Summary
In Gonzales v. Advanced Component Systems, 949 P.2d 569 (Colo.App. 1997), it was held that if an industrial injury to the eye causes functional impairment of vision which is rateable under the schedule, but also causes disfigurement of physical structures surrounding the eye, the claimant may have sustained two distinct "injuries" for the purpose of determining whether the claimant is entitled to benefits under the schedule or whole person provisions of subsection (8)(c).
Summary of this case from In re Kanyo, W.C. NoOpinion
No. 96SC336
December 15, 1997
Certiorari to the Colorado Court of Appeals
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Pepe J. Mendez Associates, P.C., Pepe J. Mendez, Denver, Colorado, Attorneys for Petitioner Ruben Gonzales.
No Appearance by or on Behalf of Petitioner The Industrial Claim Appeals Office of the State of Colorado.
No Appearance by or on Behalf of Respondent Advanced Component Systems.
Colorado Compensation Insurance Authority, Curt Kriksciun, Denver, Colorado, Attorney for Respondent Colorado Compensation Insurance Authority.
We granted certiorari in this case to review Advanced Component Systems v. Gonzales, 935 P.2d 24 (Colo.App. 1996), in which the court of appeals held that an ocular disfigurement is not a medical impairment and can only be compensated as a cosmetic disfigurement under section 8-42-108, 3B C.R.S. (1996 Supp.). We conclude that a facial cosmetic deformity may be treated as impeding an individual's function and be compensable as a medical impairment under section 8-42-107(8) rather than only as a cosmetic disfigurement under section 8-42-108. Therefore, we reverse the court of appeals.
Our order granting certiorari set forth the following two issues: (1) whether a cosmetic disfigurement, which does not interfere with a physical function, is a medical impairment under section 8-42-107(8), 3B C.R.S. (1996 Supp.); and (2) whether cosmetic disfigurement is limited to an award exclusively under section 8-42-108, 3B C.R.S. (1996 Supp.).
I.
Petitioner Ruben Gonzales sustained an injury to his right eye while working as a roof and floor truss assembler for Advanced Component Systems in Louisville, Colorado. On December 16, 1992, Gonzales was removing a steel connector plate from a truss when a piece of the plate flew up and lodged in his right eye. An ophthalmologist removed the piece of steel from Gonzales' eye and repaired lacerations of his cornea, retina and iris. Gonzales returned to work approximately three months after the accident.
Gonzales' authorized treating physician, Dr. Lawrence A. Winograd, M.D., determined that, as a result of the work-related injury, Gonzales sustained an 81% impairment of the eye, a scheduled injury under section 8-42-107(2), 3B C.R.S. (1996 Supp.). Neither party contests this aspect of the rating. Winograd converted the 81% impairment of the eye into a 55% impairment of the whole person.
Winograd also determined that because Gonzales had suffered a cosmetic deformity of the eye, he was entitled to an additional 5% whole person impairment based on the revised third edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (the AMA Guides). Section 8.6 of the AMA Guides (3d ed. rev. 1990) permits up to an additional 10% whole person impairment rating for cosmetic deformities to the eye "that do not otherwise alter ocular function." Winograd therefore assessed an additional 5% impairment of the whole person for Gonzales' cosmetic deformity of the eye. Considering jointly the 55% whole person impairment for loss of vision and the 5% whole person impairment for cosmetic deformity, Winograd determined that Gonzales had sustained a 60% whole person impairment.
Section 8.6 of the AMA Guides (3d ed.) provides: "Up to an additional 10% impairment may be combined with the impairment of the whole person caused by the visual system for such conditions as permanent deformities of the orbit, scars, and other cosmetic deformities that do not otherwise alter ocular function."
The General Assembly mandates the use of the revised third edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, in effect as of July 1991. See 8-42-101(3.5), (3.7); 8-42-107(b.5), (c), 3 C.R.S. (1997); see also Permanent Impairment Rating Guidelines Rule XIX(A),(C), 7 C.C.R. 1101-3 (1996). However, a fourth edition of the AMA Guides was published in June 1993. While the record does not indicate which edition of the AMA Guides the authorized treating physician used in evaluating and rating Gonzales' impairment, the court of appeals cites the fourth edition. We note that the variations between the two editions do not alter our analysis in this case. We cite to the third edition except in discussing the court of appeals' analysis.
