Summary
In Guzman v. KBP Coil Coaters, Inc., W.C. No. 4-444-246 (January 10, 2003), aff'd Guzman v. Industrial Claim Appeals Office (Colo.App. No. 03CA0233, December 31, 2003) (not selected for publication), the claimant suffered a compensable fracture to his left ankle.
Summary of this case from In re Warthen, W.C. NoOpinion
W.C. No. 4-444-246
January 10, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ). The respondents contend the ALJ erroneously converted a lower extremity rating to a whole person impairment rating. We reverse the contested portion of the order.
In December 1999 the claimant severely fractured his left ankle and required surgical repair. During his recuperation the claimant used crutches to ambulate. The claimant subsequently developed back pain.
The respondents admitted liability for the injury. At maximum medical improvement, Dr. Raschbacher assigned 45 percent impairment for abnormal motion of the great toe joints and 16 percent impairment for abnormal motion of the left hind foot. Dr. Raschbacher converted these ratings to 21 percent impairment of the lower extremity, which in turn equated to 8 percent whole person impairment. Dr. Raschbacher also assigned 12 percent whole person impairment for a specific disorder and range of motion deficits of the lumbar spine. The combined ratings for the lower extremity and back equal 19 percent whole person impairment.
The sole issue before the ALJ was whether the claimant's lower extremity rating should be compensated as whole person impairment. Expressly citing Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996), the ALJ found that the uneven gait caused functional impairment beyond the left lower extremity and into the low back. Because impairment to the low back is not listed on the schedule of disabilities at § 8-42-107(2), C.R.S. 2002, the ALJ determined that all of the claimant's functional loss must be compensated as whole person impairment under § 8-42-107(8)(d), C.R.S. 2002. Therefore, the ALJ awarded permanent medical benefits based on 19 percent whole person impairment.
On review the respondents contend the ALJ's award is prohibited by § 8-42-107(7)(b)(II), C.R.S. 2002. We agree.
Section 8-42-107(1), C.R.S. 2001, provides that the claimant is limited to a scheduled disability award if the claimant suffers an "injury or injuries" described in § 8-42-107(2). Strauch v. PSL Swedish Healthcare System, supra. Where the claimant suffers an injury or injuries not enumerated in § 8-42-107(2), the claimant is entitled to whole person impairment benefits under § 8-42-107(8), C.R.S. 2002. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996).
In the context of § 8-42-107(1), the term "injury" refers to the part or parts of the body which have been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Healthcare System, supra. Prior to July 1, 1999, when § 8-42-107(7)(b)(II) became effective, Mountain City Meat Co. v. Oqueda, supra, held that when a work-related accident resulted in at least one injury listed on the schedule, and at least one injury not listed on the schedule, the scheduled injury was to be converted to a whole person impairment rating and combined with the non-scheduled rating, so that all effects of the accident were compensated as a single whole-person impairment. See also Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1996).
However, the claimant's December 1999 injury is governed by § 8-42-107(7)(b)(I) and § 8-42-107(7)(b)(II), which were enacted to overrule Oqueda and ensure that when the claimant sustains both scheduled and nonscheduled injuries, the losses will be separately compensated under the schedule and § 8-42-107(8)(d). Accordingly, § 8-42-107(7)(b)(II) provides that:
"[W]here an injury causes a loss set forth in the schedule in subsection (2) of this section and a loss set forth for medical impairment benefits in subsection (8) of this section, the loss set forth in the schedule found in said subsection (2) shall be compensated solely on the basis of such schedule and the loss set forth in said subsection (8) shall be compensated solely on the basis for such medical impairment benefits specified in subsection (8)."
