Opinion
W.C. No. 4-320-104.
March 7, 2005
FINAL ORDER
The claimant and the respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which determined the claimant's permanent total disability (PTD) benefits commenced October 25, 2002. We reverse and order that the PTD benefits be paid commencing January 24, 2000, the date of maximum medical improvement (MMI).
This case has a complicated procedural history. We review that history to the extent necessary to resolve the issues presented.
The claimant sustained a compensable injury to her right upper extremity in 1996. She underwent a complicated course of treatment involving three surgeries before she was placed at MMI in 1999. The claimant then underwent a Division-sponsored independent medical examination (DIME). The DIME physician placed the claimant at MMI on January 24, 2000, with a 22 percent whole person impairment attributable to the right upper extremity and depression. The respondents filed a Final Admission of Liability (FAL) on March 22, 2000, admitting liability in accordance with the DIME physician's impairment rating. On April 19, 2000, the claimant objected to the FAL raising the issues of MMI, entitlement to PTD benefits, and the right to ongoing medical benefits after MMI.
Subsequently, two separate orders were entered concerning the right to ongoing medical benefits. In an order dated October 31, 2000, the ALJ found the claimant entitled to surgery for removal of a screw in the right wrist, as well as treatment to prevent deterioration of her left hand. The ALJ concluded these benefits were compensable as maintenance treatment and, therefore, the claimant was not obliged to overcome the DIME physician's MMI determination. In an order dated December 24, 2001, a second ALJ awarded additional maintenance treatment including physical therapy.
In May 2003, the matter proceeded to hearing on the claimant's entitlement to PTD benefits. The ALJ received a large amount of evidence concerning the claimant's physical, mental and vocational condition. Some of this evidence, including expert vocational opinion and evidence of medical restrictions, was developed subsequent to the date of MMI.
In an order dated June 3, 2003, the ALJ concluded the claimant proved entitlement to PTD benefits because she is unable to earn any wages. The ALJ relied on the claimant's vocational expert who opined, as he did in March 2000, that the claimant is not employable. The ALJ noted the expert reviewed medical reports developed subsequent to the original MMI date, and that his opinion is primarily based on the claimant's physical restrictions. Consequently, the ALJ ordered that the "respondents shall pay claimant permanent and total disability benefits." However, the order does not explicitly state the date on which PTD benefits are to commence. No issues were reserved for future determination.
The respondents appealed the ALJ's June 3 order. They argued the ALJ applied an incorrect standard of law in finding the claimant proved PTD, and that numerous findings of fact were not supported by the evidence. There was no argument concerning the date PTD benefits should commence. We affirmed the ALJ's order in a Final Order dated January 30, 2004. Our order was not appealed.
On February 27, 2004, the respondents filed an FAL admitting PTD benefits commencing June 3, 2003, the date of the ALJ's order. The claimant objected to the FAL and filed a motion for summary judgment arguing that PTD benefits should be paid from the date of MMI. However, in an order dated June 10, 2004, the ALJ denied the motion. The ALJ ruled that when considering PTD she is not restricted to considering facts in existence on the date of MMI, and that the claimant's "human factors" may have changed between the date of MMI and the date of the hearing. Thus, the ALJ concluded that a claimant may not be PTD on the date of MMI but may be PTD at a later date.
The claimant then requested a hearing to present witnesses concerning the date PTD benefits should commence. On July 7, 2004, the ALJ denied this request ruling that the claimant had the burden of "presenting evidence concerning the date of onset of" PTD at the May 2003 hearing, and the doctrine of res judicata precluded the claimant from presenting additional evidence at a new hearing.
On August 16, 2004, the ALJ entered the order currently under review. The ALJ found the claimant had additional surgery after MMI, that her left upper extremity problems were treated after MMI, and that the claimant attended a pain clinic in October 2002 which "led to a current definition of her condition." Thus, the ALJ concluded that the "evidence regarding claimant's physical condition evolved following her MMI date," and the claimant "was permanently and totally disabled at the time she was released from the pain clinic, on October 25, 2002." Consequently, the ALJ ordered the PTD benefits to commence on October 25.
On review, the claimant contends that MMI is the "controlling date" for an award of PTD benefits, and the if the respondents wished to argue for some other date they should have done so at the May 2003 hearing. However, since the respondents made no such argument, the claimant contends the PTD benefits are payable from the date of MMI and the respondents' failure to appeal our order of January 30, 2004, has rendered the issue final. It follows that the claimant takes the position that the ALJ lacked jurisdiction to determine the commencement date for PTD benefits in the August 2004 order.
The respondents argue that the ALJ lacked jurisdiction to "reconsider the June 3, 2003 order, and that the date of that order is the start date for PTD benefits." The respondents also take issue with the claimant's assertion that the date of MMI is the date on which PTD benefits commence. Rather, the respondents assert that the start date is an issue of fact which the claimant must prove. Finally, the respondents argue the August 16 order is not supported by substantial evidence insofar as it finds October 25, 2002, to be the date for commencement of PTD benefits. Considering the facts of this case, we agree with the claimant's arguments.
MMI is the point in time when any "medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition." Further, the provision of maintenance medical treatment or deterioration resulting from the mere passage of time does not affect a finding of MMI. Section 8-40-201(11.5), C.R.S. 2004.
At the attainment of MMI the claimant's right to temporary disability benefits ceases, and any residual impairment of earning capacity, be it partial or total, becomes permanent. Section 8-42-105(3)(a), C.R.S. 2004; City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). As stated in Golden Animal Hospital v. Horton, 897 P.2d 833, 838 (Colo. 1995), MMI has long been considered the date that temporary disability ends and permanent disability begins, and that principle is now codified in the Act. See also, McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999) (MMI is point of demarcation between temporary and permanent disability); Wiley v. Pine Extended Care Center, W.C. No. 4-496-922 (December 16, 2004).
Although the standards for and methods of proving entitlement to permanent partial disability (PPD) and PTD benefits differ, both types of benefits are payable for permanent loss of earning capacity. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996). Consequently, an FAL for PPD benefits has been treated as an implicit denial of liability for PTD benefits. Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001).
Considering these principles, we agree with the claimant that the issue framed for the ALJ at the May 2003 hearing was whether the claimant's permanent disability was partial or total on the date she reached MMI. If the claimant could not prove PTD as of the date of MMI, the respondents' March 2000 FAL for PPD would have been approved and the issue of permanent disability would have been closed. The claimant would then have been ineligible for PTD benefits unless she could reopen based on mistake or change of condition. See Brown Root v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1992) (an order which addresses medical, temporary and permanent disability benefits constitutes an "award" which is final unless reopened).
It follows that when we affirmed the ALJ's June 2003 order, we understood the order as implicitly finding, in accordance with established law, that the claimant proved entitlement to PTD benefits commencing on the date of MMI. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings and conclusions necessarily implied by an ALJ's order). Indeed, had we believed the order was not intended to establish the date for commencement of PTD benefits, we would have held the order was interlocutory because it would not have specified the respondents' liability for PTD benefits. In such circumstances we would have dismissed the respondents' appeal without prejudice and remanded to determine the date for commencement of PTD benefits. Section 8-43-301(2), C.R.S. 2004 (party may file petition to review an order which awards or denies any benefits or penalties); Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003). Our conclusion that the ALJ's order was intended to be final was reinforced by the explicit direction to pay PTD benefits, the absence of a clause reserving issues (such as the commencement date of PTD benefits) for future determination, and the ALJ's decision to place a notice on the order describing it as a final order subject to review.
The ALJ's comments notwithstanding, the fact that the ALJ considered post-MMI evidence concerning the claimant's physical, mental, and vocational circumstances did not lead us to a different interpretation of the June 3 order. Frequently some information presented at hearing concerning the claimant's "human factors" is based on evidence which is developed or discovered after the date of MMI. Post-MMI medical examinations, vocational examinations, and functional capacities evaluations are common in PTD cases. Eg. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (evidence claimant held job as food service worker for two to three hours per day at the time of the hearing did not preclude finding the claimant was entitled to PTD benefits). The fact that evidence is discovered or developed after the date of MMI does not mean such evidence irrelevant to the question of whether the claimant was PTD on the date of MMI. We know of no published authority which holds that PTD commences on the date the claimant aquires the piece of evidence which the ALJ finds is most persuasive on the issue of PTD. However, in Golden Animal Hospital v. Horton, supra, the court did note that the date of a hearing bears no relationship to the claimant's physical condition.
We also recognize that it is possible that a claimant may reach MMI with less than total disability, and then suffer a worsening of condition which justifies reopening and renders the claimant PTD. In such cases the claimant may receive an award of PPD benefits followed by an award of PTD benefits. See National Fruit Product v. Crespin, 952 P.2d 1207 (Colo.App. 1997); Khem v. Continental Grain, 756 P.2d 381 (Colo.App. 1987) (case involving successive injuries which combined to render claimant PTD). However, nothing in the ALJ's order suggests that she found the claimant sustained a worsening of condition sufficient to reopen the claim after the claimant was placed at MMI on January 24, 2000. Indeed, we see no evidence that the respondents argued this theory to the ALJ.
Because we conclude that it was implicit in the ALJ's June 3 order that the claimant was entitled to PTD benefits commencing on the date of MMI, that conclusion is also implicit in our Final Order of January 30, 2004. And, because the respondents did not appeal our order it became final and is not subject to alteration absent a reopening. Section 8-43-301(10), C.R.S. 2004; § 8-43-307(1), C.R.S. 2004; Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004) (order becomes final after exhaustion of or failure to exhaust statutory review procedures, and benefits may then be increased or decreased only if claim is reopened). It follows that the ALJ did not have jurisdiction to determine that PTD benefits commenced on October 25, 2002. Instead our January 30 order implicitly awarded PTD benefits commencing January 24, 2000, and that determination was rendered final by the respondents' failure to appeal our order.
In light of this conclusion the remaining arguments advanced by the parties are either moot or necessarily rejected by this order. Thus, we need not discuss them further.
IT IS THEREFORE ORDERED that the ALJ's order dated August 16, 2004, is reversed, and the respondents are ordered to pay PTD benefits commencing January 24, 2000.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Cynthia Scholfield, Durango, CO, Brian West, D.D.S., Durango, CO, Rhonda Norris, State Farm Insurance Companies, Littleton, CO, Robert C. Dawes, Esq., Durango, CO, (For Claimant).
M. Frances McCracken, Esq., Grand Junction, CO, (For Respondents).