W.C. No. 4-351-844Industrial Claim Appeals Office.
December 20, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which granted the claimant’s petition to reopen, awarded 12 days of temporary total disability benefits, and determined the respondents are entitled to a credit based on previously paid permanent partial disability benefits. The respondents assert that the issue of reopening was not “ripe for adjudication.” The respondents also seek review of the order insofar as it determined that Dr. Kemp is an authorized medical provider. We affirm the order with respect to reopening and temporary disability benefits, and dismiss the petition to review without prejudice insofar as it pertains to authorization for medical treatment.
The claimant sustained compensable bilateral shoulder injuries in 1997. On June 8, 2000, the respondents filed a final admission of liability for temporary and permanent partial disability benefits. Although the claimant’s 18 percent whole person impairment rating entitled him to an award of $55,987.95 in permanent partial disability benefits, the respondents limited their admission to $29,734.99 in permanent disability benefits. This limitation was based upon the $60,000 cap contained in § 8-42-107.5, C.R.S. 2001.
The claimant testified that his condition subsequently worsened and he experienced bilateral shoulder pain and instability. In January 2001 the treating physician, Dr. Nygaard, operated on the claimant’s left shoulder, and on March 2, 2001, performed a similar operation on the claimant’s right shoulder. The claimant missed 6 days of work after each of these operations.
The claimant filed a petition to reopen based on worsened condition and sought an award for 12 days of temporary total disability benefits. The respondents objected that the issue of reopening was not “ripe” because the previously paid permanent partial disability benefits entitled them to a credit against any potential award for temporary total disability benefits. However, the ALJ found the claimant’s condition worsened and resulted in 12 days of temporary total disability. Thus, the ALJ reopened the claim based on worsened condition, awarded 12 days of temporary disability benefits, and granted the respondents a “credit” based on the permanent partial disability benefits. The ALJ also determined that Dr. Nygaard referred the claimant to Dr. Kemp, and Dr. Kemp was an authorized treating physician.
I.
Relying on Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000), the respondents argue the issue of reopening was not “ripe for adjudication” because the respondents are not currently liable for any additional “payments” to the claimant. The respondents reason they are entitled to an offset for previously paid permanent partial disability benefits, and, therefore, the issue of reopening is “premature.” We are not persuaded.
Generally, judicial power is limited and courts are prohibited from infringing on the legislative power. Therefore, in the civil context, it has been held that “courts may not issue advisory opinions over cases that are not yet ripe.” See County Commissioners v. County Road Users Association, 11 P.3d 432, 439 (Colo. 2000). Section 8-43-201, C.R.S. 2001, provides that ALJ’s “shall have original jurisdiction to hear and decide all matters arising under articles 40 to 47 of this title.” Because this statute applies to “disputes” arising under the Act, we conclude that ALJ’s, like the judiciary, are restricted by the principle of ripeness from issuing purely advisory opinions which do not involve any actual controversies between litigants.
However, we conclude that the ALJ’s order reopening the claim and awarding additional temporary total disability benefits does not violate the principle of ripeness. Section 8-43-303, C.R.S. 2001, provides that claims may be reopened based on “a change in condition.” In order to reopen is not necessary that the claimant’s degree of permanent partial disability have changed. Instead, reopening “is also appropriate where additional medical and temporary disability benefits are warranted.”Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988).
Here, the ALJ’s order finding the claimant’s physical condition had worsened, and that the worsening resulted in compensable temporary disability, did not involve an “advisory” ruling concerning hypothetical facts. Instead, the claimant presented evidence that the worsening and disability had already occurred. Thus, the controversy presented to the ALJ was “ripe” for adjudication.
