Opinion
W.C. No. 4-248-731
October 11, 2000
FINAL ORDER
The respondents, and the claimant have petitioned separately for review of an order of Administrative Law Judge Mattoon (ALJ Mattoon) which awarded temporary partial disability benefits from February 17, 1997 to September 23, 1997. The claimant contends ALJ Mattoon erred in failing to award benefits commencing October 2, 1996. The respondents contend the award was error in the absence of an order reopening the claim. We agree with the respondents. Therefore, we set aside the award of temporary disability benefits, and need not address the arguments raised in the claimant's petition.
The claimant suffered a compensable shoulder injury in February 1994 and the respondents admitted liability for temporary disability benefits. The claim was closed pursuant to the respondents' filing of an uncontested Final Admission of Liability. The admission terminated temporary disability benefits effective January 19, 1996, the date Dr. Weinstein placed the claimant at maximum medical improvement (MMI).
On October 2, 1996, Dr. Higginbotham opined that the claimant suffered a worsening of his condition from the industrial injury and was no longer at MMI. Relying on Dr. Higginbotham's opinions, the claimant filed a petition to reopen the claim on the ground of a change of condition. On September 23, 1997, Dr. Higginbotham placed the claimant at MMI for the worsened condition and rated the claimant's permanent medical impairment. Dr. Schutt, who performed a Division-sponsored independent medical examination, agreed with Dr. Higginbotham's finding of MMI and opined the claimant suffered 10 percent whole person impairment.
In an order dated July 2, 1998, ALJ Stuber granted the claimant's petition to reopen, awarded permanent partial disability benefits based on 12 percent whole person impairment, and ordered the respondents to provide future medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We affirmed ALJ Stuber's order on April 13, 1999. No further appeal was taken.
In June 1999, the claimant filed an application for hearing on the issues of petition to reopen, average weekly wage, and temporary disability benefits. However, the claimant did not file a new petition to reopen. At hearing, the claimant clarified that he was seeking an award of temporary total disability benefits retroactive to October 2, 1996. The respondents argued the issue of temporary disability benefits was closed in the absence of the filing of a new petition to reopen and an order granting the petition.
ALJ Mattoon determined the claim for temporary disability benefits was within the ambit of the claimant's November 1996 petition to reopen. Further, ALJ Mattoon determined that there is no statute or rule which required the claimant to litigate all issues at the hearing before ALJ Stuber. Therefore, ALJ Mattoon determined the claimant was not required to file a new petition to reopen prior to a hearing on his request for additional temporary disability benefits. However, the ALJ Mattoon determined that the circumstances did not warrant an award of benefits retroactive to October 1996, and limited the award to benefits for the period of February 17, 1997 to September 23, 1997.
On review, the respondents continue to assert that the issue of temporary disability was closed by our Final Order dated April 13, 1999, and that the claimant is precluded from receiving further temporary disability benefits in the absence of a petition and order reopening the claim. We agree.
A claim may be closed by a "final award" resulting from an admission or order after a contested hearing. The term "award" includes an order which grants or denies benefits. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). Under the statutory provisions currently codified at § 8-43-303, C.R.S. 2000, the claimant is precluded from receiving further benefits after a claim is closed, unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
In Brown Root, the court held that an order which denied temporary disability benefits, but contained an express reservation of jurisdiction over the subject of permanent disability, did not close the claim. However, the court concluded that if the order had not contained an express reservation, it would "normally" have been considered an award requiring a reopening prior to granting any other benefits.
We do not dispute ALJ Mattoon's finding that there is no statute or rule which requires a party to litigate every issue at a single hearing. However, Brown Root supports the conclusion that, unless an ALJ's award of benefits expressly reserves other issues for future determination, the "award" closes the claim and subjects the parties to the reopening requirements prior to litigation of any further issues. See D. Cain , The Colorado Lawyer, Brown Root: When an ALJ's Order is an "Award," September 1993, Vol. 22, No. 9 p. 1927.
The issues before ALJ Stuber at the hearing on May 28, 1998, were petition to reopen, permanent partial disability, and Grover-type medical benefits. ALJ Stuber's order dated July 2, 1998, granted the claimant's 1996 petition to reopen, and granted additional permanent partial disability and medical benefits. However, the order does not contain a clause which expressly reserves other issues for future determination.
It follows that the claimant's failure to seek appellate review of our order dated April 13, 1999, resulted in ALJ Stuber's order becoming a "final award" which closed the claim. Consequently, ALJ Mattoon erred in determining that the claimant was not required to file a new petition to reopen, and in awarding additional temporary disability benefits.
As a result of our conclusions, the claimant's contention that ALJ Mattoon should have awarded temporary disability benefits commencing October 1996, is moot.
IT IS THEREFORE ORDERED that the ALJ's order dated November 17, 1999, is set aside insofar as it requires the respondents to pay temporary partial disability benefits from February 17, 1997 to September 23, 1997. The order denying temporary disability benefits beginning October 2, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 11, 2000 to the following parties:
James A. Weis, 19533 Murphy Rd., Peyton, CO 80831
Terri Danberg, Litton Data Systems, P. O. Box 6008, M/S 15-24, Agoura Hills, CA 91376-6008
Continental Casualty Company, CNA Insurance, CNA Plaza, Chicago, IL 60685
Continental Casualty Company, CNA Insurance Company, P. O. Box 17369 T. A., Denver, CO 80217
Wendy Stalkfleet, RSKCo, P. O. Box 5408, Denver, CO 80217-5408
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: L. EPPERSON