Opinion
W.C. No. 4-510-856
February 25, 2004
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Felter (ALJ) which awarded permanent partial disability benefits. We affirm.
The claimant suffered an admitted shoulder injury. The respondents filed a Final Admission of Liability (FAL) for the payment of a scheduled disability award based for 48 percent loss of use of the arm at the shoulder. The claimant objected and requested a Division-sponsored independent medical examination (DIME). The DIME physician opined the claimant sustained 48 percent impairment to the right upper extremity (RUE) which converts to 29 percent whole person impairment, and 7 percent whole person impairment of the cervical spine. The respondents filed an amended FAL for a scheduled disability award based on 48 percent loss of use of the arm at the shoulder and 7 percent whole person impairment. The claimant applied for a hearing and requested compensation for 29 percent whole person impairment.
The ALJ found the claimant did not challenge the DIME physician's impairment ratings. The ALJ also found the claimant failed to prove that the situs of functional impairment for the RUE extended beyond the extremity. Therefore, the ALJ determined that § 8-42-107(7)(b)(II), C.R.S. 2003, precluded an award of medical benefits for the RUE based on the whole person conversion of the DIME physician's upper extremity rating.
On review the claimant contends the ALJ misapplied § 8-42-107(7)(b)(II) and erroneously relied on our conclusions in Guzman v. KBP Coil Coaters, W.C. No. 4-444-246 (January 10, 2003), to deny his request for additional medical impairment benefits. We disagree.
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, 917 P.2d 366 (Colo.App. 1996). 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), C.R.S. 2003.
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). The statute requires that without combining or adding individual impairment ratings the scheduled injury is compensated as a scheduled disability and the non-scheduled injury must be compensated as whole person impairment.
In 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), 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 which was separately rateable as whole person impairment under § 8-42-107(8). The claimant also suffered functional impairment to the lower extremity that was fully enumerated on the schedule of disabilities as the partial loss of use of the great toe and foot at the ankle. Under these circumstances, the court concluded that § 8-42-107(7)(b)(II), precluded conversion of the lower extremity impairment to a whole person impairment for purposes of compensating all aspects of the injury as a whole person impairment.
The claimant argues that Guzman is factually distinguishable from this claim because in Guzman the loss of the use of the great toe and foot at the ankle was fully enumerated on the schedule of disabilities. In contrast, impairment to the "upper extremity" is not expressly listed on the schedule. Further, the claimant points out that impairment to the shoulder may or may not be fully compensated as scheduled disability based on the partial loss of use of the arm at the shoulder. Walker v. Jim Fouco Motor Company, 942 P.2d 1390 (Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). We reject these arguments.
In the context of § 8-42-107(1), 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. Strauch v. PSL Swedish Healthcare System, supra. Thus, where the industrial accident has caused measurable impairment to more than one part of the body, the claimant may have more than one "injury" for purposes of § 8-42-107(7)(b)(II).
We note that the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Further, we do not dispute the claimant's contention that there is no requirement to prove there is a separate, rateable whole person impairment for the claimant to establish entitlement to the whole person conversion of an extremity rating. See Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998). However, where the ALJ finds functional impairment to the whole person and the DIME physician has assigned a whole person impairment rating, the DIME physician's rating is binding unless overcome by clear and convincing evidence to the contrary. Whiteside v. Smith 67 P.3d 1240 (Colo. 2003).
Here, the ALJ explicitly recognized that the issue was whether the claimant's "scheduled rating of impairment" should be converted to whole person impairment based on functional impairment to the RUE "beyond the extremity." (Finding of Fact 16). The ALJ found the DIME physician opined that movement of the right arm was causing a continuing injury to the claimant's neck. (Finding of Fact 7). Further, the ALJ quoted the DIME physician's deposition testimony that "all of the impairment outside the upper extremity is encompassed" in the cervical impairment rating and the claimant's cervical strain was reactivated every time the claimant used his "arm." (Finding of Fact 10).
Moreover, the ALJ approved the respondents' amended FAL for the payment of scheduled disability benefits based on 48 percent loss of use of the arm at the shoulder. Under these circumstances, we conclude the ALJ implicitly determined that the claimant's functional impairment for the RUE was fully compensated as a 48 percent loss of use of the arm at the shoulder and all functional impairment beyond the arm is fully compensated by the DIME physician's 7 percent whole person rating. Consequently, we reject the claimant's contention that the ALJ failed to determine whether the functional impairment to the claimant's upper extremity extended beyond the arm at the shoulder.
It follows, we reject the claimant's contention that the ALJ erroneously determined our conclusions in Guzman v. KBP Coil Coaters, supra, are applicable. Here as in Guzman, the claimant would be compensated twice for the same impairment if the scheduled disability impairment is converted to a whole person impairment for purposes of combining it with the separate rateable whole person rating. Rather, like Guzman, the ALJ determined that the functional impairment to the extremity was fully enumerated on the schedule of disabilities and any functional impairment not on the schedule was compensated by the separate whole person impairment rating. Further, because there are 2 separate rateable impairments for the same industrial accident, the ALJ correctly determined that § 8-42-107(7)(b)(II), precluded conversion of the scheduled disability rating to a whole person impairment rating.
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated May 27, 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 February 25, 2004 byA. Hurtado.
Todd Warthen, 5922 S. Perth St., Centennial, CO 80015
Cherry Creek School District No. 5, 4850 S. Yosemite St., Englewood, CO 80111-1308
G. E. Young, 4251 N. Kipling St., #510, Wheat Ridge, CO 80033-2899
Sean K. Dotson, Esq. and Dawn Watts, Esq., 8311 E. Amherst Cir., Denver, CO 80231 (For Claimant)
Anne Smith Myers, Esq. and Willow I. Arnold, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)