In re Waite, W.C. No

Full title: IN THE MATTER OF THE CLAIM OF THERESA J. WAITE, Claimant, v…

Court: Industrial Claim Appeals Office

Date published: Jan 21, 1998

W.C. No. 4-150-563 (Colo. Ind. App. Jan. 21, 1998)

Opinion

W.C. No. 4-150-563

January 21, 1998

FINAL ORDER

The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded scheduled disability benefits for her bilateral upper extremity impairments. We modify the order, and as modified, affirm it.

The claimant sustained compensable injuries to both of her upper extremities, and underwent carpal tunnel surgery on her right and left wrists. The claimant was initially placed at maximum medical improvement by Dr. Brady in August 1993. Dr. Brady determined that the claimant has a ten percent impairment of each upper extremity, which "combined" for a nineteen percent upper extremity impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). Dr. Brady converted the nineteen percent upper extremity impairment rating to a single eleven percent whole person impairment rating.

Thereafter, the claimant experienced a worsening of condition, and was placed on temporary disability benefits from October 3, 1995 through April 9, 1996. During this period, the claimant was treated for depression. However, the claimant reached MMI on April 10, 1996, and was found not to have sustained any medical impairment beyond that previously rated by Dr. Brady.

The ALJ found that the claimant failed to prove any "functional impairment" beyond her shoulder joints. In support of this determination, the ALJ noted that Dr. Brady's rating was predicated on "median nerve entrapment at the wrist level." The ALJ also found that, at the time of the January 1997 hearing, the claimant had not been treated for depression since August 1996. Thus, the ALJ awarded scheduled medical impairment benefits based on Dr. Brady's "combined" nineteen percent upper extremity rating.

I.

On review, the claimant contends the ALJ erred in awarding permanent partial disability benefits under the schedule rather than whole person medical impairment benefits under § 8-42-107(8), C.R.S. 1997. In support of this contention, the claimant cites the ALJ's finding that she "experiences sleep dysfunction as a result of her discomfort." The claimant reasons that the sleep dysfunction constitutes a "functional impairment" of the whole person, which justifies whole person medical impairment benefits. We disagree.

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, 917 P.2d 366 (Colo.App. 1996). In resolving 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 situs of the functional impairment is not necessarily the site of the injury itself. Moreover, the situs of the functional impairment is distinct from the physician's impairment rating under the AMA Guides, although the impairment rating may be considered in determining the situs of the functional impairment. Strauch v. PSL Swedish Healthcare System, supra.

Because this test requires the ALJ to make factual findings, the order must be upheld if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1997. In determining whether there is substantial evidence, we must defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

Here, as the respondents argue, the ALJ explicitly found that the claimant's functional impairment is limited to her upper extremities. The ALJ recognized that the claimant experiences symptoms beyond the upper extremities, including difficulty sleeping. However, the evidence supports the ALJ's conclusion that the sleep problem does not rise to the level of a "functional impairment" because the claimant was no longer receiving treatment for the problem, and because none of the examining physicians determined that the sleep problem justifies a rating under the AMA Guides. Because the ALJ's order is supported by substantial evidence, we may not interfere with it. Cf. Divido v. John C. Ley, D.D.S., P.C., W.C. No. 4-288-357 (November 26, 1997); Stave v. King Soopers, Inc., W.C. No. 4-192-543 (February 19, 1997).

However, even if the "sleep dysfunction" could qualify as a "functional impairment" of the whole person, we would not reach a different result. In Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), the court of appeals held that a functional psychological impairment, which resulted from an extremity injury, would have to be "rateable" under the AMA Guides in order to "combine" it with the extremity injury to create a single whole person impairment rating. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). As the respondents argue, this record contains no evidence that the claimant's "sleep dysfunction" is "rateable" under the AMA Guides. Thus, there is no legal basis for combining the claimant's upper extremity impairment ratings with the sleep dysfunction to create a single whole person impairment rating. Bicknell v. Pinon Truck Stop, Inc., W.C. No. 4-159-683 (December 10, 1997); Divido v. John C. Ley, D.D.S., P.C., supra.

The claimant next argues that the schedule of disabilities, found in § 8-42-107(2)(a), C.R.S. 1997, does not address the amount of compensation to be paid for bilateral loss of an arm at the shoulder. Rather, the claimant asserts that the schedule merely addresses the loss of a single arm at the shoulder, and does not contemplate the greater loss of both arms at the shoulder. We reject this argument.

Section 8-42-107(7)(a), C.R.S. 1997, expressly provides that where an employee sustains two or more injuries coming under the schedule, "the disabilities specified in subsections (1) to (5) of this section shall be added, and the injured employee shall receive the sum total thereof." Thus, contrary to the claimant's argument, the statute expressly addresses the situation presented by this case. Divido v. John C. Ley, D.D.S., P.C., supra.

