W.C. No. 4-140-450Industrial Claim Appeals Office.
April 29, 1996
CORRECTED FINAL ORDER
This Corrected Final Order is issued pursuant to § 8-43-302(1)(a), C.R.S. (1995 Cum. Supp.) to correct a clerical error in the April 26, 1996, mailing of our Final Order. To afford the parties their full appellate rights under § 8-43-302(2), C.R.S. (1995 Cum. Supp.), our Final Order is reissued in its entirety, as follows.
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded permanent partial disability benefits based upon medical impairment of the whole person pursuant to Mountain City Meat Co. v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995) cert. granted, October 30, 1995. We affirm.
The pertinent facts are undisputed. The claimant suffered an admitted injury to his upper extremities on May 8, 1992. Dr. Delgado, a non-Level II accredited physician, reported that the claimant has zero physical impairment based upon the claimant’s “ability to return to other work activities, eg: construction, etc.,” and neither party requested an independent medical examination (IME) on the issue. However, the claimant was also examined by Dr. Bralliar who issued a report which converted the claimant’s upper extremity impairment to a 23 percent impairment of the whole person based upon the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides).
The psychological component of the claimant’s injury was treated by a psychotherapist, Fran Slater, who referred the claimant to Dr. Kurtz for an impairment rating. Dr. Kurtz opined that the claimant has sustained psychiatric impairment of 6 percent of the whole person. Thereafter, Dr. Miller completed a Division sponsored IME, in which he rated the claimant’s permanent psychiatric impairment as zero percent under AMA Guides.
Despite Dr. Miller’s opinion that the claimant has zero psychiatric impairment under the AMA Guides, the ALJ determined that the claimant has suffered functional psychiatric impairment. Therefore, the ALJ determined that the claimant has sustained an injury to the whole person which must be compensated under § 8-42-107(8), C.R.S. (1995 Cum. Supp.)..
Concerning the claimant’s upper extremity impairment, the ALJ credited Dr. Bralliar’s medical impairment rating of 23 percent of the whole person. However, the ALJ determined that the claimant failed to overcome Dr. Miller’s psychiatric rating of zero percent by clear and convincing evidence. Therefore, relying on Mountain City Meat Co. v. Industrial Claim Appeals Office, supra, the ALJ determined that the claimant is entitled to permanent partial disability benefits based upon 23 percent impairment of the whole person.
On appeal the respondents contend that Mountain City Meat Co. v. Industrial Claim Appeals Office, supra, is not applicable to this claim. Specifically, the respondents argue that the ALJ was not free to award benefits based upon a “whole person” impairment in view of Dr. Miller’s binding opinion that the claimant has zero psychiatric impairment under the AMA Guides. We disagree.
Section 8-42-107(1)(a), C.R.S. (1995 Cum. Supp.) provides that where an “injury” results in permanent medical impairment and the “injury” is enumerated on the schedule of disabilities, the claimant is limited to a scheduled disability award of permanent partial disability benefits Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. Nos. 93CA1392, 93CA1118, June 15, 1995); Askew v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1932, June 15, 1995), cert. granted, April 8, 1996 (“medical impairment” simply describes “permanent disability”). Subsection 8-42-107(1)(b) states that where the “injury” is not listed on the schedule of disabilities the claimant is “limited to medical impairment benefits” provided under 8-42-107(8).
In Mountain City Meat Co. v. Industrial Claim Appeals Office, supra, the Court of Appeals concluded that the term “injury” in the context of §8-42-107(1) has two meanings. When it is first used it means the industrial accident or event. The second use of the term 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.” 904 P.2d 1335.
The Mountain City court also concluded that § 8-42-107 contemplates circumstances where a single industrial accident results in impairments some of which appear on the schedule and some of which do not. Under such circumstances, the Mountain City court held that the claimant is entitled to a single, whole person impairment rating computed under § 8-42-107(8). 904 P.2d 1336-1337; Advanced Component Systems v. Gonzales, ___ P.2d ___ (Colo.App. No. 95CA0768, April 4, 1996).
