Opinion
W.C. No. 4-157-904
July 21, 1995
FINAL ORDER
The respondents seek review of an order of Chief Administrative Law Judge Felter (ALJ), which awarded permanent partial disability benefits pursuant to § 8-42-107(8), C.R.S. (1994 Cum. Supp.). The respondents contend that the claimant is limited to an award of benefits based upon the schedule of disabilities in § 8-42-107(2), C.R.S. (1994 Cum. Supp.). We disagree, and therefore, affirm.
The claimant suffered a compensable pelvis fracture on December 19, 1992. The treating physician determined the claimant to be at maximum medical improvement in 1993, with no permanent impairment. Thereafter, the parties agreed to an independent medical examination (IME) under the provisions of § 8-42-107(8)(c), C.R.S. (1994 Cum. Supp.). Dr. Lockwood, the IME physician selected by the parties, rated the claimant's impairment as 9 percent of the lower extremity, which he stated "equates to 4% whole person impairment rating" under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The respondent-insurer admitted liability for permanent partial disability benefits based upon impairment of 9 percent of the lower extremity. The claimant objected and applied for a hearing on the issue of permanent disability.
The ALJ found that as a result of the injury, the claimant suffers from chronic groin pain which restricts the range of motion in his left leg and causes the claimant to limp. The ALJ further determined that the limp has resulted in the claimant throwing his left foot out and leaving his left hip lower than this right hip. The ALJ concluded that because the pelvis is above the hip, the claimant's functional impairment from the injury extends beyond the extremity. Consequently, the ALJ determined that the claim for permanent partial disability benefits is governed by § 8-42-107(8), and concluded that the respondents are liable for medical impairment benefits based upon Dr. Lockwood's rating of 4 percent impairment of the whole person.
I.
The respondents contend that Dr. Lockwood clearly rated the claimant's medical impairment as the partial loss of use of the lower extremity. They argue that because the parties agreed to a "binding" IME by Dr. Lockwood, the ALJ exceeded his authority in finding that the claimant suffered a whole person impairment. We disagree.
Section 8-42-107(1)(a), C.R.S. (1994 Cum. Supp.), provides that permanent disability benefits are limited to benefits under the schedule of disabilities where the claimant suffers an injury or injuries described in § 8-42-107(2). Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Subsection (1)(b) provides that permanent disability is limited to medical impairment benefits under § 8-42-107(8) where the claimant suffers an injury or injury not described in the schedule of disabilities. In this context, the term "injury," refers 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. Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995) cert. pending; Carothers v. J.C. Trucking, Inc., W.C. No. 4-134-297, August 12, 1994.
For injuries subject to the provisions of § 8-42-107(8)(c), the initial determination of medical impairment is made by the authorized treating physician. If either party disputes that determination, the parties may agree to an IME by a physician selected by the parties, and in that event, the medical impairment rating of the IME physician "shall be binding on the parties and on the division." Because, the IME provisions of § 8-42-107(8)(c) only apply "in cases of whole-body impairment," the threshold issue is whether the claimant suffered an injury not listed on the schedule of disabilities. Mountain City Meats Co. v. Industrial Claim Appeals Office, supra.
The issue of whether the claimant suffered an injury or injuries which are fully enumerated on the schedule of disabilities is a factual determination for the ALJ. Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984); Aultman v. JVK Enterprises, Inc., W.C. No. 4-112-073, December 31, 1993; Mestas v. Curtice Burns Meat Snacks, Inc., W.C. Nos. 4-000-190 4-159-948, May 24, 1994; Carothers v. J.C. Trucking, Inc., supra. Consequently, we reject the respondents' contention that this is a medical question for resolution by the IME physician.
The ALJ is not restricted to medical impairment ratings or medical evidence in resolving this issue. Rather, a medical impairment rating is some evidence, although not dispositive, of whether the claimant has suffered an injury enumerated on the schedule of disabilities. See Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995, June 23, 1995; Quick v. Contractors Crane Service, W.C. No. 4-160-963, May 10, 1995 ; Strauch v. PSL Swedish Healthcare System, W.C. No. 4-192-279, June 9, 1995. In fact, the medical impairment ratings contained in the AMA Guides are inconsistent with the scheduled injury ratings contained in § 8-42-107(2), C.R.S. (1994 Cum. Supp.). Mountain City Meats Co. v. Industrial Claim Appeals Office, supra; Smith v. Denver Peterbilt, Inc., W.C. No. 4-175-281, January 27, 1994.
Furthermore, § 8-42-107(8)(c) expressly states that medical impairment ratings issued in accordance with this subsection shall be determined as a "percentage of the whole person" based upon the AMA Guides. It follows that the parties' agreement to an IME under § 8-42-107(8)(b) bound the parties and the ALJ to Dr. Lockwood's rating of the claimant's impairment as a "percentage of the whole person" under the AMA Guides, and not Dr. Lockwood's extremity rating. See Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. No. 94CA1932, June 15, 1995) (IME physician must base rating on AMA Guides). Accordingly, Dr. Lockwood's rating of the claimant's extremity impairment did not preclude the ALJ from finding that the claimant suffered impairment not listed on the schedule of disabilities.
There is substantial evidence in the record to support the ALJ's finding that the claimant sustained functional impairment which is not listed on the schedule of disabilities, and this finding supports a conclusion that the claim is governed by § 8-42-107(8). Section 8-43-301(8), C.R.S. (1994 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Therefore, we have no basis to interfere with the ALJ's determination that the respondents are liable for medical impairment benefits based upon Dr. Lockwood's rating of the claimant's impairment as a percentage of the whole person.
To the extent that the respondents contend that Dr. Lockwood did not find that the claimant sustained impairment as a whole person, we are not persuaded. Dr. Lockwood's report is subject to conflicting inferences and it was the sole province of the fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
II
The claimant contends that the respondents' petition to review is without merit, because the respondents appellate arguments were not raised before the ALJ, and the only possible conclusions which could be drawn from Dr. Lockwood's report are those drawn by the ALJ. Therefore, the claimant requests an award of attorney fees pursuant to 8-43-301(14), C.R.S. (1994 Cum. Supp.). We deny the request for attorney fees.
Under § 8-43-301(14) an attorney's signature on a petition to review or brief in support thereof "constitutes a certificate by the attorney" that the petition or brief is "well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Costs and reasonable attorney fees may be imposed against an attorney who violates subsection 8-43-301(14). However, an appeal is not frivolous if there is any rational argument in law that could be make in support of the appeal, regardless of its likelihood of success. See Mission Denver, Co. v. Pierson, 674 P.2d 363 (Colo. 1984); Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496 (Colo.App. 1994).
A Petition for certiorari is pending in Mountain City Meats Co. v. Industrial Claim Appeals Office, supra. Furthermore, to our knowledge, the specific argument raised by the respondent has not been previously resolved in a published opinion. Consequently, we cannot say there is no rational argument based in fact or law to support the respondents' appeal in this matter. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d at 123 (argument for adoption of a new rule of law applicable to the unique factual situation of this case is not a frivolous appeal). Accordingly, we conclude that the respondents appeal did not violate § 8-43-301(14).
The claimant's arguments to the contrary are not persuasive. The record reflects that the respondents' argument concerning the binding effect of Dr. Lockwood's report was argued before the ALJ. Tr. pp. 3, 14-15.
IT IS THEREFORE ORDERED that the ALJ's order dated December 22, 1994, is affirmed.
IT IS FURTHER ORDERED that the claimant's request for costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum. Supp.).
Copies of this decision were mailed July 21, 1995 to the following parties:
Arthur Vialpando, 948 Bryant St., Denver, CO 80204
Amick Transfer Storage Co., 1029 Santa Fe Dr., Denver, CO 80204-3950
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Barbara Furutani, Esq., 1732 Race St., Denver, CO 80206 (For the Claimant)
BY: _______________________