FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which determined that, pursuant to § 8-42-107.5 C.R.S. 1997, the claimant is subject to a combined limit of $120,000 for temporary and permanent partial disability benefits. We modify the ALJ's order.

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).

The claimant suffered a compensable injury on July 20, 1994. Dr. Steinmetz, rated the claimant's permanent impairment as 29 percent of the right arm, which, at the respondents' request, he converted to a 17 percent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). On June 12, 1997, the respondents filed a Final Admission of Liability which admitted liability for temporary disability benefits of $59,120.05, and scheduled disability benefits based on 29 percent impairment of the right arm. However, the respondents asserted that, because the claimant's whole person impairment is less than 25 percent, the claim is subject to the $60,000 limit in § 8-42-107.5. Therefore, the respondents only admitted liability for combined temporary and permanent partial disability benefits of $60,000.

The claimant objected to respondents' application of the $60,000 cap. Furthermore, a manager of the Claims Services Section of the Division of Workers' Compensation notified the respondents of her opinion that § 8-42-107.5 applies to scheduled injuries, and that there is no authority to convert a scheduled disability rating to a whole person impairment rating prior to determining the applicable cap under § 8-42-107.5. Therefore, the manager instructed the respondents to file an amended Final Admission for the payment of benefits subject to the $120,000 cap in § 8-42-107.5. The issue was subsequently brought to the ALJ.

The ALJ determined that the "clear and unequivocal" language of § 8-42-107.5 does not exclude application to scheduled disabilities, and that the statute applies to the claimant's "impairment rating." Because the only "impairment rating" for which the respondents admitted liability is a scheduled disability rating of 29 percent of the right arm, and that rating is greater than 25 percent, the ALJ concluded that the claim is subject to the $120,000 limitation provided by § 8-42-107.5. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits consistent with their Final Admission, subject only to the $120,000 limitation.

On review, the respondents contend that the ALJ erred in finding the claimant has an "impairment rating" over 25 percent for purposes of § 8-42-107.5. We agree.

Neither we, nor the court, have previously addressed the issue presented on appeal. To the contrary, the court has only addressed the application of § 8-42-107.5 where the claimant suffered a non-scheduled injury. See Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997) (24 percent whole person impairment rating); Donald B. Murphy Contractors, Inc., v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995) (17 percent whole person impairment rating); Reddington v. Sandau Corp., W.C. No. 4-178-556 (September 17, 1996), aff'd, Reddington Sandau Corp., (Colo.App. No. 96CA1780, June 12, 1997) (not selected for publication) (24 percent whole person impairment rating); Jefferson v. Nor-Colo Transportation, W.C. No. 4-158-088 (October 9, 1996), aff'd, Jefferson v. Industrial Claim Appeals Office (Colo.App. No. 96CA1914, September 25, 1997) (not selected for publication) (25 percent whole person impairment); Meadow Gold Dairy Products, W.C. No. 3-105-407 (September 12, 1995), aff'd, Meadow Gold Dairy Products v. Martinez (Colo.App. No. 96CA1212, December 19, 1996) (not selected for publication) (22 percent whole person impairment).

Our primary task in construing § 8-42-107.5 is to give effect to the legislative intent. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). To discern the intent of the General Assembly, we must first examine the language of the statute. If clear and unambiguous, the words and phrases of the statute should be given their plain and ordinary meaning, and the statute must be applied as written unless the result is absurd. Vaughn v. McMinn, 945 P.2d 404 (Colo. 1997); Grogan v. Lutheran Medical Center, Inc., supra.

Ambiguity exists in a statute where the language is reasonably susceptible of more than one meaning. Mountain City Meat Co, v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995). In that event, the statute "must be construed in light of the apparent legislative intent and purpose." Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 253 (Colo. 1996). In so doing, we must "consider the ends the statute was designed to accomplish and the consequences that would flow from an alternate construction." Mountain City Meat Co. v. Oqueda, 919 P.2d at 253. We may also consider administrative construction of the statute, the legislative history, and other provisions of the act on the same or similar subjects. Mountain City Meat Co. v. Oqueda, 904 P.2d 1333 (Colo.App. 1995); § 2-4-203, C.R.S. 1997. Furthermore, where, as here, the statute is part of a comprehensive statutory scheme the statute must be construed in a manner which gives consistent, harmonious, and sensible effect to all related provisions. Gonzales v. Advanced Components, 949 P.2d 569 (Colo. 1997); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Finally, interpretation of the statute should yield a just and reasonable result. Weld County School District RE-12 v. Bymer, ___ P.2d ___ (Sup.Ct. No. 9736, March 9, 1998).