We recognize that because of the holding in Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611
(Colo.App. 1993), the respondents were entitled to “offset” the previously paid permanent partial disability benefits against their liability for additional temporary total disability benefits caused by the reopening. However, “offsets” constitute affirmative defenses and must be proven by the party asserting the right to the offset. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Safeway, Inc. v. Industrial Claim Appeals Office, 968 P.2d 162 (Colo.App. 1998). Therefore, the issues of whether the claimant proved a worsened condition and the right to additional temporary total disability benefits were entirely separate from the issue of whether, under Donald B. Murphy Contractors, the respondents demonstrated the right to reduce temporary total disability benefits by way of the offset. The mere fact that the respondents claimed the right to the offset, and that the respondents proved the amount of the offset exceeded their current liability for temporary disability benefits, does not mean that the issues of worsened condition and the right to temporary total disability benefits were not ripe for adjudication.
Richards v. Industrial Claim Appeals Office is not authority to the contrary. In that case, the claimant petitioned to reopen based on a worsened condition, but he sought only temporary total disability benefits. However, the ALJ found on substantial evidence that the claimant’s condition did not worsen and he remained at maximum medical improvement (MMI). The court noted that temporary total disability benefits are payable only if the claimant has not reached MMI. Consequently, the court upheld the ALJ’s denial of the petition to reopen because it concluded reopening is not warranted “if, once reopened, no additional benefits may be awarded.”
In this case, unlike Richards, the ALJ found the claimant’s condition worsened to the point he was no longer at MMI, and that additional temporary disability benefits were warranted. Indeed, the ALJ awarded additional temporary total disability benefits. The mere fact that the ALJ permitted the respondents to take the Murphy offset against those benefits does not alter the fact that they were awarded.
Further, permitting the ALJ to adjudicate the claimant’s right to temporary total disability benefits while permitting the respondents to take an offset is not a purely theoretical exercise. The Murphy offset is finite because it is limited to the amount of permanent partial disability benefits which the respondents paid under the cap established by § 8-42-107.5. If the claimant sustains additional periods of temporary disability before reaching MMI, the respondents’ liability for temporary disability benefits could exceed the amount of the previously paid permanent partial disability benefits and the right to offset would be extinguished. In such cases, the respondents would be obliged to reinstate temporary total disability benefits. Cf. Bowers v. North American Property, W.C. No. 4-154-629 (May 20, 1999) (where claimant was temporarily disabled and had not reached MMI, respondents could not terminate benefits after paying $120,000 in temporary total disability benefits because the claimant might be permanently and totally disabled and the cap would never apply). The claimant should be allowed to litigate the extent to which the offset has been diminished or overcome and the right to temporary benefits reinstated.
II.
The respondents next contend the ALJ erred in determining that Dr. Kemp is authorized to treat the claimant. However, this portion of the ruling is not final and reviewable under § 8-43-301(2), C.R.S. 2001 Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory).
Section 8-43-301(2) provides that a party dissatisfied with an order may file a petition to review an order which “requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” The courts have repeatedly held that orders which do not meet these statutory criteria are interlocutory and not subject to immediate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Here, the ALJ’s order determined that Dr. Kemp is authorized to treat the claimant, but did not order the respondents to pay for any particular medical treatment rendered by Dr. Kemp. Indeed, at the time of the hearing, it does not appear the claimant had ever seen Dr. Kemp. Under these circumstances, the ALJ’s order is interlocutory with respect to medical benefits because it does not deny the claimant any benefit nor does it require the respondents to pay any particular medical benefit. Indeed, the respondents retain the right to argue that, even if Dr. Kemp is authorized to treat the claimant, particular treatments provided by Dr. Kemp are not reasonable and necessary. Fernandez v. City and County of Denver, W.C. No. 4-122-784 (February 7, 2001).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 9, 2001, is affirmed insofar as it awarded temporary total disability benefits.
IT IS FURTHER ORDERED that the respondents’ petition to review is dismissed without prejudice insofar as it concerns the issue of authorization for treatment by Dr. Kemp.
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 December 20, 2001 to the following parties:
Parker Plitz, 17453 E. Chenango Dr., Aurora, CO 80015
Quality Mitsubishi, 6120 S. Broadway, Littleton, CO 80121-8015
Kurt Lawrence, Commercial Casualty Insurance Co., P. O. Box 6597, Englewood, CO 80155-6597
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Clyde E. Hook, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy