IN THE MATTER OF THE CLAIM OF DENNIS CORNELL, Claimant, v. T.G. McCARTHY FUNERAL HOME, Employer, and OLD REPUBLIC, Insurer, Respondents.

W.C. Nos. 4-697-344 4-718-523.Industrial Claim Appeals Office.
July 5, 2011.

ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated February 10, 2011, that determined the claimant was permanently and totally disabled as a result of the combination of injuries he sustained in Claim No. 4-718-523 and Claim No. 4-697-344. We affirm the order in part, set it aside in part, and remand for further proceedings.

The claimant worked for the employer as an embalmer and suffered two industrial injuries while so employed. The claimant first suffered an industrial injury to his low back on June 28, 2004, which is identified as W.C. No. 4-697-344 (2004 back injury). The claimant suffered a right shoulder industrial injury with the same employer and insurer on February 5, 2007, which is identified as W.C. No. 4-718-523 (2007 shoulder injury). The claimant has not been able to return to work since February 2007 and has been receiving continuing treatment for both injuries.

The ALJ awarded permanent total disability (PTD) benefits as a result of the combination of the 2004 and 2007 injuries. The ALJ also ordered the insurer to pay the claimant based upon a 25 percent whole person impairment rating in the 2004 low back claim. The ALJ ordered the insurer to pay the claimant based upon an 18 percent whole person impairment rating in the 2007 right shoulder injury. The ALJ ordered that all benefits were payable based upon an average weekly wage (AWW) of $655.89. The ALJ determined that the insurer was entitled to a Social Security offset only in the claim for the 2007 right shoulder injury.

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The respondents timely filed a petition to review the February 10, 2011 order. In their petition, the respondents contend the ALJ committed error on a number of grounds. We first take up a procedural issue concerning the brief offered by the respondents in support of their Petition to Review.

The ALJ entered an order dated February 10, 2011 determining that the claimant was permanently and totally disabled as a result of the two injuries involved here. The respondents timely filed a petition to review the February 10, 2011 order. However, the question of the timeliness of the respondents’ brief in support of their petition to review was raised before the ALJ. The respondents filed two motions for extension of time in which to file their brief in support of their petition to review. The claimant objected to the motions for extension of time. The ALJ, in an order dated April 12, 2011, denied both motions for extension of time. The respondents filed a motion for reconsideration of the order denying the motions for extension of time. In an order dated April 27, 2011, the ALJ denied the respondents’ motion for reconsideration and struck the respondents’ brief in support of their petition to review the February 10, 2011 order as having been untimely filed according to the Office of Administrative Courts’ briefing schedule. The record was then referred to us.

After the record was referred to us, the respondents filed a petition to review the April 27, 2011 order that had denied the motion for reconsideration. The Office of Administrative Courts apparently simply forwarded the petition to review to this office, as there is no indication the ALJ took explicit action on this petition. However, in our view, no remand is necessary in the present circumstances because the ALJ has twice denied the motion for extension of time to file the respondents’ brief and the parties have briefed the issue. Further, there appears to be no underlying factual dispute on the issue presented by the Petition. The respondents’ petition regarding the denial of their requests for extensions of time does not present a final order for purposes of our review. Section 8-43-301(2), C.R.S. However, we consider the petition as a request for procedural relief See § 8-43-301(9), C.R.S. (Panel may issue necessary procedural orders including orders concerning filing of briefs).

The respondents contend the ALJ abused his discretion and violated applicable law by denying the respondents’ motion for extension of time to file their brief. We agree with the respondents that the standard of review is whether an abuse of discretion has occurred See generally IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988) (the ALJ is vested with broad discretion in determining procedural matters with regard to the conduct of hearings and entry of orders); Denby v. North American Van Lines, W.C. 3-779-200 (April 14, 1988) Sigarst v. Tower Cleaners W.C. 3-895-758 (May 11, 1990). The standard of review of an

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alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).

The respondents argue that the brief in support of their petition to review the February 10, 2011 order was due on March 29, 2011 and there was good cause and extenuating circumstances for granting an extension of time to file their brief. The respondents argue that around March 5, 2011, the attorney assigned to work on this case fell and broke her ankle. The respondents further contend that the assigned attorney was eight months pregnant at the time and was in and out of the office. In their first motion for extension of time, the respondents asked for an extension to file the brief from March 29, 2011 through April 4, 2011. The respondents then asked for a second extension of time for one more day until April 5, 2011. The brief was filed on April 5, 2011.

