W.C. No. 3-879-952Industrial Claim Appeals Office.
December 27, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Friend (ALJ), which awarded permanent partial disability benefits under the statute formerly codified at § 8-42-110(3), C.R.S. (1990 Cum. Supp.) (reemployment statute). We affirm.
It is undisputed that the claimant’s entitlement to permanent partial disability benefits was to be limited to her “medical impairment” as provided in the reemployment statute. Relying on the written report and deposition testimony of Dr. Jenkins, the ALJ found that the claimant has a twenty-one percent whole person medical impairment as a result of her 1987 neck injury.
The ALJ recognized that the impairment rating was based upon the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment (Third Edition Revised) (AMA Guides). The ALJ also noted the testimony of Dr. Jenkins that, at the time of the claimant’s 1987 injury, physicians were operating under the second edition of the AMA Guides, and that under the second edition the claimant’s impairment was only ten percent of the whole person.
Nevertheless, the ALJ concluded that the claimant’s permanent impairment should be rated in accordance with the AMA Guides Third Edition. In reaching this conclusion, the ALJ relied on the testimony of Dr. Jenkins that the third edition provides a “more accurate” calculation of impairment than the second edition. Further, the ALJ stated that “developments in medical science subsequent to the injury should be considered” in evaluating impairment.
On review, the respondent contends that the ALJ erred in basing the award on the AMA Guides Third Edition rather than the second edition. The respondent reasons that benefits must be based on the law in effect at the time of the injury. Since the claimant was injured in 1987, prior to the issuance of the third edition, the respondent asserts that the ALJ was bound to award benefits in accordance with the second edition. We reject this argument.
It is true, as the respondent argues, that an award of benefits is to be governed by the law in effect on the date of the injury. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). However, it does not follow that the ALJ was bound by the rating provisions of the AMA Guides Second Edition.
Unlike the current law governing awards of permanent partial disability found at § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.), the law in effect on the date of the claimant’s injury made no reference whatsoever to the AMA Guides. Neither the reemployment statute, nor the general provisions governing permanent partial disability, required the ALJ to base an award of “medical impairment” on any particular version of the AMA Guides.
It is also true that the term “medical impairment,” as used in the reemployment statute, refers to a “partial loss of the physical function of a member of the body, or of the body as a whole.” Turner v. City and County of Denver, 867 P.2d 197 (Colo.App. 1993). However, under the reemployment statute, the proper measure of a claimant’s physical impairment was a question of fact for resolution by the ALJ. Moreover, where the evidence was conflicting concerning the appropriate means or method of calculating impairment, it was for the ALJ to resolve such conflicts. See City of Aurora v. Vaughn, 824 P.2d 825 (Colo.App. 1991) Frank v. Wal-Mart Stores, Inc., W.C. No. 3-994-850, July 20, 1992.
Applying these principles here, we conclude that the ALJ properly resolved conflicts in the evidence concerning the degree of the claimant’s medical impairment. There was no legal requirement that the ALJ utilize the second edition of the AMA Guides, especially where he found that the third edition presented the most reliable assessment of the claimant’s impairment. Since the ALJ’s order is supported by substantial evidence in the record, we are obliged to uphold it. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
IT IS THEREFORE ORDERED that the ALJ’s order, dated August 15, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 27, 1995 to the following parties:
Sandra Rocca, 1687 S. Quintero Way, Aurora, CO 80017
Vern Jackson, Wheat Ridge Regional Center, 10285 Ridge Road, Wheat Ridge, CO 80033
Noemi Graupera, W. R. Gibbens, Inc., P. O. Box 260729, Lakewood, CO 80226
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203
(For Claimant)
David L. Lavinder, Esq., 12835 E. Arapahoe Rd., Ste. 200 West, Englewood, CO 80112
(For Respondent)
By: _________________________