Opinion
W.C. No. 4-147-752
December 24, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Wells (ALJ) which awarded temporary total disability benefits subject to the $120,000 benefit cap created by § 8-42-107.5, C.R.S. 1998. We affirm.
Section 8-42-107.5, in pertinent part provides that:
"No claimant whose impairment rating is twenty-five percent or less may receive more than $60,000 from combined temporary disability payments and permanent partial disability payments. No claimant whose impairment rating is greater than twenty-five percent may receive more than one hundred twenty thousand dollars from combined temporary disability payments and permanent partial disability payments."
Here, the respondent admitted liability for a 1993 injury and paid temporary total disability benefits in the amount of $25,713.31. On September 11, 1996, the respondent filed a Final Admission of Liability terminating temporary total disability benefits effective September 24, 1994, the date of maximum medical improvement (MMI). The Final Admission also admitted liability for permanent partial disability benefits of $27,499.99 based on a 26 percent whole person impairment rating.
The claimant subsequently applied for a hearing on permanent total disability. Prior to the hearing, the claimant accepted the respondent's offer of vocational rehabilitation. Therefore, the respondent agreed to reinstate temporary total disability benefits. However, the respondent asserted that pursuant to § 8-42-107.5 the claimant is limited to combined temporary total and permanent partial disability benefits of $60,000. Relying on Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995), the respondent also requested an order allowing them to offset previously paid permanent partial disability benefits against its liability for temporary disability benefits to be paid during vocational rehabilitation.
The ALJ determined that because the respondent admitted liability for the payment of permanent partial disability benefits based upon a 26 percent impairment rating, the respondent's liability for further temporary total disability benefits is limited by the $120,000 cap in § 8-42-107.5. Furthermore, the ALJ determined the respondent is not entitled to any offset or credit.
The respondent's Petition to Review alleges that the order awarding temporary total disability benefits "without application of the limits in § 8-42-107.5" is not supported by the facts or the applicable law." The respondent also contends the ALJ erred in finding that the claimant is entitled to additional temporary disability benefits without affording the respondent a "credit or offset." However, we note that the respondent did not file a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Contrary to the respondent's contention the ALJ did not award benefits "without application of the limits in § 8-42-107.5." The ALJ merely rejected the respondent's contention that the claim is subject to the $60,000 limit rather than the $120,000 limit.
The respondent does not seek to withdraw its Final Admission of Liability for the payment of permanent partial disability benefits, and the claimant does not dispute the 26 percent impairment rating. Therefore, the ALJ correctly determined that the respondent's liability is governed by the $120,000 benefit cap in § 8-42-107.5.
Furthermore, we agree with the ALJ that Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, supra, does not entitle the respondent to an offset to be applied against payments in excess of $60,000. The claimant in Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, supra, was rated as having a 17 percent whole person impairment at the time he initially reached MMI. Under these circumstances, the court held that the claim was governed by the $60,000 cap in § 8-42-107.5, and the respondents had paid a total of $60,000 in temporary total and permanent partial disability benefits. The claimant's condition subsequently worsened to the point that he was no longer at MMI, and additional temporary disability benefits were awarded. To avoid or minimize a potential overpayment in the event the claimant's medical impairment rating from the worsened condition was later determined to be 25 percent or less, the Murphy court allowed the respondents to offset previously paid permanent partial disability benefits against their liability for additional temporary total disability benefits.
Here, unlike Murphy, the claimant is at MMI and her permanent medical impairment rating is ascertainable and undisputed. It follows that Murphy is factually distinguishable from the circumstances presented here. Cf. Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997) (applying $60,000 cap where claimant's impairment rating was established at 24 percent and claimant was receiving rehabilitation).
Moreover, the impairment rating in this case entitles the claimant to a maximum of $120,000 in temporary total and permanent partial disability benefits. The respondent has not yet paid $120,000 in combined benefits, and therefore, the respondent does not face the overpayment problem presented in Murphy. This is true because the remaining issue for adjudication is permanent total disability, resolution of which depends on the claimant's ability to earn wages in the labor market, not the medical impairment rating. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Thus, claimant's successful completion of vocational rehabilitation will not affect the claimant's impairment rating or the award of permanent partial disability benefits. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ's order dated November 7, 1997, 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, 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. 1998.
Copies of this decision were mailed December 24, 1998 to the following parties:
Jacqueline Kinnecom, 2109 Shawnee Drive, Colorado Springs, CO 80915
Laurel Manor Care Center, Dana Olson, 920 South Chelton Road, Colorado Springs, CO 80910
Colorado Hospital Trust, Support Services Inc., Sharon Thompson, P.O. Box 22438, Denver, CO 80222
Jon C. Thomas, Esq., 1032 North Wahsatch Avenue, Colorado Springs, CO 80903 (For Claimant)
William Richardson, Esq., Bonnie J. McLaren, Esq., 1430 Larimer Square, #400, Denver, CO 80202 (For Respondents)
BY: ____________