Opinion
W.C. No. 4-001-138
January 3, 2003
FINAL ORDER
The claimant and the respondent separately petition for review of an order of Administrative Law Judge Jones (ALJ). The respondent contests the ALJ's order which reserved the claim for penalties. The claimant contests the ALJ's denial of permanent partial disability benefits. We dismiss the respondent's petition to review, affirm the denial of permanent partial disability benefits for whole person impairment, and set aside the denial of scheduled disability benefits and remand for the entry of a new order on that issue.
While working for Eastman Kodak Company (Kodak) in 1990 the claimant sustained a compensable occupational disease which affected her left arm, wrist, and shoulder. The employment required repetitive twisting, lifting, and grasping which fell within the heavy work classification. At the time of the injury the claimant earned $9.48 per hour for the day shift, plus benefits and profit sharing.
The claimant's employment was terminated when Kodak could no longer accommodate the claimant's medical restrictions for the industrial injury. The respondent subsequently admitted liability for temporary total disability benefits retroactive to December 17, 1990.
On May 4, 1998, Dr. van den Hoven placed the claimant at maximum medical improvement (MMI) with 21 percent upper extremity impairment due to loss of strength and range of motion deficits in the elbow. Dr. van den Hoven then converted the rating to 13 percent whole person impairment under the combined value tables of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Dr. van den Hoven later issued an addendum report where he opined the claimant reached MMI on October 22, 1993.
Dr. Harder assigned 15 percent upper extremity impairment based on range of motion deficits in the wrist, elbow and shoulder; and 9 percent for reduced circulation in the hand. Dr. Harder converted the combined upper extremity rating to 14 percent whole person impairment in accordance with the AMA Guides.
The respondent filed a final admission of liability which terminated temporary total disability benefits effective July 5, 1998, and admitted liability for scheduled disability benefits consistent with Dr. van den Hoven's upper extremity rating. The claimant timely objected to the final admission.
Rejecting Dr. van den Hoven's addendum report, the ALJ found the claimant did not attain MMI until May 4, 1998. Therefore, the ALJ held the respondent liable for temporary total disability benefits until it filed a final admission consistent with Dr. van den Hoven's May 4, 1998 determination of MMI.
Crediting Dr. Harder's opinion that the claimant suffered functional impairment which "extends above the arm" the ALJ further determined the claimant sustained 14 percent whole person medical impairment. However, the ALJ found the claimant failed to prove any loss of earning capacity. Consequently, the ALJ denied permanent partial disability benefits.
I.
On review, the claimant first contends the ALJ erroneously failed to award permanent partial disability benefits based Dr. Harder's 14 percent whole person impairment rating. The claimant argues that evidence she is medically restricted from returning to heavy labor and is permanently restricted from repetitive use of her left hand compels an award of permanent partial disability benefits based on whole person impairment. We disagree.
Under § 8-42-107(8), C.R.S. 2002, permanent partial disability refers to the claimant's degree of permanent medical impairment and is primarily a medical determination to be made a physician. Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995). Further, § 8-42-107(8)(c), C.R.S. 2002, requires all impairment ratings to be issued in accordance with the AMA Guides. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
However, this 1990 claim is governed by former §§ 8-42-107 and 8-42-110, C.R.S. (1990 Cum. Supp.). Former § 8-42-107 provides that when the claimant suffers a loss set forth on the schedule of disabilities, the claimant shall receive a scheduled disability award. Where the claimant suffers a loss not listed on the schedule, the injury shall be compensated based upon her percentage of general disability and life expectancy in accordance with § 8-42-110(1)(b). Under § 8-42-110 the term "permanent disability" refers to an industrial disability or the loss of earning capacity in the labor market, not merely to a physical impairment or functional disability. Vail Associates Inc. v. West, 692 P.2d 1111, 1114 (Colo. 1984); American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (Colo. 1978); Turner v. City and County of Denver, 867 P.2d 197, 199 (Colo.App. 1993). Thus, the existence of a whole person medical impairment rating does not compel an award of benefits under § 8-42-110(1)(b), unless the impairment caused a working unit disability. See Puffer Mercantile Co. v. Arellano, 190 Colo. 138, 546 P.2d 481 (1975) (loss of testicle not functional or industrial disability); Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App. 1980); Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App. 1980) (loss of smell did not result in vocational loss). Rather, where the injury caused no loss of earning capacity the claimant is limited to scheduled disability benefits under § 8-42-107. See World of Sleep, Inc. v. Davis, 1188 Colo. 443, 536 P.2d 34 (1975); London v. El Paso County, 757 P.2d 169 (Colo.App. 1988).
As the claimant points out, an increase in post-injury earnings is not dispositive of the absence of a loss of earning capacity. Indeed, permanent partial disability benefits may be awarded even where the claimant's post-injury earnings exceed her pre-injury wage. Vail Associates Inc. v. West, supra. However, where the claimant has experiences an increase in post-injury earnings, it is the claimant's burden to prove the increase is not a true indication of the absence of an impaired earning capacity. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
Whether the claimant sustained her burden to prove a loss of earning capacity is a question of fact for resolution by the ALJ. Accordingly, we must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; American Metals Climax, Inc. v. Cisneros, supra.
Here, the record is subject to highly conflicting inferences concerning the claimant's post-injury earning capacity. However, there is substantial evidence to support the ALJ's determination that the claimant failed to prove an industrial disability.