The claimant did not agree with the requests for extension of time. The claimant points out that the first request for extension of time was filed on March 29, 2011, the day the brief was due. Further, the second request for extension of time was filed on April 4, 2011, the final day for the brief to be filed if the first request for extension of time had been granted.

The respondents argue that their brief was filed within ten days after the brief was originally due and this is within the general guidelines regarding extensions of time for filing briefs created by the Director and Chief Judge for the Office of Administrative Courts. However, to the extent that such a guideline is binding, we read the guideline as providing a limitation on granting extensions only up to ten business days for a brief and not a mandate that an extension of ten days must be granted.

It is provided in § 8-43-301(4), C.R.S. that after the parties are notified in writing that the record is complete, the petitioner shall have 20 days to file a brief in support of the petition to review. Here, a briefing schedule was prepared in compliance with § 8-43-301(4). The respondents’ brief in support of their petition to review was not filed within the time provided by the briefing schedule, and the ALJ declined to grant an extension of time to file a brief. See § 8-43-207(1)(i), C.R.S. (upon good cause shown the ALJ may grant reasonable extension of time for the taking of any action).

In our view, the ALJ’s determination that the respondents did not show good cause for granting an extension of time is not erroneous as a matter of law. Therefore, we shall not consider the Brief in Support of Petition to Review filed by the respondents.

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However, no brief is necessary to permit our review of the Petition to Review the February 10, 2011 order. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App.1986) Beason v. Vogue Properties, LTD.
W.C. 3-563-037 (October 30, 1989). The respondents have filed a Petition to Review with specific allegations of error, which we will address below.

I.
The respondents first contend that the ALJ’s order is not supported by substantial evidence. However, the claimant argues that the respondents failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). The respondents in their Petition to Review stated that no transcript was requested because they had already obtained a copy of the transcript and that the transcript would be filed with the Office of Administrative Courts. The record before us contains a transcript of the November 1, 2010 hearing received by the Office of Administrative Courts on December 8, 2010, before the February 10, 2011 order finding the claimant to be entitled to PTD benefits. Further, we note that the record is voluminous and contains exhibits and transcripts of depositions taken.

Therefore, we will consider the ALJ’s order under the customary standard for review. We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record.

The central issue addressed in the February 10, 2011 order was whether the claimant was entitled to PTD benefits. The ALJ found that the claimant was permanently and totally disabled as result of the 2004 back injury and the 2007 right shoulder injury.

For an award of PTD, the claimant bears the burden of proving that he or she is “unable to earn any wages in the same or other employment.” Section 8-40-201(16.5)(a), C.R.S. The issue of entitlement to PTD benefits is a question of fact for the ALJ Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866, 868-69 (Colo. App. 2001), and the familiar rules governing resolution of factual issues apply. See Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002) (the ALJ resolves conflicts in the evidence, makes credibility determinations, determines the weight to be accorded to expert testimony, and draws plausible inferences from the evidence).

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In making a PTD determination, “the ALJ may consider the effects of the industrial injury in light of the claimant’s human factors including, inter alia, the claimant’s age, work history, general physical condition, and prior training and experience.” Moreover, “[t]he crux of the test is the `existence of employment that is reasonably available to the claimant under his or her particular circumstances.'” Joslins Dry Goods Co., 21 P.3d at 868 (Colo. App. 2001) (quoting Weld County School Dist. RE-12 v. Bymer, 955 P.2d 550, 558).

The ALJ made extensive findings of fact regarding the claim for PTD benefits. We outline here some of the ALJ’s pertinent findings of fact on the PTD issue. At the time of the hearing the claimant was 57 years of age and his formal education was limited to a GED. The claimant was given work restrictions of less than sedentary level. The claimant has been prescribed two forms of morphine to deal with the ongoing severe pain. A vocational expert opined that the claimant was simply not able to earn any wages. In terms of general health, the claimant has suffered had two heart attacks, has COPD, and insulin dependent diabetes. The claimant has significant and permanent residuals which preclude the claimant from earning any wages as a result of his industrial injuries. The ALJ determined that the most persuasive evidence established that the claimant had met his burden of proof that he was permanently and totally disabled as a result of the two industrial injuries.

