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In re Marriage of Smith8/29/1991
e an employee for loss of earnings from the date of injury, Eastman Kodak Co. v. Industrial Commission, 725 P.2d 107 (Colo. App. 1986), until such time as the employee's underlying condition has stabilized or the employee has commenced vocational rehabilitation. See Allee v. Contractors, Inc., supra.
Permanent disability benefits, on the other hand, compensate for an employee's diminution of future earning capacity as a result of a job related physical or mental impairment. See Vail Associates, Inc. v. West, 661 P.2d 1187 (Colo. App. 1982), aff'd, 692 P.2d 1111 (Colo. 1984); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo. App. 1981).
Accordingly, the dispositive question in determining whether workers' compensation benefits are marital property is the extent to which the award compensates for loss of earning capacity and medical expenses incurred during marriage. To the extent that an award compensates the spouse for post-dissolution loss of earning capacity, it is not marital property even if the compensable injury occurred during the marriage.
In the event that a spouse's unliquidated workers' compensation claim is pending on the date of dissolution and will likely include indemnification for loss of marital earnings or medical expenses, the trial court may reserve jurisdiction to apportion the marital interest upon receipt of the award. See In re Marriage of Gallo, supra.
In this case, the husband was still receiving temporary disability benefits on the date of dissolution, and the extent of his permanent disability, if any, had not been established. There was no evidence that any loss of marital earnings or medical expenses remained outstanding. Thus, since a permanent disability award compensates for future loss of earning capacity, the husband's pending claim for permanent disability benefits was not a marital asset, and the trial court erred in apportioning part of it to the wife.
We note, however, that husband's future workers' compensation wage replacement benefits, both temporary and permanent, could be considered by the court in determining the husband's ability to pay maintenance and child support . See § 14-10-114(2)(f), C.R.S. (1987 Repl. Vol. 6B); § 14-10-115(7)(a), C.R.S. (1990 Cum. Supp.); In re Marriage of Nevil, 809 P.2d 1122 (Colo. App. 1991).
Since the property distribution has been set aside, the maintenance order must also be set aside and the cause remanded for reconsideration of that issue. See In re Marriage of Rogers, 709 P.2d 1383 (Colo. App. 1985).
That part of the judgment apportioning the husband's permanent disability claim and awarding maintenance is reversed, and the cause is remanded for reconsideration of maintenance. The existing maintenance order shall remain in effect pending the outcome of that proceeding. Since no hearing on reasonableness was held, the attorney's fee order is likewise reversed, and upon remand, the trial court is directed to conduct such a hearing. The remainder of the judgment is affirmed.
Disposition
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS.
Judges Footnotes
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