W.C. No. 4-162-695Industrial Claim Appeals Office.
June 25, 1996
FINAL ORDER
The claimant and the respondents separately petitioned for review of an order of Administrative Law Judge Erickson (ALJ), dated January 10, 1996, which awarded permanent partial disability benefits. We affirm the award of permanent partial disability benefits and remand the matter for further proceedings concerning the claimant’s Petition for Review.
I.
By correspondence dated January 21, 1996, the claimant requested review of the ALJ’s order of January 10 order insofar as the ALJ did not award future medical benefits. Thereafter, the respondents filed their Petition for Review.
On March 20, 1996, a briefing schedule was established for the respondents’ Petition for Review. However, the record does not reflect a briefing schedule in connection with the claimant’s Petition for Review. Therefore, the matter must be remanded to the Division of Administrative Hearings to establish a briefing schedule, and for further proceedings in connection with the claimant’s Petition for Review. Section 8-43-301(4), C.R.S. (1995 Cum. Supp.).
II.
In their Petition the respondents contend that the ALJ erroneously relied upon Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), cert. granted, October 30, 1995, to award permanent partial disability benefits based upon impairment of the whole person. The respondents contend that the ALJ should have compensated that portion of the claimant’s disability which was rated as impairment of the upper extremity under the schedule of disabilities at § 8-42-107(2), C.R.S. (1995 Cum. Supp.).
As the respondents recognize, the Court of Appeals ruled to the contrary in Mountain City Meat Co., v. Industrial Claim Appeals Office supra, and held that where a claimant suffers an injury or injuries not on the schedule as well as an injury or injuries which are scheduled, all effects of that injury or injuries are to be compensated as impairment of the whole person in accordance with § 8-42-107(8), C.R.S. (1995 Cum. Supp.). See also Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995). The respondents contend that Mountain City Meat Co. was wrongly decided and is inconsistent with Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994).
However, we are bound by published opinions of the Court of Appeals C.A.R. 35(f). Therefore, we must affirm the ALJ’s award of permanent partial disability benefits insofar as it was based upon Mountain City Meat Co., v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order, dated January 10, 1996, is affirmed insofar as it awards permanent partial disability benefits based upon medical impairment of 8 percent of the whole person.
IT IS FURTHER ORDERED that the matter is remanded to the Division of Administrative Hearings to establish a briefing schedule in connection with the claimant’s Petition for Review and for further proceedings consistent with § 8-43-301.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed June 25, 1996 to the following parties:
Cheryl I. Straughn, RR 1 121, 4th St., Sheffield, IA 50475
OEA, Incorporated, P. O. Box 100488, Denver, CO 80250-0488
Marjorie J. Long, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Sharon Elenberg, Coordinator, Division of Workers’ Compensation — Interagency Mail
Mark A. Simon, Esq., 501 S. Cherry St., #820, Denver, CO 80220 (For Claimant)
By: __________________________________