W.C. No. 4-769-486.Industrial Claim Appeals Office.
October 27, 2010.
FINAL ORDER
The claimant seeks review of an Order Pursuant to Remand of Administrative Law Judge Stuber (ALJ) dated June 3, 2010, that granted the respondents’ request to terminate temporary total disability benefits. We affirm.
This matter was previously before us. In an order dated October 14, 2009, ALJ Stuber denied the respondents’ request to terminate temporary total disability benefits. The respondents sought to terminate temporary total disability benefits based upon the claimant’s alleged refusal to begin modified work that the respondents argued was offered to him pursuant to § 8-42-105(3)(d)(I). The ALJ found that the claimant refused to accept the written offer of work and failed to collect it when it was sent to him by certified mail. The ALJ concluded that because the claimant had never accepted the written offer, the respondents had failed to show that the employer made an offer of modified work within the meaning of the statute. Because in our view the respondents had sufficiently raised the question whether the claimant waived actual receipt of the offer, we set aside the ALJ’s order in an order of remand dated March 5, 2010. Our order remanded for further proceedings regarding the claimant’s possible waiver of receipt of the offer.
On remand the ALJ entered the order under review here. No further hearing was held and the ALJ entered factual findings that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury to his low back on August 24, 2008. Several days later Dr. Wallace restricted the claimant from working and in September Dr. Shaut imposed lifting and postural restrictions. Additional
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restrictions were imposed by Dr. Gray and on October 20, 2008, Dr. Sacha determined that the claimant had reached maximum medical improvement. During the course of his treatment the claimant “on several occasions” was released to work modified duty. The employer prepared an offer of modified work for the claimant. The job was as a greeter, which required the claimant to greet customers entering the store and check the receipts of those leaving. The offer was open from October 29th, when the claimant was scheduled to report to work, until November 8th. On October 23, 2008 the claimant met with representatives of the employer, who attempted to hand-deliver to him the written offer of modified work. He refused to accept the written offer, requesting that it be sent to him by certified mail. The employer sent the offer to the claimant by certified mail; however, the claimant failed to pick up the letter and it was eventually returned to the employer unclaimed. On November 3rd an employer representative spoke with the claimant and the two agreed that the claimant would go to the employer’s office and sign the written offer of work. The claimant failed to appear at the agreed-upon time and the two rescheduled the claimant’s visit to the office. The claimant again failed to appear.
The ALJ found that the claimant waived actual notice of the offer of modified work. The ALJ also found that the claimant’s actions demonstrated the claimant’s “clear” intent not to receive delivery of the offer of work. The ALJ also found that the claimant was capable of performing the job as a greeter, that it was within his restrictions, and that nothing about the job, its working conditions, its location, or its hours was unreasonable given the claimant’s circumstances.
I.
The claimant appealed and first argues that the Panel exceeded its authority in remanding for a determination regarding the waiver issue, where it was not endorsed or raised below. In our view during the course of the proceedings the claimant was provided notice that the respondents would contend that he had waived actual notice of the job offer and of its terms. Further, that issue was actually tried with the consent of the parties.
It appears undisputed that one issue for hearing was the respondents’ claim that temporary total disability should be terminated because the claimant was released to modified work and that the respondents attempted to tender to the claimant a written offer of modified work. It was further a factual issue to be resolved whether the claimant’s conduct frustrated or attempted to frustrate the actual delivery of the written offer. Thus, “termination of TTD” was endorsed by the respondents as a disputed issue for hearing, as was the § 8-42-105(3)(d), which provided for the termination of temporary total disability benefits in the event a claimant refuses an offer of modified work. The claimant’s response to the application for hearing endorses the issue of “waiver,” although, admittedly, there is no explanation for that endorsement accompanying it. At the
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commencement of the hearing the respondents’ attorney explained that one of the issues was the termination of temporary total disability benefits based upon a release to restricted work, and the attorney explained that the respondents had “attempted]” to offer the claimant modified work. Tr. at 5. Respondents’ counsel explained to the ALJ their position that the claimant deliberately avoided receipt of the offer: “The Claimant refused to take by hand delivery the bona-fide job offer, insisting that it had to be presented to him by certified mail, so the employer attempted to send the certified — send the offer to the Claimant by certified mail, and he refused to pick up the certified mailing, so the certified mailing was never picked up.” Tr. at 6. The ALJ then confirmed that the respondents sought to terminate temporary total disability benefits “based on the refusal of an offer of modified duty,” which the respondents’ attorney confirmed. The ALJ then questioned the claimant’s attorney regarding whether the claimant was “disputing that there was an offer of modified duty . . .,” to which the attorney replied in the affirmative. Tr. at 9. He later clarified that “[w]e’re disputing that there was any refusal to accept delivery.” Tr. at 10.
