W.C. No. 4-264-157Industrial Claim Appeals Office.
August 21, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his request for additional temporary disability benefits based on § 8-42-107.5 C.R.S. 2001, and granted the respondents a credit for previously paid permanent partial disability benefits in accordance with Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995). We affirm.
The claimant suffered a compensable injury in 1995. The respondents paid temporary disability benefits for the period October 25, 1997 to October 18, 1999, the date the claimant was placed at maximum medical improvement (MMI) with 23 percent lower extremity impairment. The respondents then filed a Final Admission of Liability which admitted liability for previously paid temporary disability benefits of $45,715.30 and permanent partial disability benefits of $14,284.70 for a total of $60,000.
Thereafter, a Division-sponsored independent medical examination (DIME) physician opined the claimant did not reach MMI until October 23, 2001 and assigned a 14 percent whole person impairment rating. Under these circumstances, the claimant requested additional temporary disability benefits from October 18, 1999 to October 25, 2000 when he returned to work. Relying on § 8-42-107.5, and the claimant’s 14 percent medical impairment rating, the respondents objected to the payment of indemnity benefits in excess of the $60,000 already paid.
Section 8-42-107.5 provides 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.”
The ALJ found that in the absence of § 8-42-107.5
the claimant would be entitled to additional temporary total disability. However, the ALJ determined § 8-42-107.5 precluded the claimant from receiving more than $60,000 in combined temporary and permanent partial disability benefits. Therefore, the ALJ denied the request for additional temporary disability benefits.
On review, the claimant concedes the respondents had a good faith basis for terminating temporary disability benefits following the initial determination of MMI. The claimant also concedes the $60,000 benefit limit in § 8-42-107.5 is applicable because he reached MMI with less than 25 percent impairment. However, the claimant contends that regardless of the cap, he is entitled to a full award of temporary total disability benefits because the benefits accrued prior to the date of MMI which is the date permanent impairment is ascertainable. We disagree.
Donald B. Murphy Contractors Inc. v. Industrial Claim Appeals Office, supra, (Murphy), involved a claimant who reached MMI with seventeen percent permanent medical impairment. Temporary and permanent disability benefits were paid accordingly. The claimant’s condition subsequently worsened and he sought further temporary disability benefits. Because the insurer had already paid temporary and permanent partial disability benefits of $60,000, the insurer objected to the payment of further temporary disability benefits. The court concluded that due to the worsening of the claimant’s condition it was premature to determine whether the claimant suffered permanent impairment of twenty-five percent or less. However, to avoid or minimize a potential overpayment in the event the claimant’s medical impairment rating from the worsened condition was later determined to be 25 percent or less, the Murphy court allowed the respondents to offset previously paid permanent partial disability benefits against their liability for additional temporary total disability benefits. In so doing the Murphy court reasoned that permitting the offset maintains insurers’ incentive to settle and pay permanent disability benefits, eliminates the need for proceedings to seek recovery of overpayments, and served the legislative purpose of providing benefits to claimants “at a reasonable cost to employers without the necessity of any litigation.” Ibid at 614.
Admittedly this claim is unique in that the claimant’s permanent partial disability was ascertained and permanent medical impairment benefits were paid before all accrued temporary disability benefits had been paid. Nevertheless, the statute unambiguously precludes a claimant from receiving more than $60,000 in “combined” temporary and permanent disability benefits. It follows that the primary purpose of the statute is to limit benefits to claimants with less than 25 percent permanent impairment. Consequently, where MMI has been attained and permanent impairment has been rated to be less than 25 percent § 8-42-107.5
precludes an award of benefits greater than $60,000 benefit cap regardless of whether the previously payments are delineated as temporary or permanent disability benefits. Compare 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).
Here, it is undisputed the claimant has reached MMI, that his permanent impairment is less than twenty-five percent, and the respondents have already paid at least $60,000 in combined disability benefits. Therefore, we agree with the ALJ that the stipulated facts preclude an award of additional temporary disability benefits and Murphy compels an order allowing the respondents to offset the previously paid permanent partial disability benefits against liability for temporary total disability benefits due between October 18, 1999 and October 2000.
The claimant’s remaining arguments have been considered and are unpersuasive. The statutory limitation on combined temporary and permanent partial disability benefits for claimant’s with less than 25 percent permanent impairment was designed to create an overall savings in workers’ compensation costs to employers, while allowing a “more generous” award at levels of impairment over 25 percent. See First Conference Committee on SB 218, May 3, 1991, 8:19 p.m., Rm. 356, Tape 91-32; May 4, 1991 11:22-11:37 a.m. Quackenbush v. Tennant Roofing Inc.,
W.C. No. 4-218-272 (June 19, 1998). The savings to employers would be eviscerated if § 8-42-107.5 is read to allow unlimited temporary disability benefits, which as here, could result an unrecoverable overpayment, even though it has been determined the claimant is subject to the $60,000 benefit cap. See § 8-43-303(1), [amended in 1997 for injuries occurring on or after July 1, 1997]; Garrard v. United Airlines, W.C. No. 4-475-678 (March 25, 2002). Consequently, we conclude the claimant’s construction is inconsistent with the primary objective of the statute.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
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. 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 August 21, 2002 to the following parties:
Dennis R. Rogan, 1620 McArthur, Colorado Springs, CO 80909
United Parcel Service, Glenn Mickelson, 5020 Ivy St., Commerce City, CO 80022
Liberty Mutual Insurance, Sandy Parrott, PO Box 168208, Irving, TX 75016-8208
William Alexander, Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
John M. Connell, Esq., and Susan A. Kraemer, Esq., 6750 Stapleton S. Drive, Ste. 200. Denver, CO, 80216 (For Respondents)
BY: A. Hurtado