Opinion
W.C. No. 4-255-233
November 26, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ Muramoto) which permitted the respondents to take an offset of permanent partial disability (PPD) benefits against an award of permanent total disability (PTD) benefits, and denied a claim for penalties. We affirm.
The facts in this case are undisputed. In May 1995 the claimant sustained multiple injuries in a compensable auto accident. In February 1996 the claimant was released to return to his pre-injury employment as an assisted living counselor. On July 2, 1996, the claimant was placed at maximum medical improvement (MMI) with an 11 percent whole person impairment rating. The rating was based on impairment attributable to a head injury and injury to the right knee. Consistent with the impairment rating, the respondents filed a final admission of liability (FAL) dated September 4, 1996, admitting liability for PPD benefits from July 2, 1996 through September 17, 1997. ALJ Muramoto determined the actual amount of PPD paid under the FAL was $10,531.85. The claimant objected to the FAL.
In June 1997 physicians diagnosed the claimant with a previously undetected spinal condition known as syringomyelia. This condition causes pain, muscle weakness and breathing difficulties. The claimant then sought a hearing seeking medical benefits for treatment of syringomyelia. In an order dated June 14, 2000, ALJ Felter found the industrial injury aggravated the syringomyelia and ordered the respondents to provide reasonable and necessary medical treatment for the condition.
Thereafter, the claimant sought additional temporary total disability (TTD) benefits on the theory that he never reached MMI for the syringomyelia. In an order dated December 21, 2000, ALJ Felter found the previous MMI date of July 2, 1996 was overcome by clear and convincing evidence because it failed to recognize the existence of and compensable nature of the syringomyelia. Hence, ALJ Felter determined the claimant never reached MMI and ordered the respondents to pay TTD benefits from September 16, 1997 (when the claimant was no longer able to continue working) until the claimant was again placed at MMI on December 21, 1999.
Next, the claimant sought a hearing on PTD. On April 16, 2001, ALJ Felter determined the claimant proved entitlement to PTD benefits commencing December 21, 1999. ALJ Felter also provided the respondents were entitled to "any offsets."
The respondents admitted liability benefits in accordance with ALJ Felter's April 16 order, but did not commence payment of PTD benefits until January 11, 2001. The respondents claimed the right to offset the PTD benefits by the PPD benefits previously paid under the September 1996 FAL. The claimant objected to the offset and sought penalties for the respondents' alleged failure to pay benefits as required by ALJ Felter's order.
In the order dated February 2, 2002, ALJ Muramoto reasoned that PPD benefits are not due and owing until a claimant reaches MMI, and the effect of ALJ Felter's December 21 order was to "nullify" the July 2, 1996 date of MMI. Consequently, ALJ Muramoto concluded the claimant was not entitled to the PPD benefits paid under the FAL, and that the benefits could be offset against the award of PTD benefits. For the same reason ALJ Muramoto held the respondents did not violate ALJ Felter's order by failing timely to pay PTD benefits.
The claimant filed a petition to review containing a detailed legal argument challenging ALJ Muramoto's order. However, no party filed a brief. Because the petition to review is specific, and because the filing of a brief is not a jurisdictional prerequisite to review, we consider the claimant's argument. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1996).
Placing principal reliance on National Fruit Product v. Crespin, 952 P.2d 1207 (Colo.App. 1997), the claimant argues the ALJ Muramoto's order denied her PPD benefits to which she was entitled. See also, United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000). We disagree.
In National Fruit Product v. Crespin, supra, the claimant sustained a compensable injury in 1989 and was awarded permanent disability benefits based on disability of 5 percent as a working unit. Thereafter, the claim was reopened on three occasions because of the claimant's worsened condition. As a result of the final reopening the claimant received additional TTD benefits, and was awarded PTD benefits commencing in July 1995. The respondents claimed entitlement to reduce the PTD award by the amount of the previously paid PPD benefits.
