W.C. No. 3-853-489Industrial Claim Appeals Office.
June 8, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) dated January 8, 1998, which denied his requests for permanent total disability benefits and penalties for the respondents’ termination of vocational rehabilitation. We affirm.
The claimant suffered an industrial back injury on December 29, 1986, which precluded him from returning to his pre-injury employment as a heavy equipment operator. Thereafter, a vocational rehabilitation plan was designed and approved to return the claimant to employment in the field of printing and graphics art. The vocational rehabilitation plan consisted of completing a certificate program in printing and graphic arts at the Pikes Peak Community College and job placement assistance. The claimant completed the certificate program in 1993. In January 1994, the claimant began job placement assistance with Gene Kane (Kane).
Former § 8-49-101(5), C.R.S. (1986 Repl. Vol. 3B), provides that if the claimant “voluntarily, without good cause, withdraws from” a vocational rehabilitation program, the claimant’s permanent disability shall be determined as though the employee had successfully completed the vocational rehabilitation program. The question of whether the claimant voluntarily withdrew from vocational rehabilitation is one of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Christie v. Coors Transportation Co., 919 P.2d 857 (Colo.App. 1995).
In an order dated December 9, 1996, the ALJ determined that the claimant “voluntarily and without good cause” withdrew from the vocational rehabilitation plan by refusing job placement assistance. In support, the ALJ found that there was no evidence the claimant sent his resume to potential employers. Furthermore, the ALJ found that if the claimant had actively participated in job placement, he would have secured suitable, gainful employment. Therefore, the ALJ denied the claimant’s request for permanent total disability benefits. The ALJ also determined that the respondents properly terminated vocational rehabilitation services and therefore, the ALJ denied the claimant’s request for the imposition of penalties against the respondents. The claimant timely appealed the ALJ’s order.
In an order dated November 20, 1997, we concluded that the record contains some evidence, including testimony from the claimant and his sister, Dorothy Deitemeyer (Deitemeyer) that the claimant sent out resumes. However, we noted that the ALJ made no findings on the credibility of this evidence. Therefore, we set aside the December 1996 order and remanded the matter to the ALJ for a new order based upon her consideration of this evidence.
On remand, the ALJ entered an order dated January 8, 1998, incorporating her prior findings of fact. She also found that the claimant voluntarily withdrew from the vocational rehabilitation program, and did not make a good faith effort to obtain employment after withdrawing from the vocational rehabilitation program. Therefore, the ALJ reinstated the December 1996 order. The claimant timely petitioned for review of the January order.
I.
Initially, we reject the claimant’s contention that the January 1998 order is “so superficial and conclusory” that it is insufficient to permit appellate review. Our Order of Remand directed the ALJ to reconsider the evidence that the claimant sent his resume to prospective employers. The ALJ’s January 1998 order expressly states that it was entered “[a]fter considering all of the evidence, including the Remand Order.”
Further, the ALJ was not required to credit the testimony of the claimant or Deitemeyer concerning whether the claimant sent his resume to prospective employers, even if their testimony was uncontroverted. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Neither was the ALJ required to explicitly cite the disputed evidence before rejecting it as unpersuasive. See Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). Under these circumstances, we presume the ALJ considered the disputed evidence, but found it unpersuasive. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995) (ALJ presumed to be competent and unbiased until the contrary is shown).
Moreover, having considered and rejected evidence that the claimant sent out his resume, the basis of the ALJ’s order is apparent. Therefore, the ALJ’s order is sufficient to permit appellate review. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990); George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986) (ALJ not held to crystalline standard in articulating findings, but the basis for the order must be apparent).
II.
Next, the claimant contends that because public policy disfavors the “waiver” of workers’ compensation benefits, a voluntary withdrawal from vocational rehabilitation requires evidence of an “overt” act or an “intentional refusal to participate.” The claimant concedes that he was pessimistic, discouraged, and had a bad “attitude” about the prospects of obtaining suitable, gainful employment in the field of graphic arts. However, he denies any overt act evidencing a refusal to participate in vocational rehabilitation. Therefore, the claimant contends that there is insufficient evidence to support the ALJ’s finding that he voluntarily withdrew from vocational rehabilitation plan. We disagree.
We do not dispute that the “waiver” of workers’ compensation benefits is disfavored. Winters v. Industrial Commission, 736 P.2d 1256 (Colo.App. 1986). Nevertheless, the Winters
court determined that the claimant voluntarily withdrew from vocational rehabilitation, based upon evidence the claimant was “emphatic” he did not wish to be retrained in an entirely different field. The court also relied upon evidence the claimant repeatedly told his vocational rehabilitation counselor that an evaluation and formal training was unnecessary because his only intention and interest was to become a business manager in his company.
In Churchill v. Sears, Roebuck Co., 720 P.2d 171
(Colo.App. 1986), the court determined that the claimant unjustifiably withdrew from vocational rehabilitation based upon evidence that the claimant made little or no effort to improve during her on-the-job training. Thus, Churchill stands for the proposition that a claimant’s inaction may be sufficient to support a finding that the claimant voluntarily withdrew from vocational rehabilitation.
Here, the ALJ found that when the claimant first met with Kane to discuss job placement, the claimant indicated that he was uninterested in pursuing employment in the printing and graphic arts area due to the disparity between the starting wage and his preinjury wage. (December 9, 1998, Finding of Fact 27). The ALJ also found that Kane spoke to the claimant three times about preparing a resume and due to the claimant’s lack of interest, Kane eventually prepared the claimant’s resume. (December 9, 1996, Finding of Fact 28). Further, the ALJ was not persuaded that the claimant sent out the resumes, or made a good faith effort to find employment. Because these findings are supported by substantial, albeit conflicting evidence in the record, they must be upheld. (Tr. pp. 97-100); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Moreover, Kane testified that he provided the claimant with the proposed resume for review by the claimant’s attorney. However, Kane stated that he never heard from the claimant or the claimant’s attorney whether the resume was acceptable. (Tr. p. 100). The ALJ could reasonably infer from this testimony that the claimant waived further job placement assistance, and was voluntarily withdrawing from vocational rehabilitation. See Winters v. Industrial Commission, supra; cf. Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990).
Admittedly, the evidence could have been interpreted differently. However, we may not substitute our judgment for that of the ALJ concerning the credibility or probative value of the various evidence. Delta Drywall v. Industrial Claim Appeals Office, supra; Churchill v. Sears, Roebuck Co., supra. Therefore, we may not disturb the ALJ’s finding that the claimant voluntarily withdrew from vocational rehabilitation.
III.
Alternatively, the claimant contends that he had “good cause” for withdrawing from vocational rehabilitation, in light of evidence that the labor market in the area of graphic arts was very “tight” in 1994, and the fact that the starting salary was less than half of his preinjury rate of pay.
However, the ALJ was persuaded that if the claimant had continued job placement assistance with the proper motivation, he would have been able to obtain a job in printing and graphics arts. (December 9, 1996, Conclusions of Law). This determination is supported by the testimony of Kane and the May 24, 1996 report of vocational consultant, Katie Montoya, which constitutes substantial evidence. (Tr. p. 101 ) Moreover, the starting salary had already been taken into account when the vocational rehabilitation plan was approved. The plan was not contested at that time and thus, the ALJ could properly conclude that dissatisfaction with the salary does not establish “good cause” for the claimant’s withdrawal.
IV.
The claimant also contends the ALJ erred in failing to impose penalties against the respondents for the wrongful termination of vocational rehabilitation services in violation of the Rules of Procedure, Part V, 7 Code Colo. Reg. 1101-3 at 8 (Rules). We perceive no reversible error.
The respondents’ failure to comply with the Rules may subject the respondents to penalties under § 8-43-304(1), C.R.S. 1997. Here, the ALJ denied the claim for penalties, concluding that the respondents “properly terminated” vocational rehabilitation benefits. In this respect, the ALJ found that “although placement assistance was terminated by the carrier in February of 1994, it is determined that Claimant’s vocational plan was substantially completed and placement assistance was terminated due to Claimant’s lack of motivation in attempting to find a position.” We conclude that the fact that the plan was substantially completed does not, per se, relieve the respondents of the obligation to comply with the Rules. See Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997) (insurer must satisfy all requirements of Rule IX to avoid penalties for the wrongful termination of temporary disability benefits; Jyrkinen v. Peakload Inc. of America, W.C. No. 4-139-096
(June 15, 1994).
