W.C. No. 4-102-842Industrial Claim Appeals Office.
July 18, 1996
ORDER OF REMAND
The claimant seeks review of a Supplemental Order by Administrative Law Judge Gandy (ALJ), which denied his claim for permanent total disability benefits. We set aside the order, and remand the matter for entry of a new order.
In an order dated December 22, 1995, the ALJ determined that the claimant sustained the onset of disability from an occupational disease on July 8, 1992. Consequently, the ALJ determined that the claim for permanent total disability benefits was governed by the provisions of Senate Bill 91-218, currently codified at § 8-40-201(16.5), C.R.S. (1995 Cum. Supp.). The ALJ further determined that the claimant failed to sustain his burden to prove that he is “unable to earn any wages in the same or other employment,” as required by § 8-40-201(16.5). Thus, the ALJ denied the claim for permanent total disability benefits. However, the ALJ awarded permanent partial disability benefits, to be paid at a rate of $150 per week. The claimant timely petitioned for review of the December 22 order.
On appeal, the claimant asserted that the ALJ erred in finding that the onset of disability occurred after July 1, 1991, the effective date of § 8-40-201(16.5). Accordingly, the claimant contended that the ALJ applied the wrong legal standard in denying the claim for permanent total disability benefits. The claimant also asserted that the ALJ’s award of permanent partial disability benefits is payable at a rate of $227.49 per week. The respondents conceded the latter argument.
On May 13, 1996, the ALJ issued a Supplemental Order which adopted the parties’ agreement concerning the payment rate for the award of permanent partial disability benefits. The ALJ’s Supplemental Order further states that “this matter shall now be forwarded to the Industrial Claims Appeals Panel (sic) for their consideration of claimant’s Petition to Review of the other contested issues.”
I.
We note that the claimant did not file a petition for review of the Supplemental Order, as required by § 8-43-301(6), C.R.S. (1995 Cum. Supp.) See Michalski v, Industrial Claim Appeals Office, 757 P.2d 1146 (Colo.App. 1988); Memorial Hospital v. Industrial Claim Appeals Office, Colo. App. No. 88CA0284, November 3, 1988 (not selected for publication) (where supplemental order addresses at least one of the issues raised on appeal, a petition to review the supplemental order is necessary to preserve the remaining appellate arguments). However, it appears that the ALJ erroneously mislead the parties to believe that we could review the matter without the filing of a petition to review the Supplemental Order. Under these unique circumstances, we conclude that the claimant’s failure to file a petition to review the Supplemental Order does not deprive us of jurisdiction to review the ALJ’s Supplemental Order. See Converse v. Zinke, 635 P.2d 882 (Colo.App. 1981).
II.
The claimant’s contention that the ALJ erroneously denied his claim for permanent total disability benefits is based upon his argument that the ALJ misapplied the law concerning the “onset of disability.” Specifically, the claimant argues that the ALJ erroneously assumed that the “onset of disability” does not occur until an occupational disease causes the claimant to miss at least three full days of work. We agree with the claimant that such an assumption is inconsistent with the law. Further, we conclude the findings of fact are insufficient to ascertain whether the ALJ’s determination was based upon such an assumption. Therefore, we must remand the matter to the ALJ for additional findings of fact.
It is not disputed that the claim is governed by the law in effect on the date of the claimant’s “onset of disability.” See SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470
(Colo.App. 1994). The “onset of disability” occurs when the claimant is physically incapacitated by the disease. Henderson v. RSI, Inc., 824 P.2d 91
(Colo.App. 1991). Incapacity may be evidenced by various factors including lost time from work, reduced efficiency in the performance of regular duties, or medical restrictions affecting the claimant’s ability to perform his regular duties. See Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986).
In contrast, we have held in other cases that the statute of limitations does not begin to run until the claimant has suffered a “compensable injury,” which means an injury that entitles the claimant to disability benefits. See Section § 8-43-103(2) (“medical benefits” do not constitute compensation for purposes of the statute of limitations) Correll v. Storage Technology Corporation, W.C. No. 4-221-615, July 28, 1995. Under § 8-42-103(1)(a), C.R.S. (1995 Cum. Supp.), the claimant is not entitled to temporary disability benefits unless the claimant has been disabled from work more than three days. It follows that for purposes of the statute of limitations, the claimant does not suffer a “compensable injury” until the claimant has lost at least three days of work. See City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Romero v. Industrial Claim Appeals Office, 632 P.2d 1052 (1981).
However, the claimant may suffer the “onset of disability” from an occupational disease without suffering compensable lost time from work. In other words, the meaning of the word “disability” in the context of the “onset of disability” is different from the meaning of the term “disability”in the context of the statute of limitations. Accordingly, it is error to assume that the claimant has not suffered an onset of disability unless the claimant has suffered lost time from work over three days.
Here, the ALJ’s December 22 order stated:
“I am persuaded that the onset of date is July 8, 1992. On that date, Claimant was limited from performing work which required clearance for respirator use by the Rocky Flats Occupational Health Department.” (Discussion and Conclusions of Law 2).
Although the ALJ’s written orders do not contain any discussion of the legal standard he applied in reaching this determination, his oral findings indicate that the July 8 onset of disability date was based upon the argument by respondents’ counsel at the conclusion of the hearing. (Tr. p. 49); see CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the written findings). The ALJ interpreted the respondents’ argument to be that the claimant did not experience the onset of disability until after July 1, 1991, “because he didn’t lose more than three days from work, even for the testing prior, to July 1, ’91.” (Tr. p. 47). In reaching his determination, the ALJ noted the claimant’s testimony that he was totally disabled from work for three days prior to July 1, 1991, and that he suffered pneumonia as a result of the occupational disease, which prevented him from getting back to work for a maximum of three days. (Tr. pp. 48, 49). Consequently, the record suggests that the ALJ may have concluded that the applicable legal standard required the claimant to establish the onset of disability by proving that he lost more than three days from work.
Moreover, as argued by the claimant, the record contains some evidence that the claimant was subject to medical restrictions, and may have had suffered a reduced efficiency in the performance of his regular duties prior to July 1, 1991. (Tr. pp. 12, 13, 15, 31); Dr. Newman report April 30, 1991; Dr. Furman report May 30, 1991. Consequently, even if we assume, which we do not, that the ALJ’s findings were based upon his decision to reject the claimant’s evidence that he lost more than three days of work prior to July 8, 1992, we cannot say that the record compels a conclusion that the onset of disability occurred after July 1, 1991. Therefore, the matter must be remanded.
On remand, the ALJ shall issue a new order concerning the “onset of disability,” and the law which governs the claim. In so doing, the ALJ shall specifically articulate the legal standard he applied to reach his determination.
In light of our remand, it is premature to consider the claimant’s argument that the ALJ applied the wrong legal standard in denying the claim for permanent total disability benefits. Therefore, we do not consider the argument at this time.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order is set aside, and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 18, 1996 to the following parties:
William J. Chapman, 1223 Lincoln St., Longmont, CO 80501
EGG Rocky Flats, Inc., Attn: Roselee Oyer, Esq., P.O. Box 464, Golden, CO 80402-0464
Kaiser-Hill, Ltd., Attn: Al Jerman, P.O. Box 464, Golden, CO 80402-0464
Travelers Insurance Co., Attn: Karen Gilmore, P.O. Box 17360, Denver, CO 80217-0360
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For the Claimant)
Scott M. Busser, Esq., 300 Jackson St., #570, Denver, CO 80209 (For the Respondents)
BY: _______________________