I.

The term "impairment rating" is not expressly defined in the statute. However, § 8-42-101(3.7), C.R.S. 1997, provides that all "impairment ratings used under articles 40 to 47 of this title" are to be calculated in accordance with the AMA Guides. The AMA Guides, in turn, provide for both extremity ratings and whole person ratings, and express the preference that all ratings be converted to the whole person. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). However, when a claimant suffers a "loss" described in the schedule, he is limited to receiving benefits based on the "percentage of the number of weeks on the schedule equal to the extremity impairment assigned." Id. at 251.

Under these circumstances, we conclude that the reference to the claimant's "impairment rating" in § 8-42-107.5 is ambiguous. Thus, in situations where a claimant suffers an extremity injury which warrants both an extremity rating and a converted whole person rating under the AMA Guides, it is unclear whether the twenty-five percent limitation refers to the rating which forms the basis of the actual award, or the converted whole person rating mandated by § 8-42-101(3.7).

In resolving this ambiguity, we note that the distinction between whole person awards under § 8-42-107(8)(d), C.R.S. 1997, and scheduled awards under § 8-42-107(2), is that scheduled injuries are to the extremities. Therefore, they are, in the General Assembly's view, less serious than whole person impairments involving injury to the trunk or head. Indeed, this distinction has been used to defeat equal protection challenges to the disparate awards for scheduled and whole person impairments. Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994); Torres v. Canam Industries, Inc., 942 P.2d 1384 (Colo.App. 1997).

The statutory purpose underlying § 8-42-107.5 is to limit combined awards of temporary and permanent partial disability benefits. The twenty-five percent rating line between the $60,000 cap and the $120,000 cap represents an effort to distinguish between less seriously and more seriously injured workers. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).

In view of the statutory objectives inherent in the schedule and § 8-42-107.5, we conclude that the ALJ's interpretation of the term "impairment rating" would do violence to the statutory scheme by giving greater benefits to less seriously injured workers. Here, by virtue of being limited to an impairment rating under the schedule, the ALJ holds the claimant is entitled to avoid the $60,000 cap and enjoy the level of benefits designated for the more seriously injured workers. Conversely, had it been determined the claimant's extremity injury caused whole person impairment, and therefore was more "serious," the claimant would have been restricted by the $60,000 cap and received benefits designated for less seriously injured workers.

Thus, the ALJ's order does not result in a consistent and harmonious interpretation of the statute. Neither is the result just and reasonable when viewed from the perspective of workers whose whole person impairment is greater than seventeen percent, but less than twenty-six percent.

Our conclusion is also consistent with the legislative history underlying the statute. The General Assembly adopted § 8-42-107.5 in contemplation of the 400 week maximum benefit allowance for whole person medical impairment benefits under § 8-42-107(8)(d). See First Conference Committee on SB 218, May 3, 1991, 7:40-7:46 p.m., Rm. 356, Tape 91-32. The legislative history reveals that the statutory limitation of $60,000 on combined temporary and permanent partial disability benefits was designed to create an overall savings in workers' compensation costs to employers, while allowing a "more generous" award at levels of impairment over 25 percent. See First Conference Committee on SB 218, May 3, 1991, 8:19 p.m., Rm. 356, Tape 91-32; May 4, 1991 11:22-11:37 a.m. More importantly, in the process of determining the actual cost of the cap to employers and selecting a break point of impairment which triggers the lower cap, the General Assembly did so based upon the premise that the permanent partial disability benefits would be subject to the age factor in § 8-42-107(8)(e), and the 400 week maximum benefit. See First Conference Committee on SB 218, May 3, 1991, 8:19-8:22 p.m., Rm. 356, Tape 91-32. Thus, the legislative history reflects that the statutory limitation for levels of impairment of 25 percent or less is predicated on whole person ratings, not scheduled extremity ratings.

The result we reach is also consistent with case law interpreting § 8-42-107.5. In Donald B. Murphy Contractors v. Industrial Claim Appeals Office, supra, the Court of Appeals held that the legislative objectives underlying the cap are so significant that they create an implicit right to offset previously paid permanent partial disability benefits against temporary disability benefits where a claim is reopened based on a worsened condition. Considering the court's willingness to give § 8-42-107.5 such a broad construction, we doubt that it would endorse the narrow and mechanical reading adopted by the ALJ in this case.

