W.C. No. 4-135-566Industrial Claim Appeals Office.
July 18, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ), which awarded permanent partial disability benefits pursuant to § 8-42-107(8), C.R.S. (1994 Cum. Supp.). The respondents contend that the claimant is limited to an award of benefits based upon the schedule of disabilities in § 8-42-107(2), C.R.S. (1994 Cum. Supp.). We disagree, and therefore, affirm.
The claimant sustained an admitted industrial injury on June 6, 1992 during his employment with the Twin Landfill Corporation. The authorized treating physician, Dr. Janes, determined the claimant to be at maximum medical improvement (MMI) on October 31, 1993, and rated the claimant’s permanent medical impairment as 12 percent of the upper extremity, which he converted to 7 percent impairment of the whole person. On his own, the claimant underwent an independent medical examination (IME) of permanent medical impairment by Dr. Bralliar. In a report dated February 16, 1994, Dr. Bralliar rated the claimant’s impairment as 24 percent of the whole person which included impairment of the upper extremity and neck. The claimant also underwent an IME by Dr. Gamble, a physician selected by the Division of Workers’ Compensation (Division). Dr. Gamble rated the claimant’s impairment as 26 percent of the whole person which included a loss of range of motion in the neck.
The ALJ found that the claimant established by a preponderance of the evidence that he suffered an injury to his neck and upper back on June 6, 1992. Therefore, the ALJ determined that the claim for permanent partial disability benefits was governed by the provisions of § 8-42-107(8)(c), C.R.S. (1994 Cum. Supp.). The ALJ further determined that the respondents failed to overcome the opinion of Dr. Gamble by clear and convincing evidence. Therefore, the ALJ concluded that the respondents are liable for permanent partial disability benefits based upon Dr. Gamble’s medical impairment rating of 26 percent of the whole person.
The respondents essentially contend that the IME provisions of §8-42-108(c) do not apply, because Dr. Janes rated the claimant’s impairment as 12 percent of the upper extremity. Therefore, the respondents argue that the ALJ erred in requiring the respondents to overcome Dr. Gamble’s medical impairment rating by clear and convincing evidence. We perceive no error.
Section 8-42-107(1)(a), C.R.S. (1994 Cum. Supp.) provides that permanent disability is limited to benefits under the schedule of disabilities where the claimant suffers an injury or injuries described in § 8-42-107(2). Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). However, subsection (1)(b) provides that the claimant is entitled to medical impairment benefits under § 8-42-107(8) where the claimant suffers an injury or injury not described in the schedule of disabilities. Furthermore, as the respondents recognize, the special weight afforded the opinion of the IME physician under §8-42-107(8)(c) applies only to injuries not enumerated in the schedule of disabilities. Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995).
The question of whether the claimant has suffered an impairment described in the schedule is a factual determination for the ALJ. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Furthermore, the ALJ is not restricted to medical evidence in resolving this issue. In fact, the medical impairment ratings contained in the AMA Guides are inconsistent with the scheduled injury ratings contained in §8-42-107(2), C.R.S. (1994 Cum. Supp.). Mountain City Meats Co. v. Industrial Claim Appeals Office, supra; Smith v. Denver Peterbilt, Inc.,
W.C. No. 4-175-281, January 27, 1994. Rather, a medical impairment rating is some evidence, although not dispositive, of whether the claimant has suffered an “injury” enumerated on the schedule of disabilities. See Elwood v. Sealy Corporation, W.C. Nos. 4-175-456, 4-178-995, June 23, 1995; Quick v. Contractors Crane Service, W.C. No. 4-160-963, May 10, 199 ; Strauch v. PSL Swedish Healthcare System, W.C. No. 4-192-279, June 9, 1995.
The term “injury,” as used in § 8-42-107(1) “refers to the manifestation in a part or parts of the body which have been impaired or disabled as a result of the industrial accident.” Mountain City Meats Co. v. Industrial Claim Appeals Office, supra. Accordingly, the ALJ was required to determine whether the claimant’s functional impairment is described in § 8-42-107(2), or involves areas of the body not described in the schedule. Carothers v. J.C. Trucking, Inc., W.C. No. 4-134-297, August 12, 1994.
In determining that the claimant sustained functional impairment which is not described in the schedule of disabilities, the ALJ implicitly credited the claimant’s testimony that he suffers neck and back pain as a result of the industrial accident. Tr. p. 11. As noted by the ALJ, his determination is also supported by the medical reports of Dr. Bralliar and Dr. Gamble. Therefore, we are bound by the ALJ’s determination that the claimant suffered functional impairment to his neck.
The schedule of disabilities does not include functional impairment of the neck. Therefore, the ALJ did not err in concluding that the claim for permanent partial disability benefits is governed by § 8-42-107(8).
Section 8-42-107(8)(c) provides that the authorized treating physician shall determine the claimant’s medical impairment, and if either party disputes that determination, the claimant must undergo an IME. Furthermore, the statute provides that where the IME is performed by a physician selected by the Division, the finding of the independent medical examiner regarding medical impairment is binding unless overcome by clear and convincing evidence. Consequently, insofar as the respondents disputed Dr. Gamble’s medical impairment rating, the respondents bore the burden of overcoming the impairment rating by clear and convincing evidence, and the ALJ did not erroneously shift the burden of proof to the respondents.
The respondents’ further arguments in this regard are without merit. Specifically, the statute does not provide that after a factual determination that the claimant suffered a non-scheduled disability, and before a Division IME is performed, the authorized treating physician must be given an opportunity to issue a whole person impairment rating. Furthermore, we have no authority to infer such a requirement. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985) In any case, Dr. Janes did
issue a whole person impairment rating and the ALJ expressly considered this evidence. Finding of Fact 2.
Nor are we persuaded that the claimant circumvented the statute by obtaining a Division IME prior to the hearing in which the ALJ determined that the claim is governed by § 8-42-107(8), and Aren Design, Inc. v. Industrial Claim Appeals Office, 897 P.2d 902 (Colo.App. 1995) does not support a contrary result. Aren stands for the proposition that the IME provisions of § 8-42-107 (b) cannot be invoked prior to a determination of MMI by the authorized treating physician who has provided the primary care. Here, the Division IME was not obtained until after the authorized treating physician found the claimant to be at MMI and determined the claimant’s permanent medical impairment.
Lastly, the respondents contend that the ALJ erred in awarding whole person impairment benefits for that portion of the claimant’s impairment which is measurable as the partial loss of use of the upper extremity. The respondents acknowledge that their argument was rejected in Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995). However, the respondents argue that Mountain City Meat Co. was wrongly decided. We are bound by published opinions of the Court of Appeals. C.A.R. 35(f).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum.Supp.).
Copies of this decision were mailed July 18, 1995 to the following parties:
Donald L. Carpenter, P.O. Box 2251, Silverthorne, CO 80498
Twin Landfill Corp., 453 Fillmore, Denver, CO 80206
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204 (For the Claimant)
BY: _______________________