Opinion
W.C. No. 4-510-151.
October 7, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which awarded permanent disability benefits based on scheduled impairments of both upper extremities. The claimant contends that under the provisions of Rule XIX (G), 7 Code Colo. Reg. 1101-3 at 126-127, she should have been awarded benefits based on a single whole person impairment. We affirm.
In these consolidated cases, a Division-sponsored independent medical examination (DIME) was conducted to rate the claimant's impairments of both upper extremities. The DIME physician diagnosed cumulative trauma disorder (CTD) affecting both of the claimant's elbows, wrists, and hands. The DIME physician, employing the bilateral CTD rating system contained in Rule XIX (G)(2)(f), determined the claimant sustained 35 percent impairment of the right upper extremity, which converts to 21 percent whole person impairment. The DIME physician further determined the claimant sustained 14 percent impairment of the left upper extremity which converts to 8 percent impairment whole person impairment. The DIME physician then combined the whole person impairments to arrive at an overall rating of 26 percent of the whole person. However, the respondents admitted liability based on the scheduled ratings for each upper extremity.
The claimant sought a hearing arguing that the DIME physician's rating and Rule XIX (G) entitle her to the combined whole person impairment rating. The DIME physician testified that he believes Rule XIX (G) represents the proper method for rating the claimant's overall impairment, and is consistent with the AMA Guides directive for rating bilateral CTD. However, he also opined the claimant has no functional impairment beyond either of her elbows. (Hall Depo. P. 13).
The ALJ found the claimant sustained no functional impairment beyond either elbow. Therefore, the ALJ determined the claimant sustained two scheduled injuries and is limited to receiving benefits under the schedule pursuant to § 8-42-107(1)(a), C.R.S. 2003.
On review, the claimant does not challenge the sufficiency of the evidence to support the ALJ's finding that the claimant sustained no "functional impairment" beyond either of her elbows. Instead, she reiterates the argument that the DIME physician's rating and Rule XIX (G)(2)(f) require a single award of whole person impairment benefits. We disagree.
As the respondents note, in Moore v. Nextel Communications, W.C. No. 4-392-327 (August 17, 2000), we rejected an argument nearly identical to that which the claimant advances here. Relying on § 8-42-107(1)(a), we held that if a claimant sustains one or more "injuries" coming under the schedule, the claimant is limited to an award under the schedule. See also, § 8-42-107(7)(a), C.R.S. 2003. Further, the question of whether the claimant has sustained an "injury" which is on or off the schedule depends on whether the claimant has sustained "functional impairment" to a part of the body not listed on the schedule. Resolution of this issue is a question of fact for the ALJ. Warthen v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA0506, September 9, 2004); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Finally, Moore held that Rule XIX (G)(2) may not be construed as inconsistent with the Workers' Compensation Act itself. Therefore, before Rule XIX (G)(2) may be applied, the ALJ must find that the claimant has sustained some functional impairment not listed on the schedule. Otherwise, the claimant's injuries must be compensated under the schedule.
We are not persuaded to depart from our holding in Moore. Consequently, the ALJ's order must be affirmed. Sandoval v. MCI Telecommunications, W.C. No. 4-524-040 (July 22, 1999), cited by the claimant, is not authority to the contrary. In that case we noted the respondents did not dispute the validity of Rule XIX (G) as the claimant seeks to apply it here. Further, the claimant in Sandoval apparently reported symptoms "which included her neck and shoulder." Thus, the claimant in Sandoval may well have sustained functional impairment not listed on the schedule.
IT IS THEREFORE ORDERED that the ALJ's order dated May 26, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Rebecca Kolar, Green Mountain Falls, CO, Reed Elsevier, Inc., c/o Lexis Nexis, Colorado Springs, CO, Zurich American Insurance Co., Englewood, CO, Steven U. Mullens, Esq., Colorado Springs, CO, (For Claimant).
John Lebsack, Esq. and Ted Krumreich, Esq., Denver, CO, (For Respondents).