Opinion
W.C. No. 4-392-327
August 17, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gallegos(ALJ) which denied whole person medical impairment benefits. The claimant contends the ALJ erroneously found he sustained functional impairment which is fully enumerated on the schedule of disabilities. We disagree and, therefore, affirm.
In March 1998, the claimant developed compensable bilateral hand and wrist pain. At maximum medical improvement Dr. McLaughlin assigned 6 percent impairment to each upper extremity using the cumulative trauma guidelines in the Rules of Procedure, Part XIX(G)(2), 7 Code Colo. Reg. 1101-3 at 123. Dr. McLaughlin then converted the upper extremity rating to a whole person rating of 8 percent. The respondents filed a Final Admission of Liability consistent with Dr. McLaughlin's extremity rating. The claimant objected and requested whole person impairment benefits.
The ALJ found that the industrial injury caused functional impairment limited to the wrists with radiating pain to the upper extremities. Because the wrist is a scheduled injury of the arm under § 8-42-107(2)(a.5), C.R.S. 1999, the ALJ concluded the claimant is restricted to a scheduled disability award of permanent partial disability benefits. Therefore, the ALJ denied the request for benefits based on whole person impairment.
On review, the claimant contends that his permanent disability must be compensated as a whole person impairment because Dr. McLaughlin rated his impairment under Rule XIX(G)(2), and that rule allows the rating physician to convert bilateral extremity impairment to a whole person rating. Further, the claimant contends the ALJ erroneously determined that the pertinent issue was the situs of the functional impairment. The claimant contends the real issue was whether the claimant "qualifies for a whole person impairment rating under Rule XIX(G)(2)." We perceive no error.
Section 8-42-107(1), C.R.S. 1999, 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. 1999. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Under § 8-42-107(2)(a.5), the partial "loss of an arm above the hand including the wrist" is a scheduled disability. If the claimant sustains two scheduled injuries, the scheduled losses are to be added. Section 8-42-107(a), C.R.S. 1999. Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to have the losses combined into a single whole person impairment for purposes of awarding benefits under § 8-42-107(8), C.R.S. 1999. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996); [amended 1999 Colo. Sess. Laws ch, 103, at p. 298 for injuries occurring on or after July 1, 1999]. In the context of § 8-42-107(1), the term "injury" refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Healthcare System, supra. Therefore, contrary to the claimant's argument, the threshold issue to a determination of the correct medical impairment rating is whether the claimant suffered any injury not encompassed by the schedule.
Here, the parties do not dispute Dr. McLaughlin's rating. Rather, they only dispute whether the claimant is entitled to benefits based on Dr. McLaughlin's extremity or whole person rating. Accordingly, the ALJ did not err in finding that the critical factual issue was the situs of the claimant's functional impairment. Strauch v. PSL Swedish Healthcare System, supra.
The question of whether the claimant's injuries are found on the schedule is one of fact for determination by the ALJ. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, supra. To resolve this factual issue, the ALJ must determine the situs of the claimant's "functional impairment," as evidenced by the part or parts of the body which have been impaired or disabled. The claimant's arguments notwithstanding, the situs of the functional impairment is distinct from the physician's impairment rating. The medical impairment rating may be considered in determining the situs of the functional impairment, but the rating is not dispositive of the functional impairment. Strauch v. PSL Swedish Healthcare System, supra.
The Rules of Procedure adopted by the Director of the Division of Workers' Compensation pursuant to her authority under § 8-47-107 C.R.S. 1999, may not expand, enlarge or modify the underlying statute the rule is intended to enforce, and any rule which is contrary to or inconsistent with the statute it is enacted to enforce is void. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo App. 1997) ; Adams v. Department of Social Services 824 P.2d 83 (Colo.App. 1991). Because rules are invalid if inconsistent with the underlying statute the rule is designed to enforce, we must, where possible, construe the rule consistent with the enabling statute. See Monfort Transportation v. Industrial Claim Appeals Office, supra; Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997); Sterling v. Industrial Commission, 662 P.2d 1096 (Colo.App. 1982).
Admittedly, § 8-42-101(3.7), C.R.S. 1999, requires that "all physical impairment ratings" are to be based on the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and the AMA Guides contain a method for converting all extremity ratings to whole person impairment. Rule XIX(G) appears to be consistent with § 3.1(j) of the AMA Guides. Nevertheless, § 8-42-107(1) controls the determination of whether the claimant's impairment is compensated as a scheduled or whole person impairment. The caselaw interpreting that statute holds that functional impairment not listed on the schedule of disabilities is a prerequisite to compensation based on whole person impairment. See Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997; Langton v. Rocky Mountain Health Care Corp., supra. We do not read Rule XIX(G)(2) as intending to nullify § 8-42-107(1) or relevant caselaw. Consequently, we read Rule XIX(G)(2) to require functional impairment not found on the schedule of disabilities before a cumulative trauma disorder may be compensated as a whole person impairment.
Further, we have previously rejected an argument that a cumulative trauma disorder must be compensated as a whole person impairment. Wallace v. Home Base, W.C. No. 4-210-135(December 11, 1997); Divido v. John C. Ley D.D.S., P.C., W.C. No. 4-288-357 (November 26, 1997). We concluded that it is the functional impairment and not the "diagnosis" of the particular injury which is determinative of whether the claimant has suffered a scheduled injury. Consequently, regardless of whether the claimant's injury may be characterized as a "cumulative trauma disorder," it is the residual functional impairment from the injury that is pertinent. The claimant's arguments do not persuade us to depart from our conclusions in Wallace and Divido. IT IS THEREFORE ORDERED that the ALJ's order dated January 6, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 1999. 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 August 17, 2000 to the following parties:
Freddrick F. Moore, 1407 Krameria, Denver, CO 80207
Nextel Communications, 4643 S. Ulster St., #300, Denver, CO 80222
Nextel Communications, 2001 Edmund Halley Dr., Reston, VA 20191-3436
Charter Oak Insurance Company, Myra Jelinek, Travelers Property Casualty Company, P. O. Box 173762, Denver, CO 80217-3762
Daniel F. O'Neil, Esq., 1155 Sherman St., #113, Denver, CO 80203 (For Claimant)
Kevin L. Flynn, Esq., P. O. Box 5148, Denver, CO 80217-5148 (For Respondents)
BY: le