Barnett v. Wal-Mart Stores, Inc. and American Home Assurance
W.C. No. 4-769-486, ICAO
This case defines what constitutes an offer of modified employment. Respondents sought to terminate temporary total disability (“TTD”) benefits by making an offer of modified employment. Claimant suffered an admitted industrial injury on August 24, 2008 and received medical treatment. He was released to work, on October 22, 2008, with restrictions, and was specifically released to work as a greeter at Wal-Mart. Respondent-employer prepared a written offer of modified employment. On October 23, 2008, Claimant met with employer representatives who attempted to hand Claimant the written offer. Claimant refused and told the representative to mail the offer by certified mail. The representative did so and the offer came back as unclaimed. Then, on November 3, 2008, an employer-representative called Claimant and Claimant agreed to meet with Respondent-employer on November 4, 2008, to sign the offer of employment. Claimant did not show up to sign the modified offer. An employer representative and Claimant then agreed Claimant would go to the office on November 6, 2008 to sign the offer. Again, Claimant did not appear.
The ALJ determined the Respondents failed to prove by a preponderance of the evidence that the modified duty was offered to Claimant on October 23, 2008. The ALJ found that even though Claimant refused to receive a copy from employer on that date and even though employer sent the offer by certified mail, no certified mail receipt was delivered. Therefore, the ALJ reasoned Claimant never had actual knowledge of the written offer of modified employment and denied Respondents’ request to terminate TTD benefits. The Respondents appealed. The Court pointed out the termination of TTD under anyone of the four conditions set forth in C.R.S. § 8-42-105(3) is mandatory. In relevant part, this statute produced that TTD 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 offer of modified employment must be made in writing and must be received by the claimant. The Court upheld the ALJ’s decision and found the plain and ordinary meaning of the term offer as used in C.R.S. § 8-42-105(3) presupposes that the claimant received “actual notice” of the offer of modified employment prior to the time the job is to commence. However, the Court remanded the case back to the ALJ for a determination of whether Claimant waived actual receipt of the offer.
What this means for you: When making an offer of modified employment and you suspect claimant may not accept the offer, consider sending the offer via Federal Express or even through a process server to ensure the claimant receives the offer and, then, has actual notice.
These case law reviews are intended as only a brief overview of recent cases and rulings in Colorado. They do not intended to provide legal advice. For more specific information regarding the cases, applicability to specific fact scenarios, and legal advice, please contact the attorneys at Lee & Kinder, LLC.
