3-104-352 (1998). MICHELLE KRIZMAN.

• Case Date: August 03, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 3-104-352 (1998). MICHELLE KRIZMAN INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF MICHELLE KRIZMAN, Claimant, v. S.O.S. SERVICES, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.W. C. No. 3-104-352FINAL ORDER The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which awarded temporary disability benefits. The respondents contend the ALJ erroneously held that the "cap" on temporary and permanent partial disability payments established by § 8-42-107.5, C.R.S. 1997, does not apply to "scheduled injuries." Thus, the respondents argue the ALJ incorrectly denied an offset against temporary disability benefits based on prior payments for a scheduled injury. We modify the ALJ's order. In March 1992, the claimant sustained a compensable injury to her left upper extremity. Ultimately, the treating physician placed the claimant at maximum medical improvement (MMI) on February 24, 1997. An accredited physician then rated the claimant as suffering a forty-two percent impairment of the left upper extremity, which converted to a twenty-five percent whole person impairment. The respondent-insurer (CCIA) filed a final admission of liability on May 2, 1997. The CCIA admitted for two periods of temporary total disability resulting in $50,704.85 of temporary disability benefits. The CCIA also admitted for a forty-two percent upper extremity impairment. Although this admission would ordinarily have entitled the claimant to $13,104 in scheduled benefits, the CCIA restricted the admission to $9,295.15 based on its position that the claimant had reached the $60,000 benefits cap established by § 8-47-107.5. The ALJ found that the claimant was paid $60,000, including $9,295.15 in scheduled benefits. In November 1997, the claimant was required to undergo surgeryto implant a spinal stimulator. The ALJ determined that the claimant was again temporarily and totally disabled commencing November 11. Relying on Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo. App. 1995) (Murphy), the CCIA argued that it was entitled to a credit against its liability for additional temporary total disability benefits based on the scheduled disability benefits paid under the final admission of liability. However, the ALJ rejected this argument and held that the "cap" contained in § 8-42-107.5 "does not apply to a scheduled injury." Consequently, the ALJ determined that the offset created by Murphy does not apply to this case. On review, respondents contend the ALJ incorrectly held that the benefits "cap" does not apply in cases of a...