W.C. No. 3-920-202Industrial Claim Appeals Office.
July 9, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which was issued pursuant to our Order of Remand. The claimant contends the ALJ erroneously denied his claim for additional permanent partial disability benefits. We affirm.
The claimant suffered a compensable back injury in 1988. On September 29, 1993, the respondents filed a Final Admission of Liability which admitted liability for 6 percent permanent partial disability. In an order dated March 1, 1994, ALJ Wheelock denied the claimant’s request for permanent partial disability benefits in excess of the admitted liability. However, on August 2, 1995, ALJ Wheelock reopened the claim on the ground there had been a change in the claimant’s condition and awarded additional medical and temporary disability benefits. The claimant reached MMI from the worsened condition on December 5, 1995, and the respondents did not admit liability for any additional permanent disability benefits. The claimant then applied for a hearing on the issues of permanent total disability, permanent partial disability, and medical benefits.
In a previous order, the ALJ determined the claimant failed to prove his entitlement to permanent total disability benefits and medical benefits for a hot tub. However, crediting the opinion of vocational expert David Zierk, the ALJ found that the claimant sustained a 9 percent loss of future earning capacity due to the injury. Therefore, the ALJ ordered the respondents to pay additional benefits based on 9 percent permanent partial disability. Both parties timely appealed.
The claimant alleged the ALJ erroneously denied his requests for the hot tub and permanent total disability benefits, and alternatively argued the ALJ should have granted a greater award of permanent partial disability benefits. The respondents argued the ALJ erroneously awarded any additional permanent disability benefits due to the worsened condition.
On review, we affirmed the ALJ’s order denying permanent total disability and medical benefits, but set aside the award of permanent partial disability benefits and remanded the matter for entry of a new order on that issue. The following language from our Order of Remand is pertinent:
“Section 8-43-303(1), C.R.S. 1999, allows an ALJ to reopen a permanent disability award on the grounds of mistake, error, or change of condition. The statute also provides that upon reopening, benefits previously ordered “may be ended, diminished, maintained or increased.” Proof of increased permanent disability is not required where the claimant alleges a worsening of condition and only seeks additional temporary disability and medical benefits. See Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). However, in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the court held that additional temporary disability benefits are not payable unless the worsened condition “caused a greater impact” upon the claimant’s work capacity than existed at the time of MMI. Based on the court’s opinion in that case, we conclude that the claimant is not entitled to additional permanent partial disability benefits following a worsening of condition after MMI unless the claimant’s worsened condition caused a greater impact on the claimant’s permanent earning ability than existed at the time of the original award.”
In the previous order the ALJ awarded additional permanent partial disability benefits, but he did not make findings which determined whether the claimant suffered increased permanent partial disability as a result of the worsened condition. Therefore, we concluded the ALJ’s findings of fact were insufficient to ascertain whether the ALJ erred in awarding additional permanent partial disability benefits. We remanded the matter for the entry of a new order on the issue of permanent partial disability benefits.
We note the claimant also argued that he is entitled to additional permanent partial disability benefits on the ground that the original impairment rating was incorrect. However, the claim was reopened on the ground that there had been a change in the claimant’s physical condition, not on the ground of “mistake.” Under these circumstances, we concluded the claimant was not entitled to relitigate issues such as his degree of disability which were decided at the time of the original award.
On remand the ALJ issued an order dated February 2, 2001. On conflicting vocational and medical evidence, the ALJ found the claimant failed to sustain his burden to prove the worsened condition impaired his permanent earning capacity to a greater degree than existed in 1993. Therefore, the ALJ denied the claimant’s request for additional permanent partial disability benefits. The claimant timely appealed the February 2 order.
The claimant’s brief in support of the petition to review states that:
“Claimant relies on the arguments made in the first appeal. Claimant has nothing new to present. The sole purpose of this Appeal [sic] is to take the issue previously addressed by the Industrial Claim Appeals Office to the Court of Appeals.”
We are not persuaded to depart from our previous conclusions. Furthermore, there is substantial evidence in the opinions of Dr. Polanco, which the ALJ expressly credited, to support the ALJ’s order denying additional permanent partial disability benefits. Therefore, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ’s order. Section 8-43-301(8), C.R.S. 2001.
IT IS FURTHER ORDERED that the ALJ’s order dated February 2, 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. 2000. 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 July 9, 2001 to the following parties:
Michael a. Frazier, P. O. Box 363, Calhan, CO 80808
Montgomery Ward Co., Inc., 2420 E. Pikes Peak Ave., Colorado Springs, CO 80909-6005
Standard Fire Insurance Company, Barbara Trefren-McDaniel, Aetna Life Casualty, P. O. Box 173712, Denver, CO 80217
Ronald L. Giangiorgi, Esq., Corporate Legal Division, Wards National Office, 535 W. Chicago Ave., 24th floor, Chicago, IL 60671
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Julie A. Halaby, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
BY: A Pendroy