W.C. No. 4-374-122Industrial Claim Appeals Office.
December 20, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded temporary disability benefits. The respondents’ only argument is that the ALJ exceeded the scope of our Order of Remand by receiving additional evidence. We affirm.
In an order dated February 1, 2001, the ALJ found the claimant’s condition worsened after he was placed at maximum medical improvement (MMI) in December 1998, and that the claim should be reopened. The ALJ further determined the claimant was entitled to temporary disability benefits commencing December 10, 1999.
The respondents appealed the February 1 order. They argued the ALJ applied an erroneous legal standard in awarding temporary disability benefits because the ALJ did not find the worsened condition caused additional impairment of earning capacity as required by City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). In an Order of Remand dated September 28, 2001, we set aside the ALJ’s February 1 order to the extent it awarded temporary disability benefits commencing December 10, 1999, and “remanded the matter for entry of a new order consistent with the views expressed” in the order. Our order stated the ALJ failed to make sufficient findings of fact to demonstrate compliance with City of Colorado Springs, and we observed the “ALJ did not find that following the worsening of condition, the claimant’s capacity to earn wages was diminished beyond that which already existed as a result of the injury.”
Following the remand, and over the respondents’ objection, the ALJ conducted an additional hearing where he received evidence relevant to the question of whether the worsened condition caused additional impairment of earning capacity. On March 3, 2002, the ALJ entered the order currently under review. The order states the ALJ reviewed our Order of Remand, and determined that he could not comply with the remand without taking additional evidence. (See also, Transcript P. 6). The ALJ then found the claimant proved the worsened condition caused an additional impairment of earning capacity beyond that which existed at MMI. In so doing the ALJ relied heavily on medical testimony received at the hearing after the remand.
On appeal, the respondents do not contest the legality of the ALJ’s award of temporary disability benefits or the sufficiency of the evidence to support it. Their sole argument is the ALJ exceeded the scope of our Order of Remand by conducting the second hearing. We disagree with the respondents’ contention.
Generally, the tribunal which enters an order remanding a case is in the best position to determine the scope of the remand. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The order of an appellate tribunal which remands for further proceedings consistent with its ruling is a general remand, and the lower tribunal may make new findings and conclusions as long as there is no conflict with the appellate ruling Musgrave v. Industrial Claim Appeals Office, 762 P.2d 686 (Colo.App. 1988).
Here, our Order of Remand directed the ALJ to enter a new order applying the legal principle announced in the City of Colorado Springs
case, and remanded for proceedings consistent with the views expressed in the remand. Obviously, the Order of Remand contained no express directions concerning whether or not an additional hearing could or should be held, and we conclude it cannot be fairly construed as implying any such direction. Thus, we conclude the remand was general in nature and the ALJ did not act inconsistently with our order when he conducted an additional hearing to clarify the facts on the critical legal issue. This is particularly true because the ALJ stated on the record that at the time of his initial order he may not have been sufficiently attuned to the precise legal requirements of the City of Colorado Springs case. (Tr. P. 57).
The cases cited by the respondents are distinguishable. In Jiminez v. Amax Henderson Project, W.C. No. 4-214-079 (June 25, 2002), we considered a claimant’s appeal and remanded the matter to the ALJ to redetermine the amount of a penalty. On remand, the ALJ conducted a new hearing on whether the respondents had violated an order which formed the basis of the penalty. We concluded the ALJ exceeded the scope of the remand and violated the principle of law of the case “by conducting a new hearing and considering an issue which was not submitted to him” by the order of remand. In this case, the ALJ conducted a hearing on an issue which was submitted to him, and he did not violate the principle of law of the case.
In Warm v. Safeway (Store 920), W.C. No. 4-465-204 (April 18, 2002), the ALJ found in the first order that the claimant lost her footing and fell at work. However, the ALJ held the resulting injuries were not compensable because the claimant did not show the fall was the result of a special hazard. On appeal of that order, we held the ALJ’s finding of fact compelled the legal conclusion that the claim was compensable and the “special hazard” doctrine did not apply. Thus, we set aside the ALJ’s first order and remanded for proceedings consistent with our order. Following the remand, the ALJ entered a second order which discredited the claimant’s testimony and found she did not fall at work. The claimant appealed the second order and argued the ALJ exceeded the scope of the remand by entering the new findings on compensability. We concluded that our ruling on compensability became law of the case and that the remand did not permit the ALJ to reconsider the issue and the factual matters relevant to that determination. Hence, the only proceedings consistent with the order of remand involved a determination of the claimant’s entitlement to benefits as a result of the compensable injury. In this case, the ALJ’s conduct of the additional hearing did not contravene any legal determination established by our Order of Remand, and Warm is inapposite.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 8, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Robert M. Socolofsky
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 20, 2002 to the following parties:
James Hickey, 1106 Gard Pl., #C, Loveland, CO 80537-5262
Dan Pena, Colorado State University, Environmental Health Services, Ft. Collins, CO 80523-6021
Mike Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Stephen J. Jouard, Esq., P. O. Drawer J, Ft. Collins, CO 80522 (For Claimant)
Ronda K. Comings, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526
By: A. Hurtado