W.C. No. 4-130-743Industrial Claim Appeals Office.
November 20, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which permits the respondents to offset their liability for temporary total disability benefits by the amount which they previously paid for permanent partial disability benefits. We affirm.
This case was tried on stipulated facts. The claimant sustained a compensable industrial injury and reached maximum medical improvement (MMI) on September 3, 1993. At that time, the claimant was rated as suffering from an eighteen percent whole person medical impairment. As a result, the respondents paid combined temporary disability and medical impairment benefits equal to the sixty thousand dollar statutory cap set forth in § 8- 42-107.5, C.R.S. (1996 Cum. Supp.).
Subsequently, the respondents voluntarily reopened the claim based on a worsening of the claimant’s condition, and conceded that the claimant was again temporarily and totally disabled. The respondents also stipulated that the claimant’s physician, Dr. Ryan, would testify that the claimant’s medical impairment will likely exceed twenty-five percent of the whole person when he attains MMI. Despite these concessions, the respondents argued that Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995), entitles them to offset their liability for additional temporary total disability benefits by the amount of permanent partial disability benefits previously paid.
The ALJ agreed with the respondents, holding tha Murphy justifies an offset. The ALJ found no meaningful distinction between the facts in this case and those present i Murphy.
I.
On review, the claimant first contends that the ALJ erred in applying Murphy to the facts present here. The claimant contends that Murphy is distinguishable because in this case the respondents voluntarily reopened, whereas reopening was disputed in Murphy. Moreover, the claimant argues that here, unlike Murphy, there is evidence that his permanent impairment will probably exceed twenty-five percent at MMI. The claimant asserts that in this situation Murphy
should be narrowly construed. We are not persuaded.
In Murphy, the court held that the policy considerations underlying § 8-42-107.5 and the Workers’ Compensation Act in general are best served by allowing respondents to offset previously paid permanent partial disability benefits against liability for temporary total disability benefits when the claimant reopens and seeks benefits in excess of the $60,000 cap. The court reasoned that permitting the offset maintains insurers’ incentive to settle and pay permanent disability benefits, eliminates the need for proceedings to seek recovery of overpayments, and serves the legislative purpose of providing benefits to claimants “at a reasonable cost to employers without the necessity of any litigation.” However, in reaching this result the court rejected the respondents’ argument that § 8-42-107.5 effectively caps benefits prior to the date on which the claimant reaches MMI. The court expressly recognized that the claimant’s degree of medical impairment cannot be ascertained until MMI, and implicitly acknowledged that any attempt to estimate the claimant’s ultimate degree of medical impairment is speculative.
In view of these principles, we have previously held that a physician’s pre-MMI opinion that a claimant will have an impairment rating in excess of twenty-five percent does not vitiate application of the Murphy offset. Reddington v. Sandau Corp., W.C. No. 4-178-556, September 17, 1996. I Reddington we noted that, when the respondents voluntarily reopened the claim and reinstated temporary disability benefits, they necessarily conceded that the claimant was no longer at MMI. Therefore, a physician’s prediction that the claimant’s medical impairment rating would exceed twenty-six percent was “premature” under the reasoning of Murphy. See also, Hessee v. Gebhardt Motors, Inc., W. C. No. 4-160-734, August 20, 1996 (respondents have no burden to prove that the claimant’s disability rating will be twenty-five percent or less before claiming the Murphy offset).
It follows that we disagree with the claimant’s argument that Murphy is distinguishable from this case. The fact that the Murphy respondents contested reopening, while these respondents voluntarily reopened is of no practical significance. In fact, denying the offset to respondents who voluntarily reopen would defeat the policy objectives underlyin Murphy because respondents would be discouraged from voluntarily reopening, and litigation would increase.
Similarly, we reject the claimant’s argument tha Murphy is distinguishable because there is medical evidence that the claimant’s impairment rating will probably exceed twenty- five percent. As we held in Reddington,
such evidence is necessarily speculative since medical impairment cannot be ascertained until MMI.
Moreover, the Murphy decision did not turn on evidence concerning the claimant’s projected degree of medical impairment, but on the court’s assessment of policies underlying the statutory cap. Determining that the offset is dependent on the projected degree of medical impairment would increase litigation, and provide a disincentive to employers to settle and provide permanent partial disability benefits.
II.
The respondents argue that the Murphy court’s interpretation of § 8-42-107.5, and its application here, constitutes a denial of due process of law and equal protection of the laws. However, as both parties concede, determining the constitutionality of a statute is a matter beyond our jurisdiction. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 14, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. (1996 Cum.Supp.).
Copies of this decision were mailed November 20, 1996
to the following parties:
Garry Bowman, 1945 S. Cherry St., #367, Denver, CO 80222
JVK Enterprises, John Connell, Esq. Dawn Stockton, Esq., Larimer Corporate Plaza, 1675 Larimer St., Ste. 710, Denver, CO 80202 (Interagency Mail) % Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Jeffrey A. Goldstein, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
John Connell, Esq. Dawn Stockton, Esq., Larimer Corporate Plaza, 1675 Larimer St., Ste. 710 Denver, CO 80202 (For the Respondent-Employer)
By: ___________________________________________________