Opinion
W.C. No. 4-210-789
May 25, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which denied their request for an offset in accordance with Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995). We affirm.
The case was presented on the following stipulated facts. The claimant suffered an admitted injury in 1994. At maximum medical improvement (MMI) the respondents filed a final admission of liability for the payment of temporary total disability benefits in the amount of $32, 886.49 and permanent partial disability benefits of $34,829.49, based on a 28 percent whole person impairment rating. Pursuant to the final admission the respondents paid $67,715.18 in combined temporary and permanent disability benefits. The claimant's condition deteriorated after MMI. As a result, the respondents voluntarily reopened the claim and reinstated temporary total disability benefits effective November 9, 1999. However, relying on § 8-42-107.5, C.R.S. 2000, the respondents claimed an offset against additional temporary disability benefits in the amount of their admitted liability for permanent disability benefits.
Section 8-42-107.5, in pertinent part provides that:
"No claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments. No claimant whose impairment rating is greater than twenty-five percent may receive more than one hundred twenty thousand dollars from combined temporary disability payments and permanent partial disability payments."
The ALJ determined that the claim is governed by the $120,000 cap, not the $60,000 cap. Because the respondents have not reached the $120,000 cap, the ALJ determined the respondents are not entitled to offset the previously paid permanent partial disability benefits against their liability for temporary disability benefits. Therefore, the ALJ denied the requested offset. In so doing, the ALJ determined that it was "speculative" to determine whether the respondents' liability would ever exceed the $120,000 cap. Thus, the ALJ determined that the claim is distinguishable from Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, supra, where the court granted the insurer a credit against temporary disability benefits due on account of a worsened condition, for permanent partial disability payments which were made based upon a medical impairment rating of less than 25 percent.
Relying on Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, supra, the respondents contend the ALJ erred as a matter of law in failing to allow them to offset their liability for additional temporary disability benefits by the full amount of all previously paid permanent partial disability benefits. The respondents argue that because the claimant is not at MMI, Murphy dictates that the claimant's permanent partial disability is not determinable. Further, the respondents contend that when the claimant reaches MMI his permanent partial disability may be less than 25 percent. Under these circumstances, the respondents contend that to avoid a potential overpayment they are entitled to an offset for all previously paid permanent partial disability benefits before they pay any additional temporary disability benefits. We disagree.
The claimant in Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office , supra, was rated as having a 17 percent whole person impairment at the time he initially reached MMI. Under these circumstances, the court held that the claim was governed by the $60,000 cap in § 8-42-107.5. The claimant's condition subsequently worsened to the point that he was no longer at MMI, and additional temporary disability benefits were awarded. However, the respondents had already paid a total of $60,000 in temporary total and permanent partial disability benefits. Because the claimant was not at MMI, the court concluded it could not be anticipated whether the claimant's medical impairment from the worsened condition would be greater than 25 percent, and thus, whether the claim was governed by the $120,000 cap in § 8-42-107.5. Therefore, to avoid or minimize a potential overpayment in the event the claimant's medical impairment rating from the worsened condition was ultimately determined to be 25 percent or less, the Murphy court allowed the respondents to offset previously paid permanent partial disability benefits against their liability for additional temporary total disability benefits.
Although the claimant's ultimate medical impairment rating is currently undeterminable because the claimant has not reached MMI for the second time, we agree with the ALJ it would be highly speculative to guess whether the claimant's rating from the worsened condition will be less than 25 percent. Indeed, because the reopening was based on a worsened condition, and because the claimant's prior rating exceeded 25 percent, it would appear unjust to deny the claimant temporary disability benefits based on the supposition the claimant's condition will now improve to the degree his rating will be less than 25 percent. Furthermore, the claimant's initial rating entitled him to a maximum of $120,000 in temporary total and permanent partial disability benefits. The respondent has not yet paid $120,000 in combined benefits, and therefore, the respondent does not face the overpayment problem presented in Murphy. Finally, as the Murphy court itself admitted, the result in that case was not based on any identifiable provision of the statute. Considering the differences between the facts in Murphy and the facts here, we decline to legislate the result for which the respondents argue. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). The respondents arguments notwithstanding, these facts render this case legally distinguishable from Murphy. See Kinnecon v. Laurel Manor, W.C. No. 4-147-752 (December 24, 1998). Consequently, the ALJ did not err in refusing to grant the requested offset.
IT IS THEREFORE ORDERED that the ALJ's order dated January 23, 2001, 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. 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 May 25, 2001 to the following parties:
Thomas Smith, 25353 County Farm Rd., Pueblo, CO 81006
Pinello-Hefner Construction Company, P. O. Box 6200, Colorado Springs, CO 80934-6200
Barbara McDaniel, Travelers/Aetna Casualty Surety Company, P. O. Box 173762, Denver, CO 80217-3762
Travelers Casualty Surety Co., Travelers Property Casualty, 7600 E. Orchard Rd., #200N, Englewood, CO 80111
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy