Kolar v. Industrial Claim Appeals Office

122 P.3d 1075, 2005 Colo. App. LEXIS 1472, 2005 WL 2155539
CourtColorado Court of Appeals
DecidedSeptember 8, 2005
DocketNo. 04CA2194
StatusPublished

This text of 122 P.3d 1075 (Kolar v. Industrial Claim Appeals Office) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kolar v. Industrial Claim Appeals Office, 122 P.3d 1075, 2005 Colo. App. LEXIS 1472, 2005 WL 2155539 (Colo. Ct. App. 2005).

Opinion

VOGT, J.

In this workers’ compensation proceeding, Rebecca Kolar (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that she is limited to a scheduled disability award for permanent disability benefits and is not entitled to a whole person disability award. We affirm.

I.

Claimant sustained admitted injuries to her right upper extremity in May 2001 and to her left upper extremity in January 2003. The claims were consolidated, and claimant underwent a division-sponsored independent medical examination (DIME). The DIME physician diagnosed both injuries as cumulative trauma disorder and rated the right upper extremity impairment at thirty-five percent and the left upper extremity at fourteen percent. In reliance on Department of Labor & Employment Rule XIX(G)(2), 7 Code Colo. Regs. 1101-3, which contains the cumulative trauma guidelines, the DIME physician then converted the impairment ratings to whole person ratings of twenty-one percent and eight percent respectively, which yielded a final combined whole person rating of twenty-six percent.

Reed Elsevier, Inc., and its insurer, Zurich American Insurance Company (collectively, employer), filed a final admission of liability based upon the DIME physician’s impairment ratings of thirty-five percent and fourteen percent. Claimant objected and applied for a hearing, seeking, among other things, conversion to a whole person impairment rating.

Following an evidentiary hearing, the administrative law judge (ALJ) found that claimant had not suffered any loss or functional impairment beyond both upper extremities and that claimant’s injuries were therefore scheduled injuries. Accordingly, under the applicable statutes, claimant was not entitled to a whole person permanent impairment rating. On review, the Panel affirmed.

II.

Claimant contends that the ALJ erred by disregarding the DIME physician’s whole person rating and the provisions of Rule XIX(G)(2) to limit her to a scheduled disability award. We disagree.

Section 8-42-107(l)(a), C.R.S.2004, limits a claimant to a scheduled disability award if the claimant suffers an “injury or injuries” described in § 8-42-107(2), C.R.S.2004. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App.1996). Thus, while a claimant who suffers an injury not enumerated in § 8-42-107(2) is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S.2004, see § 8-42-107(l)(b), C.R.S.2004; Warthen v. Indus. Claim Appeals Office, 100 P.3d 581 (Colo.App.2004), scheduled injuries may not be compensated with whole person medical impairment benefits. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152, 1158 n. 7 (Colo.2000)(§ 8-42-107(7)(b)(I), C.R.S.2004, legislatively overrules contrary rule recognized in Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo.1996)).

The term “injury,” as used in § 8^42-107(l)(a), refers to the situs of the functional impairment, meaning the part of the body that sustained the ultimate loss, and not necessarily the situs of the injury itself. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App.1997).

The “loss of an arm above the hand including the wrist” is a scheduled injury. Section 8-42-107(2)(a.5), C.R.S.2004.

Whether a claimant has suffered an impairment that can be fully compensated under the schedule of disabilities is a factual question for the ALJ, whose determination must be upheld if it is supported by substantial evidence. Walker v. Jim Fuoco Motor Co., supra. That determination is distinct from, and should not be confused with, the treating physician’s rating of physical impair[1077]*1077ment under the American Medical Association Guides to the Evaluation of Permanent Impairment (rev.3d ed.) (AMA Guides). Strauch v. PSL Swedish Healthcare System, supra; see also City Market, Inc. v. Indus. Claim Appeals Office, 68 P.3d 601, 603 (Colo.App.2003)(“The determination whether a claimant sustained a scheduled or nonscheduled injury is a question of fact for the ALJ, not the rating physician.”).

Based on the DIME physician’s testimony that claimant had no symptoms in either arm above the level of the elbow and no functional impairment to a part of the body above the level of the elbow, the ALJ found as a factual matter that claimant had suffered scheduled injuries. See § 8-42-107(2)(a.5). Then, citing language in § 8-42-107(l)(a) providing that an employee whose injury is on the schedule in § 8-42-107(2) “shall be limited to medical impairment benefits as specified in [§ 8-42-107(2) ],” the ALJ concluded that “a whole person permanent impairment rating is not appropriate in this case.”

Although claimant does not challenge the ALJ’s finding that her functional impairment did not extend beyond both upper extremities, she nevei’theless maintains that the ALJ and the Panel erred in rejecting the DIME physician’s conversion of her upper extremity impairment ratings to a whole person impairment rating, in accordance with Rule XIX(G)(2) and the AMA Guides. We do not agree.

A.

As claimant correctly notes, § 8 — 42-101(3.7), C.R.S.2004, provides that DIME physicians are to use the AMA Guides in making their physical impairment ratings. See Wilson v. Indus. Claim Appeals Office, 81 P.3d 1117 (Colo.App.2003). The conversion undertaken by the DIME physician here was, according to his testimony, consistent with the AMA Guides.

Nevertheless, compensability was not an issue for the physician to decide, and we conclude that neither § 8 — 42-101(3.7) nor the AMA Guides can be read as superseding or overriding the express legislative directive in § 8-42-107(1) regarding how benefits are to be calculated for employees who have sustained only scheduled injuries. To the extent § 8 — 42-101(3.7) and § 8 — 42-107(1) are inconsistent, we conclude that the ALJ properly relied on the statute specifically addressing the compensability issue that was before her. See § 2-4-205, C.R.S.2004; Freemyer v. Indus. Claim Appeals Office, 32 P.3d 564 (Colo.App.2000).

B.

Nor do we agree that application of Rule XIX(G)(2) requires a different result.

The cumulative trauma disorder rating scheme set forth in Rule XIX(G)(2) includes a provision directing the rating physician to convert each upper extremity impairment to a whole person rating when the impairment is bilateral. The whole person ratings are then to be combined to reach the overall rating.

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Related

Strauch v. PSL Swedish Healthcare System
917 P.2d 366 (Colorado Court of Appeals, 1996)
United Airlines, Inc. v. Industrial Claim Appeals Office
993 P.2d 1152 (Supreme Court of Colorado, 2000)
Mountain City Meat Co. v. Oqueda
919 P.2d 246 (Supreme Court of Colorado, 1996)
Apache Corp. v. Industrial Com'n of Colo.
717 P.2d 1000 (Colorado Court of Appeals, 1986)
Walker v. Jim Fuoco Motor Co.
942 P.2d 1390 (Colorado Court of Appeals, 1997)
James E. Freemyer, P.C. v. Industrial Claim Appeals Office
32 P.3d 564 (Colorado Court of Appeals, 2000)
City Market, Inc. v. Industrial Claim Appeals Office
68 P.3d 601 (Colorado Court of Appeals, 2003)
Suetrack USA v. Industrial Claim Appeals Office
902 P.2d 854 (Colorado Court of Appeals, 1995)
Warthen v. INDUSTRIAL CLAIM APPEALS OFFICE OF STATE
100 P.3d 581 (Colorado Court of Appeals, 2004)
Jiminez v. Industrial Claim Appeals Office
51 P.3d 1090 (Colorado Court of Appeals, 2002)

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Bluebook (online)
122 P.3d 1075, 2005 Colo. App. LEXIS 1472, 2005 WL 2155539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolar-v-industrial-claim-appeals-office-coloctapp-2005.