Opinion
W.C. No. 4-390-451
March 14, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied a claim for permanent total disability benefits. The claimant contends the ALJ erred in denying the claim based on a finding that the claimant refused an offer of employment within the meaning of § 8-42-111(3), C.R.S. 1999. The claimant argues that the offer of employment was "charitable," and that the ALJ failed to consider that the offer involved work outside of the claimant's "commutable labor market." We set the order aside and remand for entry of a new order.
The claimant sustained a compensable back injury on October 11, 1998, while performing work as a laborer for the respondent Castle Rock Construction Co. (Castle Rock). At the time of the injury, the claimant's job site was in Wyoming. (Tr. p. 28). The claimant testified that he has been a resident of Denver for approximately eighteen years. (Tr. p. 17).
As a result of the injury, the claimant underwent surgery to the cervical spine, and reached maximum medical improvement in February 1999. The claimant was examined by Dr. Fall who assigned a 33 percent whole person impairment rating, including impairment for reduced range of motion in the cervical spine. Dr. Fall restricted the claimant to lifting 15 pounds infrequently, 10 pounds frequently, and stated overhead lifting should be rare. The claimant was also examined by Dr. Scaer in June 1999. Dr. Scaer stated the claimant has been left with "profound cervical limited range of motion which is partly behavioral due to pain and partly due to soft tissue and structural limitation and substantial cervical myofascial pain." Dr. Scaer assessed a 29 percent whole person impairment, including impairment for reduced cervical range of motion. Finally, Dr. Scaer restricted the claimant to lifting 10 to 15 pounds infrequently, no bending or stooping, and no working or lifting overhead.
At the July 13, 1999, hearing, the claimant presented evidence, including an expert vocational opinion, that the industrial injury has rendered him permanently and totally disabled. However, the respondents offered into evidence a letter, dated July 12, 1999, which offered the claimant work as a "wash rack operator." This job would have required the claimant to operate the "water valve" on a machine used to wash truck beds. The written offer stated the job was to begin "July 19, 1999 at the job site near Lamar, CO." The respondents' witness testified the wash rack is mobile and would be moved from job site to job site. The claimant declined to accept the offer.
In justification for his refusal, the claimant testified that the effects of the injury have rendered him unable to drive because he cannot turn his head to look for oncoming traffic. The claimant also testified that he is unable to sit for more than ten or fifteen minutes without experiencing neck pain which requires him to stand up for a period of time. (Tr. pp. 9-10).
The ALJ found that the job offered by Castle Rock is "within Respondents' [sic] stated restrictions," and the job would accommodate the claimant's need to rest during the day. The ALJ further found that Castle Rock made a "valid and viable offer" of employment, and the claimant refused the offer. Consequently, the ALJ concluded that the claimant is precluded from receiving permanent total disability benefits by operation of § 8-42-111(3).
I.
On review, the claimant first contends the ALJ erred in applying § 8-42-111(3) because the proffered employment was purely "charitable" in nature. In support, the claimant cites the testimony of the respondents' witness indicating that Castle Rock was highly motivated to reemploy the claimant because of the claimant's record of excellent service. (Tr. pp. 31-32). We are not persuaded by this argument.
§ 8-42-111(3) provides that an employee "capable of rehabilitation which would enable the employee to earn any wages" is not entitled to permanent total disability benefits if the employee "refuses an offer of employment by the same or other employer." We have previously held that § 8-42-111(3) constitutes an "affirmative defense" to a claim for permanent total disability benefits. Therefore, if the claimant establishes a prima facie case of permanent total disability, the respondents have the burden of proof to establish that the claimant refused an offer of qualifying employment. Pacheco v. Environmental Chemical Corp., W.C. No. 4-287-884 (October 9, 1998). In Lobb v. Industrial Claim Appeals Office, 940 P.2d 115 (Colo.App. 1997), the court held that the question of whether the claimant has been offered "bona fide" employment under § 8-42-111(3) is one of fact for determination by the ALJ. The court indicated that some offers of employment constitute purely "charitable" acts, and do not demonstrate the claimant's ability to earn any wages.
Because the issue is in factual nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ need not make findings of fact concerning every piece of evidence a long as the basis for the order is clear. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant's argument notwithstanding, the record did not compel the ALJ to find that the offer of employment was purely "charitable." Although the evidence cited by the claimant might support such an inference, the employer's witness testified that the job was previously filled by an employee who left the position for family reasons. Since that time, the position has been filled by other employees on a rotating basis. (Tr. p. 37). Thus, the ALJ could reasonably infer that the job of "wash rack operator" was not created for purely charitable reasons, and would be filled by another employee if the claimant refused to accept the job. Under the circumstances, we may not interfere with the ALJ's implicit factual determination that the job offer was for "bona fide" employment.
II.
