IN RE BOIES, W.C. No

ORDER OF REMAND

The Colorado Compensation Insurance Authority (CCIA), and its insured, the City of Pueblo (the CCIA respondents) seek review of a Supplemental Order issued by Administrative Law Judge Henk (ALJ). The CCIA respondents contest the ALJ's order insofar as the ALJ awarded permanent partial disability benefits in W.C. No. 4-108-563 based upon disability of 8 percent as a working unit. The CCIA respondents contend that the ALJ erred in failing to limit the award pursuant to former 8-42-110(3), C.R.S. (1990 Cum. Supp.) (reemployment statute). We set aside the contested portion of the order and remand for entry of a new order.

Under the reemployment statute, the claimant's permanent partial disability award is limited to benefits based upon a scheduled disability or medical impairment if the employer reemploys the claimant "at the employee's preinjury rate of pay and extends to the employee the usual wage adjustments." The employer bears the burden to prove the requirements of the reemployment statute defense, and if proven, the burden shifts to the claimant to defeat the application of the statute by proving that he is "permanently unable to perform the duties offered by the employer." Fulton v. King Soopers, 823 P.2d 709 (Colo. 1992) ; Monfort, Inc. v. Gonzales, 855 P.2d 19 (Colo.App. 1993).

The claimant is a police officer with the City of Pueblo. On August 22, 1988, the claimant suffered a compensable left knee injury, which is the subject of W.C. No. 4-108-563. At the time of the injury, the City of Pueblo was insured by the CCIA. On October 15, 1989, the claimant sustained a compensable right shoulder injury, which is the subject of W.C. No. 3-988-267. At the time of the 1989 injury, the City of Pueblo was insured by CIRSA/Workers' Compensation Pool.

The ALJ found that the claimant reached maximum medical improvement (MMI) from the 1989 injury in March 1991, and was released to return to regular employment. (Finding of Fact 16; Conclusions of Law 5). The ALJ also found that the claimant reached MMI from the 1988 injury in July 1992, and was released to full duty. (Findings of Fact 20; Conclusion of Law 3). The ALJ further determined that the claimant subsequently injured his right knee at work in September 1992, and suffered a non-industrial back injury in November 1993. (Findings of Fact 22, 24).

It is undisputed that the claimant was reemployed by the City of Pueblo after the 1988 and 1989 injuries. Moreover, there appears to be no dispute that the claimant was reemployed at an hourly rate of pay which equalled or exceeded his preinjury rate of pay. However, at the hearing on permanent partial disability, the claimant testified that he has not earned his preinjury wage because he was no longer working voluntary overtime. Therefore, the claimant argued that the reemployment statute does not apply to either claim.

As to the 1988 injury, the ALJ concluded that the CCIA respondents failed to sustain their burden to prove that the claimant was reemployed at his preinjury rate of pay with the usual wage adjustments. (Finding of Fact 21). It appears that the ALJ's conclusion is based upon her finding that the claimant "stopped requesting voluntary overtime" after the August 1988 injury. (Finding of Fact 7). Therefore, the ALJ determined that the reemployment statute does not limit the claimant's permanent partial disability benefits in W.C. No. 4-108-563.

With regard to the 1989 injury, the ALJ determined that the claimant's preinjury wage did not include the voluntary overtime wages, because the claimant had already stopped signing up for voluntary overtime. (Conclusion of Law 5). The ALJ also found that, except for voluntary overtime, the claimant was reemployed at his preinjury rate of pay and extended the usual wage adjustments. Therefore, the ALJ concluded that the reemployment statute did govern the claim for permanent partial disability benefits in W.C. No. 3-988-267.

The CCIA respondents contend that the ALJ's findings of fact are inconsistent and do not support the ALJ's conclusion that the reemployment statute governs the 1989 claim, but not the 1988 claim. We agree, and remand for additional findings.

From conflicting evidence, the ALJ further determined that voluntary overtime continued to be available to the claimant at the time he reached MMI from the 1988 and 1989 injuries. (Finding of Fact 37). In so doing, the ALJ recognized that some of the overtime programs the claimant performed prior to 1988 no longer existed. (Finding of Fact 32, 33, 36). The ALJ also noted that some of the claimant's overtime earning loss was attributable to his voluntary transfer for reasons unrelated to the industrial injuries. (Findings of Fact 27, 28).

In view of the ALJ's finding that the employer continued to offer voluntary overtime, the ALJ's finding that the claimant "stopped signing up for voluntary overtime" does not support a conclusion that the CCIA respondents failed to prove that the claimant was reemployed at his preinjury rate of pay with the usual wage adjustments. (Findings of Fact 7). See Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) (reemployment statute not defeated where claimant does not receive preinjury rate of pay due to circumstances outside the employer's control); accord Fulton v. King Soopers, supra. Rather, where the employer continued to offer overtime work, which if accepted, would allow the claimant to earn his preinjury wage, the pertinent issue is whether the claimant's failure to "sign up" for the overtime was necessitated by the effects of the industrial injury.

The claimant testified that he chose not to take voluntary overtime after the 1988 injury to avoid further pain and injury to his left knee and right shoulder. (Tr. pp. 23, 28, 37-38, 47, 79, 92). He also stated that on November 15, 1993, Dr. Young restricted him from working overtime. (Tr. pp. 63, 89, 90). This testimony, if credited, could support a finding that the claimant is permanently unable to perform the duties which would allow him to earn his preinjury wage. See United Airlines, Inc., v. Woodall (Colo.App. No. 93CA097, November 12, 1993 (not selected for publication) (expert testimony is not required to prove physical inability to work overtime); NSI Nursing Services v. Johnson (Colo.App. No. 93CA0923, February 17, 1994) (not selected for publication) (claimant's credible testimony that she is unable to work 40 hours a week supports finding that the claimant is unable to perform 40 hour per week offer of reemployment).

However, the ALJ did not make any specific findings concerning this testimony by the claimant. To the contrary, the ALJ found that the claimant was released to return to full duty after the 1988 injury (Finding of Fact 26). The ALJ also determined that the claimant did not report any problems to his supervisors, and that the supervisors did not observe any problems with the claimant's performance of his regular duties. Consequently, the ALJ's findings do not resolve the issue of whether, as a result of the 1988 injury, the claimant was physically unable to work more hours than were required by his regular shift.

In this regard, we are aware of the ALJ's finding that in November 1993, Dr. Young released the claimant to return to regular employment, but restricted him from working overtime. (Finding of Fact 25). However, we are unable to ascertain which of the claimant's four injuries is the subject of Finding of Fact 25, and what evidence the ALJ relied upon in making this finding.

Specifically, we note the ALJ's findings concerning the claimant's 1992 knee injury and the disabling back injury in November 1993. Furthermore, although Dr. Young issued a report dated, November 15, 1993, which indicates that the claimant is "limited from some special activities," as a result of the 1988 injury, Dr. Young imposed the same limitation regarding the 1989 shoulder injury. We also note that Dr. Young's testimony concerning the claimant's physical limitations and the source of those limitations is subject to conflicting inferences. (Young depo. pp. 4, 5, 34, 40).

Moreover, the ALJ found that the duties to be performed during voluntary overtime were the same as, and no more physically demanding than the duties required by the claimant's regular employment. (Finding of Fact 35). Thus, we decline to presume that the ALJ considered voluntary overtime to be a "special activity."

Under these circumstances, the ALJ's findings are insufficient from which to determine whether she correctly concluded that the reemployment statute does not apply in W.C. No. 4-108-563. On remand, the ALJ shall enter specific findings concerning the reason the claimant stopped performing voluntary overtime, and a new order consistent with those findings.

IT IS THEREFORE ORDERED that the ALJ's order dated February 27, 1995, is set aside insofar as it awards permanent partial disability benefits in W.C. No. 4-108-563, and the matter is remanded to the ALJ for entry of a new order as indicated herein.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Kathy E. Dean

____________________________________ Dona Halsey

Copies of this decision were mailed April 1, 1996 to the following parties:

Tim Boies, 1619 Cliffdale Lane, Pueblo CO 81006

City of Pueblo, Attn: Beth Vega, #1 City Hall Place, Pueblo, CO 81003

CIRSA, Attn: Judy Montoya, 950 S. Cherry St., Ste. 800, Denver, CO 80222

Colorado Compensation Insurance Authority, Attn: Michael J. Steiner, Esq. (Interagency Mail)

Susan K. Reeves, Esq., 111 S. Tejon, Ste. 720, Colorado Springs, CO 80903

(For the Respondents)

C. Todd Kettelkamp, Esq, 540 Norwest Bank Building, Pueblo, CO 81003

(For the Claimant)

BY: _______________________