IN RE ALVARADO, W.C. No. 4-474-689 (3/12/03)


IN THE MATTER OF THE CLAIM OF MARIA ALVARADO, Claimant, v. WENDY’S INTERNATIONAL, Employer, and PACIFIC EMPLOYER’S INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-474-689Industrial Claim Appeals Office.
March 12, 2003

FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Jones (ALJ) which awarded medical and mental impairment benefits. We affirm.

In 2000 the claimant suffered compensable injuries to her knee, shoulder, groin and lower back. The claimant underwent a Division-sponsored independent medical examination (DIME) on the issue of permanent impairment. The DIME physician assigned 13 percent impairment to the lower extremity, 10 percent whole person impairment to the back and 4 percent whole person psychological impairment.

The ALJ found the respondents failed to overcome the DIME physician’s rating. Therefore, in the Corrected Order dated May 9, 2002, the ALJ directed the respondents to pay permanent partial disability benefits in accordance with the DIME physician’s rating. However, expressly relying on § 8-42-107(7)(b)(I) and (III), C.R.S. 2002, the ALJ determined that the DIME physician’s scheduled impairment rating was not to be converted to a whole person impairment rating or combined with any other whole person impairment rating. The ALJ also determined that the mental impairment rating was not to be combined with the whole person impairment rating for the back and was to be compensated in accordance with the provisions of § 8-41-301(2)(b), C.R.S. 2002.

On review the claimant contends the ALJ erroneously limited the mental impairment award by the application of § 8-41-301(2). We perceive no error.

Section 8-42-107(7)(b)(II), which applies to injuries that occur on or after July 1, 1999, 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).

Furthermore, § 8-42-107(7)(b)(III), states that “mental or emotional stress shall be compensated pursuant to § 8-41-301(2) and shall not be combined with a scheduled or a nonscheduled injury.”

Section 8-41-301(2)(b) states that:

“Notwithstanding any other provisions of [the Act], where a claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits. . . .inclusive of any temporary disability benefits.”

Relying on Oberle v. Industrial Claim Appeals Office, 919 P.2d 918
(Colo.App. 1996), the claimant argues that § 8-41-301(2)(b) only applies to mental impairment awards where there is no physical injury associated with the mental impairment. The claimant contends the DIME physician assigned the 4 percent whole person psychological impairment rating “as a direct result of” the “accidental industrial injury.” Therefore, the claimant argues compensation for her mental impairment rating is not limited by the provisions of § 8-41-301(2)(b).

Section 8-41-301(2)(b) was first enacted in 1991 in an effort to eliminate frivolous “stress” claims by establishing a stricter standard for injuries resulting from an emotional stimulus. See 1991 Colo. Sess. Laws, Ch., 219, at 129 ; Tomsha v. City of Colorado Springs, 856 P.2d 13
(Colo.App. 1992); City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). The statute also established a twelve-week limitation on permanent disability benefits for mental impairment. As argued by the claimant, the court in Oberle v. Industrial Claim Appeals Office, supra, construed § 8-41-301(2) as not applicable where the claimant’s psychological injury was the result of a physical injury.

However, in 1999 the General Assembly amended the statute by adding § 8-41-301(2)(a.5), C.R.S. 2002, which provides that the term “mental impairment” includes “a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability.”See 1999 Colo. Sess. Laws, Ch. 103 at 299. It follows that Oberle is not good law concerning the distinction between permanent mental impairment caused by an emotional stimulus and mental impairment that is a consequence of a compensable physical injury for injuries after July 1, 1999. ee Hughes-Choyce v. The Childrens Hospital, W.C. No. 4-444-713
(October 24, 2002).

Because the claimant’s injury occurred in 2000, her reliance on Oberle
is misplaced. Furthermore, the claimant implicitly concedes that her permanent mental impairment is the consequence of physical injuries from the industrial accident. Therefore, the ALJ did not err in finding that the claimant’s compensation for permanent mental impairment is subject to the twelve-week limitation in § 8-41-301(2)(b).

IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated May 9, 2002, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Kathy E. Dean

NOTICE This Order is final unless an action to modify or vacate this Order iscommenced 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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed March 12, 2003 to the following parties:

Maria Alvarado, 940 E. 92nd Avenue, Thornton, CO 80229

Wendy’s International, P. O. Box 256, Dublin, OH 43017-0256

Pacific Employers’ Insurance Co., c/o Anita Fresquez-Montoya, ESIS, P. O. Box 2941, Greenwood Village, CO 80150-0141

Jess M. Perez, Esq., Chip Monk, Esq., 3155 Federal Blvd., Denver, CO 80211 (For Claimant)

James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)

BY: A. Hurtado