We have previously held that § 8-42-107(8)(b)(II) precludes the conversion of a scheduled disability to a whole person impairment rating for purposes of combining a scheduled disability with whole person impairment where the claimant sustains both scheduled and nonscheduled injuries. Jesmer v. Portercare Hospital, W.C. No. 4-442-706 (March 27, 2002). Conversely, where the claimant suffers a single injury and the question is whether the claimant's functional impairment is enumerated on the scheduled of disabilities, the case is governed by the principles announced in Strauch v. PSL Swedish Healthcare System, supra. Price v. United Airlines, W.C. No. 4-441-206 (January 28, 2002). We adhere to our prior conclusions.
In Price the claimant suffered a compensable right shoulder injury which caused 7 percent impairment to the "upper extremity" and that rating converts to 4 percent whole person impairment. Impairment to the "upper extremity" is not listed on the schedule of disabilities. Consequently, an ALJ was required to determine as a matter of fact whether the claimant's functional impairment was limited to the arm at the shoulder as listed in § 8-42-107(2)(a), C.R.S. 2002. Ultimately, the ALJ determined the claimant's functional impairment from the shoulder injury extended to the torso. Therefore, the ALJ determined the claimant suffered a non-scheduled injury equal to 4 percent whole person impairment.
In Webb v. Circuit City Stores, Inc., W.C. No. 4-467-005 (August 16, 2002), the claimant suffered a hip injury. A lower extremity rating was issued which converted to 8 percent whole person impairment. Under § 8-42-107(2)(w), C.R.S. 2002, the "loss of the leg at the hip joint" is a scheduled loss. However, impairment to the "lower extremity" is not listed on the schedule. Consequently, the physician's "lower extremity" impairment rating was not conclusive of whether the claimant sustained a scheduled injury. An ALJ determined the claimant's suffered functional impairment beyond the leg at the hip, which caused a limp, and in turn caused back pain. Under these circumstances, the ALJ awarded permanent medical impairment benefits for 8 percent whole person impairment.
Price and Webb both involved a single injury and the question was whether the functional impairment from that injury was fully described by the schedule of disabilities. Here, unlike the facts in Price and Webb, the ALJ found the claimant suffered two injuries within the meaning of § 8-42-107(1). In particular, the claimant suffered a lower extremity injury rateable under the schedule, and an injury to the low back which was separately rateable under the American Medical Association Guides to the Evaluation of Permanent Impairment. Because the claimant's functional impairment beyond the lower extremity was separately rateable, this is not a case where the ALJ was required to determine whether the claimant's functional impairment to the lower extremity was fully enumerated on the schedule of disabilities. Indeed, the claimant's partial loss of use of the great toe and loss of the foot at the ankle are scheduled disabilities at § 8-42-107(2)(w.5) and(z).
Furthermore, the claimant's uneven gait and resulting low back problems form the basis of both the 12 percent impairment rating of the low back and the ALJ's determination to convert the lower extremity rating to a whole person rating. Under these circumstances, the impairment attributable to the back is effectively compensated twice.
Because the claimant has sustained one rateable impairment off the schedule and one impairment on the schedule, it follows that § 8-42-107(7)(b)(II) precluded the ALJ from converting the scheduled injury to a non-scheduled injury for purposes of combining the two injuries. Therefore, the ALJ erred insofar as he awarded benefits based on the combined whole person ratings for lower extremity impairment and low back impairment. We modify the ALJ's order accordingly.
IT IS THEREFORE ORDERED that the ALJ's order dated May 17, 2002, is reversed insofar as the ALJ converted the lower extremity impairment to whole person impairment for purposes of awarding medical impairment benefits under § 8-42-107(8)(d).
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed __________January 10, 2003 _____________to the following parties:
Marco A. Guzman, 4536 W. Gill Pl., Denver, CO 80219
KBP Coil Coaters, Inc., 3600 E. 44th Ave., Denver, CO 80216
Linda Slavik, The Hartford Insurance Co., P.O. Box 6310, Great Falls, MT 59406
Linda Slavik, The Hartford Insurance Co., P.O. Box 4626, Houston, TX 77210-4626
Jeff Francis, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112
(For Respondents)
BY: __________A. Hurtado__________