Opinion
W.C. No. 4-497-494.
September 19, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which determined that, pursuant to § 8-42-107.5 C.R.S. 2002, the claimant is subject to a combined limit of $120,000 for temporary and permanent partial disability benefits. We affirm.
On January 30, 2001, the claimant suffered an admitted injury. A Division-sponsored independent medical examination (DIME) physician rated the claimant as having 22 impairment of the cervical spine. The DIME physician also rated the claimant as having 38 percent impairment of the upper extremity, which the physician converted to 23 percent whole person impairment. The combined ratings equal 40 percent whole person impairment.
The ALJ found the respondents failed to overcome the DIME physician's medical impairment rating. Therefore, the ALJ awarded scheduled disability benefits based on 38 percent impairment to the upper extremity, and 22 percent whole person impairment. Relying on our conclusions in Quackenbush v. Tennant Roofing, Inc., W.C. 4-218-272 (June 19, 1998), and the claimant's combined whole person rating of 40 percent, the ALJ further determined the claimant is subject to a combined limit of $120,000, rather than $60,000 for temporary and permanent partial disability benefits.
On review, the respondents contend our conclusions in Quackenbush were overruled by the enactment of § 8-42-107(7)(b)(I), C.R.S. 2002. Further, the respondents argue § 8-42-107(7)(b)(I) compels the conclusion that scheduled disabilities are irrelevant to application of the benefit cap in § 8-42-107.5. We reject these arguments.
Section 8-42-107(1), C.R.S. 2002, was enacted in 1991 by the passage of Senate Bill 218. See 1991 Sess. Laws, ch. 219 at 1306. The statute limits the claimant to a scheduled disability award if the injury results in permanent medical impairment that is reflected on the schedule of disabilities in § 8-42-107(2). Where the claimant suffers functional impairment which is not listed on the schedule, the claimant is limited to whole person medical impairment benefits calculated in accordance with § 8-42-107(8)(d), C.R.S. 2002. In Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996), the court held that when a work-related accident results in at least one injury that is listed on the schedule, and at least one injury that is not listed on the schedule, the scheduled injury must be converted to a whole person impairment rating, so that all effects of the accident are compensated as a percentage of whole-person impairment.
Section 8-42-107.5, which was also enacted by Senate Bill 218, provides that:
"No claimant whose impairment rating is twenty-five percent or less may receive more than sixty thousand dollars from combined temporary disability payments and permanent partial disability payments. No claimant whose impairment rating is greater than twenty-five percent may receive more than one hundred twenty thousand dollars from combined temporary disability payments and permanent partial disability payments." (Emphasis added).
In Quackenbush, the issue was whether the claimant's right-arm injury should be treated as 29 percent impairment of the arm or converted to 17 percent whole person impairment for purposes of the application of § 8-42-107.5. In resolving the issue, we noted that the term "impairment rating" is not defined in the Workers' Compensation Act.
However, the language enacted in Senate Bill 218, which is currently codified at § 8-42-101(3.7), C.R.S. 2002, provides that all "impairment ratings used under articles 40 to 47 of this title" are to be calculated in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The AMA Guides provide for both extremity ratings and whole person ratings , but express the preference that all ratings be converted to the whole person. In Mountain City Meat Co. v. Oqueda, supra, the court held that by incorporating the AMA Guides into the Act, the legislature explicitly created authority for the conversion of an upper extremity injury to a whole person impairment rating. 919 P.2d 254. Therefore, in Quackenbush, we held that the reference to the claimant's "impairment rating" in § 8-42-107.5 was ambiguous. Consequently, we reviewed the legislative history of the statute.
The legislative history revealed that the statutory limitation of $60,000 on combined temporary and permanent partial disability benefits was designed to create an overall savings in workers' compensation costs to employers, while allowing a "more generous" award at levels of impairment over 25 percent. See First Conference Committee on SB 218, May 3, 1991, 8:19 p.m., Rm. 356, Tape 91-32; May 4, 1991 11:22-11:37 a.m; Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). This was done because in the General Assembly's view, scheduled injuries are less serious than whole person impairments involving injury to the trunk or head. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994); Torres v. Canam Industries, Inc., 942 P.2d 1384 (Colo.App. 1997).
Further, in the process of determining the actual cost of the cap to employers and selecting a break point of impairment which triggers the lower cap, the General Assembly enacted § 8-42-107.5 based upon the premise that the permanent partial disability benefits would be subject to the age factor in § 8-42-107(8)(e), and the 400-week maximum benefit. See First Conference Committee on SB 218, May 3, 1991, 8:19-8:22 p.m., Rm. 356, Tape 91-32. Thus, the legislative history reflects that the statutory limitation for levels of impairment of 25 percent or less is predicated on whole person ratings.
In view of the statutory objectives inherent in the schedule and § 8-42-107.5, we concluded in Quackenbush that application of the claimant's 29 percent scheduled disability rating would do violence to the statutory scheme by giving greater benefits to less seriously injured workers who suffer scheduled disability injuries. In contrast, conversion of the claimant's scheduled disability rating to a whole person rating caused the claimant's injury to be subject to the cap intended for less serious injuries. Therefore, we held that the cap applied to scheduled disabilities, and for purposes of determining whether the $60,000 cap has been reached, the scheduled disability must be converted to a whole person impairment so that scheduled and non-scheduled injuries are treated similarly.
As argued by the respondents, §§ 8-42-107(7)(b)(I) (II), C.R.S. 2002 [1999 Colo. Sess. Laws, Ch. 103 at 298 which apply to injuries that occur after July 1, 1999], were enacted to overrule Mountain City Meat Co. v. Oqueda, supra, and ensure that when the claimant sustains both scheduled and nonscheduled injuries, the loss shall be compensated on the schedule for scheduled injuries. 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)."
The respondents' arguments notwithstanding, we are not persuaded § 8-42-107(7)(b)(II) undermines the holding in Quackenbush. Therefore, we necessarily disagree with the respondents' contention that scheduled injuries are not subject to the benefit cap.
In particular, we reject the respondents' contention that because Quackenbush relied on Mountain City Meat Co. v. Oqueda, supra, and Mountain City was expressly overruled by § 8-42-107(7)(b)(II), Quackenbush was necessarily overruled. In Quackenbush we relied on Mountain City for the proposition that the legislature created a methodology for converting scheduled disability ratings to whole person impairment ratings by incorporating the AMA Guides into the statute. Section 8-42-107(7)(II) did not alter the statutory requirement that medical impairment ratings be completed in accordance with the AMA Guides or the fact that the AMA Guides contain a method for converting extremity ratings to whole person impairments. Accordingly, the principle for which we relied on Mountain City was not overruled by § 8-42-107(7)(I) and (II).
We also note that § 8-42-107.5 is designed to create a maximum benefit cap on the recovery of temporary and permanent disability benefits. Although temporary disability benefits are intended to compensate for a claimant's immediate wage loss, both temporary and permanent disability benefits compensate a claimant for the extent to which his or her physical impairment impacts the claimant's past and future ability to earn wages. Colorado AFL-CIO v. Donlon, 914 P.2d at 404. Under the respondents' construction, all wage loss benefits payable under the schedule of disabilities would be excluded from the statutory limit on wage loss benefits. Consequently, the respondents' construction is inconsistent with the overall purpose of § 8-42-107.5.
Indeed, the respondents' analysis would elevate scheduled injuries above whole person impairments because a scheduled disability award would be payable regardless of the statutory cap. For example, a claimant who has a 29 percent scheduled disability, which would convert to 17 percent whole person impairment, would not be subject to the $60,000 limitation in § 8-42-107.5 if scheduled disabilities were irrelevant to the cap. However, a claimant whose injury results in whole person impairment from 17 through 25 percent would be subject to the $60,000 combined cap. Under these circumstances, the less seriously injured worker could actually recover the more generous award of permanent disability benefits that was reserved for workers with whole person impairment. This result would frustrate the statutory scheme for compensating permanent partial disability enacted by Senate Bill 218.
Based on these reasons, we conclude the ALJ did not err in combining the whole person conversion of the claimant's right upper extremity rating with the claimant's cervical impairment rating for purposes of applying § 8-42-107.5. Further, the ALJ's findings support the conclusion the claimant is subject to the $120,000 cap for combined temporary and permanent disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated June 4, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2002. 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 September 19, 2003 to the following parties:
Dezzaraeh Schank, P. O. Box 115, Waukomis, OK 73773
Dent Wizard, 17500 E. 32nd Ave., Aurora, CO 80011
Insurance Company of the State of Pennsylvania, c/o Carilyn Dakan, Crawford Company, P. O. Box 6502, Englewood, CO 80155
DIME Unit, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
Shawn E. McDermott, Esq., 2300 15th St., #200, Denver, CO 80202 (For Claimant)
Gregory Daniels, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy