W.C. Nos. 3-823-472, 3-917-277Industrial Claim Appeals Office.
May 13, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which denied a claim for permanent total disability benefits and awarded permanent partial disability benefits. We affirm the denial of permanent total disability benefits, and remand the matter for entry of a new order concerning permanent partial disability benefits and medical benefits.
In August 1988, the claimant sustained a compensable back injury while employed by respondent Cooney’s/A W Motor Restaurants. The case proceeded to hearing on the issues of permanent total disability benefits, permanent partial disability benefits, ongoing medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), and Subsequent Injury Fund (SIF) liability.
The claimant’s treating physician for the 1988 injury, Dr. Hall, determined the claimant reached maximum medical improvement (MMI) on May 27, 1993, with a two percent whole person physical impairment. By report of June 10, 1993, Dr. Hall prescribed a membership at a YWCA, a TENS unit, and “occasional physicians visits to monitor for progress.” Later, in August 1996, Dr. Hall imposed restrictions against lifting more than twenty-five pounds, and limited the claimant to occasional grasping, fine manipulation, pushing and pulling, and forward and overhead reaching. He also injected the claimant’s back.
Another physician, Dr. Finn, conducted an independent medical examination (IME) in August 1996. At that time, Dr. Finn opined that the claimant’s impairment rating had not changed, and stated he would not recommend any further treatment.
Hearings were held in January and April 1997. At these hearings, the ALJ received conflicting vocational testimony concerning the claimant’s ability to return to work. Ultimately, the ALJ credited the testimony of the respondents’ expert that, despite her restrictions, the claimant is employable in several positions. These included medical receptionist jobs, an educational aide, and a customer service representative at Matrix Marketing.
Under these circumstances, the ALJ concluded the claimant failed to prove entitlement to permanent total disability benefits and dismissed the SIF. Additionally, the ALJ determined that the claimant “sustained a 2 percent whole person impairment rating based upon the August 9, 1988 injury.” The ALJ made no findings or conclusions with respect to the claimant’s request for ongoing medical benefits under Grover.
I.
On review, the claimant first contends the ALJ erred in failing to make findings of fact and conclusions of law concerning her right to Grover medical benefits. The claimant points out that there is some evidence, including the reports of Dr. Hall, that she is entitled to these benefits. We agree that the matter must be remanded for resolution of this issue.
The claimant raised the issue of Grover medical benefits in a timely fashion. Moreover, entitlement to ongoing medical benefits subsequent to MMI should be determined “at the hearing on the final award of permanent disability” if there is substantial evidence of a need for ongoing treatment. Grover v. Industrial Commission, 759 P.2d at 711-712.
Because the ALJ made no findings of fact or conclusions of law concerning the claimant’s entitlement to ongoing medical benefits, we cannot determine whether, and for what reason, the ALJ denied the request. The respondents’ arguments notwithstanding, none of the ALJ’s findings directly, or implicitly, address this issue. Moreover, the ALJ’s “reservation” of other issues does not comport with Grover’s direction to determine ongoing medical benefits contemporaneously with the hearing on permanent disability. Therefore, we remand the matter for entry of an order concerning the claimant’s entitlement to ongoing medical benefits under Grover. Section 8-43-301(8), C.R.S. 1997.
II.
The claimant also contends the ALJ failed to make adequate findings of fact and conclusions of law with regard to her entitlement to permanent partial disability benefits. The claimant argues there was substantial evidence of “lost earning capacity,” and the ALJ’s reliance on the medical impairment rating is insufficient to resolve her entitlement to permanent partial disability benefits. Because the ALJ may have misapplied the law, we also remand the matter for a new order on this issue. Section 8-43-301(8) C.R.S. 1997 (order must be supported by applicable law).
Because the claimant’s injury occurred in 1988, the right to permanent partial disability benefits is governed by former § 8-51-108(1)(b), C.R.S. (1989 Cum. Supp.). This provision stated:
“In determining permanent partial disability, the director shall ascertain in terms of percentage the extent of general permanent disability which the injury has caused, taking into consideration not only the manifest weight of the evidence but also the general physical condition and mental training, ability, former employment, and education of the injured employee.”
For purposes of § 8-51-108(1)(b), the term “disability” refers to loss of earning capacity on the open labor market Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210
(Colo.App. 1990). Physical impairment, standing alone, is not necessarily indicative of lost earning capacity. Rather, the question is the extent to which any existing physical impairment has impacted the claimant’s earning capacity now or in the future See Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App. 1980). However, the physical impairment rating may be the basis of an award of permanent partial disability benefits if, when considered in view of the other relevant factors, the rating is indicative of the general degree of disability. See Gilliatt v. Industrial Commission, 680 P.2d 1310 (Colo.App. 1983); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345
(1977).
Here, as the ALJ recognized in Finding of Fact 14, the record contains expert vocational evidence from which it could be found the claimant sustained a substantial “general disability” as measured by loss of access to the labor market. However, the ALJ made no explicit findings concerning the credibility of this evidence, nor did she reach any conclusions of law from which we may infer that the ALJ evaluated this evidence. To the contrary, the ALJ’s only conclusion is that the claimant sustained a “two percent whole person impairment.”
Thus, the ALJ’s findings and conclusions are insufficient to determine whether she applied the correct legal standard in determining the claimant’s entitlement to permanent partial disability benefits. On remand, the ALJ shall determine the “extent of general permanent disability” after evaluating all the relevant factors. The ALJ may certainly consider the impairment ratings issued by the various physicians, and may even base the award upon one of those ratings. However, the ALJ should not treat any impairment rating as conclusive with respect to the degree of general permanent disability. Rather, the award must be based on the claimant’s overall loss of earning capacity as determined from the evidence, and the findings must be sufficient to indicate the basis of the order.
III.
The claimant’s final contention is that the ALJ erred in refusing to permit the testimony of the claimant’s sister as a rebuttal witness. By offer of proof, claimant’s counsel indicated the witness would have testified that she is employed at Matrix Marketing, and the job is more physically demanding than was testified to by the respondents’ vocational expert. (Tr. April 14, 1997, p. 49-50).
CRE 103 (a) provides that error may not be predicated upon exclusion of evidence “unless a substantial right of the party is affected.” Here, we find that, even if the ALJ erred in excluding the rebuttal testimony, the error was harmless because it did not affect the claimant’s substantial rights.
Immediately after the ALJ excluded the rebuttal testimony the claimant recalled her own vocational expert. The expert testified that she went to Matrix Marketing within two years of the hearing, and found the job required physical activity in excess of the restrictions imposed by Dr. Hall. Therefore, the excluded testimony was essentially cumulative to that given by the vocational expert. Moreover, the ALJ credited evidence that the claimant had access to several jobs in addition to the one at Matrix Marketing. Consequently, we do not believe that permitting the testimony could have changed the result in the case.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 5, 1997, is set aside insofar as it awarded permanent partial disability 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 matter is remanded to the ALJ for entry of an order concerning the claimant’s entitlement to ongoing medical benefits under Grover v. Industrial Commission.
IT IS FURTHER ORDERED that the ALJ’s order is affirmed insofar as it denied permanent total disability benefits.
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. 1997.
Copies of this decision were mailed May 13, 1998 to the following parties:
Rebecca J. Davis-Cash, 916 E. 6th St., Pueblo, CO 81001
Cooney’s, Robert H. Coate, Esq., 1225 17th St., # 2800, Denver, CO 80202
Pueblo Manor, John FitzSimons, Esq., 3464 S. Willow St., Denver, CO 80231-4566
Carolyn A. Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Subsequent Injury Fund — Interagency Mail
Jill M.M. Gallett, Esq., Office of the Attorney General, Civil Litigation Section, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
Michael S. Kocel, Esq., 104 S. Cascade, #200, Colorado Springs, CO 80903 (For the Claimant)
Robert H. Coate, Esq., 1225 17th St., #2800, Denver, CO 80202 (For Cooney’s CCIA)
John FitzSimons, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For Pueblo Manor CCIA)
By: _________________________