Opinion
W.C. No. 4-496-922.
December 16, 2004.
ORDER OF REMAND
The claimant and the respondents petitioned separately for review of a Corrected Order of Administrative Law Judge Gartland (ALJ), which awarded permanent partial disability (PPD) and permanent total disability (PTD) benefits and denied the respondents' request to reduce or suspend the benefits pursuant to § 8-43-404(3), C.R.S. 2004. We set aside the order and remand the matter for the entry of a new order.
The claimant suffered admitted injuries on March 6, 2001, when she was assaulted by an Alzheimer's patient at the residential facility where she was employed. As a result of the injuries the claimant was temporarily unable to return to employment.
The claimant was subsequently diagnosed with Post Traumatic Stress Disorder (PTSD), Major Depression, and Schizotypal Personality Disorder. The claimant underwent psychotherapy but refused to take anti-psychotic and antidepressant medications. On November 22, 2002, the claimant was placed at maximum medical improvement (MMI), with 22 percent mental impairment from the work-related assault. The respondents filed a Final Admission of Liability which admitted the claimant suffered 22 percent permanent mental impairment, however because the respondents had already paid more than 12 weeks of temporary disability benefits, the respondents denied liability for mental impairment benefits.
The claimant's request for PTD benefits and the payment of PPD benefits was heard at a hearing on March 17, 2004. The respondents conceded the claimant was PTD but argued she would not be PTD if she took the medication prescribed by the authorized providers. Further, the respondents argued the claimant's refusal to take anti-psychotic medication was an injurious practice that justified the suspension or reduction of benefits under § 8-43-404(3).
In an order dated June 10, 2004, the ALJ required the respondents to pay PTD benefits commencing March 17, 2004. The ALJ also determined the claim is not subject to the 12 week limitation of combined temporary disability and permanent disability benefits under § 8-41-301(2)(b), C.R.S. 2004, because the claimant's psychological disability was caused by the assault and not the claimant's physical injury. Further, the ALJ determined the claimant was the victim of a crime of violence. Therefore, the ALJ determined the respondents are liable for mental impairment benefits due on account of the 22 percent impairment rating. Finally, the ALJ denied the respondents' request for a suspension or reduction of benefits under § 8-43-404(3), C.R.S. 2004.
The claimant moved for a corrected order requiring the respondents to pay PTD benefits retroactive to November 22, 2002. On June 29, 2004, the ALJ issued a Corrected Order which required the respondents to pay PTD benefits, but the ALJ crossed out proposed language that PTD commenced "November 22, 2002." Both parties timely appealed the Corrected Order.
On review, the claimant contends that, as a matter of law the ALJ erroneously failed to award PTD benefits commencing November 22, 2002. We conclude the ALJ's order is insufficient to permit appellate review and, therefore, we remand the matter for the entry of a new order.
Although the amount of benefits are calculated differently, PPD and PTD both compensate for a permanent loss of earning capacity. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo.App. 2001). PPD is based on the claimant's degree of medical or mental impairment. Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). PTD is paid if the claimant is "unable to earn any wages in the same or other employment." Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997).
The degree and nature of the claimant's permanent disability cannot be determined until MMI, which 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. 2004. Consequently, once a claimant reaches MMI, all disability is considered permanent. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002); McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999); Husson v. Industrial Claim Appeals Office, 991 P.2d 346 (Colo.App. 1999).
As argued by the respondents, if the claimant's ability to earn wages is less than total at the time of MMI, the claimant is limited to an award of PPD benefits and precluded from receiving PTD benefits unless the claimant suffers a subsequent worsening which strips the claimant of all residual earning capacity. For example, in National Fruit Product v. Crespin, 952 P.2d 1207 (Colo.App. 1997), the claimant sustained a compensable injury in 1989 and was awarded PPD 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 was awarded PTD benefits commencing in July 1995. Under these circumstances, the claimant was entitled to PPD for the period of time when his permanent wage loss was less than total, and PTD benefits commencing the date the worsened condition rendered him totally unable to work. Accordingly, we conclude that a claimant found to be PTD is entitled to PTD benefits retroactive to the date of MMI in the absence of a finding that the claimant was capable of earning wages on the date of MMI and suffered a subsequent worsening of condition which rendered the claimant PTD at a later date.