Further, the claimant contends she is entitled to a whole person impairment rating because she suffers from a "Cumulative Trauma Disorder" within the meaning of Rule of Procedure XIX(G)(2), 7 Code Colo. Reg. 1101-3 at 126-127. We disagree with this argument.

Arguably, Rule of Procedure XIX(G)(2)(f) permits bilateral upper extremity impairments to be converted to a single whole person impairment rating under certain circumstances. However, as the respondents point out, Rule XIX(G)(2) states that the conversion may occur only where the Level II physician has calculated the applicable impairments from "motion, neurologic and/or vascular findings, or other disorders," and "no impairment exists under these sections of the AMA Guides."

Here, as the ALJ found, a qualified physician determined that the claimant's bilateral upper extremity impairments are rateable under the designated sections of the AMA Guides. Consequently, the conditions for application of Rule XIX(G)(2)(f) do not exist. In light of this determination, we need not reach the respondents' additional argument that Rule XIX(G)(2) merely directs a physician to convert bilateral extremity ratings to a whole person rating, but is not substantive in nature.

The claimant also argues that permitting bilateral upper extremities ratings to be converted to a whole person impairment rating in some types of cases, but not in others, creates an equal protection problem. Assuming that the rule does create this type of distinction, resolution of the constitutional issue is beyond our jurisdiction. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).

II.

The claimant next contends that the ALJ erred in adopting Dr. Brady's "combined" upper extremity impairment rating of nineteen percent. The claimant argues that Dr. Brady assessed a ten percent impairment of each upper extremity, and therefore, under § 8-42-107(7)(a), the ALJ should have added the bilateral impairments so as to yield two ten percent impairments, not a nineteen percent impairment. We agree.

Initially, we note that the respondents state that they take "no position" concerning whether or not the bilateral extremity impairments should be added, as argued by the claimant, or "combined" in accordance with Dr. Brady's rating. However, the respondents point out that § 8-42-101(3.7), C.R.S. 1997, provides that "all physical impairment ratings" are to be based on the AMA Guides. Further, the respondents note that the AMA Guides provide methods for combining multiple regional impairment ratings into a single whole person impairment rating.

The respondents' observations notwithstanding, we conclude that the ALJ erred in determining that the claimant's two ten percent upper extremity impairment ratings should be "combined" so as to produce a single nineteen percent upper extremity rating. As the claimant argues, the express language of § 8-42-107(7)(a) provides that multiple scheduled impairments are to be "added," and the claimant is to receive the "sum total thereof." Thus, the plain and ordinary meaning of the statutory language supports the position argued for by the claimant. See Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) (words and phrases in a statute should be given their plain and ordinary meanings).

Moreover, even if § 8-42-107(7)(a) is considered to be ambiguous, we would not reach a different result. First, our conclusion is consistent with the case law interpreting the statutory scheme for awarding permanent disability benefits. The following language from Mountain City Meat Co. v. Oqueda, 919 P.2d at 252, is pertinent:

"When an employee sustains more than one scheduled injury in the same work-related accident, § 8-42-107(7)(a) mandates that the disabilities `be added, and [that] the injured employee shall receive the sum total thereof.' Similarly, when an employee sustains more than one non-scheduled injury, the authorized treating physician uses the Combined Values Chart of the AMA Guides to combine the two whole person impairment ratings."

As this quotation implies, the schedule of disabilities and § 8-42-107(7)(a) are inconsistent with the AMA Guides because the AMA Guides express a preference for and provide a method of "combining" multiple impairments into a single whole person impairment rating. Since the schedule is an exception to the general rating scheme prescribed by the AMA Guides and § 8-42-101(3.7), we conclude that the specific provision concerning the "addition" of scheduled impairments must be given precedence over the provisions of the AMA Guides concerning the treatment of multiple impairments. See Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991) (as a rule, specific statutes prevail over general statutes).

It follows that the ALJ should have utilized § 8-42-107(7)(a), and added the claimant's two upper extremity impairments so as to award benefits based on two ten percent upper extremity impairment ratings. The ALJ's order shall be amended accordingly.

IT IS THEREFORE ORDERED that the ALJ's order dated February 5, 1997, is modified to reflect that the claimant is entitled to permanent disability benefits based on two ten percent impairments under § 8-42-107(2)(a).

IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.

Copies of this decision were mailed January 21, 1998 to the following parties:

Theresa J. Waite, 5301 S. Yosemite St., Unit 33-101, Greenwood Village, CO 80111

Mari Beth Utke, Deluxe Corporation, P.O. Box 64399, St. Paul, MN 55164-0399

Karen B. Parker, The Travelers Companies, P.O. Box 173762, Denver, CO 80217-3762

William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)

Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)

By: ________________________________