W.C. No. 4-169-533Industrial Claim Appeals Office.
April 16, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which denied and dismissed her claim for temporary partial disability benefits subsequent to the date of maximum medical improvement (MMI). We affirm.
The claimant suffered a work-related injury on February 28, 1993. The respondents admitted liability for temporary total disability benefits until the claimant returned to modified employment, at which time the respondents admitted liability for temporary partial disability benefits. The claimant was determined to be at MMI on October 12, 1993, and the respondents terminated the payment of temporary partial disability benefits.
The claimant concedes that she reached MMI on October 12, 1993. However, she contends that she continues to experience a partial wage loss, because she is unable to work an eight-hour workday, as she did prior to the injury. Therefore, she contends that she is entitled to continuing temporary partial disability benefits under § 8-42-106 C.R.S. (1995 Cum. Supp.).
The claimant’s argument is based on the language in § 8-42-106 which provides that temporary partial disability benefits “shall cease when the employee reaches maximum improvement from medical care or as otherwise determined by the Director.” The claimant contends that the phrase “as otherwise determined by the Director” authorizes the Director to extend temporary partial disability benefits beyond MMI.
The ALJ rejected the claimant’s argument based upon her conclusion that MMI terminates the claimant’s entitlement to “temporary” disability benefits and invokes the claimant’s right, if any, to “permanent” disability benefits. The ALJ further determined that the phrase “as otherwise determined by the Director” only applies if temporary partial disability benefits are not terminated by a finding of MMI. We agree with the ALJ.
It is well established that once the claimant has been determined to be at MMI, the claimant’s right to temporary disability benefits ceases and the claimant’s right to permanent disability benefits is invoked. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995); Dziewior v. Michigan General Corp., 672 P.2d 1026 (Colo.App. 1983). Accordingly, insofar as the claimant continues to suffers a partial wage loss after MMI, the loss is no longer the result of a “temporary disability” which would entitle the claimant to additional “temporary” disability benefits.
Further, the phrase “as otherwise determined by the Director” pertains to circumstances which trigger the termination of benefits. The claimant concedes that the Rules of Procedure, Part IX(C)(1), Code Colo. Reg. 1101-3 at 34-35 (1995), reflect the circumstances under which the Director of Workers’ Compensation (Director) has authorized respondents to terminate temporary partial disability benefits without a hearing. Rule IX(C)(1)(a) provides for the termination of benefits when the claimant reaches MMI. Therefore, the claimant has failed to persuade us that the Director has authorized the extension of temporary partial disability benefits beyond MMI.
Moreover, the claimant’s reliance upon University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994) for the contrary, is misplaced. That case concerns the calculation of temporary partial disability benefits, and not the period of time in which benefits are payable.
The claimant also argues that insofar as § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.), does not contain the phrase “as otherwise determined by the Director,” the Workers’ Compensation Act (Act) contemplates that temporary partial disability benefits continue even if temporary total disability benefits are terminated at MMI. We disagree.
The rules of statutory construction require that statutes be construed in such manner as to further the legislative intent for which they were enacted. Snyder Oil Co. v. Embree, 862 P.2d 259
(Colo. 1993). If the statutory language is reasonably subject to more than one interpretation, the entire statutory scheme must be construed in a manner which gives consistent, harmonious and sensible effect to all of its provisions. Mountain City Meat Co., v. Industrial Claim Appeals Office., 904 P.2d 1333 (Colo.App. 1995), cert. granted, October 30, 1995.
Because § 8-42-105 and § 8-42-106 both compensate for an actual wage loss due to “temporary” disability we must construe these sections to be harmonious and consistent. See Mountain City Meat Co., v. Industrial Claim Appeals Office, supra; Morgan v. Bear Coal Company, Inc., W.C. No. 3-105-057, December 1, 1995. Section 8-42-105(3) was enacted as part of a statutory scheme designed to limit the scope and frequency of disputes concerning the duration of temporary disability benefits “without the necessity of any litigation.” Section 8-40-102(1), C.R.S. (1995 Cum. Supp.); McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
Under the claimant’s construction, MMI would trigger the termination of temporary total disability benefits in accordance with § 8-42-105(3)(a), but not temporary partial disability benefits. Given the fact that no specific limitations exist concerning the duration of such extended benefits, the issue would be left entirely to the ALJ’s discretion, which would promote, rather than limit litigation. Further, we perceive no logical reason which would explain the intent of the General Assembly to permit a claimant to receive temporary partial disability benefits beyond the date of MMI, but not temporary total disability benefits. The claimant’s assertion that she received a “0” rating for permanent impairment, does not persuade us otherwise. Consequently, we decline to adopt the claimant’s analysis.
Insofar as the claimant has made other arguments, they are unpersuasive. Furthermore, to the extent that the claimant seeks permanent disability benefits, that issue was not before ALJ and thus, not before us on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 28, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 16, 1996 to the following parties:
Enedina Rodriguez, 944 Knox Court, Denver, CO 80204
Premier Care Services, Inc., 1500 Hooker St., Denver, CO 80204-1933
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco, Esq. (Interagency Mail)
Lionel Hopson, Esq., 1700 Broadway, Ste. 1200, Denver, CO 80290 (For the Claimant)
Timothy L. Nemechek, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________