W.C. No. 4-352-777Industrial Claim Appeals Office.
June 2, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his request for additional permanent partial disability benefits based upon an increase in the average weekly wage. We affirm.
The pertinent facts are undisputed. In 1996 the claimant suffered a compensable injury. He reached maximum medical improvement on April 30, 1998. A Division- sponsored independent medical examination physician (DIME) assigned a 33 percent whole person impairment rating. The respondents failed to overcome the DIME physician’s rating and, therefore, ordered them to pay permanent partial disability benefits based on the DIME’s physician’s rating. On February 2, 2000, the respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits at the rate of $160.83 per week, from April 30, 1998 to April 23, 2001, for a total amount of $25,050.88. The admitted average weekly wage was $241.25, which did not include the value of employer provided housing. There is no dispute the respondents paid benefits in accordance with the admission.
In February 2000, the claimant objected to the Final Admission and requested the average weekly wage include the value of employer provided housing. In June 2000 ALJ Stuber determined the issue was premature because the claimant remained employed with the respondent-employer and continued to receive the housing benefit. See § 8-40-201(19)(b), C.R.S. 2001.
In February 2000, the claimant also applied for a lump sum payment of permanent partial disability benefits. Attached to the application was a letter to the respondents, and copied to the Division of Workers’ Compensation, which stated the claimant and his attorney were in:
“agreement with the 33% whole person impairment rating admitted in your Final Admission of Liability of February 2, 2000, however we object to the closing of any other benefits the Claimant may be entitled to.”
The Director granted a lump sum award of $11,678.74 by order dated February 15, 2000.
On February 28, 2001, the claimant’s employment and his right to the housing benefit terminated. Consequently, in April 2001, the claimant applied for an increase of the average weekly wage to include the value of employer provided housing. The claimant also requested additional permanent partial disability benefits based on the increased average weekly wage.
Based on stipulated facts the ALJ determined the issue of average weekly wage was closed by virtue of the claimant’s application and acceptance of a lump sum award of permanent partial disability benefits. Further, the ALJ determined the claimant waived his entitlement to additional permanent partial disability benefits by accepting the respondents’ Final Admission on the issue of permanent partial disability. Therefore, the ALJ determined that for purposes of obtaining additional permanent partial disability benefits, the issue of average weekly wage was closed and subject to the reopening provisions in §8-43-303 C.R.S. 2001.
On review, the claimant contends the lump sum award did not close the claim nor the issue of average weekly wage for benefits which became due after the date of the Final Admission. In support, the claimant contends he objected to the average weekly wage listed in the respondents’ Final Admission and reserved the issue of average weekly wage by explicitly objecting to the “closing of any other benefits the Claimant may be entitled to.” Under these circumstances, the claimant argues the application for a lump sum award contemplated a hearing on average weekly wage following the claimant’s loss of the housing benefit. We conclude the stipulated facts support the ALJ’s order.
A claim may be closed by a “final award” resulting from an admission or order after a contested hearing. The term “award” includes an order which grants or denies benefits. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). Under the statutory provisions currently codified at § 8-43-303 a claimant is precluded from receiving further benefits after a claim is closed, unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
In Brunetti v. Industrial Commission, 670 P.2d 1246 at 1248 (Colo.App. 1983), the court held the claim was closed by virtue of the claimant’s application and receipt of a lump sum award for permanent partial disability benefits consistent with the respondents’ general admission of liability for permanent impairment. The circumstances presented here, are not appreciably different than the facts in Brunetti.
Here, the claimant’s application for a lump sum award of permanent partial disability benefits accepted the respondents’ admission of liability for permanent partial disability benefits of $25,050.88. The Director’s lump sum award effected the pay out of all admitted liability for weekly permanent partial disability installment benefits calculated at its present worth. See § 8-43-406(1), C.R.S. 2001. Consequently, the lump sum payment served to close the issue of permanent partial disability benefits.
Further, by virtue of the lump sum award, the claimant obtained the value of the respondents’ stipulated liability for permanent partial disability benefits. Under these circumstances, the ALJ reasonably inferred the claimant voluntarily accepted all admitted liability calculated at the rate of $241.25 per week. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver may be explicit, or it may be implied where a party engages, “in conduct which manifests an intent to relinquish the right or privilege or acts inconsistently with its assertion”); Harlan v. Industrial Commission, 167 Colo. 413, 447 P.2d 1009(1968).
In any case, the claimant admits the right to an increased average weekly wage did not arise until after the lump sum payment. Because there were no permanent partial disability benefits due and owing after February 28, 2001, an increase in the average weekly wage would not have entitled the claimant to additional permanent partial disability benefits.
Consequently, even if the ALJ erred in failing to increase the average weekly wage, the error was harmless. Section 8-43-310 C.R.S. 2001; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
Moreover, we disagree with the claimant’s contention that his objection to the closure of all other “benefits” preserved the claimant’s entitlement to additional permanent partial disability benefits based on an increase in the average weekly wage. This is true because “average weekly wage” is not a “benefit.” Rather, average weekly wage is the basis upon which indemnity benefits are calculated. Section 8-42-102(1), C.R.S. 2001. It follows that insofar as the claimant’s lump sum application my be construed as a reservation of all issues other than permanent partial disability, the application waived his entitlement to permanent partial disability benefits calculated at a rate greater than $241.25 per week.
The claimant’s remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 19, 2001 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 6, 2002 to the following parties:
Darrell Ezell, P. O. Box 1125, Colorado Springs, CO 80901
Raintree Springs Homeowners Association, 4849 Sonata Dr., Colorado Springs, CO 80918-2511
Curt Kriksciun, Esq., Pinnacol Assurance (CCIA) — Interagency Mail (For Respondents)
Michael W. McDivitt, Esq., 19 E. Cimarron St., Colorado Springs, CO 80903 (For Claimant)
Thomas M. Schrant, Esq., 1660 S. Albion St., #425, Denver, CO 80222
BY: A. Hurtado