Opinion
W.C. No. 4-197-825
November 24, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ denied her claim for additional permanent partial disability benefits. We affirm.
The claimant suffered an admitted back injury on December 28, 1993 during her employment for the respondent-employer. The ALJ found that the claimant had prior back problems including a 1990 injury. The ALJ further found that the claimant sustained permanent medical impairment of 25 percent of the whole person from the October 1990 injury.
With regard to the 1993 injury, the claimant underwent an independent medical examination (IME) by Dr. Treihaft. The ALJ found that Dr. Treihaft rated the claimant's total medical impairment as 27 percent of the whole person and apportioned 3 percent of the impairment to the 1993 injury. The ALJ further determined that the claimant failed to overcome Dr. Treihaft's medical impairment rating by clear and convincing evidence. Expressly relying on Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995), the ALJ also rejected the claimant's argument that the statutory language currently codified at § 8-42-104(2) C.R.S. (1995 Cum. Supp.) prohibited Dr. Treihaft from apportioning the claimant's medical impairment. Therefore, the ALJ denied the claim for permanent partial disability benefits in excess of benefits based upon 3 percent whole person impairment.
On review, the claimant acknowledges Askew v. Industrial Claim Appeals Office, 914 P.2d 416 (Colo.App. 1995), where the Court of Appeals concluded that the statutory provisions concerning permanent partial disability as amended by Senate Bill 91-218 (SB 218) provide for the apportionment of "medical impairment" and not "disability." However, the claimant notes that permanent total disability is based upon the impairment of the claimant's earning capacity and the claimant's medical impairment rating is not dispositive of that issue. The claimant further asserts that the legislature did not intent to prescribe different methods of computing permanent total and permanent partial disability benefits under § 8-42-104(2). Therefore, the claimant contends that where, as here, the record contains the testimony of experts in vocational rehabilitation concerning the claimant's previous "disability," § 8-42-104(2) requires the ALJ to determine both permanent partial disability and permanent total disability based upon the claimant's "disability." Accordingly, the claimant argues that the ALJ misconstrued the apportionment provisions of § 8-42-104(2), in failing to consider the expert vocational rehabilitation testimony concerning the claimant's "disability" in awarding permanent partial disability benefits. We reject this argument.
Section § 8-42-104(2) provides that, except in cases involving the Subsequent Injury Fund where the claimant has a "previous disability," permanent total and permanent partial disability benefits shall be determined by computing the percentage of the claimant's entire disability and deducting the percentage of the previous disability. Askew v. Industrial Claim Appeals Office, represents the current state of the law concerning the proper application of § 8-42-104(2). In Askew the court rejected the notion that § 8-42-104(2) grants the ALJ authority to apportion "disability" independent of the IME provisions of § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). To the contrary, the court concluded that by enacting SB 218, "the General Assembly clearly delegated the decision to apportion to the IME physician by declaring the opinion of the IME physician binding" unless overcome by clear and convincing evidence where the IME physician is selected by the Division of Workers' Compensation.
Notwithstanding the claimant's contention that Askew is distinguishable, we conclude that it is dispositive of the claimant's argument. Further, we are bound by published opinions of the Court of Appeals. C.A.R. 35 (f). Therefore, the ALJ did not err in failing to apportion the claimant's "disability" in awarding permanent partial disability benefits.
Moreover, even if Askew were not dispositive, we would not be persuaded by the claimant's argument. Under the provisions of Senate Bill 91-218 (SB 218), which govern this claim, permanent total disability benefits are payable to a claimant who is "unable to earn any wages in the same or other employment." Section 8-40-201(16.5), C.R.S. (1995 Cum. Supp.). Accordingly, we agree that permanent total disability is based upon the impairment of the claimant's earning capacity, which was formerly referred to as "industrial disability." Colorado Fuel and Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652 (1968).
In contrast, § 8-42-107 C.R.S. (1995 Cum. Supp.), provides for the payment of "permanent partial disability" benefits where a claimant has suffered medical impairment. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Where the claimant suffers impairment from an injury or injuries not listed on the schedule of disabilities, the claimant is entitled to permanent partial disability benefits based upon medical impairment as computed under § 8-42-107(8). Mountain City Meat Co., v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995) cert. granted October 30, 1995. Insofar as pertinent, § 8-42-107(8)(c) provides that the claimant's "medical impairment" shall initially be determined by the treating physician and, if either party disputes the authorized treating physician's determination of medical impairment, the claimant's medical impairment must be determined by an IME physician in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides).
Although permanent partial disability benefits still compensate for the extent to which a claimant's "physical impairment impacts upon that claimant's past and future ability to earn wages, the method of computing the benefits has changed. Colorado AFL-CIO v. Donlon, supra. The provisions of SB 218 replaced the factors reflecting a "loss of earning capacity" with a simplified mathematical formula based upon the AMA Guides, and the claimant's age and income at the time of the injury. Colorado AFL-CIO v. Donlon, supra. Consequently, the General Assembly, through the enactment of SB 218 has expressly provided for different methods of determining permanent total and permanent partial disability.
Furthermore, except as may be specified in the AMA Guides, the simplified mathematical formula does not include consideration of the claimant's "industrial disability," and thus, we have previously stated, the reference to "disability" in § 8-42-104(2) must be read to mean a pre-existing scheduled disability or medical impairment. Hageman v. Department of Revenue, W.C. No. 4-155-201, November 9, 1994. Therefore, the statutory scheme enacted by SB 218 does not support the claimant's contention that the General Assembly intended the ALJ to consider evidence of the claimant's "disability" in awarding permanent partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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 decision were mailed November 24, 1995 to the following parties:
Katherine Brown, 61 s. Xavier, Denver, CO 80219
OP Images, Inc., 4600 E. 48th Ave., Denver, CO 80216
National Surety, Attn: Cindy Felberg, 7600 E. Eastman, Tamarac 3, Denver, CO 80231
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203
(For the Claimant)
Richard K. Rediger, Esq., 7600 E. Eastman, #403, Denver, CO 80231
(For the Respondents)
Attorney General's Office, Attn: Hyla Viorst, Esq., 1525 Sherman St., 5th Flr., Denver, CO 80203
IME Coordinator, Sharon Elenburg (Interagency Mail)
BY: _______________________