W.C. No. 4-467-177Industrial Claim Appeals Office.
March 19, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claim is subject to the $60,000 benefit cap in § 8-42-107.5, C.R.S. 2003. We affirm.
Section 8-42-107.5, C.R.S. 2003 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 December 1999, the claimant suffered a compensable cervical injury. The respondent paid $40,943.96 in temporary disability benefits and admitted liability for medical impairment benefits up to a total of $60,000 for combined temporary and permanent partial disability benefits.
A Division-sponsored independent medical examination (DIME) physician assigned 23 percent whole person impairment to the cervical spine, and 2 percent for damage to the left hip which equals 25 percent whole person impairment under the combined values chart in the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). The DIME also assigned 5 percent for mental impairment. Therefore, the DIME opined the claimant suffered a total of 29 percent whole person impairment.
The ALJ found the respondent failed to overcome the DIME physician’s medical impairment rating. However, the ALJ determined that §8-42-107(7)(b)(III), C.R.S. 2003 precluded him from combining the mental impairment rating with the physical impairment rating. Therefore, the ALJ held the claimant is limited by the $60,000 benefit cap for permanent impairment of 25 percent or less.
On review the claimant contends the ALJ erroneously refused to combine the DIME physician’s mental impairment rating with the 25 percent physical impairment rating to find that the claimant suffered more than 25 percent impairment and thus, is subject to the $120,000 benefit cap for combined temporary and permanent partial disability benefits. We disagree.
Section § 8-42-107(1), C.R.S. 2003, which was enacted by Senate Bill 91-218 provides that a claimant is limited to a scheduled disability award if the claimant suffers an “injury or injuries” described in §8-42-107(2). Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996). Where the claimant suffers an injury or injuries 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. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). In the case of mental impairment Senate Bill 91-218 created § 8-41-301(2)(b), which provides that: “the claimant shall be limited to twelve weeks of medical impairment benefits. . . . inclusive of any temporary disability benefits.”
For injuries prior to July 1, 1999, Mountain City Meat Co. v. Oqueda supra, held that when a work-related accident resulted in at least one injury listed on the schedule, and at least one injury not listed on the schedule, the scheduled injury shall be converted to a whole person impairment rating and combined with the non-scheduled rating, so that all effects of the accident were compensated as a single whole-person impairment subject to the benefit caps in § 8-42-107.5.
However, House Bill 99-1157, which applies to injuries occurring after July 1, 1999 [see 1999 Colo. Sess. Laws, Ch. 103 at 298], was designed to overrule Oqueda and clarify that Senate Bill 91-218 intended “that scheduled injuries shall be compensated as provided on the schedule and nonscheduled injuries shall be compensated as medical impairment benefits,” and thus, § 8-42-107(7)(b)(II) precludes the conversion of a scheduled disability rating to a whole person impairment rating.
Further, House Bill 1157 determined that Senate Bill 91-218 intended mental or emotional stress to be compensated pursuant to § 8-41-301(2) only, and not to be combined with any scheduled or nonscheduled injury. (Emphasis added). Accordingly, House Bill 1157 enacted §8-42-107(7)(b)(III), which provides that:
“[M]ental or emotional stress shall be compensated pursuant to section 8-41-301(2) and shall not be combined with a scheduled or a nonscheduled injury.” (Emphasis added).
The principles of statutory construction require that we construe statutes to give effect to their legislative purpose. Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997). If the statutory language is unambiguous, there is no need to resort to interpretative rules of statutory construction because we must presume the General Assembly meant what it clearly said. Davison v. Industrial Claim Appeals Office, 72 P.3d 389 (Colo.App. 2003). To discern the legislative intent, we must first give the words in the statute their plain and ordinary meanings. A forced, subtle, or strained construction of the statute should be avoided if the language is simple and the meaning is clear Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993); Grogan v. Lutheran Medical Center, Inc., supra. Furthermore, where the statute is part of a comprehensive legislative scheme, the statute must be considered in relation to the other provisions to effect the legislative intent of both statutes. Gonzales v. Advanced Components, 949 P.2d 569 (Colo. 1997) DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991).
Applying the principles of statutory construction, we concluded i Chavez v. Atmel Corporation, W.C. No. 4-484-746 (December 5, 2002), that § 8-42-107(7)(b)(III) was unambiguous and precludes combining a mental impairment rating with a scheduled injury for purposes of compensating the scheduled injury as a whole person impairment. Similarly, we perceive no ambiguity in § 8-42-107(7)(b)(III), where the issue involves the application of the benefit caps contained in § 8-42-107.5.
The word “combined” means the unity, joining or merging of items Webster’s II New College Dictionary (1995). Thus, in applying §8-42-107(7)(b)(III), a rating for mental impairment may not be joined or merged with a nonscheduled impairment but instead, is a distinct type of impairment which must be compensated separately under § 8-41-301(2), C.R.S. 2003. It follows that mental impairment may not be “combined” with a nonscheduled impairment rating to determine whether the claimant’s whole person impairment exceeds 25 percent for purposes of determining the applicability of the $60,000 benefit cap.
However, even if the term “combined” is ambiguous, the result is unchanged. The legislative history reveals that § 8-42-107.5 was designed to create an overall savings in workers’ compensation costs to employers. 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). The legislative history of House Bill 99-1157 reveals that one of the unintended effects of Oqueda
was that a mental impairment rating could be combined with a scheduled or non-scheduled impairment rating to create a working unit impairment under the “formula” in § 8-42-107(8)(d), C.R.S. 2003, which exceeded the $60,000 cap. So one purpose of House Bill 99-1157 was to make it clear that mental impairment could not be combined with a physical impairment rating which could put a number of cases over the $60,000 cap that otherwise would not be over the $60,000 cap based on the physical impairment rating alone. See House Business Affairs Labor Committee, January 26, 1999 HCR 109, Archives Digital Auto Tape 99-5-d at 3:33 p.m; 4:08 p.m; Senate State Veterans Military Affairs Committee, February 7, 1999, SCR 353, Archives, Digital Auto Tape 99-8-D at 1:40 p.m; 1:44 p.m.; 1:45 p.m; 2:18 p.m. Similarly, the opponents of House Bill 99-1157 explicitly recognized that the legislation would prevent an injured worker from combining a mental impairment rating with any other whole person impairment rating for purposes of exceeding the $60,000 benefit cap in § 8-42-107.5. Digital Auto Tape 99-5-D, 3:43:4:11 p.m.; Digital Auto Tape 99-8-D at 2:15 p.m; 2:51 p.m. Thus, the legislative history supports the ALJ’s determination that §8-42-107(7)(b)(III) precluded him from combining the claimant’s mental impairment rating with the physical impairment rating for purposes of determining the applicable benefit cap under § 8-42-107.5.
The claimant also contends the ALJ’s order is contrary to the Rules of Procedure, Part XIX(E)(4), 7 Code Colo. Reg. 1101-3 at 125 which provides that, “[W]here other work-related permanent impairment exists, a combined whole-body permanent impairment rating may be determined” by the rating physician. We do not understand Rule XIX(E)(4) to address application of the benefit cap in § 8-42-107.5. Neither does the rule purport to determine the monetary value of a medical impairment rating. Rather, the rule directs physicians to rate all compensable impairment for the purpose of providing a combined whole-body permanent impairment rating.
The claimant also contends the ALJ erroneously found the claimant was seeking more than 12 weeks of compensation for the 5 percent mental impairment rating assigned by the DIME physician. The contends she only sought medical impairment benefits for her physical impairment based on the $120,000 cap in § 8-42-107.5.
The claimant admits she received 12 weeks of temporary disability benefits for mental impairment and concedes she is not entitled to additional compensation for the 5 percent permanent psychological rating assigned by the DIME physician. Under these circumstances, the ALJ’s error, if any, in assuming the claimant was seeking more than 12 weeks of compensation for mental impairment is moot. Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (issue moot if resolution cannot have any effect upon an existing controversy).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 15, 2003, 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 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 March 19, 2004 by A. Hurtado.
Debra Dillard, 1360 N. 17th St., Grand Junction, CO 81501
Pepsi Bottling Group, 140 Power Rd., Grand Junction, CO 81503
Mary Koch, CNA Claim Plus, 10375 Park Meadows Dr., #300, Littleton, CO 80124
Joanna C. Jensen, Esq., P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
Gregory B. Cairns, Esq. and Keith E. Mottram, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)