Opinion
W.C. No. 4-234-364
July 31, 1997
FINAL ORDER
The claimant and respondents have separately petitioned for review of an order of Administrative Law Judge Friend (ALJ) dated January 16, 1997. The respondents contest the ALJ's award of medical benefits. The claimant contests the ALJ's order insofar as the ALJ denied claims for permanent partial disability benefits and penalties. We affirm the order in part, set aside the order in part, and remand for entry of a new order.
On February 3, 1988, the claimant suffered a back injury while working as a firefighter/paramedic for the City of Englewood (employer). The employer issued a "First Report of Injury" which indicated that the claimant had not lost any time from work as a result of the injury. However, the claimant testified that he subsequently lost 23 work shifts.
On September 8, 1995 the claimant filed a claim for workers' compensation. The respondents denied liability on grounds that the claim is barred by the three year statute of limitations contained in former § 8-52-105(2), C.R.S. (1986 Repl. Vol. 3B).
In an order dated February 27, 1996, the ALJ rejected the claimant's contention that the statute of limitations was tolled by the employer's failure to report a lost time injury to the Division of Workers' Compensation (Division), as required by former § 8-45-101 C.R.S. (1986 Repl. Vol. 3B) [currently codified at § 8-43-101(1), C.R.S. (1996 Cum. Supp.)]. Therefore, the ALJ determined that the claim is barred by the statute of limitations, and denied the claims for medical benefits, permanent partial disability benefits and penalties. The claimant timely appealed.
On appeal from the February 27 order, we concluded that the ALJ misapplied the law in rejecting the claimant's tolling argument. Specifically, we concluded that the ALJ erroneously determined that the duty to file a lost time injury report with the Division rested with the insurer and not the employer, and that the duty was dependent on notice to the insurer that the claimant suffered a lost time injury. We also concluded that the employer has a duty to file a supplemental report where a no lost time injury later becomes a lost time injury. Consequently, we set aside the ALJ's order and remanded the matter to the ALJ to redetermine whether the claim was barred by the statute of limitations, and to conduct further proceedings on the issues of medical benefits, permanent partial disability benefits, and penalties.
On remand, the ALJ entered the order of December 16, 1997, in which he determined that in February 1988 the employer had knowledge that the claimant lost time from work as a result of the injury, and failed to file a lost time injury report with the Division. Therefore, the ALJ determined that the statute of limitations was tolled, and that the 1995 claim was timely.
Further, the ALJ ordered the respondents to provide ongoing medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). However, the ALJ found the claimant failed to prove that the 1988 injury caused a permanent loss of earning capacity. Therefore, the ALJ determined that the claimant is not entitled to permanent partial disability benefits under former § 8-51-108(1)(b), C.R.S. (1986 Cum. Supp.) [repealed and reenacted as § 8-42-110(1)(b), C.R.S. (1990 Cum. Supp.)].
I.
The respondents contend that the ALJ erroneously concluded that the claim is not barred by the statute of limitations. The respondents argue that we misapplied the law in our Order of Remand. In support, the respondents incorporate their August 15, 1996 brief, which was filed on review of the ALJ's prior order.
In our Order of Remand, we considered and rejected the arguments raised in the respondents' August 15 brief. Our reasoning is detailed in the Order of Remand and will not be repeated here. Insofar as the respondents wish us to depart from our prior order, we are not persuaded to do so. Consequently, we reject the respondents' contention that the ALJ misapplied the law in finding that the statute of limitations was tolled.
Furthermore, the ALJ's finding the statute of limitations was tolled supports the conclusion that the claim filed in 1995 is not barred by the statute of limitations. Therefore, the respondents have failed to establish grounds which afford us a basis to disturb the ALJ's award of medical benefits.
II.