Rather, we believe the better reasoned interpretation compels a conclusion that the cap applies to scheduled disabilities, and for purposes of determining whether the $60,000 cap has been reached, the scheduled disability must be converted to a whole person impairment. Under this interpretation scheduled and non-scheduled injuries are treated similarly.

In reaching this conclusion we reject the argument that there is no authority for converting a scheduled disability to a whole person impairment. As stated by the Supreme Court in Mountain City Meat Co. v. Oqueda, "impairment" is based on the whole person impairment rating set forth in the AMA Guides. 919 P.2d at 251. Further, in Oqueda, the court held that by incorporating the AMA Guides into the Act, the legislature explicitly created authority for the conversion of an upper extremity injury to a whole person impairment rating. 919 P.2d 254. Oqueda holds that where the claimant suffers at least one scheduled disability and one whole person impairment from the same industrial accident, the impairments must be combined and compensated as whole person impairment. This holding reflects the court's determination that under some circumstances, the Act requires scheduled injuries be converted to whole person impairment.

Moreover, we are mindful of the arguable injustice which results where, as here, an insurer restricts the award of permanent disability benefits under the schedule, but takes advantage of the whole person rating under the cap. However, the limitations in § 8-42-107.5 reflect a legislative line-drawing between the severity of injuries for purposes of accommodating the competing interest of controlling costs and providing greater benefits to more seriously impaired claimants. As stated in Duran v. Industrial Claim Appeals Office, supra, perfection in this type of legislative line drawing can never be achieved under the Act given variety of potential injuries and the resulting impact on a claimant's earning capacity. Moreover, the Duran court concluded that the differentiation of benefit awards based solely on a distinction between the severity of the injuries is rationally related to a legitimate governmental interest. Duran v. Industrial Claim Appeals Office, supra. Therefore, the fact that the cap results in specific instances of inequality is insufficient to persuade us to ignore the legislative intent. Duran v. Industrial Claim Appeals Office, supra.

II.

Nevertheless, insofar as the term "impairment rating," as used in § 8-42-107.5, could be read as unambiguous, we conclude that giving the words their plain and ordinary meaning (the rating on which the award is based) would create an absurd result. As we have already noted, a claimant who has a 29 percent scheduled disability, which would convert to 17 percent whole person impairment, would not be subject to the $60,000 limitation in § 8-42-107.5. However, a claimant whose injury results in a greater degree of whole person impairment, up through 25 percent, would be subject to the $60,000 combined cap. Under these circumstances, the less seriously injured worker receives the "more generous" award than the more severely injured worker. Such a result would clearly contradict the legislative purpose of SB 218.

As argued by the respondents, this interpretation also encourages litigation because the respondents may be motivated to argue that the claimant has functional impairment not on the schedule in order to take advantage of the cap. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Conversely, in some cases, claimants may be encouraged to prove that they suffered functional impairment listed on the schedule to avoid the lower cap in § 8-42-107.5. Therefore, even if the statutory language is unambiguous, we are not persuaded that it must be applied in the manner suggested by the ALJ and the claims manager.

III.

Lastly, we note the claimant's suggestion that § 8-42-107.5 does not apply to scheduled injuries. However, as previously stated, this conclusion leads to a result where less seriously injured workers receive "more generous" awards than more severely injured workers, and this result is inconsistent with the legislative purpose of SB 218.

IT IS THEREFORE ORDERED that the ALJ's order dated November 28, 1997, is modified to require the respondents to pay permanent partial disability benefits consistent with their Final Admission of Liability, subject to the $60,000 limitation in § 8-42-107.5.

INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean

Copies of this decision were mailed June 19, 1998 to the following parties:

Shawn Quackenbush, Gregory G. Sapakoff, Esq., 7154 E. Jarvis Pl., Denver, CO 80237

Tennant Roofing, Inc., 7515 W. 17th Ave., Lakewood, CO 80215-3302

Colorado Compensation Insurance Authority, Attn: Michael Steiner, Esq. (Interagency Mail)

Gregory G. Sapakoff, Esq., 7154 E. Jarvis Pl., Denver, CO 80237 (For the Claimant)

Stephen A. Jones, Esq., 1700 Broadway, Denver, CO 80290

BY: _______________________