W.C. No. 4-415-644Industrial Claim Appeals Office.
December 31, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her claim for permanent medical impairment benefits in connection with a right upper extremity injury. We affirm.
On April 22, 1998, the claimant suffered a compensable right upper extremity injury, which is the subject of this case. In August 1998, the claimant suffered an occupational disease to her left upper extremity. Fireman’s Fund admitted liability for the left upper extremity injury in W.C. No. 4-412-827. The treating physician for the occupational disease placed the claimant at maximum medical improvement in August 1999 without permanent impairment.
Dr. Parry conducted a Division-sponsored independent medical examination (DIME) concerning permanent impairment to the claimant’s left shoulder. The claimant subsequently settled the left upper extremity claim.
The claimant also requested a DIME concerning the right upper extremity injury. The DIME physician, Dr. Ginsberg, assigned a rating for permanent impairment to the left upper extremity, but he assigned a zero rating for impairment to the right upper extremity.
Rejecting the contrary opinions of Dr. Harder, the ALJ found the claimant failed to overcome by clear and convincing evidence Dr. Ginsberg’s zero whole person impairment rating for the right upper extremity injury. Therefore, the ALJ denied the claimant’s request for permanent partial disability benefits on account of the right upper extremity injury.
The claimant’s Petition to Review alleged the ALJ misapplied the burden of proof because the claim “involved an extremity rating” and both parties agreed the DIME physician rated the “incorrect body part.” However, the claimant did not file a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-42-107(1), C.R.S. 2003, limits the claimant to a scheduled disability award if the injury results in permanent medical impairment enumerated on the schedule of disabilities in § 8-42-107(2). Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Where the claimant suffers functional impairment which is not listed on the schedule, the claimant is limited to medical impairment benefits for whole person impairment calculated in accordance with § 8-42-107(8)(c), C.R.S. 2003. In the context of permanent partial disability the term “injury” refers to the part or parts of the body which have been permanently, functionally impaired as a result of the injury, and not the physical situs of the injury. Walker v. Jim Fouco Motor Company, 942 P.2d 1390
(Colo.App. 1997); Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883
(Colo.App. 1996). Where the parties dispute whether the claimant suffered an “injury” not listed on the schedule of disabilities, the situs of the claimant’s functional impairment is a question of fact for resolution by the ALJ. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601
(Colo.App. 2003); Delaney v. Industrial Claim Appeals Office 30 P.3d 691
(Colo.App. 2000).
For injuries subject to the provisions of § 8-42-107(8)(c) the initial determination of medical impairment is made by an authorized treating physician. If either party disputes that determination, the claimant must undergo an DIME and the whole person impairment rating of the DIME physician is binding unless “overcome by clear and convincing evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). However, the DIME provisions of § 8-42-107(8)(c) only apply “in cases of whole-body impairment.” See Mountain City Meat Co, v. Industrial Claim Appeals Office, supra.
We note that it is the burden of the party asserting error to present a record demonstrating the error. If the party fails to prove a complete record, court must presume the correctness of the proceedings below People v. Lawrence, 55 P.3d 155 (Colo.App. 2001).
The claimant has not provided a transcript of the hearing on June 25, 2003. See § 8-43-301(2), C.R.S. 2003 (petitioner shall, at the time of the filing of the petition to review, “order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same and notify opposing parties of the transcript ordered.”); Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3 at 10, (when arrangements to pay for a transcript have not been made with a court reporter on a timely basis, an ALJ may determine the transcript has been withdrawn). Under these circumstances, the record is insufficient to ascertain how the claimant framed the issues and, thus, the record is legally insufficient to conclude the ALJ misapplied the burden of proof.
Similarly, the existing record does not support the claimant’s contention that the parties agreed Dr. Ginsberg erroneously evaluated the wrong upper extremity. Moreover, our review is limited to the record before the ALJ. Consequently, we may not consider the claimant’s factual assertion that the parties agreed Dr. Ginsberg did not purport to evaluate the claimant’s right upper extremity. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel in a pleading may not substitute for evidence which is not in the record). Therefore, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 25, 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 December 31, 2003 by A. Hurtado.
Brenda Stocker, P. O. Box 271727, Fort Collins, CO 80527-1727
United Title Co./Security Title, 909 Wadsworth Blvd., Lakewood, CO 80214-4510
Diana Gelbart, Claim Consultant, Hartford Casualty Co., 7670 So. Chester St., #300, Englewood, CO 80112
DIME Unit, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #330, Englewood, CO 80112 (For Respondents)