W.C. No. 4-518-263.Industrial Claim Appeals Office.
August 15, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 27, 2004, which denied additional medical impairment benefits. We affirm.
The claimant suffered an admitted injury in April 2000. Based upon the opinions of a Division-sponsored independent medical examination (DIME) physician, the respondents filed a Final Admission of Liability for 23 percent permanent medical impairment and 5 percent permanent mental impairment, subject to the $60,000 benefit cap in § 8-42-107.5, C.R.S. 2004.
Section 8-42-107.5 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 Dillard v. Pepsi Bottling Group, W.C. No. 4-467-177 (March 19, 2004), we held that § 8-42-107(7)(b)(III), C.R.S. 2004, does not permit the combination of a mental impairment rating and medical impairment rating to determine whether the claimant’s whole person impairment exceeds 25 percent under § 8-42-107.5.
Here, the ALJ found the claimant failed to overcome the opinions of the DIME. Further, the ALJ relied on our conclusions in Dillard, to conclude that the DIME physician’s medical and mental impairment ratings could not be combined for purposes of applying the $120,000 benefit cap for medical impairment ratings of more than 25 percent. Consequently, the ALJ denied the claimant’s request for additional medical impairment benefits. However, the ALJ ordered the respondents to pay mental impairment benefits in accordance with § 8-41-301(2)(b), C.R.S. 2004, subject to an offset for overpaid temporary disability benefits.
On appeal the claimant argues Dillard v. Pepsi Bottling Group, supra,
was wrongly decided. In support, the claimant submitted the Amicus Brief filed with the court in Dillard.
Subsequent to the filing of the claimant’s Brief in this claim, the court announced Dillard v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA0680, June 2, 2005), in which the court held that mental and medical impairment ratings may not be combined for purposes of applying § 8-42-107.5. Therefore, the court upheld our conclusion that a claimant who suffered 25 percent permanent physical impairment and 5 percent permanent mental impairment was subject to the $60,000 benefit cap for combined temporary disability and permanent disability payments.
We are bound by published decisions of the court. C.A.R. 35(f). Therefore, the ALJ properly applied the existing law in denying the claimant’s request for permanent partial disability benefits based on the combined medical and mental impairment ratings of the DIME physician.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 27, 2004, is affirmed.
James Rutledge, Castle Rock, CO, Pro Disposal, Denver, CO, Star Insurance Company, c/o Angie Hancock, Gallagher Bassett Services, Inc., Englewood, CO, Michael H. Kaplan, Esq., Denver, CO, (For Claimant).
Marsha A. Kitch, Esq., Evergreen, CO, (For Respondents).