Opinion
W.C. No. 4-517-426.
January 13, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ awarded scheduled disability benefits for a pelvic injury. The claimant contends the ALJ erred in failing to compensate the pelvic injury as a whole person impairment under § 8-42-107(8), C.R.S. 2003. We disagree and, therefore, affirm.
In September 2001, the claimant suffered compensable injuries involving a fractured right humerus and a fractured pelvis. After surgical treatment Dr. Richman opined the claimant suffered 14 percent impairment to the right upper extremity which converts to 8 percent whole person impairment. Dr. Richman also assigned 4 percent for impairment to the right lower extremity which converts to 2 percent whole person impairment. The claimant requested an award based on Dr. Richman's whole person impairment ratings.
The ALJ found the claimant proved the right shoulder injury caused functional impairment not listed on the schedule of disabilities. Therefore, the ALJ awarded the claimant benefits based on Dr. Richman's 8 percent whole person impairment rating. However, the ALJ found the pelvic injury caused functional impairment to the leg at the hip. Therefore, the ALJ denied the claimant's request for benefits based on Dr. Richman's whole person rating for impairment to the right lower extremity.
On review the claimant contends that where, as here, the industrial accident causes functional impairment to the whole person, all components of the injury must be compensated as whole person impairment. In support the claimant cites Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996) and Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). We disagree.
Initially, we note that the claimant's Designation of Record includes the "complete" Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. Further, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
Section 8-42-107(1), C.R.S. 2003, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2), C.R.S. 2003. Strauch v. PSL Swedish Healthcare System, supra. In the context of § 8-42-107(1), the term "injury" has been defined to refer to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, supra. Insofar as pertinent, the partial loss of use of a leg at the hip is a scheduled disability. Section 8-42-107(2)(w), C.R.S. 2003.
Where the claimant suffers an injury not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8). As noted by the claimant, Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996), stands for the proposition that when a work-related accident results in at least one injury that is listed on the schedule, and at least one injury not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating, so that all effects of the accident are compensated as a percentage of whole-person impairment.
However, Sections 8-42-107(7)(b)(I) (II), 2003 [1999 Colo. Sess. Laws, Ch. 103 at 298, effective for injuries after July 1, 1999], which govern this 2001 injury claim, were enacted to overrule Mountain City Meat Co., v. Oqueda, supra. Section 8-42-107(7)(b)(II) provides that:
"[W]here an injury causes a loss set forth in the schedule in subsection (2) of this section and a loss set forth for medical impairment benefits in subsection (8) of this section, the loss set forth in the schedule found in said subsection (2) shall be compensated solely on the basis of such schedule and the loss set forth in said subsection (8) shall be compensated solely on the basis for such medical impairment benefits specified in subsection (8).
Applying the principles of statutory construction we have previously held that § 8-42-107(7)(b)(II) governs circumstances where the claimant sustains both scheduled and nonscheduled injuries from the same industrial accident. See Jesmer v. Porter Care Hospital, W.C. No. 4-442-706 (March 27, 2002). Consequently, the statute requires that without combining or adding individual impairment ratings the scheduled disability is compensated as a scheduled disability and the non-scheduled injury be compensated as whole person impairment. We adhere to our prior conclusions. It follows, that the issue before the ALJ was not whether the claimant suffered at least one injury not listed on the schedule of disabilities. Rather, the issue was whether the claimant's pelvic injury caused functional impairment beyond the leg at the hip.
Strauch and Langton hold that for purposes of § 8-42-107(1), the factual determination of the situs of "injury" is not the situs of the initial harm but the situs of functional impairment. Further, the claimant cites no authority and we know of no authority to suggest that § 8-42-107(7) overruled Strauch and Langton. To the contrary see City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003); and Guzman v. KBP Coil Coaters, Inc., W.C. No. 4-444-246 (January 10, 2003), aff'd Guzman v. Industrial Claim Appeals Office (Colo.App. No. 03CA0233, December 31, 2003) (not selected for publication). In Guzman the claimant suffered a compensable fracture to his left ankle. During treatment of ankle the claimant developed low back pain. As a result, the claimant suffered functional impairment to the low back that was rateable and compensated under 8-42-107(8) as whole person impairment. The claimant also suffered functional impairment to the lower extremity that was fully enumerated on the schedule of disabilities as a loss of use to the great toe and foot at the ankle. Under these circumstances, the court concluded that § 8-42-107(7)(b)(I)(II) and Strauch precluded the ALJ from converting the lower extremity impairment to a whole person impairment for purposes of compensating all aspects of the injury as whole person impairment.
We are persuaded by the court's reasoning in Guzman that Strauch and Langton continue to represent the proper legal standard for evaluating the claimant's functional impairment where the claimant suffers multiple impairments from the same industrial accident. Therefore, the ALJ did not misapply the law in determining the situs of functional impairment for each component of the industrial accident.
Finally, we reject the claimant's contention that because the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) provide that the leg ends before the hip joint, the claimant's pelvic injury is not part of the leg. In Strauch, Langton and Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997), the court held that the AMA Guides are not dispositive in determining where the torso begins and the extremity ends. See also Kanyo v. Keebler Company, W.C. No. 4-417-093 (June 25, 2002), aff'd., Keebler Company v. Industrial Claim Appeals Office, (Colo.App. 02CA1391, May 22, 2003) (not selected for publication).
Here, the ALJ found the pelvis fracture healed without pain or loss of motion and the only residual problem caused by the pelvic fracture was stiffness in the right knee and a sensation of burning pain and paraesthesia in the right thigh. The claimant has not provided a transcript of the hearing. Consequently, we must assume the ALJ's finding are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, the claimant does not dispute that the knee and thigh are part of the leg below the hip. Therefore, the ALJ's findings support the conclusion that the claimant's functional impairment is fully enumerated by a scheduled disability award for the partial loss of use of the leg at the hip.
IT IS THEREFORE ORDERED that the ALJ's order dated September 22, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. SocolofskyNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on January 13, 2004 by A. Hurtado.
Herschel D. Lewis, 11035 Thomas Rd., Black Forest, CO 80908
ACR Specialists, Inc., P. O. Box 837, Sioux City, IA 51102-0837
Patti Stallman, Federated Insurance, P. O. Box 35910, Phoenix, AZ 85069
Ronda K. Kendrick, Crawford Company, P. O. Box 11169, Boulder, CO 80301
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Patricia Jean Clisham, Esq. and Scott D. Sweeney, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondents)