injury in February 1992. The claimant reached MMI on April 25, 1994, and in July 1994, the respondents filed a Final Admission of Liability admitting for permanent partial disability benefits based a medical impairment of eighteen percent of the whole person.
The claimant objected to the final admission, and obtained evaluations from several vocational counselors because she was unable to return to her pre-injury employment. Ultimately, the claimant sought a hearing on the issue of permanent total disability, which was set for August 30, 1995. However, the respondents conducted a vocational assessment of the claimant on August 2, 1995, and offered vocational rehabilitation in a letter dated August 17, 1995.
Initially, the vocational rehabilitation consisted of job placement services. However, because the claimant lives in a small community, a plan was devised to provide the claimant with computer training. The ALJ found that the rehabilitation plan was “complicated since the Claimant had difficulty with sitting for extended periods of time.” However, the ALJ found that the claimant has consistently followed through with the vocational rehabilitation plan since obtaining an ergonomic chair.
Under these circumstances, the claimant requested temporary total disability benefits retroactive to April 26, 1994, the day after MMI. The respondents argued that they are not liable to pay temporary total disability benefits from April 26, 1994, the day after MMI, until March 25, 1996, when the claimant began sufficiently participating in the computer training plan. However, the ALJ rejected the respondents’ argument. Relying on § 8-42-105(1), C.R.S. (1996 Cum. Supp.), the ALJ concluded that the claimant’s acceptance of vocational rehabilitation required respondents to pay temporary total disability benefits retroactive to the date of MMI.
On review, the respondents contend that the ALJ erred in ordering temporary total disability benefits retroactive to the date of MMI. The respondents argue that § 8-42-105(1) should be construed as requiring a lapse in TTD benefits from the date of MMI until the claimant “accepted” the offer of vocational rehabilitation. We disagree.
Section 8-42-105(1) provides as follows:
“Except where vocational rehabilitation is offered and accepted as provided in § 8-42-111(3), temporary total disability payments shall cease upon the occurrence of any of the events enumerated in subsection (3) of this section.” (Emphasis added).
We have previously ruled that the word “except,” as used in §8-42-105(1), means “with the exclusion or exception of.” Thus, we have held 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 claimant’s entitlement to temporary total disability benefits.” Sinclair v. Larimer County, W.C. No. 4-210-107 (February 22, 1996); Phaimany v. Carefree of Colorado, W.C. No. 4-130-402 (January 25, 1996).
We have also held that, even if § 8-42-105(1) is ambiguous, we should interpret it as allowing retroactive temporary total disability benefits where an offer and acceptance of vocational rehabilitation occurs after MMI. The following language from Sinclair v. Larimer County, supra, is pertinent:
“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.”
The respondents also argue that the 1991 amendments to the Workers’ Compensation Act demonstrate that temporary disability benefits must cease at MMI, and not be reinstated unless and until vocational rehabilitation is offered and accepted. The respondents reason that loss of earning capacity was the standard of disability prior to the 1991 amendments, but disability is now governed by the degree of medical impairment. Hence, temporary disability ends at MMI when the degree of medical impairment can be determined.
However, we rejected a similar argument in Metzger v. Poudre Valley Hospital, W.C. No. 4-210-154 (February 28, 1997). The following language from the Metzger decision is pertinent:
“The respondent’s assertion is manifestly incorrect. At least in the arena of permanent total disability, the issue of a claimant’s residual earning capacity, in view of the industrial injury and attending circumstances, remains very much the law. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Further, as we pointed out in Sinclair, the only plausible reason for offering vocational rehabilitation is to avoid the possibility, if not probability, that the claimant will be found permanently and totally disabled without successful vocational rehabilitation. [Citation omitted.] Thus, it is logical to maintain the claimant on temporary total disability benefits pending the initiation of vocational rehabilitation.”
Moreover, the Metzger decision points out that interpreting §8-42-105(1) as requiring the payment of temporary total disability benefits after MMI, and prior to the initiation of a formal vocational rehabilitation plan, avoids unfair timing of the offer of vocational rehabilitation. The respondents’ interpretation of § 8-42-105(1) would permit them to manipulate the timing of the offer, and therefore the claimant’s entitlement to temporary disability benefits, by the simple expedient of delaying the offer of vocational rehabilitation until after the claimant obtains MMI. Such a result would arbitrarily distinguish between claimants who receive and accept offers of vocational rehabilitation prior to MMI, and those who do not receive and accept offers until after MMI.
Insofar as the respondents have made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 25, 1996 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed May 9, 1997 to the following parties:
Anita Bond Villers, 107 W. Maplewood, Walsh, CO 81090
Walsh Health Care Center, 150 N. Nevada Ave., Walsh, CO 81090
Sharon Thompson, Support Services, Hospital Ins. Trust Service, P.O. Box 22438, Denver, CO 80222
Dan O. Adkins, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For the Claimant)
Karen R. Wells, Esq., 3800 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondents)
By: _________________________________________________