Opinion
W.C. No. 4-230-686
August 19, 1999.
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Wells which awarded permanent partial disability benefits based on medical impairment of 22 percent of the whole person. The respondents contend the ALJ erroneously combined the claimant's upper extremity impairment rating with an unrated gastrointestinal impairment so as to award whole person medical impairment benefits. We set aside the order and remand for entry of a new order.
The claimant sustained an industrial injury which the treating physician diagnosed as bilateral upper extremity pain and cumulative trauma disorder. This condition primarily affected the claimant's right elbow, right wrist, and left wrist. During the course of her treatment for this condition the claimant took various prescribed medications. These medications caused gastrointestinal difficulties including vomiting several times per week. The claimant's physicians have prescribed medications to treat the gastrointestinal problems. The claimant also testified that she suffers from depression and a sleep disorder.
On February 24, 1998, the primary treating physician issued a report rating the claimant's permanent medical impairment. The treating physician stated that he used the cumulative trauma disorder "staging classifications from rule XVII" in arriving at the claimant's rating. The physician assessed a 24 percent upper extremity impairment on the right and a 15 percent upper extremity impairment on the left. The 24 percent extremity impairment converted to a 14 percent whole person impairment, and the 15 percent extremity impairment converted to a 9 percent whole person impairment. Thus, under the combined values chart, the claimant's overall whole person impairment rating was 22 percent.
Relying primarily on Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1996), the respondents took the position that the claimant was limited to an award based on the scheduled impairments of both upper extremities. They argued that the depression, sleep disorder, and gastrointestinal difficulties did not warrant a whole person award in the absence of evidence that these conditions were separately "ratable" under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). The claimant argued that because the depression, sleep disorder, and gastrointestinal difficulties affected her rating under the cumulative trauma disorder staging classifications these conditions were "ratable."
After reviewing the case law, including Morris, the ALJ concluded that "if the whole person impairment caused by the extremity injury is mental in nature . . . then the whole person injury must be ratable" to justify a whole person award. Conversely, he concluded that if the extremity injury causes a physical injury, "then the whole person aspect of the injury need not be ratable." Alternatively, the ALJ concluded that if the claimant seeks to combine separate injuries to obtain a whole person award, the "separate injury" must be ratable. However, the ALJ determined that if a whole person award is "sought based upon a single injury which simply affects the whole person, then the injury need not be rated."
Applying these principles, the ALJ concluded that the claimant does not have a "separate and distinct GI problem," but instead, medication prescribed to treat her extremity injuries caused her to experience nausea and vomiting. Thus, he concluded that the claimant is entitled to a whole person award because the claimant's gastrointestinal problems are "an extension of the arm injury." Alternatively, he concluded that the nausea and vomiting are compensable as "physical injuries." The ALJ refused to award whole person benefits based on depression and the sleep disorder because neither injury was rated under the AMA Guides.
On review, the respondents contend the ALJ erroneously relied on the claimant's gastrointestinal difficulties as the basis for awarding whole person medical impairment benefits attributable to the claimant's upper extremity injuries. In support, the respondents point out that the primary treating physician testified (prior to his February 24, 1998 report) that he did not believe the claimant had "impairment other than her arms." (Sandell Depo. p. 30). Under these circumstances the respondents contend that Morris and our decision in Bicknell v. Pinon Truck Stop, Inc., W.C. No. 4-159-683 (December 10, 1997), compel a determination that the claimant is not entitled to a whole person award. Because we conclude the ALJ misapplied the law, we remand for entry of a new order. Section 8-43-301 (8), C.R.S. 1998.
Our analysis of the ALJ's order is largely dictated by our holding in Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314 (April 22, 1999). In Berumen, we ruled that a claimant might be entitled to a whole person award for bilateral cumulative trauma disorder where there was evidence the claimant's related "sleep disorder" was considered in rating the severity of the claimant's condition under Table 15 (Entrapment Neuropathy) of the AMA Guides. We distinguished Morris v. Industrial Claim Appeals Office, supra, on grounds that Morris involved an attempt to combine a rated extremity impairment with an unrated psychological impairment so as to create a single whole person impairment under Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In contrast, the evidence in Berumen showed the claimant's sleep disorder may have been an element which the rating physician considered when determining the extremity ratings under Table 15. Because a "sleep disorder" is not a scheduled impairment found in § 8-42-107(2), C.R.S. 1998, we remanded the matter to the ALJ to determine whether the sleep disorder constituted a "functional impairment," and if so, whether it was considered as an element of the claimant's rating under Table 15. C.f. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996) (shoulder injury which causes functional impairment beyond the arm at the shoulder need not be rated under the schedule).
The Berumen decision recognized a line of cases, including Bicknell v. Pinon Truck Stop, Inc., supra, in which we relied on Morris v. Industrial Claim Appeals Office, supra, for the proposition that a scheduled extremity rating may not be combined with an unrated sleep disorder so as to create a single whole person impairment rating. However, as Berumen stated, our review of that line of cases "reveals that in virtually every instance there was no evidence that the physician considered the claimant's sleep disorder `ratable' under Table 15, or any other method of rating prescribed by the AMA Guides." Consequently, Morris dictated denial of whole person benefits.
Here, the treating physician referred to the Cumulative Trauma Disorders Staging Matrix contained in Rule of Procedure XVII, Exhibit B (V) at V-5 of the Medical Treatment Guidelines. Inferentially, the physician's reference to the staging matrix was a product of his reliance on the guidelines for rating cumulative trauma disorder found in Rule of Procedure XIX (G) (2), 7 Code Colo. Reg. 1101-3 at 126-127. The cumulative trauma staging matrix allows the rating physician to consider the impact of the cumulative trauma disorder on the claimant's activities of daily living, as well as the existence of "secondary symptoms" including sleep alteration, chronic weakness, fatigue or depression.
Under these circumstances, we conclude that the ALJ's order reflects an incorrect application of the law in determining whether or not the claimant is entitled to permanent partial disability benefits under the schedule or as a whole person. The ALJ's conclusions notwithstanding, application of Morris v. Industrial Claim Appeals Office, supra, does not depend on whether the "separate injury" is physical or mental in nature. The critical question is whether the non-scheduled condition (on which the claimant relies to justify a whole person award) was considered in rating the claimant's extremity impairment. If the non-scheduled condition was not considered in rating the claimant's extremity impairment, then the non-scheduled condition must be separately "ratable" to justify a whole person award. Morris v. Industrial Claim Appeals Office, supra. However, if the non-scheduled condition, be it physical or mental, was considered in rating the claimant's extremity impairment, then an award based on the equivalent whole person impairment may be justified. In the latter case, the non-scheduled impairment is "ratable" under the AMA Guides.
In this case, the treating physician's February 24 report contains a reference to the claimant's gastrointestinal difficulties. Further, the report states that the claimant's cumulative trauma disorder was rated in accordance with the staging matrix. One plausible inference from this state of the evidence is that the claimant's gastrointestinal problems were used in rating the claimant's cumulative trauma disorder, either because they constitute "secondary symptoms" or because they affect the claimant's activities of daily living.
Because the ALJ misapplied the law in determining whether the claimant's gastrointestinal difficulties justify a whole person award, the matter must be remanded for entry of a new order consistent with the views expressed herein. The ALJ shall reevaluate the evidence and determine whether the claimant's non-scheduled conditions constituted "functional impairments" which were considered by the treating physician in rating the claimant's upper extremity cumulative trauma disorder. If so, the ALJ may award benefits based on a whole person impairment. If not, such separate conditions would have to be independently "ratable" to justify a whole person award. In light of this disposition, we need not consider the claimant's arguments concerning the ALJ's application of law. We should not be understood as expressing any opinion concerning the inferences to be drawn from the evidence.
IT IS THEREFORE ORDERED that the ALJ's order dated November 2, 1998, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
Copies of this decision were mailed August 19, 1999 the following parties:
Virginia Hayward, 19 Old Crystal Park Rd., Manitou Springs, CO 80829
Unisys Corporation, Attn: Anita Bencivengo, P.O. Box 500, Blue Bell, PA 19424-0001
Reliance Insurance Company, Attn: Norma Logue, RSKO/Alexsis, 10333 E. Dry Creek Rd., Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
J. Barton Maxwell, Esq., 1225 17th St., 28th floor, Denver, CO 80202-5528 (For Respondents)
BY: LE