The respondents, Advanced Component Systems and the Colorado Compensation Insurance Authority (CCIA) contested the cosmetic deformity aspect of the rating, and the matter proceeded to hearing before an Administrative Law Judge (ALJ).
We note at the outset that CCIA failed to obtain an independent medical examination contesting the accuracy, reliability and credibility of Winograd's rating as required by section 8-42-107(8)(c). Because the issue presents a question of law, we proceed to resolve it without reference to CCIA's failure.
The ALJ ruled that Gonzales was entitled to only a scheduled injury under section 8-42-107(2)(gg) for 81% loss of use of his eye. The ALJ did not award any benefits for the ocular cosmetic deformity.
Although the ALJ specifically observed Gonzales at the hearing to evaluate the claimed cosmetic deformity, his order stated: "Any cosmetic deformity of Claimant's right eye as observed by the undersigned [ALJ] was not considered as evidence."
Gonzales appealed the ALJ's ruling to the Industrial Claim Appeals Office (ICAP), which ruled that disfigurement involving the face constitutes a separate category of medical impairment. See AMA Guides 9.2 (3d ed. rev. 1990). Because the doctor based his rating on the AMA Guides as required by subsections 8-42-101(3.5) and (3.7), the ICAP held that Gonzales was entitled to benefits for his cosmetic deformity. The ICAP distinguished an award for cosmetic deformity of the eye as provided in the AMA Guides from awards for disfigurement under section 8-42-108 noting that the "AMA Guides indicate that disfigurement involving the face is so disruptive of an individual's function, particularly in the area of communication, that it constitutes a separate category of medical impairment." Gonzales v. Advanced Component Systems, Industrial Claims Appeals Office, W.C. No. 4-157-346, at 3 (Apr. 26, 1995). The AMA Guides instruct that "disfigurement of the eye impairs a claimant's physical function in a manner not associated with other types of disfigurement such as scarring of the arms or legs." Gonzales, W.C. No. 4-157-346 at 3. The ICAP then ruled that section 8-42-108 does not preclude an award of permanent partial disability benefits under section 8-42-107(8)(c) for cosmetic deformity of the eye. Finally, it concluded that because Gonzales was entitled to a whole person rating for cosmetic deformity, he was also entitled to a whole person rating for his visual impairment for a joint whole person rating of 60%.
CCIA appealed the ICAP's decision and the court of appeals reversed. The court ruled that a "cosmetic disfigurement" that does not impede any physical function may, as a matter of law, only be compensated under section 8-42-108, the disfigurement statute. See Gonzales, 935 P.2d at 27.
II.
We are faced with an apparent discrepancy between the applicable statutes. On the one hand, section 8-42-101(3.7), 3B C.R.S. (1996 Supp.), requires that all physical impairment ratings be based on the AMA Guides. Section 8-42-107(8)(c) provides that "the authorized treating physician shall determine a medical impairment rating as a percentage of the whole person based on the revised third edition of the [AMA Guides]." 8-42-107(8)(c), 3B C.R.S. (1996 Supp.). This court has ruled that section 8-42-107(8)(c) "mandates that the authorized treating physician base his or her decision on the provisions of the AMA Guides." Askew v. Industrial Claim Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996). The AMA Guides direct that facial deformities are presumed to impact on an individual's social and vocational functioning and thus should be rated.
On the other hand, section 8-42-108 provides:
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 the director may deem just, not to exceed two thousand dollars.
8-42-108, 3B C.R.S. (1996 Supp.). CCIA argues that the remedy created in section 8-42-108 is exclusive and preempts any other award for cosmetic disfigurement, whether contemplated by the AMA Guides or not.
In this case, the authorized treating physician assessed Gonzales' injury under the AMA Guides and labeled the disfigurement to Gonzales' eye a cosmetic deformity. Section 8.6 of the AMA Guides provides that an impairment rating may be assessed for "cosmetic deformities [of the eye] that do not otherwise alter ocular function." AMA Guides 8.6 (3d ed. rev. 1990) (emphasis added). Hence, the 5% impairment rating assigned by the treating physician was based on the physician's conclusion that the deformity caused a functional impairment associated with a facial disfigurement. See AMA Guides 9.2 (3d ed. rev. 1990). Addressing the "functional" role of the face, the AMA Guides provide:
The face has a unique role in communication. No other part of the body serves as specific a function for personal identity and for expression of thought and emotion. . . . A degree of normalcy is expected for effective verbal and non-verbal communication. . . . The face is such a prominent feature of a person that it plays a critical role in his physical, psychological and emotional make up. Facial disfigurement can affect all these components and can result in social and vocational handicap.
AMA Guides 9.2 (3d ed. rev. 1990) (emphasis added). Under the AMA Guides, a facial deformity is deemed to be a functional, not just a cosmetic, impairment. Section 9.2 also states that "[i]mpairment in this section is limited to abnormality in structural integrity only. (For loss of function, refer to [other sections])." This language simply draws the distinction between the loss of physical, or ocular, function, and the loss of function resulting from abnormality in structural integrity.
Workers' compensation law requires an evaluation of "permanent medical impairment" to determine the amount of benefits to which a claimant is entitled. See 8-42-107(1), 3 C.R.S. (1997). Subsections 8-42-101(3.5) and (3.7) respectively provide that "medical impairment rating guidelines for impairment ratings as a percent of the whole person or affected body part" and "all physical impairment ratings used under articles 40 to 47 of this title" shall be based on the AMA Guides. 8-42-101(3.5), (3.7), 3 C.R.S. (1997). The AMA Guides define "impairment" as "an alteration of an individual's health status that is assessed by medical means." AMA Guides 1.1 (3d ed. rev. 1990). Hence, the AMA Guides contemplate that a disfigurement to the eye can have more than just cosmetic implications, and when such an injury is determined to be functional it should be assessed as part of the whole person impairment.
The court of appeals concluded that: (1) the AMA Guides apply only when an employee suffers a medical impairment, and (2) as a matter of law a cosmetic disfigurement is not a medical impairment. Therefore, that court reversed the ICAP holding.
We agree with the ICAP. The AMA Guides specify that a deformity to the face can indeed be classified as a functional medical impairment and can be rated accordingly.
Relying on Boice v. Industrial Claim Appeals Office, 800 P.2d 1339, 1340-41 (Colo.App. 1990), the court of appeals defined a "medical impairment" as an impairment that "interfere[s] with or otherwise ha[s] an impact upon a person's physical functions." Gonzales, 935 P.2d at 27. The court then held that the only impairment that entitles a claimant to permanent partial disability benefits under section 8-42-107 is one that "affects a person's physical functions." Id. We do not find Boice instructive on the issues considered here.
Boice involved an interpretation of the re-employment statute that was repealed before section 8-42-107 was enacted. The injured claimant in Boice had fractured his left elbow. He was re-employed at his pre-injury rate of pay and received the usual wage adjustments. Thus, under the re-employment statute, he was entitled to an award for permanent medical impairment if he sustained a loss of physical function, but not entitled to disability benefits because he had not lost earning capacity. See Boice, 800 P.2d at 1340-41. Hence, Boice focused on a method of defining medical impairment in contrast to loss of earning capacity for disability benefit purposes.
The re-employment statute appeared as section 8-51-108(4), 3 C.R.S. (1989 Supp.) and provided:
In any case where an employer re-employs or continues the disabled employee at work in the employment of the employer at the employee's pre-injury rate of pay and extends to the employee the usual wage adjustments, the employee's permanent partial disability award shall be limited to permanent medical impairment or a payment under section 8-51-104, whichever is less.
This section was repealed in 1990. The current law, adopted in 1991, encourages re-employment of "injured employees at their pre-injury wages including any wage increases" by allowing a "premium dividend of up to ten percent" for an employer. 8-42-107.6, 3 C.R.S. (1997).
Boice was based on the prior statutory scheme that differentiated between loss of physical function and loss of earning capacity. The current statutory scheme for the evaluation of permanent partial impairment abolishes that distinction. Moreover, as noted above, the new statute requires that impairment ratings be based on the AMA Guides, which in turn, define impairment as "an alteration of an individual's health status that is assessed by medical means." AMA Guides 1 (3d ed. rev. 1990). The loss of physical function (as opposed to earning capacity) definition under the old law restricts the broader definition of "impairment" intended under the new law.
In sum, Gonzales sustained a permanent medical impairment measured under section 8-42-107(8) and the AMA Guides. Although his partial blindness is compensated as a scheduled injury under section 8-42-107(2)(gg), his cosmetic deformity is classified as an injury to the head and is not on the schedule. Thus, cosmetic deformity of the eye as it affects the functioning of the face is to be rated under section 9.2 of the AMA Guides and benefits are to be calculated for a whole person impairment under section 8-42-107(8). Since Gonzales sustained both scheduled and non-scheduled injuries, his scheduled injury must be converted to a whole person impairment rating and combined with the non-scheduled whole person rating to arrive at Gonzales' permanent partial disability award. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 254 (Colo. 1996) (when work-related accident results in both scheduled and non-scheduled injury, scheduled injury must be converted to a whole person impairment rating and combined with non-scheduled injury's whole person impairment rating in calculating permanent partial disability benefits).
Gonzales has suffered an injury that the AMA Guides presume could cause two different types of functional impairments. First, his ocular function was affected; and second, his communication or vocational function was affected. The functional components of the injuries qualify them as impairment, not just a cosmetic injury.
III.
We further conclude that Gonzales' award for the loss of his social and vocational function by reason of ocular disfigurement is not precluded by the terms of section 8-42-108. If a court can give effect to the commonly accepted and understood meaning of the language used in a statute, it should construe the statute as written. See Askew, 927 P.2d at 1337. When the General Assembly adopts a comprehensive regulatory scheme such as the Workers' Compensation Act, the legislation should be construed as a whole to give effect to all its parts. See id. If separate clauses in the same statutory scheme may be harmonized, but would be antagonistic under a different construction, the court should adopt the construction that results in harmony. See id.; Mountain City Meat, 919 P.2d at 253.
Here, section 8-42-101(3.7) provides that all physical impairment ratings shall be based on the AMA Guides. Section 8-42-108 provides for a disfigurement award "in addition to all other compensation benefits provided in this article." 8-42-108, 3B C.R.S. (1996 Supp.) (emphasis added). Gonzales' benefits for cosmetic deformity calculated under section 8-42-107(8) and the AMA Guides are "other compensation benefits." An award for a non-scheduled injury predicated upon a facial deformity does not displace an award under section 8-42-108. Benefits that might be available under section 8-42-108 are to be awarded in addition to benefits for scheduled injuries under section 8-42-107(2) and for cosmetic deformities compensable under section 8-42-107(8). If the General Assembly had chosen to eliminate the possibility that an injured claimant could recover for both cosmetic deformity under section 8-42-107(8) and disfigurement under section 8-42-108, it could easily have accomplished that result. It did not do so.
Section 8-42-107 indicates that when medical impairment benefits are payable, they shall be "limited to medical impairment benefits as specified in . . . this section." 8-42-107(1)(a), 3 C.R.S. (1997). The statute establishes the parameters for medical impairment benefits but does not preclude other recovery. The language in section 8-42-108 that provides for cosmetic disfigurement benefits in addition to other benefits would itself be meaningless if the language of 8-42-107 were read to exclude all other recovery. The statutes can be harmonized, and, thus, we do so.
IV.
Because the AMA Guides specify that a cosmetic deformity to the face does impair an individual's function, it may be calculated as a non-scheduled injury and added to the scheduled whole person rating. Such an award is not precluded by the additional remedy available under section 8-42-108.
For the reasons set forth herein, we reverse the decision of the court of appeals and remand the case with directions that the ICAP decision be reinstated.
CHIEF JUSTICE VOLLACK dissents.