Here, it is undisputed the claimant reached MMI on November 22, 2002. At hearing the respondents did not contend that if the claimant was PTD, she became PTD on a date other than the date of MMI. Neither did they purport to offer evidence the claimant was capable of employment on November 22, 2002, and suffered a subsequent worsening of condition. Instead, the respondents defended the claim for PTD by arguing the claimant would not be PTD if she agreed to take the anti-psychotic medication.
The ALJ's factual determinations are subject to conflicting interpretation. The ALJ found the claimant made treatment progress until approximately June 2002, when a disruption in her receipt of workers' compensation benefits caused her to become homeless. (Findings of Fact 11, 19; Discussion and Conclusions of Law 5). The ALJ then determined the claimant demonstrated a gradual worsening of her condition. However, the ALJ did not expressly find the claimant was capable of earning wages between November 22, 2002 and March 17, 2004. Neither did the ALJ determine whether the respondents proved the claimant was not PTD as of November 22, 2002. Nevertheless, the ALJ ordered the respondents to pay PPD benefits. Further, the ALJ crossed out language in the proposed Corrected Order which required the payment of PTD retroactive to November 22, 2002 and did not insert an alternate date. The ALJ also withdrew her order requiring the respondents to pay PTD commencing March 17, 2004, despite finding the claimant is "currently" PTD.
Under these circumstances, we are unable to ascertain what date the ALJ found the claimant became entitled to PTD. Consequently, we remand the matter for the ALJ to issue additional findings of fact and enter a new order concerning the commencement date for the payment of PTD benefits. Section 8-43-301(8), C.R.S. 2004.
Furthermore, it is well established that a claimant may not receive PPD and PTD benefits for the same period of disability. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996). Consequently, if, on remand, the ALJ awards PTD benefits commencing November 22, 2002, the claimant's entitlement to PPD benefits is extinguished. Therefore, it is premature to consider the respondents' contention the ALJ misapplied the law in finding the claim is not subject to the 12 week limitation of combined temporary disability and permanent mental impairment benefits under § 8-41-301(2)(b).
Finally, the respondents contend the ALJ misapplied the law in finding the claimant's refusal to take anti-psychotic medication was reasonable based on the claimant's subjective perception. We conclude additional findings are necessary.
The ALJ found the prescribed medication is reasonably essential to promote the claimant's recovery and that the claimant's refusal to take such medication was unreasonable from the perspective of mental health professionals. However, the ALJ found that "from claimant's perspective, her decision [not to take the medication] is a reasonable one." (Discussion and Conclusions of Law 7). Then upon consideration of the claimant's personal and family history of drug abuse, the circumstances of claimant's parents death and the claimant's prior success in recovering from alcohol and drug addiction, the ALJ declined to reduce or suspend the claimant's compensation.
We are unable to determine from the ALJ's findings whether she found the claimant did not unreasonably refuse to take the prescribed medication or that the refusal was unreasonable but did not warrant a suspension or reduction of benefits under the totality of circumstances. Consequently, the ALJ findings are insufficient to determine whether there is any reversible error. Therefore, we remand the matter for additional findings.
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated June 29, 2004, is set aside and the matter is remanded to the ALJ for the entry of a new order on these issues consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Robert M. Socolofsky
Kathryn "Deni" Wiley, c/o Terry Wiley, Conservator, Houston, TX, Pine Ridge Extended Care Center, Pagosa Springs, CO, Gwen Brightwell, Royal SunAlliance, Englewood, CO, Robert C. Dawes, Esq., Durango, CO, (For Claimant).
Eliot Wiener, Esq. and T. Paul Krueger II, Esq., Denver, CO, (For Respondents).