W.C. No. 4-102-842Industrial Claim Appeals Office.
July 9, 1999.
ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as it denied his claim for temporary disability benefits and failed to address the issue of reopening for permanent partial disability benefits. We set the order aside in part, and, in part, dismiss the petition to review without prejudice.
This matter was before us previously. Our order dated February 25, 1999, contains an outline of the facts, and we will not repeat that statement here. We remanded the matter with directions for the ALJ to enter an order determining whether “to some degree the claimant’s depression was a contributing cause of his wage loss commencing November 11, 1997.” We also directed the ALJ to resolve conflicts in the evidence concerning whether or not the claimant’s “industrial functioning” was impaired by the depression.
On March 18, 1999, the ALJ entered his “Order on Remand.” The ALJ found the claimant’s condition changed because of the development of injury-related depression. Consequently, the ALJ ordered the claim reopened and he awarded additional medical benefits under § 8-43-303(2)(b), C.R.S. 1998.
However, the ALJ concluded the claimant is not entitled to additional temporary disability benefits because he failed to prove that the “worsened condition has caused an additional temporary loss of wages.” In support, the ALJ found the claimant’s depression caused symptoms of “fatigue, waking early from sleep, feeling irritable and withdrawn, and loss of appetite.” The ALJ stated that the symptoms would not make it “impossible to look for work,” but “would make it more difficult for the claimant to engage in an effective job search.” However, the ALJ credited the testimony of Dr. Gutterman that the claimant’s symptoms do not rise “to a level that he would have difficulty in maintaining employment.” The ALJ also noted the claimant did not search for employment before or after developing depression. The ALJ concluded by stating the claimant’s “depression did not interfere in some degree with [his] ability to obtain and hold employment.”
I.
On review, the claimant first contends the ALJ erred in denying his claim for temporary disability benefits after the development of depression in November 1997. The claimant argues the ALJ found that the injury-related depression interfered with his ability to look for and obtain employment. The claimant reasons this finding is equivalent to a finding of “disability” and is sufficient to trigger his right to temporary benefits. The claimant further argues that his willingness to search for employment is immaterial. We conclude that the ALJ’s findings are insufficient to permit appellate review, and remand for entry of a new order on this issue.
As we noted in our prior order, the Court of Appeals has held that when the claimant seeks to reopen after reaching maximum medical improvement (MMI) “he must show that the worsened condition has caused an additional temporary loss of wages.” City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Further, the claimant is not required to prove that the worsened condition was the “sole cause” of the wage loss if it was “to some degree” the cause of the loss. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
Temporary disability benefits are designed to compensate for the claimant’s loss of earning power during the healing period Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Thus, proof of temporary disability requires the claimant to demonstrate medical incapacity coupled with temporary loss of wage-earning incapacity. See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999) (disability concept a blend of medical and wage-earning incapacity). As such, temporary disability benefits address the claimant’s temporary loss of earning capacity and are measured by the claimant’s actual loss of earnings prior to MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Significantly, the claimant’s “inability to get work, traceable directly and substantially to a compensable injury, may be as effective in establishing disability as inability to perform work.” 4 Larson’s Workers’ Compensation Law, § 57.61 (a).
Here, the ALJ found the claimant sustained his burden of proof to establish the medical element of disability. Specifically, the ALJ found the claimant incurred symptomatic depression. However, the ALJ entered conflicting findings concerning whether or not this medical condition has resulted in reduced wage earning capacity beyond that which existed at MMI. On the one hand, the ALJ appears to have found the claimant was disabled because the symptoms of depression interfered with his ability to obtain work. Conversely, the ALJ found that the depression played no role in the claimant’s ability to “obtain and hold employment.”
On remand, the ALJ shall determine whether the claimant’s depression caused additional impairment of his temporary earning capacity. In this regard, we note that if the ALJ finds the symptoms of the depression decreased the claimant’s opportunities for employment beyond those which existed at the time of MMI, the claimant sustained a disability sufficient to justify an award of benefits. Conversely, the ALJ need not award benefits if he determines the depression did not cause a temporary loss of earning capacity. In light of this disposition, we need not address the claimant’s additional arguments involving temporary disability.
II.
The claimant next contends the ALJ erred in failing to reopen the claim for a “redetermination of permanent disability benefits.” The claimant points out the ALJ found a worsened condition which justified a reopening to award additional medical benefits under § 8-43-303(2)(a), C.R.S. 1998. The claimant asserts that “it should be made clear, at this time, that the case is reopened for all purposes” under § 8-43-303 (1), C.R.S. 1998. In our view, there is no final and reviewable order with respect to this issue.
Section 8-43-301(2), C.R.S. 1998, provides that a party may file a petition to review “an order which requires any party to pay a penalty or benefits or denies the claimant any benefit or penalty.” Under this rule, an order granting a petition to reopen which does not determine the claimant’s entitlement to benefits is not final and reviewable. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). Further, an order may be final and reviewable with respect to some issues, but not others Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1986).
Here, the ALJ’s order adjudicates the claimant’s right to additional medical benefits and temporary disability benefits. However, the order also explicitly states that “issues not resolved by this order,” including the issue of additional permanent disability benefits, are reserved for future determination. Thus, the ALJ’s order recognizes the claimant’s petition to reopen implicates the claimant’s right to additional permanent disability benefits, but the order reserves that issue for future determination. The ALJ’s decision to reserve the issue is probably in recognition of the fact the claimant’s entitlement to additional permanent disability benefits cannot be determined until the claimant reaches MMI. In any event, there is no final adjudication of the claimant’s right to additional permanent disability benefits as a result of the petition to reopen, and consequently, we lack jurisdiction to consider the issue at this time. The claimant’s petition to review must be dismissed without prejudice with respect to the issue of permanent disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 1999, is set aside insofar as it denied the claimant’s request for temporary total disability benefits commencing November 11, 1997. The matter is remanded for additional findings and a new order concerning this issue in accordance with the views expressed herein.
IT IS FURTHER ORDERED that the claimant’s petition to review is dismissed without prejudice with respect to the issue of permanent partial disability benefits.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for writ of certiorari 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 9, 1999 the following parties:
William J. Chapman, 1223 Lincoln St., Longmont, CO 80501
Dow Chemical Company, Kaiser-Hill, LLC, Attn: Al Jerman, P.O. Box 464, Golden, CO 80402
Travelers Insurance Company, Attn: Jerry McClory, P.O. Box 17360, Denver, CO 80217
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)
BY: A. Pendroy