The ALJ found that following the injury the claimant obtained employment busing tables, waiting tables, and operating a forklift. The ALJ also found the claimant is currently employed at the Wal-Mart Stores Distribution Break Pak where she earns $15.15 per hour plus benefits and is required to open large boxes, scan the merchandise, and distribute the merchandise into containers 11 hours a day involving the use of both hands. Moreover, the claimant did not present evidence of what she would have been earning at Eastman Kodak had she remained in her pre-injury job. Under these circumstances, the ALJ reasonably inferred the claimant failed to prove a loss of earning capacity.
In so doing, the ALJ expressly cited Vail Associates Inc. v. West, supra. Further, the ALJ rejected the testimony of vocational rehabilitation expert Katie Montoya because Montoya failed to consider whether the claimant would have received wage increases at Eastman Kodak had the injury not occurred. ( See Finding of Fact 33). Under these circumstances, we are not persuaded the ALJ's order was solely based on evidence the claimant's post-injury earnings exceeded her pre-injury earnings. Rather, the ALJ expressly determined that she also considered the claimant's physical condition, mental training, ability, former employment, and education. ( See Finding of Fact 6). Evidence the claimant was 38 years old at the time of the hearing, possessed a associate degree, and had been able to secure full-time employment at Wal-Mart with benefits supports the ALJ's pertinent findings.
The claimant's failure to prove a loss of earning capacity supports the denial of a working unit disability award under former § 8-42-110(1)(b). The ALJ's finding that the claimant suffered 14 percent whole person medical impairment did not in and of itself compel an award of permanent partial disability benefits.
II.
Alternatively, the claimant contends she is entitled to permanent disability benefits under the schedule of disabilities based on 23 percent impairment to the upper extremity. We conclude the ALJ's findings are insufficient to permit appellate review of that issue, and therefore we remand the matter to the ALJ for additional findings.
Under the predecessor statute neither the examining physician nor the ALJ are required to apply the AMA Guides in rating permanent medical impairment. Neither is the ALJ required to determine if the claimant's extremity injury caused "functional "impairment which should be compensated as whole person impairment. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). The fact that an extremity impairment has caused impairment beyond the extremity and the extremity rating can be converted to a whole person impairment under the AMA Guides is immaterial.
Here, the ALJ determined the injury to the claimant's extremity caused permanent impairment which "extends above the arm." Therefore, the ALJ adopted Dr. Harder's opinion that the claimant suffered whole person impairment.
However, even if the claimant did not establish the proof required for a working unit disability award under § 8-42-110(1)(b), the ALJ may award permanent disability benefits based on a scheduled disability under § 8-42-107. The ALJ did not make any findings here which explain why she failed to award benefits under § 8-42-107. See World of Sleep, Inc. v. Davis, supra; London v. El Paso County, supra.
Furthermore, although impairment to the "upper extremity" is not listed on the schedule of disabilities in § 8-42-107, the record contains some evidence from which the ALJ could infer the claimant sustained permanent impairment to the wrist and arm at the shoulder and those impairments are listed on the schedule of disabilities at § 8-42-107. Indeed, the respondent had admitted liability for scheduled disability benefits based on Dr. van den Hoven's 21 percent "upper extremity" rating. Therefore, we remand the matter for further findings of fact and the entry of a new order concerning the claimant's request for a scheduled disability award.
III.
The respondent contends the claimant did not properly endorse a claim for penalties. Therefore, the respondent argues the ALJ erroneously determined the penalty issue was "reserved"for future determination. The respondent also contends the ALJ erred in finding the respondent wrongfully terminated temporary disability benefits in violation of the Rules of Procedure, Part IX(B), 7 Code Colo. Reg. 110-1 at 3. We conclude the contested portion of the ALJ's order is not currently subject to review.
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Generally, a procedural order which reserves an issue for future determination is not appealable because it neither awards nor denies any "benefit" or "penalty" within the meaning of the Workers' Compensation Act. Cf. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000).
Because the ALJ reserved the penalty issue for future determination, she necessarily did not award or deny any penalty within the meaning of § 8-43-301(2). Moreover, the ALJ made no findings on the penalty issue. Rather, the ALJ found the claimant is entitled to further temporary disability benefits because the respondent was not entitled to terminate temporary disability benefits in accordance with Dr. van den Hoven's 1993 determination of MMI. Therefore, we currently lack jurisdiction to consider the respondents' substantive arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated October 21, 2001, is affirmed insofar as it denied permanent partial disability benefits based on working unit disability. The order is set aside insofar as the ALJ denied permanent disability benefits based on a scheduled disability and the matter is remanded to the ALJ for the entry of a new order on that issue, consistent with the views expressed herein.
IT IS FURTHER ORDERED that the respondent's petition to review the ALJ's order is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Bill Whitacre
NOTICE
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. 2002. 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 decision were mailed __________January 3, 2003 _____________to the following parties:
Julie Ann Meyer, 838 Stone Mtn Court, #2, Windsor, CO 80550
Eastman Kodak Co., 9952 Eastman Park Dr. #MC01398, Windsor, CO 80550-3301
Eastman Kodak Co., c/o Pamela Moon, Gallagher Bassett Services, Inc., P.O. Box 4068, Englewood, CO 80155-4068
Stephen J. Jouard, Esq., P.O. Drawer J, Ft. Collins, CO 80522 (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: __________A. Hurtado__________