W.C. No. 3-105-407Industrial Claim Appeals Office.
June 13, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ). The respondents contend that the ALJ erred in failing to allow them to offset their liability for temporary disability benefits in accordance with Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1597, September 21, 1995), cert. denied April 29, 1996. We affirm.
Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, supra, (Murphy) concerns the provisions § 8-42-107.5, C.R.S. (1995 Cum. Supp.). In pertinent part, that statute states that for claims arising on or after July 1, 1991:
“No claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments.”
In Murphy, the court concluded that where there has been an initial determination of maximum medical improvement (MMI) and permanent partial disability, and then the claimant suffers a worsening of condition such that the claimant is no longer at MMI, the application of § 8-42-107.5 is premature. Nevertheless, the court concluded that “where further benefits are sought after the twenty-five percent or less limit of §8-42-107.5 has been applied, the [employer and its insurer] are entitled to offset any permanent disability partial benefits paid against temporary total disability benefits” owed as a result of the worsened condition. Further, the Murphy court concluded that where the claimant receives $60,000 in combined temporary disability and permanent partial disability benefits based upon a medical impairment rating of twenty-five percent or less, the “twenty-five percent or less limit of § 8-42-107.5
has been applied.”
Here, the pertinent facts are undisputed. The claimant suffered compensable injuries in 1992, and was paid temporary total disability benefits. Pursuant to an uncontested Final Admission of Liability, the claimant later received permanent partial disability benefits based upon a medical impairment rating of 22 percent of the whole person. The claimant’s condition subsequently worsened, and the claim was reopened. The respondents paid additional temporary total disability benefits, but sought to terminate benefits when the combined payments for temporary and permanent disability equalled $60,000.00. The claimant objected and temporary disability benefits continued.
The respondents later sought to terminate the claimant’s temporary disability benefits commencing October 21, 1994, on grounds that the claimant reached MMI from the worsened condition. In an order dated April 25, 1995, the ALJ determined that the claimant had not reached MMI and ordered the respondents to reinstate temporary disability benefits effective October 21, 1994. The respondents appealed the order, and specifically argued that the ALJ’s order was contrary to § 8-42-107.5.
In an order issued September 12, 1995, we upheld the ALJ’s determination that the claimant was not at MMI and concluded that the application of § 8-42-107.5 was premature. Therefore, we affirmed the ALJ’s conclusion that the respondents are obligated to pay temporary disability benefits effective October 21, 1994. The respondents did not appeal our order of September 12.
However, following the court’s announcement i Murphy, the respondents filed a General Admission of Liability, in which they asserted an offset of their prior permanent partial disability benefit payments against their liability for temporary disability benefits. The claimant contested the General Admission and the dispute was presented to ALJ on written argument.
The claimant asserted in part, that as a result of the respondents’ failure to appeal, our order of September 12 became a final order with regard to the respondents’ obligation to pay temporary total disability benefits. Therefore, the claimant argued that the respondents could not be relieved of that obligation simply by the filing of a General Admission of Liability, which asserted an offset for 100 percent of the payments. We agree with this argument.
“An order, whether resulting from an admission, agreement, or a contested hearing, which addresses benefits and which grants a benefit, constitutes an award.” Burke v. Industrial Claim Appeals Office, 905 P.2d 1, 2 (Colo.App. 1994). Furthermore, the “award” becomes “final” by the exhaustion of or failure to exhaust review proceedings. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780
(Colo.App. 1991). Thereafter, no further benefits may be awarded unless there is an appropriate order to reopen the proceedings. Burke v. Industrial Claim Appeals Office, 905 P.2d at 2.
Here, our order of September 12, 1995 affirmed the ALJ’s award of continuing temporary total disability benefits, and expressly rejected the respondents’ argument that their liability for temporary disability benefits terminated by the application of § 8-42-107.5. Because the respondents failed to exhaust their right to further review by the Court of Appeal, our September 12 order became a final award as to temporary total disability benefits commencing October 21, 1994. As a result, the respondents could not obtain relief from our order in the absence of an order reopening the issue of temporary disability benefits commencing October 21, 1994.
Neither party filed a petition to reopen the issue of temporary disability benefits. Rather, the respondents attempted to unilaterally terminate the claimant’s temporary disability benefits by the filing of a General Admission of Liability which asserted an offset. Under these circumstances, the ALJ did not error in failing to allow an offset based on Murphy.
Nevertheless, our conclusion should not be understood as precluding either party from seeking to reopen the issue of temporary disability in accordance with § 8-43-303, C.R.S. (1995 Cum. Supp.). That statute affords the ALJ discretion to “reopen any award on the ground of an error, mistake or change in condition.” Whether an asserted “error” or “mistake” justifies reopening a claim is a determination for the ALJ to make See Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399, 400 (Colo.App. 1981).
Moreover, in the absence of an order reopening the disputed issue, it is premature for us to determine whether the ALJ erred in concluding that Murphy is inapplicable to the facts of this clai . Therefore, we do not consider the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 14, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed June 13, 1996 to the following parties:
Martin L. Martinez, 968 Hwy. 65, Austin, CO 81410
Meadow Gold Dairies, Inc., 180 E. Broad St., Columbus, OH 43215-3707
John Bears, CIGNA, P.O. Box 2941, Greenwood Village, CO 80150-0141
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________