W.C. No. 4-531-613.Industrial Claim Appeals Office.
July 6, 2006
FINAL ORDER
The respondents seek review of an order dated February 9, 2006 of Administrative Law Judge Mattoon (ALJ) that ordered the respondents to pay the claimant permanent total disability benefits (PTD) without offsets. We affirm.
The ALJ’s relevant findings of fact are as follows. The claimant was injured in 1987 while working for Condor Engineering (Condor accident). The respondents in the Condor accident admitted for permanent total disability (PTD) benefits. The claimant eventually entered into full and final settlements with both the previous respondent insurer and the Subsequent Injury Fund involving the claims on the Condor accident.
The claimant later returned to work at Professional Contract Services, Inc. (PCS) where she suffered an additional industrial injury. The respondents in the present action filed an admission admitting for PTD benefits, subject to the operation of §8-42-104, C.R.S. 2005.
Section 8-42-104(1) provides:
(1) The fact that an employee has suffered a previous disability or impairment or received compensation therefor shall not preclude compensation for a later injury or for death, but, in determining compensation benefits payable for the later injury or death, the employee’s average weekly earnings at the time of the later injury shall be used in determining the compensation payable to the employee or such employee’s dependents. Notwithstanding any other provision of articles 40 to 47 of this title, no claimant may receive concurrent permanent total disability awards from injuries occurring in this state or any other state. (Emphasis added)
The matter came on for hearing on the issue of whether the claimant was receiving PTD benefits from the Condor accident. If she was determined to be receiving PTD benefits from the Condor accident, then an award of PTD benefits on the PCS accident would be concurrent and would be prohibited by the statute.
The respondents argued that the claimant received a “lump sum” award payment when she entered into the settlements of her Condor claims and therefore under University of Denver v. Industrial Comm’n, 138 Colo. 505, 335 P.2d 292 (1959) the claimant was still be “receiving” lifetime PTD even though payment was made in a “lump sum” at the time of settlement. The ALJ determined that a full and final settlement is not the same as a lump sum payment. Instead the ALJ found that the case involves two contractual agreements between the claimant, the Subsequent Injury Fund, and the previous insurer to compromise the claimant’s claim for all corresponding workers’ compensation benefits. The ALJ found that it could not be said that the claimant was currently “receiving” PTD benefits from the Condor claim, therefore § 8-421-04(1) is not applicable and the claimant was not barred from receiving PTD benefits on the PCS claim.
On appeal, the respondent’s again contend that the ALJ erred in granting this claim for it allows an award of concurrent permanent total disability awards. We disagree.
The record in the present case would not support and the ALJ did not find a period of time for which PTD benefits would have been paid out but for the single payment made under the settlement agreements. In contrast, in University of Denver v. Industrial Comm’n, supra, the time period when periodic payments of permanent partial disability benefits would have been made, but for the lump sum payment, could be calculated.
A precise determination of the period for which periodic payments of PTD benefits would be owed, pursuant to the settlement agreements, was not made in the present case. In part this is because the settlement agreements resolved more then just liability for permanent total disability. All outstanding issues were resolved, including medical benefits. Exhibits F1, J1. The settlement agreements contain no allocation of settlement amounts between different potential benefits the claimant waived in exchange for the lump sums paid.
In general there is no certainty of what amounts will be due under an admission for PTD. The amount of money owed for PTD benefits is in part determined by the life span of the claimant. Moreover, a case concluded by an admission or order for PTD benefits is subject to reopening under § 8-43-303(3), C.R.S. 2005, if the claimant returns to employment. The methodology used in University of Denver v. Industrial Comm’n, supra of determining the date the last installment payment would have been made, was not available in the present claim.
In our opinion the respondents did not carry their burden of establishing the factual basis necessary for the application of the prohibition against receiving concurrent PTD payments contained in § 8-42-104(1). We perceive no basis on which to interfere with the ALJ’s finding that it was not proven that the claimant was currently receiving PTD benefits from the prior claim when the respondents on the present case filed their admission for PTD benefits.
We have reviewed the respondents additional argument that the ALJ incorrectly determined that the respondents were not entitled to entitled to a “credit” or “offset” under § 8-42-104(2). The ALJ determined that under United Airlines v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000), full unapportioned liability for PTD benefits rests on the last employer in cases where the employee previously sustained a permanent partial industrial disability and the combined industrial disabilities render the employer permanently and totally disabled. This additional argument does not alter our conclusion.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 9, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Sandra Grant, Colorado Springs, CO, Professional Contract Services — Vivian Colony, Fort Carson, CO, Commerce Industry Insurance Company Shawnee Mission, KS, Steven U. Mullins Esq., Colorado Springs, CO, (For Claimant).
William M. Sterck Esq., Denver, CO. (For Respondents).