The determination of whether the claimant has suffered an “injury” or “injuries” which are not listed on the schedule of disabilities is a factual determination for the ALJ. Strauch v. PSL Swedish Healthcare System, ___ P.2d ___ (Colo.App. No. 95CA1042, March 21, 1996); Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984). The Strauch court also stated that this determination is “distinct from, and should not be confused with, the treating physician’s rating of physical impairment under the AMA Guides.” In fact, as stated in Mountain City, the provisions of the AMA Guides are inconsistent with the scheduled injury ratings contained in § 8-42-107(2), C.R.S. (1995 Cum. Supp.). 904 P.2d at 1337. Consequently, in Strauch v. PSL Swedish Healthcare System, supra, the Court of Appeals held that the ALJ may consider, but is not bound by medical impairment ratings in determining whether the claimant has sustained an “injury” not listed on the schedule of disabilities.
It follows that Dr. Miller’s medical impairment rating of the claimant’s psychiatric impairment was not binding on the ALJ’s determination of whether the claimant suffered an “injury” which must be rated as impairment of the whole person under § 8-42-107(8). Therefore, the ALJ did not err in failing to treat Dr. Miller’s opinion as dispositive.
Furthermore, there is substantial evidence in claimant’s testimony, and the medical reports of Ms. Slater, Dr. Kurtz and Dr. Bralliar that the claimant’s upper extremity injury manifested itself in permanent psychiatric dysfunction. Therefore, we may not disturb the ALJ’s determination that the claimant has suffered psychiatric functional impairment.
Moreover there is no dispute that a “loss” of psychiatric functioning is not listed on the schedule of disabilities. Strauch v. PSL Swedish Healthcare System, supra. (“loss” as used in schedule of disabilities refers to the part of the body that sustains the ultimate loss). Consequently, the ALJ did not err in finding that the affects of the claimant’s industrial accident include an “injury” which is not enumerated on the schedule of disabilities and must be compensated as impairment of the whole person.
We also agree with the ALJ that under Mountain City the claimant is entitled to have all the effects of his industrial injury compensated under § 8-42-107(8). Accordingly, the ALJ did not err in awarding benefits for the claimant’s upper extremity impairment based upon a whole person impairment of 23 percent.
In reaching this conclusion we are mindful of the fact that the claimant in Mountain City had functional impairment of the whole person which resulted in a medical impairment rating of 7 percent under the AMA Guides. Thus, we recognize the argument that Mountain City applies only to circumstances where the claimant’s whole person functional impairment results in a medical impairment rating of whole person impairment under the AMA Guides.
However, in Advanced Component Systems v. Gonzales, supra, the Court of Appeals stated that no benefits can be awarded under § 8-42-107(1)(a) or § 8-42-107(1)(b) unless the claimant sustains “permanent medical impairment.” The court added that “referring to the AMA Guides, rather than the statutes, to determine whether the AMA Guides should be referred to, results in illogical, circular reasoning.” Consequently, the court concluded that reference to the AMA Guides rating of impairment does not apply unless it is first determined that the claimant has suffered “permanent medical impairment” as defined by the Workers’ Compensation Act. In so doing, the Court of Appeals defined “medical impairment” as conditions which “interfere or otherwise have an impact upon a person’s physical functions.”
Based upon this language in Advanced Component Systems we feel constrained to conclude that it is the ALJ’s finding of “permanent medical impairment” of the whole person which requires that the effects of the industrial injury be compensated as a single whole person impairment under § 8-42-107(8), and not the AMA Guides’ treatment of the claimant’s impairment. Consequently, we must reject the argument that the principles established in Mountain City do not apply to the circumstances presented here.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 30, 1995, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this Corrected Final Order were mailed April 29, 1996 to the following parties:
Bianca P. Storlazzi, RR 1, Box 389, LeCompton, KS 66050
James C. Morris, P.O. Box 2308, Boulder, CO 80306-2308
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
John G. Taussig, Jr., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Margaret D. Keck, Esq. and Susan M. Weiner, Esq., 1873 S. Bellaire St., #1400, Denver, CO 80222
(For the Respondents)
BY: _______________________