The claimant next contends the ALJ failed to consider whether the proffered employment was within claimant's "commutable labor market." The claimant argues the undisputed evidence establishes that residual neck pain and rigidity prevent him from driving to the remote job sites contemplated by the offered employment. The respondents reply that the claimant's argument is without merit because remote job sites were within the claimant's commutable labor market prior to the industrial injury. Further, the respondents assert the claimant's driving limitation is purely self imposed. (Respondents' Brief at 3). Because we conclude the ALJ's findings of fact are insufficient to permit appellate review of this argument, we remand for entry of a new order. § 8-43-301(8).
In Jones v. S B Stagelines, W.C. No. 4-209-265 (May 7, 1997), we considered the circumstances under which § 8-42-111(3) may be invoked to preclude an award of permanent total disability benefits where the claimant refuses an offer of out-of-state employment. We concluded that § 8-42-111(3) contains a degree of ambiguity because it lacks a clear statement of the exact nature of the employment which a claimant may be required to accept. Considering the ambiguity, we concluded that the statute should be interpreted in light of the problem the General Assembly sought to solve. Further, we held the statute should be read to give a consistent, harmonious and sensible effect to all of its parts, while effecting a just and reasonable result. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
In Jones, we rejected the respondents' argument that the ALJ may not consider the "reasonableness" of the claimant's refusal to accept an offer of employment under § 8-42-111(3). We reasoned that the General Assembly could not have intended to preclude an award of permanent total disability benefits where the employer offers "a job which the claimant cannot physically perform, or which the claimant is, for some other reason, disqualified from accepting." Thus, we held the ALJ may consider whether the claimant's refusal to accept the employment was "objectively reasonable."
Subsequent to our decision in Jones, the Supreme Court issued its opinion in Weld County School District RE-12 v. Bymer, supra. In Bymer, the court held that enactment of the definition of permanent total disability found in § 8-40-201(16.5) (a), C.R.S. 1999, did not eliminate the ALJ's obligation to consider "human factors," including the claimant's physical condition, mental ability, age, employment history, education, and the availability of employment that the claimant can perform, in determining whether the claimant is able to earn "any wages." Thus, the court endorsed consideration of "the claimant's commutable labor market or other analogous concept" in determining "the existence of employment that is reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 558.
In our view, the decision in Bymer supports the result in Jones v. S B Stagelines, Inc., supra. It would make little sense to hold that a claimant may be awarded permanent total disability benefits under § 8-40-201(16.5)(a) if there is no work available in the claimant's commutable labor market, but the employer may vitiate the award by offering employment, pursuant to § 8-42-111(3), which is not within the claimant's commutable labor market.
Here, the ALJ did not determine whether, from an objective perspective, the employment offered by Castle Rock was reasonably available to the claimant. The claimant presented evidence that the pain and rigidity in his neck preclude him from driving a vehicle, or traveling to remote job sites without the benefit of frequent rest stops. Thus, the record contains evidence which, if credited, would support an inference that the proffered employment is not reasonably available to the claimant. The ALJ made no specific findings of fact concerning the credibility of this evidence, nor do the findings indicate the ALJ was aware of its legal significance. Therefore, the matter must be remanded for a determination of whether the employment which Castle Rock offered to the claimant was reasonably available from an objective point of view. Jones v. S. B Stagelines, Inc., supra.
The respondents' assertion notwithstanding, it does not matter that the claimant was able to travel to remote job sites before the industrial injury. The critical issue is the claimant's remaining access to employment, in view of his personal human factors, at the time permanent total disability is determined. See Weld County School District RE-12 v. Bymer, 955 P.2d at 557, footnote 1.
The fact that the claimant's driving limitation is "self imposed," and not the result of an express "medical restriction," is not dispositive. As we have held on previous occasions, the ALJ's authority to consider "human factors," including the claimant's "general physical condition," permits the ALJ to consider a "wide variety of evidence including the claimant's ability to handle pain and the perception of pain." Eg. Darnall v. Weld County, W.C. No. 4-164-380 (April 10, 1998).
Under the circumstances, the matter must be remanded for a determination of whether the employment offered to the claimant was reasonably available under an objective standard. In evaluating this issue the ALJ may consider whether the proffered employment was within the claimant's "commutable labor market" in light of the residual effects of the industrial injury. If the ALJ determines that a qualifying offer of employment was not made under § 8-42-111(3), the ALJ must also determine whether the claimant proved a prima facie case of permanent total disability.
IT IS THEREFORE ORDERED that the ALJ's order dated August 9, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Robert M. Socolofsky
Copies of this decision were mailed March 14, 2000 to the following parties:
Joe Romero, 4547 Newton St., Denver, CO 80211
Castle Rock Construction Co., P. O. Box 1148, Castle Rock, CO 80104-1148
Liberty Mutual Insurance Company, Attn: Angela Faison, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Michael P. Zimmerman, Esq., 6850 W. 52nd Ave., #100, Arvada, CO 80002 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy