W.C. No. 3-061-333Industrial Claim Appeals Office.
January 10, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) insofar as it denied their request to offset payments for permanent partial disability against an award of permanent total disability benefits. We affirm.
The facts in this case are undisputed. The claimant sustained a compensable injury on January 24, 1989, and the respondents filed a Final Admission of Liability admitting liability for permanent partial disability based on a disability of five percent as a working unit. Respondents commenced payment of this award on June 12, 1989, at the rate of $120 per week.
Thereafter, the claim was reopened on three separate occasions due to worsening of the claimant’s condition. As a result of the first two reopenings, the claimant was awarded temporary disability benefits, and additional permanent partial disability benefits. The claimant did not receive contemporaneous permanent and temporary disability benefits during these two reopenings.
The third reopening occurred on June 1, 1994. As a result of this reopening the claimant was awarded temporary total disability benefits commencing March 17, 1993. At that time, the respondents had already paid $26,764 as a result of the prior permanent partial disability awards.
The claimant was also found to be permanently and totally disabled as of July 6, 1995. Permanent total disability benefits commenced July 6, 1995, and the respondents argued that there had been an “overpayment of $24,219.83 for permanent partial disability benefits previously paid.” However, the ALJ rejected the respondents’ request for an offset because, in his view, permitting the offset would violate § 8-43-303(1), C.R.S. (1996 Cum. Supp.), by affecting an earlier award as to moneys already paid.
On review, the respondents contend that it is proper to offset the payments for permanent partial disability benefits against the subsequent award for permanent total disability. The respondents reason that, because permanent partial disability and permanent total disability benefits are paid for loss of future earning capacity, it is inequitable not to permit payments for permanent partial disability to be offset against a an award for permanent total disability. The respondents also argue that the ALJ erred in concluding that such an offset would violate §8-43-303(1). We do not consider the respondents’ latter argument since we conclude that, under the facts present here, no offset is required.
At the time of the claimant’s injury, former § 8-51-108(1)(b), C.R.S. (1989 Cum. Supp.), provided for payment of permanent partial disability benefits at the rate of $120 per week, not to exceed $37,560. Such benefits were designed to compensate for a claimant’s “loss of earning capacity,” which meant loss of the present and/or future ability to earn wages. Although an immediate wage loss was certainly evidence of lost earning capacity, proof of such a loss was not required to establish a loss of earning capacity. Vail Associates, Inc. v. West, 692 P.2d 1111 (Colo. 1984); Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210 (Colo.App. 1990).
In contrast, permanent total disability benefits were paid for life at the rate of sixty-six and two-thirds percent of the claimant’s average weekly. See former § 8-51-107(1), C.R.S. (1986 Repl. Vol. 3B). Permanent total disability benefits were payable if the claimant had lost, and would not regain, efficiency in some substantial degree in the fields of general employment. Prestige Painting and Decorating, Inc. v. Mitchusson, 825 P.2d 1049
(Colo.App. 1991).
It is true that permanent partial disability benefits and permanent total disability benefits were both designed to compensate for a claimant’s “loss of earning capacity.” However, such benefits were not identical because they were payable in different amounts and for different periods of time. Moreover, there was not theoretical bar to finding that a claimant’s loss of earning capacity was partial at one point in time, and subsequently, became total due to a worsening of condition.
It follows that, for those periods of time the claimant was permanently partially disabled prior to being declared permanently totally disabled, he was sustaining a permanent partial loss of earning capacity. If we were to hold that compensation for the claimant’s permanent partial loss of earning capacity could be offset against the subsequent permanent total disability, the claimant would receive no compensation whatsoever for those periods when he was permanently partially disabled, and thus, impaired in his ability to find work in the open labor market.
This conclusion is fully consistent with Kehm v. Continental Grain, 756 P.2d 381 (Colo.App. 1987). In Kehm the claimant sustained two separate industrial injuries. The court concluded that the claimant was entitled to receive permanent partial disability benefits for the first injury until such time as he was declared permanently totally disabled as a result of the second injury. The court reasoned that simultaneous awards of permanent partial disability and permanent total disability benefits would be improper since it is theoretically impossible to be more than permanently totally disabled. Moreover, permitting simultaneous awards could induce malingering since it might be more profitable to be disabled than to work. See also Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996).
Consistent with Kehm, permitting the claimant to retain the permanent partial disability benefits which he received prior to being declared permanently totally disabled does not result in a double award of benefits for those periods of time. Prior to being declared permanently totally disabled, the claimant was receiving benefits at the diminished rate appropriate for permanent partial disability benefit awards.
Moreover, our conclusion is consistent with the majority rule accepted in most states. As stated by Professor Larson, “The usual holding is that the permanent partial award need not be deducted from the subsequent permanent total award.” 2 A. Larson Workmens’ Compensation Law, § 59.42(c).
For these reasons, we reject the respondents’ argument that they are entitled to an offset. We therefore need not consider whether such an offset would violate § 8-43-303(1).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (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 January 10, 1997 to the following parties:
Eugene Crespin, 1260 Frontier Rd., Delta, CO 81416
National Fruit Product, P.O. Box 2040, Winchester, VA 22604
Liberty Mutual Fire Ins., Attn: Margaret Malone, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
John Connell, Esq. Dawn M. Stockton, Esq., 1675 Larimer St., Ste. 710, Denver, CO 80202 (For the Respondents)
Gudrun Rice, Esq., 101 S. 3rd St., #265, P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: ______________________________________________