The claimant contends, inter alia, that the ALJ misapplied the law in denying the claim for permanent partial disability benefits. The claimant contends that the ALJ erroneously applied former § 8-51-108(1)(b), instead of former § 8-52-108(4), C.R.S. (1987 Cum. Supp.) [repealed and reenacted as § 8-42-110(3), C.R.S. (1990 Cum. Supp.)], known as the "reemployment statute," in refusing to award permanent partial disability benefits. We conclude that the ALJ's findings of fact are insufficient to permit appellate review of the claimant's argument. Therefore, we remand the matter to the ALJ for additional findings and the entry of a new order.
Under former § 8-51-108(1)(b), "permanent partial disability" was measured by the claimant's impairment as a "working unit," and was designed to compensate a claimant for a permanent loss of earning capacity. Vail Associates Inc. v. West, 691 P.2d 1187 (Colo. 1984). Consequently, a claimant who suffered a non-scheduled medical impairment which had no discernable effect upon his earning capacity, was not entitled to receive any permanent partial disability benefits. See Puffer Mercantile Co. v. Arellano, 190 Colo. 138, 546 P.2d 481 (1975); Turner v. City and County of Denver, 867 P.2d 197 (Colo.App. 1993); Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App. 1980).
However, former § 8-42-110(3) provides that where the employer reemploys or continues the disabled employee at work in the employment of the employer, at the disabled employee's pre-injury rate of pay and extends to the employee the usual wage adjustments, the employee's permanent partial disability award shall be limited to permanent medical impairment, "or scheduled disability benefits, whichever is less."
The reemployment statute was enacted as an incentive for employers to continue to employ injured workers. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). That purpose was accomplished by substituting the concept of "medical impairment" as the basis for compensation for the previously applied concept of "industrial disability." Turner v. City and County of Denver, 867 P.2d at 200. In Turner the court held that § 8-42-110(3) establishes a "separate means of establishing a claimant's entitlement to permanent disability benefits," if the conditions of the reemployment statute are met. Under those circumstances the claimant is "limited" to benefits based upon permanent medical impairment. 867 P.2d at 200. In so doing, the Turner recognized that in some instances an award based upon medical impairment may be greater than the benefits which would be awarded under the industrial disability test. 867 P.2d at 200.
Similarly, in Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990), the court concluded that where the record contained evidence that the claimant had sustained permanent medical impairment, as opposed to an industrial disability, the ALJ was required to determine whether the claimant was entitled to benefits under the reemployment statute. The Boice court also held that in the absence of findings concerning the reemployment statute the ALJ's order was insufficient to permit appellate review of whether the ALJ erred in denying permanent disability benefits. 800 P.2d at 1342.
Here, it is undisputed that the claimant was reemployed after the 1988 injury and continued to perform his pre-injury job. This is illustrated, by the fact that W.C. No. 4-234-364 was consolidated for hearing with W.C. No. 4-112-638, in which the claimant sought permanent partial disability benefits in connection with an admitted low back injury in 1991 while working for the employer as a firefighter/paramedic. Further, the record contains some documentary evidence which suggests that the claimant was reemployed at his pre-injury rate of pay and extended the usual wage adjustments after the 1988 injury. See (Employer's First Report of Injury dated February 16, 1988; Employer's First Report of Injury dated July 19, 1991; respondents' Position Statement, January 19, 1996).
Moreover, the ALJ found and it is undisputed that the claimant sustained some permanent medical impairment as a result of the 1988 injury. However, the ALJ did not make any specific findings concerning the reemployment statute. Under these circumstances, the ALJ's findings are insufficient to ascertain the ALJ's basis for his refusal to award permanent partial disability benefits based upon medical impairment. Therefore, we remand the matter to the ALJ for additional findings of fact concerning the application of the reemployment statute, and a new order on the issue of permanent partial disability benefits consistent with those findings. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
In remanding the matter we necessarily reject the respondents' argument that we may not address the claimant's argument concerning the reemployment statute because the argument was not raised before the ALJ. Although the respondents' prehearing Position Statement does not expressly use the term "reemployment statute," the Position Statement nevertheless implicated the reemployment statute. The respondents asserted that the claimant should be denied permanent partial disability benefits because the claimant "continued to work for the employer long after the injury," and "had received raises while continuing to work for them." We conclude that by making this argument the respondents preserved for review the issue of whether the reemployment statute is applicable to the facts of this claim. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (the issue of estoppel was raised in claimant's position statement even though the legal term "estoppel" was not used, and therefore, estoppel argument not waived on appeal).
III.
The claimant also argues that the ALJ erroneously denied his claim for penalties in connection with the respondents' failure to admit or deny liability within the time prescribed by former § 8-53-102(1) C.R.S. (1986 Repl. Vol. 3B). In so doing, the claimant admits that the respondents are not subject to a penalty for failing timely to deny liability unless he was "successful on the claim for compensation." Furthermore, the claimant agrees with the respondents' assertion that the ALJ's refusal to impose penalties was based upon his finding that the claimant was not "successful" in establishing his entitlement to permanent partial disability benefits.
Our Order of Remand contemplated further proceedings on the penalty issue in the event the ALJ determined that the claim was not time barred. We also note that the January 16 order explicitly states that a "penalty against CCIA for failure to timely admit or deny liability" was one of the issues to be adjudicated.
However, the ALJ did not enter any specific findings of fact, conclusions of law or order on the penalty issue. Thus, the ALJ's findings are insufficient to permit appellate review of the claimant's contention that the ALJ erred in failing to impose penalties.
Moreover, insofar as the ALJ implicitly denied the penalty claim based upon his determination that the claimant was unsuccessful in establishing his entitlement to permanent partial disability benefits, he erred. A claimant is "successful on the claim for compensation" if the claimant establishes an entitlement to disability benefits. Racon Construction Co., v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo.App. 1989). In so doing, the claimant is not limited to establishing an entitlement to permanent partial disability benefits. To the contrary, a claimant is "successful" on the claim if he establishes his entitlement to temporary disability benefits, even if such benefits were actually paid as wages. Smith v. Myron Stratton Home, 676 P.2d 1196, 1201 (Colo. 1984); McCombs v. Red Mountain Corp., W.C. No. 4-277-899, (January 7, 1997). Strand v. Funk, W.C. No. 3-975-239 (May 17, 1991); Wehler v Continental Airlines, W.C. No. 3-954-825 (November 13, 1990).
Here, the claimant testified, and the ALJ found that, the claimant missed 23 work shifts as a result of the 1988 injury, and was compensated for the lost time by receiving his full salary under the employer's wage continuation plan. (Findings of Fact 3, 4). Therefore, the ALJ's findings support the conclusion that the claimant was "successful" on his claim for compensation, regardless of his entitlement to permanent partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated January 16, 1997, is affirmed insofar as it awarded medical benefits.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it denied permanent partial disability benefits, and a penalty for failure timely to admit or deny liability, and on these issues the matter is remanded to the ALJ for further proceedings, additional findings of fact and the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE 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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 31, 1997 to the following parties:
Robert J. Hoover, 5825 W. Louisiana Ave., Lakewood, CO 80232
Colleen Caudill, City of Englewood, 3400 S. Elati, Englewood, CO 80110
Colorado Compensation Insurance Authority, Attn: Carolyn Boyd, Esq., (Interagency Mail).
Eugene A. Duran, Esq., 3333 S. Wadsworth Blvd., Ste. D319, Lakewood, CO 80227, (For the Claimant).
Thomas M. Schrant, Esq., 3464 S. Willow St., Denver, CO 80231-4366, (For the Respondents).
Judy Montoya, CIRCA, 950 S. Cherry St., Ste. 800, Denver, CO 80222
Karen Gail Treece, Esq., 400 S. Colorado Blvd., Denver, CO 80222, (For the Respondents).
BY: ________________________________