However, the violation of a procedural rule does not compel the imposition of a penalty if the conduct which resulted in the violation was reasonable, as measured by an objective standard Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). The reasonableness of the challenged conduct is dependent on whether the actions resulting in the violation were predicated on a “rational argument based in law or fact.” See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997); Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496
(Colo.App. 1994).
Here, we conclude that the ALJ’s findings support the conclusion that the respondents’ actions were predicated on a rational argument in fact. The ALJ found that the respondents terminated the vocational rehabilitation services, but that all that was left for the vendor to provide was placement assistance which the claimant “refused.” Furthermore, the ALJ found that the job placement assistance was terminated due to the claimant’s lack of motivation to find a job. These findings reflect the ALJ’s determination that the respondents’ termination of vocational rehabilitation was based upon their reasonable belief that the claimant did not want further job placement assistance. Therefore, the ALJ did not err in failing to impose a penalty See Pueblo School District No. 70 v. Toth, supra.
We also reject the claimant’s argument that, the respondents’ termination of vocational rehabilitation violated the January 14, 1991 order of Administrative Law Judge Wells (ALJ Wells), which required the respondents to pay maintenance benefits “until further order or termination by statute.” Although a vocational rehabilitation plan may continue for more than 52 weeks, the respondents are only liable for 52 weeks of temporary total disability maintenance benefits. Winters v. Industrial Commission, supra. In this case, the respondents paid two and one-half years of vocational rehabilitation maintenance benefits before February 1994. Therefore, their failure to pay benefits after February 1994 did not violate the order of ALJ Wells.
Furthermore, we reject the claimant’s argument that the respondents are subject to penalties for violating Rule V(F). That rule imposes a duty on the vocational rehabilitation “vendor” and not the respondents. Thus, Rule V(F) rule does not support the imposition of a penalty against the respondents. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) (no penalties if no rule or statute violated).
V.
The claimant nevertheless argues that if the vocational rehabilitation plan was “substantially completed,” it follows that there was substantially nothing from which to withdraw. However, as we understand the ALJ’s order, she found that the activities to be pursued by the vendor were “substantially completed” and that the claimant still had significant job search efforts to make.
Similarly, we reject the claimant’s contention that the respondents’ termination of the plan rendered moot the claimant’s withdrawal. The ALJ’s findings support the conclusion that the opposite is true. Because the claimant had withdrawn from the plan, there was nothing left to terminate. This also supports the ALJ’s failure to impose penalties on the respondents.
VI.
Finally, the claimant contends that termination of vocational rehabilitation before job placement assistance was completed prejudiced his ability to find a job. The claimant also contends that he was prejudiced by the respondents’ failure to notify him of the February 1994 termination of vocational rehabilitation until July 1995, when they filed a Final Admission of Liability. Therefore, the claimant argues that under the equitable doctrine of “laches,” the respondents are precluded from defending the claim on grounds that he voluntarily withdrew from vocational rehabilitation.
“Laches” is an equitable defense which must be affirmatively raised before the ALJ. See Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987). The record does not indicate that this argument was raised before the ALJ. Therefore, we shall not consider the argument for the first time on appeal Winters v. Industrial Commission, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 8, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 8, 1998 to the following parties:
William Wiedner, P.O. Box 154, Divide, CO 80814
Tom Pinello Construction, c/o Carol A. Finley, Esq., 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903
Nicole Neulman, Great American Insurance, P.O. Box 429538, Cincinnati, OH 45242-9538
Leif Garrison, Esq., 2301 E. Pikes Peak Ave., Colorado Springs, CO 80909 (For the Claimant)
Carol A. Finley, Esq., 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For the Respondents)
BY: _______________________