The ALJ noted that the respondents had argued that the claimant’s permanent total disability, if any, was due not to the shoulder injury, but to a low back injury and that the claimant’s current back condition was not work-related. However, while the ALJ found that the claimant was entitled to PTD benefits as a result of the combination of the two industrial injuries, he went on to find that, even without consideration of the first 2004 back injury, the claimant was entitled to PTD benefits sustained solely in the 2007 right shoulder injury.

The respondents filed a lengthy proposed Specific Findings of Fact, Conclusions of Law and Order before the ALJ entered his order. In that proposed order, the respondents argued that the claimant had failed to prove he was entitled to PTD benefits because the claimant was employable under the restrictions he had been given for those injuries based upon his prior work experience and volunteer work the claimant engaged in after the two industrial injuries. The respondents pointed out the testimony of Ms. Pickett, who performed a vocational evaluation. Ms. Pickett testified that the claimant has acquired transferrable skills including skills acquired through his volunteer work. Ms. Pickett testified that the claimant’s restrictions placed him in the sedentary-to-light category. Ms. Pickett concluded that the claimant was capable of employment within the given medical restrictions based upon his prior experience and transferrable skills.

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However, the ALJ was persuaded by the opinions and testimony of Mr. Fitzgibbons, a vocational expert retained by the claimant. The ALJ found that the claimant’s expert persuasively testified that the claimant has significant and permanent residuals, which preclude the claimant from earning any wages as a result of his industrial injuries. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

The ALJ also found that the claimant testified persuasively as to his daily limitations and that these limitations were consistent with the restrictions provided by Drs. Olson and Richman. The ALJ found the claimant’s testimony to be credible and that he limited his volunteer work to approximately ten hours per month. In their proposed order, the respondents questioned the claimant’s credibility, pointing out an inconsistency between his initial testimony that he only spent ten hours per month on volunteer work, and his response to later testimony where he admitted to a total of 41 to 50 hours per week. However, to the extent testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting all, part, or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

In our view, the testimony of the claimant, the claimant’s vocational expert and the opinions of Dr. Olson and Dr. Richman on permanent physical restrictions, along with the ALJ’s findings regarding the human factors, provide a substantial basis for the determination that the claimant is entitled to PTD benefits. Therefore, the ALJ’s determination must be upheld Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).

II.
The respondents next generally contend that the order is not supported by applicable law. Specifically, the respondents contend that while the ALJ found the claimant permanently totally disabled as a result of both workers’ compensation claims, he also found that the claimant is owed permanent partial disability (PPD) benefits for both of theses injuries. The respondents contend that these findings are not supported by applicable law because a claimant is not entitled to PPD benefits at the same time he is receiving PTD benefits.

We do not dispute that the claimant was not entitled to receive contemporaneous awards of permanent total disability benefits and medical impairment benefits pursuant to the workers’ compensation statutes. This is because both medical impairment benefits and permanent total disability benefits compensate for the same loss of future earning

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capacity. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo. App. 1996). Under Kehm v. Continental Grain, 756 P.2d 381 (Colo.App. 1987), one may not be permanently partially disabled at the same time one is permanently totally disabled and there cannot be a duplication of benefits.

However, in awarding the claimant certain permanent partial disability benefits, the ALJ specifically recognized this principal and provided that these payments were only to be made to the extent that it would not create a double or overlapping payments with any PTD benefits. The claimant, in his opposition brief, concedes that the claimant cannot receive both PTD benefits and PPD benefits for the same time period. The claimant contends that there is no controversy on appeal because the ALJ, in his order, provided that there should be no double payment. There appears to be no dispute that the claimant is entitled to permanent partial disability benefits only through the date of the permanent total disability award.

However, the ALJ made no specific finding on when PTD payments should begin. We do not read the ALJ’s order as determining a commencement date for the award of PTD benefits. Because it is necessary for the ALJ to determine the commencement date of PTD benefits, it is not possible to tell if there is any double payment for the same period time. Therefore, we must remand the matter to the ALJ for a determination of the commencement date for the award of PTD benefits. See Mascarenas v. Pioneer National Resources
W.C. No. 4-710-336 (December 8, 2010).