However, the National Fruit Product court denied the offset. The court held that, although PPD and PTD benefits are both payable for permanent loss of earning capacity, they are "payable in differing amounts for essentially different periods." Consequently, the court concluded that if the offset were allowed the "claimant would, in effect, receive no compensation whatsoever for those periods when he was permanently and partially disabled." 952 P.2d at 1208 (Emphasis added).
We agree with the ALJ that National Fruit Product is distinguishable from the facts of this case because, under the law, the claimant was not permanently and partially disabled at any time before he reached MMI on December 21, 1999. MMI is the point in time when the claimant's condition becomes stable and impairment becomes determinable. Section 8-40-201(11.5), C.R.S. 2002. Hence, MMI establishes the line of demarcation between temporary disability and permanent disability. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). Consistent with this rule, § 8-42-107(8)(d), C.R.S. 2002, provides that medical impairment benefits are paid beginning on the date of MMI. Indeed, that is why temporary disability and permanent disability benefits are usually paid in a consecutive fashion. U.S. West Communications, Inc. v. Industrial Claim Appeals Office, 978 P.2d 154 (Colo.App. 1999). Further, once a claimant reaches MMI, his disability is considered permanent unless he demonstrates a worsened condition which results in additional impairment of the claimant's earning capacity. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
In contrast to PPD and PTD benefits, TTD benefits compensate for an actual loss of wages which results from disability during the healing period before MMI. Hussion v. Industrial Claim Appeals Office, 991 P.2d 346 (Colo.App. 1999); Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994); J. D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Of course, several circumstances, including the claimant's release or return to regular employment, may terminate the right to receive TTD benefits before the claimant reaches MMI. Section 8-42-105(3)(b) and (c), C.R.S. 2002; City of Colorado Springs v. Industrial Claim Appeals Office, supra. Thus, the right to receive PPD benefits does not automatically follow the termination of TTD benefits. Indeed, some claimants may be entitled to PPD benefits without ever receiving any TTD benefits.
Here, the claimant asserts he was "entitled" to receive the PPD benefits paid pursuant to the September 1996 FAL. However, the claimant successfully argued to ALJ Felter that he did not reach MMI on July 2, 1996, and did not do so until December 21, 1999. Consequently, the respondents were not obliged to pay any PPD benefits before December 21, 1999, because the claimant never reached MMI. Section 8-42-107(8)(d).
The claimant's reliance on National Fruit Product, as authority for a contrary result, is misplaced. Although National Fruit Product does not expressly mention MMI, it does state the claimant was paid PPD after the original injury and on two subsequent occasions when the claimant's condition worsened. As we have shown, MMI is a prerequisite to liability for PPD benefits. Consequently, National Fruit Product necessarily implies the PPD benefits were paid after the claimant reached MMI on three dates. That case certainly does not purport to involve the payment of PPD benefits to a claimant before the claimant reached MMI.
Moreover, the policy concerns underlying National Fruit Product do not apply in this case. In National Fruit Product the proposed offset of PPD benefits against PTD benefits would have meant the claimant was without compensation during a period of time when he was not entitled to TTD benefits, and was experiencing a permanent loss of earning capacity. Here, in contrast, the PPD benefits were paid during a period when the claimant was entitled to receive TTD benefits, provided he met the statutory eligibility criteria. Indeed, when the claimant was unable to continue work in September 1997, ALJ Felter reinstated the claimant's TTD benefits. It follows that to deny an offset under the circumstances of this case would result in a windfall to the claimant because he could retain PPD benefits for a period of time he was not entitled to receive them. Further, as ALJ Muramoto concluded, no penalty is appropriate under these circumstances.
IT IS THEREFORE ORDERED that ALJ Muramoto's order dated February 7, 2002, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ______November 26, 2002_____ to the following parties:
James White, 6606 Cottonwood Dr., #22, Louisville, CO 80027
Carmel Community Living Corporation, 3030 Sterling Cir., Boulder, CO 80301-2338
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Laura E. Schwartz, Esq., 5390 Manhattan Cir., 2nd floor, Boulder, CO 80303 (For Claimant)
David L. Smith, Esq., 600 17th St., #1600N, Denver, CO 80202
By: A. Hurtado