Opinion
W.C. No. 4-347-889.
October 10, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied the claim for permanent total disability (PTD) benefits. The claimant contends the ALJ applied an incorrect standard of law when determining the claimant refused an offer of employment within the meaning of § 8-42-111(3), C.R.S. 2002. We affirm.
The claimant sustained a back injury in 1997 while employed by respondent Excel Corp. (Excel). After reaching maximum medical improvement (MMI) in April 1998, the claimant was required to undergo additional back surgery. The claimant was placed at MMI for the second time in June 2001 with an 18 percent whole person impairment. The claimant was unable to return to his pre-injury employment as a lead man.
The claimant underwent a functional capacities examination (FCE), which was reviewed by the treating physician, Dr. Knight. After reviewing the FCE Dr. Knight imposed restrictions which limited the claimant's lifting to 20 pounds occasionally and 10 pounds frequently, and limited his sitting, standing and walking. Dr. Knight also stated the claimant should "avoid" repetitive bending, squatting, and kneeling. (Finding of Fact 6, Knight report, July 30, 2001).
After Dr. Knight's report, the employer offered the claimant four jobs which it believed were within the claimant's restrictions. The claimant declined to accept any of the jobs. Although the claimant later indicated his willingness to perform one of the jobs, the job was no longer available.
The claimant then sought an award of PTD benefits. Following a hearing at which both parties presented expert vocational testimony, the ALJ credited the testimony of the Excel's expert that "not only was the claimant employable at Excel, but he was also able to earn wages outside of Excel if he chose to do so." (Findings of Fact 38, 41). Consequently, the ALJ found the claimant "is able to earn wages in the same or other employment," and refused an offer of bona fide employment with Excel. (Findings of Fact 42, 43). The ALJ went on to conclude that because the claimant refused an offer of employment, he is "precluded from receipt of an award of" PTD benefits pursuant to section 8-42-111(3).
On review, the claimant contends the ALJ misapplied the law in concluding that he refused an offer of employment within the meaning of § 8-42-111(3). The claimant argues the evidence establishes that he had a "reasonable basis" for believing he was physically unable to perform the jobs offered by Excel, and this reasonable belief justified his refusal to accept the offer of employment. We need not reach this issue because the ALJ's findings of fact establish that regardless of § 8-42-111(3) the claimant failed to prove entitlement to PTD benefits.
The claimant had the burden of proof to establish entitlement to PTD benefits. In order to meet this burden, the claimant was required to show that he "is unable to earn any wages in the same or other employment." Section 8-40-201(16.5)(a), C.R.S. 2002. 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 or 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. 2002; Holly Nursing Care Center v. Industrial Claim Appeals Office, supra.
We have previously held that § 8-42-111(3) creates an affirmative defense to a claim for PTD benefits which applies when the claimant has first established a prima facie case of PTD. See Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991); Pacheco v. Environmental Chemical Corp., W.C. No. 4-287-884 (October 9, 1998). Thus, the respondent has the burden of proof to establish refusal of an offer of employment, but the issue is of consequence only if the claimant meets the initial burden to prove PTD.
The ALJ's finding that the claimant is able to earn wages in other employment regardless of the offer of work by Excel is supported by the restrictions imposed by the treating physician on July 30 and the opinions of Excel's vocational expert. Further, these findings support the conclusion that the claimant failed to prove entitlement to PTD because he is able to earn wages "in other employment." Section 8-40-201(16.5)(a); (Finding of Fact 43).
It follows that, regardless of the validity of the claimant's arguments concerning the applicability of § 8-42-111(3), the ALJ's order establishes the claimant failed to prove entitlement to PTD benefits. Under these circumstances, any error in the application of § 8-42-111(3) is harmless and we need not consider the claimant's contentions. The claimant advances no argument which would vitiate the ALJ's finding that the claimant is capable of earning wages in other employment. Consequently, the order must be affirmed. See University of Colorado Medical Center v. Industrial Commission, 622 P.2d 596 (Colo.App. 1980) (even if court determined Industrial Commission erroneously interpreted the law, if Commission's order would have been correct had the law been correctly interpreted, the award will be sustained).
We do note the claimant's brief expresses disagreement with Finding of Fact 14 insofar as it states the claimant did not receive any medical care from a treating physician after seeing Dr. Knight in July 2001. The brief points out that in 2002 the claimant was examined by Dr. Jamrich for ongoing pain complaints and underwent a CT myelogram of the lumbar spine. On August 7, 2002, Dr. Jamrich reported the myelogram "really shows no decompressive lesion at any level" and that "no surgical intervention would be appropriate." Dr. Jamrich also suggested the claimant "might consider" pain management "if this is severe enough," but the record does not reflect any prescription for pain management. At the November 2002 hearing the claimant testified Dr. Jamrich was the last physician he saw and the claimant was not taking any medication except Ibuprofen. (Tr. November 12, 2002, P. 63).
Under these circumstances, we conclude that Finding of Fact 14 is harmless because, although it may be technically in error, the finding had no substantial impact on the issues governing the claimant's entitlement to PTD benefits, and could not have prejudiced the claimant's substantial rights on the issue. Section 8-43-310, C.R.S. 2002 (errors to be disregarded unless a party is damaged thereby). Indeed, the report of the respondent's vocational expert notes the claimant has reported ongoing pain since being placed at MMI, as does the report of the Division-sponsored independent medical examination physician. Thus, the visit to Dr. Jamrich and consequent myelogram added nothing new to the claimant's medical history since he reached MMI and, as the claimant's brief admits, the error is not "germane to this Appeal." (Claimant's Brief at Pp. 8-9).
In reaching this result we should not be understood as expressing agreement with the claimant's arguments concerning the ALJ's application of § 8-43-111(3). We merely hold that we need not reach the issue.
IT IS THEREFORE ORDERED that the ALJ's order dated June 5, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this 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, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on October 10, 2003 by A. Hurtado.
Guerrero Mendez, P.O. Box 772, Fort Morgan, CO 80701
Kathy White, Workers Compensation Coordinator, Excel Corporation, C. S. 4100, Fort Morgan, CO 80701
Cargill, Inc., c/o Margaret Johnson, Crawford Company, 2850 McClelland, #1600, Fort Collins, CO 80525
Laurence J. Free, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)