III.
The respondents next contend that the ALJ erred because his order does not clearly state for which claim PTD benefits are to be paid. The ALJ determined the claimant had provided persuasive evidence that he was permanently and totally disabled as a result of the industrial injury to his right shoulder and/or a combination of injuries he sustained in both claims. The ALJ further found that the claimant had provided the most persuasive evidence that the injuries he sustained involving his right shoulder claim were significant factors in his permanent and total disability. Findings of Fact, Conclusions of Law, and Order at 13, ¶ 3. We realize that the order does not make it entirely clear under which claim the PTD benefits are to be paid. However, we are not persuaded that clarification is necessary.

We first note that the employer and the insurer are the same in both claims. Therefore, the same insurer will be paying the entire amount for permanent disability in any case. Further, it does not appear to us that this issue was raised before the ALJ (Tr. at 3-13), and the respondents cite no authority for their position that failure to address this

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constitutes error. Therefore, we shall not consider this issue on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994) Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).

IV.
The respondents next contend the ALJ erred because he determined that the respondents are entitled to an offset for Social Security benefits only in the 2004 back injury, while they should be entitled to the offset in both claims as long as the offset is not taken on both claims during a concurrent time frame. The respondents contend that the ALJ’s determination is in violation of a stipulation entered into by the parties.

Because of our decision to remand the matter for determination of the commencement date for the award of PTD benefits, it would be premature to address the issue of which claim against the Social Security benefits should be offset. The date of the commencement of PTD may affect this issue. We note that the ALJ in his order recognized the respondents’ entitlement to any overpayment credit occasioned by the Social Security offset. The claimant in his brief in opposition agrees that the respondents may take a Social Security offset against both PTD benefits and PPD benefits and suggests that there is no issue on appeal regarding the offset. In order to avoid any confusion, after the ALJ has determined the commencement date for the award of PTD benefits, the parties may be in a position to stipulate on the issue of offset.

V.
The respondents next contend that the ALJ erred in awarding benefits to be paid for both claims based on an average weekly wage (AWW) of $655.89. The respondents argue that this determination is not supported by applicable law as the claimant’s stipulated AWW as of the date of the injury for 2004 back injury claim was only $492.16, plus the cost of continuation of health insurance. The respondents again contend that the ALJ’s determination is in violation of the parties’ stipulation. However, the respondents have failed to cite any authority that the ALJ is bound to accept a stipulated AWW earned by the claimant at the time of the first injury as the basis of an award for permanent total disability benefits in this case involving two industrial injuries.

The overall purpose of the statutory scheme for determining a claimant’s AWW is to calculate “a fair approximation of the claimant’s wage loss and diminished earning capacity.”Campbell v. IBM Corp., 867 P.2d 77, 82 (Colo. App. 1993). It is well established that the ALJ has discretionary authority under § 8-42-102(3), C.R.S. to

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calculate the average weekly wage by any method that will render a fair computation of the claimant’s wages. We may not disturb the ALJ’s determination of the average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d. 850 (Colo. 1993). An abuse of discretion exists where the order “exceeds the bounds of reason,” such as where it is not in accordance with applicable law, or not supported by substantial evidence in the record. Coates Reid Waldron v. Vigil, supra; Rosenberg v. Board of Education of School District # 1, supra. We find no abuse of discretion by the ALJ in determining the claimant’s AWW.

IT IS THEREFORE ORDERED that the ALJ’s order dated February 10, 2011 is set aside insofar as it failed to address the issue of commencement date for the award of PTD benefits. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein.

IT IS FURTHER ORDERED that the ALJ’s order dated February 10, 2011 is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Dona Rhodes

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DENNIS CORNELL, 105 MAGNOLIA PL ACE, PUEBLO, CO, 81005 (Claimant).

T.G. McCARTHY FUNERAL HOME, C/O: SCI FUNERAL HOME CORP., 329 GOODNIGHT, PUEBLO, CO, (Employer).

OLD REPUBLIC, Attn: MELISSA RYAN, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer).

LAW OFFICES OF SCHIFF CONDAS, Attn: SCOTT H. SCHIFF, ESQ., PUEBLO, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).

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