Opinion
W.C. Nos. 3-065-475 4-167-595
June 16, 1998
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of a final order of Administrative Law Judge Martinez (ALJ), insofar as it requires the SIF to pay fifty percent of the claimant's permanent total disability benefits. Respondent U.S. West Communications (U.S. West) seeks review of that portion of the order pertaining to the Social Security Disability Insurance (SSDI) offset. We affirm.
The pertinent facts may be summarized as follows. The claimant, a "network technician" for U.S. West, sustained a compensable back injury on November 11, 1989. The claim for this injury was denominated W.C. No. 3-065-475. Following the injury, the claimant was able to return to the job, albeit with certain physical restrictions. On February 17, 1992, U.S. West filed a Final Admission of Liability admitting for permanent partial disability benefits of $37,560, payable at the rate of $120 per week from December 19, 1991 through January 8, 1998. Significantly, on January 20, 1992, the claimant's treating physician, Dr. Scott, opined the claimant had a twenty-four percent impairment due to the November 1989 injury.
The claimant sustained a second compensable back injury on March 16, 1993. The claim for this injury was denominated W.C. No. 4-167-595. As a result of this injury, U.S. West filed a General Admission of Liability admitting for temporary total disability from March 17, 1993 through April 18, 1993. No other admissions of liability were ever filed in this case.
The claimant returned to light duty after the March 1993 injury. However, in August 1993, a foreman sent the claimant home and he was never allowed to return to work. This decision was predicated on a report of Dr. Burke, who examined the claimant in July 1993, and recommended that the claimant not return to his previous job.
Later, U.S. West filed a series of Final Admissions of Liability which admitted, inter alia, that the claimant is permanently and totally disabled as a result of the November 1989 injury. Consequently, these admissions were filed in W.C. No. 3-065-475.
The Final Admissions of Liability at issue here were filed on July 12, 1995 and September 8, 1995. The SIF concedes the claimant filed timely objections to these admissions, but noted the objections concerned the issues of medical benefits and offsets, not whether the claimant is permanently and totally disabled.
In July 1997, the claimant filed an application for hearing in W.C. No. 4-167-595 (March 1993 injury) seeking an award of permanent total disability benefits. Later, the issue of petition to reopen W.C. No. 3-065-475 was added for consideration by the ALJ. In the petition to reopen, the claimant asserted that it was "mistake and error" for U.S. West to issue a final admission for permanent total disability in W.C. No. 3-065-475, prior to consulting Dr. Burke.
The SIF argued to the ALJ that W.C. No. 3-065-475 was closed pursuant to the Final Admissions of Liability for permanent total disability filed by U.S. West in July and September 1995. In light of these admissions, the SIF reasoned that U.S. West waived the right to claim an offset against the SIF because no request for offset was filed prior to May 1997. Further, the SIF contended the request for offset was not timely under Rule of Procedure XII (A)(4), 7 Code Colo. Reg. 1101-3 at 43.
However, the ALJ rejected the SIF's arguments. The ALJ reasoned that, because the claimant filed timely objections to the Final Admissions of July and September 1995, the claim for that injury remained open pursuant to § 8-43-203(2)(b), C.R.S. 1997. Further, the ALJ determined there was no violation of Rule of Procedure XII (A)(4) because the Final Admissions were filed in W.C. No. 3-065-475, and there had been no "determination" of the claimant's entitlement to permanent total disability benefits under W.C. No. 4-167-595. In any event, the ALJ determined there was a "mistake" in the closure of W.C. No. 3-065-475, and that case should be reopened. Consequently, the ALJ ordered the SIF to pay fifty percent of the claimant's permanent total disability benefits.
The ALJ also determined that the claimant reached maximum medical improvement (MMI) from the 1993 injury on May 23, 1994. Consequently, the ALJ ordered U.S. West to pay temporary total disability benefits, based on the 1993 injury, from September 1, 1993 until May 23, 1994. The ALJ also held that U.S. West's 1992 admission entitled the claimant to permanent partial disability benefits, at the rate of $120 per week, during the same period of time. However, the ALJ rejected U.S. West's argument that, under § 8-42-103(1)(c)(I), C.R.S. 1997, it was entitled to reduce these benefits by one hundred percent of the claimant's SSDI benefits payable during the same time frame. Instead, the ALJ concluded the "aggregate benefits payable" for this period included both temporary total and permanent partial disability benefits, and the statute entitled U.S. West to reduce the combined or total value of these benefits by fifty percent of the corresponding SSDI benefits, ($129.54 per week).
I.
On review, the SIF again asserts that the ALJ erred in holding it liable for fifty percent of the claimant's benefits. Relying on our decisions in Ricks v. Ampex Corp., W.C. No. 3-651-103 (March 20, 1992), aff'd., Ampex Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 92CA0561, April 8, 1993) (not selected for publication); and Ryan v. Safeway, W.C. No. 4-127-950 (December 8, 1997), the SIF reasons that the matter of SIF liability was closed because U.S. West did not reserve the issue when it filed the July and September 1995 Final Admissions of Liability. The SIF also reasserts the argument that U.S. West's request for offset, filed in May 1997, was untimely under Rule of Procedure XII (A)(4). We find no error.
We need not reach the question of whether the July and September 1995 Final Admissions of Liability "closed" the issue of SIF liability for purposes of filing a request for offset. Assuming, arguendo, that the admissions "closed" the issue of SIF liability, § 8-43-203(2)(d), C.R.S. 1997, provides:
"Once a case is closed pursuant to this subsection (2), the issues closed may only be reopened pursuant to § 8-43-303."