The disputed issues regarding the attempted delivery of the offer of modified work were then fully tried by both parties. In this regard, the employer offered testimony that attempts were made to hand to the claimant a written offer of modified work, but that he refused it and that he stated that it had to be sent to him by certified mail. The employer’s witness then testified that the offer was sent to him by certified mail and that the employer was notified that the offer was not retrieved from the postal service. Tr. at 48. The employer then attempted once again to hand-deliver the offer to the claimant, but was unable to do so. Tr. at 48-49, 103, 104. The claimant testified that he never received any offer of modified work and in response to a series of questions on cross-examination regarding whether his own conduct obstructed that receipt, he denied that it had. Tr. at 103-104.
It is evident that the parties recognized that one of the central disputed issues was the effectiveness of the claimant’s receipt of the offer of modified work. It appears to be undisputed that the claimant never actually received the written offer. We surmise from the record that the parties recognized that the issue was whether the respondents’ “attempts” to deliver the offer and the claimant’s alleged refusal to accept it nevertheless operated to permit termination of temporary total disability benefits under § 8-42-105(3)(d), C.R.S. In our view, it is inherent in this disputed issue that the parties tried the issues of whether there was constructive service of the offer and, relatedly, whether the claimant waived actual service by his conduct. In this regard, we conclude that the issue was tried by consent of the parties. See Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo.App. 92, 554 P.2d 705 (Colo.App. 1976); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).
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II.
The claimant also argues that the ALJ’s finding that the claimant waived actual receipt of the offer is not supported by substantial evidence in the record. We disagree and conclude that the ALJ’s findings are amply supported by evidence in the record.
A waiver may be express or implied from conduct, but it must demonstrate a voluntary, knowing, and intelligent surrender of the right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). The existence of a waiver is factual matter for the ALJ to determine, and we must uphold his order if supported by substantial evidence in the record. Johnson v. Industrial Commission, supra; § 8-43-301(8), C.R.S. 2006. The substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. V. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here, the ALJ found that the claimant’s actions “unambiguously and clearly manifested his intent not to receive actual notice of the offer.” Order Pursuant to Remand at 4, ¶ 18. The hearing officer’s dispositive findings supporting this determination were that on October 23, 2008 the claimant met with representatives of the employer, who attempted to hand to him a written offer of modified work that the employer contended was within his restrictions. The ALJ further found that the claimant refused to accept the written offer, insisting instead that it should be mailed to his residence by certified mail. The employer did so and, after delivering to the claimant three notifications that certified mail was being held to be retrieved by the claimant, the postal service returned it to the employer. The ALJ further found that on November 3, 2008 the claimant represented to an employer representative that he would go to the employer’s offices on the following day in order to sign the offer of modified work. He did not do so and then agreed again that he would sign the offer at the employer’s offices on November 6th. He again failed to do so. These findings, all of which are supported by substantial evidence in the record, amply support the conclusion that the claimant impliedly waived actual receipt of the job offer.
III.
The claimant also argues that the respondents did not comply with § 8-42-105(3)(d)(I), and that, therefore, temporary total disability benefits were not properly terminated. The claimant argues that there is a distinction between a doctor releasing an injured worker to work “with restrictions” and releasing him to “modified work.” The claimant infers from the language of the statute that the doctor must know the details of the modified work before he or she can actually release the worker to that “modified” work. In this regard, the claimant argues that a mere general release to work “with restrictions” does not necessarily comply with the statutory requirement, even if those
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restrictions are specific and fit within the modified job the employer proposes to the claimant. We are unpersuaded that the ALJ erred in this regard.
Section 8-42-105 C.R.S. provides that upon the occurrence of one of four enumerated conditions TTD benefits shall cease. In relevant part § 8-42-105 (3)(d)(I) provides that temporary total disability benefits shall continue until the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. The termination of TTD benefits under any one of the four enumerated conditions is mandatory Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995). Moreover, it is a factual question whether it was reasonable for the claimant to begin the modified work. Laurel Manor Care Center v. Industrial Claim Appeals Office 964 P.2d 589 (Colo. App. 1998). The determination of the extent of the restrictions imposed by the treating physician and whether the modified work accommodates those restrictions are also questions of fact for resolution by the ALJ. Therefore his findings must be upheld if supported by substantial evidence in the record. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
Here, the ALJ fully recognized the applicable legal standard and correctly applied it to his findings of fact. The ALJ summarized in considerable detail the various restrictions issued by the several attending doctors. The ALJ weighed the probative value of the competing evidence and found that the claimant was restricted from lifting, carrying, pushing, or pulling over five pounds, and from squatting, kneeling, or crawling. The ALJ also found that these restrictions did not preclude the claimant from performing the modified job offered by the employer. The ALJ also found that there was nothing about the modified job that rendered it unreasonable for the claimant to accept it. The ALJ therefore concluded that the elements of § 8-42-105(3)(d)(I) were satisfied that the claimant’s temporary total disability benefits were properly terminated.
We disagree with the claimant’s argument that the statute should be read as requiring the doctor’s knowledge of the specific modified job before he or she can release the claimant to modified work. Our primary task in construing a statute is to ascertain and give effect to the legislative purpose underlying the statute. Colorado Common Cause v. Meyer, 758 P.2d 153 (Colo. 1998). In doing so we look first to the words used by the legislature and give them their commonly accepted and understood meaning. People v. Guenther, 740 P.2d 971 (Colo. 1987). Here, as we understand the claimant’s argument, it is that the employer must submit the job description of proposed “modified” work to that attending physician, who will then either release the claimant to perform that work or decline to do so. In our view, there is nothing in the language of § 8-42-105(3)(d)(I) that suggests such a legislative intent. Rather, “modified employment”
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within the meaning of the statute is work within the restrictions imposed by an attending physician. The statute does not preclude the employer from fashioning a modified job based upon restrictions that have previously been imposed. Therefore, we reject the claimant’s argument in this regard.
The claimant’s remaining arguments are based upon conflicts in the medical reports pertaining to the claimant’s restrictions. As noted, the hearing officer weighed the competing evidence, as it was his responsibility to do, and resolved those conflicts. That he could have resolved them differently does not provide a basis for relief on appeal.
IV.
Finally, the claimant argues that the ALJ erred in concluding that his worsened condition did not warrant the resumption of temporary total disability benefits even assuming that those benefits were properly discontinued because of his failure to begin work in the modified position. The claimant relies upo Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004) and argues that it supports the resumption of temporary total disability benefits after those benefits have been discontinued based on the claimant’s termination from employment for fault. In that case the supreme court held that the termination statutes are not a permanent bar to temporary disability benefits when the worsening of a prior work-related injury causes the claimant’s wage loss. (Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S., known as the termination statutes, contain identical language stating that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.”) I Anderson, the claimant sustained a low back injury and returned to modified light duty. He resigned his position due to a dispute with the employer and began work with a subsequent employer under the same physical restrictions. His condition worsened and more severe restrictions were imposed, which required him to resign his subsequent work. The then-current restrictions would have precluded him from performing his modified work at Longmont Toyota; however, the respondents denied temporary total disability benefits on the grounds that the termination from employment was a permanent bar to the receipt of benefits.
The supreme court rejected that position, holding that “section 8-42-105(4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss.”Anderson, 102 P.3d at 326. In reaching this conclusion, the court relied upon the statutory authority to reopen cases for a worsened condition, noting that if the General Assembly had intended to modify the reopening provisions it would have expressly done so. The court then reiterated that the termination statutes were only intended to “weed out wage loss claims
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subsequent to voluntary or for-cause termination of modified employment that do not involve a worsened condition” Anderson, 102 P.3d at 330 (emphasis added).
As we understand the ALJ’s order, he concluded that Anderson does not support the resumption of temporary total disability benefits here for two reasons. First, the ALJ reasoned that here the claimant’s benefits were terminated under § 8-42-105(3)(d)(I) and not under the termination statutes. The ALJ concluded that Anderson does not support a resumption of temporary total disability benefits based on a worsened condition where those benefits were terminated because of the claimant’s failure to begin modified work.
It is unnecessary for us to determine whether the ALJ’s conclusion in this respect is error, since the second of his grounds for rejecting the claimant’s argument is dispositive. The ALJ found that the claimant had not worsened and that he had no additional restrictions that would have prevented him from performing the modified job that the employer offered. As noted regarding the other of the ALJ’s factual findings, this one represents a reasonable inference from the factual record and therefore is supported by substantial evidence. It is binding upon us and supports the conclusion that temporary total disability benefits were not owed after their termination pursuant to § 8-42-105(3)(d)(I).
IT IS THEREFORE ORDERED that the ALJ’s order issued June 3, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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MICHAEL BARNETT, 1145 CHIRICAHUA LOOP, COLORADO SPRINGS, CO, (Claimant).
WAL-MART STORES, INC., Attn: ANNETTE ESTEP, COLORADO SPRINGS, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: SERENA LOUDERMILK, C/O: CMI/CLAIM NO 5601328, BENTONVILLE, AR, (Insurer).
RICHARD E FALCONE, Attn: RICHARD FALCONE, ESQ., C/O: ATTOREY AT LAW, COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M FRANCES MCCRACKEN, ESQ., (For Respondents).
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