Opinion
W.C. No. 4-126-533
November 26, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ Stuber), denying his claim for additional temporary disability and medical benefits absent the filing of a petition to reopen. We affirm.
The essential facts are undisputed. The claimant sustained a compensable injury in March 1992 and reached maximum medical improvement (MMI) in April 1994. The claimant underwent a division-sponsored independent medical examination (IME) in December 1994, and the IME physician opined that the claimant is suffering from an 11.5% impairment of the right lower extremity.
Following this rating, the claimant sought a hearing arguing that, because he was a minor, § 8-42-102(4), C.R.S. 1997, entitled him to maximum compensation for loss of a leg at the hip. However, in an order dated July 31, 1995, ALJ Friend rejected this argument and awarded the claimant permanent partial disability benefits of $3,588, at the rate of $150 per week. ALJ Friend's order contains no provision reserving other issues for later determination. Ultimately, ALJ Friend's order was affirmed by the court of appeals in Williams v. Industrial Claim Appeals Office, 932 P.2d 869 (Colo.App. 1997).
In October 1996, the claimant filed another application for hearing seeking additional temporary total disability and medical benefits. The claimant alleged that he was suffering from depression causally related to the industrial injury.
However, at the hearing the respondents argued that ALJ Friend's order had closed the claim, and that it was improper for ALJ Stuber to award additional benefits absent the filing of a petition to reopen. Relying principally on Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1992), the ALJ agreed with the respondents and dismissed the application for hearing.
On review, the claimant contends that ALJ Stuber erred in dismissing the application for hearing. He argues that the "only issue" considered by ALJ Friend was the issue of compensation for a minor, and that all other issues were implicitly reserved for future determination. The claimant also asserts that by agreeing to limit the issue in this fashion, the respondents implicitly agreed to reserve other issues. We disagree.
Section 8-43-303(1), C.R.S. 1997, provides that an ALJ may reopen an "award" on grounds including error, mistake, and change of condition. Consequently, the critical issue is what constitutes an "award" for purposes of the reopening statute.
The court of appeals addressed this issue in Brown Root, Inc. v. Industrial Claim Appeals Office, supra. There, the court stated that it had "no hesitancy" in concluding that an order addressing medical, temporary disability, and permanent disability benefits constitutes an "award" for purposes of closing a claim and activating the reopening statute. Thus, when such an order becomes final by the exhaustion of, or failure to exhaust, administrative review proceedings, no further benefits may be awarded unless the matter is reopened based on the statutory grounds contained in § 8-43-303(1).
The Brown Root court went further to state that an order which grants or denies temporary disability benefits, without mentioning permanent disability benefits, constitutes an "award" for purposes of closing the claim. However, if such an order expressly reserves jurisdiction over other issues, the order does not constitute an "award" for purposes of closing the claim.
It follows that ALJ Stuber correctly ruled that ALJ Friend's July 1995 order constituted an "award" for purposes of § 8-43-303(1). Although the specific legal "issue" addressed by ALJ Friend concerned the proper amount of compensation for a minor, the order ultimately awarded permanent partial disability benefits to the claimant. Further the order did not reserve other issues.
Significantly, an award of permanent partial disability benefits cannot be made until the claimant reaches MMI, and no further temporary disability benefits are justified. See § 8-42-105(3)(a), C.R.S. 1997; Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996). Similarly, the right to ongoing medical benefits must be determined at the time permanent partial disability benefits are awarded. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Because ALJ Friend's order addressed the issue of permanent partial disability benefits, it necessarily implied that the claimant's condition was stable and he was not entitled to further temporary benefits. Further, the claimant's failure to request Grover medical benefits indicates that he was not seeking any. Therefore, ALJ Friend's order implicitly addressed all three types of benefits, and retained no jurisdiction over any benefits. Consequently, ALJ Stuber correctly determined that the order constituted an "award" for purposes of closing the claim. Brown Root, Inc. v. Industrial Claim Appeals Office, supra; El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
The claimant also argues that, because the respondents did not raise the issue of closure until the hearing, the issue was waived. However, when the question of closure was drawn to ALJ Stuber's attention, the claimant made no objection to consideration of the matter. Therefore, the claimant may not now object to the fact that the ALJ resolved the issue adversely to him. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995) (claim of waiver may itself be waived).
IT IS THEREFORE ORDERED that the ALJ's order dated May 20, 1997 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 26, 1997 to the following parties:
George Williams, 18 Old Ironside Way, Charleston, MA 02129
Jay Kupec, Black Roofing, Inc., 6115 Ben Place, Boulder, CO 80301
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. (Interagency Mail)
Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
Roger Fraley, Jr., Esq., 3113 E. Third Ave., #200, Denver, CO 80206 (For the Claimant)
By: __________________________