Section 8-43-303(1), C.R.S. 1997, provides that "if an award is reopened on grounds of an error, a mistake, or a change in condition, compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased." Under this statute, reopening permits an ALJ to make equitable adjustments in a previous award of benefits. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). Such equitable adjustments may be retroactive in effect, so long as they do not require the claimant to repay benefits already in his possession. See Cody v. Industrial Claim Appeals Office, 940 P.2d 1042 (Colo.App. 1996).
Here, the ALJ ordered W.C. No. 3-065-475 be reopened based on the claimant's contention that there was an erroneous failure to apportion permanent total disability benefits at the time of the 1995 Final Admissions. Therefore, even if U.S. West's actions in filing the 1995 admissions constituted a statutory or equitable "waiver" of the right to later assert SIF liability, the issue was necessarily "reopened" pursuant to the ALJ's order. This is true because an award is "final" only to the extent "the matter has been concluded subject to later reopening if warranted under the applicable statutory criteria." Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177, 1180 (Colo.App. 1996).
Significantly, the SIF has not asserted that the ALJ abused his discretion in reopening W.C. No. 3-065-475. Consequently, we have no basis for interfering with the ALJ's conclusion that the issue of apportionment of permanent total disability benefits should be reopened, including the issue of SIF liability. See Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989) (standard of review for reopening is abuse of discretion). Because the ALJ has reopened the issue of apportionment, we need not reach the question of whether it would be proper to impose SIF liability had no reopening occurred. We note that the Ricks and Ryan cases, cited by the SIF, do not involve situations where the ALJ reopened previously closed claims so as to permit consideration of SIF liability.
We also note that Rule of Procedure XII (A)(4) makes no difference in our analysis. We do not interpret Rule XII (A)(4) as an attempt by the Director of the Division of Workers' Compensation to circumvent the ALJ's reopening powers under § 8-43-303(1). Rather, for purposes of Rule XII (A)(4), the word "determination" of permanent total disability refers to an "adjudication or decision". Subsequent Injury Fund v. Ladow, 923 P.2d 368 (Colo.App. 1996). As we have pointed out, an "adjudication of liability for benefits" is final only to the extent it has not been reopened pursuant to § 8-43-303(1).
II.
U.S. West contends that the ALJ erred in limiting the SSDI offset to $129.54 per week for the period of September 1, 1993 through May 23, 1994. It argues that the SSDI offset provided in § 8-42-103(1)(c)(I) applies to the "aggregate benefits" payable for temporary total and permanent partial disability. Thus, citing our decision in Hetherington v. Aspen Leaf Builders Supply, Inc., W.C. No. 3-058-466 (May 22, 1997), U.S. West argues that fifty percent of the SSDI benefits paid from September 1 to May 23 should be credited as an offset against the permanent partial disability benefits, while the other fifty percent should be offset against the temporary total disability benefits. We disagree.
The purpose of § 8-42-103(1)(c)(I) is to prevent the claimant from receiving a double recovery of SSDI and workers' compensation benefits for the same disability. Englebrecht v. Hartford Accident Indemnity Co., 680 P.2d 231 (Colo. 1984). In applying the SSDI offset, the ALJ must ascertain the aggregate benefits "payable" to the claimant for any given period of time. Yates v. Sinton Dairy, 883 P.2d 562 (Colo.App. 1984).
Here, the ALJ correctly determined that, during the disputed period of time, the claimant was entitled to both permanent partial disability and temporary total disability benefits. Significantly, the permanent partial disability benefits were designed to compensate the claimant for his permanent loss of earning capacity caused by the 1989 injury, while the temporary total disability benefits were designed to compensate for the actual temporary wage loss caused by the 1993 injury. Thus, the "aggregate benefits payable" to the claimant in this case stemmed from different injuries and compensated for different types of lost earning capacity. See Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994).
However, the claimant received only a single award of SSDI benefits during the disputed period of time. Thus, the claimant would sustain a double loss, not a double recovery, if the single award of SSDI benefits were totally offset against the claimant's workers' compensation benefits payable for different injuries.
This result is not inconsistent with our holding in Hetherington v. Aspen Leaf Builders Supply, Inc., supra. The problem in that case was the claimant was awarded permanent partial disability benefits as a result of an injury, and subsequently received additional temporary disability benefits due to a worsening of condition. Consequently, the claimant was receiving contemporaneous permanent partial and temporary total disability benefits for the same injury. Because temporary total and permanent partial disability benefits are usually paid in a consecutive fashion when caused by the same injury, the ALJ in Hetherington improperly curtailed the value of the SSDI offset by simply adding the claimant's contemporaneous permanent partial and temporary total disability benefits and reducing the sum by fifty percent of the SSDI benefits. Here, in contrast, the permanent partial and temporary total disability benefits were paid for different injuries.
IT IS THEREFORE ORDERED that the ALJ's order dated December 18, 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 June 16, 1998 to the following parties:
James E. Harper, 11346 C.R. 141, Hesperus, CO 81326
Steve Abeyta, Claims Manager, U.S. West Communications, Inc., 1801 California St., Rm. 1150, Denver, CO 80202
Special Funds Unit, Attn: Barbara Carter (Interagency Mail)
Margaret D. Keck, Esq., 1777 S. Harrison St., Ste. 1110, Denver, CO 80210 (For Respondent)
Bethiah Beale Crane, Esq., 575 E. College Dr., Durango, CO 81301 (For the Claimant)
Gregg E. Carson, Assistant Attorney General, Civil Litigation Section, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: _________________________