4-303-116 (1998). LAMARR KREIMEYER (Final Order 1).

• Case Date: July 02, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-303-116 (1998). LAMARR KREIMEYER (Final Order 1) INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF LAMARR KREIMEYER, Claimant, v. PUMPCO, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurer, Respondents.W. C. No. 4-303-116FINAL ORDER The respondents seek review of an order of Chief Administrative Law Judge Felter (ALJ) which awarded temporary partial disability benefits at the rate of $396 per week. We affirm. The essential facts are undisputed. The claimant suffered a compensable injury on May 23, 1996, arising out of and in the course of his employment at PumpCo. The respondents admitted liability for temporary disability benefits based upon an average weekly wage was $978. Prior to reaching maximum medical improvement (MMI) the claimant's employment at PumpCo was terminated due to his physical limitations from the industrial injury. The claimant then obtained alternate, full-time, modified employment earning $16 per hour for an average weekly wage of $640. On September 26, 1996, the claimant reached maximum medical improvement (MMI). Thereafter, the respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits. The claimant timely objected. The claimant's condition worsened after MMI. On May 23, 1997 the treating physician restricted the claimant to part-time employment not exceeding 4 hours per day. As a result, the claimant's earnings were reduced to $384 per week. The ALJ found that the claimant established an entitlement to temporary partial disability benefits commencing May 23, 1997. Furthermore, the ALJ calculated the claimant's temporary partial disability benefits as $396 per week ($978-$384=$594 x 66 2/3%). On review, the respondents do not contest the claimant's entitlement to temporary partial disability benefits. The respondents' sole argument is that the ALJ miscalculated the temporary partial disability rate. The respondents contend the ALJ should have based his computation on the difference between the claimant's average weekly wage from the full-time modified employment and the part-time modified employment. Thus, the respondents argue the claimant's temporary partial disability rate is $170.66 per week ($640 -$384=$256 x 66 2/3%). The claimant contends the respondents' argument is moot because subsequent...