Opinion
W.C. No. 3-996-097
June 5, 1997
FINAL ORDER
The respondents seek review of two orders of Administrative Law Judge Erickson (ALJ), insofar as they awarded disfigurement benefits for the claimant's antalgic gait. The claimant seeks review of the orders to the extent that they allow reduction of his permanent total disability benefits after he reaches age sixty-five. We affirm.
I.
The claimant sustained an injury to his knee, and has undergone arthroscopic surgery. As a result, the claimant has sustained "six arthroscopic surgery scars" and walks with a "pronounced antalgic gait." Consequently, the ALJ awarded $2,000 in disfigurement benefits.
On review, the respondents contend that the ALJ erred in awarding disfigurement benefits based on the antalgic gait. We disagree.
This case is governed by former § 8-51-105, C.R.S. (1986 Repl. Vol. 3B). The statute provides as follows:
"If any employee is seriously, permanently disfigured about the head, face, or parts of the body normally exposed to public view, the director, in addition to all other compensation benefits provided in this article, may allow such sum for compensation on account thereof as he may deem just, not exceeding two thousand dollars."
In Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961), the court held that the term disfigurement, as used in the statute, contemplates "an observable impairment of the natural appearance of a person." In view of this broad definition, we have previously held that a "limp" constitutes a compensable disfigurement. E.g. Piper v. Manville Products Corp., W.C. No. 3-745-406 (July 29, 1993). The Court of Appeals has agreed with this conclusion in the unpublished decision of Colorado-Ute Electric Association v. Scarlett, (Colo.App. No. 88CA1055, September 14, 1989) (not selected for publication). We decline to depart from our prior rulings.
The respondents argue that an antalgic gait does not satisfy the definition of a disfigurement contained in the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). While this proposition is debatable, it is not relevant to the case before us. The claimant's injury occurred prior to July 1, 1991, when the General Assembly incorporated the AMA Guides into the Act for purposes of calculating "permanent impairment." Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Relying on Advanced Component Systems v. Gonzales, ___ P.2d ___ (Colo.App. No. 95CA0768, April 4, 1996), cert. granted, March 17, 1996, the respondents also argue that permitting the claimant to recover disfigurement benefits and permanent total disability benefits constitutes an impermissible "double recovery" for the same injury. We reject this argument.
Advanced Component Systems, which was decided under the 1991 amendments to the Act, concludes that a "non-dysfunctional" facial disfigurement may not be the subject of an award of "medical impairment benefits" under the statute found at § 8-42-107(8), C.R.S. (1996 Cum. Supp.). However, we do not read that case as holding that a single injury is precluded from causing both a compensable physical impairment and a separate disfigurement in the form of an "observable impairment" of a claimant's "natural appearance."
Here, the respondents admitted that the effects of the injury caused the claimant to be permanently and totally disabled. In the context of this case, that means that the effects of the claimant's injury, including his lost range of motion, have rendered him unable to regain efficiency in some substantial degree in the fields of general employment. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940). However, as we have held, the injury also resulted in a distinct alteration of the claimant's "natural appearance," which is separately compensable as disfigurement under § 8-51-105.
II.
The claimant's challenge to the offset provisions is constitutional. Consequently, as the claimant recognizes, we lack jurisdiction to consider this issue. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ's orders dated February 19, 1997, and March 24, 1997 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona HalseyNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed June 5, 1997 to the following parties:
Robert E. Duddy, 890 S. Cody St., Lakewood, CO 80226
ADT Security Systems Mtn. West, Attn: Josie Yeoman, 1330 River Bend Dr., #200, Dallas, Tx. 75247
Liberty Mutual Fire Ins., Attn: Margaret Malone, P.O. Box 3539, Englewood, CO 80155-3539
Subsequent Injury Fund — Interagency mail
Jeanne M. LaBuda, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For the Liberty Respondents)
Ralph Ogden, Esq., 1750 Gilpin St., Denver, CO 80218 (For the Claimant)
Michael P. Serruto, Esq., Human Resources Section, Office of Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: _______________________________