Opinion
W.C. No. 4-204-566
April 13, 1999.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Stuber (ALJ) which held that his temporary disability and scheduled permanent medical impairment benefits are restricted to $60,000 under the statutory cap contained in § 8-42-107.5, C.R.S. 1998. We affirm.
The facts are undisputed. By the time the claimant reached maximum medical improvement he had received $62,799.75 in temporary total disability benefits. The claimant was assigned a 37 percent upper extremity impairment rating, which converts to a 22 percent whole person impairment rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). The respondents admitted for the 37 percent extremity rating, but argued they owe nothing for permanent partial disability benefits because the claimant's whole person impairment rating is 25 percent or less. Conversely, the claimant argued that because his "impairment rating" is greater than 25 percent he is subject to the $120,000 cap, not the $60,000 cap.
The ALJ concluded that the term "impairment rating," as it is used in § 8-42-107.5, is ambiguous. Therefore, relying on our decisions in Quackenbush v. Tennant Roofing Inc., W.C. No. 4-218-272 (June 19, 1998), and Krizman v. S.O.S. Services, W.C. No. 3-104-352 (August 3, 1998), the ALJ held that the policy considerations underlying the statutory cap require that an extremity rating be converted to a whole person rating when applying the statutory cap. Specifically, the ALJ observed that "the policy is to award greater benefits to people with whole person impairments." This policy would be vitiated by applying the $120,000 cap to claimants with extremity ratings greater than 25 percent, but applying the $60,000 cap to persons whose corresponding whole person impairment rating is 25 percent or less.
On review, the claimant argues that the plain language of § 8-42-107.5 establishes that an extremity rating greater than 25 percent requires application of the $120,000 cap. However, as the parties and ALJ recognize, we previously concluded that term "impairment rating," as used in § 8-42-107.5, is ambiguous. Thus, applying principles of statutory construction, we held that extremity ratings must be converted to whole person ratings for purposes of applying the statutory cap. Quackenbush v. Tennant Roofing Inc., supra. We decline to depart from our ruling in Quackenbush, and adopt it as if fully set forth. Consequently, the ALJ's order must be affirmed.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated December 1, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Kathy E. Dean
NOTICE
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. 1998.
Copies of this decision were mailed April 13, 1999 the following parties:
Raymond L. Schmidt, 5245 Derby Dr., Colorado Springs, CO 80919
Page Construction Inc., 613 W. Midland Ave., Woodland Park, CO 80863-1043
Richard Lamphere, 111 S. Tejon, #700, Colorado Springs, CO 80903
William A. Alexander Jr., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Michael J. Steiner, Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
BY: AP